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Bar Journal - Spring 2004

Department of Justice's Transportation and Construction Bureau: Trains, Plans & Automobiles

By:
 

I. INTRODUCTION

The Transportation and Construction Bureau1 is a subunit of the Division of Legal Counsel within the Department of Justice.2 The Bureau is managed by a Senior Assistant Attorney General and represents the Department of Transportation ("DOT") in all of its various functions. The Bureau's staff presently consists of five attorneys, one paralegal, and two administrative assistants.

The Bureau is unique in the Attorney General's Office in that it represents only one agency on a regular basis. In its primary role of legal counsel to the Department of Transportation ("DOT"),3 the Bureau handles all eminent domain matters undertaken by the State, and voluntary land acquisitions, personal injury and property damage claims, contract disputes, personnel issues and administrative appeals involving DOT. Bureau attorneys appear in state and federal trial and appellate courts and before administrative tribunals, including the Transportation Appeals Board,4 the Railroad Appeals Board,5 the Board of Claims,6 the Personnel Appeals Board,7 the Wetlands Council,8 the Commission on Human Rights,9 and intermittently at various federal administrative tribunals including the Equal Employment Opportunity Commission and the Surface Transportation Board.10 The Bureau represents the State before the Board of Tax and Land Appeals11 and superior court in cases involving land acquisitions.

Originally established as the Eminent Domain division, the Bureau's name changed in 1987.12 The name change occurred to more accurately reflect the dramatically increasing breadth of the bureau's work, including the area of tort law with the abrogation of the state's full sovereign immunity, and other matters within DOT's activities. Because the Bureau works closely with the DOT, its responsibilities closely track the DOT and its responsibilities. For sake of organization, the easiest way to describe the Bureau's work is to describe DOT, supplementing the description with a brief survey of reported cases and description of frequent legal issues the Bureau addresses in its everyday work.

II. THE DEPARTMENT OF TRANSPORTATION

In 1905, the Legislature established the position of State Highway Engineer, expanding into the State Highway Department in 1915, and finally, the Department of Public Works & Highways in 1950.13 In 1945, the Legislature enacted the highway law that forms the basis of today's modern DOT.14 Established by the Legislature on July 1, 1985, the Department of Public Works & Highways, the Bureau of Common Carriers, the Bureau of Rail Safety, and the Aeronautics Commission were consolidated into the present day Department of Transportation, which became operational on February 28, 1986.15

The Department is led by the Commissioner,16 with the assistance of an Assistant Commissioner,17 and five Directors responsible for one of the Department's five divisions: Administration,18 Aeronautics,19 Project Development,20 Operations,21 and Public Works.22 Collectively, these five divisions oversee all aspects of transportation in New Hampshire. Of the five bureaus, Project Development and Operations lead to the largest number of cases and matters handled by the Transportation & Construction Bureau.

In addition to the statutory authority, primarily in RSA Chapters 228, 229, 230, 234, 236, 237, and 237-A, the Commissioner has both required23 and optional24 rulemaking responsibilities, and supervises many functions specifically exempted from administrative rulemaking process.25 Interpreting these statutes and regulations, as well as most every other Chapter in the RSAs occur on a regular basis in the Bureau.

DOT, with a budget of over $500 million, employs the second largest number of state employees, with approximately 2,000 permanent classified personnel statewide, and approximately 500 or more temporary personnel, predominantly staffing the tollbooths.26 Among state agencies, DOT is unique in that funds collected under NH Constitution, Part II, Article 6-a provide dedicated funding towards many of the Department's functions.27

1. Division of Public Works

The Division of Public Works consists of two bureaus: the bureau of rail & transit, and the bureau of public works. The division is headed by a Director, who must be a registered professional engineer or a registered architect responsible for public works engineering (including planning and design), field supervision, and the maintenance, supervision, and coordination of all state owned and supported land and buildings, including, but not limited to, those functions specified in RSA 228:6, I. 

a. Bureau of Rail & Transit

The bureau is responsible for all public transportation programs administered by the State, including grant administration for money from the Federal Transit Administration to the approximately 15 local public transit programs, excluding urban transit programs in Manchester, Nashua, and COAST in the seacoast region. The bureau also coordinates the commuter rideshare program.

The bureau also performs rail safety and inspection functions, working with the Federal Railroad Administration and encouraging development and use of rail infrastructure for passenger and freight services. In recent years, rail transportation has seen a renaissance. For the first time since the mid-1960s, Amtrak's Nor'easter Rail service provides regular passenger rail service between Portland, Maine, and Boston, Massachusetts, with stops in Portland, Old Orchard Beach, Saco, Wells, Dover, Durham-UNH, Exeter, Haverhill, Woburn, and Boston. Bureau attorneys participated in resolving numerous issues for the New Hampshire segment. The Department plans to extend commuter rail service from Lowell, Massachusetts to Nashua, New Hampshire, with further extensions to Manchester and perhaps Concord in future years. Concurrent with widening I-93 from the state line to Manchester, considerations call for possible rail service along the I-93 corridor in the future, by extending the Haverhill line to Salem. New Hampshire is also involved in a joint study with the federal government and Vermont and Massachusetts regarding high-speed rail connecting Boston to Montreal, running squarely through New Hampshire roughly parallel with Interstate 93 up to Interstate 89, and following Interstate 89 to Vermont.

The State has expended funds for many of these projects, including the Nashua Commuter Rail Extension project. The New Hampshire Motor Transport Association has filed suit challenging the State's expenditure of Article 6-a funds associated with the Nashua Commuter Rail Extension. After filing in Merrimack County Superior Court, Docket #02-E-0373, the parties agreed upon a statement of facts and a record, and jointly requested an interlocutory transfer without ruling to the Supreme Court. The Superior Court (Fitzgerald, J.) granted the request, and the Supreme Court accepted the appeal, see N.H. No. 2003-0641. Oral argument is anticipated for early 2004.

Railroad corridors produce a myriad of property issues. Since 1983, the Department has had a 90-day right of first refusal to purchase any rail properties offered for sale within the State.28 The State's right has been frequently exercised to add to the State's inventory of rail corridors with potential for future rail use. The Department has become one of the larger owners of rail property in New Hampshire, with a total of 193 miles of active railroad corridor,29 and many more miles of inactive, intact rail corridors. Some corridors have been put into interim uses such as recreation, managed by the Department of Resources and Economic Development, Trails Bureau.30 Landowners seeking access to their property on the other side of a rail corridor must obtain a crossing permit from DOT,31 generating regular Bureau involvement in the permitting process. Appeals of the Commissioner's final decisions related to crossing permits and other railroad issues are brought before the Railroad Appeals Board.

Railroad property matters frequently include resolution of the nature and extent of the railroad corridor, including who owns the underlying property. These thorny title issues arise from the myriad of statutes establishing or authorizing the establishment of railroads.32 In general, railroads were established solely by legislative act prior to 1844, through easement condemnations by the State from 1844-67 and by fee condemnations by the railroads through the railroad commissions post-1867. As each corridor consists of unique conveyances of easements and fee simple interests and condemnation actions, the underlying interests along each corridor could be parcel specific. Further, many of these interests may have never been recorded in the registry of deeds, but instead exist solely in the records of the railroad commissioners.33

In 1991, the Legislature adopted RSA 228:60-a which provides the State with an ability to establish fee simple title to rail properties. After the State publishes notice in a newspaper for two consecutive years describing the interests to be acquired, individuals who claimed damages could bring a claim against the State in Superior Court. This statute was challenged in Malnati v. State of New Hampshire & a., 148 N.H. 94 (2002), where the plaintiffs challenged the validity of the State's action, claiming the State's easement was lost through abandonment. The Superior Court ruled the state lost its easement by abandonment and that the notice provision was unconstitutional, and awarded attorneys fees. On appeal, the Supreme Court reversed, holding that the State did not lose its easement by non-use, upheld the notice provision, affirmed the conversion to fee simple title, and vacated the attorneys fees.34

b. Public Works

The bureau of public works ("BPW") primarily serves as the State's construction, reconstruction, and rehabilitation office for State-owned buildings and facilities.35 BPW coordinates with the using State agency to design and construct facilities that satisfy the agency's needs and then supervises the project. T&C Bureau participation has been requested at all stages of the process, from drafting contract specifications, handling bid processing questions, providing specification interpretation, and if necessary, construction claim litigation.

2. Planes (Division Of Aeronautics)

The former Aeronautics Commission became the Division of Aeronautics as part of the 1985 restructuring.36 The Division of Aeronautics has one bureau - Aeronautics. While state regulation of aeronautics is generally preempted by federal law as assigned to the Federal Aviation Administration, the Division has several roles.37 Aeronautics is responsible for locating, constructing, and maintaining air navigation facilities built or maintained either in whole or in part with state funds, coordinating agencies and persons participating in aircraft search and rescue missions, assisting state and federal officials investigating civil aircraft accidents and incidents.  The bureau also assists municipalities and others in planning, acquiring, developing, constructing, operating, and improving safety at facilities included in the state airways system. 

The Department currently owns the Skyhaven Airport in Rochester, managed by the Skyhaven Airport Operating Commission (SAOC).38 Aeronautics also administers the New Hampshire Aeronautics Act, recodified in Chapter 422 in 2002.39 These recent changes decriminalized certain offenses and established administrative fines and penalties. See RSA 422:28 -29. Aeronautics most frequently involves the Bureau in aeronautics registration hearings before the Commissioner primarily related to unregistered aircraft, and in property issues involving State-owned airport property.40

3. Automobiles

a. Administration

The division of administration is responsible for DOT's administrative functions to support all of the other Divisions, including providing accounting, purchasing, and budget control, personnel management, data processing, planning activities, inventory control, printing and finally, management of property, contracts, and grants. The division has primary responsibility for issuing permits, registrations, and licenses for the department.  The division's three bureaus consist of finance and contracts, information technology services, and human resources, which also addresses labor compliance and health & safety issues.41 Given the large number of employees, a myriad of personnel issues arise. One attorney in the Bureau assists DOT in all personnel matters, from providing counsel on proposed courses of action, to representing DOT in administrative tribunals and in court over personnel actions.

b. Operations

The division of operations, headed by a director of operations, who must be a registered professional engineer, is responsible for maintenance and supervision of the State's transportation network, and maintenance of the Department's equipment. The division includes the bureaus of bridge maintenance, traffic, turnpikes, mechanical services, and highway maintenance. Highway maintenance supervises the Department's six district maintenance offices, located in Lancaster, Enfield, Gilford, Swanzey, Hooksett, and Durham. These six district offices provide the day-to-day road maintenance within the district, and collectively, over 4,200 centerline miles42 of state highways. In addition to coordinating maintenance operations, district offices issue utility pole licenses, excavation permits, and driveway permits,43 each producing matters for the Bureau. Of these permits, driveway permits result in the most contested matters, approximately 25-30 per year.

The bureau of bridge maintenance within the Operations Division is responsible for maintaining approximately 2,100 State-owned bridges in New Hampshire, as well as the Sarah Mildred Long Bridge, which is owned by the Interstate Bridge Authority, an agency of the States of New Hampshire and Maine.44 While litigation involving the IBA is infrequent, the IBA's status as an agency of both Maine and New Hampshire created by Congressional compact raises issues requiring consideration of federal, Maine and New Hampshire law.

DOT's traffic bureau is responsible for signalization, signage and pavement markings on State highways. Historically, approximately 50 claims have been brought annually by motorists claiming vehicle damage caused by driving through wet pavement markings. Typically, motorists claim a lack of signage or coning as the justification for departmental liability. Traffic also has jurisdiction for regulating junkyards and outdoor advertising within proximity of certain federal and state highways.

Quite frequently, the Bureau is requested to advise the department regarding the application of legal requirements and prohibitions depending on the nature and classification of the highway. While DOT is generally responsible for Class I and Class II highways, and municipalities maintain responsibility for Class IV and V highways,45 tort cases regularly occur at the intersection of State and municipal highways, possibly creating State or municipal liability.46

Questions regularly arise regarding the different types of right-of-way owned and managed by the Department, including prescriptive easement right-of-way,47 traditional easement right-of-way,48 and the two forms of limited access right-of-way: controlled access and limited access, both of which are owned in fee, and provide abutting landowners with a finite number, and perhaps fixed location, points of access, or no access at all.49 Historic layouts typically describe the width of the road, but precise location may be difficult to determine. More modern layouts, starting in the late 19th and early 20th century, include the precise location.

Highway reconstruction projects regularly result in segments of former Class I or Class II state highways being reclassified as Class IV or V.50 In Town of Nelson v. New Hampshire Department of Transportation, 146 N.H. 75 (2001), the Town challenged the reclassification as an unconstitutional unfunded mandate in violation of Part I, Article 28-a of the New Hampshire Constitution. In this project, DOT constructed a bypass to Route 9 to direct traffic away from Granite Lake.51 At a public hearing, the Town requested the State provide summer maintenance to the bypassed portion of Route 9. Instead, the Commissioner reclassified one segment as Class V, with year-round town maintenance,52 and another as Class II summer maintenance only, with municipal winter maintenance responsibility.53

The Town rejected these segments, claiming the reclassification was an unconstitutional unfunded mandate and sought to enjoin the reclassification. The Supreme Court affirmed the reclassification, noting that increased maintenance expenditures alone were not dispositive, unless it represented a new or expanded responsibility or program.54 Noting the long history of the state and municipally maintained highway systems, the Court concluded that reclassification does not add to municipal obligations, as municipalities have long been responsible for "maintaining roads that serve only local traffic."55

i. Sovereign Immunity and Discretionary Function Immunity

The abrogation of the State's sovereign immunity has led to an increase in tort cases brought against the Department and handled by the Bureau. While originally a common law doctrine, the legislature codified it in 1978.56 Small tort claims under $600 are handled internally by DOT, and any denials are appealed to the Transportation Appeals Board.57 Cases involving damages over $600 are heard before the Board of Claims, and the most significant claims are brought in Superior Court. Within each of these venues, two significant legal hurdles exist for claimants, protecting the Department from unfettered liability: discretionary function immunity,58 and the Department's insufficiency statute.59 The scope and parameters of the sovereign immunity waiver have been tested in three cases: Slovenski, Ronayne, and Delaney.

When and where tort claims could be brought was raised in Slovenski v. State, 132 N.H. 18 (1989). In Slovenski, the plaintiff suffered personal injury in an automobile accident on Route 4 in Northwood on February 1, 1985. Applicable law at that time limited a claimant's damages to $50,000, and claims could only be brought in the Board of Claims. Plaintiffs commenced an action in Superior Court, alleging negligent maintenance from the failure to monitor snowfall and road conditions and failure to maintain the road in safe condition. The trial court granted the State's motion to dismiss, on basis that the court's jurisdiction did not arise until five months after the incident, on July 3, 1985, and subsequently rejected plaintiffs' assertion of a common law claim, and argument for retroactive application of the statute.60 The Supreme Court affirmed, holding that the legislature clearly intended Superior Court jurisdiction to attach on July 3, 1985.

In Ronayne v. State, 137 N.H. 281 (1993), plaintiff appealed from the Superior Court's dismissal of negligence claims against the State. Plaintiff alleged that DOT's negligent design, construction, and maintenance of its highway caused authorities to initiate state and federal environmental enforcement actions against them.61 After entering a plea agreement to misdemeanor violations with federal authorities, plaintiff brought an action seeking damages from the enforcement actions. The Superior Court granted the State's motion to dismiss, and the Supreme Court affirmed. "Stripped of the conclusory language, [plaintiffs] allege only that the State's design, construction, and maintenance of the State highway somehow allowed storm water to carry environmental pollutants onto their property, somehow cyanide flowing from the highway and misattributed to the plaintiffs was unrelated to the EPA enforcement actions."62 Finally, the Court rejected the plaintiffs' argument that the trespass claim sounded in negligence rather than an intentional tort, sufficient to fall within the State's waiver of sovereign immunity.63

The intersection of discretionary function immunity and liability for ministerial implementation was clarified in DiFruscia v. N. H. Dept. of Pub. Works & Highways, 136 N.H. 202 (1992). Plaintiff's decedent drowned in a one-car accident after crossing the opposite lane of travel and flipped over in a drainage ditch. Plaintiff claimed the Department failed to install a guardrail at the drainage ditch as indicated on a highway plan. The Superior Court dismissed based on the State's discretionary function immunity, but the Supreme Court reversed, based on plaintiffs claim arising not from the discretionary determination, but from the plaintiff's allegation that the Department "failed to exercise reasonable care by failing to install a guardrail and by failing to appropriately maintain the roadside ditch." Recognizing that discretionary function immunity applied to the "the decision to place or not to place a guardrail on a roadway,"64 the Court held that implementation of a policy is not protected. On the limited record, the Court presumed that the discretionary decision was properly made and approved, and allowed the plaintiff to argue whether the guardrail design decisions for that road were properly implemented.

In Delaney v. The State Of New Hampshire, 146 N.H. 173 (2001), the plaintiffs' suffered significant property damage from an historic rainfall in October 1996 with approximately 12 inches of rain in a 36-hour period. Plaintiffs alleged that their property damage was caused by the State's failure to implement a trenching policy to release water from the Little River Marsh to the Atlantic Ocean. The Superior Court dismissed the plaintiffs' claim, based on the State's assertion of discretionary function immunity. The Supreme Court reversed, holding that the discretionary function immunity applies "where the executive or planning function involves the weighing of alternatives and making choices with respect to public policy and planning." Implementation of an established policy, however, constitutes a ministerial act not subject to the exception.65

ii. Insufficiency Statute

With the expanded waiver of sovereign immunity, DOT had the potential for significant liability with respect to State highways. The Bureau represented the Department in Caliri v. N.H. Dept. of Transportation, 136 N.H. 606 (1993), one of the highway-related personal injury cases prior to adoption of the insufficiency statute. Plaintiff's decedent was killed in a one-car accident after sliding on ice on a Class II State highway in Derry. Plaintiff argued DOT had a duty to maintain the road for the traveling public, and had a further duty to conduct ditching on private property to divert water away from the road. Plaintiff claimed ditching was not a discretionary function,66 immune from breach of duty claims. The jury returned a defense verdict and the Supreme Court affirmed.

The legislature limited DOT's liability through the so-called "insufficiency statutes,"67 effective January 1, 1993. The statutes require notice of an "insufficiency" to the Department regarding any State highway or highway bridge before any liability may arise, generally describing the general location and nature of the "insufficiency."68 A highway or bridge is "insufficient" only if:

(a) It is not passable in any safe manner by those persons or vehicles permitted on such highway or bridge thereon; or 

(b) There exists a safety hazard which is not reasonably discoverable or reasonably avoidable by a person who is traveling upon such highway or highway bridge at posted speeds in obedience to all posted regulations, and in a manner which is reasonable and prudent as determined by the condition and state of repair of the highway or highway bridge, including any warning signs, and prevailing visibility and weather conditions.69 

In the absence either of the two circumstances identified above, a highway or bridge is not insufficient because it was not constructed, maintained or repaired to the same standard as some other highway or highway bridges or to a level of service commensurate with its current level of public use.70 

Once notice is provided, the Commissioner may determine whether or not an insufficiency exists, and if one does exist, DOT shall place proper warning, and within 96 hours, develop a plan to correct the insufficiency and implement the plan "in good faith and with reasonable dispatch" to remove the insufficiency.71 Liability arises only if DOT fails to timely develop a plan and remove the insufficiency.72

DOT has no liability for personal injury or property damage unless caused by an insufficiency, and either the department had actual notice but failed to act, or acquired notice and was grossly negligent or exercised bad faith in responding or failing to respond, or the insufficiency was created by an employee acting with gross negligence or with reckless disregard of the hazard.73 Further, any action filed to recover damages related to highways or bridges shall be dismissed unless the complaint describes with particularity the means the department received actual notice, or the intentional act which created the alleged insufficiency.74 Mere acceptance or layout of a highway is inadequate to establish notice of a specific insufficiency.75 Finally, in the absence of malice or bad faith, setting construction, maintenance or repair standards for highways or bridges by the Commissioner is a discretionary function that does not create liability.76 DOT has no duty with respect to municipally maintained Class IV or V highways or bridges, or on municipally maintained portions of Class II highways or bridges thereon.77

Given the ever-changing weather experienced in New Hampshire, and the severe winters, the Legislature has also limited DOT's liability for insufficiencies or hazards caused by "snow, ice or other inclement weather," even if it had actual notice or knowledge. DOT's immunity extends to actions arising from the implementation of a maintenance policy adopted in good faith.

The Insufficiency Statute was challenged and affirmed in Bowden v. Commissioner, 144 N.H. 491 (1999). Bowden challenged the Insufficiency Statute on constitutional grounds, focusing on the notice provision. The Supreme Court rejected the challenge, noting that:

highways . . . unlike other property interests, are open to constant unsupervised public use, subject to interruption only in limited circumstances; that their condition for public use is subject to the ever-changing, unpredictable effects of sun, rain, wind, ice, snow and frost, . . . and that the existing construction standard or state of repair of any highway . . . is a product of its unique history of capital investments, made at different times, in response to differing and evolving needs of the traveling public. It is, therefore, unreasonable to expect that all highways . . . will be routinely patrolled or subject to regular preventative maintenance, or that all such highways . . . should be constructed and maintained to any uniform standards.78

The Court held that both actual notice and the State's duty before liability may be imposed as expressed in RSA 230:78 -:80 are constitutional. Reviewing the statutes together, liability arises only for damages "caused by the insufficiency" that occur after the State receives actual notice of an insufficiency. Once put on notice, the State must determine whether an insufficiency exists, and if so, warn motorists and develop a repair plan. Notice cannot be presumed, however, merely from routine maintenance or inspections.

The Bureau represented DOT in Trull v. Town of Conway, 140 N.H. 579 (1995). In Trull, a Conway police officer observed a vehicle slide across State Route 113, called dispatch, and requested DOT be notified of the icy conditions.79 The officer then left the area, and the plaintiff lost control of his vehicle and struck another vehicle. Route 113 is a Class II State highway, with maintenance responsibility exclusively upon the State.80 The Court rejected plaintiff's argument that even though the Town did not have a duty to maintain, it had a duty to warn of known dangerous condition, concluding that a duty exists on roads that the governmental entity has a responsibility to maintain.81

c. Project Development

The division of project development is managed by an unclassified director of project development, who shall be a registered professional engineer. The division is responsible for transportation engineering, including planning and design for state highway, rail, and other forms of transportation; materials research and testing; acquisition of all real property rights necessary to carry out department responsibilities; and field supervision of all transportation construction for which the department is responsible, except air navigation facilities. The division performs these functions through the bureaus of bridge design, highway design, construction, environment, materials & research, municipal highways, project management, right-of-way, and transportation planning.82

i. Environmental Permitting

As part of the highway construction process, the Department obtains necessary state and federal permits, and represents the Department in any litigation. Bureau attorneys work with DOT throughout the permitting process, from application through appeals. For example, in Conservation Law Foundation v. New Hampshire Wetlands Council, 150 N.H. ___ (No. 2002-282, decided September 12, 2003), the Bureau represented DOT before DES' Wetlands Bureau, the Wetlands Council, Superior Court, and finally, the Supreme Court on a wetlands permit issued for constructing the Keene-Swanzey bypass. The project entailed expanding and improving Routes 9, 10, 12, and 101, including replacement of "T" intersections with trumpet interchanges collectively requiring filling approximately 5.45 acres of wetlands. DES granted DOT a wetlands permit subject to numerous conditions. DES denied the Conservation Law Foundation's ("CLF") request for reconsideration, leading to an appeal before the Wetlands Council, which was also denied. CLF then appealed to the Superior Court, which vacated the Wetlands Council's decision and the DES permit. The Supreme Court ultimately reversed, finding that the Court's interpretation of an administrative rule was too broad, and the Court's analysis of DOT's roundabout consideration was unsupported, remanding the matter to Superior Court for further consideration.

ii. Contract Claims

When requested, the Bureau works with the Department on drafting provisions and specifications before bids are requested. The Bureau also assists DOT in reviewing and revising the Standard Specifications for Bridge & Road Construction, which are incorporated into all highway construction contracts. In addition, the Bureau reviews every contract for DOT, between 350 and 500 per year, before submission for Governor and Council approval.

Once approved, the Department relies on the Bureau for contract interpretation to resolve disputes in administering the contract. The Construction bureau is responsible for administering approximately $120 million in bridge and highway construction contracts each year. The Bureau represents DOT in administrative claims proceedings challenging the Department's decisions, as well as any appeals to the TAB, and if necessary, to the Supreme Court. The Bureau regularly addresses interpretation of contract specifications, and construction claims and litigation, including claims for delay and damages, and warranty claims for inadequate work. When the Department is named as defendant in Superior Court, the Bureau represents the Department in those bench trials.83

iii. Bureau of Right of Way

Although less prominent than in years past, the Bureau's historic function is representing the State in eminent domain proceedings, down from approximately 130 per year a decade ago to 65 per year today. The Department's bureau of right-of-way ("ROW") acquires, manages, and disposes of State highway right-of-way and surplus property. The Bureau also assists ROW on property management issues, negotiating and drafting leases, easements and deeds, representing ROW on general landlord and tenant issues, including evictions when necessary and disposal of easements and surplus property through the RSA 4:40 process.

When acquiring property for a highway project, right-of-way agents negotiate with affected landowners to obtain a voluntary transfer. ROW provides relocation assistance benefits to individuals and businesses where authorized by law, and T&C assistance is occasionally requested to interpret these requirements. When negotiations are not successful, or completed in time for the planned project, ROW requests Bureau involvement to pursue eminent domain. Most eminent domain claims handled by the bureau focus solely on compensation, usually resolved through settlement before a hearing before the BTLA. Occasionally, condemnation matters raise significant substantive or procedural legal issues, affecting the validity of the acquisition or damages.

In City of Manchester v. Airpark Business Ctr. Condo. Unit Owners' Assoc., 148 N.H. 471 (2002), the defendants challenged an acquisition for expansion of the Manchester Airport. Defendants owned commercial condominium units on Harvey Road adjacent to the airport,84 and the city condemned 0.08 acres to relocate Harvey Road in support of a 2,000-foot runway expansion, leaving the extended runway approximately 300 feet from the defendant's property. After a BTLA decision, the city appealed to the superior court to reassess damages. On appeal, the defendants claimed entitlement to severance damages for diminution in value to their land resulting from the runway extension, and not for the highway condemnation.85

The Court noted that, "unless there is a taking, the government is not required to compensate a landowner even though its actions affect the value of his land."86 The owner of "condemned property is entitled to damages based upon the difference between the property's fair market value before and after the taking," generally known as "severance damages."87 Relying on Campbell v. United States,88 the Court held that "just compensation . . . to an owner, a part of whose land is taken for a public use, does not include diminution in value of the remainder caused by the acquisition and use of adjoining lands [not owned by the landowner] for the same undertaking."89 Consistent with several other courts, the Court recognized an exception where a landowner can establish that

[the] property was indispensable to the overall project, that the use put to [the] property taken was a substantial part of the overall project, and that the damages flowing from the overall project cannot be separated between the use put to the property taken from the property owner and the use put to abutting property taken.90

New Hampshire law requires the three elements of "indispensability, substantiality and inseparability" be proven to avoid the Campbell rule. The Court held that "the relationship between the runway project and road relocation project is immaterial to determining compensation where the damages are clearly separable."91 While the Court agreed that the road relocation was related to the runway, the defendants' property was segregable, as no part of the defendants' property was utilized for the operation of the airport runway.

Applying similar reasoning, the Court rejected a claim by landowners where the property's uses after the State's taking were impacted by a municipal zoning ordinance. In Claire Daly v. State of New Hampshire, 150 N.H. ___, (No. 2002-667, decided November 24, 2003), the Court held that municipal zoning changes are factors in determining damages in an eminent domain. DOT undertook the North-South local road highway project in Conway and North Conway. During the project planning and permitting stage, the Town of Conway adopted land use ordinances restricting development within 500 feet of the highway. After the ordinance was enacted, DOT acquired several properties along the corridor impacted by the ordinance. After hearings before the BTLA, the condemnees appealed to the Superior Court for a reassessment of damages, arguing the zoning changes should be considered in valuing their condemned properties in the "after" situation. The Court concluded that zoning ordinances are not admissible to show diminished value unless the condemnor adopted the ordinance to "lower a property's value in anticipation of a future taking," and subsequently condemned on the property, using its own ordinance as justification for reduced compensation.

During the 2003 legislative session, the General Court amended the Eminent Domain Procedures Act, RSA Chapter 498-A, related to the preliminary steps for initiating condemnation actions, effective July 1, 2003.92 While the amendments are significant procedurally, these changes do not fundamentally change the processing of eminent domain cases before the BTLA.93

Historically, after negotiations proved unsuccessful, the Department would commence the eminent domain process through a formal Notice of Offer. After the Notice of Offer, the Bureau could file the declaration of taking and deposit of damages within 10 days of the notice. The 2003 Amendments extended the ten-day period to thirty days.94 The State's offer must remain outstanding, and may be accepted by the condemnee until any valuation appeal in superior court.95 Finally, the notice of offer must be made "within a reasonable time after the governmental authority, with the statutory authority to condemn, votes to acquire a property."96

The final amendment relates to abandoned projects. If the condemnor abandons the project within 10 years, the condemnees may repurchase the property at the current appraised value. This change, however, does not apply to early acquisitions or total acquisitions completed at the landowner's request.97

CONCLUSION

The Transportation & Construction Bureau of the Attorney General's Office handles legal matters as diverse as the Department of Transportation, providing legal advice as issues arise, to representing the Department in administrative and judicial proceedings and appeals. While the Transportation & Construction Bureau only represents one client agency - the DOT - the subject matter raised in DOT's functions raise diverse legal issues of state and federal law. Of all the bureaus at the Attorney General's Office, the Transportation & Construction bureau involves both general practice issues and some of the most complex and specialized areas of law. From its origins as the Eminent Domain division, the Bureau's expertise tracks many areas of law - property, contract, and tort to environmental permitting, construction litigation, and constitutional law.

ENDNOTES

  1. RSA 21-M:12; Laws 1985, Ch. 300:1; Laws 1987, Ch. 406:4.
  2. RSA 7:8-b, II(b).
  3. See RSA 21-L.
  4. RSA 21-L:14; see N.H. Code Admin. R. Chapter Tra-Ap.
  5. RSA 21-L:16.
  6. RSA 541-B:2 et seq.
  7. RSA 21-I:45.
  8. RSA 21-O:5-a.
  9. RSA Chapter 354-A.
  10. 49 U.S.C.  10501 (b) (1997).
  11. RSA Chapter 71-B.
  12. Laws 1987, Ch. 406:1.
  13. See Laws 1905, Ch. 35; Laws 1915, Ch. 103; Laws 1950, Ch. 5.
  14. Laws 1945, Ch. 188.
  15. On July 1, 1985, the Department of Public Works and Highways and the Aeronautics Commission were abolished, and their functions, powers, duties, and responsibilities were transferred to the Commissioner of he new Department of Transportation. Laws 1985, Ch. 402:2, I. Functions related to urban mass transportation planning in the Office of State Planning, Id. :2, II, and the transportation division of the public utilities commission, Id. :2, IV were also transferred to the Department. The Department of Transportation became operational on the date set according to 1983, 372:5, II. Pursuant to Laws 1983, 372:5, II, the joint committee on implementation of reorganization and the governor determined the effective date upon which the department became operational to be Feb. 28, 1986.  Effective January 1, 1989, the Bureau of Common Carriers was transferred to the Department of Safety. 1988, 228:27, I. Pursuant to Laws 1985, Ch. 402:2,VII, these transfers became effective on February 28, 1986. See also 1983 Laws 372:5,II.
  16. RSA 21-L:3, :4.
  17. RSA 21-L:5.
  18. RSA 21-L:6.
  19. RSA 21-L:7.
  20. RSA 21-L:9.
  21. RSA 21-L:10.
  22. RSA 21-L:11.
  23. RSA 21-L:12. The Commissioner shall adopt rules, under RSA 541-A, relative to:  bidding for major capital projects; application procedures and approval criteria for state bridge aid; application procedures for state aid for class II highway construction; advertising licenses and permits; removal of nonconforming signs; denial or revocation of an advertising license; junk yard control; application procedures and approval criteria for access route permits, over-dimensional or overweight loads permits; aircraft financial responsibility requirements; contents of aircraft accident reports; application and approval criteria for tall structure permits; notice and hearing procedures for air navigation hazards; preparation of airport-approach plans; airport zoning; and any interpretations of federal highway regulations necessary to implement federal requirements in the state.
  24. RSA 21-L:12-a. The Commissioner may adopt rules relative to: establishing standards for private water supplies affected by highway construction or reconstruction; using bicycle routes; supervision of trees and vegetation adjoining certain highways; restoration of highways and bond requirements; permits for moving special objects; filing railroad maps or profiles; maximum occupancy time of a grade crossing; establishing rates, fares, charges and classifications of joint service; terms and conditions of joint use by railroads ; procedures for the creation of highway planning corridors, and procedures and criteria for administering corridor permits and the acquisition of corridor protection restrictions; and operation of the turnpike system
  25. RSA 541-A:19. The Department's authority in the following areas is exempt from RSA 541-A: use of limited access highway facilities; use of certain class I, II and III highways by the posting of traffic control stop signs, devices, and signals thereon; painted marking of highways; establishment of state speed zones; stopping, standing, or parking and the placing of signs relative thereto on certain highways; excavation permits; driveway permits; licensing utility poles and appurtenances within public highways; bridge weight limits; establishment of toll rates for turnpikes; and the E-Z Pass Interagency Agreement for Operations.
  26. N. H. Department of Transportation, Annual Report (2002) at 18.
  27. N.H. Const. Pt. II, Art. 6-a.
  28. RSA 228:60-a; Laws 1983, Ch. 100:1.
  29. NHDOT, Bureau of Rail & Transit, State Rail Plan (2001) at 19.
  30. RSA Chapter 216-F.
  31. RSA 373:1-a.
  32. See, e.g., Laws 1835, Private Acts Ch. 1 (incorporating the Concord Railroad Corporation); Laws 1844, Ch. 128; Laws 1867, Ch. 146.
  33. Copies of these records are available at the Bureau of Rail & Transit.
  34. The matter is currently pending before the Board of Tax & Land Appeals for a just compensation determination.
  35. See generally RSA 228:5, :5-a
  36. Laws 1985, Ch. 402:7.
  37. See N.H. Code Admin R. Chapter Tra-A
  38. RSA 422:37 -:40.
  39. Laws 2002, Ch. 6.
  40. See RSA 21-L:8.
  41. N. H. Department of Transportation, Annual Report (2002) at 4.
  42. Centerline miles measure the length of a road between two points, while lane miles measure the length of all travel lanes between those same points. A two-lane road, with one lane in each direction, is generally twice the length of centerline miles. DOT maintains over 9,200 lane miles of state highways.
  43. See RSA 231:161, I(c); RSA 236: 9; RSA 236:13. The Commissioner has promulgated a Policy for the Permitting of Driveways and Other Accesses to the State Highway System (March 10, 2000) ("Driveway Policy") regarding the issuance of access permits to State Highways.
  44. RSA 234:43 et seq.
  45. See RSA 229:5; but see RSA 233:8 (DOT responsibilities on certain Class III Recreational Roads).
  46. Municipalities have similar protection through the municipal version of the State's insufficiency statutes. And, given that the State is not responsible for Municipal highways, and municipalities are not responsible for State highways, at least one entity is likely to escape liability based on these statutory protections. Cf. Trull v. Town of Conway, 140 N.H. 579 (1995).
  47. Hoban v. Bucklin, 88 N.H. 73 (1936).
  48. Access onto State highways with traditional right-of-way is controlled by RSA 236:13 and the Commissioner's Driveway Policy.
  49. See RSA 230:44 et seq.
  50. RSA 228:36
  51. 146 N.H. at 75.
  52. RSA 231:3, I.
  53. RSA 228:27.
  54. 146 N.H. at 78.
  55. Id. at 79.
  56. See RSA Chapter 99-D.
  57. RSA 21-L:14.
  58. RSA 541-B:19, I(c).
  59. RSA 230:78-:82.
  60. See RSA 541-B:19, IV.
  61. 137 N.H. at 281.
  62. Id. at 285.
  63. RSA 541-B:19, I(d).
  64. 136 N.H. 204-05
  65. On remand, after a six-day trial, the jury rendered a defense verdict for the State.
  66. See RSA 541-B:19,I(c).
  67. Laws 1992, Ch. 188:2.
  68. RSA 230:79, I.
  69. RSA 230:78, II.
  70. RSA 230:78, III.
  71. RSA 230:79, I.
  72. RSA 230:79, II.
  73. RSA 230:80, I.
  74. RSA 230:80, II.
  75. RSA 230:80, III.
  76. RSA 230:80, IV.
  77. RSA 230:82.
  78. 144 N.H. at 495.
  79. 140 N.H. at 581.
  80. See RSA 231:93.
  81. 140 N.H. at 581.
  82. N.H. Department of Transportation, Annual Report (2002) at 4.
  83. See RSA 491:8.
  84. 148 N.H. at 472.
  85. Id. at 473.
  86. Id.
  87. Id. (citing State v. 3M Nat'l Advertising Co., 139 N.H. 360, 362 (1995)).
  88. 266 U.S. 368, 69 L. Ed. 328, 45 S. Ct. 115 (1924).
  89. 148 N.H. at 473-74.
  90. Id. at 474-75 (citing Griffith v. Montgomery County, 470 A.2d 840, 845 (Md. Ct. Spec. App. 1984).
  91. Id. at 476.
  92. Laws 2003, Ch. 211.
  93. These changes also apply to any condemnations before the BTLA, whether by the State or a municipality.
  94. RSA 498-A:4, III (b)(5).
  95. RSA 498-A:4, III(c); see RSA 498-A:27.
  96. RSA 498-A:4, III(a).
  97. RSA 498-A:12.

Author

Attorney Craig S. DonaisAttorney Craig S. Donais is an Assistant Attorney General at the Department of Justice, Concord, New Hampshire.

 

 

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