Senate panel OKs eminent domain bill: Nashua (NH) Telegraph, 9/28/05

By Kevin Landrigan

A [New Hampshire] state Senate panel approved legislation Tuesday that would block government from taking land by eminent domain for private development.

The Senate Task Force on Eminent Domain unanimously endorsed a proposed bill for the 2006 session that would only allow eminent domain takings for a “public use.”

The bill would replace language in existing law that allows such takings for a “public purpose,” a broader concept that could allow government to take land and sell it to a for-profit entity.

“I think we’ve struck the right balance here,” said Lempster Republican Sen. Robert Odell, who chaired the committee that’s been meeting every other week since August.

Gov. John Lynch, Senate President Ted Gatsas, R-Manchester, and House Speaker Douglas Scamman, R-Stratham, have all said the legislation will be a priority for them when lawmakers return in January.

Cornish Democratic Sen. Peter Burling asked if this could hamper the ability of city and town officials to improve a blighted area by selling land to housing developers.

“Are we setting up a situation where a community could not sell off lots privately?” Burling asked.

Former Senate legal counsel Richard Lehmann answered, “Yes, I believe you are.”

Eminent domain for private development could be used in a limited way if that private use was “incidental” to the total project. Lehmann gave the example of land taken for a municipal airport that had a Dunkin Donuts store inside.

Nashua Democratic Sen. Joseph Foster said the bill should take effect July 1, 2006, in light of the public outcry over this summer’s U.S. Supreme Court decision.

Committee members noted that private development could occur if a city or town purchased a property outright from a private owner rather than having to take it by eminent domain.

Lehmann said the new law may act as an incentive for government and private owners to negotiate a sale, as that allows the public buyer to have more options.

This panel – and one convened by the House – studied eminent domain this summer after the nation’s high court permitted New London, Conn., officials to take a group of older homes along the city’s waterfront for a private developer, who plans to build offices, a hotel and convention center. The court said states can pass more restrictive laws.

The high court’s narrow 5-4 ruling was so contentious that some critics launched a campaign to seize Justice David Souter’s farmhouse in Weare to build a luxury hotel. Others singled out Justice Stephen Breyer’s vacation home in Plainfield for use as a park. Both voted on the prevailing side.

The House committee is working on a proposed amendment to the state Constitution to enshrine these restrictions on eminent domain. The two committees are scheduled to meet together Oct. 11.

“I basically felt that both committees are very close in our approach,” Odell said.

Nashua Telegraph: www.nashuatelegraph.com