Property Rights

1997 Benchmark Article
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Setting the Ancient Marker This article, by Hank Amsden (2 Union Street, Concord, NH. 03301), is from The Benchmark (a publication for land surveyors), Volume 18, Number 3, Winter, 1997. Mr. Amsden is a member of the New Hampshire Land Surveyors Association and was elected as a Fellow in 1993 by the Association based in part on his civil rights stands. He has published other books and articles, is a lecturer, and is active in VOCALS (Victims Of A Corrupt American Legal System). This article contains insight into Ken Blevens's personal experience with the arrogance and nastiness of government bureaucracies and shows clearly why his consistent, continual fight for property rights is so important.

To Fellow Angle-Turners and Others who Muse upon the Worlds Second-Oldest Profession

The "ancient landmark," which the biblical writer cautioned us not to remove, presumably appears on many an old clay tablet found within the domain of Saddam Hussein. Following NHLSA rules today, we would now neatly enscribe with our stylus on the unbaked clay map, near each stone (or other suitable monument used in the ancient Near East) the familiar note, "Found", or "Set, on the 3rd day of the 4th month in 14th year of the reign of Hammurabi." I assume there is general agreement today that we perform at least the following two functions: (1) the boundary, or perimeter, survey of real property, and (2) the subdivision of such surveyed portions of the earth's surface into smaller, mathematically-defined parts of the originally surveyed whole.

These two functions are the current subject of New Hampshire law, RSA 310-A (us, remember?) and RSA 672, 674 (the enabling legislation for planning boards,etc., right?). But there's a third surveying-related activity which has recently become the subject of legislation: the combination, or consolidation of previously subdivided parcels into one larger lot. This last, or law of "Voluntary Merger," received legislative attention in 1995 (cf. RSA 674:39a). But we've already gone too far.

Who said that surveyors subdivide land? Who said that we consolidate land? Once we've prepared a subdivision plan, is anyone likely to find an LLS writing a deed in that LLS's name from a plan he prepared, a survey and subdivision of some other party, namely 'the client'? What do you suppose would happen at the registry of deeds if you--yeah, you, the angle-turner--show up with a deed in hand to record which consolidates several lots, a deed based on a plan which you recently prepared, but to which the fee is held by some other party, namely, the guy who paid the bill? [Would it be recorded?] I think not.

Well, how about your local friendly planning board, do planning boards subdivide land? Are there deeds on record from planning boards, conveying land off of one of our plans which that board recently approved and recorded, but owned by the guy who paid the bill? Not likely. Well, gals and guys, it's a shame to point this out, but the bottom line is pretty plain.

We don't subdivide land, nor do planning boards. Fee-owners (read my lips, people) do the subdividing. Planning boards and surveyors don't consolidate anything. The person with the checkbook does. Sorry, we only do the measuring.

Since this so-far-puzzling tale is intended as a follow-up to matters we discussed at a recent quarterly (3/21/97, Yoken's), let's cut to the chase and ask a fundamental question: Is the approval of a subdivision plan by a duly constituted planning board mandatory regarding subsequent conveyancing or merely permissive? Let's take an example.

Our client owns a two-acre lot in a one-acre zone with twice the required frontage. You survey same and show a subdivision into two lots, which plan is duly approved by the local board. Question: Can your client, after approval and recording, nevertheless convey the two-acre lot, using the same instrument language which existed prior to approval? Sure,why not?

After all, RSA 674:35, II merely gives the board authority to regulate the subdivision of land (underlining mine) and, to my limited knowledge of statutory and case law, nothing in the RSA's precludes the landowner from conveying the same two-acre lot at will. It remains one piece of land until the record owner writes a deed for one of the lots. Let's try this one more time.

Suppose your client started with two adjoining one-acre lots with distinct sources of title and wished to combine, or consolidate, them pursuant to your plan. Question: Can your client, after approval and recording, nevertheless decide to use the old deeds and convey one or both to one or two distinct grantees? The burden of proof appears to be on those who say "nay."

In fact, the naysayers will be hard pressed to find support in the recent statute: "Any owner of 2 or more ... lots ... wish[ing] to merge them ... may do so by applying to the planning board...." (RSA 674:39-a) The customary imperative "shall" is conspicuously lacking from the legislative intent expressed here. Worse yet, "No new survey plat need be recorded." Horrors! Where was our legislative committee when this thing passed? How true it is that "no [surveyors] life, liberty, or property are safe while the legislature is in session."

In fact, what little case law seems to exist on this subject suggests caution on the part of those who would willy-nilly extend the jurisdiction of government agencies: "The power of a planning board to grant or deny subdivisions must be confined by adequate standards. Whatever authority a planning board has exists only by virtue of a statutory delegation of power...". Purington v. Manchester, 86-E-990, Hillsborough Cty.Sup.Ct., 1987, Goode, J., p. 1. It seems that the Manchester board had denied Purington's application on the basis of their view that it was "inconsistent and inappropriate with the surrounding neighborhood...".(ibid.) Judge Goode's evident displeasure at what he termed another instance of Manchester's "exercise [of] ultra vires authority" (p. 3) was clearly evident in his brief, pithy opinion: "The planning board apparently is unwilling to accept or unable to understand that while it has considerable discretion in the exercise of its authority to review subdivision applications, its powers are not unlimited. It may not withhold approval if the subdivider has complied with existing zoning regulations; it may not withhold approval based on standards not authorized by the enabling statute, or upon the possible impact of the proposed plan on land value. Accordingly, any denial of this application based on its being 'inconsistent and inappropriate' is an unlawful exercise of the Board's discretion." (p. 2) [emphasis mine, underlining in original]

Oddly enough, the same sagacious justice ruled in another related case,this time dealing with the issue of consolidation. Although the relevant board was the "Zoning Board of Adjustment" (Candia), the apparent involuntary merger (as so found by the Zoning Board) of several lots owned by Plaintiff, Richard Snow, unreversed, would have resulted in him appearing, hat-in-hand and upon bended knee, before Candia's planning board. Candia's candor in squarely stating the issue is most refreshing: "[T]he parcels you had bought separately 24-30 years ago had been consolidated--BY THE TOWN--into one lot many years ago ..." (Candia selectmen-Snow, 7/10/92) [enhancements mine]

An impermissible fiat act by the town, noted by Judge Goode: "The Town of Candia consolidated plaintiffs contiguous, separately deeded lots of land...and then treated that consolidation of separately deeded lots as a conversion to a single parcel of land for purposes of...zon[ing]..." (Snow v. Candia, 92-E-552, Rockingham, 1995, Goode, p. 1) Snow protested in unmistakably clear language: " 'I don't want to go to the Planning Board with this,' Snow replied, 'I just feel what I'm doing is right. I bought these lots separately. I don't want to pay subdivision fees for lots I have separate deeds to.' " (Undated newspaper article by "Barbara Jester," newspaper unknown, found in file, RCRD)

When the Purington justice ruled, it was clear that his displeasure had hardly cooled since '87: "It is unfortunate that so much time and needless expense has been engendered by both parties in this matter." (supra, p. 4) Neither statute--RSA 75:9 (appraisal of 2 tracts in common ownership)--nor case law--Fearon v. Amherst 116 NH 392, 1976, cf., brief of Barton Mayer, Upton, Sanders & Smith, Concord--availed the incautious selectmen of Candia: "[T]he consolidation of these individual lots by the town into a single parcel for the purposes of zoning denies Mr. Snow his right to use and dispose of these individually deeded lots.... Treating Mr. Snow's separately deeded acreage as a single zoning lot is clearly unreasonable. When a restrictive policy, regulation, or ordinance as applied to a particular piece of land is unnecessary to accomplish a legitimate public purpose, or the gain by such a restriction to the public is nonexistent or slight but the harm to the citizen and his property is great, the exercise of the municipality's police power becomes arbitrary and unreasonable, and judicial intervention will afford relief under the constitution of this state." (supra, p. 6)

Now its time for Judge Goodes bottom line of constitutional rights: "The interest of citizens in their private property must be respected and protected from unreasonable restrictions which deprive them of the reasonable use of their land... It follows therefore that unreasonable interference with any one of these rights constitutes a taking even though physical possession remains in the owner... I find the town's practice in this case to be constitutionally frail and accordingly unlawful. Mr. Snow's rights with respect to the use, enjoyment, and right of alienation of his deeded lots here in issue are not determined or otherwise limited by what may be lawfully depicted on the Candia tax maps which are prepared for the limited purposes authorized under the provisions of RSA ch. 75.... [T]he question raised by these proceedings is when Candia consolidated Snow's adjoining tracts of land for tax purposes, did such consolidation also constitute a merger of such lands into a single tract for purposes of zoning? Under the circumstances of this case, THE ANSWER IS NO." (supra, pp. 4-6, enhancements mine)

OK, now were ready for Mr. Kenneth Blevens (Bow, NH.) and a real live one. Recall (if you can; don't worry, I had to look, too) from that quarterly back on 3/21/97 that Blevens had submitted a plan to the Bow Board showing four new building lots with some 32 acres remaining between the back line of the lots and the Dunbarton town line. That the back land was held in three different deeds is still evident on Pete Holden's plan, since Lot numbers "28A,", "27-E,""26-B," etc., retain the original lot numbers assigned by the town when Blevens purchased Lots 28, 27, and 26 from distinct title chains many years before. Although Pete's people wrote on the upper left-hand corner, "Number of Building Lots 5," the landowner's signature, "Blevens" below merely certifies that "the lands subdivided on this map are owned by title of record [etc.]," and the terms "merger," "consolidation," "combination" are conspicuously absent from the entire plan. However, the back land is shown as "LOT 27 32 ACRES " even though the remainder of Lot 27 (not encompassed by the new building lots) is closer to 26 acres.Thus, if Blevens had so intended, the lumping of all three remainders into Lot 27 and the resulting combined acreage of 32 would have been consistent with that intent.

But there's a problem with assuming that Blevens intended to consolidate--in fact, quite a few:

1, Blevens does not recall instructing Pete's people regarding just how the back land should be depicted. An earlier plan by Harold Fosher of the same area merely shows "Blevens" in back of the new lots and makes no effort to show all the back land. The practice of schematically representing the remaining property on subdivision plans was S.O.P. among us at the present time. With some boards a waiver is occasionally required in order to obviate extensive and gratuitous surveying costs. Holden's depiction of the 'back 32' is entirely consistent with good surveying practice.

2, Again, "merger," "consolidation," "combination," etc., cannot be found on the approved plan of record.

3, No copy of the original application is available, nor is there any evidence to suggest that any reference to the terms listed above would be found therein.

4, Two affidavits in my possession from members who sat on the Bow board at the relevant time track the temper of that time. I have quoted them selectively as they closely coincide: Affidavit of Carroll French, May 22, 1997

A, "The Bow ... Board never scheduled any public hearing at which to consider . the consolidation of historic lots 26, 27, and 28."

B, "The Bow Planning Board never received a request from...Blevens...asking that the...Board...consider consolidating historic lots 26, 27, and 28."

C, "No discussion of consolidating historic lots 26, 27, 28 ever took place at [the relevant board meetings]."

D, "No vote was ever taken at an official ...Board meeting to consolidate historic lots 26, 27, and 28."

E, "As a matter of procedure, 'lot consolidation' was never done tacitly. Lot consolidation always required an affirmative request or a stated act by the owner."

Affidavit of Alfred Ward, June 18, 1997

A, "As a matter of procedure, any plan brought before the...Board for the purpose of consolidating lots, would always be accompanied by an application noting or requesting that the lots be consolidated."
B, "To the best of my knowledge, no notice of any kind was ever sent by the...Board to...Blevens...notifying him of any plan on the part of the Board to consolidate historic Lots 26, 27, 28 into a single lot...."
C, "To the best of my knowledge, no vote was ever taken at an official...Board meeting to consolidate historic lots 26, 27, 28."
D, "As a matter of procedure, any lot consolidation would always be reflected in the title block of the plan under consideration by the...Board."

5, Our outgoing 'el presidente' himself pitched in: (14:B-E and 17) "[There was] no public notice.... [There was] no time...ever allocated...to discuss[, and] no discussion of consolidating [ever took place, and] no vote...[was] ever taken...to consolidate historic lots 26, 27, 28 [at the relevant board meetings, 1977]." "Lot consolidation was never done tacitly. Lot consolidation has always required an affirmative request or a stated act by the owner." (Affidavit of Morris Foote, August 13, 1997)

6, Of course, RSA 674:39-a (eff. 1995) was only a wink in some legislators eye in 1977. But even if it had been adopted, remember that its provisions are entirely voluntary and "no public hearing or notice shall be required...No new survey plat need be recorded." But Bow had no provisions (that I can find) for regulating the process of lot consolidation. If it did, it could be easily argued that such demands on a land owner would be without statutory foundation.

7, But Bow's subdivision ordinance contained at least the usual shark's teeth for surveyed dimensions, the kind of requirement that the courts have always found reasonable, i.e., the usual request to dimension by bearing and distance. Thus, if our subject plan had proposed subdividing the 'back 32,' Bow's 1977 requirements for a subdivision would have nailed Holden & Co. Let's take a look:

a, What is actually the remainder of Lot 26 is shown with dashed lines but no bearings or distances.

b, The line between Lot 27 and 28 is missing since its locus was unknown to Blevens in 1977 and later became the subject of a boundary agreement.
QUESTION: If the interior lot lines to be subdivided are not dimensioned, how can Bow approve the plan?
QUESTION: If an interior (or new) lot line is not even shown on a given plan, how can it pass muster?
QUESTION: If a given plan won't pass muster for subdivision (the regulation of which is supported by statutory provisions), how can it squeak by consolidation for which the statutes are silent?

c, But that's not all--The exterior lines of the 'back 32' are entirely undimensioned, including the Dunbarton/Bow Town Line. I count some 14-15 undimensioned lines, including a gaggle of tangents and curves near Putney Road, with mere graphic depiction.
QUESTION: If "BLOCK 3 LOT 27 32 ACRES," (the back 32) is a new proposed consolidation on the subject plan, why is it totally undimensioned? What kind of sloppy procedures let this one through? OK, so we know what's not supposed to be done. What was done, back in the old days?

Lets look at how they used to do it without the interference of planning boards: In Milford, a party acquired two adjoining lots on the southeast side of Rte. 101. When the two lots were conveyed on the same deed, a new description was written all around the exterior of the two lots, with angle or stopping points at the common corners of the original lots. The intent to convey one consolidated parcel was clear: "These two parcels adjoin each other and are now described as one parcel." (Paddock Wheeler, Vol. 1058, P. 256, HCRD, 1944)

More recently and also in Milford a party filed a "CAVEAT-LOT CONSOLIDATION" in Nashua, citing ownership of "Map #040, Lot #022," and "Map #040, Lot #022-001," agreeing that "the above 2 parcels of land shall...be considered a single lot and...shall not be sold separately...except with the prior approval of the Milford Planning Board in accordance with its duly adopted subdivision regulations." (Ingeborg I. Chlypawka, Vol. 5324, P. 1925, 3/24/92) Although the foregoing precisely anticipates RSA 674:39-a, I see no citation or reference to planning board procedures in what appears to be merely a one-page affidavit, recorded @ HCRD. If you carefully read our president's affidavit of 8/13/97 you will find that he presented a plan (in 1977) about 30 days before the Blevens matter, which plan included "the combining of two separate lots."

At this point I must recognize that any brave soul who has read thus far will soon begin to ask where all this is heading. The answer to that query is contained in the minutes of the Bow Board meeting which took place on October 3, 1991: "Mr. Kenneth Blevens, Putney Road...In August, 1977 Lot 1, (28A) was combined and there was a 4 lot subdivision."

NOTE:

1, Blevens was not notified of this meeting.

2, He only learned of this action through a letter from board chair Thomas Pelletier, 10/7/91, five days later.

3, Prior to 10/3/91 he had conveyed two of the remainder lots to one son and the other to a second son

4, Because the Town and its counsel believed the lots "w[ere] combined" in 1977, they took the position that he had now illegally subdivided by virtue of the two conveyances to his children.

5, Litigation began in 1992 and continues to this day (an appeal is pending in our Supreme Court)

6, Fines and penalties sought were over $30K

7, Legal fees to date (Blevens only), are over $69K.

8,The Court (Merrimack, McGuire, J.) ordered a forced 'reconveyancing' of the son's deeds, which she had declared void.

9, At one point the Blevens family, grantor and grantees alike, were threatened with a visit to the slammer if the forced reconveyancing was not promptly executed.
But look folks, this is 1997, not 1697. What sort of medieval system of law could have survived our parting with 'Star Chamber' tactics to produce this mountain of nonsense from such a microbic molehill? And why are we talking about this? Because I sense that this foregoing scenario is not peculiar to New Hampshire and that there are other colleagues out there with whom we need to meet and with whom we must discuss certain ominous current trends in real estate law. Because I have been made aware of certain legal maneuverings in this particular matter which exemplify the need for the kind of clear spatial and procedural thinking which I believe to be exhibited by seasoned surveyors. Because I believe that statutory law is the very will of the people, including angle-turners such as ourselves, and because the people's will continues to be thwarted by parties who know better, matters such as the Blevens catastrophe point to the duty of our profession to speak out on matters of real property. We've been 'finding' and 'setting' the ancient landmarks since the days of Nimrod. Its time to get NHLSA, ACSM, NSPS and any number of other LSAs informed and working together on this and other kindred subjects and perform a valuable service for a puzzled public. Its time to reset the ancient landmark. ----------Concord, NH Nov. 17, 1997.