NHPropertyRights.com is working with legislators from all parties to educate them on important property rights issues. Our proposed legislation for the 2010 legislative session is as follows:
1. Taxation without Representation: In many of our towns (especially in the lakes region) property is owned by non resident tax payers. NHPropertyRights.com thinks that these property owners should have the right to vote in the March town elections. This way they can vote on warrant articles and zoning issues that directly effect them. Our country was founded on this very principal lets put our money where our mouth is and let these non resident tax payers vote!
2. End the Evergreen clause: Many towns and cities are held captive to labor unions who are not motivated to come to the bargaining table. They know that if no agreement is reached the current contract will stay in play and they will get their raises and benefits. Now that the economy has soured we see the danger of the evergreen mentality. Eliminate the concept of the evergreen clause and motivate public unions to come to the bargaining table.
3. The Municipal Attorney and the Right to Know Law: Volunteer local land use boards, Selectman and town employees often turn to the Municipal Attorney for legal advice when dealing with land use questions and situations. When the property owner whose land, building permit or structure is in question asks 'Well what did they say' they sometimes get 'well that is attorney/client privilege via the Right to Know Law and we don't have to tell you' So now the property owner has no clue as to how to proceed or what legal basis the building inspector, planning board, zoning board, selectman or zoning official is basing their denial or response on. This often necessitates legal action by the owner just to see the legal basis for the towns actions! When legal counsel gives an opinion about PROPERTY, ZONING OR LAND USE it should be public and subject to the Right to Know law. Municipalities should not be able to use the veil of legal counsel to hide any information from the owner about the owners property.
4. Clearly Define Municipal Estopple: The NH Supreme Court has really blown it when it comes to this issue. Municipal Estopple is when the local municipality makes a ruling, grants a permit or gives the go ahead for construction and they owner of the property relies on that advice, permit or ruling. The municipal official then finds out that his advice, permit or ruling was wrong and reverses it sometimes many months if not years later. This then causes significant economic harm to the property owner. The NH Supreme Court has created case law that basically says 'tough luck property owner you lose...you should have known that advice, ruling or permit was flawed'. With the current case law municipalities suffer zero consequences for bad advice, rulings or flawed permits. They walk away scott free and the property owner takes all the risk and bears all the financial burden for a mistake that a government worker made...not a mistake they made. Today property owners cannot rely upon anything a municipal worker tells them...what do we need them for then? If a local official gives advice, ruling or a permit in GOOD FAITH and the owner accepts and relies on that in GOOD FAITH then absent a HEALTH and SAFETY issue the advice, ruling or permit should stand.
5. The Selectman have the right to settle litigation: The lawyers won't like this one because they won't be able to sue as often. This issue is tied closely to the Municipal Estopple issue. If a mistake, error or action by a town official or local land use board causes damage to a citizen, taxpayer or property owner and then results in a lawsuit against the town the Selectman have the right to settle the litigation with an Agreement or an award of damages versus allowing the issue to go to court. This will be in the Selectman's discretion. The Selectman have the right to also not pursue litigation if it is initiated against the town. For example if the ZBA denies a variance and the property owner sues the town the Selectman can opt to not defend the ZBA's decision in court. This will save taxpayers tens of thousands of dollars in needless legal fees.
Today there is case law created by Sutton v Gilford that does not allow the Selectman to settle litigation by the creation of an Agreement to not enforce a zoning ordinance when a mistake was made by the zoning official.
6. Fix the Shoreland Protection Act: The DES here in NH has pulled a real power play when it comes to the Shoreland Protection Act. Under the jurisdiction of the state government hundreds of thousands of acres of private property is unduly restricted. Permitting fees, time and engineering costs have been increased 100 times for these property owners if they wish to develop their property and for what? Water quality? Projects that engulf lots with large structures and significant impervious surfaces are still being approved so why did we need this legislation? So that the state workers can justify their existence, hire more state workers and play God with your right to develop your property. Water quality should be the emphasis not bureaucracy that adds little or no value.
7. Eliminate the Business Profits Tax on the Sale of vacation property, secondary residences or primary residences that were rented: Today the DRA gives a murky technical bulletin on this issue. They always want to hold their cards close to the vest and leave issues in limbo so they can interpret them at will based on the situation. This leaves property owners always guessing as to how the government will interpret their actions. Time to take the government out of the driver seat and put the tax payer back in. We should not have to guess as to what is a taxable transaction or not a taxable transaction. Make it CLEAR if a person (not a business entity) rents a vacation home, secondary residence or primary residence and then sells it the gain on the sale of the house is NOT subject to the NH business profits tax.
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