SB287 (2006) Detail

(New Title) making certain changes to the eminent domain statute and establishing a committee to study eminent domain issues.


CHAPTER 324

SB 287-FN – FINAL VERSION

26Apr2006… 1928h

05/24/06 2257CofC

05/24/06…2398eba

2006 SESSION

06-2463

01/10

SENATE BILL 287-FN

AN ACT making certain changes to eminent domain statutes.

SPONSORS: Sen. Odell, Dist 8; Sen. Foster, Dist 13; Sen. Gottesman, Dist 12; Sen. Bragdon, Dist 11; Sen. Clegg, Dist 14; Sen. Green, Dist 6; Sen. Burling, Dist 5; Sen. Gatsas, Dist 16; Sen. Johnson, Dist 2; Sen. Roberge, Dist 9; Sen. Hassan, Dist 23; Sen. Flanders, Dist 7; Sen. Estabrook, Dist 21; Sen. Barnes, Dist 17; Sen. Boyce, Dist 4; Sen. D’Allesandro, Dist 20; Sen. Eaton, Dist 10; Sen. Fuller Clark, Dist 24; Sen. Gallus, Dist 1; Sen. Kenney, Dist 3; Sen. Larsen, Dist 15; Sen. Letourneau, Dist 19; Sen. Martel, Dist 18; Sen. Morse, Dist 22; Rep. Dokmo, Hills 6; Rep. Mooney, Hills 19; Rep. Soltani, Merr 8; Rep. Weyler, Rock 8

COMMITTEE: Public and Municipal Affairs

AMENDED ANALYSIS

This bill defines the term “public use” for purposes of taking by eminent domain.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

26Apr2006… 1928h

05/24/06 2257CofC

05/24/06…2398eba

06-2463

01/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

AN ACT making certain changes to eminent domain statutes.

Be it Enacted by the Senate and House of Representatives in General Court convened:

324:1 New Paragraph; Definition Added; “Public Use.” Amend RSA 162-K:2 by inserting after paragraph IX the following new paragraph:

IX-a. “Public use” means:

(a)(1) The possession, occupation, and enjoyment of real property by the general public or governmental entities;

(2) The acquisition of any interest in real property necessary to the function of a public or private utility or common carrier either through deed of sale or lease;

(3) The acquisition of real property to remove structures beyond repair, public nuisances, structures unfit for human habitation or use, and abandoned property when such structures or property constitute a menace to health and safety; and

(4) Private use that occupies an incidental area within a public use; provided, that no real property shall be condemned solely for the purpose of facilitating such incidental private use.

(b) Except as provided in subparagraphs (a)(2) and (4) of this paragraph, public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities.

324:2 Municipal Economic Development; Eminent Domain. Amend RSA 162-K:6, III(b) to read as follows:

(b) Acquire [land] real property or easements through negotiation or through powers of eminent domain, except that property acquired through powers of eminent domain shall be put to public use, as defined in RSA 162-K:2, IX-a;

324:3 New Paragraph; Housing Authorities Law; Definition Added. Amend RSA 203:3 by inserting after paragraph XIII the following new paragraph:

XIV. “Public use” means:

(a)(1) The possession, occupation, and enjoyment of real property by the general public or governmental entities;

(2) The acquisition of any interest in real property necessary to the function of a public or private utility or common carrier either through deed of sale or lease;

(3) The acquisition of real property to remove slums, as defined in RSA 203:3, VIII, structures beyond repair, public nuisances, structures unfit for human habitation or use, and abandoned property when such structures or property constitute a menace to health and safety; and

(4) Private use that occupies an incidental area within a public use; provided, that no real property may be condemned solely for the purpose of facilitating such incidental private use.

(b) Except as provided in subparagraphs (a)(2) and (4) of this paragraph, public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities.

324:4 New Paragraph; Housing Authorities Law; Eminent Domain. Amend RSA 203:12 by inserting after paragraph I the following new paragraph:

I-a. Property acquired through powers of eminent domain shall be put to public use, as defined in RSA 203:3, XIV.

324:5 Redevelopment Projects. Amend RSA 205:1 to read as follows:

205:1 Finding and Declaration of Necessity. It is hereby found and declared (a) that there exist in many communities within this state blighted areas [(as defined herein) or areas in the process of becoming blighted] for the reasons set forth in RSA 205:2-b; (b) that such areas impair economic values and tax revenues; that such areas cause an increase in and spread of disease and crime and constitute a menace to the health[,] and safety[, morals and welfare] of the residents of the state, that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; (c) that the clearance, replanning and preparation for rebuilding of these areas, and the prevention or the reduction of blight and its causes, are public [uses and] purposes for which public money may be spent and private property acquired, consistent with this chapter, and are governmental functions of state concern; (d) that there are also certain areas where the condition of the title, the diverse ownership of the [land] real property to be assembled, the street or lot layouts, or other conditions prevent a proper development of the [land] real property, and that it is in the public interest that such areas, as well as blighted areas, be acquired by eminent domain, consistent with this chapter, and made available for sound and wholesome development in accordance with a redevelopment plan, and that the exercise of the power of eminent domain and the financing of the acquisition and preparation of [land] real property by a public agency for such redevelopment is likewise a public use justifying the use of the powers of eminent domain when exercised consistent with RSA 205:3-b and a public purpose for which public money may be expended and such other powers authorized; (e) that redevelopment activities will stimulate residential construction which is closely correlated with general economic activity; and that such undertakings authorized by this chapter will aid the production of better housing and more desirable neighborhoods and community development at lower costs and will make possible a more stable and larger volume of residential construction, which will assist materially in achieving and maintaining full employment; and (f) that it is in the public interest that advance preparation for such projects and activities be made now, and that the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination.

324:6 Redevelopment Projects; Findings and Declaration of Necessity. Amend RSA 205:1-a to read as follows:

205:1-a Findings and Declaration of Necessity. It is hereby found and declared that (a) certain of the blighted areas [and the areas in the process of becoming blighted, or portions thereof] may, through the means provided herein, be susceptible of conservation or rehabilitation in such manner that the conditions [and evils] of blight may be eliminated, remedied or prevented and, to the extent feasible, the salvable blighted areas should be conserved and rehabilitated through voluntary action and the regulatory process, and (b) all powers conferred in this chapter are for public uses justifying the use of the powers of eminent domain when exercised consistent with RSA 205:3-b and public purposes for which public money may be expended and such other powers exercised, and the necessity in the public interest for these provisions is hereby declared as a matter of legislative determination.

324:7 Redevelopment Projects; Finding and Declaration of Necessity. Amend RSA 205:1-b to read as follows:

205:1-b Findings and Declaration of Necessity. It is hereby found and declared that there exist in many communities within this state areas of vacant or predominantly vacant [land] real property which are substandard or blighted [or in the process of becoming blighted] for the reasons set forth in RSA 205:2-b; that such areas constitute a serious and growing menace to the safety[,] and health[, morals, and welfare] of the communities of this state; that such areas are not being used at all or are being used in an unplanned, haphazard and piecemeal manner; that such areas impair economic values, retard the provision of residential, commercial, industrial, institutional and recreational buildings and other improvements, impair the tax revenues in these communities and threaten the sources of public revenue and the financial stability of these communities, thus preventing the sound growth of these communities and the provision of new places of residence or employment for their citizens; that the development or redevelopment of such areas in these communities in accordance with a comprehensive redevelopment plan is necessary to improve economic values, return important tax revenues, and provide additional places of residence or employment; that the development or redevelopment of such areas cannot be achieved by the ordinary operations of private enterprise without the aids herein provided; that the development or redevelopment of such areas are public [uses and] purposes for which public monies may be expended and public uses for which the power of eminent domain and other governmental powers may be exercised, consistent with RSA 205:3-b; that the development or redevelopment of such areas in accordance with an approved redevelopment plan will stimulate the investment of private capital, the construction of residential, commercial, industrial, institutional and recreational buildings and the provision of new sources of employment and will eliminate and prevent the recurrence of the existing substandard and blighted and blighting conditions now existing in such areas; and the necessity in the public interest for these provisions is hereby declared as a matter of legislative determination.

324:8 Redevelopment Projects; Authority. Amend RSA 205:3 to read as follows:

205:3 Authority. In undertaking such redevelopment projects a housing authority shall have all the rights, powers, privileges and immunities that such authority has under the housing authorities law, RSA 203, and any other provision of law relating to slum clearance and housing projects for persons of low income (including, without limiting the generality of the foregoing, the power to make and execute contracts, to issue bonds and other obligations and give security therefor, to acquire real property by eminent domain or purchase, and to do any and all things necessary to carry out projects, except that the power to acquire real property by eminent domain shall be limited as set forth in RSA 205:3-a) in the same manner as though all the provisions of law applicable to slum clearance and housing projects were applicable to redevelopment projects undertaken under this chapter; provided that nothing contained in RSA 203:9 and 10 shall be construed as limiting the power of an authority, in the event of a default by a purchaser or lessee of land in a redevelopment plan, to acquire real property and operate it free from the restrictions contained in said sections.

324:9 New Sections; Redevelopment Projects; Authority to Take Real Property by Eminent Domain Limited. Amend RSA 205 by inserting after section 3 the following new sections:

205:3-a Authority to Take Real Property by Eminent Domain Limited. In undertaking redevelopment projects pursuant to this chapter, a housing authority shall have the power to take real property by eminent domain. The power of eminent domain shall be used only for the purpose of acquiring real property that will be put to public use, as defined in RSA 205:3-b.

205:3-b “Public Use” Defined. Notwithstanding any other provision of law to the contrary, in this chapter, “public use” means:

I.(a) The possession, occupation, and enjoyment of real property by the general public or governmental entities;

(b) The acquisition of any interest in real property necessary to the function of a public or private utility or common carrier either through deed of sale or lease;

(c) The acquisition of real property to remove structures beyond repair, public nuisances, structures unfit for human habitation or use, and abandoned property when such structures or property constitute a menace to health and safety; and

(d) Private use that occupies an incidental area within a public use; provided, that no real property may be condemned solely for the purpose of facilitating such incidental private use.

II. Except as provided in subparagraphs I(b) and (d) of this section, public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities.

324:10 Eminent Domain Procedure Act; Intent of Chapter. Amend RSA 498-A:1 to read as follows:

498-A:1 Intent of Chapter.

I. It is the intent by the enactment of this chapter to provide a complete and exclusive procedure to govern all condemnations of property for public [purposes] uses including the review of

necessity, public [purposes] uses, and net-public benefit, and the assessment of damages therefor. It is not intended to enlarge or diminish the power of condemnation given by law to any condemnor and it is not intended to enlarge or diminish the rights given by law to any condemnee to challenge the necessity, public [purposes] uses, and net-public benefit for any condemnation.

II. Notwithstanding any other provision of law to the contrary, no person’s private real property shall be taken pursuant to this chapter unless that real property is to be put to public use, as defined in RSA 498-A:2, VII.

324:11 New Paragraph; Definition Added; Public Use. Amend RSA 498-A:2 by inserting after paragraph VI the following new paragraph:

VII. “Public use” means:

(a)(1) The possession, occupation, and enjoyment of real property by the general public or governmental entities;

(2) The acquisition of any interest in real property necessary to the function of a public or private utility or common carrier either through deed of sale or lease;

(3) The acquisition of real property to remove structures beyond repair, public nuisances, structures unfit for human habitation or use, and abandoned property when such structures or property constitute a menace to health and safety; and

(4) Private use that occupies an incidental area within a public use; provided, that no real property may be condemned solely for the purpose of facilitating such incidental private use.

(b) Except as provided in subparagraphs (a)(2) and (4) of this paragraph, public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities.

324:12 Condemnation; Passage of Title; Declaration of Taking. Amend RSA 498-A:5, II(e) to read as follows:

(e) A brief description of the purpose of the condemnation [and], the need therefor, and the public use to which the real property will be put;

324:13 Eminent Procedure Act; Preliminary Objections. Amend RSA 498-A:9-a, I(c) to read as follows:

(c) The necessity, public [purposes] use, and net-public benefit of the taking.

324:14 Eminent Procedure Act; Determination of Preliminary Objections Based on Necessity. Amend the section heading and paragraph I of RSA 498-A:9-b to read as follows:

498-A:9-b Determination of Preliminary Objections Based on Necessity, Public [Purpose] Use, and Net-Public Benefit.

I. If a condemnee files a preliminary objection under RSA 498-A:9-a, I(c) concerning necessity, public [purpose] use, or net-public benefit, the board shall transfer that preliminary objection to the superior court of the county in which the property is located. There shall be no filing fee for such transfer.

324:15 New Section; Eminent Domain Procedure Act; Attorneys Fees. Amend RSA 498-A by inserting after section 26-a the following new section:

498-A:26-b Attorney’s Fees. If the condemnee is the prevailing party solely on the issue of public use, he or she shall be entitled to reasonable attorney’s fees.

324:16 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 21-L:15, I to read as follows:

I. The board shall hear and decide appeals from decisions of the commissioner relative to contract interpretation or other decisions affecting persons not employed by the department, municipalities, or private property, except condemnations of property for public [purposes] uses, and the assessment of damages therefor. Decisions of division directors shall be appealed to the commissioner. Decisions of the commissioner may be appealed to the appeals board, except decisions relative to aeronautical matters, which may be appealed to the aviation users advisory board established under RSA 21-L:8, and decisions relative to common carriers by rail, which may be appealed to the railroad appeals board established under RSA 21-L:16. The board shall also hear appeals from the department of administrative services relating to such matters involving public works design and construction as have been delegated to the department of administrative services or as were administered prior to July 1, 2005 by the division of public works, department of transportation.

324:17 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 71-B:5, III to read as follows:

III. To hear and determine all matters relating to the condemnation of property for public [purposes] uses and the assessment of damages therefor as provided in RSA 498-A.

324:18 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 228:56 to read as follows:

228:56 Acquisition and Necessity. Notwithstanding any provisions of the law to the contrary, the commissioner, as sole agent for the state, and with the approval of the governor and council, is authorized to acquire, by purchase or condemnation, or otherwise, such portion or portions of the rail property of any railroad corporation, including such tracks and ties, rights-of-way, land, buildings, appurtenances and other facilities necessary and required for the operation of railroads, as well as any other property found by the commissioner to be necessary for the operation of a railroad or other transportation purposes, including recreational trails. The authority to acquire such rail properties shall extend to rail properties within, as well as those not within, the jurisdiction of the Interstate Commerce Commission, and includes rail properties within the purview of the Regional Rail Reorganization Act of 1973, and any amendments thereto or other pertinent federal legislation. The acquisition of such rail properties and other property by the commissioner shall be for the purpose of the continued and future operation of a railroad or transportation corridor, including recreational trails, which is deemed to be in the public interest and which shall include the authority to sell or lease said properties. The acquisition of such rail properties and other property is declared to be a public [purpose] use and to be reasonably necessary. This action may be taken in concert with another state or states as necessary to insure continued rail service and to insure continuous corridors, including recreational trails.

324:19 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 228:57 to read as follows:

228:57 Sale or Lease; Purpose. The commissioner as sole agent for the state, with the approval of the governor and council, is authorized to sell, transfer or lease all or any part of the rail properties, and other property acquired under the provisions of this subdivision, to any responsible person, firm or corporation, for continued operation of a railroad, or other public [purpose] use, provided, if necessary, approval for such continued operation, or other public [purpose] use, is granted by the interstate commerce commission of the United States whenever such approval is required. Such sale, transfer or lease shall be for such price, and subject to said further terms and conditions, as in the opinion of the commissioner are necessary and appropriate to effectuate the purposes of this subdivision.

324:20 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 228:59 to read as follows:

228:59 Condemnation. If the commissioner is unable to acquire the rail properties of any railroad, or any part thereof, by purchase or otherwise, he or she may proceed to condemn all or any such portion of such property. In all such condemnation proceedings, the legislative determination herein made that the acquisition is for a public [purpose] use and is reasonably necessary shall be prima facie evidence thereof. The procedure for any necessary condemnation proceedings shall be as set forth in RSA 498-A.

324:21 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 228:67 to read as follows:

228:67 Disposition of Acquired or Abandoned Rail Properties. Whenever the commissioner determines that certain acquired or abandoned rail properties owned by the state pursuant to RSA 228:60-a, II; 228:60-a, VI; 228:60-b; or any other means are no longer needed, the commissioner may transfer or sell such rail properties to any other state department or agency, or political subdivision of the state, which will utilize such properties for public [purposes] uses and, if no state department or agency, or political subdivision, wants such properties, the commissioner may sell them, in accordance with RSA 4:40 with the proceeds from the sale deposited into the special fund established in RSA 228:68. Such transfer or sale shall require approval of the long range capital planning and utilization committee and the governor and council.

324:22 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 230:13, I to read as follows:

I. The governor, with advice of the council, may determine upon hearing whether there is occasion for the laying out or alteration of a class I or class II highway or a highway within the state included in the national system of interstate highways as proposed by the commissioner of transportation, and, if so, shall appoint a commission of 3 persons who may purchase land or other property that is reasonably necessary for the construction, reconstruction, or alteration and who shall lay out the remainder of such highway or alteration. Any such land or property which cannot be acquired by agreement with the owner or owners thereof may be acquired in accordance with RSA 498-A and all issues that are appealed relating to necessity, public [purpose] use, and net public benefit shall be determined in accordance with RSA 230:19. Property rights acquired under the provisions of this section shall be in fee simple or in the form of easements, including property acquired by condemnation proceedings.

324:23 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 230:14, I to read as follows:

I. The governor, with advice of the council, may appoint a commission of 3 persons who, upon hearing, shall determine whether there is occasion for the laying out or alteration of a class I or class II highway or a highway within the state included in the national system of interstate highways as proposed by the commissioner of transportation and if so, the commission may purchase land or other property that is reasonably necessary for the construction, reconstruction, or alteration and shall lay out the remainder of such highway or alteration. Any such land or property which cannot be acquired by agreement with the owner or owners thereof may be acquired in accordance with RSA 498-A and all issues that are appealed relating to necessity, public [purpose] use, and net public benefit shall be determined in accordance with RSA 230:19. Property rights acquired under the provisions of this section shall be in fee simple or in the form of easements, including property acquired by condemnation proceedings.

324:24 Change of Term; “Public Purpose” to “Public Use.” Amend RSA 498-A:2, I-III to read as follows:

I. “Condemn” means to take public and private property by authority of law for a public [purpose] use;

II. “Condemnee” means the owner of record of property taken or to be taken, including tenants for life or years, remaindermen, reversioners, and holders of undischarged mortgages of record whose mortgages are dated not earlier than 20 years prior to the date of the filing of declaration of taking, municipalities with respect to unpaid taxes, fees and interest for which the municipality has been granted a lien or other interest in the property under the provisions of RSA 80, and guardians ad litem appointed pursuant to the provisions of this chapter. This definition does not include judgment creditors or other lien holders;

III. “Condemnor” means the entity, including the state of New Hampshire, taking property of another under authority of law for a public [purpose] use;

324:25 Effective Date. This act shall take effect January 1, 2007.

Approved: June 23, 2006

Effective: January 1, 2007