Home | Hawaii Eminent Domain
Hawaii's Eminent Domain Laws and Property Rights
Meet OCA's Hawaii Attorney
Mark M. Murakami
Mark Murakami practices in the areas of Dispute Resolution, Real Estate and Construction, Eminent Domain, and Business and Commercial Law. His practice focus is on complex commercial disputes, land use negotiation and litigation, environmental, and general civil litigation.
Hawaii
Damon Key Leong Kupchak Hastert
1003 Bishop Street 1600 Pauahi Tower
Honolulu, HI 96813
Tel:(808) 531-8031 | Fax:(808) 533-2242
mmm@hawaiilawyer.com | www.hawaiilawyer.com
Education
- University of Hawaii School of Law, J.D., 1999, (Law Review: Articles Editor)
- United States Coast Guard Academy, B.S., 1992
Bar Admissions and Memberships
- Hawaii
- U.S. Supreme Court
- U.S. Court of Appeal for the Ninth Circuit
- U.S. Court of Federal Claims
- American Bar Association
- Hawaii State Bar Association
- Maritime Law Association of the United States
Honors and Awards
Mark was the Valedictorian of the Class of 1999 from the William S. Richardson School of Law at the University of Hawaii where he earned several academic honors.
Property Rights in the State of Hawaii
Unlike several other states, Hawaii did not pass any private economic development legislation as a result of the U.S. Supreme Court’s decision in Kelo v. City of New London. In fact, one of the root cases that Kelo relied on in upholding the right of New London to condemn for private economic development was a 1984 case from the state of Hawaii entitled Hawaii Housing Authority v. Midkiff. In Midkiff, the U. S. Supreme Court upheld a broad definition of the “public use” clause in the state’s constitution, ultimately finding that the state could use eminent domain to take land that was overwhelmingly concentrated in the hands of private landowners and redistribute it to the wider population of private residents, a ruling that remains controversial to this day.
A SUMMARY OF HAWAII’S EMINENT DOMAIN LAWS
The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.
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Who Can Exercise Eminent Domain Powers?
The State of Hawaii, the four major counties, and certain private entities which are delegated the power of eminent domain may condemn private property for public use. The procedures governing the taking may be different depending on the condemning authority.
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What Are the Legal Requirements for Exercising the Power?
Under both Hawaii and federal law, private property can only be taken or damaged for public use. The courts have interpreted “public use” to include “public purpose.” Additionally, condemning authority must possess the proper delegation of eminent domain authority from the State. If the power to take property exists, just compensation must be paid for the property being taken or damaged.
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What Limitations or Defenses Exist?
Once the decision to proceed with a taking is made and the acquisition of property necessary for the project is determined by an authorized condemning authority, the grounds to challenge the condemnation are determined on a case-by-case basis. Examples of defenses to a taking may include, for example, whether a proper public use or purpose exists for the condemnation or whether the prerequisite legal authority to condemn is present. Has the condemning authority complied with all of the procedural requirements and prerequisites to the taking? Is the condemnor authorized to take the property? Is there a public necessity for the taking?
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What Constitutes a Public Purpose?
Like the U.S. Constitution, Hawaii’s Constitution limits the use of eminent domain to “public use,” a term which over time has come to include public “purpose.” Typical uses that satisfy a public use or purpose can include public roads, parks, schools, other public buildings, or other projects or undertakings that serve a public good or need. Unfortunately, unlike other states that embraced eminent domain reform following the U.S. Supreme Court’s Kelo decision in 2005 Hawaii has not adopted any changes in the law to provide landowners more protection from the taking of their property.
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How is Just Compensation Determined?
The definition of just compensation under Hawaii and federal law includes the fair market value of the property being taken from the landowner, any diminution in value to the landowner’s remaining property, and the right of landowners to claim pre-condemnation losses.
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Can the Government Take Possession of the Landowner's Property Before Final Compensation is Paid?
When the State, or a county seeks to take possession of property prior to a final determination of just compensation it asks the court for an “order of immediate possession.” State law establishes several prerequisites including the government’s deposit of an estimate of just compensation owed for the taking. If the government complies with these requirements, the court “shall” allow it to enter into possession, leaving the question of the just compensation actually owed for a later date.
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