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Articles

Environmental Law Updates: Water & Air

Amy Manzelli, Esq. and Kelsey C. R. Peterson, Esq. authored an article that was published in the September 18, 2019 edition of the NH Bar News regarding the Federal Clean Water Act and the Federal Clean Air Act. The proposed change to the definition of “Waters of the United States” and the recent change to reclassify major sources of air pollutants are two of the three major changes to law or policy in the last year that will affect how federal or state environmental law is applied in New Hampshire.

Click here to read the full article.

Local Regulation of Agriculture Toolkit Now Available

Article published in the New Hampshire Bar News, May 15, 2019

By: Amy Manzelli, Esq. and Theresa Walker

Conflicts surrounding farms are on the rise in New Hampshire, be it neighbors challenging farmers, farmers engaging in activities that stretch or exceed what constitutes agriculture, or entrenched attitudes about property rights.  At the same time, farms are thriving and expanding across the state as farmers capitalize on consumer interest in locally grown and produced food and communities strive to become more economically and environmentally resilient. The New Hampshire Coalition for Sustaining Agriculture (Coalition), an ad-hoc group of New Hampshire farmers, regulators, agricultural advocates and policy makers, identified the need for information for farmers and local officials about state laws governing agriculture and how local policies and regulations can help or hinder local agriculture….click HERE to read more!

 

 

 

Spite Fences

By: Jason D. Reimers, Esq.

New Hampshire has a statute—RSA 476—titled “Spite Fences” that was enacted in 1887.  Under the statute, a spite fence is “any fence or other structure in the nature of a fence, unnecessarily exceeding 5 feet in height, [and] erected or maintained for the purpose of annoying the owners or occupants of adjoining property.”  If a court finds that a fence satisfies these criteria, the court could conclude that the fence is a nuisance and order that it be removed.  The court may also award damages.

There is very little New Hampshire case law on spite fences.  The New Hampshire Supreme Court has considered spite fences only twice, in 1897 and 1900, and I have not found any New Hampshire superior court orders involving spite fences.  The 1897 case involved an unpainted and non-clapboarded building 15 feet tall that was built close to the property line.  The unsightly building blocked the neighbor’s view and sunlight.  The Supreme Court held that the spite fence law did not apply to buildings despite the likelihood that the building was constructed for malicious intent.

The 1900 case involved a fence of “timbers” and “rough boards” and essentially says that a spouse not involved in the construction of a spite fence is not culpable.

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The Rule of Reasonable Use

By: Jason D. Reimers, Esq.

In this column I often write about rights of way and easements.  The reason is that my land-use legal practice involves rights of way and easements on an almost daily basis.  Sometimes, but certainly not always, a right of way and an easement are the same thing.  This month I want to discuss the rule of “reasonable use” and how it is applied by courts to certain rights of way or easements.  For this hypothetical, the terms “right of way” and “easement” are interchangeable, but keep in mind that I am not talking about conservation easements.

Let’s say that you own property across the street from a lake.  Your lakefront neighbor across the street owns the entire shorefront.  You and your neighbor are good friends after having been neighbors for 30 years.  Thirty years ago, soon after you each purchased your properties, your neighbor conveyed to you a deeded easement over a 15-foot portion of her waterfront.  The 15-foot area is a sandy beach.

The deed granting you the easement says nothing about the beach or any other specific use.  Rather, it just describes a “right of way over the property.”  Fortunately, the right of way runs with the land and remains in existence regardless of who owns either lot.  Unfortunately, your neighbor moved to Florida last year, and your new neighbors don’t want you to use the beach anymore.

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State Steps Up Enforcement of Hazardous Waste Violations by Hospitals

Amy Manzelli, Esq. authored an article that was published in the September 19, 2018 edition of the NH Bar News regarding the State of New Hampshire’s enforcement of hazardous waste violations by hospitals.  Amy’s practice with hospital clients has provided her with unique insight into how to properly manage the environmental issues that medical professionals face on a day-to-day basis.

Click here to read the full article.

Rights-of-Way 101

By: Jason D. Reimers, Esq.

Lately I have been getting a lot of calls and emails about right-of-way issues from past clients and new clients.  It is very common for a property to either benefit from or be subject to a right-of-way.  A right-of-way is a legal right of access or crossing over land owned by someone else.   A right-of-way is generally found in a recorded deed, but it can also be established, in certain circumstances, by usage.

Here is a common scenario involving two side-by-side properties, otherwise known as “abutting” properties.  Property A has a right-of-way over Property B.  The deed to Property A states that the property itself is being conveyed (i.e., sold or transferred) along with the right to pass over the land of Property B for ingress and egress (i.e., coming and going) to Property A.  The deed language might refer to the right-of-way as an easement over Property B.  The deed to Property B states that the property is “subject to” the right-of-way of Property A.  The right-of-way may have first been created when a larger property was subdivided, thereby creating Properties A and B, and, in order for the owners of Property A to access their property from a town road, they would need to cut through Property B.

Questions often arise about how the right-of-way may be used.  A right-of-way for the ingress and egress to a residential lot may generally be used for all uses ordinary to a residential use.  Assuming the right-of-way is the only, or at least the primary, access way to Property A, the owners of Property A may install utilities along the road.  This probably includes underground utilities, such as water pipes, and above-ground utilities such as poles carrying electric, telephone, and cable wires.  Also included in an ingress/egress residential right-of-way is the right to maintain the right-of-way, which may include paving the right-of-way if desired.

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NHDES’s New Wetlands Rules

By: Jason D. Reimers, Esq.

NHDES is the State of New Hampshire’s Department of Environmental Services.   NHDES regulates air pollution, alteration of terrain, waste management, drinking water, dams, shorelands, wetlands, and other environmental matters.  NHDES’s enforcement (or lack thereof) of New Hampshire’s environmental statutes and administrative rules is a perennial source of disagreement and frustration depending which side you are on in any particular matter.  I have clients who are seeking permits from NHDES, and I have clients who are opposed to permit applications that others have filed with NHDES.  I have clients who want NHDES to investigate apparent violations of statutes and rules, and I have clients who are the subjects of such investigations and allegations.

This article is focused on NHDES’s regulation of wetlands and, specifically, NHDES’s current efforts at overhauling its wetlands administrative rules.  In 1989, the New Hampshire legislature enacted a wetlands protection statute that has since been amended several times.  The wetlands protection statute is contained in our State law as RSA 482-A, which you can easily find by searching “RSA 482-A” online or by going directly to the NHDES website.  RSA 482-A requires NHDES to adopt administrative rules to flesh out the details of the statute.  Both the statute and the administrative rules are law.  NHDES is currently in the process of heavily revising the current version of the wetlands rules.

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How To Protect Your Land And Reduce Your Taxes

By: Jason D. Reimers, Esq.

A conservation easement deed is a contract by which a landowner conveys the development rights of the land to a land trust or government agency.  A conservation easement lasts forever and is a way to conserve open space, farmland, scenic views, and other natural resources.  After a conservation easement is conveyed to a land trust, for example, the landowner continues to own the land.

A conservation easement deed is a negotiated document, by which I mean that a landowner and land trust reach an agreement about what uses will be allowed and not allowed on the property.  More often than not, the landowner continues to use the land in much the same way as prior to the easement.  The conservation easement deed will almost always require that the easement holder (i.e., the land trust or government agency) regularly monitor the property to ensure that the terms of the easement are being followed and that no one, such as a neighbor who builds a shed over the property line, is violating the easement.

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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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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.