Eminent Domain Restrictions

LFDA Editor

In Brief: 

  • Eminent domain is used by the government to take private land for public projects such as road or infrastructure improvements, as long as fair compensation is offered.
  • A 2006 New Hampshire constitutional amendment forbids the government from using eminent domain for private development.
  • HB 648, passed in 2012, forbids the use of eminent domain for regional electricity projects if costs and benefits cannot be shared across the ISO – New England network.
  • Pro: Supporters argue HB 648 should be expanded to forbid eminent domain for all projects that do not directly benefit New Hampshire.
  • Con: Opponents counter that HB 648 should remain limited, as projects that do not benefit New Hampshire directly might do so indirectly by boosting the regional economy. 

Issue Facts: 

Eminent domain is used by the government to take private land for the greater public good, usually for road and highway projects.

For instance, the massive $269 million Little Bay Bridges project in the Seacoast region involved land takings in order to widen the Spaulding Turnpike through areas of Newington and Dover.

Generally, eminent domain allows the state to take private property for public use as long as fair compensation is offered.

A 2006 New Hampshire Constitutional Amendment forbids the government from using eminent domain for private development.

The procedures for eminent domain are laid out RSA 498-A and PART Tax 210 of the Board of Tax and Land Appeals Administrative Rules. The state board offers further explanation here.

Recent Developments

Eminent domain re-entered the spotlight in 2012 with the Northern Pass Project. Spokespeople for the project said that there was no plan to use eminent domain, but some residents felt their land was at risk. 

The state legislature ultimately passed HB 648, which stops the Northern Pass from using eminent domain—for now. 

HB 648 forbids the use of eminent domain for regional electricity projects when costs and benefits cannot be shared across the ISO - New England network.  ISO - New England is responsible for moving electricity throughout New England, including New Hampshire.

However, the way HB 648 is written, the Northern Pass Project might be able to use eminent domain if ISO - New England changes its rules about cost sharing.

Some argue that HB 648 should be expanded to forbid eminent domain for all projects that do not directly benefit New Hampshire.  Some HB 648 opponents are also concerned that the bill is too reliant on a non-governmental entity, ISO - New England.

Others support the narrow language of HB 648 because projects that do not benefit New Hampshire directly may still benefit the state by boosting the regional economy. 

LEGISLATIVE HISTORY

Killed in the House

Establishes protections for property owners if a pipeline company takes their land through eminent domain. For example, this bill sets up a process for the pipeline company to pay for reloaction, temporary housing, and legal expenses.

Died in Conference Committee

Makes various changes to the laws regarding the use of eminent domain for pipelines. For example, this bill allows an owner whose property is taken under eminent domain to require the pipeline company to acquire the entire property, not just a part.

Killed in the House

Requires offers in eminent domain cases to be at least 300% of the determined fair market value of the property. If it is determined that a property was undervalued by 20%, this bill also states the condemning authority would be liable to the property owner for attorney's fees.

Killed in the House

Allows the condemnee to refuse an offer from the condemnor under eminent domain law.

Killed in the House

Requires public utilities to notify the governor and all state legislators of a proposed project, then wait until a full legislative session has passed before acquiring land by eminent domain. This would give the legislature the opportunity to ban the use of eminent domain for a particular project.

Signed by Governor

Originally written to require a pipeline company to purchase all of a resident's land when the land is taken through eminent domain.  The Senate rewrote the bill to instead increase the criteria for the Site Evaluation Committee to consider when approving pipelines.

Tabled in the Senate

Requires approval of "the appropriate legislative body" before publicly owned landed is seized through eminent domain.

Signed by Governor

Forbids the use of eminent domain for regional electricity projects when costs and benefits cannot be shared across the ISO - New England network.

Should NH do more to limit eminent domain?

FOR
REPRESENTATIVES

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Issue Status

A bill offering several new protections for property owners if eminent domain is used during a pipeline construction project, SB 229, passed the Senate but was killed in the House.

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