Section 9.4 Eminent Domain

Grant Administration: Section 9.4 Eminent Domain

Eminent domain is the power of the government to take private property for public purposes with payment of just compensation. The U.S. Constitution and state laws govern the process of determining just compensation and taking of property through eminent domain procedures.

Involuntary acquisitions may or may not require eminent domain procedures. The municipality pursuing involuntary acquisitions must determine upfront whether it may pursue a property through the eminent domain process even if choosing later to not do so.

No CDBG funds may be used to support any federal, state or local projects that seek to use the power of eminent domain unless eminent domain is employed for a public use. This restriction is based on both federal and state laws.

The types of projects that meet the definition of public use include: mass transit, railroads, airports, seaports or highway projects, as well as utility projects which benefit or serve the general public or other structures designated for use by the general public or which have other common carrier or public utility functions that serve the general public and are subject to regulation and oversight by the government, and projects for the removal of an immediate threat to public health and safety or brownfields as defined in the Small Business Liability Relief and Brownfield Revitalization Act. Public use cannot include economic development projects that primarily benefit private entities. Grantees contemplating the use of eminent domain for any use or project should contact CDFA for further guidance prior to proceeding.

Condemnation Through Eminent Domain Procedures
If negotiations are unsuccessful, condemnation proceedings may be initiated. Condemnation is a legal action and must be carried out by municipality entities authorized by New Hampshire statutes, which should authorize the proceeding by resolution. Grantees should utilize an attorney to coordinate and represent the grantee in the condemnation process. The requirements and procedures for condemnation, which are allowed only for public uses, are detailed in state law and supplemented by information found on the New Hampshire Board of Tax & Land Appeals website. See Attachment 9-8 for the Eminent Domain Procedure Act.

Before filing a condemnation procedure with the New Hampshire Board of Tax & Land Appeals, the municipality (condemnor) must document the following steps were taken with the property owner (condemnee), which are consistent with the URA acquisition process described in this chapter:

• Reasonable efforts to negotiate with the condemnee or his/her personal representative
• At initial contact with a property owner, the condemnor provided to the condemnee information regarding acquisition and relocation. Such information shall include a disclosure, conspicuously located, which states that the condemnor does not represent the rights of the condemnee and that the condemnee may want to obtain independent advice or unbiased counsel.
• Impartial, qualified appraiser must make at least one appraisal of all property proposed to be acquired.
• Condemnor provided a copy of the appraisal, and if requested, any official appraisal review notes upon which the negotiations are based, to the condemnee at the time of negotiation or at least 45 days prior to making the Notice of Offer.
• Provide a “Notice of Offer” to condemnee by certified mail within reasonable period of time after the governmental entity votes to condemn the property. If the condemnee is unknown or one whose whereabouts are unknown, such notice shall also be published once in a newspaper of general circulation in the county where the property is located.
• If the offer is accepted, the transfer of title shall be accomplished within 30 days after acceptance, including payment for taking of the property. If the offer is not accepted within 30 days after the service of the Notice of Offer, the condemnor shall commence condemnation proceedings within 90 days after the expiration of the 30-day offer period.

Condemnation can then proceed by the municipality filing a Declaration of taking with the Board of Tax & Land Appeals. After a Declaration is filed:

1. Board issues an “order of notice” to be served by either certified mail or sheriff on each condemnee, along with a copy of the Declaration, plan of the property and a copy of the Board’s Administrative Rules. The order notifies the condemnee(s) of the Declaration and explains their rights to file a “preliminary objection” within thirty (30) days of the return date given on the order.

2. The Condemnee has the right to challenge the necessity of the taking by filing a preliminary objection, which the Board, by statute, will transfer to the Superior Court in the county where the property is located to decide that particular issue. If the Court agrees with the preliminary objection, it will dismiss the Declaration. If the Court denies it, the Board will schedule the case for a hearing on the issue of just compensation.

3. The burden of proof is on the condemnor to show the estimated just compensation is proper. The condemnor is entitled to possession of the property once it has deposited the damages with the Board. The condemnee is entitled to withdraw the damages on file with the Board at any time after the Declaration is filed. The withdrawal of the deposit of damages does not waive the right to seek greater compensation from the Board.

4. A just compensation hearing is scheduled approximately one (1) year after the Declaration is filed. The hearing will be held in the county where the property is located, and a view of the property will be taken. The Board typically has questions of both parties and the parties are allowed to cross examine witnesses. The Board is not bound by the technical rules of evidence and has the discretion to admit testimony which has reasonable probative value on the issue of just compensation.

5. After the hearing, the Board will issue a decision in the matter. If neither party appeals the decision of the Board, costs are awarded (upon motion) to the prevailing party.

An appeal of the Board’s award must be made within twenty (20) days from the date of the Board’s decision to the Superior Court of the county the property is located in. The proceedings before the superior court are de novo (anew). The petition to appeal will request to have the damages reassessed, and the court shall assess the damages by jury, or by trial without jury if jury trial is waived, and award costs to the prevailing party. The condemnor and the condemnee have a right of review to appeal the final judgment of the Superior Court to the Supreme Court.

• After an appraisal is complete (and reviewed by a review appraiser), the grantee must determine the amount of the offer and send the owner a Notice of Just Compensation (the full amount of the determined value). This Notice establishes the definite date for relocation benefits eligibility for all persons with legal residency, including non-residential occupants.