NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2002-667
CLARE T. DALY
v.
THE STATE OF NEW HAMPSHIRE
CLARE T. DALY, TRUSTEE, THE PINES LODGE REALTY TRUST
v.
THE STATE OF NEW HAMPSHIRE
CARROLL COUNTY LEASING CO. & a.
v.
THE STATE OF NEW HAMPSHIRE
Argued: September 17, 2003
Opinion Issued: November 24, 2003
Cooper, Deans & Cargill, P.A., of North Conway (Randall F. Cooper on the plaintiffs’ joint brief and orally), for plaintiffs Clare T. Daly and Clare T. Daly, Trustee, The Pines Lodge Realty Trust.
Dewhurst & Greene, P.L.L.C., of Bedford (Arthur G. Greene and Glenn A. Perlow on the plaintiffs’ joint brief, and Mr. Greene orally), for plaintiffs Carroll County Leasing Co. and Chick Lumber, Inc.
Peter W. Heed, attorney general (Mark P. Hodgdon, senior assistant attorney general, on the brief and orally), for the State.
NADEAU, J. The plaintiffs, Clare T. Daly (Daly); Clare T. Daly, Trustee, The Pines Lodge Realty Trust (Pines Lodge); Carroll County Leasing Co. and Chick Lumber, Inc. (collectively Chick Lumber), appeal an order of the Superior Court (O’Neill, J.) denying their motion to introduce evidence and ruling that, in determining just compensation for takings by the State, the plaintiffs’ property must be valued without considering changes made by the Town of Conway to its zoning ordinance. We affirm.
This appeal involves the valuation of three properties, portions of which were taken by the New Hampshire Department of Transportation (DOT) in connection with a highway project undertaken to alleviate traffic congestion on the Route 16 corridor in Conway and North Conway. The project involved upgrading Routes 16 and 302, constructing a limited access bypass, and other improvements.
Obtaining approval for the project required issuance of a Final Environmental Impact Statement (FEIS), which DOT prepared in cooperation with the Federal Highway Administration (FHA). The FEIS for the bypass was approved on December 22, 1995. The project also required a wetland or dredge and fill permit from the United States Army Corps of Engineers, which was issued on December 19, 1995.
Prior to the issuance of these approvals, the Environmental Protection Agency (EPA) Region I had suggested that it would consider using its "section 404(c) veto" power to protect the Page Randall Brook and Conway Lake areas from secondary impacts from the project. This veto power refers to the EPA’s authority, under the Clean Water Act, to prohibit discharge of dredged or fill material into a specified wetland location when it determines that such discharge "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas," 33 U.S.C.