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BMC Land Use and Zoning Seminar Insightful and Helpful

Attorneys Amy Manzelli, Jason Reimers, and Beth Boepple, from the law firm of BCM Environmental & Land Law, PLLC, held a two day seminar for the National Business Institute’s Continuing Legal Education. Held from Thursday December 1 and Friday December 2, 2016 in Manchester, NH, the seminar, “Land Use and Zoning from Start to Finish,” covered topics such as Navigating the Land Use Approval Process presented by Attorney Boepple, Appealing Zoning Decisions: Local, Regional and State Considerations presented by Attorney Reimers, and Variance Essentials: Showing Zoning Rules Create Hardships presented by Attorney Manzelli. BCM Environmental & Land Law was proud to be a part of NBI’s continuing education and to share their knowledge, insight and perspective with other legal professionals in what can be a confusing and overwhelming challenge for their clients.

BCM Represents Opposition to the Proposed Cog Railway Hotel on Mount Washington

BCM Represents Opposition to the Proposed Cog Railway Hotel on Mount Washington

 

The Berlin Daily Sun recently reported on the efforts of Keep the Whites Wild, an organization formed to protect Mount Washington and to oppose the construction of a proposed hotel in the alpine zone less than one mile from the summit.  Attorney Jason Reimers represents Keep the Whites Wild, which is comprised of residential landowners, long-time outdoor professionals, and local and regional recreationalists.

BCM Settles Timber Trespass / Nuisance Case

Jed Callen, Esq., recently negotiated a favorable settlement agreement for one of BCM Environmental & Land Law’s corporate clients.  The client’s abutter excavated sand and gravel across the property boundary several years ago and has agreed to a full restoration of the land, surveyed boundary markings, a buffer, and damages. This settlement agreement helped BCM’s client avoid a potentially lengthy and costly court proceeding in the Merrimack County Superior Court.

BCM Sponsors University of Vermont 5th Annual Food System Summit

What Makes Food Good? That was the central question of the University of Vermont’s 5th Annual Food System Summit, which was held on June 14-15 at UVM.  The debate around what is  “good” food plays out every day, world-wide, in a variety of different venues, from classrooms to courtrooms, boardrooms to dining rooms, and everywhere in between. In a globalized world, with a highly polarized political climate, the stakes are high when it comes to navigating opinions about the characteristics of good food.  Scholars, farmers, scientists, practitioners and various other stakeholders all came together at the UVM Food Summit to discuss the potential answers to this question.

BCM Environmental & Land Law, PLLC, is proud to have been a sponsor of this important event.

Clean, Drain and Dry

By: Jason D. Reimers, Esq.

Gov. Maggie Hassan has declared June 2016 to be Aquatic Invasive Species Awareness Month.

Just to remind you of how invasive species can harm water quality, property values, tourism, swimming, and boating, milfoil can be spread by just a few-inch piece and then grow up to 15 feet, choking off acres of native species and making it terrible to swim.

The Asian clam is sharp and will cut your feet. Many invasive species, such as the Asian clam, Chinese mystery snail, and the spiny water flea can spread unseen as microscopic larvae in drops of water. This is why it is not enough to simply remove visible vegetation hanging from your boat’s motor or trailer.

Hassan signed into law a bill that prohibits the negligent transport of aquatic plants and aquatic weeds. This law specifically applies to boaters and is applicable to boats on rivers, lakes, and ponds.

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BCM Sponsors Working With Farms with Commercial Agricultural Potential

On June 8, 2016, BCM Environmental & Land Law, PLLC, in coordination with Land for Good, The Hvizda Team, and the Piscataquog Land Conservancy, sponsored a real estate professional training course entitled Working with Farms with Commercial Agricultural Potential.  The program educated real estate professionals regarding how commercial farm buyers differ from other rural property buyers.  Attendees were provide with guidance, tools and resources relevant to the unique needs of commercial farm buyers, including relevant legal and tax issues, conservation easements, and farm financing options.

NH Lakes Launches 15th Season of the Lake Host Program

Memorial Day weekend not only signifies the start of the recreational boating season for many, it also marks the official start the New Hampshire Lakes Association (NH LAKES) Lake Host Program. This summer, approximately 800 Lake Hosts stationed at 104 of the most highly used boat ramps throughout the state will teach boaters how to help prevent the spread of aquatic invasive species—like milfoil and Asian clams—from waterbody to waterbody. Summer 2016 marks the 15th season of this nationally-recognized aquatic invasive species education and prevention program.

The Lake Host Program is funded by grants from the New Hampshire Department of Environmental Services and private foundations, and contributions from municipalities, lake associations, and individuals. Since 2002, Lake Hosts, have conducted approximately 761,735 courtesy boat inspections and captured 1,515 pieces of hitchhiking invasive plants and animals before they were able to infest our waterbodies.

The New Hampshire Lakes Association is a statewide 501(c)(3) nonprofit member-supported organization dedicated to protecting New Hampshire lakes and their watersheds. For more information, please visit www.nhlakes.org.

Jason Reimers, Esq., is a member of the Board of Directors of the NH Lakes Association.

Starting a Home Food Business

Last month I wrote about foods that you can make in your residential kitchen and legally sell to others.  Those foods include baked goods, double-crusted fruit pies, candy and fudge, jams and jellies, packaged dry products, and acid foods such as vinegars and mustards.  Read that article about “homestead food operations” for more details.  This month I want to continue with that topic and talk about what steps you might take in order to actually start a business selling a food you make in your kitchen.

Let’s say that you make a delicious homemade mustard.  Better than French’s.  Better than Grey Poupon.  You satisfy all of the legal requirements to qualify as a homestead food operation to produce the mustard in your home kitchen and sell it to others.  How do you go from making a great product for your family and friends to selling it in stores or at markets?  Well, I don’t know where you can get mustard seeds or turmeric (that is what makes mustard yellow) in bulk.  I can’t tell you where to buy mustard jars.  And I don’t know where to get your labels made.  Those are things you’ll need to figure out.

What I can help you with is establishing a business entity.  Under New Hampshire law, you have several options.  Sole proprietorship.  General partnership.  Limited partnership.  Limited liability partnership.  Limited liability company (LLC).  Corporation.  Non-profit.  Et cetera.

Within each category are more considerations.  For example, do you want to be a sole-member LLC?  Does your investor-friend just want to invest money or does she want to also help run the business?  Are you in business to make a profit or to foster social justice?  Will you have employees?  These and other considerations will inform your decision about what type of business entity you should create.

An important consideration is liability.  You see the word “limited” in many of the names of businesses, such as limited partnership and limited liability company.  For the most part, the word “limited” refers to someone’s personal liability being limited.

Liability for what?  Liability for the debts of the company or for a court judgment against the business, among other liabilities.  You might make great mustard, but if you bought three truckloads of turmeric on credit moments before the market that you sell to goes out of business, you may not be able to pay your turmeric supplier.  You may then find yourself with other bills that you cannot pay.  Maybe the turmeric supplier sues you in superior court and wins a judgment for $20,000.  Maybe you file for bankruptcy or go out of business.  If you are a sole proprietor, for example, there may be nothing protecting you from being personally liable for these business obligations.

If, though, you set up your business in such a way as to separate your personal assets from the business, you would avoid putting your personal assets at risk in the event that the business has liabilities or doesn’t work out as planned.  This is not to say that you can set up an LLC and do whatever you want and never be responsible for anything.  You must treat your business as it is, an entity that is separate from you.  In other words, there are legal formalities that you need to adhere to in order to protect your limited liability status.

There are many other considerations involved with choosing the type of business entity you want to create.  You should consider how you prefer to be taxed, your succession plans for the business, the size of the business, the money and credit available to you, and who else will be involved in running or investing in the business.

Once you decide on the type of business entity, and you’ve come up with a business name, you will have to file certain documents with the New Hampshire Secretary of State (and pay a modest fee).  You may also need to file documents with the Internal Revenue Service if, for example, you want to obtain a tax identification number (TIN), which is also known as an employer identification number (EIN).  You’ll need one of these if you intend to have employees.

There are a lot of other considerations—more than I can address in this article.  But if your mustard is that good, perhaps the hard work is worth it.  However, even the best mustard will not cut the mustard without sound business planning.

Selling Food That You Make In Your Kitchen

Over the holidays, a friend gave us nicely jarred strawberry jam that she made at home.  Another friend spent a Sunday in our kitchen pickling various vegetables, including cauliflower, golden beets, candy cane beets (that was the first I ever heard of those), and radishes.  I heard someone tell each of these people that they should sell their creations.  I bit my tongue each time.   I didn’t want to be the lawyer in the room saying, “Well, you know, you can’t really do that, blah, blah, blah, blah, blah.”  Some retail food can legally be produced in a residential kitchen and some cannot.

There are numerous state and federal laws governing the production and distribution of food.  This article focuses on a small segment of food that can be legally prepared in a New Hampshire residential kitchen and sold to the public.  These foods are called “homestead food products,” and the relevant statute is RSA 143-A.  The New Hampshire Department of Health and Human Services (DHHS) has promulgated administrative rules that flesh out RSA 143-A.

According to the administrative rules, the term “homestead food products” includes the following foods:  baked items; double-crusted fruit pies; candy and fudge; jams and jellies; packaged dry products; and acid foods such as vinegars and mustards.  I love when the law gets this specific.  Generally, these foods can be prepared in a residential kitchen and sold to the public, though if you make jam or jelly from a recipe that is not from the National Center for Home Food Preservation, there are additional requirements that you must meet.

Depending on where you sell the food and how much business you do in a year, you may need a license from DHHS to set up your business as a “homestead food operation.”  There are fifteen municipalities, including Keene, that have their own licensing requirements that are often similar to those of DHHS.

If you produce one or more “homestead food products” and your annual gross sales are less than $20,000 and the food products are sold from the homestead residence, the owner’s own farm stand, farmer’s markets, or retail food stores, then no license is required.

There are two circumstances under which you need a license.  One depends on the volume of sales, and the other depends on where the food is sold.  If your gross sales of homestead food products exceed $20,000, a license is required.  Period.  Next, even if your gross annual sales are less than $20,000, you need a license if you plan to sell your food to restaurants or other retail food establishments, over the Internet, by mail order, or to wholesalers, brokers, or other food distributors that will resell the food.  The license fee is $150 a year and the application is available at the DHHS website.

There are labeling requirements for packaged food that differ depending on whether the food operation is licensed.  Be aware that even homestead food operations that are not required to be licensed must follow the labeling requirements.  The exact wording that must be used is in the statute.  As a consumer of locally produced packaged foods, keep an eye out for labels.  You may see one of the following statements: “This product is made in a residential kitchen licensed by the New Hampshire Department of Health and Human Services”; or “This product is exempt from New Hampshire licensing and inspection.”

There are certain foods that cannot be produced by a homestead food operation.  These are called “potentially hazardous food,” and include cheesecakes, pumpkin pies, custards, soups, sandwiches, pickles, and relish.  This list is put out by DHHS and is not exhaustive.  When I was in law school, I got food poisoning from a homemade custard dessert, so I am happy to see that custards made the “hazardous” list.  Since then, I haven’t been tempted even by a licensed custard.

“Potentially hazardous foods” are foods that require temperature control to prevent such pathogens as botulism and also include low-acid canned foods.  If you want to produce these foods for sale to the public, you are not eligible to be a homestead food operation—licensed or not—and must comply with other food laws that are beyond the scope of this article.

For licensed homestead food operations, there are some requirements in the administrative regulations regarding kitchen set-up.  For example, if your bathroom opens into the kitchen, the bathroom must have self-closing doors and mechanical ventilation.  (And please wash your hands!)  And if you have a laundry machine in the kitchen, you are not allowed to run it during food production.  That seems reasonable.  You might as well wait to do the laundry until you are done making your double-crusted fruit pies so that you can include your amateur chef uniform in the wash.

Leadership New Hampshire 2016

Attorney Jed Callen recently participated in the Leadership New Hampshire Program. Attorney Callen spoke to the group as part of the Environment and Sustainability Program held on January 21, 2016 at Squam Lakes Natural Science Center in Holderness. Attorney Callen took part in the discussion of the topic: “Tying it all together: How New Hampshire’s Natural Environment Sustains our Economy and Social Fabric.”