Most people are familiar with eminent domain. Eminent domain occurs when the government takes private property for public use, with payment to the owner. Sometimes the government takes private property without compensating the owner. This form of taking is “inverse condemnation”. Inverse condemnation can be difficult to spot because the private citizen retains fee ownership of his or her property, but property owners know it when they see it.
Sundell v. the Town of New London
The case giving “inverse condemnation” its regularly-cited definition in New Hampshire is
Sundell v. the Town of New London, 119 N.H. 839 (1979). There, lakefront property owners downstream from the town’s malfunctioning sewage treatment plant claimed New London had exercised a taking after foul odors, algae blooms, green slime and dead fish washed ashore. The discharge, they claimed, caused a private nuisance and amounted to an inverse condemnation. In defense, New London argued the lake’s waters were public below its high-water lines, so no physical invasion of the property owners’ properties ever occurred. The high court was unmoved.
Bad odors, slimy shores and rotting fish all diminished the owners’ enjoyment of their properties. Inverse condemnation had occurred. The supreme court affirmed the lower court ruling to compensate the plaintiffs for the government’s “taking” of their property.
Burrows v. City of Keene
In another frequently cited case, Burrows v. City of Keene, 121 N.H. 590 (1981), the high court strongly rejected what it considered governmental overreach. John Burrows, a real estate developer, purchased a 124-acre parcel intending to build a large subdivision. City planners wanted his property converted to open space, and gave him an offer for the property based on their intended open space use rather than Mr. Burrows’ residential plans. When the city proceeded with plans to take the property at the lower-assessed value, Mr. Burrows sued. The trial court found that inverse condemnation had occurred, and the city appealed to the Supreme Court.
The high court’s assessment was that the town’s actions ran afoul of New Hampshire’s Constitution, which it consulted with solely as the basis for its decision. Keene’s actions were so unconstitutional the court felt compelled to award the plaintiffs their reasonable counsel fees plus double costs incurred in its appeal “[b]ecause a citizen should not be compelled to bear the financial burden of protecting himself from unconstitutional abuses of power….” Government approach to land use decisions must be grounded in fairness and properly observe Constitutional limits. To read about two cases where the government prevailed, see my previous blog post.
Paul J. Alfano
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