Eminent Domain

Ryan M. Borden
Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth,
NH with a focus on bankruptcy representation of
trustees, creditors and debtors, corporate law and commercial litigation.

No. 2018-0649
January 24, 2020

  • In ruling that City’s taking of defendants’ property by eminent domain was unlawful, did the trial court err in:
  1. finding that the City had not set forth statutory authority for taking wetlands;
  2. determining that the City failed to demonstrate a reasonable public need for taking;
  3. finding that the City’s taking of the sewer line in fee simple was improper and that the burden on the condemnee outweighed public necessity; and
  4. finding that the City’s purported improper motivation to end litigation with defendants was a basis to set aside the taking

In 1968, the City of Portsmouth constructed  a  sewer  line  in  an  earthen berm across  land  in  Portsmouth  owned  at  that time by the New Hampshire Board of Education. The BOE gave the City permission to construct the sewer line. In 2003, James Boyle, the Trustee of 150 Greenleaf Avenue Realty Trust and principal of Minato Auto, LLC (defendants in this action), purchased a 13.78-acre lot in Portsmouth, which included the sewer line. The City never obtained nor recorded a written easement for the sewer line.

In 2010, Boyle sued the City alleging the sewer line trespassed on his property and that the City had allowed water to back up on his land due to the City’s failure to main- tain culverts under the sewer line. In that underlying litigation, the trial court held that the City had only a revocable license for the sewer line, Boyle had authority to revoke the license, and the City would have to either pay rent until it removed the line or exercise its eminent domain powers. The trial court scheduled trial for January 2017.

In 2016, the City approved a resolution to take 4.6 acres of the property in fee simple containing the sewer line and wetlands. The City then filed a declaration of taking with the BTLA. Boyle objected, challenging the necessity, public use, or net-public benefit of the taking. The BTLA transferred the objection to the trial court. The trial court held that the taking was statutorily permitted as to the sewer line but not the wetlands, but that the burden on Boyle’s property rights out- weighed the public necessity of maintaining the sewer line. It further found that the actual motivation for the taking was to cut off any future litigation regarding development of the property. Without authority to amend the declaration of taking to reduce the taking, it sustained Boyle’s objection and set aside the taking.

On appeal, the City argued that its taking was authorized under RSA 31:92. The Court found that the City’s declaration referred specifically only to RSA 47:11, and its broad reference to “other statutes” was insufficient to meet the “specific reference to the statute, chapter and section thereof” required by RSA 498-A:5. The Court held that the City waived its argument that the taking was lawful under RSA 31:92 because it raised it for the first time on appeal.

Arguing next that RSA 149-I permit- ted it to take the wetlands at issue, the City focused on language in the statute authorizing it to construct systems for maintaining drains, sewers or stormwater systems. The trial court had found that that provision did not authorize taking where the natural state of the land would remain for natural storm- water management; that is, construction of some improvement was require. The City focused on the word “maintain” in the statute, which the Court found unpersuasive and unsupported by evidence. Specifically, the City’s engineer testified much of the land was unnecessary for maintenance of the sewer line and there was no evidence of any intent to construct any stormwater or drain- age systems. The Court affirmed the trial court, and having done so, found  no need to address the City’s challenge to the trial court’s finding the City’s “true motivation” was a basis to set aside the taking.

Bruce W. Felmly and Benjamin B. Folsom, McLane Middleton, Manchester and Mark P. Hodgdon, Law Office of Mark P. Hodgdon, Concord, for the plaintiff. John Kuzinevich, Law Offices of John Kuzinevich, Duxbury, MA, and Joshua Wyatt, Devine, Millimet & Branch, Manchester, for the defendants.