Illegal Tree-Cutting at Ellacoya State Park

jeffk · 12-11-2008, 02:09 PM

It seems to me that since this law overrides my rights as a property owner to do what I wish with my own property the fact that he has deeded rights to clear other property means nothing. Every other owner of lake front land is precluded from arbitrary clearing of their land, why would this person with deeded access be exempt?

I understand that if his view of the lake is significantly obscured it would impact the value of his property and certainly the enjoyment of his property. This is the problem with environmental laws. While it might be desirable, even necessary, to place environmental restrictions in place for the public good, the public should compensate private owners for the loss of freedom to use their own land.

For example, if a road was to be put in and my house needed to be taken I would be paid for my house. But when an environmental law either precludes building or creates usage restraints no compensation is offered. IMO, if it is in the public interest to create restrictive environmental laws the public should pay compensation to private owners.

In this specific case, it seems that the DES was trying to provide a reasonable compromise, retaining the view and protecting the shoreline. Although I don't like the law (because it doesn't provide compensation for rights taken), it seems that DES is trying to treat people fairly. IMO that's a good thing.

Argie's Wife · 12-11-2008, 09:34 PM

What does the law say?

The Shoreland Protection Act says....

Section 483-B:5-b, II. Timber harvesting operations permitting requirements shall be in accordance with RSA 485-A:17, IV and therefore shall be exempt from the permitting requirement under paragraph I.

The RSA referenced above says....

485-A:17 Terrain Alteration. – IV. Timber harvesting operations shall be exempt from the fee provisions of this section. Timber harvesting operations shall be considered in compliance with this section and shall be issued a permit by rule provided such operations are in accordance with procedures prescribed in the Best Management Practices for Erosion Control on Timber Harvesting Operations in New Hampshire, published by the department of resources and economic development, and provided that the department of revenue administration's intent to cut form is signed.

So, did he have a permit and a signed intent to cut from DRA?

GWC... · 12-11-2008, 10:51 PM

Quote:

Originally Posted by Argie's Wife

What does the law say?

The Shoreland Protection Act says....

Section 483-B:5-b, II. Timber harvesting operations permitting requirements shall be in accordance with RSA 485-A:17, IV and therefore shall be exempt from the permitting requirement under paragraph I

So, did he have a permit and a signed intent to cut from DRA?

Permit for what?

Did he really sell any timber from the harvest?

Was he harvesting timber?

Argie's Wife · 12-12-2008, 12:19 AM

Quote:

Permit for what?

Did he really sell any timber from the harvest?

Was he harvesting timber?

My answers to your questions:

Cutting the trees...

Does the RSA say anything about selling it? What if he was using it for firewood...

If he cut wood, he harvested it. Period.

tis · 12-12-2008, 09:05 PM

Quote:

Originally Posted by jeffk

It seems to me that since this law overrides my rights as a property owner to do what I wish with my own property

For example, if a road was to be put in and my house needed to be taken I would be paid for my house.

.

The problem is you would be paid for your house, but very likely not WHAT your house is WORTH! That is why I hate eminent domain. They want to pay you what they want to pay you, not what it is really worth.

Argie's Wife · 12-13-2008, 09:41 PM

The laws for eminent domain have changed - it's not what it used to be. You're not paid what they want to pay you and you now have a contract where you can get fair market value. The person who "looses" the property makes out far better than they used to and the law helps to keep people from jacking up prices for municipalities so they can unjustly profit from a situation.

Here's an example...

Let's say the fire department decides to expand but they don't have enough land to put their new building and drive way on. They wish to buy a neighboring piece of property that is valued at $120,000 BUT the seller sees dollar signs - he can make out big because the fire department can ONLY buy his property to complete their project. So, he jacks the price to $360,000 - way above value. Eminent domain can be done to procure the property at a FAIR price - both for the seller and buyer. The law has changed.

tis · 12-14-2008, 10:25 AM

I don't mean to disagree, Argie's Wife but you are wrong. That is the way it is SUPPOSED to work but it doesn't. The towns/ state do not want to offer anywhere near what is the "highest and best" use of the property which is what is required under the ED law. They offer what they want to offer. There is an appeals process which ends up in Concord, but it is a big hassle and they hope most people won't be bothered. As you said, a lot of it is just a little strip of land and people just don't want to fight it.

Argie's Wife · 12-14-2008, 07:08 PM

I understand your point but don't think I'm wrong in the example I gave to you.

From the Wiki article on the subject:
On June 23, 2006 - on the one-year anniversary of the Kelo decision (see above), President George W. Bush issued an executive order stating in Section I that the federal government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public." He limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken".[7] However, eminent domain is more often exercised by local and state governments, albeit often with funds obtained from the Federal government.

I don't dispute for a moment that there have been abuses of it.

Bringing this thread around, full-circle, I don't believe that the Shoreline Protection Act takes away the property owner's right his/her property. I'm also impacted by the law because of the inlet to Winni that runs along two sides of my property and although my house is grandfathered, my plans to put up a garage are now down the tubes. But I also "get it" that something has to be done to control erosion and the impact that construction has on the lake and the wetlands. Conservation is very important; it just seems complicated now.

tis · 12-14-2008, 07:27 PM

Unfortunately, the government is the government and the people that we HIRE to work for us think they control us and they do because of the power they have over us. If I sound bitter, I am. I know first hand about eminent domain and I know several people who know first hand and we have all had the same experience. So despite George Bush or anyone else, they do what they want to do.
I think the SPA is overkill. I agree, we need to protect our shorelands but much of what they have come up with is just unnecessary bureacratic manipulation. It is too bad things go that way. I think what they really want to do is stop development and don't know if they really care about the lake.

Lakepilot · 12-14-2008, 09:02 PM

The executive order cited above would not apply to the state or any state municipality. Also "just" compensation in who's eyes? What does "just"mean. Again, this would only apply to an agency of the federal government taking property.

jeffk · 12-14-2008, 09:24 PM

Quote:

Originally Posted by Argie's Wife

Bringing this thread around, full-circle, I don't believe that the Shoreline Protection Act takes away the property owner's right his/her property. I'm also impacted by the law because of the inlet to Winni that runs along two sides of my property and although my house is grandfathered, my plans to put up a garage are now down the tubes. But I also "get it" that something has to be done to control erosion and the impact that construction has on the lake and the wetlands. Conservation is very important; it just seems complicated now.

You state yourself that you have lost the right to build the garage you wanted. If you sell your property it is less valuable because future owners are also prohibited from building.

While you feel that the constraints may be needed for the overall health of the lake, and I agree with that view, why is it the shore owners that bear all the cost impact? Ten's of thousands of people, i.e. the public, enjoy the benefits of a healthy lake as well as the associated tourist businesses. Even the state of New Hampshire benefits from the room and meals taxes generated. Why are the shore owners the only ones to pay the cost?

Further, we are constantly reminded that the Lake is NOT ours. We can't keep people from fishing or generally being annoying in front of our property.

If the public wants to take 50 ft from the lakefront and tell me I can't build on it and am limited in what clearing I can do then I think that that portion of my land should be treated as in "current use" exemption and my property taxes should be reduced accordingly.

I'm sure our legislature will take action on my reasonable suggestions ASAP.

tis · 12-15-2008, 08:27 AM

Quote:

Originally Posted by jeffk

You state yourself that you have lost the right to build the garage you wanted. If you sell your property it is less valuable because future owners are also prohibited from building.

While you feel that the constraints may be needed for the overall health of the lake, and I agree with that view, why is it the shore owners that bear all the cost impact? Ten's of thousands of people, i.e. the public, enjoy the benefits of a healthy lake as well as the associated tourist businesses. Even the state of New Hampshire benefits from the room and meals taxes generated. Why are the shore owners the only ones to pay the cost?

Further, we are constantly reminded that the Lake is NOT ours. We can't keep people from fishing or generally being annoying in front of our property.

If the public wants to take 50 ft from the lakefront and tell me I can't build on it and am limited in what clearing I can do then I think that that portion of my land should be treated as in "current use" exemption and my property taxes should be reduced accordingly.

I'm sure our legislature will take action on my reasonable suggestions ASAP.

I never thought of that, but what a great idea! It IS like putting our land in current use, so we should get the benefits! Maybe we can start a drive, just think if all of us lake people rebelled and stuck together, they would have a tough time fighting us! Try to get people to do that though!

chipj29 · 12-15-2008, 09:26 AM

You know, all this could have been avoided if the guy had just waited until AFTER the ice storm. He wouldn't have had to cut down a single tree!

Pine Island Guy · 12-15-2008, 02:49 PM

Quote:

Originally Posted by jeffk

If the public wants to take 50 ft from the lakefront and tell me I can't build on it and am limited in what clearing I can do then I think that that portion of my land should be treated as in "current use" exemption and my property taxes should be reduced accordingly.

I think the minimum for 'current use' designation is 10 acres, so I guess anyone with 10 acres within 50' of the lake could apply, however i'm guessing that anyone with that much property isn't too concerned about the tax burden...

However there are many rules and regulations primarily from zoning and or deeds which could be construed as "impairing" your ability to do what you want with your own land. The most obvious is the zoning setback from the town - for Meredith 20 feet on all sides and 65 feet from the shoreline (meaning that the town is more stringent than the state in this case). In Moultonborough I believe you can't cut trees within 150 feet from the shoreline.

Yes, all rules and regulations chip away at the freedom to do what we want with our property, however that is the price we pay to be part of "society" - the trick is to keep a balance

waiting for ice-in... PIG

meteotrade · 12-15-2008, 03:51 PM

Quote:

Originally Posted by jeffk

You state yourself that you have lost the right to build the garage you wanted. If you sell your property it is less valuable because future owners are also prohibited from building.

I understand your position, that the state should compensate waterfront owners because their land is less valuable now that its "in current use". However, you would have a very hard time making the case. In fact, I could argue the exact opposite; my property, which is across the lake from yours, is worth more now that my view is not impeded by your ugly garage.

tis · 12-15-2008, 07:25 PM

PIG, could we retreat from society do ya think?
I think you are right, it is ten acres mimimum (I forget it could be 7 but think it IS ten ) for current use. However, lake property with the cottage cannot be included in current use, but taxed as in a situation with less land around it. A house away from the lake and the acre or so it sits on cannot be included in current use either even if that property is surrounded by acreage.
It would be nice though!

SIKSUKR · 12-16-2008, 02:37 PM

It IS 10 acres. My sister has part of her property as current use and taxes sure are a consideration. The tax on that 10 acres was about $250.

jeffk · 12-16-2008, 03:23 PM

Yes it is 10 acres.

It is also the choice of the property owner as whether or not to put their property under current use.

I have no choice. 50 ft of my land has been placed under current use restrictions for the protection of a public resource without any ability on my part to say otherwise. In essence my land has been forcibly taken for public use and as I see it that falls under the eminent domain clause and I should be compensated. I won't be because it has been done under the flag of environmental protection. It amazes me that a law can override the constitution.

I was going to (when I could afford it) add a second floor to my house. Most of my neighbors have already done so. Their houses and property are more valuable because they have enhanced their property in a way that I am now prohibited from doing. Further, properties that have already taken this action are now priced very high because no one else can build so the fixed supply of such houses is priced up. This is like the ridiculous price a boathouse commands today because no one can build any new ones.

As to setbacks and other similar restrictions, most have been in place for a long time and are well understood. I would argue if a property owner wanted to put in a driveway and the setbacks had recently changed so that he couldn't and no other access was possible he would get a variance permit.

As to building a garage that someone else might not like, that's what private property is about. This concept is so important that it was placed in the constitution. If I want to build a funny looking house and paint it neon pink on my property, I can. There is a reason for this. You can find someone to object to almost anything. So I don't like your driveway, or your bushes, or the shape of your windows, or just about anything else and it becomes ridiculous. Instead, on my property, I decide what will be what.

Pine Island Guy · 12-16-2008, 05:36 PM

Quote:

Originally Posted by jeffk

I was going to (when I could afford it) add a second floor to my house

Actually my understanding of the CSPA is that you can add a second floor to your house, as long as the impervious area is not increased (i.e. you are not expanding the footprint)... but will defer to "Shore Things" for the definitive answer!

Contrary to popular opinions and beliefs, I find the new regulations to be much easier to navigate/understand and are actually less stringent for the average homeowner making changes to their property (including thinning of trees, limbing, and expanding/modifying their house). What is much harder to do within the CSPA is to build a house that takes up 90% of the lot size (aka McMansions) and increases the impervious area so that run-off goes directly into the lake!

Regarding zoning "setbacks", they haven't been around all that long... and when they were instituted, people probably had the same reaction to them, as you have to the new regs

ice ice more ice... PIG

p.s. if you have questions regarding the new regs, ask someone at DES, send them an email, attend one of their information sessions! I have had nothing but positive experiences with them, found them all very helpful, and pleasant to deal with. And no, I am not a State employee, not married to one, and don't have any relatives in State government

Onshore · 12-17-2008, 11:45 AM

The law was changed last year to remove any restriction on the height of primary structures (read "residences") last summer. We no longer require any profiles or cross sections of proposed residential structure improvements. In fact with the new rules if you are expanding upward, but not outward, with no excavation, and no increase to on-site septic, you don't need a permit from the state. You do need to make sure you meet septic loading if you are adding bedrooms and that you meet any local regulations that may exist.

...and we still issue permits for dug-in boathouses.

meteotrade · 12-17-2008, 03:01 PM

Quote:

Originally Posted by jeffk

In essence my land has been forcibly taken for public use and as I see it that falls under the eminent domain clause and I should be compensated. I won't be because it has been done under the flag of environmental protection. It amazes me that a law can override the constitution.
.

Your whole argument is flawed because your premise is incorrect- you CAN still build a 2nd floor on your house, and you CAN still build boathouses.

Property rights are a very complicated subject and its not nearly as simple as you convey, "I own the land, I can do whatever I want to it." Courts have decided, time and time again, that this cannot be further from the truth. As the wise Mr. Spock once said, "the needs of the many outweigh the needs of the few."

tis · 12-17-2008, 07:21 PM

Still, I agree with Jeffk, the SPA has limited what can be done on the lots and made it much more expensive to do anything with your land. It also is not only expensive but very complicated and time consuming --like stalling you for a year to get permits. I don't like losing property rights either. I am with ya' Jeff.

Pine Island Guy · 12-18-2008, 09:10 AM

Quote:

Originally Posted by tis

--like stalling you for a year to get permits.

the CSPA permitting process (including a waiver), is 30 days!

I'll keep reiterating... please READ the documentation, attend one of their information sessions, talk to them personally... I think you might be pleasantly surprised how straight-forward the process is, and WHY it is beneficial to the lake that we love and want to maintain in good health for subsequent generations!

more ice, more snow... PIG

12-11-2008, 02:09 PM	#1
jeffk Senior Member Join Date: Feb 2004 Location: Center Harbor Posts: 1,175 Thanks: 207 Thanked 437 Times in 253 Posts	Law overrides deed It seems to me that since this law overrides my rights as a property owner to do what I wish with my own property the fact that he has deeded rights to clear other property means nothing. Every other owner of lake front land is precluded from arbitrary clearing of their land, why would this person with deeded access be exempt? I understand that if his view of the lake is significantly obscured it would impact the value of his property and certainly the enjoyment of his property. This is the problem with environmental laws. While it might be desirable, even necessary, to place environmental restrictions in place for the public good, the public should compensate private owners for the loss of freedom to use their own land. For example, if a road was to be put in and my house needed to be taken I would be paid for my house. But when an environmental law either precludes building or creates usage restraints no compensation is offered. IMO, if it is in the public interest to create restrictive environmental laws the public should pay compensation to private owners. In this specific case, it seems that the DES was trying to provide a reasonable compromise, retaining the view and protecting the shoreline. Although I don't like the law (because it doesn't provide compensation for rights taken), it seems that DES is trying to treat people fairly. IMO that's a good thing.

12-11-2008, 09:34 PM	#2
Argie's Wife Senior Member Join Date: Oct 2004 Location: Alton Posts: 1,908 Blog Entries: 1 Thanks: 533 Thanked 579 Times in 260 Posts	Comprehensive shoreland protection act What does the law say? The Shoreland Protection Act says.... Section 483-B:5-b, II. Timber harvesting operations permitting requirements shall be in accordance with RSA 485-A:17, IV and therefore shall be exempt from the permitting requirement under paragraph I. The RSA referenced above says.... 485-A:17 Terrain Alteration. – IV. Timber harvesting operations shall be exempt from the fee provisions of this section. Timber harvesting operations shall be considered in compliance with this section and shall be issued a permit by rule provided such operations are in accordance with procedures prescribed in the Best Management Practices for Erosion Control on Timber Harvesting Operations in New Hampshire, published by the department of resources and economic development, and provided that the department of revenue administration's intent to cut form is signed. So, did he have a permit and a signed intent to cut from DRA?

12-15-2008, 09:26 AM	#13
chipj29 Senior Member Join Date: Apr 2004 Location: Bow Posts: 1,874 Thanks: 521 Thanked 308 Times in 162 Posts	You know, all this could have been avoided if the guy had just waited until AFTER the ice storm. He wouldn't have had to cut down a single tree! __________________ Getting ready for winter!

12-16-2008, 02:37 PM	#17
SIKSUKR Senior Member Join Date: Apr 2004 Posts: 5,075 Thanks: 215 Thanked 903 Times in 509 Posts	It IS 10 acres. My sister has part of her property as current use and taxes sure are a consideration. The tax on that 10 acres was about $250. __________________ SIKSUKR

12-16-2008, 03:23 PM	#18
jeffk Senior Member Join Date: Feb 2004 Location: Center Harbor Posts: 1,175 Thanks: 207 Thanked 437 Times in 253 Posts	I know what the CURRENT law is Yes it is 10 acres. It is also the choice of the property owner as whether or not to put their property under current use. I have no choice. 50 ft of my land has been placed under current use restrictions for the protection of a public resource without any ability on my part to say otherwise. In essence my land has been forcibly taken for public use and as I see it that falls under the eminent domain clause and I should be compensated. I won't be because it has been done under the flag of environmental protection. It amazes me that a law can override the constitution. I was going to (when I could afford it) add a second floor to my house. Most of my neighbors have already done so. Their houses and property are more valuable because they have enhanced their property in a way that I am now prohibited from doing. Further, properties that have already taken this action are now priced very high because no one else can build so the fixed supply of such houses is priced up. This is like the ridiculous price a boathouse commands today because no one can build any new ones. As to setbacks and other similar restrictions, most have been in place for a long time and are well understood. I would argue if a property owner wanted to put in a driveway and the setbacks had recently changed so that he couldn't and no other access was possible he would get a variance permit. As to building a garage that someone else might not like, that's what private property is about. This concept is so important that it was placed in the constitution. If I want to build a funny looking house and paint it neon pink on my property, I can. There is a reason for this. You can find someone to object to almost anything. So I don't like your driveway, or your bushes, or the shape of your windows, or just about anything else and it becomes ridiculous. Instead, on my property, I decide what will be what.

12-13-2008, 09:41 PM	#6
Argie's Wife Senior Member Join Date: Oct 2004 Location: Alton Posts: 1,908 Blog Entries: 1 Thanks: 533 Thanked 579 Times in 260 Posts	The laws for eminent domain have changed - it's not what it used to be. You're not paid what they want to pay you and you now have a contract where you can get fair market value. The person who "looses" the property makes out far better than they used to and the law helps to keep people from jacking up prices for municipalities so they can unjustly profit from a situation. Here's an example... Let's say the fire department decides to expand but they don't have enough land to put their new building and drive way on. They wish to buy a neighboring piece of property that is valued at $120,000 BUT the seller sees dollar signs - he can make out big because the fire department can ONLY buy his property to complete their project. So, he jacks the price to $360,000 - way above value. Eminent domain can be done to procure the property at a FAIR price - both for the seller and buyer. The law has changed.

12-14-2008, 10:25 AM	#7
tis Senior Member Join Date: Jan 2006 Posts: 6,782 Thanks: 755 Thanked 1,467 Times in 1,023 Posts	I don't mean to disagree, Argie's Wife but you are wrong. That is the way it is SUPPOSED to work but it doesn't. The towns/ state do not want to offer anywhere near what is the "highest and best" use of the property which is what is required under the ED law. They offer what they want to offer. There is an appeals process which ends up in Concord, but it is a big hassle and they hope most people won't be bothered. As you said, a lot of it is just a little strip of land and people just don't want to fight it.

12-14-2008, 07:08 PM	#8
Argie's Wife Senior Member Join Date: Oct 2004 Location: Alton Posts: 1,908 Blog Entries: 1 Thanks: 533 Thanked 579 Times in 260 Posts	I understand your point but don't think I'm wrong in the example I gave to you. From the Wiki article on the subject: On June 23, 2006 - on the one-year anniversary of the Kelo decision (see above), President George W. Bush issued an executive order stating in Section I that the federal government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public." He limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken".[7] However, eminent domain is more often exercised by local and state governments, albeit often with funds obtained from the Federal government. I don't dispute for a moment that there have been abuses of it. Bringing this thread around, full-circle, I don't believe that the Shoreline Protection Act takes away the property owner's right his/her property. I'm also impacted by the law because of the inlet to Winni that runs along two sides of my property and although my house is grandfathered, my plans to put up a garage are now down the tubes. But I also "get it" that something has to be done to control erosion and the impact that construction has on the lake and the wetlands. Conservation is very important; it just seems complicated now.

12-14-2008, 07:27 PM	#9
tis Senior Member Join Date: Jan 2006 Posts: 6,782 Thanks: 755 Thanked 1,467 Times in 1,023 Posts	Unfortunately, the government is the government and the people that we HIRE to work for us think they control us and they do because of the power they have over us. If I sound bitter, I am. I know first hand about eminent domain and I know several people who know first hand and we have all had the same experience. So despite George Bush or anyone else, they do what they want to do. I think the SPA is overkill. I agree, we need to protect our shorelands but much of what they have come up with is just unnecessary bureacratic manipulation. It is too bad things go that way. I think what they really want to do is stop development and don't know if they really care about the lake.

12-14-2008, 09:02 PM	#10
Lakepilot Senior Member Join Date: Aug 2007 Posts: 446 Thanks: 70 Thanked 57 Times in 40 Posts	The executive order cited above would not apply to the state or any state municipality. Also "just" compensation in who's eyes? What does "just"mean. Again, this would only apply to an agency of the federal government taking property.

12-15-2008, 07:25 PM	#16
tis Senior Member Join Date: Jan 2006 Posts: 6,782 Thanks: 755 Thanked 1,467 Times in 1,023 Posts	PIG, could we retreat from society do ya think? I think you are right, it is ten acres mimimum (I forget it could be 7 but think it IS ten ) for current use. However, lake property with the cottage cannot be included in current use, but taxed as in a situation with less land around it. A house away from the lake and the acre or so it sits on cannot be included in current use either even if that property is surrounded by acreage. It would be nice though!

12-17-2008, 11:45 AM	#20
Onshore Senior Member Join Date: Apr 2004 Posts: 503 Thanks: 12 Thanked 425 Times in 146 Posts	The law was changed last year to remove any restriction on the height of primary structures (read "residences") last summer. We no longer require any profiles or cross sections of proposed residential structure improvements. In fact with the new rules if you are expanding upward, but not outward, with no excavation, and no increase to on-site septic, you don't need a permit from the state. You do need to make sure you meet septic loading if you are adding bedrooms and that you meet any local regulations that may exist. ...and we still issue permits for dug-in boathouses.

12-17-2008, 07:21 PM	#22
tis Senior Member Join Date: Jan 2006 Posts: 6,782 Thanks: 755 Thanked 1,467 Times in 1,023 Posts	Still, I agree with Jeffk, the SPA has limited what can be done on the lots and made it much more expensive to do anything with your land. It also is not only expensive but very complicated and time consuming --like stalling you for a year to get permits. I don't like losing property rights either. I am with ya' Jeff.