Eminent Domain Basics - Mark M. Murakami's presentation to the Hawaii Paralegal Association 1/18/2015

Eminent Domain Basics

Hawaii Paralegal AssociationJanuary 28, 2015

Mark M. MurakamiDamon Key Leong Kupchak Hastert

[email protected]

January 28, 2015Copyright © 2015 Mark M. Murakami Do not reproduce without permission

What is Eminent Domain?

Whether you know it or not, your house is for sale

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“Right” or “Power?”Attribute of sovereigntySupreme Court 1795: “Despotic power”Hawaii – remnant of Royal Prerogative,

existed even before private property In re Pa Pelekane, 21 Haw. 175 (1912)

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Property is a Constitutional Right

“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.”

Dolan v. City of Tigard, 512 US 374 (1992)

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Fifth Amendment

“No person shall…be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”

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Hawaii Constitution

“Private property shall not be taken or damaged for public use without just compensation.”

Article I, § 20

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“Property” Rights?Property does not have rights…

People do

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Inherent Limitations on Eminent Domain Powerdue processpublic usejust compensationstatutory limitations

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Five Issueswhat is “property?”when is it “taken?”what is “public” use?what compensation is “just?”what process is “due?”

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Purpose

“designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Armstrong v. US, 364 U.S. 40 (1960)

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Other Sources of Eminent Domain PowerHRS chapter 101

express authority – § 101-2:“private property may be taken for public use”

HRS § 46-1.5(6) – countiesHRS chapter 516 (land reform act)HRO chapter 38 (condo takings)

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Who Can Condemn?State - § 101-2

Head of department request to AG - § 101-14

Counties - § 46-1.5(6), § 101-2 counties have no inherent power (not sovereign)must be by resolution - § 101-13sue in its own name - § 101-14

Public utilities - § 101-4

Water companies - § 101-41

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What is “Property?”Real property

Fee Simple Absoluteeasementsleaseholdsmineral rightsair rights

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What is “Property” IIIntangible property --

contract rights patentstrade secretsfranchisestollsincome stream

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What is “Property” IIIOther valuable interests -

liens mortgagespermitsvested rightsfundamental “sticks”expectations created by Gov’t

Kaiser Aetna v. US, 444 U.S. 179 (1979)

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Property IIIHRS § 101-2:

all real estate, together with all structures, improvements, franchises, or appurtenances; water rights, easements of every nature

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But is it REALLY property?do you really own it?

Background principles – nuisance law

“[W]estern concept of exclusivity is not universally applicable in Hawaii.” PASH v. Hawaii Planning Comm’n, 79 Haw. 425 (1995)

If “fully developed” (zoned and used for residential purposes with “existing dwellings, improvements, and infrastructure”) no PASH practices State v. Hanapi, 89 Haw. 177 (1998)

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Does Gov’t Decide?Gov’t can’t avoid liability by declaring

property never existed at all Hughes v. Washington, 389 U.S. 290 (1967) (Stewart, J.,

concurring)

State may not legislate property out of existence Webb’s Fabulous Pharmacies v. Beckwith, 449 US. 155 (1980)

Business is usually not “property” Kimball Laundry v. US, 338 U.S. 1 (1949)

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Honolulu

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Honolulu

May 31, 2006

And, what about that rail project?

What to Expect?

Construction disputes =

Condemnation lawsuits =

City/HART budget? =

But, definitely better traffic

May 31, 2006