Kelo decision prompts pledge from top lawmakers to change laws and consitution to curb takings for private development.
New Hampshire Public Radio's Josh Rogers has more.
The Kelo decision relies on the facts of a dispute in New London, Connecticut, but its effects are now being felt nation wide… So far, it's inspired lawmakers in more than 30 states to revisit their eminent domain polices. Senate Majority Leader Bob Clegg says he has no doubt that voters support tightening existing state standards.
"The public at large is definitely interested in making sure that someone can't come knocking on their door and say, 'Oh, by the way, Kohl's department store is taking you property to build tomorrow, so get out.'"
Clegg's scenario may be evocative, but it doesn't reflect either the facts of the Kelo case, or to any known state precedent…… Bernie Waugh is a Lebanon Attorney who specializes in municipal land use policy.
"I've been working with towns and cities throughout the state for the last 20 years or so…..And I'm certainly not aware of ether during that time or in NH history of any use of the eminent domain authority to the realm of outrageousness that people have reacted to in the Connecticut case."
Those leery of potential legislative overreaction also point out that Connecticut has different eminent domain laws than NH. Maura Carroll is General Counsel to the NH Municipal association.
"CT has some statutes to deal with distressed municipalities -- and that allows them to use the powers of eminent domain, but also qualifies private businesses in those municipalities to receive direct government aid……And that's precluded in NH, because we have a constitutional provision -- part 2 article 5 says we cannot directly provide financial aid to a private entity unless you can show there is a greater public benefit than private benefit."
There are relatively few State Supreme court decisions that address the weighing of public and private benefits in the context of eminent domain……But two stand out. In 1867 NH's highest court ruled that jobs and economic benefit justified the state's taking private land to build dams to power privately owned mills.…….But 118 years later, in case of Merrill V. Manchester the court barred the taking of open space and residential property for an industrial park -- ruling the project would be of only incidental public benefit. Concord Attorney Martin Gross, says the Merrill ruling offers protections for property owners not found in the Kelo decision…..The most fundamental, believes Gross, is the precedent that the court will make it's own factual findings about the condition of the property in question.
"The court will not simply accept the public authority's determination that the property is blighted….The court will as it did in merrill take a look and actually see if the property is blighted -- that's a protection most states simply don't have."
But if Gross thinks Kelo-style takings are unlikely, if not impossible in NH…….State eminent domain statutes are not exactly consistent. There is, for instance, a law on the books that allow takings for what is explicitly a private benefit. That law allows landlocked property owners to build roads across other peoples land….to extract trees or other natural resources…..Yet the same time, there's another law on the books that bars towns takings private land to build trails for recreation -- a use that would seem unambiguously public………Lawmakers backing the eminent domain changes admit bringing consistancy to all relevant statutes will be complicated…..Particularly when the stated goal is to hold all takings to an equal standard…...yet not hamper "legitimate" urban renewal efforts……But changes to some laws seem a near certainty.…..Speaking to reporters last week, Senate President Ted Gatsas insisted lawmakers must act to allay public fears.
"The things we're hearing on the streets…is very important to understand…..When the senior citizens are concerned about possibly losing their homes --that's very near and dear to their hearts……And that's the one thing I've been asked as I've been parading through the district is what are you going to do?"
That much, of course, remains to be seen…… Lawmakers have so far filed requests for 4 bills on the subject…..Language for the proposed constitutional amendment, which will be drafted by house leaders, also remains in the works..
Delicious
Digg
Reddit
Facebook
Google
Yahoo