Gazzola v. Clements

• Decision Date: 29 January 1980
• Docket Number: No. 79-115,79-115
• Citation: 411 A.2d 147,120 N.H. 25
• Parties: David and Petra GAZZOLA v. John A. CLEMENTS, Commissioner, Department of Public Works and Highways.
• Court: New Hampshire Supreme Court

Page 147

411 A.2d 147

120 N.H. 25

David and Petra GAZZOLA v. John A. CLEMENTS, Commissioner, Department of Public Works and Highways.

No. 79-115.

Supreme Court of New Hampshire.

Jan. 29, 1980.

Stephen R. Fine, Manchester, by brief and orally, for plaintiffs.

Thomas D. Rath, Atty. Gen. (Martin R. Jenkins, Concord, by brief and orally), for defendant.

DOUGLAS, Justice.

The United States District Court for the District of New Hampshire (Devine, C. J.) has certified six questions under our rule 34. The questions focus generally on a condemnee's right to a hearing if his land is being taken to make way for a State park.

In 1962 the Governor and Council authorized the appraisal and purchase of land required for the Pawtuckaway State Park project. One of the parcels involved was land belonging to Mr. Krickor Arzoumanian, a close friend of the plaintiffs. Mr. Arzoumanian was adamant in his desire to keep his home, and negotiations between him and the State continued over several years. In the meantime the State acquired the land surrounding the Arzoumanian property and the park project went forward.

In 1975 Mr. Arzoumanian died. The State attempted to buy the property from the decedent's estate but failed owing to lack of funds. On January 30, 1976, the estate sold the property to David and Petra Gazzola, the plaintiffs in this action. Since that time the plaintiffs have made their home on the property.

In 1978 the legislature, in special session, appropriated funds with which the department of resources and economic development (DRED) could acquire the property for the Pawtuckaway State Park. Laws 1978, ch. 49. Included within the appropriations bill were several explanatory and limiting sections, one of which read: "Any land acquired . . . shall be purchased by the commissioner of public works and highways, with the approval of governor and council." Laws 1978, 49:6. Pursuant to this directive, and in accordance with both RSA 219:2, which grants to DRED the authority to take property by eminent domain for park purposes, and RSA 228:6 V, which authorizes the department of public works and highways to assist other State agencies in acquiring land, the commissioner of Public Works and Highways initiated procedures to acquire the plaintiffs' land.

The plaintiffs made it clear to DRED representatives that they would not sell at any price. Later, on October 17, 1978, the department of public works and highways informed the plaintiffs that an appraiser would be sent to determine the fair market value of their property. On October 20, after reviewing the circumstances of the proposed taking, the DRED commissioner determined that the condemnation should go forward.

Five days later the plaintiffs' counsel met with DRED representatives. Plaintiffs offered, in exchange for a promise to terminate the taking, to refrain from developing or using their land in any manner incompatible with park purposes, and to permit park users the enjoyment of their property. DRED rejected the offer. The plaintiffs then filed a complaint in federal district court that gave rise to the certified questions.

Question No. 1. "Does Chapter 49, Section 6, of the Laws of 1978 preclude the eminent domain power granted to the Department of Resources and Economic Development by RSA 219:2 from being exercised against plaintiffs' property?" The answer to this question hinges on whether RSA 219:2, which grants eminent domain power to DRED, is inconsistent with the subsequent appropriations directive, Laws 1978, 49:6. The plaintiffs point out that section 6 speaks in terms of "purchase" rather than "condemnation" or "eminent domain." They argue that use of the word "purchase" evinces a legislative intent to limit DRED's power to acquiring the plaintiffs' land by voluntary sale. We reject this argument.

Basically the plaintiffs ask this court to find an implied repeal of a former statute. We are reluctant to make such a finding, and we will do so only if the conflict between the two enactments is irreconcilable. Bd. of Selectmen of Town of Merrimack v. Planning Bd., 118 N.H. 150, 383 A.2d 1122 (1978). To be successful, evidence of convincing force must be presented by the party urging that there is an implied repeal. Id.; Opinion of the Justices, 107 N.H. 325, 221 A.2d 255 (1966).

In this case the plaintiffs do not sustain their burden of proving clearly and convincingly that the term "purchase" was intended to exclude condemnation proceedings. The plaintiffs rely on Claremont Railway & Lighting Co. v. Putney, 73 N.H. 431, 62 A. 727 (1905) and Opinion of the Justices, 107 N.H. 325, 221 A.2d 255 (1966). Their reliance is misplaced. In Claremont we held that a railroad charter that authorized the company to "purchase . . . and acquire such real and personal estate as may be necessary and convenient in the prosecution of its business" did not confer on the company the eminent domain power. We refused to read the terms "acquire" or "purchase" as delegating the ultimate taking power to a corporation in which it did not previously reside. In so doing we merely recognized the principle that because the eminent domain power is against the common law right to enjoy property, express statutory language is required for its delegation to a public utility or State agency. Opinion of the Justices is essentially in point with Claremont. We do not understand either case to require that the eminent domain power, once expressly delegated to a State agency, can be withdrawn by subsequent statutory use of terms that could not have been used to delegate it initially. We answer the first question in the negative.

Question No. 2. "Is the eminent domain power granted to the Department of Resources and Economic Development pursuant to RSA 219:2 in derogation of Article 12, Part I, of the New Hampshire Constitution?" We answer in the negative with regard to that portion of Article 12, Part I that requires that "no part of a man's property shall be taken from him . . . without his own consent, or that of the representative body of the people." RSA 219:2 standing alone is a valid exercise of the legislative authority to delegate the eminent domain power to State agencies. State v. 4.7 Acres of Land, 95 N.H. 291, 62 A.2d 732 (1948); Cf. Petition of Mt. Washington Road Co., 35 N.H. 134 (1857). Furthermore, Laws 1978, 49:6 does not render RSA 219:2 unconstitutional as it applies to plaintiffs. The Gazzolas argue that when the general court enacted the appropriations measure it withdrew the legislative consent that must be a part of any condemnation. N.H.Const. pt. I, art. 12. We reject this argument for reasons outlined in our answer to the first question.

We answer "yes," however, with regard to that part of N.H. Const. pt. I, art. 12 relating to equal protection. The first inquiry concerning equal protection is whether persons similarly situated are being treated differently under the statutory law. In the present case, persons whose land is about to be taken By the State are "similarly situated." Under current statutes, one member of this similarly situated class may be treated differently from another with respect to the right to a hearing on the question whether a taking should occur, depending on the purpose for which the State desires the land.

When the State wants private land for a class I or II highway, the landowner has the benefit of RSA ch. 233. That statute provides that the Governor and Council "may determine Upon hearing whether there is occasion for the laying out" of the highway. RSA 233:1 (emphasis added). Alternatively the Governor may appoint a commission to preside over the hearing. RSA 233:2. Regardless of who conducts the hearing, however, the question whether the highway should be built over certain identifiable land must be settled before a condemnation proceeding can go forward. The statute also requires impartial commissioners and notice of a hearing to affected landowners. RSA 233:5. At the hearing the Governor and Council, or the commission, must "hear all parties interested." RSA 233:10. If the land is desired for a class I or II highway, then, the landowner has a right to notice and a hearing before the Governor and Council or an impartial appointed commission on the question whether an occasion for the taking exists. The right to a hearing on the question whether an occasion for the taking of property exists is also available to those whose land is sought for certain other State government projects. See RSA 10:4 (taking for State institutions by same procedure "as in cases of land taken for highways"); RSA 235:1 (commission appointed by Governor and Council to determine if there is "occasion" to lay out a highway to public water).

RSA 219:2 gives no express right to be heard on any issue except compensation. To withhold from the plaintiffs certain procedural safeguards which would otherwise be available, merely because their land is sought for park purposes rather than highway purposes, is to deny them equal protection of our State laws. N.H.Const. pt. I, arts. 1, 10, 12 and 14; State v. Amyot, 119 N.H. ---, 407 A.2d 812 (1979); H. P. Welch v. State, 89 N.H. 428, 199 A. 886 (1938), Aff'd, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500 (1939). The State must grant privileges, as well as impose restrictions, with an even hand. State v. Amyot, supra; Rosenblum v. Griffin, 89 N.H. 314, 197 A. 701 (1938). "Equality of benefit is no less required than equality of burden." Id. at 321, 197 A. at...