House committee seeks to restrict eminent domain powers: (Manchester NH) Union-Leader, 8/26/05

By Tom fahey

A [New Hampshire] House committee yesterday voted to recommend tighter language in state law while still allowing local and state government the power to take private property by eminent domain.

The committee voted to allow land to be taken over only for "public use," and in cases of abandoned or clearly blighted property. But it said governments should be barred from using economic development, jobs or tax revenues as reasons for an eminent domain taking.

House and Senate committees are studying state laws on eminent domain power in the wake of a U.S. Supreme Court decision that allowed the city of New London, Conn., to take private homes for a private economic development project that will boost tax revenues.

The state Constitution allows a government to take private property if it is for "public use," but court decisions on the subject have gradually expanded takings for "public purpose" and "public benefit."

The House committee voted to recommend that the Legislature define the words "public use" clearly and narrowly. It would then substitute "public use" anywhere the term "public purpose" appears in state law.

Public use would mean, "the possession, occupation, and enjoyment of the land by the general public, or by public agencies."

Committee chairman Rep. Maureen Mooney, R-Merrimack, said the committee will also cite in its report areas of concern where the House and Senate should work together to determine state policy on eminent domain powers. These include a clear definition of blight, and issues such as urban renewal and redevelopment.

The fear among some committee members is that since the Supreme Court's ruling, state law leaves local and state government too much freedom in determining when to take property, and in how condemned land will be used.

Institute for Justice senior attorney Dana Berliner, who represented property owners in the New London case, known as Kelo v. New London, told the committee the New Hampshire Constitution leaves room for government to take private property and hand it over to a private developer.

Berliner said that the state's Constitution is "no more limiting than the U.S. Constitution is." The state allows eminent domain takings of blighted properties, but references to blight in state law use "an extremely vague definition," she said.

Berliner said yesterday that fixing state statutes would be easier and quicker than trying to amend the state Constitution.

Maura Carroll, general counsel to the New Hampshire Municipal Association and the Local Government Center, urged the committee to be cautious as it looks for solutions.

"I ask you not to overreact to something people have been very upset about nationally because of the Kelo case," she said.

The fact the state Supreme Court has only handled one major eminent domain case in 20 years indicates that local governments have used restraint in exercising their power, she said.

In its proposed definition of "public use," the committee voted to include language that allows taking of clearly blighted or abandoned properties. Government would be able to act, "to cure a concrete harmful effect of the current use of the land, including the removal of public nuisances, structures that are beyond repair or that are unfit for human habitation or use, and the acquisition of abandoned property," the suggested language said.

In the conclusion of the draft statement, the committee said, "We firmly believe in protecting privately owned property from the unreasonable or oppressive use of the eminent domain power. While we recognize that New Hampshire has existing safeguards to protect property rights, we believe that in light of Kelo, these recommendations will further protect this fundamental constitutional right."

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