Discretionary Easement Information

Discretionary Easements

Discretionary Easements are a means of reducing property taxes on a parcel of land that is less than ten acres in size, which does not qualify for current use, but which has certain other characteristics which the town desires to preserve. These characteristics are broadly defined in NH RSA 79-C3.

In order to qualify for a discretionary easement the following must occur:

  1. Complete a Discretionary Easement Application with the town Tax Assessor.
  2. The Conservation Commission will review the application and make a favorable recommendation to the Town Council.
  3. The Town Council will approve or deny the request. The Town Council is allowed by NH law to deny requests based solely on the loss of tax revenue.

Derry Conservation Commission

Discretionary Easement Review Criteria

This policy will be used by the Conservation Commission to make recommendations to the town council on whether an applicant’s land qualifies for a discretionary easement by meeting the tests of demonstrated public benefit under RSA 79-C:3 II section (a), (b), and (c).

Applicant can qualify using any one of the following sections: A1, A2, B, or C.

RSA 79-C:3 Qualifying Land

II. (a)(1) General Public has regular opportunity for access to and use of the land for pedestrian purposes

To qualify the land must meet the first two criteria (under (a) (1)) AND at least one other of the following conditions:

  • Land must NOT be Posted NO TRESPASSING
  • Upon acceptance by the Town Council, the applicant must agree to list their property in the Derry Public Library document: Discretionary Easements Lands for Public Use (This document will be developed).
  • Parking area for the public with a sign stating public use.
  • Trail or access road for public use with a sign stating public use.
  • Sign located on a public way stating public use.

II. (a)(2) and the land has conservation and recreational values which make it attractive for public use.

To qualify the land must provide at least one conservation and one recreational value:

Conservation Values:

  • Contain a pond, brook, or marsh which contains fish, other aquatic wildlife, waterfowl, or other wildlife.
  • Land contains a native ecological community type that is considered by New Hampshire Natural Heritage Inventory to be locally rare or rare in NH.
  • Contain a stand of mature or old growth trees, over 60 years old which is larger than 2 acres in size.
  • Land is regularly used by school or non-profit conservation groups, such as but not limited to the NH Audubon Society, for education of the school children or the general public regarding native flora and fauna, wetland or terrestrial ecosystems, or significant historical uses of the land.
  • Is a registered tree farm.
  • Parcel is part of a working farm.

Recreation Values:

  • Fishing is permitted by the public.
  • Hunting is permitted by the public.
  • Public access is allowed for boating (boat or canoe launch).
  • The land is adjacent to an existing recreational trail and public access is allowed for one or more of the following uses: motorized trail riding, snowmobiling, cross country skiing, horseback riding, or hiking.

II (b) A relatively natural habitat for fish, wildlife, or plants or similar ecosystems (must meet criteria for IIB (1) AND one or more conditions under IIB (2)).

(1) Relatively natural state shall mean land in which native trees and shrubs are allowed to grow without cutting. The land shall not be actively farmed or logged and the land must not be grassed. The terrain must not have evidence of past or active disturbance by mining, grading, or man-made excavations.

(2) (and) Rare or endangered or threatened species are present;

Rare, Endangered, or Threatened species must be documented by the NH Natural Heritage Inventory.

(or) property must abut town or state owned conservation areas:

  • Cole Marsh/Joshua Morse Conservation Land
  • Weber Town Forest (including Arnold George and Lewis Builders parcels)
  • Town Forest located off Ballard Road
  • Ballard State Forest
  • Robert Frost Farm
  • Gulf Road Conservation Property
  • Young Road Conservation Property
  • Future town or state acquisitions of land or conservation easements

(or) property must represent a high quality native terrestrial or aquatic ecosystem.

  • High quality ecosystem shall mean an ecosystem inhabited by a diversity of native species of flora and fauna; and contain varied terrain and/or an intersection of representative habitat types (i.e. native grasslands bordered by forests) where an abundance of native wildlife (game and/or nongame) may occur or would be expected to occur.
  • Evaluation of whether a parcel of land constitutes a high quality native ecosystem will be made by the Derry Conservation Commission after coordination has been completed with the NH Fish and Game Department and the NH Natural Heritage Inventory (NHNHI) (note: the NHNHI will also relay information to us on locally and state rare community types if they have been found to be present on a given site. This will assist us in making that determination.)

II. (c) Preservation of open space land where:

(1) There is scenic enjoyment by the general public from a public way or from public waters where at least one of the following exists:

  • From a public way, there must be a turn out or parking area which contains a scenic view from a hilltop, or overlooking a pond or lake.
  • View from public waters must be land in a relatively natural state with no, or few (less than 4) visible buildings or structures; and contain significant visible natural features.
  • View of land from a hilltop must be land in a relatively natural state with few visible buildings or structures (buildings with scenic rural character are acceptable), and contain a variety of natural features in the landscape.

(2) (or) The open space protection is pursuant to a clearly delineated federal, state, or local conservation policy. [I.e. Local Open Space & Recreation Master Plan, State of NH Office of State Planning document, or related federal document (Land & Water Conservation Fund document).]

A favorable recommendation by the Conservation Commission does not guarantee that a discretionary easement will be granted. The Town Council must approve of all discretionary easements.