2014-0458, Kingston Place, LLC v. New Hampshire Department of Transportation

taking by inverse condemnation. We affirm. violated RSA 498 - A:4, III(a) (2010) and RSA 230:17 (2009), and constituted a property by eminent domain has created a cloud on the petitioner’s titl e, petitioner’s claims that DOT’s long delay in taking a p ortion of the subject respondent, the New Hampshire Department of Transportation (DOT), on the the Superior Court (McHugh, J.) granting summary judgment to the DALIANIS, C. J. The petitioner, Kingston Place, LLC, appeals an order of

attorney general, on the memorandum of law and orally), for the respondent. Joseph A. Foster, attorney general (Rebecca L. Woodard, assistant

orally, for the petitioner. Stepha n T. Nix, of Gilford, by brief, and Paul M. Monzione, of Wolfeboro,

No. 2014 - 458 Rockingham

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 reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 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, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

in light of the policy sought to be advanced by the entire statutory scheme. Id. g oal is to apply statu tes in light of the legislature’ s intent in enacting them, and possible, ascribe the plain and ordinary meanings to the words used. Id. Our whole. Id. We first examine the language of the statute, and, wherever legislature’s intent as expressed in the words of the statute considered as a Home Ins. Co., 166 N.H. 84, 88 ( p. 2 2014). We are the final arbiter of the question of law, which we review de novo. See In the Matter of Liquidation of engage in statutory interpretation. The construction of a statute presents a 2005 vote violates RSA 498 - A:4, III(a). To address this argument, we must of the proposed drainage easement within a reasonable time from the June On appeal, the petitioner first argues that DOT’s failure to offer the value

Id. We review the trial court’ s application of the law to the facts de novo. Id. to judgment as a matter of law, we will affirm the grant of summary judgment. discloses no genuine issue of material fact, and if the moving party is entitled Little Giant Pump Co., 163 N. H. 7 p. 2 27, 730 (2012). If our review of that evidence in the light most favorable to the non - moving party. Phaneuf Fun eral Home v. the affidavits and other evidence, and all inferences properly drawn from them, In reviewing the trial court’ s grant of summary judgment, we consider

summary judgment, which the trial c ourt granted, and this appeal followed. “is null and void” and damages for inverse condemnation. DOT moved for among other things, a declaration that the layout of the limited access highway In December p. 2 2012, the petitioner brought the instant action seeking,

easement is a part, apparently will not be funded until p. 2 2017. the value of the drainage easement. The project, of which the drainage petitioner, however, has never received an offer from DOT to compensate it for an occasion to lay out the proposed limited access hi ghway. See id. The Executive Council, based upon the November 2004 plans, voted that there was In June 2005, a special committee appointed by the Govern or and

essen tial to the Petitioner[’s] . . . operation of its business.” the property on which the drainage easement is proposed to be located “is “from effectively operating its business on the Property” because the portion of petitioner also alleges that the proposed easement precludes the petitioner expanded and precludes th[e] ability to construct an additio nal building.” The “significantly impacts the ability of the existing structure on the Property to be p. 2 2 p. 3 30:45 (2009). According to the petitioner, the proposed easement for which included a draina ge easement on the subject property. See RSA hearing regarding the proposed layout of a limited access highway, the plans nearly three years before the petitioner bought the property, DOT held a public which the petitioner operates a commercial business. In November 2004, September 2007, the petitioner purchased a 3.26 - acre lot in Kingston, on The record establishes, or the petitioner alleges, the following facts. In 3

the June 2005 v ote. proceedings. Accordingly, the provisions of RSA 498 - A:4, III(a) do not apply to to the petitioner’s assertions, the June 2005 vote did not initiate condemnation “commission” to acquire property to accomplish that purpose. Thus, contrary occasion to lay out the proposed limited access highway. It was not a vote by a process. This vote was merely a vote by a “special committee” that there is an Here, the June 2005 vote constitutes only the first s tep in the laying out

property – that is, whether to initiate the eminent domain process. second step of the process that there is a vot e a s to whether to acquire private for class I highways.” Id. (emphasis added). Accordingly, it is not until the by . . . condemnation in the same manner as provided for acquiring property of suc h facility [or] service ro ad[ ],” and “may acquire private . . . property . . . appointed by the Governor with the advice of council, “lay[s] out the remainder process occurs. See id. In the second step, “a commission of p. 3 3 persons,” lay out the proposed limited access highway, then the second step of the (emphasis added). If the special committee votes that there is an occasion to facility including service roads as proposed by the commissioner of [DOT].” Id. decides “whether there is occasion for the laying o ut . . . of a limited access step, “a special committee of 3 persons appointed by the governor and council” highway. There are two steps in that process. See RSA 230:45. In the first The petitioner misconstr ues the process for laying out a limited access

committee did not constitute a vote to acquire a portion of the subject property. available. However, we agree with DOT that the June 2005 vote of the special argument s, we assume, without deciding, that the declaratory relief sought is 498 - A “provide[ ] the exclusive remedies.” T o address the petitioner’s access highway is void – is unavailable because the provisions of RSA chapter the petitioner seeks – a declaration that the proposed layout of the limited a portion of the subject property, DOT contends that the dec laratory relief that In addition to arguing that the June 2005 vote was not a vote to acquire

layout of the limited access highway is void. vot e. The petitioner contends that because DOT failed to do so, the proposed notice of its offer to purchase within a “reasonable time” after the June 2005 Accordingly, the petit ioner reasons, RSA 498 - A:4, III(a) required DOT to provide is the equivalent of a v ote to acquire a portion of the subject property. The petitioner argues that the June 2005 vote by the special committee

must provide notice of its offer to purchase the property to the condemnee. Id. A: p. 4 4, III(a). “[W]ithin a reasonable time” after this takes place, the condemnor with the statutory authority to condemn, vo tes to acquire property.” RSA 498 first step in the condemnation proc ess occurs when “the governmental entity, govern all condemnations of property for public uses.” RSA 498 - A:1, I. The RSA ch. 498 - A (2010), which “provide [s] a complete and exclusive procedure to RSA 498 - A:4, III(a) is part of the Eminent Domain Procedure Act, s ee 4

occurred here was not mere ly “plotting and planning,” its argument proceeds 16 p. 4 4 N.H. at 236 (quotation omitted). Although the petitioner argues that what property or deprive the owner of use and enjoyment of property.” J.K.S. Realty, constitute a taking. Such delay, alone, does not amount to “an invasion of acquire a portion of the subject property does not, as a matter of law, a vote by a special commission to initiate eminent domain proceedings to Here, any delay between the June 2005 vote of the special committee and

a taking”). incident to otherwise legitimate government action ordinaril y does not result in land would have fetche d, . . . impairment of the market value of real p roperty publicized by the filing of a notice of lis pendens, reduced the price that the “certainly possible . . . that the initiation of condemnation proceedings, United States, p. 4 467 U.S. 1, 15 (1984) (con cluding that, although it was does not, in i tself, constitute a taking”); cf. Kirby Forest Indus tries, Inc. v. taking of land for public use, and preliminary steps taken to accomplish this, “mere plotting and planning by a governmental body in anticipation of the v. Andersen Mahon Ent., 260 P.3d 29, 3 3 (Colo. App. 2010) (explaining that property.” Id. at 235 - 36 (quotation and ellipsis omitted); see Colorado Springs a n invasion of property or deprive the owner of the use and enjoyment of the compensable and mere plotting and planning do not, without more, amount to Moreover, “damages arising from protracted [governmental] delay alone are not more than mere inconvenience or annoyance.” Id. (quotation omitted). ellipsis omitted). However, to constitute a takin g, “[t]he interference must be constitute a taking, even if the land itself is not taken.” Id. (quotation and or deprives a person of, the use of his property in whole or in part, may domain.” Id. at 234. “Gover nmental action which substantially interferes with, takes property in fact but does not formally exercise the power of eminent 228, 233 (2012). “Inverse condemnation occurs when a governmental body of law that we review de novo. See J.K.S. Realty v. City of Nashua, 164 N.H. Whether DOT’s actions are sufficient to constitute a taking is a questio n

We disagree. with the condemnation process constitutes a taking by inverse condemnation. The petitioner next contends that DOT’s delay in initiating or proceeding

property. because the June 200 p. 5 5 vote was not a vote of a “commission” to acquire pr ivate pass.” See RSA 230: p. 4 45. RSA 230:17 does not apply to the instant matter each owner of land or other property over which [a limited access highway] may council,” must provide notice and “a description of the proposed location . . . to of. . . council, or the commission appointed by the governor with advice of. . . property as part of the laying out process, either the Governor “with the advice reasons. Pursuant to RSA 230:17, once there is a vote to acquire private The petitioner’s argument that DOT violated RSA 230:17 fails for similar 5

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

230 (2003). appeal, but did not brief, is deemed waived. In re Estate of King, 149 N.H. 226, N.H. 321, 322 (1993). Any argument that the petitioner raised in its notice of conclude that they do not warrant further discussion. See Vogel v. Vogel, 137 We have reviewed the remainder of the petitioner’s arguments and

so. domain proceedings. As previously discussed, the June 200 p. 5 5 vo te did no t do from the mistaken assumption that the June 2005 vote initiated eminent