The New Hampshire Public Utilities Commission properly approved the taking of private water works by the City of Nashua. In Appeal of Pennichuck Water Works, Inc., No. 2009-274 (Mar. 25, 2010), the New Hampshire Supreme Court concluded taking was in the public interest, and that it resulted in a net benefit to the public.
New Hampshire law creates a rebuttable presumption that the acquisition of a privately-owned utility is in the public interest, and the court held that “those opposing the City’s petition to acquire [the water works] had to demonstrate, by at least a preponderance of the evidence, that the proposed takings was not in the public interest.” Slip op. at 9. Separately, the court determined that the taking had a “net public benefit” — an analysis required by the New Hampshire Constitution. Slip op. at 9-10.
Overall, this case does not add much to the “public use” canon, although it is worth reading because it illustrates the two-step process public interest/benefit analysis required under New Hampshire eminent domain law.