Who Owns Shorefront Property Below 410′?

[Alliance Editor’s Note: The 410′ law referenced in this article applies to all bodies of water in the Ossipee Lake system. If your lakefront property regularly floods, it’s likely the flooded portion is owned by the state, per the current legal benchmark. Please help us tally the number of affected properties by leaving a comment at the end of this article].

Tamworth – January 3, 2010 — An archaic and seemingly arbitrary natural high water mark rule imposed by the state years ago for Ossipee Lake has property owners asking questions about ownership and values.

To open up discussion over this quagmire, the Ossipee Lake Alliance facilitated a meeting on Dec. 15 with several top state officials including Rene Pelletier, environmental programs administrator with the state Department of Environmental Services; K. Allen Brooks, chief of environmental protection for the state Attorney General’s office, Department of Justice; Mark Stevens, DES land agent; Ossipee [and Freedom] select board members, and members of the Ossipee Lake Alliance.

Lake Alliance Board member and property owner Bob Reynolds spelled out the problem in an introduction to about a dozen attendees of the meeting, which was held at Samantha’s Inn. Reynolds found that there is a rule that not only does the state own the lake and the land under the lake, it owns up to the natural mean high water mark.

For Ossipee Lake, that line is set at 410 feet. An Ossipee Lake property owner himself, Reynolds found that his entire property lies under that mark.

“The natural high mean water level for Ossipee Lake is 410 feet. The lake is maintained at 407.25 feet in the summer; we have a dam that is at 408.2 feet, but our lake is what they call flashy and it goes up and down a lot depending on the rain.”

“Somehow this level was set at 410 feet. My property is completely below 410 feet. So, I guess, my question is ‘who owns it?’ Is it me? Is it the state? Is this the situation like eminent domain, where the government can take properties for the common good?” asked Reynolds.

The 410 feet rule raises question about ownership and rights as well as compensation.

“Can I make decisions, shoreline protections aside, to buy or sell my property or do things to it that I would as a normal property owner? Does the state own me proper compensation? Technically, if the state owns it, its market value is essentially zero, so what would that do to town assessments and market values of its properties?” added Reynolds.

“Is my mortgage valid? Is my deed valid? What about property taxes? How does this work?” he asked.

While Reynolds could not say how many property owners on Ossipee Lake were affected, he projected that many would be given that the water level is 407 feet at Ossipee Lake – three feet lower than the line drawn by the state way back when.

Long-Standing Regulation
K. Allen Brooks took the first shot at addressing some of these questions and explained the background, as murky as it may be, on the 410 rule. He said the rule stating that the state owns the land that falls under the natural mean high water mark has been in existence since New Hampshire first became a state.

The case law on this goes back to when the great ponds [10 acres or more] are owned up to the natural high water mark. In various forms this rule is applied in other states. He didn’t know what the history or the intricate details were regarding setting the line for Ossipee Lake, but later in the meeting, land agent Mark Stevens referred to a state document from the 1930 where the 410 rule appeared.

Freedom Selectman Neil Boyle said the word “natural” [high water mark] was a key word, and if the dam weren’t there, the natural high water mark would be more like 350 feet. “The question is, ‘what’s natural?'”

Brooks added that if this involved a stream and the state artificially impounded it and created a body of water more than 10 acres, it would not own the land in trust for the public. They would have to purchase the land, he said.

Ossipee Selectman Harry Merrow said his uncle was a lawyer in the 1950s, and he was told that the mean high water mark is the water level if the dam wasn’t there.

“It doesn’t make any sense if you have a piece of property there.”

Brooks agreed that the mark shouldn’t change based on an artificial condition (such as the state creating a man made lake by damming a stream).

Merrow said he knows of two graves that are under the lake, under water.

“Certainly when they were buried had to be before the dam was built,” he said.

Stevens, the land agent, said they were all in agreement that the word “natural” was the key element.

“In the 1930s the state determined that the natural high water mark was 410. They concluded this based on studies that the dam actually lowers water levels. And in a typical scenario, the dam would raise the water level.”

“They concluded the dam lowers it and without the dam the water would reach 410 every spring. By installing the dam they were able to lower the water level at 407.5,” he said, adding that the installation involved some dredging of the outlet and the canal. That doesn’t change where the natural high water mark is,” said Stevens.

Merrow disagreed.

“Anybody that says that dam lowers the water level has rocks in their head,” said Merrow. “When I was a kid every fall they let the water out of the dam and the lake didn’t go up. There is no way in the world the dam lowers the level I would like to talk to whoever said that.”

Stevens said the person who said that said it back in 1930.

Tax Base Implications
Merrow explained what the issue meant for the town of Ossipee through statistics he has gathered.

“We’ve got 537 waterfront lots with an assessed value of [more than] $237,000,000 which brings in almost $4 million in tax revenue, which is about 40 percent of our taxes. Now all of these properties are not below 410 [feet] but I suspect many of them may have part of their lot below 410. I wouldn’t want to pay taxes on something the state owns,” he said.

[State Representative] Mark McConkey of Freedom, a septic system designer and installer, said he’s run into an issue with the state telling a landowner that a system could not be placed in a location because of the high water mark.

“Now we have people working with some of the surveying groups in town, we are continually running into problems with what to do with people who have homes in that area, how to maintain the property,” he said. “My thought is if we can’t resolve the natural high water level, then how do we work this? Does this need to be done legislatively? How do we allow people to reasonably care for what they have?”

Brooks said there were a number of septic systems below the 410 line. The decision as to what the actual… the final arbiter of that isn’t us, and isn’t the Legislature either; it’s the judicial system – it’s the courts. The court can determine that the natural state was more likely [a different number]. We don’t have the ability to do that. The public trust doctrine is exclusively the realm of the courts, he added.

Pelletier added that the state has no interest in ownership.

“It isn’t anyone at the DES’ intention to own the land. One of the things we are concerned about is, and the reason we operate the dams is to minimize impact on structures. We’re wide open to talking about the 407 [line]. When houses get flooded or are below grade our phones ring,” he said.

Reynolds suggested, and state officials concurred, a review of the 410 rule. Pelletier wrapped up the meeting by asking those in attendance to submit any information, statistical, anecdotal or so forth, regarding this problem.

“If you can get us any information to help elucidate the problem, we’ll sit down and look at it. If we need a legislative fix, we’ll determine that need if we get to that point,” he said.


15 Comments

  1. Paul Clausen 12 years ago January 3, 2010

    I would like to thank the State of New Hampshire for allowing us the use of their permanent dock and retaining wall for the last fifty four years that is well below the 410’ level. I would also like to know which state department I could send the bill for lease hold improvements to the dock and retaining wall that the Army Corps of Engineers has approved over the past fifty four years.

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  2. Dick Gill 12 years ago January 4, 2010

    We own waterfront property on Broad Bay. The majority of our land is above 410′, however the beach area and part of the retaining wall are below 410′. I agree that this issue needs to be resolved in an timely manner. Otherwise there will be impacts on those who may wsih to sell their waterfront properties in 2010. Likewise, some may choose to intiate litigation on property tax assessments.

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  3. hardee-har-har 12 years ago January 4, 2010

    i guess charlie smiths plan to go condo is dead in the water(pun intended) he doesnt own the land as it floods almost every year

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  4. Don 12 years ago January 4, 2010

    They do need to clarify this, maybe a grandfather clause to take care of existing properties. If they are trying to fix the septic problem they are out to lunch. A septic system CANNOT function under water and will pollute the lake when it floods
    . As of right now the public can sit on “your” beach below 410′ and you have no say. Lots of gray areas.

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  5. Don MacLeod 12 years ago January 4, 2010

    Interesting but what was the intent for the language in 1930? It seems problematic to now apply, perhaps out of context, such a detail if its original intent was just to insure draft adjustment for better log raft navigation or as a contingency to build the dam a little higher or higher upstream then planned.

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  6. Steve 12 years ago January 4, 2010

    Very disturbing news as we just purchased our property in 2008. Not sure what the elevation is, but it does partially flood at around 411 or so. Maybe I can partially pay my taxes?

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  7. freedomresident 12 years ago January 4, 2010

    Just a reply to Don. I was told a few years ago by the DES that the state recognizes the first 50′ out into the water as for the exclusive use of the property owner. That being said, no one should be able to go on to your property. Now is it possible for anyone to find that in writing? I hope so.

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  8. Steve H 12 years ago January 4, 2010

    We own property on Broad Bay with an eroding stone wall. We hired an engineer and proceeded with filing the paperwork dealing with the Shoreline Protection Act . We were approved by the town of Ossipee but after 4 times refiling 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.

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  9. Lori 12 years ago January 4, 2010

    Quite interesting. Given this has been the same for 70+ years I am not as concerned with deeds when buying/selling, but I am going to be in line for my property tax rebate 🙂

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  10. Jack 12 years ago January 4, 2010

    I reside in Cassie Cove and have flooded out several times in the past and no doubt will again. Although I don’t have the data as to the elevation on the property I would believe that it resides below the 410.
    Relative to what the intent may have been when the initial high water mark was detemined by the state in 1930 in 2010 the discussion arises and I’m sure will rear it’s head again.
    The one thing I am sure of — the check will not be in the mail 🙂

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  11. Don MacLeod 12 years ago January 4, 2010

    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.

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  12. Joe 12 years ago January 5, 2010

    I do have a documented written opinion (obtained on line)from the State Dept of Safety (Marine Patrol) which was recently enforced that states the property owner has exclusive use of the beachfront down to the actual waterline (even below the 410 mark that the State owns). Any land under water on the lakebottom is reserved for public use and not exclusive to the property owner.
    I don’t think Don’s comment on the public sitting on “your” beach is correct.

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  13. Dianne 12 years ago January 5, 2010

    Joe, they may not be able to sit on your beach but they can drop anchor just off your beach if they choose. We don’t see it much here but it does happen on Lake Winni.
    Are there going to be any more hearings in the area about this? Will the Alliance let us know before hand so that we can attend?

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  14. freedomresident 12 years ago January 8, 2010

    Joe,

    When did the Marine Patrol issue that document? My understanding, based on a phone call to the DES some years ago, was that the first 50′ out was for the exclusive use of the property owner. This allowed you to place a dock, swim float, mooring etc. in the water, of course now with the proper permits. It also prevented boats from anchoring close to your propety. I do hope that this matter can be clarified during future meetings.

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  15. typical gov 12 years ago January 11, 2010

    For those not sure where the 410′ high water mark is on their property you can get a good idea by monitoring the water lake level on the DES web-site (http://www2.des.state.nh.us/RTi_Home/station_information_display.asp?WID=pemibaker&ID=OSLNH&Name=Ossipee+Lake). When the water level gets to 410′ just set some stakes in the ground where the water line is on your property. it seems that during the summer the lake level sits around 407′. But in the end I feel it does not really matter because the state will do whatever it wants…I would not hold out for any abatement or any other kind of tax relief. The state “needs” more money not less and will be creative at squeezing the lake front homeowners for every tax dollar they can get…

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