2011-095, J.K.S. Realty, LLC & a. v. City of Nashua

that own, as tenants in common, a 26.8 acre parcel of land in Nashua (the by the parties, or are supported in the record. The petitioners are two trusts

No. 2011-095 Hillsborough-southern judicial district

The following facts were either found by the trial court, are undisputed

, of Bedford (Arthur G. Greene, of Nashua (James M. McNamee appeal a ruling of the Superior Court (Lynn

We affirm. Nashua (City), did not take the petitioners’ property by inverse condemnation. reporter@courts.state.nh.us, J.) that the respondent, the City of HICKS, J. The petitioners, J.K.S. Realty, LLC and L.J.J. Realty, LLC,

brief, and Stephen M. Bennett orally), for the respondent. Office of Corporation Counsel ___________________________ on the

THE SUPREME COURT OF NEW HAMPSHIRE Prunier on the brief), for the petitioners. the brief and orally), and Prunier & Prolman, P.A., of Nashua (Gerald R. Greene Lombardi Law Group, P.L.L.C. on to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as proposed Sargent Avenue Extension and instead retain Baldwin Street with a

p. 2 revised to reduce the BSP from four lanes to two lanes and to eliminate the

arose between the City and DOT as to the plans. In 2003, the plan was again raised the possibility of a total taking of the property. At some point, a dispute “connector loop” extended onto a significant portion of the property, which

an above-grade crossing to connect to the BSP. Under this plan, the

changed the plan to have Sargent Avenue Extension be a “connecter loop” with In or around 2000, the railroad objected to an at-grade crossing and DOT

would be taken in its entirety.

much land would be needed for the BSP and whether the petitioners’ property However, in early 1999, they learned that the State was unsure as to how that the State might take the entirety of their property in the fall of 1999.

the property were acquired for the BSP and, in 1998, the petitioners were told

parallel to the railroad tracks. From 1998 to 2003, many parcels surrounding

taking a 200-foot right-of-way across the northern portion of the property While never formalized, it was anticipated that the BSP would require

“ha[d] very steep access issues.”

the BSP, or streets located at the southern boundary of the property, which under this plan access would be from the proposed Sargent Avenue Extension, result, the petitioners were concerned about access to their property because

have discontinued Baldwin Street and crossed the petitioners’ property. As a

Sargent Avenue Extension. The proposed Sargent Avenue Extension would crossing over the adjacent railroad right-of-way, creating what was to be called Initially, the BSP was to be a four-lane roadway with an at-grade

changes to the design and delayed implementation of the project.

2004; however, over the next several years various issues arose that resulted in stage for the BSP and it was expected that the project would be completed in and manage it on behalf of the City. This was intended to be the final design

BSP was approved that same year. At that point, it was decided that the New for the BSP to receive federal funding. The EIS was completed in 1997 and the study began for an environmental impact statement (EIS), which was required

included in the City’s master plan. That same year, an environmental impact

provide a second river crossing” over the Nashua River. In 1985, the BSP was on Main Street . . . as well as congestion in downtown Nashua and, also, to The BSP was conceived by the City in the 1970’s “to address air quality

Parkway (BSP). railroad tracks. The property is located in the area of the planned Broad Street feasible access to the property. The northern section of the property abuts sale to a developer. It is bisected by Baldwin Street, which provides the most property). The property was purchased in 1980 for purposes of development or followed. p. 3 substantial and prolonged as to rise to the level of a taking.” This appeal continuing uncertainty regarding the status of the BSP has [not] been so Following a three-day bench trial, the trial court found “that the

purchase and sale agreement fell through. economically viable use of their property as of April 2004, when the last

the delays and continuing uncertainty regarding the BSP deprived them of all

limited to, the fair market value of the property on that date. They alleged that condemnation on April 10, 2004, and seeking damages, including but not requesting that the trial court rule that the City took the property by inverse

In 2009, the petitioners filed a petition for inverse condemnation,

commercial uses, and multi-family developments.” subdivisions, modular homes, manufactured homes, elderly housing, able to undertake” building “single-family residences, . . . conservation

that, unless prohibited by zoning regulations, the petitioners “would have been

they have harvested timber on the property for a profit and there was testimony Since 2004, the petitioners have not marketed the property. However,

through.

City was going to take the property and, as a result, the sale did not go The petitioners decided to keep the property until it was resolved whether the the petitioners for an extension until he learned what the City intended to do.

the City was unsure whether it would take the property for the BSP and asked

$4,000,000 with a closing in April 2004. At some point, the buyer learned that

into on October 7, 2002, for sale of the entire property at a purchase price of residential subdivision.” The last purchase and sale agreement was entered wetlands . . . and the ‘conservation buffer’ along the property line near the

with the topography of the property, including “the narrowness of the site, the

purchase and sale agreements. At least one of the buyers expressed concern sell the property, or a portion thereof, including entering into three separate Since 1998, the petitioners made numerous unsuccessful attempts to

preparing the property for sale. BSP. From 1980 to 1994, the petitioners spent between $82,000 and $127,000 right-of-way along the northern border of the property for the purposes of the

stipulation of the rezoning process, the petitioners dedicated an eighty-foot

multi-family development, which was accomplished in January 1985. As a In 1983, the petitioners began to have the property rezoned to allow for

property via Baldwin Street. newly constructed bridge. This plan would allow access to the petitioners’ recoveries or redress for a single wrong.” 25 Am. Jur. 2d Election of Remedies

p. 4 recourse to any remedy, or to alternative remedies, but to prevent double

awarded in that proceeding. Thus, the petitioners are not attempting to collect “The purpose of the doctrine of election of remedies is not to prevent

A. whose participation is limited to protecting their rights under RSA chapter 498-

taking will proceed before the BTLA and they will be entitled only to damages

As for the BTLA proceeding, they contend that they are merely defendants twice on the same cause of action. Id enrichment would become relevant only if the petitioners attempted to collect None of these circumstances applies to this case. First, unjust 4

inequitable or res has actually been misled by the plaintiff’s conduct or the result is otherwise further maintain that if they do not succeed in this appeal, the declaration of the damages owed under any inverse condemnation award in this case. They appeal, the deposit paid to them in the BTLA proceeding would be applied to

elected their remedy by filing the inverse condemnation claim in superior court. remedies, but should not seek both.” The petitioners contend that they have recover twice for a single alleged wrong” and “should elect one of those

confined to cases where the plaintiff may be unjustly enriched or the defendant

they do not intend to collect twice. They contend that if they prevail in this

election of remedies, the City maintains that the petitioners “could potentially 10 (1986) (quotation omitted).

judicata can be applied.” In re Estate of Ward, 129 N.H. 4,

we have “held that the formal doctrine of election of remedies should be Co. v. Pine Bluff, 354 F.3d 945, 951 (8th Cir. 2004) (citation omitted). Thus, so long as the plaintiff receives but one satisfaction.” Pa. Nat. Mut. Cas. Ins. eminent domain. See nor does it preclude pursuit of consistent remedies, even to final adjudication,

preventing a litigant from presenting inconsistent causes of action or testimony § 3 (2004) (footnotes omitted). “Its purpose has also been described as proceeding based on a partial taking in 2010. Relying upon the doctrine of for a total taking in 2004 in this case while also seeking damages in the BTLA The City argues that it is inconsistent for the petitioners to seek damages

Land Appeals (BTLA) to acquire a portion of the petitioners’ property by $1,315,000 deposit of damages with the New Hampshire Board of Tax and indicates that, on March 16, 2011, DOT filed a declaration of taking and a

RSA 498-A:11, III (2010). answer with the BTLA contesting the sufficiency of the damages amount. See requested a withdrawal of the deposit of damages and thereafter filed an

The petitioners filed their notice of appeal in early February 2011. The record As an initial matter, we address the City’s motion to dismiss this appeal. p. 5 5

the subject matter, to amount to a taking.”). entitled to compensation for a taking of their entire property. Finally, res its effects are so complete as to deprive the owner of all or most of his interest in deposit for a partial taking simply reflects their continued belief that they are (“Governmental action short of acquisition of title or occupancy has been held, if before the BTLA. The petitioners’ pursuit of this appeal despite accepting the omitted)); United States v. General Motors Corp., 323 U.S. 373, 378 (194 p. 5 5) substantially deprived of its legitimate use, . . . he should be paid.” (quotations M.R.R., 51 N.H. 504, 534 (1872) (“To the extent to which the owner is . . . Sundell v. Town of New London, 119 N.H. 839, 845 (1979); see Eaton v. B.C. & whole or in part, may . . . constitute a taking, even if the land itself is not taken.” substantially interferes with, or deprives a person of, the use of his property in owner has a cause of action for compensation. Id. “Governmental action which governmental body has committed an unconstitutional taking and the property power of eminent domain. Arcidi, 150 N.H. at 698. When this occurs, the governmental body takes property in fact but does not formally exercise the taking by inverse condemnation. Inverse condemnation occurs when a Constitution and existing case law by ruling that the City did not commit a of damages for the partial taking and are seeking additional compensation The petitioners argue that the trial court erred under the New Hampshire

(2007); Colorado Springs, 260 P.3d at 32. the law to the facts de novo. See ACAS Acquisitions v. Hobert, 1 p. 5 55 N.H. 381, 400 there is evidence in the record to support them, but we review its application of 291, 299 (Wis. 2012). We will defer to the trial court’s factual findings, provided S.W.3d 546 (Tex. 2004); Brenner v. New Richmond Regional Airport, 816 N.W.2d Regional Water Dist. v. Gragg, 43 S.W.3d 609, 615 (Tex. App. 2001), aff’d, 151 Fitger Brewing Co. v. State, 416 N.W.2d 200, 205 (Minn. Ct. App. 1987); Tarrant Colorado Springs v. Andersen Mahon Ent., 260 P.3d 29, 32 (Colo. Ct. App. 2010); Rye, 150 N.H. 694, 698 (2004). Other jurisdictions apply a similar standard. See constitute a taking is a question of law reviewed de novo. Cf. Arcidi v. Town of suggestion that the City was unaware that the petitioners withdrew the deposit exercise of discretion. We disagree. Whether the City’s actions are sufficient to taken their property and they are entitled to just compensation. There is no maintains that we should review the trial court’s order for an unsustainable proceeding. In both proceedings, the petitioners maintain that the City has We begin by addressing the proper standard of review. On appeal, the City

now turn to the merits of the petitioners’ appeal. the BTLA proceeding. Accordingly, the City’s motion to dismiss is denied. We judicata does not bar this appeal because no final adjudication has occurred in

City by accepting the deposit of damages in the declaration of taking twice on the same cause of action. Further, the petitioners have not misled the in itself, constitute a taking.” Colorado Springs p. 6 land for public use, and preliminary steps taken to accomplish this, does not,

property never actually disturbed; that the threat or possibility of

plotting and planning by a governmental body in anticipation of the taking of

that the projected improvement may be abandoned and the

“the weight of authority in other states and in the federal courts [is] that mere

of property, or deprive the owner of the use and enjoyment thereof; that plotting or planning does not, in itself, amount to an invasion planning and delayed condemnation proceedings constitute a taking. However, compensated therefor”). The reasons most frequently cited for this rule are We have not had occasion to address whether prolonged government

develop or sell to a developer,” effectively taking the property as of April 2004.

thereof, is not a taking or damaging of such property entitling the owner to be subject of a future condemnation proceeding, “or the plotting or planning [BSP] over an extended period of time rendered [their property] impossible to mere publication of the fact that particular or specified property may be” the result, they maintain that “the City’s actions concerning the development of the the City and the access that would be available for any remainder.” As a

Sundell

939 (Ariz. 1969) (noting that “[o]ther jurisdictions have uniformly held that the cases); see Weintraub v. Flood Control District of Maricopa Co., 456 P.2d 936, uncertainty as to the date of acquisition, the amount of land to be acquired by, 260 P.3d at 33 (collecting

alone.

whether there is an unconstitutional taking.” Allianz Global Risks U.S. Ins. Co.

subject property to be under a ‘cloud of condemnation’ due to years of Here, the petitioners argue that “[t]he City’s actions have caused the

the determination of whether a compensable taking has occurred. Id. Conway, 127 N.H. 312, 317 (1985). Factual differences in each case will affect one of degree and its resolution is governed by no set test. Funtown v. Town of v. State of N.H. burden imposed be borne by the public and not by the individual, 161 N.H. 121, 124 (2010) (quotation omitted). The question is and justice, as between the State and the citizen, requires that the 846. “We look to the individual circumstances of each case to determine and of sufficient magnitude to cause us to conclude that fairness depend upon the means by which the property is taken.” Sundell, 119 N.H. at (2005), “[t]he right to recover for inverse condemnation . . . cannot be made to act or regulation,” Pennichuck Corp. v. City of Nashua, 152 N.H. 729, 733 While “[i]nverse condemnation may be effected through either physical

, 119 N.H. at 845 (quotation and ellipsis omitted).

annoyance and must be sufficiently direct, sufficiently peculiar, [T]he interference must be more than mere inconvenience or p. 7 7

compensable.” Id of the property, it would cause but an incidental damage which is not proceeding “might have, as a practical matter, interfered with the marketability matter at hand.”

an owner holds property.” Cayon v. City of Chicopee where the threatened taking is imminent, is but one of the conditions on which fact that at some future time land might be taken under eminent domain, even other jurisdictions, most notably Washington Market Ent., Inc. v. City of BSP constituted a taking of their property, the petitioners rely upon cases from In support of their argument that the City’s prolonged planning of the

that the petitioners’ property may be the subject of a future eminent domain distinguishable as they involve “circumstances far more egregious than the (Pa. 1915). However, we agree with the trial court that these cases are wasteland by the condemning authority.” Id Com’n, 545 P.2d 105 (Or. 19 p. 7 76), and In re Philadelphia Parkway, 95 A. 429 Trenton, 343 A.2d 408 (N.J. 1975), Lincoln Loan Co. v. State, State Highway

to rise to the level of a taking of [the petitioners’] property.” We agree. “The

. (quotation omitted). enjoyment of the property.” Id

(Mass. 19 p. 7 71) (quotation omitted). While the possibility over a number of years

protracted.” Id regarding the status of the BSP has [not] been so substantial and prolonged as have adopted urban renewal plans and the condemnation proceedings are In this case, the trial court found “that the continuing uncertainty

activity in instituting or continuing the condemnation proceedings.” G & A. at p. 7 710-11. amount to an invasion of property or deprive the owner of the use and when the condemning authority . . . engage[s] in aggravating delay or untoward are not compensable and . . . mere plotting and planning do not, without more, Nevertheless, we now hold that “damages arising from protracted delay alone

character of an area may be changed to the detriment of the property owner Annotation, Plotting or Planning in Anticipation of Improvement as Taking or. “Indeed, a number of jurisdictions have recognized the whole

(quotation omitted). “These situations generally have occurred when cities municipalities. Land, LLC v. City of Brighton, 233 P.3d p. 7 701, 708 (Colo. Ct. App. 2010)

“caught in so-called ‘precondemnation blight’ or ‘precondemnation cloud’ . . . Undoubtedly, there will be certain circumstances where landowners are

rationale of these authorities persuasive. Damaging of Property Affected, 3 p. 7 7 A.L.R.3d 127, 131 (1971). We find the

held; and that the rule is in aid of the growth and expansion of condemnation is one of the conditions upon which all property is enjoyment of its property.” Id

indicate a substantial interference by the [defendant] with the use and

, the defendant declared the plaintiff’s property, steps toward completion of the parkway over a period of ten to twelve years. Id

tenants if they vacated [the] plaintiff’s premises.” Id purposes” and that it “would pay moving expenses and other compensation to

was passed there had been no taking of the petitioner’s property. Id. damages” and the city moved to quash, arguing that until an ordinance to open Supreme Court found that the “[p]laintiff ha[d] alleged adequate facts which at 430. The petitioner sought an “appointment of viewers to assess its

buildings, began work on parts of the parkway, and took many of the necessary property. Id condemnation, acquired some properties by purchase, tore down certain furtherance of the proposed parkway plan, the city took some properties by the lines of a proposed parkway. Philadelphia Parkway, 95 A. at 429. In Finally, in Philadelphia Parkway, the petitioner owned property within the buildings in the area because the defendant was taking them for roadway

property, demolished adjacent buildings and filed condemnation proceedings trial court order granting the defendant’s motion to dismiss, the Oregon income from the property was also reduced.” Id construction of the highway. Lincoln Loan. Ruling on an appeal from a condemnation, claiming a loss in the value of the property and “that the rental Similarly, in Lincoln Loan. Consequently, the plaintiff filed an action for inverse Nevertheless, after ten years, the defendant had not condemned the plaintiff’s

there ha[d] been substantial destruction of the value of its property and that “[c]aused notices to be given to tenants that they would be required to vacate defendant, finding that the plaintiff was entitled to damages if it proved “that

alleged that the defendant took property in the vicinity of the plaintiff’s obtain long-term tenants. Id, 545 P.2d at 106. The plaintiff proposed for a state highway, which the defendant declared necessary for

at 416. redevelopment project that began in 1963. Washington Market

n.3. The court reversed the trial court’s grant of summary judgment for the expenses. Id. at 410. The premises were ultimately sold for taxes. Id. at 410 eventually found two temporary tenants, the rent barely met the upkeep

plaintiff brought a takings action, alleging a loss of tenants and an inability to determined that the plaintiff’s land would not be taken. Id. As a result, the 410. Approximately ten years later, the defendant abandoned the project and

and the surrounding area, “a blighted area” in 1 p. 9 967 as part of an urban In Washington Market 9

“as the beginning of the process for purposes of the inverse condemnation The petitioners next contend that the trial court erred in choosing 1 p. 9 997

the area determined by the court to have been taken.” Id

Id their property within the ‘take’ area” which resulted in inverse condemnation.

account for the unique issues presented by undeveloped land. In Peacock prevent [the petitioners] from developing the property.” however, as the trial court found, the City had not taken affirmative “steps to Citing Peacock v. County of Sacramento. at 403. Here, regulations to frustrate and “‘freeze’ development of any meaningful kind within plans.. at 405. Thus, Peacock involved the application of an ordinance and zoning

county’s actions, the “plaintiffs were deprived totally of the economic use of of their property. Id. at 3 p. 9 94-96, 404. The court found that, as a result of the income. Moreover, unlike in Philadelphia Parkway area of the airport, effectively frustrating the plaintiffs’ economic development at 393. The county adopted an ordinance and rezoned certain property in the plaintiffs owned land immediately south of an airport. Peacock, 77 Cal. Rptr. In the instant case, unlike in Washington Market, the 1969), the petitioners further argue that the trial court’s decision failed to taking in the constitutional sense.” Id, 77 Cal. Rptr. 391 (Ct. App. owner the right to have damages assessed.” Id

and that their possession was about to be disturbed.” Id intention and the extent of the possible taking fluctuated with the varying BSP BSP. While the City indicated that it might take the petitioners’ property, its an unequivocal intention to take the petitioners’ property for purposes of the parkway.” Id, the City here did not evince loss of their property due to an inability to pay the taxes or loss of rental years and all evidencing the intention of the city to open and complete the there is no evidence that the delay in the BSP threatened the petitioners with a

[petitioner] ha[d] been injured, and what the city ha[d] done constitute[d] a court concluded that “under the facts of th[e] case the property of the constitute a taking of land in the constitutional sense so as to give an abutting plotting of a street upon the city plan, without anything more, does not. Consequently, the widening, and grading streets, lanes and alleys” that “hold that the mere property owners that their lands would be appropriated for parkway purposes Id. The court considered the city’s actions to be the “equivalent of notice to the

. In fact, “at some points the parkway [was] open to public use.”

city’s actions constituted “a series of unequivocal acts covering a period of “belong[ed] to this exceptional class.” Id. at 431. The court found that the cases without an ordinance to open” and found that the petitioner’s case “[t]hat the right to compensation, based upon a taking, may exist in exceptional

Court examined the “long line of cases relating to the laying out, opening, In reversing the order quashing the petition, the Pennsylvania Supreme prevail unless a developer has submitted plans for municipal approval. Rather,

p. 10 order. The trial court did not rule that an inverse condemnation case cannot We conclude that the petitioners’ argument misconstrues the trial court’s

this case, cannot find support in the law or in logic.”

having submitted plans for municipal approval, under the circumstances of

“[r]uling that an inverse condemnation case cannot prevail without a developer for denying the [petitioners’] inverse condemnation claim.” They contend that that the failure to seek approvals for a development on the property was a basis The petitioners further argue that the trial court erred in “indicat[ing]

1997 as the beginning date for determining whether a taking occurred. constitute a taking. Thus, we hold that the trial court did not err in utilizing

the earlier activities “denied [them] worthwhile property rights” so as to

approved. Furthermore, the petitioners have failed to articulate in what way

completed until 1997 and it was not until that year that the BSP was actually environmental impact study was begun. Nevertheless, the EIS was not included in the City’s master plan in 1985 and, that same year, an

would be acquired in 1990 or 1991.” The record indicates that the BSP was

United States v. 156.81 Acres of Land, Etc. question necessarily requires a weighing of private and public interests.” “Although no precise rule determines when property has been taken, the

the” BSP, and an early schedule for the BSP, which showed that their “property nine (9) public hearings and/or meetings between 1985 and 1997 concerning point to the inclusion of the BSP in the City’s 1985 master plan, “[a] series of

2004, when the claimed de period from 1997, when the BSP received federal approval, to not agree with [the petitioners’] suggestion that the seven year no error. rather than 1985, to the extent that the court itself utilized this date, we find being that 1997 was the beginning date for the inverse condemnation analysis,

utilized an earlier date for its inverse condemnation analysis, the petitioners

The trial court, in finding that no taking had occurred, stated that it did

While the trial court may have misunderstood the petitioners’ argument as

large and complex as the BSP. (quotation and citation omitted). As evidence that the trial court should have attendant upon governmental planning activities for a project as

BSP in the 1985 master plan that affected their property rights. on the property rights of the landowner” and that it was the inclusion of the

‘extraordinary delay’ rather than normal incidents of ownership

date must focus on when the governmental action began to have serious effects analysis.” They argue that the court “failed to recognize that the beginning the individual alone.” Sundell p. 11 citizen, requires that the burden imposed be borne by the public and not by

cause us to conclude that fairness and justice, as between the State and the

“must be sufficiently direct, sufficiently peculiar, and of sufficient magnitude to As stated above, to constitute a taking, the governmental interference

and excessive delay should be borne by the public, not the [petitioners].”

property was in the path of the [BSP]” and “[t]he burden of this unexplained fairness and justice require that [they] be treated the same as others whose and not the petitioners. They maintain that “[u]nder the circumstances,

required that the burden imposed by the City should be borne by the public

error by failing to find that a taking occurred where equity, fairness and justice

Finally, the petitioners argue that the trial court committed reversible

we need not address this argument.

proposed . . . action.” Cayon the community,” which would “encourage a converse policy of secrecy . . . .”). important part of that planning involves disclosure to the community of the

actions of the municipality in preparing and publicizing plans for the good of implementation. Similar to the development of an urban renewal area, “[a]n

opportunity to persuade the taking authority to alter its plans.” Id the effect of the City’s actions on the [petitioners’] property rights.” Given that error by relying upon the reasonableness of the City’s actions, rather than on The petitioners next assert that the trial court “committed reversible ‘unwarranted’ burden upon the condemning authority” and “so impede the substantial amount of planning among various entities prior to its a de facto taking at that time, would be to impose an ‘oppressive’ and the date of the announcement of the impending condemnation . . . constitutes Buffalo v. J.W. Clement Company, 269 N.E.2d 895, 904 (N.Y. 1971) (“To hold procedures to be followed in” the planning process. Id. at 120; cf. City of compensable taking, this purpose would be frustrated as would the “orderly hold that such disclosure and attendant planning of the BSP constituted a

in . . . such disclosure is to afford community groups and property owners an

plans is a requirement for demonstrating inverse condemnation. omitted). In this case, the record demonstrates that the BSP required a not to do so.” Thus, the court did not rule that the submission of development authorized by the applicable zoning; they simply chose, for whatever reasons,, 119 N.H. at 845 (quotation and ellipsis

appropriate City approvals for development of the property for any use

putative purchasers of the property remained free at all times to seek have been taken, Peacock, 77 Cal. Rptr. at 403, here, the petitioners “and any ‘freeze’ development of any meaningful kind within the area determined” to Peacock, where the court found that the impact of the county’s actions “was to the court distinguished this case from Peacock by noting that, unlike in p. 12 12

A f f i r m e d

City. City and the petitioners, required that any burden imposed be borne by the trial court properly declined to rule that fairness and justice, as between the

(quotation omitted)); cf

appropriations may fail.”). Based upon these considerations, we hold that the

RSA 490:3, concurred. been abandoned by the condemnor and the property never actually disturbed” CONBOY, J., concurred; GALWAY, J., retired, specially assigned under

cannot be a taking. Such legislation may be repealed or modified, or (“The mere enactment of legislation which authorizes condemnation of property

result in a de facto taking” because “[a]t that point, the project still could have issuance of a notice of intent to acquire the property do[es] not automatically mere existence of funding and environmental approvals for the project and the undisturbed. See G & A Land, LLC, 233 P.3d at 708 (recognizing that “[t]he Indeed, the BSP could have been abandoned, leaving the petitioners’ property