|(July 28, 2004. Manchester, NH.) - Sheehan Phinney Bass + Green, PA was retained by an association of 40 Lake Sunapee shorefront property owners to challenge a denial by the Department of Environmental Services (DES) of their request for a waiver of an 1899 state regulation banning "bathing" within a quarter of a mile of the public water intake in Sunapee Harbor. Although the ban had been largely ignored during the 20th Century, it became an issue in connection with the proposed sale of a home in the harbor. The affected homeowner, supported by his neighbors, sought a waiver of the ban. The DES denied the request even though there had never been any health incidents associated with the use of this water supply.
Jim Shirley represented the homeowners in their appeal of the Department's denial of their request for a waiver to the Water Council. During the preparation for this hearing, Jim discovered through the state archives that the original purpose of the ban was to protect against outbreaks of typhoid fever, a health risk which has long since abated. Expert analysis determined that thermal stratification prevented contaminants from entering the water intake. Moreover, the Sunapee Water supply was further protected by the installation of a slow sand filtration system in 1995. Notwithstanding this information, the Department defended its refusal to grant the requested waiver on the basis of a policy requiring "multi-barrier protection." After a one-day hearing, the Water Council reversed the DES denial as arbitrary and capricious.
The Department appealed the Water Council's Decision And Order to the New Hampshire Supreme Court. "The Supreme Court instructed both sides to present written arguments before they would make the determination whether or not to hear the case," stated John M. Dixon of the Lake Sunapee Property Rights and Conservation Association. "Mr. Shirley replied with a 52-page written argument containing all of the relevant issues and previous findings concerning similar issues."
On May 5, 2004, the State Supreme Court heard oral arguments from both sides. "Mr. Shirley represented the Association and began his allocated 15-minute presentation," stated Dixon.
"The five justices began asking very pointed questions shortly after Mr. Shirley had begun and he had the answers to each and every question asked of him." As a result, the property owners prevailed. The Supreme Court took into account the original purpose of the ban, the long history of swimming in the harbor without health incident and the additional protection of the 1995 sand filtration system. The elimination of the ban has had a substantial positive impact on the value of the Sunapee Harbor homes affected by it.
In a letter from the Association, Mr. Dixon writes, "Jim Shirley's presentation before the Supreme Court was magnificent. This victory in regaining the property rights for the homeowners is, in no small part, due to the efforts of Mr. James Q. Shirley and the staff of the law firm. The fact that Jim Shirley stayed the course with us over the three years of the fight is testament to the dedication of the entire firm to see a case through to fruition."
If you would like more information about this case, please contact Jim Shirley.