The state Supreme Court has issued a ruling in a legal fight over a proposed jet fueling station at Portsmouth International Airport, determining only landowners are able to offer environmental concerns on matters before the New Hampshire Wetlands Council, not renters.
Million Air, an international fixed-base operator (FBO) provider based in Houston, Texas, and doing business as Pease Aviation Partners, wants to build a new facility at Pease to service private aircraft.
An FBO is a commercial enterprise that has been granted the right by an airport authority to operate on site and provide aviation services like fuel, parking, airplane rentals and hangar space.
Million Air's proposal drew strong objections from residents and area municipalities due to environmental concerns.
An online petition created in August 2022 by Dania Seiglie of Rye received more than 1,313 signatures, but following a public hearing in 2022, the Department of Environmental Services (DES) Wetlands Bureau issued a permit.
"We cannot rubber stamp a project that could jeopardize our wetlands, the safety of our drinking water, or the safety of our surface waters like the North Mill Pond," the petition read. "The proposed project increases the risk of causing contamination to our drinking water and to our wetlands. There are available sites at Pease that do not pose any risk to the wetlands. Million Air ignores those alternative sites."
Port City Air, which leases a hangar that abuts the land where Million Air wants to build its jet fueling station, joined an appeal of the permit decision, but the DES Water Council tossed out the appeal, saying the company didn't qualify as an abutter under the law.
Port City took the case to the New Hampshire Supreme Court, arguing the order by DES is unconstitutional.
"The Order relies on a reading of applicable statutes that leads to an unconstitutional result: depriving Port City Air of any right to be heard, and therefore violating its right to due process under the United States and New Hampshire Constitutions," Jake Marvelley, an attorney representing Port City Air, wrote in an appeal filed with the state Supreme Court on Friday.
The Wetlands Council determined Port City doesn't meet the legal definition of a "person aggrieved," the legal term for a party meeting the necessary requirements to bring legal action, because Port City doesn't own land at Pease -- it leases its current site from the Pease Development Authority.
"Port City does not possess a fee ownership interest in the relevant land. Port City does not possess an easement on PDA owned land, buildings, other facilities, or improvements. As Port City does not qualify as a landowner, it cannot qualify as an abutting landowner and therefore cannot be a 'person aggrieved' with standing pursuant to RSA § 482-A:10," wrote Zachary Towle, a DES hearing officer.
Marvelley had argued during his appeal that if the ruling were allowed to stand, no tenant anywhere in New Hampshire could appeal an order handed down by DES.
"That would mean a wide-ranging infringement of constitutional rights of any party that happened to not be a landowner," Marvelley wrote.
In a ruling issued Dec. 24, the state Supreme Court found Port City "lacks standing" under state law to appeal the issuance of the wetlands permit to the Wetlands Council.
"Port City claims that issuance of the wetlands permit will injure it because construction of the access road, and ultimately operation of Million Air's proposed facility, pose the risk of disturbing existing contaminants and adding new contamination to the wetlands," the state Supreme Court ruling states. "That contamination, Port City claims, could spread to its leased premises, impacting its water supply and triggering its environmental indemnity obligations to its lessor. Setting aside the issue of whether Port City has a legally protected property interest, it has not identified how a deprivation of such interest would occur as a result of the issuance of the wetlands permit. Accordingly, we conclude that Port City has not met its burden of establishing that it will be deprived of a protected property interest triggering due process protection under the State Constitution."
Port City Air could not be reached Tuesday for comment.