GilfordGrok

SB406 AN ACT relative to merger of lots or parcels
Municipal and Public Affairs Committee
February 4th 9:00am LOB 103

Testimony of:

Barbara P. Aichinger
558 Edgewater Drive
Gilford, NH 03249
Wk:603-472-5905
Cell:603-548-5037
Email:Aichinger@comcast.net
www.NHPropertyRights.com


I would like to thank Senator Sgambati for putting this bill forward along with Senator Roberge, Senator Houde , Senator Bradley, Senator Clark along with five house members who have also co-sponsored this bill.  This bill is the result of almost 3 years of intense study for me.  When the town of Gilford remerged my lots my family and I went into a financial tail spin. Several lawsuits erupted, I could no longer sell my property, complete the house on the second lot or refinance my property at the now historically lower interest rates.  In essence I have two houses on a double merged lot.  What I have found is that I am not alone.  Once my story hit the papers people started to call me and tell me their story.   There is a widow in town that had her two adjacent lots automatically merged when her husband died because both lots were in her name  She could no longer sell the vacant lot next door to fund her retirement because it was merged to her house lot.  Then there is the family who owns 5 lots out on Mark Island.  These lots have been in their family for over 100 years.  The owner walked into the town hall a few years ago to inquire about building on them.  He found that he did not have 5 lots but only one lot from a zoning perspective.  He said to me ‘now I have to figure out which one of my children to leave the one lot to.’  Then there is the couple who owns two lots, one vacant and one with a house on it, in the village area of Gilford.  The vacant adjacent lot is on the corner so he can’t even split it with an abutter.  The town has rendered it useless and if he tries to stop paying his taxes on it because it is useless due to the towns actions the town will take his house because the town has merged the two together. This merging was done without informing him and without his consent.  This lot is a perfectly good buildable lot and is the same size as the other lots on the street.  These are all examples of economic waste and I have many more. 

How did this all get started?  There were two schools of thought that developed in the 1970’s.  One school said that involuntary lot merging was unconstitutional.   The municipalities only have the authority given to them by the state and the state, never gave them this authority.  Municipalities that were advised along these lines never merged.   Then there was the merging crowd.  These folks followed Case Law and municipal attorneys love their case law.  In the mid 1970’s there was a case that hinted at the theory that the purpose of zoning was to reduce non conformities.  This was then interpreted by some attorneys  that aggressive reduction of non conformities was now a mandate.  So when a town changed the lot size or street frontage requirements lots that were smaller were meant to be abolished or somehow made compliant. One method of making them compliant was to join them together but the only way they could do this was if they came into common ownership.  What I have found was that in the vast majority of cases the landowner was never given any notice.  When landowners complained the merging crowd said that the Zoning Ordinances themselves were the constructive notice and that the landowners were responsible for understanding the zoning as it applied to their property.

Now I would like to read for you a passage from an actual Zoning Board of Adjustment meeting when a landowner tried to regain their property rights.  The year was 1998 the applicant had two lots in a completed subdivision and the subdivision was created prior to zoning.  The applicant’s house is on a lot that is .55 acre and the adjacent vacant lot is .92 acre.  The town of Gilford had since increased its minimum lot size to 1 acre.  Questions from the zoning board ‘Are you contesting the Nighswander doctrine?  …how does the [applicants] two lots differ from any other lots that have been merged by the Nighswander doctrine?’ The attorney for the applicant states ‘if the lots had been placed in different names, they would be legal buildable lots…[the applicant] stated she did not know that her 2 lots were considered 1 lot, no one told her, noting that she has two deeds and they are registered in Laconia (location of Registry of Deeds for Belknap County).  A board member then states that he ‘has a very serious problem with the application the merger doctrine stands, nothing was presented that shows this lot is any different from the many lots under the same circumstances.’  The Planning Director then stated that ‘relative to hardship, the hardship has to be inherent in the lot itself.  The physical nature of the lot has to be so different from other lots similarly situated, that a hardship almost to the extent of disabling any use on the lot, would be created which is not the case.’   The ZBA then voted to deny the variance to unmerge the lots.  The reason for the denial is officially listed as the following ‘1. There is no particular hardship to the property 2. The use is contrary to the spirit of the ordinance 3. Substantial justice will not be done.’  Thus the property owner was bullied by the town and the local land use board into thinking that they suffered no hardship at the loss of their second lot.  Restoring their property rights would be contrary to the spirit of the ordinance and the real kicker here folks is that substantial justice will not be done.  This couple could not afford to appeal the ZBA’s decision to the Superior Court thus once 30 days had passed from the ZBA’s decision the die was cast on this property forever since you cannot apply for the same variance again once you are denied.  Subsequent owners can also not apply.  A complete destruction of land wealth for this family. 

In 1995 there was a bill HB 390 An Act relative to the grandfathering of subdivisions and separate lots.  This bill was hotly contested as the merging crowd wanted the state to finally give them authority to merge.  What happened was just the opposite.  This bill gave us the Voluntary Merger statute RSA 674:39;a.  Most real estate professionals, landowners and attorneys thought that this finally ended involuntary lot merging.  Not for the merging crowd.  Since this legislation did not expressly forbid the towns from merging they reasoned it is still allowed.  They argued that the RSA 674:39;a simply allows the landowner to do it voluntarily if they want to.  The merging crowd conveniently ignored the fact that landowners could already do voluntary merges simply by stating the fact in their deeds or resurveying to only indicate one lot!

Involuntary lot merging has caused countless hardships for landowners here in New Hampshire.  It has also been the source of many lawsuits.  Here is Concord a recent four year long court battle resulting from the conveyance of a lot with a tennis court and a garage resulted in the Concord Economic and Development Council to recommend that the City of Concord abandon involuntary lot merging.  Now is the time to finish the job.  We must make it absolutely clear to judges, zoning boards, landowners and town attorneys, you cannot engage in involuntary lot merging.  Lots created prior to zoning and lots created by planning boards have vested rights and those rights need to be protected.  If a lot cannot be developed due to current setback requirements it must go through the variance process.  If a lot does not have adequate septic or water it must remedy those issues or it cannot be built on.  This is the process that exists today no new processes need to be created.

I would like to leave you with a very patriotic passage written by the late Justice Frederick Goode of Rockingham County.  I suspect that there was no involuntary merging in that county when Judge Goode was alive.  He writes in a decision for the land owner

“What the town of Candia has done in this case by treating Mr. Snow’s separately deeded acreage as a single zoning lot is clearly unreasonable.  When a restrictive policy, regulation, or ordinance as applied to a particular piece of land is unnecessary to accomplish a legitimate public purpose, or the gain, by such a restriction, to the public is non-existent or slight but the harm to the citizen and his property is great, the exercise of the municipality’s police power becomes arbitrary and unreasonable, and judicial intervention will afford relief under the constitution of this state.”

God Bless Justice Goode and God Bless the supporters of this legislation.

Thank you.

=============================================================

<!-- @page { margin: 0.79in } P { margin-bottom: 0.08in } A:link { color: #0000ff } -->February 3rd,  2010
Deliberative Session Gilford NH

Vote YES on Article 8 to Eliminate Involuntary Lot Merging

Hello my name is Barbara Aichinger, 558 Edgewater Drive.  I and 58 other Gilford citizen’s have organized the petitioned warrant article that will hopefully eliminate involuntary lot merging here in the town of Gilford.  As some of you know I have done an exhaustive research of this issue.  What I have found is truly amazing and very disturbing. 

I have started a web site named www.NHPropertyRights.com.  On this site I have elucidated the town’s actions with regards to the inconsistent and unfair practice of involuntary lot merging.  I have found two cases where planning board members lots, vacant, non conforming and in common ownership were not merged although all the lots near them were.  I have also found that when the town through tax foreclosure came into tracts of vacant non conforming lots they were also not merged.  So the town did not follow its own ordinance yet forced mergers on its citizens. While some folks used their insider knowledge to avoid merging there were the not so lucky landowners.  Like the nice family out on Diamond Island.   They purchased an inaccessible back lot for a wildlife and nature preserve.  They had this back lot merged to their waterfront lot and since the waterfront lot became bigger they were hit with a much higher tax bill.  And then there is family who had a vacant lot of .92 acres only .08 acres shy of the regulation rendered totally unbuildable when it was merged to their house lot.  They could not afford to appeal the decision and lost all of the value of this lot.  The only thing it did was increase the taxes on their house lot.  Next there is the story of the widowed land owner who wanted her son and his family to build next door so she could have someone nearby and could stay in her home.  No can do.  That lot was merged to her house lot and he could not build.  She ended up in a Nursing Home.  Here is another example, two lots near the center of town a vacant one merged to the adjacent house lot.  The vacant adjacent lot is on the corner so he can’t even split it with an abutter.  The town has rendered it useless and if he tries to stop paying taxes on it, because it is useless due to the towns actions, the town will take his house because the two are merged together. This merging was done without informing him and without his consent.   This ordinance has rendered his perfectly good buildable lot, same size as the others on his street, totally worthless.  Then there is my situation.   I now have two houses on one double lot.  Go figure.  These are all examples of economic waste and I have many more.  Involuntary lot merging has easily resulted in over a million dollars of lost tax revenue for the town over the last 30 years.  Its not just small lots folks,  I have even found cases where two one acre lots were merged together and each of these lots had houses on them!  A destruction of land values into thin air.

It wasn’t always like this.  There was a period of about 8 to 9 years from the late 90’s to May of 2007 when the town actually unmerged people if they knew enough to request it.  Then in May of 2007, Planning Director John Ayer on advice of Counsel Walter Mitchell remerged my property on Edgewater Drive.  At that point, unmerges stopped for everyone in town, the town reversed its position on merging and the Planning Department began the ill fated attempt to cover up its previous actions of unmerging and non merging.  The result of the Planning Departments actions has been several lawsuits and more wasted tax dollars for the citizen’s of Gilford.  In addition, due to the Planning Departments reversal of its interpretation of this ordinance, hundreds of Gilford properties are now technically merged, even though they have separate tax bills for each lot.  What a mess!

Fifty nine registered Gilford voters have stepped forward to put this issue on the ballot next month.  They are asking you their neighbors and fellow citizens to eliminate this unconstitutional and clearly inconsistently applied ordinance.

Unmerged non conforming lots will be treated like any other non conforming lot in the town of Gilford.  They will be subjected to all other aspects of the zoning ordinances. 

I would like to leave you with a very patriotic passage written by the late Justice Frederick Goode of Rockingham County.  I suspect that there was no involuntary merging in that county when Judge Goode was alive.  He writes in a decision for the land owner

“What the town of Candia has done in this case by treating Mr. Snow’s separately deeded acreage as a single zoning lot is clearly unreasonable.  When a restrictive policy, regulation, or ordinance as applied to a particular piece of land is unnecessary to accomplish a legitimate public purpose, or the gain, by such a restriction, to the public is non-existent or slight but the harm to the citizen and his property is great, the exercise of the municipality’s police power becomes arbitrary and unreasonable, and judicial intervention will afford relief under the constitution of this state.”

I urge the Citizen’s of Gilford to Vote YES on Article 8.   Gilford needs to protect its citizen’s property rights and to treat property owners fairly and in a consistent manner. 

Thank you and God Bless you all.