Most people love being Grandfathers and Grandmothers, though they may not like it when they first qualify for the branding. Well, in waterfront real estate being “grandfathered” is good thing too. So, what is “grandfathered” and how is it established?
What is “Grandfathered”?
In its most basic sense, “grandfathering” occurs in New Hampshire because new zoning and land use laws cannot be considered retroactive. So as a property owner, once you construct something which meets all laws and zoning of the time, new regulations cannot result in your having to tear down your asset. This is a fundamental protection of property owner rights. An example of “grandfathering” being held up in court is demonstrated in the case: Cohen v. Henniker, 134 N.H. 425, 427 (1991). “A use of land which, at the time a restriction on that use went into effect, was established (or ‘vested’), and has not been discontinued or abandoned, can continue indefinitely, unless it includes activity which is a nuisance or harmful to the public health and welfare; but the use cannot be changed or substantially expanded without being brought into compliance."
Examples of what can become grandfathered on or near the water:
• Docks, and their construction type
• Lawns, patios and cleared spaces
• House and accessory structure footprints
• Non-conforming living space
Establishing if something is “Grandfathered” on the water
Since this comes up a lot in waterfront purchases, let’s use a real world example. Boathouses are the crown jewel up here in the lakes region. (Here are some Boathouses on Lake Winnipesaukee!) If you are purchasing a property with a boathouse, you must be satisfied about one of two criteria. First, if the structure can be proven to exist without alteration, prior to July 2, 1969, then it is most likely “grandfathered”**. Second, if the construction happened after July 2, 1969 and permits can be produced to show the structure in its current location, size and configuration, then it’s also most likely “grandfathered”.** Grandfathered structures can be maintained, but in most cases have to be kept in the same place without altering the structure’s size or configuration**. Be careful of boathouses that may have grown over time or suddenly have finished space that was not permitted.
How can you provide evidence a structure was built prior to 1969? There are a number of ways the State has, in the past, accepted a structure as being “grandfathered”. The DES considers statements given by neighbors about their use of the boathouse when they were kids. They listen to the fact that the neighbors played on the dock, and it was the same size and in the same location as it is now. They look at old photos, maybe a picture of the family from 1955, which has the boathouse in the background. Any evidence that places the boathouse construction before 1969 can be produced and considered.
Two fatal errors
Well……… two choices that can negate a grandfathered status. One is abandonment; if a property owner stops using a property in a grandfathered way or takes down a structure that was grandfathered for a period of time, then the grandfathered status is relinquished. The second way a grandfathered structure can be lost, is if they owner wants to change the size, location or configuration of the asset, they may have to give up the grandfathered status and build to current regulations.
Bottom line, being “grandfathered” is good and adds value to a property; you just want to make sure that what is represented as grandfathered is indeed true.
**This article is intended to give a basic explanation of grandfathered assets. If you have a question about this subject as it relates to your property or a property you are considering for a purchase, please consult an expert on shoreland permits….I do. The rules change too fast and vary from town to town. If you would like me to share with you the professionals I trust, please do not hesitate to contact me. firstname.lastname@example.org