Freshman Senator Forrester leaves big mark on eminent domain issue

CONCORD — "It was a group effort," said Senator Jeanie Forrester (R-Meredith) of the overwhelming vote by the New Hampshire Senate last week to uphold the constitutional prohibition against the taking of private property by closing a loophole in the eminent domain statute governing public utilities.

Nevertheless, the 23 to 1 vote was a triumph for Forrester, a freshman senator, determined to forestall Northern Pass, the project pursued by Northeast Utilities, the parent of Public Service Company of New Hampshire (PSNH), in partnership with NSTAR and Hydro-Quebec, to string 180 miles of power lines carrying hydro-electric power from Quebec through New Hampshire to the New England power pool.

With 19 of the 31 towns in her district in the path of either or both the preferred or the alternate route of the transmission lines, Forrester led the effort in the Senate to deny the power of eminent domain to Northern Pass and its partners.

In 2006, in the wake of a controversial taking in Connecticut, the state constitution was amended to forbid taking property by eminent domain to serve, directly or indirectly, a private purpose. Legislation enacted that same year revised various statutes to comply with the amendment — Article 12-a — but overlooked RSA 371.1, which entitles pubic utilities to petition the Public Utilities Commission (PUC) for the power of eminent domain for numerous purposes, including building transmission lines.

Last year, by an overwhelming majority of 317 to 51, the House of Representatives passed House Bill 648, which was intended to deny the power of eminent domain to developers of electric transmission lines. Forrester was the lone senator to sponsor the bill and one of 10 who dissented when, last June, the Senate chose to re-refer the bill to the Judiciary Committee for further study.

In August, Forrester drafted an amendment to the House bill, explicitly prohibiting public utilities from petitioning for the power of eminent domain to construct a "participant-funded transmission facility," a phrase fitted to Northern Pass, which would not be funded by New Hampshire ratepayers.

Subsequently the Senate Judiciary Committee amended the bill, But, instead of further restricting the use of eminent domain, prescribed a process for exercising it. Among other things, the amendment required a public utility to offer a landowner twice the appraised value of the property and granted authority to petition to acquire the property by eminent domain only if the offer were refused.

By mid-January, the issue divided the 19 Republican senators, with Forrester leading one camp and Senate Majority Leader Jeb Bradley of Wolfeboro the other. Arguing that while the Constitution denies eminent domain to private developers, Bradley said the Legislature should clarify when public utilities can petition the PUC to use eminent domain to build transmission lines. With Senator Sharon Carson of Londonderry, he offered an amendment entitling public utilities to petition to take private property for constructing or operating transmission facilities only if the PUC found it "necessary for system reliability . . . provides a means of lowering electricity costs . . . and also provides environmental benefits in this state."

Together with Senate President Peter Bragdon of Milford, Forrester stiffened her original amendment to withhold eminent domain from "any private development, including but not limited to participant·funded projects.”

Opponents of Northern Pass rallied round the Forrester-Bragdon amendment. fearing that Bradley's language would allow Northern Pass and its corporate sponsors to qualify as a public utility then petition for the power of eminent domain. Their fears mounted when attorney Don Pfundstein, representing Northern Pass, told a House committee that the company did not intend to to use eminent domain, but if it did, the state would have to determine whether the project conferred a compelling public benefit.

Insisting that Northern Pass is not a public utility, Bradley prepared another amendment, incorporating Article 12-a into statute with the rider "Therefore, no private development entity may petition the PUC for the use of eminent domain."

With his caucus split, Bragdon postponed the vote on HB-648 for a week, from January 18 to the 25th. In the interim, Forrester tightened her amendment further and added sponsors, including one of the five Senate Democrats, Amanda Merrill of Durham.

When HB-648 came to the Senate floor, a session of frequent recesses and numerous amendments, began with the adoption of the original amendment recommended by the Judiciary Committee, revising the procedure for takings by eminent domain. Carson proposed an amendment eliminating the requirement that public utilities offer landowners double the value of their property, which carried by a voice vote.

With that the eminent domain process was changed to afford greater protections for property owners, including prohibition against referring to eminent domain in negotiations, provision for relocation expenses to displaced residents and a requirement to grant the landowner a first option to repurchase the property if the project is not begun within five years.

Next the Senate denied the power of eminent to Northern Pass and similar entities by adopting Forrester's amendment by a vote of 16 to 8, as seven Republicans voted in the minority, indicating that she carried a dozen votes to Bradley's seven in the GOP caucus.

Finally, Senator Sylvia Larsen of Concord, the Senate Democratic leader, proposed a further amendment, backed by labor unions, establishing a commission to develop a framework for delineating state-owned rights-of-way where transmission lines could be buried. It carried by a voice vote.

Interestingly, Forrester anticipated Larsen's amendment, filing a bill to convene a task force of officials from state agencies to study the feasibility of "energy infrastructure corridors" on existing public rights-of-way for underground utilities.