N.H. eminent domain law under scrutiny: Foster's Online (Dover NH), 8/17/05

By Colin Manning

Does the state need to merely strengthen existing state law, or move forward with a constitutional amendment to further protect private property owners' rights in eminent domain proceedings?

This is the question lawmakers are wrestling with but one thing at this early stage is becoming clear: Something needs to be done.

"Doing nothing is not a good option," Sen. Peter Bragdon, R-Milford, said Tuesday.

Two panels — one in the House and one in the Senate — are grappling with the issue of eminent domain in the wake of a recent U.S. Supreme Court decision allowing the taking of private land for private development.

Both panels met Tuesday to discuss whether legislation is needed to close any "loopholes" which allow the taking of private land for private developers' use, as was the case in New London, Conn., which led to the controversial Supreme Court ruling.

The Senate task force received advice from its legal counsel on Tuesday morning.

"Private property is put on the same level as the right to a trial by jury," said counsel Richard Lehmann. "The question you have to answer is to what extent do you want to limit public taking."

Lehmann drafted some language which would specifically define a "public use" in state statutes and limit taking by eminent domain to that specific language.

Panel member Sen. David Gottesman, D-Nashua, questioned how specific the language should be, citing economically depressed areas like Claremont which may want to develop private land in order to build economic development. Gottesman warned that the Legislature should not impede such development, which could be vital to a community's survival.

Gottesman added, "I don't think there's any one of us that wants to take private property."

Sen. Robert Clegg said he does not want to see municipalities begin to use eminent domain as a threat as land becomes less and less available to develop in the southern tier.

While earlier discussions of the task force focused on a constitutional amendment, Clegg said the group should focus on legislation which will bring about immediate change, seeing as an amendment needs the approval of two-thirds of the state's voters.

"I'd like to see what we can come up with in statute and then see how or if it fits with a constitutional amendment. I'd like to accomplish one first and see if it can lead to the other," Clegg said.

Article 12 of the state constitution states, "no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people."

Sen. Peter Burling, D-Cornish, said he is concerned that eminent domain is being used for political payback against two justices — both of whom own property in New Hampshire — who ruled in New London's favor.

The N.H. Libertarian Party is asking Plainfield to use eminent domain to take Supreme Court Justice Stephen Breyer's vacation home for use as a park. Meanwhile, party activists have begun an effort to get the town of Weare to seize Justice David Souter's home.

Clegg said those who are making a move to seize the justices' homes know they will not succeed.

"I don't think those from the Libertarian Party or the conservative Republicans would vote to take that land. They know it's wrong and that's why they're upset in the first place," Clegg said.

In the afternoon, the House panel heard from several legal experts regarding the eminent domain issue.

Former N.H. Supreme Court Justice Chuck Douglas urged the House panel to find a way to prevent private land takings like the one in Connecticut, known as the Kelo case.

"Mrs. Kelo is going to lose her property so someone, probably from New York City, can come in and buy a half-million dollar condo. That is wrong," Douglas said.

Manchester lawyer Eugene Van Loan also urged lawmakers to clarify the law. However, Van Loan said lawmakers should not make the language so tight that it bars urban renewal projects.

But Douglas said making exceptions can lead to problems.

"When you start picking favorites, you're going to get into politics, money and influence," he said.

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