Freedom – February 1, 2010 – Ossipee Lake property owners anxiously waiting for a resolution of the dispute over how much shorefront the state owns will have to wait longer.

That was the word from a meeting of state environmental and legal officials last week to discuss the controversial 410 ft. average mean high water benchmark that DES has on record for the Ossipee Lake system.

The benchmark is the dividing line between what the state owns as part of its common law ownership of New Hampshire’s lakes, and what individuals and businesses own as part of their deed to lakefront property.

At 410 ft., the state’s claim to shoreline property extends to almost three feet about the lake’s summer level, leaving some individuals and businesses concerned they are paying taxes on property they don’t own and may have trouble selling.

State Representative Mark McConkey and Ossipee Selectman Harry Merrow think the benchmark should be reduced to 407 ft. For more than a month they have been collecting data on the lake’s historical water levels, and last week they presented their findings to the state.

In an email, Merrow described the two-hour meeting with state officials as “quite informative.” He said the state remains open to changing the benchmark in regard to ownership but it is not ready to do so.

The two did come back with a concession, however. Starting this week, DES will adjust the Reference Line (or high water mark) for permitting purposes from 410 ft. to 407.25 ft. The Reference Line is the point from which environmental setbacks are determined in regard to subsurface and shoreland dredge and fill applications.

The concession means it’s possible that some stalled or denied projects (such as applications to build or repair shoreline retaining walls) may now be able to proceed. But the state will continue to own the shoreline up to 410 ft. above sea level.

In essence, the change means DES will consider authorizing work to be done on state property at the individual property owner’s expense.

Records are Missing
The history of the 410 ft. benchmark remains a mystery. While state officials say it has been a matter of law for years, they can’t say who set it, when it was set or what information was used to establish it. In short, the records are missing.

What’s clear, however, is that the benchmark became a significant issue last year. That’s when DES cited it in denying applications for shoreline work at Westward Shores Campground and Ossipee Bluffs Association, saying the proposed work could not be approved in part because it was on state property.

The application denials caught the attention of lake property owners, some of whom realized for the first time that parts, and in some cases all, of their property is legally owned by the state. The number of affected property owners is not known, but it is thought to be extensive since so many parts of the lake system are low-lying.

Local officials say the impact on tax revenue could be devastating if affected property owners dispute their tax assessment or apply for abatements.

Other officials say privately that they worry the state’s claim of ownership to such a high elevation could stymie property sales, setting off a chain reaction in which lake property is essentially frozen until the 410 ft. benchmark is resolved.

Next Steps
In emails, Representative McConkey and Selectman Merrow said they will continue working toward changing the benchmark to 407 ft., adding that there is much to be done.

Last week the pair obtained the support of Ossipee’s Board of Selectmen, and this week they will make the same pitch to the Select Boards of Freedom and Effingham. [Editor’s Note: Click here to read the Carroll County Independent’s report on the meeting with Ossipee Selectmen].

McConkey said he had hoped to file legislation this year to change the benchmark, but the window of opportunity has now closed.

“We needed DES’ support…to move forward this session,” he wrote in an email, adding that he will file legislation for the 2011 session if the issue isn’t resolved by then.

Meanwhile, Merrow said this summer he will work with Jim Gallagher, the state’s Chief Water Resource Engineer, to find old landmarks that might indicate what the natural high water mark was before the dam was built.

He said establishing what the level of the lake was in the 1800s may be impossible, but he hopes a collective body of evidence can be assembled that will be persuasive.

Merrow added that he was grateful to the people who submitted information during the weeks that followed the December meeting with state officials that kicked off the fact-finding process.