Your Vested Property Rights…Investment Backed Expectations…OHRV’s & ZONING!

PROPERTY RIGHTS AND THE COURT“Property” isn’t the land itself. It’s the bundle of rights that people forming social groups divvy among themselves when they agree not to fight over the use of that land (and form a government to enforce that agreement). It’s not what you keep behind your castle wall – it’s what keeps you from having to build a castle wall. (Waugh, B)

And that agreement in Henniker is known as The Town of Henniker Zoning Regulations Chapter 133. I would suggest everyone become intimately familiar with this document.

The Zoning Regulations define in words those bundle of property rights that our social group that we call the Town of Henniker have assigned to our property.

The basis for this agreement is the Investment Backed Expectation that each and everyone of us has assigned to the properties of Henniker and the Government that was established to enforce that agreement has pledged to uphold!

These rights have been challenged in the court system many times.  Each time the NH Supreme Court has rendered a decision that has clarified the definitions of those agreed upon rights as written in our Zoning Regulations Chapter 133.

The court has made it quite clear that the heart of the doctrine that defines our property rights is, “Justified investment-backed expectations.”

In 1986, Henniker’s legislative body voted in town wide zoning (page 9 & 21); 1986 ANNUAL REPORT ZONING AND CIVIC ASSOCIATION

Right now for the record, OHB is not a fan of Zoning! Why, because most people fail to review and amend Zoning Ordinances on a regular basis. In other words what was once good in the past can become very bad in the future!

And when review and amending does occur, it usually comes from a hand picked, self serving and controlling Planning Board who inadequately informs the pbulic of the liberties we are giving up.

That vote recorded by Town Clerk Janet Murdough, page 21 1986 ANNUAL REPORT codified our EXPECTATIONS of what kinds of activity can take place on our property.

We voted in a permissive zoning ordinance. Which means all activities are prohibited unless listed as permitted. Hence the document’s list of permitted uses in all zones.

Since the use permitted would be too long, the legislative body chose to adopt the plain wording of Primary Use and Use accessory to permitted use. Accessory uses are further defined in the ordinance as, “A building or use subordinate and customarily incidental to the main building or use on the same lot.”

Needless to say, many folks have varying definitions as to what is customarily incidental. So the NH Supreme Court was called in and has defined Henniker’s customarily and incidental clause for us;

         “Consistent with the common law, the Town’s ordinance defines an accessory use as   a “use subordinate and customarily incidental to the main . . .use on the same lot.”  The definition of accessory use in the ordinance involves several distinct elements.  See Becker v. Town of Hampton Falls, 117 N.H. 437,

440 (1977) (discussing ordinance that defined accessory uses as those that are “customarily incidental and subordina[te]” (quotation omitted)). “[I]ncidental” and “subordinate” incorporate the requirement that the accessory use be minor in relation to the primary use and that it bear a reasonable relationship to that use.  Id.; see Marchand v. Town of Hudson, 147 N.H. 380, 383 (2001).

“[C]ustomarily” imposes an additional requirement that the accessory use “has commonly, habitually and by long practice been established as reasonably associated with the primary . . . use” in the local area. Becker, 117 N.H. at 441 (referring to “local custom”); see Town of Windham v. Alfond, 129 N.H. 24, 29 (1986).  “While the strength or degree of the customary or habitual association does not lend itself to definition by formula, and while the combination need not occur in a majority of instances of the principal use, the uses must be associated with a frequency that is substantial enough to rise above rarity.” Alfond, 129 N.H. at 29 (citation omitted).” [emphasis added]

Which now brings us to our current problem of our High Impact Public Trails System that has been developed in our Rural Residential Zone for Off Highway Recreational Vehicles (OHRV) and the disturbances that it creates.

Considering that the Zoning Ordinance has been in effect for more than 30 years, the owners of property in the Rural Residential Zone have established reasonable investment-backed expectations!

It is clear that those expectations was not to have hundreds of OHRV’s/day passing-by their properties on roads (which are clearly designed and maintained in a condition for the primary permitted users only) turned into a High Impact Public Trail System.

It would appear that the doctrine of “customarily incidental” is being violated here. It would appear that the BOS are in direct contempt of the NH Supreme Court ruling regarding Henniker’s Zoning Ordinance’s Customarily Incidental clause.

OHB encourages the BOS to take time, before their next meeting, to understand their duty to enforce our Zoning Ordinance in light of the NH Supreme Court’s rulings on this very issue.

OHB…keeping it real… making it easier for you to find the facts so you can draw your own conclusions…..

“There are things public officials would never do if they thought somebody might call them out on it.”








Messenger Newspaper claims Town Administrator Trovato pressured paving contractor to falsify Western Avenue report! Improper conduct must not be tolerated!

see+no+evil (Copy) The October 6, 2017 edition of The Messenger (Page 5) states unknown sources as saying Mr. Caleb Connor (Pike Industries the road paving contractor), “felt pressured by Administrator Trovato to certify that the reclamation went down 18, but he refused to falsify his report.”

This contradicts testimony given by project engineer Mike Vignale at the Board of Selectmen (BOS) meeting minutes on September 19th 2017; Item 2 Old Business, “With regard to the stones and reclaim, he [Vignale] said he did not see the reclaim go in and when talking to people they only came across a few stones. Looking at the exposed edge of reclaim, he measured it to be 18 inches thick. He looked in about 30-40 locations, and took measurements. Chair Blomback asked if in his opinion it was ready to be paved. He said yes. He said there were gaps in the guardrails but they will be replaced in a few weeks.” [emphasis added]

In an email sent to the BOS (page 11 of 82), Mr. Connor explicitly states that the machine used by Pike could go to a maximum depth of 22 inches, Pike only went to a NHDOT industry standard depth of approximately 10-12 inches.

This entire project has been filled with controversy. An unauthorized change in approved construction sequencing of drain placement and paving has not only delayed this project way beyond the scheduled  August completion date but has cost us an additional $19,000 as well.

Now more controversy has arisen over the lack of boulder removal. A quick review of the approved engineering plans, Division 2100 Earthwork Part 1 General Section 1.3 D (page 7 of 31) clearly states how the boulder issue is to be handled, “Removal of boulders within the existing pavement area within 24” of the current finish grade and over 2 cubic feet.”

Clearly the approved plans call for the inspection for boulders to be conducted to a depth of 24 inches!

Yet Pike has confirmed that their reclamation was only to 10-12 inches and the Town’s engineer claims he has measured 18 inches! ???????????

Everyone should be concerned that this entire project is being mismanaged.

The necessary information is not being gathered and put into a concise report…and that is the job of the Town Administrator. This dysfunction will drive contractors make contractors to think twice about bidding on our proposals. And when they do bid, they most certainly will build in an increase “aggravation fee”.

The BOS must take swift action to investigate this allegation of improper conduct by the Town Administrator!

OHB…keeping it real… making it easier for you to find the facts so you can draw your own conclusions…..

“There are things public officials would never do if they thought somebody might call them out on it.”


It’s October 1st…Budget Time…What’s in your wallet? What YOU can do to change your Property Tax Rate…

property-tax-cartoon (Copy) Don’t wait until it is too late! Start planning now on how you want to do to help control your property tax rate.

The most important that you must know is that YOU do have a say in how much property tax you pay.

Become a local government expert. The best place to go for a basic understanding of how local government works is the NH Municipal Association’s web site. Use their search bar in the upper right corner of the home page. Type in Annual meeting and find a whole slew full of writings.

You can search and find information about anything town government does. Take advantage of their publications. You can find a list of their published resources here.

Budget Advisory Committee/Board of Selectmen budget development meetings are scheduled for Saturday November 4, 2017 and Saturday November 18, 2017 @ 8:30 am. Hopefully the town’s new live streaming network will be up and running so you can watch the meetings from home.

Those joint meetings consist of each Town Department coming before a group of 10 people and explaining their budget requests. Hopefully copies of the proposed budget requests will be published on line at the Town’s web site. I would strongly urge each and everyone of you demand Town Hall to place the proposed budget on the web page.

The proposed budget, in its entirety is created and stored in an electronic form by employees who are paid from our property tax dollars and on computers paid for by our property tax dollars.

Therefore, there should be no reason why it cannot be placed on a tax payer funded web page.

As soon as the Budget Advisory Committee (which OHB is on)  sets their date to review the proposed budget and deliberates recommended changes to the Select Board, I will let you know.

We are the legislative body…We control what is spent at town hall…Study the budget from the beginning and don’t wait to the last minute…ask questions and demand answers!

Median Household Income in Henniker is below the state average. We have the 10th highest tax rate…this is not sustainable!


OHB…keeping it real… making it easier for you to find the facts so you can draw your own conclusions…..

“There are things public officials would never do if they thought somebody might call them out on it.”