Tamworth select board pauses review of small-lot conservation tax breaks after legal questions raised

The Tamworth Select Board on March 25 agreed to delay decisions on several conservation-restriction (PA 60 / RSA 79‑B) applications for properties around Shakoor (Chikora) Lake after staff and the town attorney said they need more documentation from prior appeals and clearer parcel maps.

The board’s discussion centered on whether deeded “conservation covenants” recorded by the Shakoor Lake Conservancy (CLC) automatically satisfy the state statutory test in RSA 79‑B for a tax benefit. Emily (town administrator) told the board that some lots in the basin received tax treatment decades ago, and two parcels (listed in the meeting materials as parcel 402‑5 and 402‑8) were previously upheld by the New Hampshire Board of Tax and Land Appeals. But supporting files for that BTLA decision are missing from the town’s files, the administrator said, and the board needs the full BTLA record to understand the legal reasoning.

Why the matter matters: If parcels that are substantially developed are nonetheless allowed the conservation‑restriction tax treatment, other nearby property owners can reasonably ask for the same benefit. That creates a fiscal exposure for the town and raises questions about consistent application of the statute, board members said.

Main points of the discussion

- Statutory standard: Town staff read aloud the state criteria in RSA 79‑B that an applicant must meet—permanent restriction, recorded instrument, and public benefit shown by one or more enumerated tests (public access, habitat, scenic enjoyment from a public way or waters, historic significance, etc.). Staff emphasized that a deeded covenant recorded with the CLC is not automatically the same as the statutory conservation restriction that can trigger a tax benefit.

- Existing approvals and missing files: The board learned two Shakoor/Chikora Lake parcels (cited in meeting materials as 402‑5 and 402‑8) had BTLA rulings in the town’s favor about 20 years ago. Emily said the BTLA’s supporting documentation appears to have been destroyed per that agency’s records‑retention rules, leaving only a final order. The lack of the underlying factfinding meant staff could not replicate the prior analysis.

- How small lots were treated: Applicants and neighbors described how past applicants (including Peter Whipple and another long‑time resident) removed the developed “footprint” (house, driveway, immediate curtilage) from the parcel and kept the remainder in a conservation restriction. Several property owners said the state accepted such carve‑outs when the remaining acreage met RSA 79‑B’s open‑space and public‑benefit tests. Town assessor Rod (as described in the meeting) had recently re‑reviewed the files and flagged a set of lots under 10 acres that may not meet the statute.

- Questions staff will pursue: The board directed staff to try to obtain the BTLA files or other contemporaneous documentation for the earlier rulings, to compile the original applications and maps that were submitted by existing recipients, and to ask the Shakoor/Chikora Lake Conservancy for copies of recorded deeds so the town can compare the covenant language with RSA 79‑B requirements. Staff also said the assessor would map the “carved‑out” developed footprints on the contested lots so the town can see the remaining acreage that was put under restriction.

What the board decided

No parcels were denied or rescinded. The board voted to delay formal action and asked staff to gather documents, record maps showing carved‑out footprints, and consult the town attorney before the next meeting. Staff indicated there is a practical deadline for applicants, so they will move quickly to find the records and report back.

Who spoke (selected)

- Emily [last name not specified], Town Administrator (town staff) - Peter Whipple, property owner (public commenter/applicant) - Alex Moot, director, Shakoor/Chikora Lake Conservancy (CLC) (invited expert) - Rod [last name not specified], Town Assessor (town staff)

Clarifying details

- Multiple parcels around the lake were described in the meeting materials; the two parcels previously ruled in the town’s favor at BTLA were identified in staff notes as 402‑5 and 402‑8 and are approximately 5–6 acres each (exact acreages were discussed as “less than 10 acres” in the meeting). - Applicants said prior approvals relied on carving out house footprints and driveways (curtilage) and placing the remainder into a conservation restriction; applicants referenced a typical curtilage of about 0.6 acres in one example. - The town cannot find the BTLA supporting documents; Emily said BTLA retains records for a statutory period and older materials may have been destroyed.

Community relevance and next steps

The Select Board emphasized fairness across taxpayers and said it will balance conservation goals with statutory limits on the tax benefit. Staff will assemble earlier application packages, request recorded deed language from the CLC, and seek legal guidance about the BTLA precedents and the 2010 New Hampshire Supreme Court decision (Manchester Water Works v. Auburn) cited by a conservation commissioner during the meeting. The board expects a follow‑up report at a future meeting; no rescissions or new approvals will be made until after staff completes that review.