Freedom – August 1, 2010 – A controversial interpretation of how much Ossipee Lake shorefront property is owned by the State will take center stage when Ossipee Lake Alliance hosts a public meeting on the “410 Rule” at 9 a.m. on Saturday August 14 in Ossipee Town Hall.
Alliance Executive Director David Smith said State and local officials have been invited to discuss the State’s claim that the natural mean high water benchmark for Ossipee Lake is 410 ft. above sea level, which is about three feet higher than the lake’s summer level. The benchmark, required to be established as part of New Hampshire common law, defines how much shorefront property the State owns in addition to the lake itself.
The little-known benchmark for Ossipee Lake emerged publicly last fall when DES cited it to deny several permits for lake homeowners and businesses to perform shoreline maintenance work. Since being publicized, the 410 Rule has created confusion about tax liabilities and ownership of septic systems, and has caused some property owners to question whether they can sell their property when it is clear that the State has a legal claim on it.
In an Alliance survey conducted this spring, 17% of the respondents said the 410 Rule means the State owns more than one-quarter of their lake property, with 12 property owners estimating the State owns everything, including their home.
Freedom and Ossipee officials this spring received a number of applications for property tax relief based on the 410 Rule, but denied them because they believe the benchmark is incorrect and should be lower.
In a letter to the State Attorney General, one affected property owner asked whether he has the right to sell his property and whether his real estate agent has a responsibility to inform prospective buyers of the State’s ownership claim.
In a letter of response, the Attorney General’s office declined to answer the question directly and advised the property owner to discuss the matter with his personal attorney.
The August 14 meeting will include representatives from DES, the Dam Bureau and the State Attorney General’s office, as well as Ossipee’s and Freedom’s State Representatives and Select Boards. Alliance Director Smith said the purpose of the meeting is to give the lake community access to all of the currently available information on the issue and to provide a public forum to air concerns and ask questions.
“Some people are greatly impacted by this regulation, but even those who are minimally affected say they are concerned about the impact it is having on the lake,” he said.
“The two biggest uncertainties right now are property taxes and real estate transfers, and people are looking for guidance.”
The Alliance has joined the Freedom and Ossipee Select Boards in saying it believes the benchmark is set too high.
Last December, State officials conceded they were unsure where the 410 number came from and said they will consider lowering it if local officials can show it is wrong.
Since then, Representative Mark McConkey and Ossipee Selectman Harry Merrow have worked with Dam Bureau official Jim Gallagher on a fact-finding effort to determine the lake’s natural water level prior to the construction of the Ossipee River dam.
Both McConkey and Merrow have said legislation or a legal challenge may be needed if the benchmark is not changed. State officials say they hope to have enough information to consider a change request by the end of the year.
Checking the math isn’t unreasonable. If the State cannot show the math used in determining the 410ft NHWM… then it is just an arbitrary number. “They will consider lowering it if local officials can show it is wrong” ????? Each day the State upholds this bogus mistake they are in violation of 4th amendment protections against unreasonable seizure. Perhaps it is now appropriate for responsible lakefront property owners statewide to consider escrowing their property taxes pending a federal court’s opinion on the matter?
I was just looking over the US Geological Survey maps in the area. It is interesting that they list the water level in all ponds and bays as 407ft. For what that is worth.
I have listed the link to a mapping site that shows the USGS maps below.
My belief is that there are sites that maintain older USGS maps. It would seem reasonable that if those older USGS maps have it listed as 407ft it must be based on some document of measurement somewhere. If it is useful someone can check for older maps. I am fairly certain that there is a state site were I believe they keep older USGS maps on file.
It also appears on the map that looking at the concrete dam and gauging station information, the CL (concrete level ?) of the bridge was set to 405ft and the water level after the bridge was 388ft according to the map. Typically these values are considered mean levels. To me that means that the levels are all clustered at that average level The understanding is that those levels may rise and fall but that is where the average level of the bays/lakes should be. Maybe this can be used as further evidence that the levels of the lakes had been set to 407ft at least at one point. At least that is what the federal government saw the level as listed or measured.
Just an addendum. I have included a map in the states own files from 1930. It indicates a height of 406ft on Ossipee lake and Broad bay and 408ft on Danforth bay. This appears to be prior to the dam. At least I don’t see it on the map. Again, for what this might be worth.
Nice discovery on the 1930 map, Jim.
And I agree with Don about escrow of property taxes. Perhaps there are additional means to apply financial pressure directly to the DES