Idea for Doing Good (with Immediate Publicity) -- Shelf Life 7 Days (fwd)
- Something sent to me and forwarded publicly so that those who wish to get
involved may do so.
If you can go to the NH towns where you have friends and followers, collect
25 signatures in each town and get the following warrant article to the
selectmen by February 7, so it will be on the agenda for the March town
meetings, you should be able to generate a tremendous amount of publicity
and at the same time make some progress toward protecting property rights.
Basically, the warrant article imports into New Hampshire the Oregon
property rights revolution of a few years ago in which Oregonians said "no
more" to zoning amendments that took away their property rights and the
value of their properties. Oregon did this at the state level. The warrant
below does it town by town.
Here's the background. I am a retired New York lawyer living in New
Hampshire. Some people in my town were sick and tired of how new zoning,
subdivision and site plan rules kept chipping away at their property rights.
Most recently, an 80 year-old retired woman found that she had lost
$150,000 in value on her 9-acre farm because the town rezoned her land in a
way that prevented her from splitting off the lot that was going to help pay
for her retirement.
These people asked me to draft up something for the town's annual meeting so
that the town could vote on whether to provide fair protections to property
owners when there are changes in local zoning or other land use rules. I
prepared a "petitioned article" (that is, something a small number of voters
can get onto the town meeting warrant themselves if they collect 25
signatures). Unfortunately, my town is a so-called SB2 town and so we
cannot get this onto the warrant until 2007 (the deadline was January 10 for
petitioned articles). For towns that have the old-style town meetings,
which include most towns without zoning, the deadline for petitioned
articles is February 7.
The approach taken in the proposed article is quite simple. It says that if
the town adopts or amends the zoning ordinance or other land use ordinances,
and if the effect would be to cause a property owner to suffer a substantial
loss on his or her property, then the town must either (1) not enforce the
new ordinance against the property owner or (2) pay the property owner fair
compensation. Substantial loss is defined as $25,000 or 25% of property
value, whichever is less, although these threshholds can be changed. There
are simple, bright-line procedures for property owners to follow to enforce
their rights under this proposed town bylaw.
This approach of "go ahead and do zoning, but if you are going to make me
suffer a big loss, then exempt me or pay me" should be sufficiently direct,
clear and politically correct to appeal to voters in the New Hampshire towns
that have not yet adopted zoning, and maybe in some of the towns that have
zoning. It would be big news in New Hampshire if a series of press releases
went out from Free State Project representatives in several towns saying
they had successfully gotten this initiative onto the local town meeting
warrant. It would be even bigger news if one or more towns adopted it.
Town governments and their lawyers (and the New Hampshire Municipal
Association, which provides free advice to towns) will of course be dead set
against this proposed bylaw. They may try to raise various arguments
against it, such as (1) this kind of radical change must be done at the
state level, not the local level; (2) this proposal is itself a zoning
amendment and is subject to different procedures; and (3) this will
effectively force towns to abandon planning and zoning as we know it (gee,
what a shame). If you get so far as to get the article onto the warrant,
I'll be happy to help you with the rebuttals to these points.
The text set forth below is basically complete. All you need to do is plug
in the name of the town, the name of the county, remove the brackets (with
any changes you want to the thressholds), and set up enough lines for 30
signatures. (We typically get at least 30 signatures even though you only
need 25 just in case there is some problem with a few of them.)
Hopefully this is useful. Feel free to email with any questions or if you
need a more detailed explanation of any of the provisions.
Karl Popper (my alias)
PETITIONED ARTICLE FOR INCLUSION IN WARRANT FOR 2006 ANNUAL TOWN MEETING
This petition is presented to the board of selectmen or to any selectmen not
later than the close of business on Tuesday, February 7, 2006.
We, the undersigned registered voters in the Town of ______, comprise at
least 25 or more registered voters or two percent of the registered voters
in Town, whichever is less, and in any case at least 10 registered voters.
Pursuant to RSA 39:3, we hereby petition the selectmen to include the
following article in the warrant for the March 2006 Annual Town Meeting:
To see if the Town will vote to provide protections for property owners who
will otherwise suffer substantial losses because of the future adoption or
amendment of Town land use ordinances, as set forth in the text of the
proposed bylaw below. Specifically, as set forth in the bylaw, if in the
future the Town decides to adopt or amend a land use ordinance and as a
result of the ordinance a property owner will suffer a substantial loss in
the value of his or her property (equal or greater to $[25,000] or % of
the propertys value), then the Town will either (1) not enforce the
ordinance against the property owner or (2) pay the property owner fair
Text of Bylaw
1. If any zoning, subdivision, site plan, historic district, building or
other land use ordinance, regulation or code or any provision thereof
(collectively, land use ordinance) is adopted or amended on or after the
date of this bylaw, and if the adoption or amendment of such land use
ordinance would substantially reduce the fair market value of a home,
business, parcel of land or other property or an interest therein
(collectively, property), then, if the owner of the property shall so
request in writing to the Board of Selectmen or the code enforcement officer
(such request, the property owner request), the Town shall not enforce
such land use ordinance against the owner, the owners successors in
interest or the property, unless the Town shall first have paid the owner
fair compensation for the reduction in value.
2. Each property owner request shall identify the owner, the property and
the land use ordinance from which the property owner is seeking relief, and
shall be accompanied by the written opinion of a licensed real estate
appraiser regarding the reduction in fair market value of the property. If
the Town disagrees with the appraisers opinion, the Board of Selectmen or
the code enforcement officer shall so notify the property owner in writing
within 60 days after delivery of the property owner request. The Town and
the property owner shall then seek in good faith to mutually agree on
selection of an alternate appraiser. If mutual agreement cannot be reached
within 90 days after delivery of the property owner request, then the Town
shall, no later than 120 days after delivery of the property owner request,
choose an alternate appraiser at a public proceeding by random selection
from all licensed real estate appraisers in ______ County (as shown on a
reasonably reliable directory). If the Town disagrees with the appraisers
opinion provided by the property owner, then all subsequent fees and
expenses for appraisers shall be borne by the Town.
3. Within 60 days after delivery of a property owner request (or, if an
alternate appraiser is selected, within 60 days after selection of the
alternate appraiser), the Town shall make a final, binding election as to
whether the Town will (a) not enforce the land use ordinance against the
property owner or (b) pay the property owner fair compensation. If the Town
elects not to enforce the land use ordinance, the Board of Selectmen or the
code enforcement officer shall, within 30 days of such election, deliver to
the property owner a written statement in recordable form confirming that
the Towns election not to enforce the land use ordinance is final and
binding, runs with the property and may be relied upon by the property owner
and the property owners successors in interest. If the Town elects to pay
the property owner fair compensation, the Town shall, within 180 days of
such election, pay such compensation in full to the property owner.
4. The adoption or amendment of a land use ordinance shall substantially
reduce the fair market value of a property if it would diminish the fair
market value by at least $[25,000] or % of the fair market value of the
property, whichever is less, as set forth in the appraisers opinion
submitted together with the property owner request (or, if applicable, the
alternate appraisers opinion). In making this determination, the appraiser
shall take into account the uses that would be available for the property
but for the adoption or amendment of the land use ordinance (for example,
future subdivision, development, redevelopment, etc.).
5. Fair compensation for the reduction in value of a property shall mean
the sum of (a) the reduction in value of the property as set forth in the
appraisers opinion submitted together with the property owner request (or,
if applicable, the alternate appraisers opinion) plus (b) the actual
out-of-pocket expenses incurred by the property owner in asserting and
defending the property owners rights provided by this bylaw, including,
without limitation, the fees and expenses of appraisers and legal counsel.
6. This bylaw shall not apply to the adoption or amendment of a land use
ordinance where (a) the sole purpose of such land use ordinance is to
address specific health or safety concerns identified in the ordinance and
(b) there are no available alternatives that could reasonably achieve such
purpose and result in less diminution in property value.
7. This bylaw is intended to be broadly construed in favor of property
owners and protecting the value of their property.
8. If any provision of this bylaw is determined to be invalid or
unenforceable, such provision shall be severed and all other provisions
shall remain in full force and effect.
9. This bylaw is an exercise of the general police power delegated to the
Town. This bylaw does not amend or modify any land use ordinance in any
respect. This bylaw shall be dated as of the date it is adopted.
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