Eminent domain revisited

By Loren Davis

A recent article in The Conway Daily Sun reported on the U.S. Supreme Court decision to allow the use of eminent domain to expropriate some older homes on the waterfront in New London, Ct., for a private development. The developer plans to build offices, a hotel and convention center. The National Association of Realtors issued a brief on the Kelo case in favor of the rights of the property owners whose land was in jeopardy. Realtors nationwide take an oath to protect the individual right of real estate ownership and to widen the opportunity to enjoy it.Eminent domain is established in the Fifth Amendment to the U.S. Constitution, and the various states have their own variations of the law in state constitutions. In Blacks Law Dictionary, eminent domain is defined as The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character. In the courts recent 5-4 decision, the practice of expropriation was extended to private development that intended to benefit the public at large by means of economic development of a depressed area. This taking of private property has been practiced around the country for new highway construction required for new department stores or malls. Other examples include the taking of land for sports stadiums and protective zones around nuclear power stations.Eminent domain has been used locally for the yet-to-be-built Route 16 bypass. But what if you own land on one of the local lakes or ponds? Can your town now decide to appropriate your land to build a public boat launch, beach, or park? The answer is that the state of New Hampshire and local towns already have that power. Generally, if the state or town decides that it needs your property, it is futile to fight to stop the action. What one may do is argue over the value offered for the property being taken. An owners decision needs to be based on how close the compensation comes to fair market value and how much time and money may be spent in obtaining a higher sum. In Concord, the N.H. State Senate has a task force studying the Kelo Decision to see if changes are needed for the state constitution. State Sen. Joe Kenney, although not a member of the task force, attended the first meeting. The state legislature is not in session right now, but the study group plans two more meetings this month.I contacted Senator Kenney, and his office provided the following statement regarding the decision "The recent ruling of the U.S. Supreme Court decision allowing the taking of private land for private development is way off base, according to Republican State Senator Joe Kenney of Wakefield. This decision has prompted the New Hampshire State Senate to create a task force to see if the state needs a stronger statue on the measure or a possible constitutional amendment. Kenney prefers a constitutional amendment to have the people of the state to weigh in on their displeasure of this U.S. Supreme Court Ruling and to send a message back to Washington, DC. No one should have to be forced to sell his or her land for economic development purposes. We should be protected under the Fifth Amendment and not allow incidental public benefit to overstep our individual rights. In the 1980s the case of Merrill versus the City of Manchester and Manchester Housing Authority ruled in favor of the landowner to preserve his 23 acres of undeveloped land on South Willow Street in Manchester. But even with this legal case on the books, the New Hampshire Legislature still needs to tighten its language on the subject and we as state officials need to let the public know that we are taking every precaution to protect our rights as citizens." Senator Kenney may be reached by e-mail at joseph.kenney@leg.state.nh.us I am sure that he will be interested in readers comments regarding eminent domain.Loren C. Davis is owner and founder of Buyer Representatives of Northern New England. He has been a member of the White Mountain Board of Realtors for 13 years and has practiced Exclusive Buyer Agency since 1997. He is past president of the New Hampshire Association of Exclusive Buyer Agents and has earned the coveted Accredited Buyer Representative (ABR), Graduate Realtors Institute (GRI), and the Graduate Buyer Representative (GBR) designations. He may be reached by phone at (603) 447-1329, 1-800-741-5091, or www.BuyerRepNNE.com.