PLEASE KEEP CHECKING OUR WEBSITE FOR UPDATES (Updated: 3/9/2022)
UPDATE: MARCH 9, 2022
THANK YOU TO ALL MASON VOTERS FOR THE AMAZING TURNOUT AT THE TOWN ELECTION. I AM TOLD THAT IT WAS THE LARGEST TURNOUT IN THE TOWN'S HISTORY. OUR "VOTE NO" SIDE WON WITH A VOTE OF 461-127.
THIS WAS A LONG AND HARD-FOUGHT CAMPAIGN ON BOTH SIDES, AND I RESPECT THE PRO-ORDINANCE SUPPORTERS FOR THEIR DEDICATION TO THEIR CAUSE. THIS MATTER HAS DEEPLY DIVIDED OUR BEAUTIFUL AND TRANQUIL TOWN, AND IT IS NOW TIME TO HEAL THOSE WOUNDS. AS I WITNESSED DURING THE MANY HOURS THAT BOTH SIDES SPENT IN CLOSE PROXIMITY DURING THE FREEZING WIND AT THE POLLING STATION YESTERDAY, EVERYONE WAS GRACIOUS AND CIVIL AND WE SHARED MANY POLITE AND USEFUL CONVERSATIONS.
I ASK THAT YOU PLEASE TAKE DOWN YOUR VOTE NO SIGNS AND JOIN WITH US IN MOVING FORWARD IN THE WONDERFUL TOWN OF MASON.
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Update: March 4, 2022
We've received reports of illegally removed signs on private property within the past 24 hours. That is a violation of NH state law (RSA 664:21, VI (a)-(b). PLEASE CONTACT US AND WE WE WILL QUICKLY PROVIDE REPLACEMENT SIGNS! THANK YOU VERY MUCH FOR SUPPORTING MASON'S PROPERTY OWNERS.
UPDATE: March 1, 2022
"Mason's Municipal Democracy at Risk"
To Our Readers: I never envisioned that I would post an editorial on this website; that was not its principal purpose. However, especially over the past several weeks, I have witnessed actions by many Mason officials that I NEVER thought would occur in any small rural town. Violations of state law are rampant. Why are they so vehement about passing this unneeded ordinance and taking our property? What is driving them to risk civil and criminal penalties for their alleged violations of state law? A pro-ordinance supporter on Facebook stated that this is a democracy, so if they win too bad for you. However, officials strip voters of many rights and violate myriad laws, that is NOT a democracy and it will NOT be a free and fair election. What is happening in Mason today transcends the “ordinance.” I believe that we are at risk of losing our rights as voters in a municipal democracy. I hope that all voters, regardless of party or political leaning, will recognize the consequences of the unlawful actions of our leaders and send them a message on March 8th that we are not willing to surrender our town to their quest for power and dominance.
/s/ J. Bryan, Chair, protectmasonpropertyowners.com.
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UPDATE: March 1, 2022
SUBSEQUENT TO A COMPLAINT FILED BY "PROTECT MASON PROPERTY OWNERS" (see below), MASON POLICE ADVISED TODAY THAT THEY WILL ORDER THE REMOVAL OF ALL SIGNS FROM TOWN PROPERTY.
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UPDATE: MARCH 2, 2022
ORDINANCE COULD DEVASTATE MASON PROPERTY OWNERS AS EUROPE PLEADS FOR LNG. KINDER MORGAN & EMMINENT DOMAIN?
The tragic geopolitical crisis in Europe could soon claim another victim: Mason taxpayers. With the Nord Stream 2 gas pipeline stopped, LNG prices are skyrocketing as the EU pleads for gas. With the engineering complete on Kinder Morgan’s Northeast Energy Direct pipeline (directly through Mason!), there are frightening prospects that it could be quickly resurrected. If Mason passes this unnecessary ordinance, or “inverse condemnation,” Mason property owners will be denied their proper eminent domain compensation from Kinder Morgan because WE ALREADY SURRENDERED SIGNIFICANT PROPERTY RIGHTS TO THE ORDINANCE. That could cost taxpayers tens of thousands of dollars.
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UPDATE: FEBRUARY 23, 2022
THE NEW HAMPSHIRE DEPARTMENT OF JUSTICE HAS CONFIRMED THAT THEY ARE INVESTIGATING MASON OFFICIALS' ALLEGED PRO-ORDINANCE VIOLATIONS.
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UPDATE: FEBRUARY 27, 2022
February 27, 2022
To: Mason Police Department
From: Jon L Bryan
Re: Elections Violations per NH RSA 664 & 644
Attached please find a photo of political signage affixed to the Mason Conservation Commission’s kiosk at the intersection of the Mason Rail Trail and Depot Road. You will see that it is signed by the “Mason Conservation Commission.” I completely understand that some minor violations of New Hampshire RSAs will occur during a political campaign and that many laymen do not understand the regulation of political activity. However, these are not “laymen,” and they are particularly egregious violations by public officials. Mason officials are allegedly violating RSA 664:17 (illegal placement of signage on public property) and RSA 644:59 (advocacy and electioneering by public officials). I also see the placement of such signage on town property on Townsend Road and elsewhere in Mason.
The reason our state legislature passed such laws is to prevent exactly this type of “unfair advantage” and voter “arm twisting” by powerful public officials, which may be intended to alter the outcome an election.
I ask that you, in the very least, inform them of these violations in the hope that they will respect the plain language of New Hampshire law and remove the signage. These violations add to a growing list of alleged violations by Mason officials related to the ordinance on the March 8, 2022, ballot, which will be adjudicated by the New Hampshire Department of Justice and in the Superior Court. However, such litigation is lengthy and those who pursue violations are obligated to mitigate the collateral damage in the interim; that is the purpose of this request. Time is brief, with the election in just one week. I thank you for your consideration and look forward to their voluntary removal of the unlawful signage. Sincerely, /s/ Jon L Bryan jonlbryan@gmail.com C: Mason Selectmen, Conservation Commission, Highway Department, Town Clerk, Planning Board, Chief, Mason Police
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UPDATE: February 12, 2022
MAILING BY MASON OFFICIALS WAS RIDDLED WITH MISINFORMATION
For anyone who attended the hearings on the proposed inverse condemnation ordinance, it was no surprise to find that the mailing by the Board contained gross inaccuracies and failed to even mention the most serious consequences of this ordinance. Just a few examples:
1. They state: “There is no legal basis for the Town to seize or take property as a result of the amendment.” Voters can easily decide if the new restrictions on their property, which can greatly reduce its value and utility to Mason families, is a taking of their land. Also, a little-known fact is that the Court can order the sale of your land for failure to pay accrued fines for violations of the new ordinance (RSA 676.17 & RSA 651:2).
2. IN A THOROUGHLY FALSE STATEMENT, THEY ATTEMPT TO MINIMIZE THE CONSEQUENCES OF ALLEGED VIOLATIONS OF THE ORDINANCE. They state: “Selectmen will investigate and resolve reports from residents and landowners of zoning violations. When necessary, the Selectmen will initiate a court proceeding. Courts may impose a penalty of up to $50/day for violations.” NOT TRUE. See Section VII, “ENFORCEMENT,” of the ordinance: The Selectmen “shall take immediate steps to enforce the provisions of this Ordinance by notifying the violator and by seeking an injunction in Superior Court” (NO EXCEPTIONS, NO WAIVERS). In fact, at the hearing, one Selectman stated that violators should be subjected to severe penalties to set an example. According to New Hampshire RSA, the penalties are stipulated by the Superior Court judge, and not the ordinance (RSA 676:17 & RSA 651.2), and could amount to $100,000 and one year in prison. “Enforcement,” therefore is ZERO TOLERANCE and not as stated in their mailing.
3. They say the ordinance’s swales will prevent “uncontrolled runoff.” IN FACT, exactly the opposite outcome is more likely. Hydrologists say that swales are not recommended in hilly, slowly leaching terrain such as in Mason. In addition to being a serious health threat of mosquito-borne diseases and drowning of children and pets, the swales could cause damage to the wetlands. When they are inevitably breached by a storm, they will send concentrated, high-velocity water racing downhill to the wetlands with debris and pollutants, causing more damage than naturally draining rainwater.
4. We already have a wetlands ordinance, as well as comprehensive state and federal protection of our water. With our highly restrictive and nearly unique 4-acre and 350-foot frontage zoning, no industry, and 20% of our land in conservation, Mason’s water is already better protected than most in New Hampshire. We like the pretty pictures of clean water on their mailing; all accomplished WITHOUT this condemnation ordinance.
5. They say this ordinance might help our children. However, it may make it impossible for an elderly Mason parent to have a family member live nearby.
The pro-ordinance supporters have failed to answer questions about this ordinance and never presented ANY contemporaneous scientific data to support its need. They have used questionable and likely illegal actions to bring it to the ballot. Please read the January 28, 2022, email to the Selectmen detailing how the Board altered the draft minutes of the December 29th meeting in order to place the ordinance on the ballot. All of these mounting irregularities may soon be brought before the Superior Court.
This proposal needs far-more “sunlight” and disclosure. We can always revisit any ordinance if the facts demonstrate its need. VOTE NO ON MARCH 8th.
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NEW SHIPMENT OF SIGNS ARE IN! PLEASE SUBMIT YOUR REQUESTS BELOW OR CALL 774-377-9099. THANK YOU!!!
FREQUENTLY ASKED QUESTIONS ABOUT THE ORDINANCE
• Do we need this ordinance to protect our water?
NO! Mason is subject to comprehensive STATE and FEDERAL water quality regulations. For example, the New Hampshire Department of Environmental Services regulations require that ALL activities, “regardless of size or scale, in or on the banks of a surface water body, or in a wetland, require a permit from the state.” We must also comply with Federal law, under EPA Section 404 of the Clean Water Act (CWA). With this extensive, rigorously enforced regulation, this Inverse Condemnation ordinance is a needless layer of bureaucracy that will significantly restrict our use of our own land and threaten owners with civil and criminal penalties.
• What were the alternatives to the inverse condemnation ordinance?
The town could have commenced a no-cost, Department of Environmental Services (DES) recommended water quality education program. They could have also undertaken a DES recommended Potential Contamination Source (PCS) identification program, which is also no-cost to the town.
• Why didn’t Mason try the State of New Hampshire’s recommend water quality education and PCS programs before pushing for an inverse condemnation ordinance?
Great question! The NH Department of Environmental Services recommends such educational programs as a first step in water quality protection. They can achieve excellent results in public awareness and address any issues that may be identified. The education programs don’t cost any taxpayer money, don't “take” any of our land, don't threaten our residents with fines and imprisonment, and would likely achieve far-greater benefit to water quality than this inverse condemnation ordinance. Perhaps the reason the Mason officials chose this ordinance, the equivalent of choosing the “nuclear option” prior to taking the DES’ recommended course of action, is that the educational programs do not provide them with any “control” over our property.
* Will we continue to pay taxes on the portion of our property that has been taken by the Town?
YES.
• Some pro-ordinance supporters say we need this non-compensated "taking" of our land to “preserve the rural character of Mason.”
Mason residents have been caring stewards of their land for 300 years. They’ve never needed an oppressive ordinance that takes their land and places control in the hands of bureaucrats to preserve Mason’s character.
• Is the reasoning given by Mason officials as justification for the “takings” ordinance problematic?
YES! New Hampshire state law does not allow the implementation of such a restrictive ordinance for the purpose of maintaining rural character. The state law recognizes that it should only be implemented with "reasonable" justification, such as contemporaneous scientific studies that have identified a serious health risk. NO SUCH EVIDENCE HAS EVER BEEN PRESENTED BY THE TOWN. This means that the ordinance could face a legal challenge based upon its unreasonableness.
• Pro-ordinance supporters say we need this ordinance to reduce development.
Mason is one of the few towns in southern New Hampshire that is not experiencing a development expansion. In fact, an article in the Monadnock Ledger transcript noted that, unlike other towns, Mason issued only one residential building permit last year. Why is that? Mason already has one of the most restrictive zoning ordinances in all of New Hampshire, with a 350-foot frontage and 4-acre minimum land requirement. Mason also has nearly 20% of its land in conservation, one of the highest percentages in all of southern NH. The restrictive zoning requirements and conservation land have resulted in the limited growth that Mason has experienced, and thereby provide us with much more protection of our water supply than other towns. Again, state law does not allow the implementation of a restrictive ordinance as a subterfuge for stopping the owner's legal use of property.
• Don’t some other towns have a buffer ordinance?
Less than half of NH cities and towns have such an ordinance. Most don’t have the hilly, poorly leaching soil of Mason that limits the value of a buffer, and many have extensive industrial activity, which is absent in Mason. They also don’t have the restrictive residential zoning, very low population density, or the immense conservation land.
What is "Inverse Condemnation?"
Inverse condemnation is a term used in the law to describe a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of the Constitution, so the property's owner has to sue to obtain the required just compensation.
* Can the Town of Mason be sued under the 5th Amendment to the United States Constitution for the “taking” of our land by this inverse condemnation ordinance?
Yes. The 5th Amendment states, in part, “nor shall private property be taken for public use, without just compensation.” Americans have been successfully litigating against government taking of their property for more than 100 years. However, on June 23, 2021, the United States Supreme Court definitively ruled that ordinances such as this could be construed as government overreach and unconstitutional takings of our property (Docket 20-107). In their dissenting opinion, the losing side wrote that this will open the floodgates to litigation against municipal ordinances. They are correct. The ruling leaves the Town of Mason vulnerable to never-ending litigation that could destroy their finances and balloon property taxes. To be clear, the outcome of each lawsuit is determined by the specific facts in each case and how they are presented to the court. That is why this type of litigation is very expensive for BOTH sides. The pro-ordinance side will say that the NH Supreme Court ruled years ago to allow a taking in one case that was NOT a Federal 5th amendment adjudication. Needless to say, the recent U.S. Supreme Court’s decision means that “takings” lawsuits adjudicated in FEDERAL court will be guided by the 2021 decision of the highest court in our land.
· The pro-ordinance supporters say the “SWALES” won’t be a health and safety risk.
NOT TRUE! This is an example of the extreme nature of this ordinance. It requires that ANY new or modified construction or improvements on your property be professionally designed and engineered so that it won’t increase ANY water flow into a wetland during a “25-year” rain event. DO THEY REALLY KNOW THE CONSEQUENCES OF THAT REQUIREMENT? Property owners perhaps thousands of feet from a wetland that may not even be on their property will have to hire civil engineers, hydrologists, and wetlands scientists to design a water retention “swale” that can contain a 25-year maximum rain event. The costs for experts will likely be in the tens of thousands of dollars (PLUS the cost of construction and maintenance), and even then may not be accepted by town. The ordinance allows the town to reject the work of the land owner's expensive professionals, and demand that it be redone by professionals that THEY recommend, AT THE OWNER'S EXPENSE. In hilly, poorly leaching Mason, the required swales could be massive in size and depth, creating serious health and safety risks for children and pets, as well as a breeding pool for deadly mosquito-borne illnesses. The swales will also add to the likelihood of successful inverse condemnation lawsuits against the town, since the huge swales will further deprive landowners of the use of their property, destroy its beauty, and risk their safety. Pro-ordinance folks say the swales will be “small and grassy,” but they are not the engineers and they have no idea how huge the swales will be. This is perhaps one of the most dangerous and bizarre examples of government excess in this ordinance.
* Is Mason’s requirement of “swales” inconsistent with New Hampshire Department of Health and Humans Services (DHHS) health and safety guidance?
Requiring swales that collect standing water is inconsistent with DHHS guidance (See “Eliminate standing water around residential and commercial areas." Preventing Disease Spread by Mosquitoes, NH DHHS). They also issued a “Health Alert” about the growing dangers of mosquito-borne illnesses in NH: “Three different mosquito-transmitted infections can be acquired in New Hampshire; West Nile Virus (WNV), Eastern Equine Encephalitis (EEE), and JCV.” The standing water in the swales would be the breeding ground of disease. Mason residents cannot risk this threat to their families, livestock, and pets. In addition to potentially-deadly illnesses, the swales create a risk of accidental drowning of humans and pets.
· Why did Mason officials create this ordinance with no exceptions for minor "size" or "use"?
Unlike most ordinances, Mason crafted this ordinance's language with no exceptions for small size (e.g., a dog house, small shed, or chicken coop in Section D.5.), or limited use (e.g., "No fertilizer…" in Section D.2.a.). At the same time, they also made the prosecution of even minor violations non-discretionary (Section VII, Selectmen "shall" immediately proceed to court, and that action is NOT at their discretion). We have no idea why they didn't include provisions to exclude minor deviations from prosecution, but, in its final form and if passed, it will be an immense risk to Mason property owners who may be unknowingly snared in this ZERO TOLERANCE regulatory maze.
* The pro-ordinance side say the town can't use DRONES to seek violations on our inversely condemned land. Is that true?
NO! Low altitude surveillance with drones, typically no lower than 350 feet, is generally accepted by courts. The only prohibition against the use of drones in NH is the surveillance of lawful hunting (RSA 207:57).
· Will this ordinance lead to REDUCED PAYMENTS to landowners if their property is subsequently taken by eminent domain, such as a Kinder Morgan pipeline?
YES! It could significantly reduce any future payments to property owners if a company such as Kinder Morgan claims our land by "eminent domain," since this new ordinance will have ALREADY REDUCED the property owners' rights to their land. Depending upon the size of the lot, that could amount to losses of tens of thousands of dollars to the property owner.
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THANK YOU FOR YOUR OUTPOURING OF SUPPORT!
PLEASE CONSIDER HOLDING SIGNS NEAR THE MASON POLLING STATION ON ELECTION DAY (in full compliance with RSA 659:43) and calling neighbors and friends to VOTE NO on March 8, 2022.
Also, please consider returning to the polling place to observe the vote count at the 7:00 p.m. closure of the voting. It is important that we participate in the vote counting observation process, as allowed by New Hampshire state law. That participation is intended by law to ensure the integrity of the election process for all Mason residents.
MAILINGS: Expect a wave of mailings and information from the pro-Inverse Condemnation side to hit your mailboxes soon! We can be certain that they will paint the taking of our land as a terrific event, downplaying and ignoring the crucial issues.
Be sure they will say they are not taking our land (but they are), we won’t be fined or imprisoned (but we surely could be), that this ordinance won’t affect you (but it will), that you are “grandfathered” (BUT don't use fertilizer, don’t build a new doghouse, and DON’T let your livestock wander into what will now become your property under THEIR control). Oh, they’ll also say they can’t enter our property; not so. They can do so on foot with probable cause, and by DRONES even without a WARRANT!
This is a "Zero Tolerance" ordinance. They've written it so that prosecution is NOT discretionary, it is MANDATORY (see Section VII) and leading to immediate Superior Court action against the landowner.
We of course will respond to their expected misinformation.
NOTE: While several Mason residents pleaded with the Planning Board to stop or delay the condemnation ordinance, given the impact on their property and future plans, that was not the case for two Mason officials. Those two officials, who were key architects of the inverse condemnation ordinance, sought and successfully received a subdivision of their property just months before the ordinance vote. They also sought, and received, a waiver to the existing Town of Mason zoning regulations.
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The New Hampshire Bar Association, in their “Guide to District Court Enforcement of Local Ordinances,” noted that “there is much confusion among judges, local enforcement officials, and the public alike, about the proper procedure for District Court enforcement of other types of local ordinances such as zoning…” After attending the hearings, it is clear that Mason officials are either unaware or simply ignoring the consequences of this ordinance. On this website, we’ve endeavored to “drill down” on some of these intended, or unintended, implications. Some of those consequences may seem extraordinarily harsh, AND THEY ARE.
These are some of the many reasons why Mason does not need this “onerous” ordinance. On March 8, 2022, please “VOTE NO.”
“Property must be secured, or liberty cannot exist.” John Adams, 1776
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UPDATE: January 28, 2022
Email to the Board of Selectmen, Planning Board, and Town Officials Regarding the New Hampshire Office of Strategic Initiatives’ Comments on Ordinance Procedure
January 28, 2022
To: Board of Selectmen,
Mason, NH
From: Jon Bryan
Mason, NH
Ladies and Gentlemen,
Please see the following response to questions posed to the State of New Hampshire’s Office of Strategic Initiatives Planning Division. You will indubitably see that the actions taken by the Planning Board at their meetings of December 29, 2021, and January 26, 2022, were unlawful.
Since you must finalize the Warrant for the Town Election by Monday, January 31, I am providing you with this information so that you will recognize the invalidity of the Town’s actions and refrain from placing the Ordinance Amendment on the March 8, 2022, ballot. I will not recapitulate what is clearly stated in the OSI’s communication, pasted below, but suffice to say that the Planning Board on December 29, 2021, failed to move the “amendment” to the “ordinance amendment” with the required vote (and certainly did not do so in the legally required public setting). I also provide a copy of an email from your administrative assistant of January 4, 2022, stating that the Planning Board, in fact, did not take such a vote. The actions that occurred at the January 26, 2022, to recreate those facts, were also unlawful and likely soon to be adjudicated in the New Hampshire Superior Court.
Thank you for your consideration. Again, the information received today from the NH OSI is pasted below for your benefit, as well as the January 4, 2022, email from your Administrative Assistant.
Sincerely,
/s/Jon L Bryan
jonlbryan@gmail.com
Tel: 702.703.7170
Attachments: Comments from the New Hampshire Office of Strategic Initiatives of 1/28/22 Email from Mason Selectmen’s Administrative Assistant to Jon L. Bryan of 1/4/22
c: townclerk@masonnh.us; administration@masonnh.us; planningboard@masonnh.us; Conservation Commission Members
Responses from NH OSI, January 28, 2022.
Question from J Bryan: When you use the word “close” the hearing, I assume that is different than the Board entering a “closed” hearing session (which by RSA appears to be only authorized for confidential issues such as litigation and employee dismissal).
Response from OSI: Correct according to RSA 91-A:3.
Question from J Bryan: Am I correct that when the Planning Board closes the hearing following public comment that the public can remain to hear their vote, and that a “closed” hearing that expels the public is not permitted?
Response from OSI: Yes, when the planning board closes a public hearing their deliberations cannot be done in private, the public is still able to hear and see the board discussing the item. You refer to a “closed” hearing, which is actually a non-public session of the board. A non-public session is a different thing than a public hearing. A non-public session has to be noticed to the public that way and there are only a few reasons a board can enter into a non-public session.
Question from J Bryan: If a planning board substantially amends a proposed ordinance amendment (i.e., a non-editorial change), must it vote on that specific change in addition to voting at some juncture on the finalized ordinance?
Response from OSI:
• A planning board advertises a public hearing for zoning amendments to be held at a specific date, time, and location. If at that hearing the board substantially amends a proposed ordinance amendment, they must notice the “new” amendment again at a specific date, time, and location to hold a second public hearing.
• At the second public hearing the board will open up the hearing to discuss the “new” amendment and they will either vote to recommend it is brought forward to be voted on, make more changes and hold another hearing, or vote to not recommend it is brought forward.
Any specific change is included into the entire amendment the planning board is voting on and it becomes the finalized ordinance to be voted on as a whole. I hope that answers your question.
Email from Selectmen’s Administrative Assistant of January 4, 2022
From: Administration <administration@masonnh.us>
Sent: Tuesday, January 4, 2022 12:34 PM
To: Jon L Bryan <jonlbryan@gmail.com>
Subject: RE: Planning Board Vote
Hi Jon
I spoke with Dane. They did not vote at the 12/29/21 meeting. He said it is the Planning Board’s intention to place it on the ballot.
As mentioned, we don’t have a time set for the election yet. It will be posted on the website once it is arranged.
I’ve also attached a copy of the 12/29/21 hearing notice.
Regards, Jen
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UPDATE (JUNE 23, 2021): U.S. SUPREME COURT’S NEW RULING ON “TAKINGS” OF LAND IS A SEVERE BLOW TO MASON'S PROPOSED "INVERSE CONDEMNATION ORDINANCE."
“The ruling reinforces the high court’s commitment to private property rights, which conservative justices have viewed as under threat from overreaching regulations intended to protect environmental...interests over the objection of property owners.” (Wall Street Journal, June 23, 2021)
Writing for the majority, Chief Justice John Roberts stated: “The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, ‘property must be secured, or liberty cannot exist.”’ Docket 20-107.
The opinion of the minority, writing in dissent, is powerful, stating the new ruling “‘threatens to make many ordinary forms of regulation unusually complex or impractical’ by raising the possibility that they could be classified as takings” (emphasis added). Exactly right! The new SCOTUS ruling will enhance property owner rights and lead to even more litigation and “takings” expense for towns that inversely condemn private property. Mason officials should heed this message and WITHDRAW their "takings" proposal.
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PLEASE SHARE THIS WEBSITE WITH YOUR MASON FRIENDS AND NEIGHBORS!
For questions, further information, or to help with yard signs and volunteering: protectmasonpropertyowners.com or call 774.377.9099.
MASON RESIDENTS WILL BE VOTING SOON ON THE INVERSE CONDEMNATION ORDINANCE. Below are issues to contemplate for the March 8 Town election (please also see “Take-Aways” from the hearings below for further information and references for these issues):
1. EVERY VOTE COUNTS. This will be a low turnout election, with perhaps as few a 10% of Mason residents voting. As you will see below, this ordinance will impact ALL Mason residents. Thus, EVERY VOTE WILL COUNT if we want to preserve our property rights, prevent unjust prosecution, and access for our pets and livestock. If you cannot come to the polls, absentee ballots may be available at: townclerk@masonnh.us or call 603-878-3768.
2. SURVEILLANCE OF OUR PROPERTY. The ordinance will allow surveillance of our property by drones and other electronic devices to uncover alleged violations, as well as “probable cause” entry onto our property by foot.
3. CIVIL AND CRIMINAL PENALTIES. It will subject Mason residents to substantial civil and criminal penalties, with fines up to $100,000 and 1 year in prison, and the forced sale of property to satisfy unpaid fines (RSA 676.17 & RSA 651:2).
4. SUPREME COURT RULING. The United States Supreme Court has recently ruled that ordinances such as this can be unconstitutional “takings” of property, opening the floodgates to litigation against the town and higher taxes (Docket 20-107).
5. MOSQUITO-BREEDING SWALES. The ordinance will require upland swales that are deep enough to contain a “25-year” rain event (Section D.5). The mosquito-breeding swales could create serious health and safety risks for children and pets. “Uphill” property owners, who don’t own wetlands that are distant from their property could be impacted by this demand.
6. CONTRARY TO NH HEALTH GUIDANCE. The swales are contrary to New Hampshire Department of Health and Human Services guidance, which urges minimization of standing water that can breed mosquito-borne diseases (Preventing Disease Spread by Mosquitoes, NH DHHS).
7. SWALES DAMAGING TO WETLANDS. Hydrologists recommend AGAINST such swales in hilly, slow-leaching terrain such as Mason’s. The required swales could harm our wetlands, as many will inevitably overflow and send concentrated flows of high-velocity water and debris into the wetlands. 8. PERMITTING COSTS. Property owners will face immense increases in permitting costs, as the new ordinance can require the hiring of experts in hydrology, wetlands science, and civil engineering, AND the town can REJECT the costly work of your experts and require you to hire further experts of THEIR CHOOSING (Section I.2). These increased costs could reduce Mason land values.
9. LIVESTOCK & PETS. The new ordinance specifically states the limited activities that will be allowed in the new buffer zone on your property (Section H. Permitted Uses, “...and that is otherwise permitted by the zoning ordinance: 1....8"). The raising of livestock or the presence of domestic animals of any kind is not listed among those eight enumerated uses. Amazingly, in rural Mason, NH, one Selectman at the hearing stated that a “cow” would not be allowed.
10. BANNED FERTILIZER. The ordinance will prevent the use of animal and manufactured fertilizer other than specifically-approved and labeled “controlled release fertilizer” (Section D.2.). Violations will incur civil and criminal penalties.
11. ZERO TOLERANCE. This is a “Zero Tolerance” ordinance; enforcement is NOT discretionary. Per Section VII, “Enforcement,” the Selectmen “shall take immediate steps to enforce the provisions of this Ordinance by notifying the violator and by seeking an injunction in Superior Court.” In fact, at the hearing, one Selectman stated that a violator should be subjected to severe penalties to set an example.
12. NO SUPPORTING DATA. One official countered the others by stating he was opposed to the concept of “taking” property owners’ land upon which they were paying taxes. He asked his colleagues for justification as to why Mason should be doing this now. (Note: No contemporaneous scientific evidence was presented during the hearings to justify the inverse condemnation ordinance, and the Mason officials have yet to respond to multiple requests for data (e.g., June 23, 2021, letter to Selectman Moser below).
UPDATE, DECEMBER 29, 2021: NOTES FROM THE PLANNING BOARD INVERSE CONDEMNATION ORDINANCE HEARINGS
The Town of Mason held hearings on the inverse condemnation ordinance and will place the ordinance on the ballot for the March 8, 2022 town election. It was clear to this observer that Town officials did not fully comprehend, or minimized, the threats to the health, safety, and loss of use of property to Mason residents, their children, and pets. At the hearings, the Town was unable to respond to most of the specific questions regarding how the ordinance would be implemented or enforced. One key official admitted that the ordinance was, in fact, "onerous."
A Mason official stated that the ordinance was the result of a survey of residents. However, one hearing attendee rebutted, stating that she had completed the survey and desired to retain Mason's rural character, but NEVER intended it to result in an ordinance that would surrender her property rights and privacy to the Town.
One Planning Board member told fellow members that he was uncomfortable that Mason residents would be paying taxes on property that will be taken from them by the ordinance. He also questioned the timing and asked "why now"? He did not receive any factual or scientific justification in response to his question.
The following are some of the key take-aways from the hearings, as perceived by this writer:
Enforcement: The ordinance will allow Mason officials to surveil our property in search of alleged violations with “drones” and other electronic means, as well as probable-cause entry onto our property by foot. The Board did not respond to the direct question of one Mason resident, who asked which Mason officials would be designated to enter our properties in search of alleged violations of the new ordinance.
The Planning Board was asked whether the Town of Mason would immediately violate a property owner, file charges against him/her in Court, and seek an injunction against the landowner. Members of the planning board appeared to not understand the mechanism and process of enforcement and deferred the question to Selectman Moser for guidance. He at first suggested that it would be at the discretion of the Selectmen, but thence added that perhaps the Town should make an example of alleged-violating property owners and subject them to harsh penalties. Such penalties could lead to imprisonment and fines of up $100,000. In fact, Section VII of the Town’s ordinance is quite clear on the “Zero Tolerance” enforcement of the ordinance: “[T]he the Selectmen shall take immediate steps to enforce the provisions of this Ordinance by notifying the violator and by seeking an injunction in Superior Court.” Depending upon the judge’s decision, this could lead to fines and imprisonment. If the Selectmen failed to follow the strict, zero-tolerance language of the ordinance, a nearby property owner who felt injured by the Town’s enforcement, or lack thereof, could file a lawsuit to compel the Town to enforce to the alleged violation.
At all of the hearings, the officials downplayed or dismissed concerns by residents of the onerous penalties provided by this ordinance, including civil and criminal charges as well as the forced sale of a home in order to pay fines. However, Mason residents will be at risk to all of the substantial penalties provided in the New Hampshire RSA's, which will be enforced if they pass this measure on March 8, 2022 (e.g., RSA 651:2, RSA 676:17).
Health and Safety of Mason Residents: Officials stated that “Swales” on Mason properties would be necessary to comply with the provisions of Section D.5. of the ordinance. That section demands that any buildings or driveways must not create a “net increase in peak flow or overall volume of storm water…. based on 25-year storm events.” This demand would include property owners without wetlands on their property, but are uphill of any wetlands, in some cases even thousands of feet away. Officials stated that the excavation of “swales,” or holes deep enough to contain water from the 25-year storm event, be constructed on properties in order to prevent water from flowing downhill to a wetland. Hydrologists recommend against the use of swales in hilly, poorly-percable lands such as in Mason, since the poor leaching would lead to the need for huge swales. Needless to say, such enormous swales would not only be costly and ugly (engineering, hydrology, and wetlands scientist costs could be ten's of thousands of dollars), but they would be a serious threat to the health and safety of Mason residents, and especially their children and pets. The standing water in the swales would be the breeding ground of disease. The New Hampshire Department of Health and Human Services recently issued a “Health Alert” about the growing dangers of mosquito-borne illnesses in NH: “Three different mosquito-transmitted infections can be acquired in New Hampshire; West Nile Virus (WNV), Eastern Equine Encephalitis (EEE), and JCV.” All three mosquito-borne diseases can cause a range of clinical symptoms including asymptomatic infection, non-specific febrile illness, and severe neurological disease including meningitis and encephalitis.” Mason residents cannot risk this threat to their families, livestock, and pets. In addition to potentially-deadly illnesses, the swales create a risk of accidental drowning of humans and pets. Vote “NO” on March 8, 2022.
Substantially Increased Permitting and Engineering Costs: The swales required by the new ordinance are not only a health, safety, and aesthetic risk; they come with significantly higher costs for professional experts in the fields of civil engineering, hydrology, and wetlands science. It is easy to assume costs in the tens of thousands of dollars for the design and construction of these new swales.
Swales Lead to More Erosion and Injury to Wetlands: The demand by officials that Mason property owners erect swales as a condition of permitting is counterproductive in even more ways than health, safety, and cost. Unless the swales are extraordinarily deep and wide, runoff from the swale’s extremities will inevitably race downhill to the wetlands, bringing exogenous organic material through the buffer and into the wetlands. This is what happens when bureaucrats attempt to enforce chaotic and unneeded rules upon property owners.
Contrary to NH State Health Guidance: Mason’s condemnation ordinance demand of swales is contrary to NH Department of Health Guidance, which urges the minimization of standing water. See “Eliminate standing water around residential and commercial areas” (Preventing Disease Spread by Mosquitoes, NH DHHS).
“Hilly with Areas of Deep Granite”: A Mason official stated that the town’s topography is steep and rocky, and unsuitable for a sewer system (not that the residents would desire one). Those are exactly the topographic and hydrologic conditions that make a “buffer ordinance” ineffective, as the natural and rapid downhill storm water runoff, without absorption, will inevitably enter lower buffer zone despite the dangerous and ugly “swales” that Mason would now demand. While officials note that some NH towns do have buffers, they fail to cite that they do not have similar terrain and hydrology, nor does Mason have the population, tight zoning, and industry of those towns.
Livestock and Pets. The new ordinance specifically states the limited activities that will be allowed in the new buffer zone on your property (e.g., "H. Permitted Uses, ....and that is otherwise permitted by the zoning ordinance: 1....8"). The raising of livestock or the presence of domestic animals of any kind is not listed among among those eight enumerated uses. It is unclear if fencing would be required, or what would happen if, for example, an animal breached the fencing. Even the presence of a dog or chicken could be in technical violation of the “Zero Tolerance” ordinance and its permitted uses, subjecting the owners to a violation, lawsuit by the Town, court injunction, and potential fine and imprisonment. The officials, on several occasions, indicated their concern for animal feces. Even a neighbor, who felt aggrieved by the Town’s enforcement, or lack thereof, could file a lawsuit to compel the Town to enforce to the zero tolerance language of the ordinance. When a resident suggested changes in the wording of the ordinance that would allow animals, an official stated that no changes would be made.
Fertilizer for Crops: While the “cultivating and harvesting of crops” is listed as an allowed use in the buffer zone, it is subject to strict conditions. No fertilizer is allowed, animal-based or manufactured, unless it meets the specific labeling requirements of NH DES slow-release fertilizer and is applied in strict accordance with DES standards. "Only slow or controlled release fertilizer may be used. Low phosphate, slow release nitrogen means fertilizer that is guaranteed, as indicated on the package label, to contain: At most 2% phosphorous, and a nitrogen component which contains at least 50% slow release nitrogen components" (NH DES). Violations would be subject to fines and criminal penalties.
INVASIVE SPECIES: Town officials suggested that the buffer could reduce the amount of “invasive species” of plants. However, they were unaware that, by far, the most significant contribution to the invasive species population comes from bird droppings. When faced with this question, they did not disclose a plan for preventing birds from entering the buffer. Could a property owner be held responsible for bird-induced invasive species? Needless to say, the entire discussion is absurd and Orwellian, and the result of bureaucratic excess. Mason property owners should not be faced with such “loss of control” of their property.
Duplication of New Hampshire State Law: Town of Mason officials admit that existing NH law “requires a permit from the NH Wetlands Bureau” for the construction of bridges or culverts in the wetlands. Even though a property owner may meet or exceed the NH state requirements, with this new ordinance, the Town will require a Mason property owner to obtain a Special Exception to the new ordinance that could involve thousands of dollars in expenses for civil engineers, attorneys, and wetlands scientists specifically named by the Town. Even then, the Town could deny the Special Exception.
One of the most puzzling outcomes of the hearings was the response of Town officials to property owners who expressed concern about how the ordinance would impact their future plans for garages, barns, sheds, and other development of their property. The officials said Mason property owners should hurry to get permits before Mason’s voters enacted the ordinance in March 2022. That appears to be exactly what two Mason officials did, who were key proponents of the ordinance, just prior to the hearings. They even requested - and received - waivers from the the Town of Mason to the existing zoning ordinance.
What about the hundreds of other Mason property owners? Some of us who may wish to give part of our property to our children will now be faced with the expensive, and sometimes impossible, legal hurdles of this inverse condemnation ordinance. This is the TAKING AND LOSS OF USE OF OUR PROPERTY. Please “Vote NO” on March 8, 2022.
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UPDATE, November 4, 2021: Mason Planning Board hearing for the Inverse Condemnation Buffer Ordinance & Legal Implications for Property Owners
The Planning Board held a hearing on the ordinance on October 27, 2021, and requested input from those in favor and opposed. A relatively small number of individuals spoke on each side of the ordinance. Please keep in mind that the following observations from the meeting are merely those of one individual and others may have shared a different perspective.
1. The Board did not present any contemporaneous scientific data to demonstrate a degradation in the quality of Mason’s ground water, which, under NH law, may be found by Courts to be a necessary requirement in demonstrating the “reasonableness” and legality of any new or amended ordinance.
2. The Board did not explain why they did not first engage in a Town-wide water quality “education” program, as recommended by the NH Department of Environmental Services (DES), prior to proceeding directly to the equivalent of the “nuclear option” by supporting an inverse condemnation ordinance, or the “taking” of a property owner’s land.
3. The Board did not explain who from our Town would be entering our property to uncover civil and criminal violations of the ordinance, or the potential maximum fines and criminal penalties that could be imposed upon property owners.
4. The ordinance states that forestry, tree farming, and crops could be allowed under the new ordinance, subject to those activities meeting the strict new “practices” mandated by the ordinance. The Board did not explain why farm animals were excluded from the permitted activities. As a result, if the Town’s new buffer ordinance is passed by the voters, property owners who do not fence the buffer, or if the fencing is breached and animals encroach into it could face fines of up to $100,000 and one year in prison (see RSA 676:17 and RSA 651:2). As written, the new ordinance would have “zero tolerance” for a farmer’s sheep, cattle, chickens, or other animals trespassing onto the new buffer areas. Do we want this type of regulation in Mason?
5. The Board appeared to be unaware of the extensive wetland’s protections imposed by the NH DES on all New Hampshire towns, including Mason. One member suggested that, without this ordinance, no one would be prevented from building a house in a pond or swamp. That is incorrect, as seen by the following DES rules: “Almost all activities that disturb the soils in a jurisdictional area, regardless of size or scale, in or on the banks of a surface water body or in a wetland require a permit from the state…. No person shall excavate, remove, fill, dredge or construct any structures in or on any bank, flat, marsh, or swamp in and adjacent to any waters of the state without a permit from the department” (New Hampshire Statutes TITLE L — WATER MANAGEMENT AND PROTECTION). The state rules are comprehensive and demonstrate that Mason does not need yet another layer of bureaucracy that will take the property of our residents.
6. One resident was concerned that he might not be able to restore an old bridge and former barn due to the ordinance. Some on the Board suggested that he hurry and get his building permit prior to March 2022 and seemed to laugh at his plight. Well, what about all the other Mason property owners who are unaware of this onerous new “taking” ordinance and will not get their permits by the March 2022 deadline? Of course, they will likely be unable to obtain permits for such projects.
7. ZERO TOLERANCE. The civil and criminal penalties of the new ordinance will be “zero tolerance” for all violations (not just animals in the buffer) and subject the property owner to the enforcement under New Hampshire RSA 676 and 651:2. For example, Mason property owners could be subject to: RSA 651:2: IV: “A fine may be imposed in addition to any sentence of imprisonment, probation, or conditional discharge. The limitations on amounts of fines authorized in subparagraphs (a) and (b) shall not include the amount of any civil penalty, the imposition of which is authorized by statute or by a properly adopted local ordinance, code, or regulation. RSA 676:17-b states in part: “The court may, in its discretion, issue a bench warrant for the arrest of any defendant….” Do we want to take this risk? Vote “NO” on March 8.
8. Selectmen and “ZERO TOLERANCE” Enforcement: The Town of Mason’s enforcement of the ordinance is not “optional.” Section 7 of the Town’s Zoning Ordinance makes enforcement both swift and severe. Section 7 states: “Upon any well-founded information that this Ordinance is being violated, the Selectmen shall take immediate steps to enforce the provisions of this Ordinance by notifying the violator and by seeking an injunction in Superior Court.”
This severe prosecution of Mason residents accused of violating the ordinance is despite the fact that even the New Hampshire Bar Association acknowledges that such ordinances are confusing to enforcement officials and even judges. In the Bar Association’s “Committee on the Enforcement of Local Ordinances and Codes” publication, they note: “there is much confusion among judges, local enforcement officials, and the public alike, about the proper procedure for District Court enforcement of other types of local ordinances such as zoning….” We can avoid the improper prosecution of Mason property owners by VOTING “NO” on March 8th.
NOTE: Questioning was limited to two minutes and speakers were not able to raise their many additional areas of concern. The Board stated that they plan to hold another meeting on the ordinance on November 17, 2021. It is clear that this ordinance could have many serious consequences, intended and unintended, on Mason property owners.
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June, 2021
Mason is proposing a wetlands ordinance that will result in the "inverse condemnation" or "taking" of our land. The new ordinance could negatively impact every Mason resident.
1. It will restrict the use of our lands, create a new layer of bureaucracy, lead to unnecessary land use disputes and litigation, increase permitting costs, likely increase our taxes, and subject our residents to civil and criminal penalties.
2. The ordinance could prevent a property owner from building an appurtenant structure, such as a garage or barn IF it is near, OR increases rainwater flows to, wetlands that may not even be located on their property. Even the creation of an "impermeable" or "semi-impermeable" surface such as a gravel driveway or parking area could be deemed illegal if it increased rainwater runoff.
3. The ordinance could limit the use of a resident's property, or deny a building permit, leading to many "inverse condemnation" claims against the town and higher taxes.
4. It could also significantly reduce any future payments to property owners if a company such as Kinder Morgan claims our land by "eminent domain," since this new ordinance will have ALREADY REDUCED the property owners' rights to their land. While the courts would make the final loss assessment, the ordinance could reduce a Mason property owners award by 75%. Depending upon the size of the lot, that could amount to losses of tens of thousands of dollars to the property owner. (UPDATE: In fact, it seems that the new Washington administration could be supportive of another attempt by a company such as Kinder Morgan to run a huge pipeline through the Northeast and Mason, following comments by Secretary of Transportation Pete Buttigieg as reported by the Washington Post on May 14, 2021: “[W]hen you're talking about the efficiency of moving petroleum products, that's why we have pipelines….yes, pipelines are critically important.” Again, if that were to occur, the passage of a new Mason “inverse condemnation” ordinance could substantially reduce compensation to Mason property owners and lower the costs for the pipeline company.)
5. This new ordinance will give significant new enforcement power to our Town and lead to many unknown and potentially serious consequences. It would allow ordinance enforcement officials to seek entry to your property for what THEY deem to be “probable cause” to gather evidence of violations of this new inverse condemnation ordinance, which could result in civil and criminal penalties against the property owners.
6. The ordinance could lead to legal challenges to Mason's restrictive zoning and risk court invalidation of the Town's current zoning.
7. The Supreme Court has ruled that inverse condemnation suits can even be filed by owners who purchase the land well-after the ordinance is passed, expanding and lengthening the potential for litigation.
What is "Inverse Condemnation?" Inverse condemnation is a term used in the law to describe a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of the Constitution, so the property's owner has to sue to obtain the required just compensation. (Source: https://en.wikipedia.org/)Mason Doesn't Need This New "Inverse Condemnation” Ordinance
1. Mason residents are caring, responsible stewards of our environment and don't need this invasive new level of bureaucracy. Our ground water is among the most protected in the New Hampshire. We already have one of the most restrictive zoning ordinances in the state, approximately 20% of our land is conservation land, no industry, and Mason is among the lowest population densities statewide. This inverse condemnation ordinance would be bureaucratic excess that threatens the safe use of our property and is a “taking” of our land. Nearly 100 New Hampshire towns DO NOT have this type of regulation; the others have significantly greater population density, much smaller lot size zoning, and industrial activity that can be a source of pollution. 2. The State of New Hampshire already has strict statewide environmental and wetlands laws, enforced by the New Hampshire Department of Environmental Services, that apply to Mason. This new ordinance is a needless layer of costly bureaucracy.
3. The Town has failed to respond to any questions about the scientific justification for this inverse condemnation of our land. Probably because there is no justification.
4. This type of ordinance has triggered more than a thousand law suits nationwide and in NH. It has pitted neighbor against neighbor in land use challenges, and will likely lead to costly litigation against our town for payment of “taken” land that will raise our taxes.
5. Mason has failed to take the many reasonable steps to ensure the protection of groundwater PRIOR to seeking inverse condemnation of our residents' property, such as a DES-recommended town wide education program and a program to identify potential sources of contamination. Both of these proven methods would produce far-greater protection for Mason residents than the needless taking of our property.
Mason officials would probably say that some of these truly bad outcomes from the ordinance are unlikely. The simple truth is the ordinance is a proven recipe for endless litigation, and we won't know what the outcome will be until years later and many thousands of dollars have been spent in legal fees and court costs, as well as denied use permits, fines, and criminal penalties. Again, this ordinance is not worth the risk to Mason's property owners.
On November 7, 2006, New Hampshire voters approved a constitutional amendment banning eminent domain by a town for private use by a vote of 85.66% FOR to 14.34% AGAINST. It is hopeful that Mason's voters will feel even more strongly about this issue of "inverse" eminent domain and the "taking" of their property by the government. It can't happen if the majority of Mason citizens "VOTE NO."
"The moment the idea is admitted into society that property is not as sacred as the laws of God...anarchy and tyranny commence. PROPERTY MUST BE SECURED OR LIBERTY CANNOT EXIST" - John Adams, 1776 AT THE MARCH 2022 TOWN ELECTION, PLEASE VOTE “NO” TO THIS UNNECESSARY THREAT TO MASON PROPERTY OWNERS. Vote "no" to inverse condemnation.
June 23, 2021
WHAT COULD BE NEXT FROM THESE REGULATORS? This inverse condemnation ordinance could be just the beginning of a new realm of costly bureaucratic local regulations that can be halted by voters. Just look at the NEXT level that some are advocating: The continuous monitoring and extremely-costly alteration of your home septic system. The new talking points are: “Small on-site systems currently are not required to have an on-going performance monitoring and reporting of effluent quality as a condition for their operating permits…. An adequate monitoring protocol for on-site systems is needed” (https://vernonjames.ces.ncsu.edu/monitoring-protocol-for-on-site-systems/). That would likely be accompanied by fines and potential criminal penalties, as well as “cease and desist” orders for local residents. The alterations to existing septic systems to meet the new so-called “regulations” could cost residents tens of thousands of dollars in septic system rebuilding and monitoring devices. Some homes could be required to have “sealed tank septic systems” that would need to be pumped every few days at hundreds of dollars in cost to the homeowners and lower the value of the home. Most agree that some regulations are necessary for a functioning economy, but this new level of unjustified bureaucratic overreach should be stemmed.
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