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.”








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