Beattie II: Net‑Public Benefit Review in Highway Takings Is Limited to Evidence Available at the Time of Condemnation; CLOMR Is Not Required Where “No‑Rise” Is Shown Under 44 C.F.R. § 60.3(d)(3)

Introduction

In State of New Hampshire v. Shane M. Beattie & a. (N.H. June 18, 2025), the New Hampshire Supreme Court affirmed a superior court order granting summary judgment to the State in an eminent domain challenge arising from the reconstruction of U.S. Route 2 and replacement of the Rogers’ Rangers Bridge over the Connecticut River in Lancaster. The defendants, Shane and Trina Beattie, did not contest necessity on appeal; their sole remaining claim was that the taking lacked a net‑public benefit because the project allegedly increased flood risks near their property and because the Department of Transportation (DOT) purportedly avoided federal floodplain review through FEMA’s Conditional Letter of Map Revision (CLOMR) process.

The Court’s order does more than resolve a dispute about competing hydrologic models. It crystallizes several important rules in New Hampshire condemnation practice: (1) in de novo review of preliminary objections challenging “net‑public benefit” for highway takings, the evidence is temporally limited to what existed and could have been considered at the time of the condemnation decision; (2) allegations that an agency avoided FEMA’s CLOMR process will not defeat summary judgment absent specific, technical facts showing noncompliance with floodplain standards; and (3) preliminary or incomplete expert opinions are insufficient to create a triable issue of material fact.

Summary of the Opinion

Proceeding by order under Supreme Court Rule 20(3), the Court affirmed summary judgment for the State on the Beatties’ claim that the taking failed the “net‑public benefit” test. The DOT’s consultant (Hoyle, Tanner & Associates) performed one‑ and two‑dimensional hydraulic analyses in 2017 and 2018 concluding the project would not significantly change the Connecticut River’s flow regimes or increase water surface elevations near the Beatties’ property. The defendants’ consultant (the H.L. Turner Group) issued only a preliminary report suggesting the property would “likely” experience slightly higher flood levels and longer flood duration, but it acknowledged that its two‑dimensional river model had not been completed and that any final opinion would require more analysis.

The trial court found the Turner Group’s submission too incomplete and conclusory to create a genuine factual dispute, and the Supreme Court agreed. The defendants’ affidavits alleging DOT “did not want ‘the feds’ involved” and sought to avoid a CLOMR were treated as general allegations lacking specific, technical facts. Because Hoyle Tanner’s analyses were unchallenged as to methodology or compliance with engineering standards, the trial court appropriately accepted those analyses as demonstrating “no rise” under 44 C.F.R. § 60.3(d)(3), obviating any need for a CLOMR. Finally, the Court held that “as built” plan differences and post‑construction impacts are not part of the net‑public benefit calculus; those issues may bear on just compensation or inverse condemnation, but not on the validity of the taking.

Analysis

Precedents and Authorities Cited

State v. Beattie, 173 N.H. 716 (2020): The Court’s earlier decision in this matter established that a de novo standard applies when the trial court reviews preliminary objections challenging necessity, public use, or net‑public benefit in highway condemnation. The present order builds on that principle by clarifying the scope of the evidentiary record for that de novo review.
Petition of Bianco, 143 N.H. 83 (1998): Sets out the net‑public benefit balancing test: the public benefits of the project and any benefits from eradicating harmful characteristics of the property are weighed against the social costs of losing the property in its present form.
Appeal of City of Keene, 141 N.H. 797 (1997): Supports the framework for reviewing the taking authority’s balancing of benefits and burdens.
Omiya v. Castor, 130 N.H. 234 (1987): Provides the standard for opposing summary judgment: the nonmovant must set forth specific facts or reasonable and specific grounds for believing admissible evidence can be produced, not mere denials or general allegations.
Beckles v. Madden, 160 N.H. 118 (2010); Camire v. Gunstock Area Comm’n, 166 N.H. 374 (2014); Franciosa v. Hidden Pond Farm, Inc., 171 N.H. 350 (2018): Recite summary judgment standards and the definition of materiality.
In the Matter of Salesky & Salesky, 157 N.H. 698 (2008): Confirms the Court reviews interpretation of trial court orders de novo.
RSA 498-A:1, 9-b: Governs condemnation procedure and preliminary objection practice for state highway projects.
44 C.F.R. § 60.3(d)(3): FEMA’s floodplain management standard requiring that proposed encroachments within a regulatory floodway be supported by hydrologic and hydraulic analyses—performed in accordance with standard engineering practice—demonstrating no increase in flood levels during the base flood discharge. If there is a predicted increase, a CLOMR is typically implicated.
44 C.F.R. § 72.2; Hall v. City of Bryant, 379 S.W.3d 727 (Ark. Ct. App. 2010): Define and explain the CLOMR process as FEMA’s conditional review of projects expected to change floodplain/floodway mapping.
Sup. Ct. R. 20(3): Authorizes disposition by order following review of the briefs and record.

Legal Reasoning

The Court’s reasoning proceeds in three interlocking steps.

Scope of de novo review is temporally limited: While trial courts conduct a de novo analysis of “net‑public benefit,” that analysis is constrained to the evidence that existed, and could have been considered by the Governor and Council’s appointed commission, at the time the condemnation decision was made. “As‑built” plan deviations and post‑construction effects fall outside that window. The Court explicitly endorsed the trial court’s statement that “ ‘as built’ plans would not have been appropriate for the State to consider in the preliminary objection proceeding simply because they did not exist at that time.” This rule harmonizes the 2020 Beattie de novo standard with practical limits on the record in condemnation challenges.
CLOMR is unnecessary when the “no‑rise” standard is satisfied: DOT’s consultant performed two separate analyses (including a two‑dimensional hydraulic model) and concluded there would be no significant change in flow regimes or water surface elevations. Because the defendants did not challenge the analyses as contrary to standard engineering practice, and the consultant testified there were no directives to “show no increase,” the Court accepted these analyses as satisfying 44 C.F.R. § 60.3(d)(3). Consequently, FEMA’s CLOMR process was not required. General statements that DOT “did not want the feds involved” were legally insufficient to suggest regulatory avoidance where the technical predicate for CLOMR (a modeled increase in flood levels) was absent.
Preliminary expert opinions do not create triable issues: The Turner Group’s submission was expressly “preliminary,” posited only that flooding would “likely” increase, and acknowledged that necessary two‑dimensional modeling and a final report were incomplete. Under Omiya, such generalized and contingent statements, devoid of quantified impacts or final methodologies, do not carry the nonmovant’s burden to “set forth specific facts” creating a genuine issue. The Court contrasted this record with cases where affidavits supply concrete, contradictory facts from discoverable evidence.

How the Court Applied the Law to the Facts

The record included two detailed hydraulic studies (2017 and 2018) performed by Hoyle, Tanner & Associates concluding no significant changes in water surface elevations attributable to the project’s relocation of Route 2 and driveway grade. The defendants did not attack those studies on technical grounds (method, inputs, calibration, conformance with standard engineering practice), nor did they submit a completed counter‑model quantifying increases in water surface elevation or duration. Their proof consisted of:

Affidavits reporting statements by DOT personnel about avoiding “the feds” and not filing a CLOMR; and
A preliminary engineering memorandum stating that a 2‑D model “needs to be finished” and that only “likely” effects could be hypothesized at that time.

Treating the defendants’ assertions as “general allegations of expected proof,” the Court held they were insufficient to defeat summary judgment where the State’s evidence demonstrated FEMA “no‑rise” compliance and a net‑public benefit on the record that existed at the time of the taking decision. The Court also rejected the defendants’ reliance on “as‑built” deviations for the net‑public benefit analysis, noting that any actual, post‑construction flooding impacts are matters for just compensation or a future inverse condemnation action—not for undoing the taking.

The New Clarifications This Order Establishes

Temporal limitation on evidence for de novo review: A trial court’s de novo review of net‑public benefit in a preliminary objection proceeding is limited to evidence available at the time of the condemnation decision and that could have been considered by the commission. Later “as‑built” changes and post‑construction effects are not relevant to the validity of the taking.
FEMA CLOMR non‑requirement absent predicted rise: If the condemning authority can demonstrate, through hydrologic and hydraulic analyses performed in accordance with standard engineering practice, that the project will not increase flood levels (44 C.F.R. § 60.3(d)(3)), a CLOMR is not required. Allegations of intentional “avoidance” do not create a factual dispute without specific technical evidence of a predicted rise or methodological noncompliance.
Expert evidence at summary judgment must be complete and specific: Preliminary, unquantified engineering impressions—especially where the expert concedes that critical modeling remains unfinished—do not create a genuine issue of material fact.

Impact

This order has practical and doctrinal consequences for future condemnation challenges in New Hampshire:

For condemning authorities (e.g., DOT): It underscores the importance of building a robust, contemporaneous technical record before a taking decision—particularly where floodplain effects are implicated. Completing and documenting “no‑rise” hydraulic analyses consistent with standard engineering practices not only satisfies FEMA’s regulatory framework but also positions the State to obtain summary judgment if later challenged.
For property owners: Challenges to net‑public benefit must be grounded in specific, technically competent, and complete evidence available at the time of the taking decision. If the project later expands flooding or deviates from plans in ways that harm the property, the proper avenues are just compensation (valuation) or a separate inverse condemnation claim—not an attack on the validity of the taking based on “as‑built” data.
For courts: The opinion provides a clear, administrable line between the validity phase (pre‑taking, de novo but temporally bounded) and the compensation phase (post‑taking impacts). It may also streamline preliminary objection litigation by filtering out claims supported only by incomplete or speculative expert submissions.
On FEMA compliance: The order clarifies that a CLOMR is a tool for projects predicting increases in flood elevations or changes to the regulatory floodway. Where competent analyses predict no rise, proceeding without a CLOMR is not evidence of regulatory avoidance.

Complex Concepts Simplified

Condemnation (Eminent Domain): The government’s power to take private property for public use, with payment of just compensation. In New Hampshire, state highway takings use a commission process under RSA 498‑A.
Preliminary Objection: A statutory mechanism allowing an owner to challenge the taking’s validity on grounds such as necessity, public use, or net‑public benefit before compensation is decided.
Net‑Public Benefit Test: A balancing of the public benefits of the project and benefits from removing harmful property conditions against the social costs of losing the property in its current state. It asks, in essence, whether the public gains outweigh the losses.
De Novo Review (Temporally Limited): The trial court independently re‑does the balance without deference to the commission’s conclusion, but it is limited to evidence that existed and could have been considered when the condemnation decision was made.
FEMA CLOMR: A Conditional Letter of Map Revision—a pre‑construction review by FEMA when a project is expected to change flood elevations or floodway boundaries. It is generally required only if the project is predicted to cause a rise or mapping change.
44 C.F.R. § 60.3(d)(3) (“No‑Rise”): A federal standard requiring communities to ensure that encroachments in a regulatory floodway, supported by accepted engineering analyses, will not increase flood levels during the base flood. If there is a predicted increase, additional FEMA processes (like a CLOMR) come into play.
“As‑Built” Plans: Drawings documenting how a project was actually constructed, including deviations from earlier design plans. They are relevant to damages and inverse condemnation if harms arise post‑construction, but they are not part of the pre‑taking net‑public benefit review.
Summary Judgment Burden: To avoid summary judgment, the nonmoving party must present specific, admissible facts showing a genuine dispute for trial. Conclusory, preliminary, or speculative expert statements are insufficient.
Inverse Condemnation: A claim by a property owner alleging that government action effectively took property (e.g., by causing flooding) without formal expropriation, entitling the owner to compensation.

Conclusion

State v. Beattie (2025) clarifies three pillars of New Hampshire highway‑taking litigation. First, although net‑public benefit is reviewed de novo, that review is anchored to the time of the condemnation decision—the court considers what could have been before the commission then, not “as‑built” or post‑construction impacts. Second, compliance with FEMA’s floodway “no‑rise” standard via competent hydraulic and hydrologic analyses eliminates any obligation to seek a CLOMR; accusations of “federal avoidance” must be substantiated with specific, technical evidence. Third, at summary judgment, preliminary or incomplete expert opinions couched in terms of what is “likely” and expressly awaiting final modeling do not create genuine disputes of material fact.

The decision strengthens the delineation between challenges to the validity of a taking and claims about its monetary consequences, channeling post‑construction impacts to compensation or inverse condemnation. It also gives condemning authorities and property owners clearer guidance: build (or challenge) a contemporaneous, methodologically sound technical record. In doing so, Beattie II advances finality and predictability in the administration of public infrastructure projects while preserving appropriate remedies for proven, post‑construction harms.

Panel: DONOVAN and COUNTWAY, JJ., concurred; ABRAMSON, J., retired superior court justice, specially assigned under RSA 490:3, II, concurred.