TITLE V
TAXATION
Chapter 79-C
DISCRETIONARY EASEMENTS
Section 79-C:1
79-C:1 Declaration of Public Interest. –
It is hereby declared to be in the public interest to encourage the preservation of open space which is potentially subject to development, thus providing a healthful and attractive outdoor environment for work and recreation of the state's citizens, maintaining the character of the state's landscape, and conserving the land, water, forest, agricultural, recreational, and wildlife resources. It is further declared to be in the public interest to prevent the loss of open space due to property taxation at values incompatible with open space usage. The means for encouraging preservation of open space authorized by this chapter is the acquisition of discretionary easements of development rights by town or city governments on such open space land which provides a demonstrated public benefit.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:2
79-C:2 Definitions. –
In this chapter:
I. "Discretionary easement" means a restriction of open space land granted to a city or town for a term of 10 or more years.
II. "Public benefit" shall have the meaning described in RSA 79-C:3.
III. "Golf course land" means a parcel of 10 acres or more of land used in the playing of the game of golf including greens, fairways, tees, traps, and roughs, and such other areas which are located within the established playing area.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:3
79-C:3 Qualifying Land. –
I. Any owner of land which does not meet the criteria for open space land as defined in RSA 79-A but meets the tests of demonstrated public benefit in paragraph II of this section and who wishes to keep the land in a use consistent with the purposes of this chapter may apply to the governing body of the municipality in which the land is located to convey a discretionary easement to the municipality.
II. A discretionary easement on open space land shall be considered to provide a demonstrated public benefit if it provides at least one of the following public benefits:
(a) The preservation of land for outdoor recreation by, or for the education of, the general public where:
(1) The general public has the regular opportunity for access to and use of the land for pedestrian purposes; and
(2) The land has conservation and recreational values which make it attractive for public use.
(b) A relatively natural habitat for fish, wildlife, or plants, or similar ecosystem, where:
(1) The property is in a relatively natural state; and
(2) Rare or endangered or threatened species are present; or the property contributes to the ecological viability of a park or other conservation area; or otherwise represents a high quality native terrestrial or aquatic ecosystem.
(c) The preservation of open space land, where:
(1) There is scenic enjoyment by the general public from a public way or from public waters; or
(2) The open space protection is pursuant to a clearly delineated federal, state, or local conservation policy.
(d) The preservation of an historically important land area, where:
(1) The property is either independently significant due to recorded local, regional, or state history, or is within a historic district; or
(2) The property is immediately adjacent to an historic district; or
(3) The land's physical or environmental features contribute to the historic or cultural integrity of a property listed on the National Register of Historic Places.
(e) The preservation of an airport, as defined in RSA 422, excluding the value of any buildings, runways, or other structures, where:
(1) The airport serves, or contributes to satisfying, the air transportation needs of the municipality or of its region; or
(2) The continuation of the airport serves to preserve natural habitat or open space as set forth in subparagraphs (b) or (c), which might otherwise be potentially affected by development.
(f) The preservation of a golf course which meets any of the above tests of public benefit and is open to the general public.
(g) The preservation of potable water where:
(1) The land is owned in fee by a water utility company; and
(2) The land is used for sanitary radii, retention dam sites and/or watershed protection purposes which is subject to regulation by the department of environmental services to protect water quality, which land may have a well, booster station/pump house, or retention dam structure and/or related piping.
Source. 1996, 176:1, eff. Aug. 2, 1996. 2019, 117:4, eff. Aug. 20, 2019.
Section 79-C:4
79-C:4 Application Procedure. –
I. Any owner of land which meets the tests of public benefit in RSA 79-C:3, II may apply to the governing body to grant a discretionary easement to the municipality not to subdivide, develop, or otherwise change the use of such land to a more intensive use inconsistent with the purposes of this chapter.
II. No owner of land shall be entitled to have a particular parcel of land classified for any tax year under the provisions of this chapter unless the owner has applied to the governing body on or before April 15 of the tax year on a form provided by the commissioner of the department of revenue administration. Such application shall include a map of the land to be subject to the discretionary easement, a description of how the property meets the tests of public benefit in RSA 79-C:3, and an appraisal of the value of the easement to be conveyed.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:5
79-C:5 Approval, Denial. –
I. If the governing body finds that the proposed use of such land is consistent with the purposes of this chapter, it may take steps to acquire discretionary easements as provided in this chapter. In exercising its discretion, the local governing body may weigh the public benefit to be obtained versus the tax revenue to be lost if such an easement is granted. The governing body shall have no more than 60 days to act upon the application.
II. If the governing body denies the application to grant a discretionary easement to the municipality, such denial shall be accompanied by a written explanation. The local governing body's decision may be appealed using the procedures of either RSA 79-A:9 or 79-A:11, provided, however, that such denial shall be deemed discretionary and shall not be set aside by the board of tax and land appeals or the superior court except for bad faith, discrimination, or the application of criteria other than those set forth in RSA 79-C:3 and paragraph I of this section.
III. The easement shall be a burden upon the land and shall bind all transferees and assignees of such land. An easement granted pursuant to this subdivision shall not be assigned, transferred, or released by the municipality without the consent of the owner, except as provided in RSA 79-C:8.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:6
79-C:6 Terms; Recording. –
Any easement acquired by the municipality pursuant to this chapter shall be for a minimum of 10 years. The easement terms shall include the method of assessment pursuant to RSA 79-C:7, the terms of expiration pursuant to RSA 79-C:8, II, and the terms of renewal pursuant to RSA 79-C:8, III. The local governing body shall provide for the recording of such easements with the register of deeds. Any costs of recording shall be the responsibility of the applicant.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:7
79-C:7 Assessment of Land Subject to Discretionary Easement. –
The method of assessment of discretionary easement land, excluding any buildings, their curtilage, appurtenances, or other improvements, shall be included as a term of the agreement in any discretionary easement acquired by a municipality, and shall fall within a range of values determined as follows:
I. One end of the range shall consist of the value such land would have been assigned under the current use values established pursuant to RSA 79-A, if the land had met the criteria for open space land under that chapter.
II. The other end of the range shall be determined by multiplying 75 percent of the land's fair market value by the current equalization rate.
III. The local governing body shall have the discretion to set the value of the discretionary easement at a level within this range which it believes reflects the public benefit conferred by the property, under the criteria set forth in RSA 79-C:3 and RSA 79-C:5, I.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:8
79-C:8 Release of Easement, Expiration, Renewal, Consideration. –
I. Any landowner who has granted a discretionary easement to a municipality pursuant to the terms of this chapter, after the effective date of this chapter, may apply to the local governing body of the municipality in which the property subject to a discretionary easement is located for a release from such easement upon a demonstration of extreme personal hardship. Upon release from such easement, a landowner shall pay the following consideration to the tax collector of the municipality:
(a) For a release within the first half of the duration of the easement, 20 percent of the RSA 75:1 full value assessment of such land.
(b) For a release within the second half of the duration of the easement, 15 percent of the RSA 75:1 full value assessment of such land.
II. The terms of agreement may include specification of an amount, if any, up to 10 percent of fair market value, to be paid upon final expiration of the terms of the discretionary easement or renewed discretionary easement.
III. Upon the expiration of the terms of the discretionary easement, the owner may apply for a renewal, and the owner and local governing body shall have the same rights and duties with respect to the renewal application as they did with respect to the original application; provided, however, that at the time of the original granting of the discretionary easement, the parties may include, as a term of the agreement, a provision for automatic renewal for the same term as the original. Such a provision may include the specification of the manner in which the tax assessment on the property for the next term is to be determined at the time of renewal.
IV. The tax collector shall issue a receipt to the owner of such land and a copy to the local governing body for the sums paid. The local governing body shall, upon receiving a copy of the above-mentioned consideration, execute a release or renewal of the easement to the owner who shall record such a release or renewal. A copy of such release or renewal shall also be sent to the local assessing officials if they are not the same parties executing the release.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:9
79-C:9 Payment; Collection. –
I. If a consideration is due under RSA 79-C:8, I or II, the assessed value shall be determined as of the actual date of the release or expiration. Any consideration is in addition to the annual real estate tax imposed upon the property, and shall be due and payable upon the release or expiration.
II. Any consideration shall be due and payable by the owner at the time of release or expiration to the municipality in which the property is located. If the property is located in an unincorporated town or unorganized place, the tax shall be due and payable by the owner at the time of release or expiration to the county in which the property is located. Moneys paid to a county under this chapter shall be used to pay for the cost of services provided in RSA 28:7-a and RSA 28:7-b. Any consideration shall be due and payable according to the following procedure:
(a) The commissioner shall prescribe and issue forms to the local assessing officials for the consideration due, which shall provide a description of the property, the discretionary easement, the RSA 75:1 full value assessment, and the amount payable.
(b) The prescribed form shall be prepared in quadruplicate. The original, duplicate, and triplicate copy of the form shall be given to the collector of taxes for collection of the consideration along with a special tax warrant authorizing the collector to collect the consideration under the warrant. The quadruplicate copy of the form shall be retained by the local assessing officials for their records.
(c) Upon receipt of the special tax warrant and prescribed forms, the tax collector shall mail the duplicate copy of the tax bill to the owner responsible for the tax as the notice of tax. Such bill shall be mailed within 12 months of the release or expiration.
(d) Payment of the consideration shall be due not later than 30 days after the mailing of the bill. Interest at the rate of 18 percent per annum shall be due thereafter on any consideration not paid within the 30-day period.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:10
79-C:10 Exemption for Eminent Domain. –
If any of the land which is subject to a discretionary easement is condemned by any governmental agency or is acquired through eminent domain proceedings, the local governing body shall execute a release of the easement to the owner. None of the liquidated consideration provisions of RSA 79-C:8, I and II shall be applicable to releases granted pursuant to this section.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:11
79-C:11 Local Easement Programs. –
This chapter shall not be construed to limit the development of any other state, county, town, or city easement program for conservation, recreation, or other purposes.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:12
79-C:12 Lien for Unpaid Taxes. –
The real estate of every person shall be held for the taxes levied pursuant to RSA 79-C:8.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:13
79-C:13 Enforcement. –
All taxes levied pursuant to RSA 79-C:8 which are not paid when due shall be collected in the same manner as provided in RSA 80.
Source. 1996, 176:1. 2007, 42:1, eff. July 20, 2007.
Section 79-C:14
79-C:14 Rulemaking. –
The commissioner of the department of revenue administration shall adopt rules, pursuant to RSA 541-A, relative to:
I. The application procedures under RSA 79-C:4.
II. The payment and collection procedures under RSA 79-C:9.
Source. 1996, 176:1, eff. Aug. 2, 1996.
Section 79-C:15
79-C:15 Applicability of Chapter. –
All discretionary easement applications which were granted by a municipal governing body on or before August 2, 1996 shall continue to be governed for the remainder of their term of years by RSA 79-A, including those provisions amended or repealed by 1996, 176. This chapter shall apply only to applications for discretionary easements granted after August 2, 1996. The intent of the legislature is to honor the statutory terms upon which the parties relied and under which discretionary easements were granted before the effective date of this chapter. When those easements granted on or before August 2, 1996 expire, they shall be subject to renewal under this chapter.
Source. 1997, 47:1, eff. May 19, 1997.