City of Keene v. Armento

651 A.2d 924, 139 N.H. 228, 1994 N.H. LEXIS 130
CourtSupreme Court of New Hampshire
DecidedDecember 19, 1994
DocketNo. 93-717
StatusPublished
Cited by2 cases

This text of 651 A.2d 924 (City of Keene v. Armento) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Keene v. Armento, 651 A.2d 924, 139 N.H. 228, 1994 N.H. LEXIS 130 (N.H. 1994).

Opinion

HORTON, J.

The defendants appeal from a decree of the Superior Court (Brennan, J.) holding that RSA chapter 498-A, rather than RSA chapter 423, should be followed by the City of Keene for eminent domain proceedings involving an extraterritorial airport taking. We affirm in part and reverse in part.

The City of Keene (city) owns and operates the Dillant-Hopkins Airport, which lies almost entirely within the boundaries of the Town of Swanzey (town). Both the city and the town are municipalities in Cheshire County. All defendants are residents of the town and own property either abutting or in the immediate vicinity of the airport.

Pursuant to RSA 498-A.TO (1983), the city notified the defendants that it would be entering and surveying their property to locate, define, and determine the extent of obstructions to air navigation. The defendants refused entry, asserting that the city may do so only by following RSA 423:3 (1991), which requires the city to petition the county commissioners. The city then filed a petition for declaratory judgment and permanent injunction, contending that RSA chapter 498-A applies and requesting the superior court to enjoin the defendants from interfering with the city’s right to enter and condemn the defendants’ property. Because the trial court ruled that RSA chapter 498-A superseded RSA 423:3, it determined that the city was entitled to enter prior to condemnation pursuant to RSA 498-A: 10, and enjoined the defendants from interfering with that right. On appeal, the defendants argue that RSA chapter 498-A does not supersede RSA 423:3.

The defendants argue that application of RSA chapter 498-A rather than RSA 423:3 would have two significant effects. First, they assert that RSA chapter 498-A does not require the condemnor to prove the necessity of a taking before a jurisdictionally competent body prior to the actual taking, thereby depriving the landowner of an opportunity to be heard prior to the taking. Second, they assert that if RSA 423:3 applies they would have the “owner’s option” found in RSA 371:5-a, whereby the owner of land subject to a proposed partial taking could force the condemnor to condemn and take in fee the entire property. RSA 371:5-a (1984).

In 1929, the legislature enacted RSA chapter 423 which confers upon municipalities the right to own and operate municipal airports within or beyond their boundaries and the power of eminent domain to condemn land for such purposes. In addition to granting the power to condemn, RSA chapter 423 sets forth procedures for doing so. See RSA [231]*231423:2, :3 (1991). The procedures differ depending on whether the land subject to the taking is located in the municipality or outside the municipality. When the proposed taking involves land solely within the boundaries of the municipality, the statute mandates the same procedures used for the taking of land for highway purposes. RSA 423:2. When the proposed taking involves land outside of the municipality, the municipality must petition the county commissioners for a determination of necessity prior to any condemnation. RSA 423:3. The statute directs the county commissioners to follow the procedures used by the public utilities commission in public utility takings, as provided in RSA 371:1-13. RSA 423:3. RSA 423:1 grants the city the power to condemn land outside its boundaries for airport purposes, but the exercise of that power is conditioned upon a finding of necessity by the county commissioners. RSA 423:3.

In 1971, in an effort to simplify an eminent domain law characterized as “a confusing, antiquated and often ambiguous collection of statutes,” Manias, Eminent Domain Procedure and the Commission System, 14 N.H.B.J. 61, 62 (1972), the legislature enacted RSA chapter 498-A, the eminent domain procedure act. The act’s stated purpose is to “provide a complete and exclusive procedure to govern all condemnations of property for public purposes and the assessment of damages therefor.” RSA 498-A: 1 (1983) (emphasis added). The act repealed “[a]ll acts or portions of acts inconsistent” with it but did not explicitly repeal any individual statute. RSA 498-A:29 (1983). The legislature later amended the act to exempt public utilities and “municipalities acting under RSA 38” from its application, so that condemnations by public utilities and by municipalities acting under RSA chapter 38 are the only condemnation proceedings explicitly exempt from RSA chapter 498-A. RSA 498-A:3 (Supp. 1993); Laws 1981, 3:2; Laws 1990, 70:3.

RSA chapter 498-A is a comprehensive eminent domain procedure act, not a comprehensive eminent domain enabling statute. RSA 498-A: 1 (1983). Eminent domain statutes enacted before RSA chapter 498-A contain both a grant of power and the procedure to be followed when exercising that power. We must look to statutes other than RSA chapter 498-A to find the enabling authority for all takings. We must look to those same statutes for the proper procedures in situations where RSA chapter 498-A does not exclusively control procedure, particularly where additional procedures are necessary to establish the power to condemn or preserve the condemnee’s right to challenge necessity. See RSA 498-A: 1. The question in this case is which elements of RSA 423:3 and RSA chapter 498-A provide the proper procedure for the exercise of the grant of power found in RSA 423:3.

[232]*232 Although the stated intent of RSA chapter 498-A is to unify and govern all eminent domain procedures, RSA 498-A: 1 contains two significant limitations. RSA chapter 498-A “is not intended to enlarge or diminish the power of condemnation given by law to any condemnor and it is not intended to enlarge or diminish the rights given by law to any condemnee to challenge the necessity for any condemnation.” RSA 498-A: 1. The power of condemnation for extraterritorial airport takings is granted under RSA 423:3. The grant is conditioned on a determination of necessity by the county commissioners having jurisdiction over the subject territory. Under the procedures of RSA chapter 498-A, however, title passes, and the condemnor gains the right to enter and take possession merely by filing a declaration of taking and depositing an estimated amount of just compensation. RSA 498-A:5; :11 (1983). The only issue for the board of tax and land appeals to determine is the appropriate amount of just compensation. RSA 498-A:24. This procedure is appropriate for use by a condemning authority acting within its territorial jurisdiction where the determination of necessity is made by the condemning authority, subject to hearing and challenge. It is not appropriate for an extraterritorial taking where the condemning authority acts outside its territorial jurisdiction and the legislature has not conferred extraterritorial jurisdiction. Removing the requirement that the municipality petition the county commissioners for a determination of necessity prior to the taking would deprive the condemnee of the right to have necessity determined by a jurisdictionally competent body designated by the legislature. This would enlarge the condemnation power of the condemnor and diminish the rights of the condemnee to challenge the necessity of the taking in contravention of the stated limitations of the act. RSA 498-A: 1.

In Public Service Co. of New Hampshire v. Lovejoy Granite Co., before RSA 498-A.-3 was amended to exclude from its application takings by public utilities, we held that RSA chapter 498-A did not repeal RSA chapter 371 for such takings. Public Serv. Co. v. Lovejoy Granite Co., 114 N.H.

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Cite This Page — Counsel Stack

Bluebook (online)
651 A.2d 924, 139 N.H. 228, 1994 N.H. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-keene-v-armento-nh-1994.