Ossipee – January 24, 2010 — Ossipee’s Select Board will have an opportunity on Monday to review the evidence gathered to date by Selectman Harry Merrow and State Representative Mark McConkey on Ossipee Lake’s natural mean high water benchmark.
The two have been gathering information on the benchmark since attending a meeting of state and local officials in December to discuss issues arising from an obscure law that gives the state ownership of waterfront property in the Ossipee Lake system up to 410 ft. above sea level.
After meeting with the Ossipee Board, the two plan to set up meetings with Freedom and Effingham officials to seek consensus on asking the state to lower the benchmark.
While the benchmark has quietly been on the books for years, its impact became apparent last year after DES cited it in its denial of dredge and fill applications for Westward Shores Campground and Ossipee Bluffs Association.
As word of the DES denials circulated, many lake property owners realized the benchmark meant part of their property – and in some cases all of it – is legally owned by the state.
State officials at the December meeting, which was hosted by Ossipee Lake Alliance, confirmed the legal concept of the state’s ownership to the 410 ft. level. But they could not explain how the benchmark was derived, and the 1930s-era document on which it is based apparently is missing.
DES agreed to review the benchmark if evidence can be produced showing it is incorrect. Left standing, the current benchmark could result in some lake property owners applying for tax abatements and credits, and could complicate or stymie the sale of lakefront properties.
Local officials were quick to grasp the implications of the issue and told the state they want the benchmark changed. Since the December meeting, Merrow and McConkey have been searching for maps, reports, pictures and anecdotal evidence to illustrate that the current benchmark is wrong.
Lack of Clarity
But what should the new benchmark be? State law apparently does not offer a precise definition of the term “natural mean high water.” Instead, DES Administrative Rule 903.02 directs that a determination be made based the “best available evidence,” including state reports, topographical maps, and historical reports and photos.
Some clues may also be found from the history of the Ossipee River Dam. Broad Bay resident Bob Smart has studied that history and wrote an article about it in the Autumn 2004 issue of Ossipee Lake Alliance’s quarterly newsletter.
In the article, Smart reported that the original dam owner, Central Maine Power Company, raised the lake level 11 ft. when it rebuilt the dam in 1919 to manage the flow of the river for the benefit of downstream businesses.
Smart said the spillway of the north segment of the dam, known as the Berry Bay Dam, is 405 ft. above sea level, and the spillway of the Head Works portion of the dam, to the south, is lower.
Removable horizontal boards allow the state to raise the lake to a specified level during the summer. In the 1950s and 1960s the level was kept at 406 ft. It’s now managed by the state to be 407.25 ft. through Columbus Day, after which it is drawn down to the winter level of 404.5.
The lake has experienced a number of significant floods in recent times, most notably in June 1998 when the lake reached 413 ft. above sea level, causing significant shoreline erosion and personal property damage.
But how these metrics and other information collected by local officials will help clarify what the lake’s “natural mean high water mark” should be remains unclear.
Also unclear is how many lake property owners are affected, although Ossipee Lake Alliance chief David Smith says he thinks the number is potentially large.
“As a rule of thumb,” he said, “if your property floods, you’re affected, and we know there are dozens of properties that flood every year.”
Smith advises property owners to imagine a water level that is close to three feet higher than the lake’s summer level to get an idea of the benchmark’s impact.
“It affects people on the big lake, the bays and Danforth Pond, including a number of businesses,” he said.
Some lake residents have already made their feelings about the benchmark known by posting comments on the Alliance’s website.
Broad Bay property owner Steve H wrote on January 4th that he hired an engineer to repair an eroding shoreline wall and applied to the state after complying with all regulations, including the Shoreland Protection Act.
“We were approved by the town of Ossipee but after 4 times re-filing with the State, due to the needs of more information and of course more money, we were denied. Denied because it was determined the wall was below the high water mark.”
Another poster, Don McLeod, pointed out that there is a “Monster of a tax rate difference for a house lot verses lakefront property.”
“Until it gets fixed it might be a sweet abatement deal for those who now technically own a house lot that abuts the normally dry 410′ backside of State owned lakefront,” he wrote.
In an email to the Alliance, Representative McConkey said he and Selectmen Merrow are still looking for historical information on the level of the lake. He said he can be contacted at firstname.lastname@example.org, and Selectman Merrow can be reached at email@example.com.
This is interesting to say the least. This is the same des that gave approval for my septic system several years ago, a large portion of which is apparently on their property, if their interpretation of the law is correct. If this is indeed the case why were the lots drawn up and surveyed in the sixties drawn up with lot lines that extend to the 407.25 mark.
My guess is the law will be changed since I doubt very much that the state wants to be on the hook for tax credits and refunds to property owners who have been paying for years.
I would also be curious how the laws of adverse possession would affect this situation.
I’ve a vague memory of my father-in-law saying the University of New Hampshire once owned title to the land our and neighboring Broad Bay houses are built on. I’m wondering if some lake wide precedent for accepted frontage elevation might be found in how the “State” surveyed, subdivided and sold those lots.
If the benchmark has been on the books for years and to date has not been seriously challenged..why would those property owners impacted not be eligible for an abatement of taxes?
A reasonable person might assume that if the benchmark exists and if your property resides below the 410 you would be enitled to compensation for costs to maintain as well as the burden of taxation.
The next step is to find out exactly how many property owners are impacted, once that number is clearly defiined determine what the next responsible course of action would be….the door needs to swing both ways.
I attended the Selectman’s meeting tonight and it looks very positive for the state to amend the lake level given all the info and research being done. Mr. Merrow and Mr. McConky presented positive information. The new level would be either 407 or 407.5 given the info presented