Alliance and Officials Collect Data on 410 Rule Issue

Ossipee — April 25, 2010 — Ossipee Lake Alliance and town officials from Freedom, Ossipee and Effingham are busy this spring collecting evidence to support a request to lower the state’s mean high water mark at Ossipee Lake by three feet.

Under common law, the state owns large bodies of water and their shorelines up to the mean high water mark. For Ossipee Lake, this mark is 410 feet above sea level.

This benchmark poses a problem for shorefront homeowners like Bob Reynolds of Ossipee, who found that his entire lot was under the 410-foot mark when he applied to the state for shoreline work. The state has also denied applications for some septic system work citing that the work was proposed within state property – within that 410 mean high mark.

Proponents seek to lower that mark to 407 feet. Other homeowners question ownership of the property but have unsuccessfully applied to towns for tax abatements.

OLA and town officials met with key personnel from the state Department of Environmental Services, Department of Justice and the Dam Bureau in December to air their concerns. State officials acknowledged they can’t justify
when that mean water mark was set, and shifted the burden onto town and OLA members at the meeting to provide evidence supporting the request.

Since that meeting, Ossipee select board chair Harry Merrow,who is also a local Realtor, said he and State Rep. Mark McConkey of Freedom have collected “quite a bit of material” to present to the NH Department of Environmental Services.

“We’re hoping we can establish the mark is below the 410 – if we can’t we’ll go to court,” said Merrow.

He’s aware of at least one abatement request to Ossipee, which was denied. “If we allow abatements, we are admitting the state owns to the 410 mark and we don’t think it does,”Merrow said. His collected data thus far includes old maps, and the fact that some old grave sites are located under water, as is an old state bridge abutment. He invites landowners who have evidence of the lower mean water mark to contact him with information.

In other developments, Ossipee Lake Alliance Executive Director David Smith announced that mailing list subscribers were notified by letter of an online survey on the topic of the 410 mark. The survey seeks to determine how many lake property owners are affected by the state’s claim that it owns the shoreline up to the 410 foot line. The survey is targeted to property owners on Ossipee Lake and the three bays, the rivers and channels and Danforth Pond.

“I think everybody is affected in some way; the question is, how many,” he said, noting that Reynolds’ property is entirely under the 410 mark and that he imagines that Westwood Shores homeowners are also heavily impacted.

One goal of the survey is to increase awareness of this issue. Smith said many lake front property owners live elsewhere, and have yet to fathom the potential impact of the state’s mean high water mark on the lake.

“This creates complications if you want to sell your property; you might not be able to get a free and clear title. That’s the biggest concern thus far.

Smith is equally as concerned that the state has shifted the burden onto the lake community and local representatives.

“Most disturbing is that the state does not know who set it, the criteria, etc. Because of that, the state should have the obligation to reset that number and to investigate. Instead, they have dumped that burden onto the lake community and the local representatives to prove that it should be lowered,” said Smith. “It’s a wild goose chase, because the state has not told us anything; they can’t tell us what we’re looking for.”

“That, to me, is most disturbing. Our hope was that this would be a collaborative effort between the state and the lake communities.”

A follow up meeting will be scheduled for some time in June with Rene Pelletier of NH DES and Jim Gallagher from the state’s water division. Pelletier has said in the past that the state is willing to consider evidence to lower the mean high water mark; as of this week, there were no new developments at the DES regarding this topic but Pelletier noted he would look forward to a follow up meeting and tour.

Merrow said that tour will show them the lake historically has been much lower of the 410 mark, and will include a viewing of the Stage Road bridge abutments, now underwater.

Smith expects that more landowners will be around – and aware of the problem – for the follow up meeting in June.

“There will be a higher level of interest,” Smith said. “Our agenda is to get this resolved.”

14 Comments

  1. Don MacLeod 11 years ago April 26, 2010

    Finding an amenable resolution seems a worthy goal. Not surprisingly the State isn’t just going to do the right thing of equating a now unrepeatable calculation of a mysterious mean high water mark with the more logical, controlled & commonly accepted dam managed seasonal high water level.
    I wonder if requesting through the freedom of information act (FOIA) an inventory list of all relevant source documents leading to the common law definition of setting in feet above sea level the mean high water mark for both Ossipee Lake and the same document list for Newfound Lake. That exercise might at least establish that the State is compliant and consistent with its legal record keeping obligations. It would seem a lot of expense and effort could be wasted if the State is in fact noncompliant to start with.

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  2. atony 11 years ago April 26, 2010

    couple of things here; “If we allow abatements, we are admitting the state owns to the 410 mark and we don’t think it does” certainly this abatement denial has nothing to due with tax revenue, right???? if the state wants to hold firm to the 410…let ’em. just gives us back our money based upon the land above 410…that’s only fair, but you know that’s not going to happen because as a land owning, tax payer our job is to shut up and pay. We, all shore front owners need band together and take this to court ourselves. the town and the state only has it’s own interest in mind. we need to take control of this situation ourselves because if anyone here has a vested interest in how this all turns out it’s truley the land owners. I guarantee that neither the state nor the town has the interest of the taxpayer at heart!!!

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  3. Don MacLeod 11 years ago April 26, 2010

    In review of the Don Lee case (reference “Groundhog Day and the Donald Lee Case”) there seems to be a hard lesson that lots of money and time can be spent in court and if you win you still lose.

    This issue is bigger than the Ossipee Lake property owners. Every time, not just the last time, waterfront property changed hands buyers across the state paid for a title examination, they paid to have warranty deed documents legally prepare and bought title insurance for their lender and perhaps themselves. My suspicion is that this is likely an endemic state wide issue for every waterfront property. The prospect of the cost to inspect and fix thousands of title creates a toxic environment for the insurance industry. There will not be a real estate attorney that doesn’t have some liability hanging over their heads for questionable diligence in their title exams. This is going to be a huge crisis for the NH real estate industry. To avert disaster, and until there’s a better solution I would urge the state Governor to clarify that the trade in waterfront deeds implicitly grants access and fair use to the waterfront not just to some arbitrary and currently unsupportable DES notion of a mean high water mark. Unfortunately we are dealing with New Hampshire and the old man didn’t fall off the cliff… he jumped in frustration.

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  4. atony 11 years ago April 27, 2010

    Don-
    The real “crisis” here is that the state and town are able to preserve their interests at the expense of the tax payer. If the issue is bigger than the Ossipee Lake property owners it is because we are not governing ourselves through government instead we are just being abused by the bureaucracy of big government. We the tax payer have lost what little control we had and this issue is representative of that.
    I don’t understand why this is going to be a huge crisis for the real estate industry and I’m not too sure that any of us should be worried about the real estate attorney’s or the title insurance companies. When you boil this down this is about the property owners being taxed on property they do not own…and what makes it really stink is that the DES wants’ to hold onto the 410 water mark and the town is all to willing to keep taxing us at the 407 level. So while the state and the town “battle it out” we keep getting, in plain english, screwed.
    The only people who will look out for us…is us!!!!!

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  5. freedom resident 11 years ago April 27, 2010

    If I understand what is happening, the state has allowed some projects to go forward below the 410′ mark. Why would anyone do this with the ownership unknown. I think that if a retaining wall needs replacement below the 410′ mark than until specified otherwise the state should be on the hook to replace it. Watch how fast that number changes back to 407.25!

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  6. Don MacLeod 11 years ago April 27, 2010

    If a couple hundred middle-class taxpayers are grieved about injustice HN will just sit back, raise the tax rates and wait for gentrified deeper pocketed nonvoting out of State replacements to move in.

    My suspicion is that DES has a specific water level numbers for every single Lake in NH and the background origin and formulation of those numbers is at best a curiosity. Every individual property owner has a plot plan associated with the deed that lists a measurement from their road front to their waterfront. Since both numbers can’t be legal.. one of those numbers has to change. Once this problem fully hits the title insurance companies… a couple things are going to happen they will be hesitant to underwrite policies and the cost for insurance is going to go through the roof. It is then going to become too obvious to real estate attorneys collected fees for services they didn’t actually perform and the NH BAR association will be having kittens. Every surveyor who neglected the profession by excluding or not clearly defining the unique high water mark for that property will share some liability. Dealing in New Hampshire real estate will become very painful and NH commerce will suffer.

    Hopefully before the high water scandal fully breaks the Governor will have the NH legislature dancing to find an amenable solution. Come June everyone should have a better idea of the best course of action.

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  7. atony 11 years ago April 27, 2010

    “If a couple hundred middle-class taxpayers are grieved about injustice HN will just sit back, raise the tax rates and wait for gentrified deeper pocketed nonvoting out of State replacements to move in.”

    This is exactly why we need to take this to court. The state and town are all to willing to let this go on indefinitely…and why not…the DES gets more control and the town still maintains its tax income. There is no process in place to drive corrective action…or even fairness…and if you think that is only a problem for a couple hundred middle-class tax payers then you miss the much larger picture.

    Am I the only one repulsed by the lack of balance between citizen and government…that the government can do something like this but then feel perfectly comfortable imposing liens and late fees if we are late with a tax payment…this situation is a blatant, government doing and behaving how ever it wants and their is nothing we can do about it, slap in the face.

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  8. Don MacLeod 11 years ago April 27, 2010

    Death and taxes.. I’m not a resident… I cannot vote and have no political voice without first asking permission to speak. Perhaps misdirected anger risks compromising our better interests?

    Maybe one consideration for the meeting in June could be the establishment an escrow account to which we might direct our real estate tax payments. The town, county and state can then seek court guidance in directing what portion of the escrow can be paid until this honest mistake can be worked out. The Town of Freedom having funded the Marina’s interests in court now owes that same consideration to the people of the lake but that decision will likely be up to the Court overseeing the escrow. Perhaps a NH Judge might appreciate the chance of applying practical New England Yankee integrity to resolving such problems.

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  9. freedom resident 11 years ago April 28, 2010

    Don raises some interesting points. I wonder if the “big” lake in Wolfboro has experienced this? That’s were all the money is, most likely where the Judges have homes. I spoke to someone who has a home on another lake who stated in a matter of fact way that the state ownes up to the high water mark. When asked what that was, he had no idea. There has to be a number for each lake, this may be a much larger problem. The more angry taxpayers in the state the faster we will get a resolution. The state should publish what the number is by lake. Every waterfront property owner has a right to know what that number is and what impact it has on their property. Can the Alliance get that information and publish it?

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  10. freedom resident 11 years ago April 28, 2010

    Check out the web site below. It shows natural mean high water elevations. Very interesting, I doubt that many people are aware of this.

    http://des.nh.gov/organization/divisions/water/dam/public_waters/documents/mean_high_water.pdf

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  11. atony 11 years ago April 28, 2010

    Don-
    Fundamentally I think we both agree that what the state and town are doing is wrong. We seem to differ as to how to approach rectifying the problem. So it’s not misdirected anger, you sense, it’s more like sincere passion. I too, am not a resident and understand that I have no voice through vote. That is why I think if we want to effect any change we need to go through the court system…and I am not a litigation kind of guy I just feel it’s our only option. In my opinion the town of Ossipee should be granting abatements until this is settled…and you know already they won’t do that because of the tax revenue hit. The town is not doing what’s right they are just doing what is financially in their best interest…and that should get us all very concerned. If we do nothing but wait for the state and town to work this out and hope everything will be OK and fair then we most certainly can expect our interests to be compromised.
    P.S.
    with regard to your “honest mistake” comment…if you honestly forget to make a tax payment what happens???? that kind of language offers latitude to the governement that they do not afford to you and in my opinion do not desreve…

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  12. Florence R. 11 years ago April 28, 2010

    I have to chuckle at the umbrage being expressed by atony. Tony, neither the State or the town are going to abate you for property that you have enjoyed complete control over, regardless of the 410′ rule. If the State or the town had exercised control over that portion below 410′, then maybe you would have a case. But you want it both ways. You want money back for property that you always enjoyed exclusive use of. Gee, it makes me wonder if this “Tony” is Charlie Smith’s partner. If so, it explains a lot! Wonder if Charlie Smith and Doctor Tony would share any rebate with the hapless campers suffering at Westward Shores. Somehow I think not!

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  13. sadbuttrue 11 years ago May 3, 2010

    Heard that CS had to sell everything he owns at a auction, desparate for cash. Also heard the store was not opening at the campground! What exactly are the campers paying for?

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  14. atony 11 years ago May 3, 2010

    Florence,
    You are sadly mistaken on several accounts.
    First I have not had control over the land as evidenced by the lack of permit requested for a retaining wall at the 408 level. If it came right down to it and I contested exclusive use and ownership of any land between the 407 and 410 mark I will most certainly lose. The state also exercises control anytime work on any lake front property is requested 250′ from the 410 watermark not 407. It’s not me who wants it both ways it’s the state and the town that get it their way and both of them conflict with each other. I say if the state wont yield to the 407 request then I want an abatement and refund of over paid taxes. Just because I used the beach in front of my house does not mean I had exclusive use. In theory anyone could park and use the beach and , legally,there is nothing I could do about it.
    Second, I have no association with Charlie, I’m just a concerned citizen that is tired of being taken advantage by so many government bodies. I want and expect fairness for all of us. Of course if you are not a lake front property owner then I can easily understand why you would not agree with my sentiments. After all it people like us who get to supply a large portion of the local and state budgets which keep many of the local services going…certainly wouldn’t want the local folks to shoulder too much of their own budget burden now would we…

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