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Sibson v. State

Citation: 5 ELR 20300
No. No. 6984, 336 A.2d 239/115 N.H. 124, (N.H., 03/31/1975) Appeal dismissed

A special board's denial of plaintiffs' application for a permit to fill four acres of salt marsh land constituted a valid exercise of the police power proscribing future activities harmful to the public and therefore does not require compensation under the eminent domain cleause. The wetlands in question are part of a valuable ecological asset of New Hampshire's seacoast area; controlling and restricting the filling of such wetlands is clearly within scope of the state's police power. Noting the persuasiveness of the state's arguments that the diminution of value theory propounded by Justice Holmes in Pennsylvania Coal Co. v. Mahon, the court holds, however, that Holmes' formulation is inapplicable in this case since the board's action has not denied plaintiffs' current uses of their marsh but instead prevented a major change in the marsh for the purposes of speculative profit. The court goes on to state that the importance of wetlands to the public health and welfare is such as to justify the denial of a fill permit even if it deprived plaintiffs of the substantial property rights inherent in a current use or activity on their marsh. For the lower court's opinion, see 4 ELR 20060.

Counsel for Plaintiffs
Robert A. Shaines
Shaines, Madrigan & McEachern
McIntosh Building
62 Congress Street
Portsmouth, N.H. 03801

Counsel for Defendant
Warren A. Rudman Attorney General
Donald W. Stever, Jr. Asst. Attorney General
State Capitol
Concord, N.H. 03301