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Acquisition of Fee Simple
One of the simplest open space protection techniques is for the town or other conservation entities to become the owner of the property. This is also the most secure method, as control of the property and how it used is the responsibility of the owner.
Acquisition of a property may be expensive in the case of purchase, or inexpensive in the case of donation. Purchase may be necessary when the land is threatened and the landowner is not willing or able to give the property to an entity interested in land conservation. Donation may provide the landowner with income tax benefits because the value of the real estate donated to a governmental or non-profit conservation organization is recognized in the tax code as a charitable contribution. Part of or all of the value of the land may be tax-deductible. Bargain sale at a less-than-market-value price is a financially attractive variant of an outright purchase. It benefits the town because the cost of purchase is less. It can also benefit the landowner because the difference between the bargain sale price and the fair market value may be considered a charitable contribution and therefore qualify as an income tax deduction.
Acquisition of Partial Interests in Land
Real estate is more than the piece of property; it carries with it a complex bundle of rights, including the right to improve the property, to mine the property, to take water from the property, to graze animals, to prevent others from visiting the property and to simply enjoy the property, to name a few examples. The bundle of rights and responsibilities that comprise land ownership may remain intact or may be allocated among a number of parties. Acquisition of fee simple means a person, or group of people, acquire the complete bundle of rights. Alternately, for example, the town might purchase a partial interest in the land, such as the right of public access. Acquisition of partial interests in land may occur by purchase, donation, or bargain sale.
Landowners interested in conserving their property, but retaining ownership, have discovered the conservation easement. Specifying the rights which will be separated from the property in a conservation easement deed, and selling or giving the deed to a conservation group or town is a common method of land protection in the Upper Valley. Many conservation easements, for example, restrict further subdivision of the property, and residential or commercial development. Commonly, easements may also limit excavation and major disturbance of the natural ground surface. Some conservation easements reserve particular rights for present and future owners such as the right to erect agricultural structures or to allow additions on existing residential structures. Some conservation easements cover only a portion of a lot, leaving the remainder available for development according to the land use controls in effect in the community.
Acquisition of a conservation easement by the town or conservation group means receiving a less than fee simple interest in property. Acquisition of a conservation easement is also called acquisition of development rights, because in most cases, conservation easements convey development rights from the owner to another party. Another type of partial interest that is commonly conveyed in Hanover is a trail easement. Sometimes the Planning Board requests that a trail easement be given to the town to improve the trail system in the process of reviewing a major subdivision or site plan application.
The acquisition of partial interests in land is usually less costly than the acquisition of the land fee simple, both in the short term and the long term. The long-term municipal costs include the responsibility for monitoring, and enforcement in the event of an easement violation. Other considerations include the relative security that comes with ownership, the loss of taxes and the stewardship expenses necessary for managing the land.
Transfer of Development Rights
A market for development rights can be established by creation of a transfer of development rights program. Typically, such a program is implemented in a town's zoning ordinance. Through the Master Plan and zoning processes, sending zones (areas to be less densely developed or conserved by sending some or all of their development rights away) are identified as important parts of the open space system. Receiving zones (areas to be more densely developed) must be designated. Purchasers of development rights can use the transferred development rights in the receiving zones. With a transfer of development rights program the market theoretically creates the open space system by removing the development rights from lands that should be left as open space and placing development in other specified locations.
In order to sell the development rights from land in a sending zone, an instrument similar to a conservation easement is executed. The transfer of development rights is carefully worked out when the system is set up by local ordinance, and subsequently monitored to keep track of the lands from which development rights have been sold.
Option & Right of First Refusal
In cases when there is a parcel of land that should be added to the open space system, but immediate purchase is not possible, an option or a right of first refusal are interim measures that could be arranged with the owner. They guarantee that there will be an opportunity to respond to the owner when the property is available for sale.
An option establishes a price at which the land could be purchased at any point during a specified period of time in the future. It gains time for raising money for the fee simple purchase, for completion of applications for grant assistance, for obtaining town appropriations, or whatever else is necessary to consummate the purchase.
A right of first refusal is less specific. It guarantees a future opportunity to purchase the land at a price equal to a bona fide offer from another party. It buys time, but does not establish a fixed price or date of purchase.
Options and rights of first refusal provide legal ways for eventual property ownership while providing time for organization and assembly of financial resources. Neither obligates the town to making the purchase, but the town should not employ these options unless there is a high probability the town will exercise the option. Options and rights of first refusal can be obtained at no cost, but are typically sold by the landowner.
The application of regulations to maintain open space must be reasonably related to the public health, safety and welfare. Otherwise, it might be deemed a taking of property without just compensation. There are a number of ways that land use regulations can successfully contribute to an open space system.
Land use regulations, particularly zoning, can be designed to keep open space free from development. This is precisely what the "NP" district in the Hanover Zoning Ordinance attempts to do. This zoning approach is unique and not suited to much of the land in town because land is zoned "NP" only at the request of the landowner. The limited development (only seasonal residences) and large lot sizes required in the "F" district have been crucial in reducing development pressure on the east side of Moose Mountain. However, while it has, to date, created an ambience in the eastern part of town, it does not specifically protect its natural resources. Therefore, additional conservation mechanisms should be used.
Regulations such as those contained in Article VII of the Zoning Ordinance (wetland and waterbody protection) effectively restrict development from impacting water resources in a major way, but at times, with review, do allow some development in the wetland and the surrounding buffer. Regulation of lot coverage and setbacks ensure that there is a mix of structures and open space on a lot.
Planned residential development and open space development regulations are designed to encourage a development plan which sets aside meaningful open space, typically for the use by the residents of the development. The key here is ensuring that the open space also contributes in a logical way to the open space system in town, has some relationship with the town-wide network, and provides some public open space benefit.
Regulatory approaches do not take land from the tax rolls and only require a commitment from the town to administer and enforce the provisions of the land use controls. However, regulatory approaches to open space protection are only a Town Meeting vote away from being abolished or changed to become less (or perhaps more) effective. The Town should not use the Conservation Fund to avoid enforcement of regulations.
Historic structures in traditional settings are part of Hanover's landscape.
Current Use Assessment
Current use assessment is designed to tax land at its "current use" value rather than at its "highest and best use" value. With reduced property tax under current use assessment, landowners may be better able to continue to own their land. As specified in RSA 79-A, current use assessment provides for reduced property assessments on parcels of field, farm, forest and wetland parcels which are at least ten acres in size, nature preserves, farmland generating annual revenues of at least a specific amount, and recreation land of any size. Once in the program, the land cannot be developed without the owner being assessed a penalty equivalent to 10% of the fair market value of the land taken out of current use.
While current use does not prevent a property from being developed, it provides an incentive to keep the land undeveloped, since annual taxes are lower.