Dated: 8-24-10 {Email communication}
Sent by: Jean E. Allan aka Allan Sovik, individually and as Trustee of Jean E. Vorisek Family Trust, survivor entity to Business Assets Management, Inc. and its wholly owned subsidiary Senter Cove Development Company, Inc, legal owner of the large groundwater permit issued by NH DES in 1994, for the branded product High Birches Mountain Spring Water: Starts Pure Stay Pure: The Sustainable Source
Sent to: K. Allen Brooks ; via e-mail and priority mail delivery certification
Re: Request re: legal status of High Birches Large Groundwater Permits granted to Senter Cove Development Company, Inc, cir 1994, by NH Department of Environmental Sevices.
Dear AG Brooks:
According to the New Hampshire Supreme Court, "The Eminent Domain Procedure Act, RSA ch. 498-A (Supp. 1975), is intended to provide a complete and exclusive procedure to govern all condemnations of property for public purposes. However, "it is not intended to enlarge or diminish the power of condemnation given by law to any condemnor and it is not intended to enlarge or diminish the rights given by law to any condemnee." RSA 498-A:1 (Supp. 1975).
Logic therefore follows that when the NH DOJ in conjunction with the NH DES took the decision in 1998 to cement the main production well, upon which the above captioned large groundwater permit had been permitted, and thus effectively terminated the subject permit; it is a fact that that no hearing was ever held to enable the defendants to present their views, as well as alternate plans for an up-gradient production well, to an legal entity that had jurisdiction over such a taking.
The New Hampshire Supreme Court has opined that "Condemnation proceedings are intended to protect the proprietary rights of the individual who may be involuntarily deprived of property through the coercive power of the State. See State v. Garceau, 118 N.H. at 323 , 387 A.2d at 331. The methodology we have employed to determine the prevailing party in the superior court is consistent with the procedural burdens which are placed upon the condemning authority by RSA chapter 498-A."
The Court continued to state that "Just compensation in an eminent domain proceeding is for the property and not to the owner; therefore, indirect costs to the property owner caused by the taking are generally not part of the just compensation to which he is constitutionally entitled." Bodcaw, 440 U.S. at 203 (citation omitted). The cementing up of the High Birches Main production well, and thus effectively terminating the subject permits and subsequent permits that had been bootstrapped to the NH large groundwater permit clearly constitute a taking within the context of RSA 498-A:1 and, without due process of law as has been cited in the herein New Hampshire Supreme Court cases, among others.
In re: CHRISTA H. PRICE v CITY OF KEENE 1982.NH.19, 451 A.2d 382, 122 N.H. 840, the New Hampshire Supreme Court determined that "The question of whether a taking has occurred when the police power is exercised must be resolved under the circumstances of each case. . Burrows v. City of Keene, 121 N.H. 590, 598, 432 A.2d 15, 20 (1981).
The Court continued to find in Price that "Throughout these proceedings, however, she has taken the position that she is entitled to the procedural protections of the Eminent Domain Procedure Act, RSA ch. 498-A (Supp. 1979 & 1981) when property is taken for public purposes. That statute sets forth detailed procedures to be followed when land is condemned, including the method by which the amount of "just compensation" is to be set. See RSA 498-A:23 through :26 (Supp. 1979 & 1981). At no time did NH DOJ, or NH DES, upon making the determination to cement in the High Birches Main Production well, give proper notice to Senter of the decision to condemn, nor did they offer any compensation for the taking of the permits.
At all times during the condemnation process, both NH DOJ and NH DES were aware that the springs themselves had not been contaminated. Additionally, both agencies had been informed by me, and, separately, Mr. Bruce Lewis informed agents of NH DES, that an up-gradient production well could be developed on the property thereby allowing production of the High Birches Brand to continue; and, furthermore that the business interruption insurance would most likely have covered the cost of construction. At the time of the contamination of the condemned main production well the High Briches Branded Spring water was being sold retail by an affiliated company, Netmark International, Inc., coast to coast, in 12 oz Tetra Pak containers via the US Postal Services.
By taking the decision to cement in the main production well, NH DOJ and NH DES effectively "condemned" the plaintiff's permits and thus were the proximate cause of the ruin of Senter’s, and its affiliates businesses . The large groundwater permit, among others, had value to Senter el al: it was a right, privilege or advantage in the No Woodstock land upon which the springs are located. In re: Price the New Hampshire Supreme Court found that the plaintiff [Price] is entitled to a hearing regarding compensation for the taking of her right-of-way." Senter et al should have been equally entitled.
The New Hampshire Supreme Court has also found that ‘The due process clause of the fourteenth amendment requires that states provide individuals with procedural protections when they are deprived of either their property or their liberty. The type of process that must be afforded varies, however, depending upon the particular situation. See Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1972)." In my personal situation where I have been determined not competent, and extending to the above mentioned taking of the permits, it is very clear that as of this writing I, nor my companies, nor my business associates, nor my family, have benefited by the due process clause of the 14th Amendment. This failure of justice cannot stand any longer.
The New Hampshire Supreme Court found that "The Owner has a common law vested right having the project competed under that law." Piper v Meredith, 110 NH 291 (1970); Milton Dow v Effingham, 148 NH 121 (2002). And, the Court also found that "The notion that government needs ‘a compelling state interest’ to justify infringing of constitutionally protected values is well established in First Amendment litigation in the late 1950s and early 1960s." I have always contended that NH placed a "stigma" upon me, and thus deprived me of my constitutionally protected liberty interest. See Short v. School Admin. Unit 16, 136 N.H. 76, 83-84 (1992); Board of Regents v. Roth, 408 U.S. 564, 572-74 (1972). Until proven otherwise, this is my complaint today in this writing. I believe that a review of my overall complaint is entitled to the standard of strict scrutiny.
Again, the New Hampshire Supreme Court has stated that "generally, when governmental action impinges upon a fundamental right, such matters are entitled to review under strict judicial scrutiny," Akins v. Sec'y of State, 154 N.H. 67, 71 (2006), And, that "To comply with strict judicial scrutiny, the governmental restriction must "be justified by a compelling governmental interest and must be necessary to the accomplishment of its legitimate purpose." Follansbee v. Plymouth Dist. Ct., 151 N.H. 365, 367 (2004).
In January 1998, Massachusetts Federal Court Judge Gertner wrote that she dismissed Senter’s civil RICO case against Martha HW Crowninshield, FDIC et al for the reason that New Hampshire wanted to ‘police its own environmental problems’. On its face, New Hampshire’s claim would be a "compelling" reason to terminate Senter’s right to a civil trial. And, at that time, even Senter did not file a Motion of Reconsideration since it was of the opinion that New Hampshire had meant what it said. But, sadly both Federal Judge Gertner and Senter et al were misled by New Hampshire.
Instead, without further legal due process, New Hampshire took the decision to cement in the High Birches main production well, thus acting contrary to what the New Hampshire Supreme Court decided when it found that ‘The landowners' equal protection right to a hearing before a taking, established in Gazzola v. Clements, 120 N.H. 25 (1980), could not be vitiated."
The Court has previously recognized private property ownership rights as fundamental rights under the State Constitution, and diverging statutory procedural classifications involving fundamental rights are subject to strict scrutiny and cannot survive unless they promote a compelling State interest. The State’s interest in "policing its own environmental problems" may have been "compelling", if the state would have pursued a timely investigation. But it did not!
Therefore, unless the State now determines that there was no complete taking in 1998, and that somehow Senter’s large groundwater permit was not extinguished, there is still the issue of just compensation for what the State did take, in 1998. In State v. Garceau, 118 N.H. 321, 323, 387 A.2d 330, 331 (1978), the New Hampshire Supreme Court held that "the constitutional requirement of just compensation... impose on the condemnor the burden of proving by a preponderance of the evidence... that the price it offers for condemned land does in fact justly compensate the condemnee." Because the legislature had placed upon the condemnor, in a proceeding before the then eminent domain commission, the burden of proving by "the balance of probabilities" any contested issue of fact, see RSA 498-A:19 (Supp. 1982), we held that the burden of proof should remain on the condemnor on appeal to the superior court." 118 N.H. at 323-24, 387 A.2d at 331-32. This subject review must consider that the State never offered any compensation, albeit just, to Senter for its taking of the High Birches large groundwater permit. And, by its actions, the State violated Senter’s, the Jean E. Vorisek Family Trust’s, and my rights under the equal protection clause of the State Constitution.
The first inquiry concerning equal protection is whether persons similarly situated are being treated differently under statutory law. N.H. Const.pt. 1 , art. 12. Considering the State’s recent decision re: USA Springs, the answer to this is affirmative. Yes, the State has consistently treated Senter different and therefore, unequal to USA Springs, among others. At least up to the present. Perhaps things are about to change?
The New Hampshire Supreme Court has found that "The first question in an equal protection analysis is whether the State action in question treats similarly situated persons differently." Nutbrown v. Mount Cranmore, 140 N.H. 675, 681 (1996) (quotation omitted). In Nutbrown, the trial court found that the plaintiffs were "similarly situated with other New Hampshire landowners subject to public projects under the State's power of eminent domain," but that they were treated differently because other landowners are entitled to specific notice and a pre-taking hearing on the necessity of the taking."
All Senter et al has ever asked this State is for a full and fair hearing, and or thorough independent investigation pursuant to its due process rights under the law. Currently the New Hampshire Supreme Court has jurisdiction over the Appeal of Waukewan Holdings, llc v Jean Allan, which is material to the question that is being posed to NH DOJ at this time. Allan has requested that the Court hold a de novo trial in all matter dating back to 1989. There is also an open related matter in Laconia District Court in re: State v Jean Allan. That matter is for criminal trespassing. All matters open and shut are related to the question of the status of the large groundwater permits that were issued to Senter Cove Development Company, Inc. in 1994.
The question that all related parties to the Jean Allan matters have raised is, whether these matters can get a full and fair hearing in New Hampshire State courts given the track records to date; or, should these matters be referred to an authority independent of the State; or, can there be a shared jurisdictional entity that can guarantee me, and my affiliates, a full and fair hearing in accordance to strict scrutiny standards with respect to all applicable laws, both State and Federal.
I shall look forward to your prompt response to my inquiry. I have been informed by my travel agent that I can change my reservations to a return date of September 21, 2010. Considering that I have to drive across country from the west coast I should be able to be back in New Hampshire late September or early October, 2010. I would assume by that time your Office would be able to meet with me to discuss your findings with respect to my inquiry. There is a possibility that I may be able to arrive in New Hampshire at an earlier date, but those options have not been firmed up as of this writing.
Thank you in advance for your prompt attention to my inquiry.
Sincerely,
Jean E. Allan aka Allan Sovik
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