NH Legal Perspective: Eminent domain explored — lessons from State v. Beattie
This article written by attorney Nicolas Harris, was originally published by the NH Business Review and can be found here.
In a recent case before the New Hampshire Supreme Court, the state’s power of eminent domain was once again brought into focus. This June, the New Hampshire Supreme Court sided with the state in State v. Beattie, a dispute centered on the government’s taking of a 0.93-acre portion of private land for the replacement of the existing Rogers’ Rangers Bridge over the Connecticut River between Lancaster, N.H., and Guildhall, Vermont.
Dispute first arose in 2018 when landowners Shane and Trina Beattie of Lancaster declined the state’s offer to purchase a portion of their land. In court, the Beatties challenged the State’s taking, arguing it wasn’t necessary or sufficiently beneficial to justify the loss of their property. The bridge was completed in fall 2020, but the dispute continued.
Two trips to the New Hampshire Supreme Court later, the state received its final victory last Wednesday when the New Hampshire Supreme Court affirmed the lower court’s ruling in the state’s favor and concluded there was a “net-public benefit” to justify the taking.
But how can the state justify taking private property in cases like Beattie?
Direct takings
When the government acquires private property for public use, it exercises a power known as eminent domain. Under the Fifth Amendment of the U.S. Constitution, any such “taking” must serve a “public use” and provide the landowner with “just compensation” — essentially, the market value of the property.
A textbook example of this process is precisely what occurred in State v. Beattie: The state needed additional land to replace an outdated bridge and initiated a direct condemnation proceeding through the New Hampshire Board of Tax and Land Appeals. Direct condemnation openly acknowledges the government’s intention to take property and guarantees compensation to the owner. Typically, disputes in these cases focus on whether the project genuinely serves a public use.
The concept of “public use” is broadly interpreted and commonly includes projects such as roads, bridges and schools. However, the definition can also extend to broader public purposes, including economic development.
Many readers may remember the controversial 2005 U.S. Supreme Court decision in Kelo v. City of New London. In that case, the Court upheld the taking of homes to private developers, citing economic revitalization as a valid public purpose. This decision sparked widespread public criticism, prompting many states, including New Hampshire, to tighten their eminent domain laws
Nevertheless, the fundamental protections in direct takings remain consistent: The taking must clearly serve the public, and landowners must receive fair compensation.
Indirect takings
Not every taking involves buying a landowner’s physical land. Sometimes government regulations can indirectly deprive property owners of significant value or use of their land. These scenarios are termed an “inverse condemnation” or “regulatory taking.”
Unlike direct condemnation, inverse condemnation occurs when a property owner proactively sues the government, asserting that a law or regulation has effectively deprived them of their property without due compensation. For instance, a regulation that prohibits a landowner from building a home on their land could give rise to an inverse condemnation claim.
In this scenario, the government doesn’t physically acquire the property as seen in Beattie, but from the perspective of the affected landowner, something essential has been taken away — the opportunity to build a home on their land.
Balancing public needs and private rights
Beattie underscores the complexity inherent in eminent domain law. Regardless of individual opinion on the public benefit or fair compensation analysis, eminent domain has undeniably facilitated essential development throughout the state and country with at least the assurance of fair payment to impacted landowners.
But while direct takings serve crucial public needs — such as building highways, bridges, and utility infrastructure — they inherently impact private property rights to an uncomfortable degree (the government taking private land seems to seriously conflict with our state’s “Live Free or Die” mentality).
On the other hand, indirect or regulatory takings present more subtle challenges. They require landowners, homeowners, and business owners to remain vigilant, carefully scrutinizing how new laws or regulations might affect their property rights.
Being aware of these issues and understanding available legal remedies is critical to protect one’s private interests.