HB1344 (2010) Detail

Relative to the taking of private property during a state of emergency.


HB 1344 – AS INTRODUCED

2010 SESSION

10-2283

05/04

HOUSE BILL 1344

AN ACT relative to the taking of private property during a state of emergency.

SPONSORS: Rep. Hinkle, Hills 19; Rep. Kurk, Hills 7; Rep. Chandler, Carr 1

COMMITTEE: Judiciary

ANALYSIS

This bill amends the state’s power to take property during a declared state of emergency. The bill limits the type of private property that may be taken, requires quarantine of animals in appropriate cases, encourages advance planning by state agencies to limit the need to take private property, and authorizes damages or other compensation for real property taken in such cases.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

10-2283

05/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ACT relative to the taking of private property during a state of emergency.

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

1 Taking of Private Property; Compensation and Use. RSA 4:46 is repealed and reenacted to read as follows:

4:46 Taking of Private Property; Compensation and Use.

I. Whenever a state of emergency is declared or invoked and the taking of real or personal property is required, the governor with the advice and consent of the executive council may, by warrant specifying the particular real property and the personal property by specification of the types, quantities, and general location, together with the names of the owners, when known, authorize the commissioner of safety, by his or her agents, to:

(a) Take possession, for a limited period, of any private real estate and the improvements on it, except for private residences or private educational or religious institutions.

(b) Take title in the name of the state to any such improvement when the exigencies of the situation require its destruction.

(c) Take possession or title in the name of the state to:

(1) Any high explosives.

(2) Any commercial vehicles, aircraft, ships, or other means of commercial conveyance, including the rolling stock of railroads or of motor bus transportation.

(3) Any fuel for heating or other necessary purposes, obtained from a wholesale or retail facility, other than a residential or agricultural property, provided that the taking shall not exceed 50 percent of the supply in that location.

(4) Any gasoline or other means of engine propulsion, obtained from a wholesale or retail facility, other than a residential or agricultural property, provided the taking shall not exceed 50 percent of the supply in that location.

I-a. Under no circumstances shall this section be construed to authorize the taking, confiscation, or seizure of firearms, ammunition, or ammunition components.

I-b. Any horses, cattle, or poultry infected with a contagious disease which is in danger of being transmitted to other animals shall be quarantined or slaughtered in accordance with RSA 436. Any provisions for animals taken for quarantine may be taken at the same time.

II. Takings under this section shall be strictly limited to the necessities of the situation. The director of the division of homeland security and emergency management, working with the advisory council on emergency preparedness and security established in RSA 21-P:48, shall make every effort to have in place in advance of emergencies, plans, arrangements, and agreements for commercial vehicles, aircraft, ships, rolling stock, or forms of motor bus transportation to be leased or purchased. Efforts are also to be made to have advance plans, arrangements, and agreements in place for the transfer of fuel for heating or other necessary purposes and of gasoline and other means of engine propulsion through the use of purchase orders. Where unforeseen events make it impossible for such plans, arrangements, and agreements to have been made in advance, the person proposing to take possession of any such property in the name of the state shall present to the owner or person in possession or control of the property a copy of the warrant under which the person purports to act certified by the commissioner of safety. Upon taking possession or control of such property the person shall present a receipt specifically listing the property so taken and specifically referring to the warrant authorizing the taking.

III.(a) Whenever possession of any real estate or title to any personal property is taken under this section, its owner or possessor, hereinafter referred to as the claimant, shall be entitled to damages on account of such taking. In determining the amount of just compensation, the commission established in subparagraph (c) shall use the market value of the property at the time of taking. In cases where the amount of just compensation remains in dispute, the owner may appeal to the board of tax and land appeals established in RSA 71-B:1 or may file in the superior court of the county in which the real estate is located a petition to have the damages assessed by a jury, upon which petition notice shall be given, and the court shall assess such damages by jury.

(b) Upon the taking of any horses, cattle, or poultry, the value of such animals shall be determined in accordance with RSA 436:55, RSA 436:56, and RSA 436:60.

(c) Upon the taking of any other property, the chief justice of the superior court is authorized to appoint a commission of 3 suitable persons to assess fair and just compensation in cases in which the amount cannot be determined by agreement. The chief justice shall fix the per diem compensation of the members of the commission and fill any vacancies which may occur. The commission shall determine what sum shall justly compensate the claimant for the property so taken and may in the performance of its duties hire, and the state shall pay for the services of, such skilled and disinterested appraisers as the commission shall deem necessary to assist it in the performance of its duty.

IV. Any claimant aggrieved by the award made under paragraph III may appeal to the superior court from the decision within 60 days from the granting of the award. All final awards of judgments entered against the state in such proceedings and the fees and expenses of the commission shall be promptly paid by the state treasurer, on warrant of the governor and council, from any money in the general fund of the treasury not otherwise appropriated.

V. The property taken under this section shall be used in such manner as the governor, with the advice and consent of the executive council, shall deem in the best interests of the state, its inhabitants or the United States. Any property no longer used by the state may be returned to its owner with just compensation for any diminution in its value since its taking. Any property which is no longer in such condition as to be usable by the owner may be sold at the prevailing market price. All moneys derived from the sale may be credited toward the just compensation determined by any of the above methods.

VI. Any person who willfully takes possession of, or attempts to take possession of, property, purporting to act under this section but without authority to so act, whether by false pretense or otherwise, upon conviction, shall be guilty of a class B felony if a natural person, or guilty of a felony if any other person, and 1/2 of any fine imposed shall be paid to the owner of the property and 1/2 to the county.

2 Effective Date. This act shall take effect 60 days after its passage.