State Wiggles but Does Not Bend on Land Ownership Claim

Freedom – February 1, 2010 – Ossipee Lake property owners anxiously waiting for a resolution of the dispute over how much shorefront the state owns will have to wait longer.

That was the word from a meeting of state environmental and legal officials last week to discuss the controversial 410 ft. average mean high water benchmark that DES has on record for the Ossipee Lake system.

The benchmark is the dividing line between what the state owns as part of its common law ownership of New Hampshire’s lakes, and what individuals and businesses own as part of their deed to lakefront property.

At 410 ft., the state’s claim to shoreline property extends to almost three feet about the lake’s summer level, leaving some individuals and businesses concerned they are paying taxes on property they don’t own and may have trouble selling.

State Representative Mark McConkey and Ossipee Selectman Harry Merrow think the benchmark should be reduced to 407 ft. For more than a month they have been collecting data on the lake’s historical water levels, and last week they presented their findings to the state.

In an email, Merrow described the two-hour meeting with state officials as “quite informative.” He said the state remains open to changing the benchmark in regard to ownership but it is not ready to do so.

The two did come back with a concession, however. Starting this week, DES will adjust the Reference Line (or high water mark) for permitting purposes from 410 ft. to 407.25 ft. The Reference Line is the point from which environmental setbacks are determined in regard to subsurface and shoreland dredge and fill applications.

The concession means it’s possible that some stalled or denied projects (such as applications to build or repair shoreline retaining walls) may now be able to proceed. But the state will continue to own the shoreline up to 410 ft. above sea level.

In essence, the change means DES will consider authorizing work to be done on state property at the individual property owner’s expense.

Records are Missing
The history of the 410 ft. benchmark remains a mystery. While state officials say it has been a matter of law for years, they can’t say who set it, when it was set or what information was used to establish it. In short, the records are missing.

What’s clear, however, is that the benchmark became a significant issue last year. That’s when DES cited it in denying applications for shoreline work at Westward Shores Campground and Ossipee Bluffs Association, saying the proposed work could not be approved in part because it was on state property.

The application denials caught the attention of lake property owners, some of whom realized for the first time that parts, and in some cases all, of their property is legally owned by the state. The number of affected property owners is not known, but it is thought to be extensive since so many parts of the lake system are low-lying.

Local officials say the impact on tax revenue could be devastating if affected property owners dispute their tax assessment or apply for abatements.

Other officials say privately that they worry the state’s claim of ownership to such a high elevation could stymie property sales, setting off a chain reaction in which lake property is essentially frozen until the 410 ft. benchmark is resolved.

Next Steps
In emails, Representative McConkey and Selectman Merrow said they will continue working toward changing the benchmark to 407 ft., adding that there is much to be done.

Last week the pair obtained the support of Ossipee’s Board of Selectmen, and this week they will make the same pitch to the Select Boards of Freedom and Effingham. [Editor’s Note: Click here to read the Carroll County Independent’s report on the meeting with Ossipee Selectmen].

McConkey said he had hoped to file legislation this year to change the benchmark, but the window of opportunity has now closed.

“We needed DES’ support…to move forward this session,” he wrote in an email, adding that he will file legislation for the 2011 session if the issue isn’t resolved by then.

Meanwhile, Merrow said this summer he will work with Jim Gallagher, the state’s Chief Water Resource Engineer, to find old landmarks that might indicate what the natural high water mark was before the dam was built.

He said establishing what the level of the lake was in the 1800s may be impossible, but he hopes a collective body of evidence can be assembled that will be persuasive.

Merrow added that he was grateful to the people who submitted information during the weeks that followed the December meeting with state officials that kicked off the fact-finding process.


  1. Tom 14 years ago February 1, 2010

    How long before the state starts sending checks for the taxes we have been paying on their property. I’m thinking I better not hold my breath.

  2. Dick 14 years ago February 1, 2010

    For information only. My deed states that we own our waterfront property on Broad Bay only from the road to the two high water mark stakes near the beach area. I do know that these stakes were still in placel last summer and appeared to be at least two or so feet higher that the normal summer level. Not sure however when these metal stakes were installed but we have owned the property since 1984.

  3. Tom 14 years ago February 1, 2010

    I know I am being taxed on three acres. Last summer I believe the water level was close to 410 in July and that put at least half of my lot underwater. I will have to look at the deed to see how it defines the boundary but I believe it actually gives a measurement from the stake at the road.

  4. freedom resident 14 years ago February 1, 2010

    If the high water mark is reduced to 407 ft could the state then require people to install retaining walls? Could a land owner be responsible for erosion between 407 and 410 ft when the dam is not opened properly as happens at least once a year? Hopefully this will be addressed as well.

  5. Don MacLeod 14 years ago February 1, 2010

    Banks & Mortgage Companies likely hold more the a few property deeds and some percentage of those are currently upside down. When the banks start looking to the title insurance companies for a remediation settlement for what is now a flawed title NH real-estate is going to get universally screwed. Even with a State fix properly owners likely be the ones on the hook to clear up and make current their deeds. Bend over owners..

  6. freedom resident 14 years ago February 1, 2010

    Owners beware. If the state changes the mark to 407, those of you who have septic systems between 407 and 410 could be held liable for pollution when the water rises. Think this one through before any wholesale changes are made.

  7. Ray 14 years ago February 1, 2010

    I sure hope that there are no septic systems between 407 and 410.

  8. Richard 14 years ago February 1, 2010

    Seems like private property ownership should go to 407.25′ , 410′ should prevail for septic system siting and the high water mark before the dam was built is irrelevant.

  9. type gov 14 years ago February 1, 2010

    some day…maybe…we the people will take back our country from this insane bureaucracy we call government. It truly has grown out of control and we just keep letting the system roll over us. There is no way we should be taxed on land we do not own…but here we sit hoping and now waiting to see if the state will throw us a crumb…absolutely asinine.

  10. George 14 years ago February 1, 2010

    A few years ago while looking for my mooring anchor, I came across a ring of rocks similar to a fire pit under about 5 – 6 feet of water. I assumed that they may have been placed there before the dam was built.
    2. How about this for a thought –between the 410 high water mark and the 407.25 summer water height, I have abought 30 ft. of sandy beach. Could I expect boaters to drop anchor, come onto the beach and party? Or, if your property line borders a “Right of Way” to the water what’s to prevent back lot owners from using the beach in front of your property?

  11. Tom 14 years ago February 2, 2010

    Right on the money type gov. Does the DES really have authority over past legal rulings, regardless of whether or not the subject is enviromentally connected? Just asking.


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