An appeal from Coos County No. 2019-0460
Nov. 19, 2020
Reversed and remanded.
- Whether the trial court erred in dismissing the landowners’ preliminary objections to the State’s taking in fee simple of .93 acres of their land along with the State’s taking of permanent and temporary easements.
The landowners challenged the necessity and public benefit of the State’s taking of certain of their real property when NH Route 2 in Lancaster alteration was desired. In its review, the trial court applied a fraud or gross mistake standard of review (RSA ch 230) instead of a de novo review under RSA ch 498-A.
The landowners were notified of that changes to the highway would come near to or impact their property. The landowners failed to attend the public hearing on the project and later declined the State’s offer to purchase the portions of their property required for the highway project. The State therefore filed a declaration of taking regarding the property at issue in response to which the landowners filed an answer and preliminary objections and requested transfer to the superior court.
The superior court determined that RSA ch 498-A, the eminent domain procedure act, required operation in conjunction win an “enabling statute.” Finding RSA ch 230 to be the applicable enabling statute, the superior court granted the State’s motion to dismiss for failure to allege fraud or gross mistake.
Upon appeal, the Court examined RSA 230:14, I, which establishes the procedures by which highway laying out and alternations are to be determined. The Court then turned to RSA ch 498-A which provides the procedure for challenging eminent domain takings of private property. By its own terms, RSA chapter 498-A is “’to provide a complete and exclusive procedure to govern all condemnations of property for public uses including the review of necessity, public uses, and net-public benefit, and the assessment of damages therefor.’” The statute further repeals inconsistent statutory provisions.
Agreeing with the property owners that RSA ch 498-A supersedes RSA 230:14, I and also that de novo review applies under the statute, the Court rejected the State’s arguments that such an interpretation would “impermissibly enlarge the rights of a [landowner] to challenge necessity or net-public benefit” or work to nullify the fraud or gross mistake review provisions under RSA 230:14, I. Accordingly, the Court reversed and remanded.
Gordon J. MacDonald, attorney general, with Allison B. Greenstein, assistant attorney general (on the brief and orally), for the State.
Waystack Frizzell, Trial Lawyers, of Colebrook (Jonathan S. Frizzell and Sandra L. Cabrera on the brief, and Mr. Frizzell orally), for the defendants.