Despite appeals, objections, and new law, NHDES suit against Moultonborough property owners over staircase flows on

New Hampshire Department of Environmental Services staff want a Moultonborough property owner to tear down a staircase built in April 2018, saying it violates state wetlands laws, and are suing the homeowner seeking compliance.

The litigation is a years-long endeavor, full of appeals, extensions and administrative orders, all stemming from an anonymous complaint to NH DES about the structure above a boat slip on Spectacle Drive. The home is owned by Robert and Carolyn Newcomb, of Hanson, Massachusetts.

The state has sued the Newcombs, implementing fines of as much as $10,000 per day — more than fines for an oil spill on Lake Winnipesaukee — and remains staunch in the belief the couple should tear the staircase down.

“The Department issued Administrative Order No. 20-009 WD on April 14, 2020 requiring removal of the offending deck and stairs,” reads the complaint.

That administrative order states the following: “On May 23, 2019, DES sent a letter to Robert Newcomb detailing the findings of DES staff during the inspection of the Property on April 10, 2019. In the letter, DES staff set out the alleged violation, and requested that Mr. Newcomb submit a restoration plan detailing how the ‘walk-out’ and stairway will be removed, and the ‘dwelling over water’ will be returned to the original footprint and outside dimensions. DES requested that the plan be submitted within 30 days.”

The law in question, RSA 482-A, states no one shall excavate, remove, fill, dredge, or construct any structures in or on any bank, flat, marsh, or swamp in and adjacent to any waters of the state without a permit.  There is no waiver or variance provision in the statute, meaning the law is absolute.

The staircase, which the Newcombs received a building permit for in 2018, from the Town of Moultonborough, creates a safe, second egress from the home, according to John Cronin, of Cronin, Bisson & Zalinsky, who is representing the couple. The staircase is a small, wooden landing outside a glass sliding door, with a wooden staircase to the accompanying slip.

The staircase’s original plan was modified by the local building inspector. The updated plan was used during construction.

“This contractor testified he went to DES and met with an agent, and was told he did not need a permit. It was an egress matter. He went and did the work thinking it was the way it was supposed to be,” Cronin said. “But after completion, DES called.”

After a property inspection April 10, 2019, by NH DES staff, they wrote, “The dwelling appears to have been originally constructed over the shoreline of the Property, including a boat slip beneath the structure. The new deck and stairs have expanded the footprint and exterior dimensions of the dwelling on the Property.”

Expanding the footprint is the crux of the issue, and it’s been a nightmare for the Newcombs ever since.

They remain steadfast in their rights to maintain the staircase, and have appealed every chance they can. They’ve also helped draft legislation for a new RSA to allow waivers.

The new state law, RSA 482-A:26, III, which was signed into effect in May, was brought forward as a direct result of the ongoing civil suit, to help people in similar situations.

The law allows existing, legally-built dwellings over public waters to be repaired, reconstructed, or maintained using modern technology, provided the work does not expand the existing footprint, outside dimensions, or living space.

However, when it comes to exterior features, there’s some flexibility.

The new law states, “expanding legally existing exterior features only, such as decks, balconies, stairs, rooflines, or eaves, provided that no such addition or expansion shall result in an increase in interior floor space nor change a recreational, water-based activity to a land-based, residential or commercial activity” so long as the cumulative area does not exceed 100 square feet.

In turn, NH DES leaders have filed Interim Rule INT2026-21 in response to the new law, put formally on the record Aug. 27.

“The Department of Environmental Services (Department) is proposing interim rules to implement Chapter 14:1 of the Laws of 2026, effective May 26, 2026, which amended RSA 482-A:26, III to change the requirements that apply when the owner of a dwelling over public waters is allowed to make modifications to the footprint or outside dimensions of such dwelling by adding an external feature or expanding a legally existing external feature. Such modifications require authorization by the Department and must meet the requirements set by the law.”

Cronin filed an objection Thursday.

“The statute does not state that it only applies to future building and it does not prohibit the Newcombs from seeking a waiver. The DES’s proposed interim rule conflicts with the direct intent of the statute. The proposed language states that people affected by the rule are 'any owner of an existing dwelling over public waters subject to NH RSA 482-A:26 who wishes to add an external feature or expand a legally existing feature.' The language should apply simply to 'any owner of an existing dwelling over public waters subject to NH RSA 482-A:26.' (Exhibit D) As drafted, the proposed rule creates classifications and raises an equal protection problem. A good comparison to the waiver is the variance process for relief from a zoning ordinance which does not discriminate on who may seek relief based on whether they sought a variance before or after construction.”

The home, which shares frontage directly on Lake Winnipesaukee, sat in disarray for years before purchase in a distress sale by the Newcombs. Today, the property is valued at $1.3 million, according to the 2026 Moultonborough town assessment.

The Executive Council meets Wednesday, Sept. 16, and according to Cronin, is likely to discuss the new law governing repair to shoreline structures.

NHDES representatives confirmed receiving a request for information for this story, but were unable to respond by deadline.

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Katlyn Proctor can be reached at katlyn@laconiadailysun.com or by calling 603-524-0150.