Rules Now Rule

Monday, March 1, 2010

Illustration by Stephen Sauer.

Illustration by Stephen Sauer.

Illustration by Stephen Sauer.

More Information

Orr & Reno: www.orr-reno.com
Sager & Haskell: www.sagerhaskell.com

Once upon a time — and really not so long ago — that was true. You could buy a few acres in the backwoods of the Granite State and do pretty much as you pleased. Zoning was lax, building codes were nonexistent, and as long as you kept up with your taxes the town left you alone. But like so much of old New Hampshire those days are mostly gone.

“The phenomenon is that a lot of the land has been bought up and utilized, so the amount of space we’ve enjoyed between and among one another is shrinking,” says attorney Rich Uchida of Orr & Reno in Concord. “With that comes a demand of how someone uses their land, and as open space between people becomes smaller and smaller, regulatory power becomes even greater.”

And that’s how the rules got started. “It all emanates from the common law principle that no one should put their land to unreasonable use,” Uchida says. “One might argue philosophically whether it’s good or bad, but it has evolved into a scheme of government deciding what constitutes an unreasonable or reasonable use.”

Just which government, and who constitutes it, depends on where you live and the kind of land you own. New Hampshire’s few cities and its larger towns tend to have professional planning and development staffs advising its appointed land use boards and commissions made up of local volunteers.

Smaller communities may have a planning or zoning board, or just a bunch of rules developed over the years by their selectmen or the town council. Some of them may have had the advice of a lawyer as they were going along, while others might have just adopted the same rules as neighboring towns, or done what seemed right at the time.

So you can get a patchwork of rules dictating whether, say, Aunt Grace can open a one-seat beauty shop in her garage.

“In the name of reasonable use, a community could say we don’t think that’s a good idea because the parking, small streets, smells from chemicals and numbers of employees impacts the residential neighborhood we expect to have there,” Uchida says. “The rules ought to be created uniformly so you as a homeowner or me as a prospective buyer know what to expect, but that’s not always the case.”

But the rules don’t always make sense, even when they come from a higher level of government, with presumably deeper legal resources. For example, New Hampshire law says the state owns lakes and waterways up to their high-water mark. On Ossipee Lake, the state set that level at 410 feet above sea level. Then it installed a dam that actually lowered the lake more than two feet but never changed its land claim. And lately it has begun denying permits for most work in the dry swathe.

“It’s an odd thing and there are only two lakes in the state where they came to that conclusion,” notes attorney Rick Sager of Sager & Haskell in Ossipee. “The Department of Environmental Services has approved a plethora of projects that are located below 410 feet on people’s property, but we’re in a situation now where they have taken the position that they were not properly enforcing the law and shouldn’t have approved septic or subdivision plans that allowed development below 410 feet.”

That ruling currently means lakefront property owners can’t repair retaining walls on the dry land between the state’s asserted high water mark and the highest point where the water can rise before it all spills over the dam. Campgrounds can’t go condo because their septic systems are now deemed to violate state rules, even though they were built with state approval. And the only way to fix it, Sager says, is to get the state Legislature to pass a new law and hope that the governor signs it.

Other lakefront landowners face similar challenges, due largely to the state’s Comprehensive Shoreline Protection Act. As recently amended, it forbids construction within 50 feet of the high-water mark — wherever the state says that is. It also restricts most land work within 250 feet of the shoreline — and as in Ossipee there’s little landowners can do but hope the rules are changed.

Fortunately the average homeowner has it a little easier. “To some extent we have a relief valve through variances to zoning ordinances where proposals require specific exemptions,” Uchida says.

Just how easily a homeowner can move through the variance process and whether they should go it alone depends on the project and the locality. The process can be complex for obtaining even a minor adjustment, such as permission to put a driveway close to your property line, and it can require particular steps be taken in a specific order and at precise points in time.

“As I look at it, the thicker the regulations and ordinances, and the more variances, waivers, special exemptions and conditional use permits you need, the more likely it is that you should talk to a pro,” Uchida observes. “And I would tell people who don’t want to spend the money to have someone walk them through the entire process, have an initial conversation with an expert so you get a flavor or sense of what you’re up against.”

Is that New Hampshire? It’s definitely New Hampshire today, whether or not we wish it were not. And maybe it won’t always be.

“There’s a part of me that says you and I should be able to agree that you could put your shed next to my property line and it doesn’t need to go to a planning board,” Uchida says. “I think boards ought to be able to give great deference in cases like that. It’s not the law now but maybe it ought to be.” NH