Civil Litigation

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

No. 2019-0121
March 13, 2020

Vacated and Remanded

  • Whether evidence in a taking case was sufficient to support the finding of just compensation.

The State of New Hampshire (the “State”) appeals a determination of just compensation in a takings case where property of Torromeo Industries (the “Petitioner”) was taken.

Prior to the State’s taking, the Petition- er owned a single undivided lot in Plaistow (the “Town”), New Hampshire, which was located in the Town’s Industrial I Zone. Before the taking, the Petitioner’s property was considered a legally permitted pre-existing nonconforming use, as it did not meet the zoning requirements and also contained a family residence. In 2015, the State took a portion of the Petitioner’s property by way of eminent domain to construct a two-lane service road. As a result of the taking, the Petitioner’s land became three independent parcels. The State offered the Petitioner $500 as just compensation, which the Petitioner declined, after which time the Petitioner sought a determination of the condemnation damages from the New Hampshire Board of Tax and Land Appeals. The matter ultimately ended in a bench trial, with the Trial Court determining a value for the just compensation of the taking.

In its analysis, the Court first discussed how a fair market value is arrived at in taking cases. The Court specifically discussed the sale comparison approach, the income capitalization approach and the reproduction less depreciation approach, finding that all three approaches are valid, but had issues. The Court then addressed further what just compensation can mean in a partial taking case, such as the instant case.

The Court agreed with the State on the issue of whether the evidence on the record supported the Trial Court’s finding that the resulting residential lot could have been a separate saleable lot prior to the taking. In doing so, the Court was careful to review the record and noted that little  to no evidence had been presented on the issue of whether the Petitioner’s property could have been subdivided before the taking. The Court also noted that the is- sue of whether there could have been a subdivision was not one that could have been decided based on a judicial notice. Finding that there was no evidence on the issue of whether the Petitioner’s property could have been divided prior to the taking, the Court concluded that the record was lacking for evidence to support the Trial Court’s finding of a just value under the sales comparison approach.

Ultimately, the Court concludes that it cannot discern how the Trial Court would have ruled had it not found that the residential lot could have been a saleable lot prior to the taking, and thus how that would have impacted its analysis on the just compensation. The Court, therefore, remanded the matter for further proceedings on the matter of just compensation.

Sumner F. Kalman of Sumner F. Kalman, Attorney at Law, PC on the Brief and orally for the Petitioner. Gordon J. MacDonald, Attorney General, with Emily C.  Goering,