410 Rule Has Ossipee Lake Community Worried

Freedom – May 24, 2010 – A majority of the Ossipee Lake community is concerned about the impact of the State’s controversial 410 Rule, not just those who have lost the most property. That’s the headline result of an online survey of 1,600 lake property owners conducted by Ossipee Lake Alliance from mid-April to mid-May.

In the survey’s starkest finding, 35 respondents said DES’ claim that the lake’s natural mean high water mark is 410 ft. above sea level means the State owns more than one-quarter of their property – with 12 of those saying the State owns everything, including their home.

Alliance Executive Director David Smith said 288 property owners took part in the survey – equally split between Ossipee and Freedom – but not all respondents answered all of the questions. He said the 35 respondents whose property is 25% to 100% owned by the State represented 17% of the 212 people who answered that question.

Smith said the survey results show concern about the 410 Rule’s impact isn’t based solely on how much property residents believe they have lost to the State. When asked to rate the impact of the 410 Rule as high, medium or low, 32% (68 respondents) said it was high. Some 52% (132 respondents) said they were “very concerned” about the law’s impact.

In another finding, 20 property owners (10% of respondents) said their septic system is below 410 ft., which means the State owns it. Another 33 (16% of respondents) said they are now unsure who owns their septic system.

Legal Basis of the Rule
Alliance officials began planning the survey after hosting a December meeting at which Rene Pelletier of DES and Allen Brooks from the State Attorney General’s office explained the common law origin of the State’s ownership of large lakes and their shorelines up to the natural mean high water mark.

State Administrative Rule Env-Wr 903.02 directs DES to establish the benchmark using geographical information, such as EPA and USGS databases, historical topographical maps and photographs, and physical evidence such as shoreline soil and vegetative conditions.

Pelletier and Brooks said the benchmark for the Ossipee Lake system is 410 ft., but they could not explain when or how the benchmark was set or who set it since there apparently is no paper trail for the decision. The officials said they would consider lowering the number if local officials can show it’s wrong.

State Administrative Rule Env-Wr 904.01 requires DES to conduct an investigation into a benchmark classification if it receives “credible information in writing” that the benchmark is incorrect, and State Representative Mark McConkey and Ossipee Selectman Harry Merrow have been gathering such information since January.

Lake residents have supported the fact-finding effort; but in comments posted to the survey, some expressed their frustration that the State can’t define what kind of information it needs to overturn the benchmark because it doesn’t know what information was used to establish it.

Defining “Natural”
For the Ossipee Lake system, a key word in determining the natural mean high water mark is “natural,” since the lake’s water level has been managed since the 1800s by dams on the Ossipee River.

The State Dam Bureau currently manages the lake’s water level at 407.25 ft. in summer and 403.5 ft in winter. But neither figure represents a natural water level from which a natural mean high water level can be derived.

Critics of the current benchmark also point to the word “mean” in the law. They say it is uncommon rather than average for the lake to reach 410 ft. They point to damaging floods caused by massive rains – such as in October 2005 when the lake reached 409.6 ft., and June 1998 when 17.48 inches of rain raised the lake to 413 ft. – as exceptions to the lake’s typical high water levels.

In March, Representative McConkey and Selectman Merrow presented State officials Pelletier and Brooks with maps, photos and personal recollections on the lake’s historical water level as evidence that might lead to a formal investigation.

Pelletier and Brooks were unconvinced, but offered a concession of sorts by agreeing DES will stop automatically rejecting wetlands permit applications for shoreline work on land below 410 ft. The land and any improvements made will, however, remain State property.

Taxes and Land Transfers
While some survey respondents said they would file for a tax abatement unless the State lowers the benchmark, only two such requests were made this year during the window for filing – one by a business and the other by a residential property owner. Both filings were made in Ossipee and both were denied.

Speculation also continues about the potential impact of the 410 Rule on the sale of lake property, although there have not yet been any reports of sales being delayed or aborted. Some respondents to the survey said they had checked their title insurance policy and were surprised to find it contained an exception in regard to state laws regulating shorefront land.

Public Meeting
Alliance Director Smith said a public forum on the 410 Rule that was planned for June has been shifted to August to accommodate continued research on the historical water level of the lake. That includes a site visit to the dam by State officials that is scheduled for June.

Smith said he thinks new information from the site visit will be useful for the public meeting, adding that 205 survey respondents (80%) said they were very likely or somewhat likely to attend such a meeting.

He said the Alliance will confirm an August date for the public meeting with State officials in July and will announce the date well in advance.


  1. Tom 14 years ago May 24, 2010

    Interesting that you state that only two filed abatements on their taxes on this issue and only in Ossipee as I filed for an abatement in Freedom, though I have not yet received any response on the issue. I would be surprised if no one else did the same.

  2. Stew 14 years ago May 24, 2010

    would still ike to know what the state thinks it’s gonna do with this rule?

  3. Tom 14 years ago May 24, 2010

    The state has contradicted itself on this policy,at least in my situation in that they approved a septic system that is partially below the 410 level approx 6 years ago. If they owned the land then, as they claim, why was the system approved?

    This was a new installation, not a replacement.

  4. greg 14 years ago May 24, 2010

    I’m not a lakefront owner but I’m sick of this bullshot! Let me know how how I can help !!!

  5. Jim Shuff 14 years ago May 24, 2010

    Folks, we were ticked off years ago when the state told us that people could walk along the water’s edge on our beach at our camp on Alton Bay that was back in the 50’s and 60’s. Keep electing these liberal wacko’s and the only place that the government will not own is the high water mark that Noah’s Ark settled on. When you can not even cut a tree on your own property what will be next? I am all for the environment! As a kid growing up on Winnipesaukee, I used to chase down boats who threw thrash in the lake and would throw it back at them!! But, there are limits and reason some where in all of this. You folks pay good taxes for your property but in the same vein, the rest of us are supporting the lakes with our tax money as well and should have the ability to enjoy them as well and not be treated as trespassers! Renee always seemed to enjoy running his boats on Alton Bay when he was a kid! Pelletier that is.

  6. atony 14 years ago May 26, 2010

    After reading your post I’m still not sure what your position is but I would like to comment on your “the rest of us are supporting the lakes with our tax money as well “. Although it is true we are all paying taxes to support the lakes it is also true that those of us who live on the waters edge pay a disproportionally higher amount in taxes. The state and local gov have a very peculiar way of determining property values such that the water front owners get soaked pretty good. To add insult to injury the state now says that even though you “own” the land you can not improve it within 250′ of the “high water mark” without their permission. And it only gets worse if you are not a legal resident of NH…theoretically you pay taxes for year round services and only live there maybe 3 months out of the year. Keep in mind that most of the tax revenue for the state of NH actually comes from out of state residents. You have to wonder about the financial capability of a state that can’t maintain themselves fiscally even under those favorable tax conditions….

  7. Uncle Teddy 14 years ago May 27, 2010


    If you governed a state of illiterate methmouths, you’re only jealous recourse would be to punish the productive taxpayers from neighboring states who were smart enough to invest in your land in decades past.

    I thought it was outrageous when, as a 12 yr old out-of-stater in the 80s, I had to buy a $15 fishing license to pull worm-ridden perch from Berry Bay.

    Now they’re trying to get back at us for the independent property assessments that caused the “townies” to have to sell their chronically undervalued homes.

    Life’s losers have always gravitated to municipal mediocrity. Let them wallow in it. As they say, the best revenge is living (and waterskiing) well. 😉

  8. atony 14 years ago May 28, 2010

    Well spoken….

  9. Dave 14 years ago May 31, 2010

    Please correct me if I am wrong, but as far as I know the tax “rate” does not change for waterfront property. Your property is valued higher because you can get a premium price for it because it is on the water, and they tax you on that amout. If they imposed the dreaded “view tax” on it that would be a different story. Also if the land in question below 410 ft. added value to your land, that would be the argument to reduce your tax by that amount. It seams to me the biggest problem is that the market makes waterfront more valuable!

  10. Don MacLeod 14 years ago May 31, 2010

    What changed is that many waterfront properties suddenly have a 410′ blemished title which also puts those lots out of compliance with town, county and state zoning. The State cannot support the 410′ number… so it seems ARBITRARY. The State has created defects in hundreds, if not thousands, of land titles State wide. If the State can’t support the 410′ , or other number, it would seem liable for an illegal land seizure of privately owned property. Eventually, The courts will likely direct the State to a settlement… but till then just granting universal easement for abutting land owners might defuse the issue with assured fair use and a revalidated respect for NH property ownership rights.

  11. atony 14 years ago June 1, 2010

    You are correct the tax rate is the same…there by creating the illusion of fairness. Here’s what is a little less understood. On your tax bill are what I call multipliers. These little multipliers are used to account for things like the condition of the home being taxed or the waterfront location ect. This allows the assessor to “fine tune” your tax bill. Also, the value of the property changes as the assessment gets updated. The premise for the newly assessed values was based primarily on market conditions. Last assessment was done at almost the height of the real-estate boom so I dealt with the tax increase because my new assessed value was in line with the market. Well, now that the real-estate market has collapsed you would think that the most recent assessed value would have dropped as well….but no way. Our assessed values remain that of the real-estate boom. When the town is confronted with this the reply is something like… if we changed your assessed value we would set a precedent and then everyone would be eligible for abatement …and then we would not collect enough money to support the town budget. So basically towns, states and fed gov back into taxes by first determining all of the wasteful spending they want to do and then come to us to make their spending dreams come true instead of identifying wasteful spending, looking for efficiencies and cutting back on social give a ways. So now you throw in the 410 watermark thing and you realize that the town does not want to recognize the state rule because it’s not in their best financial interest to do so and we the tax payers continue to pay tax on property we don’t really own…and that sucks…am I the only one that sees the massive lack of fairness?????

  12. Dave 14 years ago June 1, 2010

    I see what you mean atony, but if the value goes down they have no choice but to lower it and then they change the rate at which they tax everyone so they don’t loose money. That should in effect lower waterfront taxes at least a little. It they don’t do this it should be abated and the state should do it for you. Or a class action law suit would do it! I know that all the assessments are a year behind what things are at any given time. How can they legally not lower a property value when the market drops? Have you actually abated yours?

  13. Don MacLeod 14 years ago June 1, 2010

    You cannot normally sell property if you don’t have a clear title. Banks require title insurance as part of a mortgages’ closing costs and no insurance company will underwrite such a policy for land in dispute. Revaluation is based on recent property sales. I have a concern that the 410 rule has created a kind of real estate purgatory. Properties that can’t be sold won’t contribute to a fair revaluation. Those fewer properties free of 410 rule complications will likely see more competitive buyers heading a biased to recent sales in the numbers will not be representative of the realities of the waterfront market.

    A buildable waterfront lot, or one with a structure that can be demolished and replaced, seem to be valued to their fullest development potential. Grandpa’s rustic summer cabin on a wooded lot can’t be sustained in a neighborhood of year-round McMansions. Grandpa may not want to sell but the property taxes favor another year-round McMansion on a clear-cut lot with chem-lawn. Rather than accepting less revenue from grandpa’s low impact seasonal residency the state just passes more revenue collecting rules as the land is more fully developed.

  14. atony 14 years ago June 4, 2010

    I am in the “abatement process” now with my next move being to meet with the BLTA (the state) since the town denied my abatement. It has been a humorous ride so far as I begin to see, first hand, the logic used in applying taxes. I think if everyone became educated on how the tax process operates I believe we would have a revolution on our hands…and that is a good thing.
    To answer your question about the gov not lowering the assessed property value…it’s simple it’s the gov and they do what they want! They tell me they plan to re-assess this year but that’s a little late, the town has already “over collected” taxes on our property as the market has been depressed for several years now.
    In my opinion these issues, 410 watermark, in-accurately assessed property values, over taxation ect are merely symptoms of a much larger problem. That is our gov, at all levels is out of control…it’s grown too big and continues to. Have you heard the most recent job numbers??? 430k new jobs, of those only 40k where private sector. That means more gov employees that need compensation, healthcare benefits and pensions on our tax dollars….does anyone really think that our tax system will ever be fair or equitable under those kinds of conditions????

  15. George W. 14 years ago June 4, 2010

    atony said “…Have you heard the most recent job numbers??? 430k new jobs, of those only 40k where private sector. That means more gov employees that need compensation, healthcare benefits and pensions on our tax dollars….”
    Once again you babble about something you know nothing about, even though the answer is readily available. Approximately 400k of these new jobs were temporary census workers that recieve no heakth benefits or retirement, and will be back unemployed next month. In order to tackle a problem, you first need to have the ability to comprehend it. You have shown a very good knack at being unable to do either. Perhaps, if things are so bad here in the Granite State, you should just pack your bags and move back south of the border!


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