HB578: (New Title) relative to the current use advisory board and relative to construction or development constituting a change in use for purposes of assessing the land use change tax.

HB 578 – AS AMENDED BY THE HOUSE

04Jan2006… 0159h

2005 SESSION

05-0874

10/01

HOUSE BILL 578

AN ACT relative to the current use advisory board and relative to construction or development constituting a change in use for purposes of assessing the land use change tax.

SPONSORS: Rep. Hess, Merr 9

COMMITTEE: Environment and Agriculture

AMENDED ANALYSIS

This bill clarifies the criteria for the determination by assessing officials of when current use land being developed is subject to the land use change tax.

The bill also permits the vice-chair of the current use board to act in the chair’s absence.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04Jan2006… 0159h

05-0874

10/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT relative to the current use advisory board and relative to construction or development constituting a change in use for purposes of assessing the land use change tax.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Current Use Advisory Board; Vice Chair. Amend RSA 79-A:3, IV to read as follows:

IV. The board shall annually elect [one of its members as chairman] from its members a chair and a vice-chair who shall serve in the chair’s absence with all associated responsibilities, including rulemaking.

2 New Section; Current Use; Contiguous Parcels. Amend RSA 79-A by inserting after section 4 the following new section:

79-A:4-a Contiguous Parcels.

I. Parcels of land that are contiguous and under the same ownership, as defined by the board, shall be considered one tract of land for purposes of determining whether any area within such tract meets the criteria for open space land established by the board. This standard shall be applied when determining:

(a) Eligibility for current use assessment under RSA 79-A:5; and

(b) The existence and extent of a change in use under RSA 79-A:7.

II. Paragraph I shall apply to contiguous parcels whether or not they are part of a subdivision or other similar type of development.

3 Current Use; Land Use Change Tax. Amend RSA 79-A:7 to read as follows:

79-A:7 Land Use Change Tax.

I. Land which has been classified as open space land and assessed at current use values on or after April 1, 1974, pursuant to this chapter shall be subject to a land use change tax when it is changed to a use which does not qualify for current use assessment. Except as otherwise provided for in this section, a change in use has occurred to any portion of land under current use assessment if it no longer meets the criteria for open space land established by the board due either to actual physical changes made to such land or minimum acreage requirements not being met. Unless the change in use is due to not meeting minimum acreage requirements, only the land area on which the actual physical changes took place shall be considered changed in use. The amount of land which has changed in use under this section shall be determined according to rules adopted pursuant to RSA 541-A by the chair of the board, based upon the recommendation of the board. A change in use shall occur only as provided for in this section and land not changed in use shall remain under current use assessment.

I-a. Notwithstanding the provisions of RSA 75:1, the tax shall be at the rate of 10 percent of the full and true value determined without regard to the current use value of the land which is subject to a non-qualifying use or any equalized value factor used by the municipality or the county in the case of unincorporated towns or unorganized places in which the land is located. Notwithstanding the provisions of RSA 76:2, such assessed value shall be determined as of the [actual] date [of the change in land use] prescribed in paragraph I-b if such date is not April 1. This tax shall be in addition to the annual real estate tax imposed upon the property[, and shall be due and payable upon the change in land use]. Nothing in this paragraph shall be construed to require payment of an additional land use change tax when the use is changed from one non-qualifying use to another non-qualifying use.

[I-a. Land which is classified as open space land and assessed at current use values shall be assessed at current use values until a change in land use occurs pursuant to RSA 79-A:7, IV, V, or VI.]

I-b. The full and true value of land that has changed in use shall be based on its highest and best use as of the date the actual physical change began or the minimum acreage requirements were not met. The date upon which actual physical change began on a specific parcel of land shall be when road construction, utility installation, site excavation or grading, or any other act on such parcel integral to a construction or building project commenced, provided that all required local, state, or federal approvals were received prior to the commencement of activities. In the event that these activities commenced prior to receipt of all required approvals, the assessing officials may delay the assessment of the land use change tax until all required approvals have been secured, or illegal actions remedied. In addition, the assessing officials may determine the full and true value of such land based on the highest and best use of the land as of this later time.

I-c. The provisions of this section shall be applied in the same manner whether a construction or building project takes place on a solitary parcel or on one that is part of a subdivision or other similar type of development.

II. The land use change tax shall be due and payable by the owner at the time of the change in use to the town or city in which the property is located. If the property is located in an unincorporated town or unorganized place, the tax shall be due and payable by the owner at the time of the change in use to the county in which the property is located. Moneys paid to a county from the land use change tax shall be used, in addition to any other funds, to pay for the cost of the services provided in RSA 28:7-a and RSA 28:7-b. The land use change tax shall be due and payable according to the following procedure:

(a) The commissioner shall prescribe and issue forms to the local assessing officials for the land use change tax bill which shall provide a description of the property which is subject to a non-qualifying use, the RSA 75:1 full value assessment, and the tax payable.

(b) The prescribed form shall be prepared in quadruplicate; the original, duplicate, and triplicate copy of the form shall be given to the collector of taxes for collection of the land use change tax along with a special tax warrant authorizing the collector to collect the land use change tax assessed under the warrant; the quadruplicate copy of the form shall be retained by the local assessing officials for their records.

(c) Upon receipt of the land use change tax warrant and the prescribed forms, the tax collector shall mail the duplicate copy of the tax bill to the owner responsible for the tax as the notice thereof. Such bill shall be mailed, at the latest, within 12 months of the date upon which the local assessing officials receive written notice of the change of use from the landowner or his agent, or within 12 months of the date the local assessing officials actually discover that the land use change tax is due and payable. Upon receipt of payment, the collector shall forward the original tax bill to the register of deeds of the county in which the land is located for the purpose of releasing recorded contingent liens required under RSA 79-A:5, VI. The tax bill shall state clearly whether all, or only a portion, of the land affected by the notice of contingent lien is subject to release. The recording fee charged by the register of deeds shall be paid by the owner of the land in accordance with the fees to which the register of deeds is entitled under RSA 478:17; 478:17-f or 478:17-g, I as applicable.

(d) Payment of the land use change tax, together with the recording fees due the register of deeds, shall be due not later than 30 days after mailing of the tax bills for such tax, and interest at the rate of 18 percent per annum shall be due thereafter on any taxes not paid within the 30-day period.

(e) All land use change tax assessments levied under this section shall, on the date of the change in use, create a lien upon the lands on account of which they are made and against the owner of record of such land. Furthermore, such liens shall continue for a period of 18 months following the date upon which the local assessing officials receive written notice of the change of use from the landowner or his agent, or the date the local assessing officials actually discover that the land use change tax is due and payable, and such assessment shall be subject to statutory collection proceedings against real estate as prescribed by RSA 80.

(f) Thereafter, the land which has changed to a use which does not qualify for current use assessment shall be taxed at its full RSA 75:1 value. The land shall again become eligible for current use assessment if it meets the open space criteria established by the board under RSA 79-A:4, I.

III. Whenever land of nonuniform value shall be subject to the land use change tax under this section, or whenever the full value assessment for the land subject to the tax shall not be readily available then the local assessing officials shall assess the RSA 75:1 full value of such land and the land use change tax shall be paid upon such assessed value.

IV. [For purposes of this section land use shall be considered changed and the land use change tax shall become payable when:

(a) Actual construction begins on the site causing physical changes in the earth, such as building a road to serve existing or planned residential, commercial, industrial, or institutional buildings; or installation of sewer, water, electrical or other utilities or services to serve existing or planned residential, commercial, industrial, institutional or commercial buildings; or excavating or grading the site for present or future construction of buildings; or any other act consistent with the construction of buildings on the site; except that roads for agricultural, recreational, watershed or forestry purposes are exempt.

(b) Topsoil, gravel or minerals are excavated or dug from the site; except:

(a) In addition to the provisions of paragraph I, land use shall be considered changed when topsoil, gravel, or minerals are excavated or dug from a site; except:

(1) Removal of topsoil in the process of harvesting a sod farm crop in amounts which will not deplete the topsoil; and

(2) Removal of gravel and other materials for construction and maintenance of roads and lands for agricultural and forestry purposes within the qualifying property of the owner or, with the approval of local authorities, to other qualifying property of the owner.

(b) Sale of excavated materials shall constitute a land use change of the property from which the material was excavated. The site shall be reclaimed when the construction or maintenance project is completed to mitigate environmental and aesthetic effects of the excavation. Both project completion time and acceptability of reclamation shall be determined by local authorities. The owner shall keep local officials informed in writing of plans to remove and use of soil material from qualifying lands for purposes of this subparagraph and to assure conformance with any local ordinances, as well as plans for reclamation of the site. Fully reclaimed land shall be eligible for current use assessment if it meets open space criteria established by the board under RSA 79-A:4, I, whether or not such land was under current use assessment prior to the excavation.

(c) By reason of size, the site no longer conforms to criteria established by the board under RSA 79-A:4, I.]

V. [The amount of land which has changed to a use which does not qualify for current use assessment and on which the land use change tax shall be assessed in the circumstances delineated in RSA 79-A:7, IV shall be according to rules adopted pursuant to RSA 541-A by the chairman of the board, based upon the recommendation of the board. Except in the case of land which has changed to a use which does not qualify for current use assessment due to size, only the number of acres on which an actual physical change has taken place shall become subject to the land use change tax, and land not physically changed shall remain under current use assessment, except as follows:

(a) When a road is constructed or other utilities installed pursuant to a development plan which has received all necessary local, state or federal approvals, all lots or building sites, including roads and utilities, shown on the plan and served by such road or utilities shall be considered changed in use, with the exception of any lot or site, or combination of adjacent lots or sites under the same ownership, large enough to remain qualified for current use assessment under the completed development plan; provided, however, that if any physical changes are made to the land prior to the issuance of any required local, state or federal permit or approval, or if such changes otherwise violate any local, state or federal law, ordinance or rule, the local assessing officials may delay the assessment of the land use change tax until any and all required permits or approvals have been secured, or illegal actions remedied, and may base the land use change tax assessed under RSA 79-A:7 upon the land's full and true value at that later time.

(b)]When land, though not physically changed, is used in the satisfaction of density, setback, or other local, state or federal requirements as part of a contiguous development site, such land shall be considered changed in use at the time the development site is changed in use.

VI. [For purposes of this section,] Land use shall not be considered changed [and the land use change tax shall not be assessed] when:

(a) Land under current use is taken by eminent domain or any other type of governmental taking which would cause the use change penalty to be invoked because, by reason of an actual physical change or by reason of size, the site no longer conforms to criteria established by the board under RSA 79-A:4, I.

(b) Land abutting a site taken by eminent domain or any other governmental taking upon which construction is in progress is used to stockpile earth taken from the construction site. Stockpiled earth may be removed at a later date after written notification to the appropriate local official.

(c) Land accorded current use assessment in one category is changed in use to any other qualifying category.

(d) Land under current use assessment is eligible for conservation restriction assessment pursuant to RSA 79-B. Such land shall then be allowed to change from current use assessment to conservation restriction assessment with no land use change tax being applied.

(e) Roads are constructed for agricultural, recreational, watershed, or forestry purposes.

VII. When land which is accorded current use assessment in one category is changed in use to any other qualifying category as provided in subparagraph VI(c), the owner of the land shall notify the local assessing officials in writing of the change in use at the time that the change in use is made. If a land owner fails to provide the notice required under this paragraph, he may be fined not more than $50 at the discretion of the town or city.

4 Effective Date. This act shall take effect 60 days after its passage.