2011 Legislative Session UPDATE
Representative David Bates and Lakes Region Senator Jim Forsythe have taken the lead on devising a remedy for those whose side by side lots were merged by the municipality without their consent. This is follow on legislation to SB406 which put an end to the practice. Now you would think that if we ended the practice then the local government would step forward and remedy the situation on their own. Well such is not the case especially since the Local Government Center sent them all a bulletin that basically said 'oh well you can't merge after September 18 2010 but for those suckers that you snared...leave them merged!' See page 15 here
The Local Government Center attended all the House and Senate hearings on SB406 and argued against its passage. They felt that zoning should rule the day and they saw nothing wrong with the government rendering private property valueless. So when SB406 passed against their objection its not too surprising that they came out with statements that poo-poo'ed how our local municipalities should react. However their advice has caused quite a bit of additional hardship for families here in NH. SHAME on the LOCAL GOVERNMENT CENTER.
Cases in point:
The Carter Family of Bedford NH. Mrs Carter has moved on in years and is now in a nursing home. Her children wanted to sell her property so she can be well cared for. Times are tough but Mrs Carter owned some nice property. A house in Bedford, NH on 1.5 acres and a vacant lot next to it of 1.3 acres. Mrs. Carter has owned the property for 47 years and paid her TWO tax bills on time all the time. The family even had a buyer for the vacant lot. But the Town of Bedford said NO. Those lots are MERGED! Even though you paid two tax bills and your vacant lot is taxed as buildable you lose! The Carter Family was in a bind....they talked with Barbara Aichinger who vowed to help them fight! Several letters were sent to the Bedford Planning Director and the Planning Board. The town was standing strong. The Town Attorney said NO, SB406 means nothing to the Carter Family, look at the Local Government Center bulletin! The buyer for the vacant lot walked and the Carter Family was forced to sell both parcels together at WELL BELOW ASSESSED VALUE. The facts in this case tell the story. The house and the lot together sold on 12/16/2010 for $339,000.00 The assessed values per the Bedford Town web site are: The house $398,100.00 and the vacant lot $117,000.00. Sales prices of nearby vacant lots of similar sizes range from $100,000.00 to $135,000.00 within the last 12 months. I'd say the Town of Bedford owes the Carter Family over $100,000.00!
The Roberts Family have owned property on Cobetts Pond in Windham NH for almost 100 years. It has been passed down through the generations and is now owned by Mr. Charles Roberts of Virginia. Mr. Roberts would now like to sell some of his property. The Town of Windham says NO! Your 5 lots are all merged together and you have only one lot! Even though the NH Department of Environmental Services says you can get septic on each of those lots the Town says NO. Now here is the real kicker...the Town of Wyndham never ever had a merging ordinance! The town just decided on its own without any notification to anyone that it was going to erase peoples lots lines and merge their side by side lots together. Mr. Roberts was very upset! He went to the town Selectman, who consulted with their municipal attorney. The attorney said MERGED! SB406 means nothing to Mr. Roberts AND we don't need a merging ordinance we can do it anyway. All the lawyers involved recommend filing a LAWSUIT (surprised?). Mr. Roberts contacted his state representative Mr. David Bates. Mr. Bates has filed HB 532 to provide a remedy for people like Mr. Roberts, but too bad for the lawyers.
More stories coming soon!
MORE PROPERTY RIGHTS ISSUES
NHPropertyRights.com is working with legislators from all parties to educate them on important property rights issues. Our proposed legislation for the 2012 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. 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.
3. 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.
4. 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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