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J.K.S. Realty, LLC & A. v. City of Nashua

October 10, 2012

J.K.S. REALTY, LLC & A.
v.
CITY OF NASHUA



The opinion of the court was delivered by: Hicks, J.

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

Hillsborough-southern judicial district

Argued: April 5, 2012

The petitioners, J.K.S. Realty, LLC and L.J.J. Realty, LLC, appeal a ruling of the Superior Court (Lynn, J.) that the respondent, the City of Nashua (City), did not take the petitioners' property by inverse condemnation. We affirm.

The following facts were either found by the trial court, are undisputed by the parties, or are supported in the record. The petitioners are two trusts that own, as tenants in common, a 26.8 acre parcel of land in Nashua (the property). The property was purchased in 1980 for purposes of development or sale to a developer. It is bisected by Baldwin Street, which provides the most feasible access to the property. The northern section of the property abuts railroad tracks. The property is located in the area of the planned Broad Street Parkway (BSP).

The BSP was conceived by the City in the 1970's "to address air quality on Main Street . . . as well as congestion in downtown Nashua and, also, to provide a second river crossing" over the Nashua River. In 1985, the BSP was included in the City's master plan. That same year, an environmental impact study began for an environmental impact statement (EIS), which was required for the BSP to receive federal funding. The EIS was completed in 1997 and the BSP was approved that same year. At that point, it was decided that the New Hampshire Department of Transportation (DOT) would take over the project and manage it on behalf of the City. This was intended to be the final design stage for the BSP and it was expected that the project would be completed in 2004; however, over the next several years various issues arose that resulted in changes to the design and delayed implementation of the project.

Initially, the BSP was to be a four-lane roadway with an at-grade crossing over the adjacent railroad right-of-way, creating what was to be called Sargent Avenue Extension. The proposed Sargent Avenue Extension would have discontinued Baldwin Street and crossed the petitioners' property. As a result, the petitioners were concerned about access to their property because under this plan access would be from the proposed Sargent Avenue Extension, the BSP, or streets located at the southern boundary of the property, which "ha[d] very steep access issues."

While never formalized, it was anticipated that the BSP would require taking a 200-foot right-of-way across the northern portion of the property parallel to the railroad tracks. From 1998 to 2003, many parcels surrounding the property were acquired for the BSP and, in 1998, the petitioners were told that the State might take the entirety of their property in the fall of 1999. However, in early 1999, they learned that the State was unsure as to how much land would be needed for the BSP and whether the petitioners' property would be taken in its entirety.

In or around 2000, the railroad objected to an at-grade crossing and DOT changed the plan to have Sargent Avenue Extension be a "connecter loop" with an above-grade crossing to connect to the BSP. Under this plan, the "connector loop" extended onto a significant portion of the property, which raised the possibility of a total taking of the property. At some point, a dispute arose between the City and DOT as to the plans. In 2003, the plan was again revised to reduce the BSP from four lanes to two lanes and to eliminate the proposed Sargent Avenue Extension and instead retain Baldwin Street with a newly constructed bridge. This plan would allow access to the petitioners' property via Baldwin Street.

In 1983, the petitioners began to have the property rezoned to allow for multi-family development, which was accomplished in January 1985. As a stipulation of the rezoning process, the petitioners dedicated an eighty-foot right-of-way along the northern border of the property for the purposes of the BSP. From 1980 to 1994, the petitioners spent between $82,000 and $127,000 preparing the property for sale.

Since 1998, the petitioners made numerous unsuccessful attempts to sell the property, or a portion thereof, including entering into three separate purchase and sale agreements. At least one of the buyers expressed concern with the topography of the property, including "the narrowness of the site, the wetlands . . . and the 'conservation buffer' along the property line near the residential subdivision." The last purchase and sale agreement was entered into on October 7, 2002, for sale of the entire property at a purchase price of $4,000,000 with a closing in April 2004. At some point, the buyer learned that the City was unsure whether it would take the property for the BSP and asked the petitioners for an extension until he learned what the City intended to do. The petitioners decided to keep the property until it was resolved whether the City was going to take the property and, as a result, the sale did not go through.

Since 2004, the petitioners have not marketed the property. However, they have harvested timber on the property for a profit and there was testimony that, unless prohibited by zoning regulations, the petitioners "would have been able to undertake" building "single-family residences, . . . conservation subdivisions, modular homes, manufactured homes, elderly housing, commercial uses, and multi-family developments."

In 2009, the petitioners filed a petition for inverse condemnation, requesting that the trial court rule that the City took the property by inverse condemnation on April 10, 2004, and seeking damages, including but not limited to, the fair market value of the property on that date. They alleged that the delays and continuing uncertainty regarding the BSP deprived them of all economically viable use of their property as of April 2004, when the last purchase and sale agreement fell through.

Following a three-day bench trial, the trial court found "that the continuing uncertainty regarding the status of the BSP has [not] been so substantial and prolonged as to rise to the level of a taking." This appeal followed.

As an initial matter, we address the City's motion to dismiss this appeal. The petitioners filed their notice of appeal in early February 2011. The record indicates that, on March 16, 2011, DOT filed a declaration of taking and a $1,315,000 deposit of damages with the New Hampshire Board of Tax and Land Appeals (BTLA) to acquire a portion of the petitioners' property by eminent domain. See RSA 498-A:5 (2010). On March 31, the petitioners requested a withdrawal of the deposit of damages ...


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