Burrows v. City of Keene

Decision Date26 June 1981
Docket NumberNo. 80-419,80-419
Citation432 A.2d 15,121 N.H. 590
PartiesJohn P. BURROWS et al. v. CITY OF KEENE.
CourtNew Hampshire Supreme Court

Lewis A. McMahon, Keene, and Cristiano, Kromphold & Green, Keene (Eric J. Kromphold, Jr., Keene, on the brief and orally), for plaintiffs.

Charles H. Morang, City Atty., by brief and orally, for defendant.

GRIMES, Chief Justice.

The issue in this case is whether an amendment to the Keene zoning ordinance, which had the effect of including a substantial part of the plaintiffs' land in a conservation district, resulted in a taking of the plaintiffs' property entitling them to damages for inverse condemnation. We hold that it did.

On October 15, 1973, the plaintiffs, John P. Burrows and George Whitham, purchased approximately 124 acres of undeveloped woodland on the southern side of Goose Pond Road in Keene for $45,000. Plaintiff Burrows is, and has been for many years, a real estate developer, and the property was purchased for the purpose of subdivision development, which was a permitted use in the rural zone in which it was located. Because of its proximity to the city, a golf course, and Goose Pond, the plaintiffs thought that the property was very desirable for development.

In January 1975, the plaintiffs went to the Keene Planning Board and presented three plans for subdividing the property. The planning board indicated that the prospects of subdivision approval were not favorable because the city was trying to preserve as open space the area in which the plaintiffs' land was located. Accordingly, the board advised the plaintiffs to consult the city conservation commission concerning the possibility of selling the land to the conservation commission as an alternative to development. The conservation commission expressed a desire to purchase the property and requested a delay so that it could obtain federal funding to make the purchase. The plaintiffs agreed.

In August 1975, the city had the property appraised for $27,000, which was much less than either the purchase price of $45,000 or the city's assessment for tax purposes of $41,406. It appears that the appraiser improperly underassessed the value of the land based on the city's intended noncommercial use of the land. Nevertheless, the city offered the plaintiffs only $27,900 for the land.

Because the parties could not reach agreement on price, the plaintiffs went forward with their subdivision plans. In November 1975, they filed a formal application for subdivision approval. Various meetings with the planning board and the conservation commission led to the hiring of an engineering firm to draft more detailed subdivision plans. During these meetings, there was discussion as to whether the property should be developed at all. On July 23, 1976, the plaintiffs submitted more plans, together with an application for subdivision approval. After various studies and meetings, a public hearing was held on September 27, 1976, following which the board denied the plaintiffs' application for subdivision approval and adopted a resolution favoring acquisition of the plaintiffs' land.

The plaintiffs did not appeal from the planning board's denial of their subdivision plan but instead brought this action for equitable relief in the superior court. In December 1977, the city amended its zoning ordinance. The effect of this amendment was to include 109 acres of the plaintiffs' land in a conservation zone and the balance in a rural zone. Thereafter, the plaintiffs amended their petition in the superior court to include a claim that the amendment to the zoning ordinance had deprived them of all reasonable use of that portion of their property which was included in the conservation zone and, in effect, sought damages for inverse condemnation.

The Trial Court (DiClerico, J.) dismissed the plaintiffs' claim regarding the denial of subdivision approval because of their failure to appeal the planning board decision. The court also found that there were valid reasons for the board's denial of the plaintiffs' application for subdivision approval. However, the court considered the claim based on inverse condemnation, ruled that the inclusion of the land in the conservation zone did constitute inverse condemnation and ordered that damages be determined by a jury if no appeal was taken from its ruling. The city appealed.

Extended discussion is not required to dispose of the city's claim that the plaintiffs should not have been allowed to amend their petition to raise the constitutional issue of inverse condemnation. Although it was a new and different issue, it is one which the plaintiffs may raise at any time before the applicable statute of limitations has run. J. E. D. Associates, Inc. v. Town of Atkinson, 121 N.H. ---, ---, 432 A.2d 12, 14 (decided 1981); see Sundell v. Town of New London, 119 N.H. 839, 849-50, 409 A.2d 1315, 1321 (1979). The defendant was given ample time to prepare to meet the issue, and there was no abuse of discretion in allowing the amendment. See MacLeod v. Chalet Susse Int'l Inc., 119 N.H. 238, 244, 401 A.2d 205, 210 (1979).

The substantive issue raised in this case involves a principle that lies at the very foundation of civilized society as we know it. The principle that no man's property may be taken from him without just compensation reaches at least as far back as 1215, when on "the meadow which is called Runnymede" the Barons of England exacted from King John the Magna Carta, which contains at least three references to this fundamental truth. Magna Carta, arts. 28, 30 & 31, reprinted in 1 Mass.Gen.Laws Ann. (West); see Ferguson v. Keene, 108 N.H. 409, 415, 238 A.2d 1, 5 (1968) (Grimes, J., dissenting). Our own constitution provides that "no part of a man's property shall be taken from him, or applied to public uses, without his consent ...." N.H.Const. pt. I, art. 12. Early on, this clause was held to require just compensation. Piscataqua Bridge v. N. H. Bridge, 7 N.H. 35, 66-70 (1834); Eaton v. B. C. & M. R. R., 51 N.H. 504, 510-11 (1872). The same principle was embodied in the Fifth Amendment to the Constitution of the United States at the insistence of a majority of the states, including New Hampshire, in ratifying the Constitution. It has now been made binding on the states through the Fourteenth Amendment. Webb's Fab. Pharmacies, Inc. v. Beckwith, --- U.S. ----, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980).

It should be noted that the New Hampshire Constitution makes explicit what is implicit in the Fifth Amendment to the Federal Constitution, namely, that "no part of a man's property shall be taken from him ... without his consent ...." N.H.Const. pt. I, art. 12. (Emphasis added.) Furthermore, our New Hampshire Bill of Rights provides that among the "natural, essential and inherent rights" of all men is the right of "acquiring, possessing, and protecting property; and, in a word, of seeking and obtaining happiness." N.H.Const. pt. I, art. 2. This fundamental right is recognized in the same article which recognizes the right of "enjoying and defending life and liberty." Id. Gazzola v. Clements, 120 N.H. 25, 411 A.2d 147 (1980).

The rights mentioned in N.H.Const. pt. I, art. 2 are not bestowed by that constitutional provision but rather are recognized to be among the natural and inherent rights of all humankind. This provision of our Bill of Rights "has been held to be so specific that it 'necessarily limits all subsequent grants of power to deal adversely with it.' " Metzger v. Town of Brentwood, 117 N.H. 497, 502, 374 A.2d 954, 957 (1977) (quoting Woolf v. Fuller, 87 N.H. 64, 68, 174 A. 193, 196 (1934)). Because it limits all subsequent express grants of power, it necessarily limits the so-called police power, which is only an implied power. "The right to just compensation is (likewise) a constitutional restriction on the police power and is therefore superior to it." Robbins Auto Parts, Inc. v. City of Laconia, 117 N.H. 235, 237, 371 A.2d 1167, 1169 (1977). Indeed, we have specifically stated that both N.H.Const. pt. I, art. 2 and N.H.Const. pt. I, art. 12 "are limitations on the so-called police power of the State and subdivisions thereof ...." L. Grossman & Sons, Inc. v. Town of Gilford, 118 N.H. 480, 482, 387 A.2d 1178, 1180 (1978).

Because the constitution prohibits any taking of private property by whatever means without compensation, the just compensation requirement applies whenever the exercise of the so-called police power results in a "taking of property." The government may not do under an implied power that which it cannot do under an express power. In other words, it cannot do indirectly that which it cannot do directly. Eaton v. B. C. & M. R. R., 51 N.H. at 510; cf. Girard v. Town of Allenstown, 121 N.H. ---, ---, 428 A.2d 488, 490 (1981).

The question in the case before us is whether the action of the city constituted a taking of the plaintiffs' property. "Property," in the constitutional sense, is not the physical thing itself but is rather the group of rights which the owner of the thing has with respect to it. United States v. General Motors Corp., 323 U.S. 373, 377-78, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945); Eaton v. B. C. & M. R. R., supra at 511. The term refers to a person's right to "possess, use, enjoy and dispose of a thing and is not limited to the thing itself." Metzger v. Town of Brentwood, 117 N.H. at 502, 374 A.2d at 957; see United States v. General Motors Corp. supra. The property owner's right of "indefinite user (or of using indefinitely) ... necessarily includes the right ..." to exclude others from using the property, whether it be land or anything else. Eaton v. B. C. & M. R. R., supra at 511. "From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner's 'property.' " Id. "The principle must be the same whether the owner is wholly deprived of the use of...

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