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Eminent Domain Basics - Mark M. Murakami's presentation to the Hawaii Paralegal Association 1/18/2015
- 1. Eminent Domain Basics Hawaii Paralegal Association January 28, 2015 Mark M. Murakami Damon Key Leong Kupchak Hastert mmm@hawaiilawyer.com www.hawaiioceanlaw.com January 28, 2015 Copyright © 2015 Mark M. Murakami Do not reproduce without permission
- 2. What is Eminent Domain? Whether you know it or not, your house is for sale January 28, 2015
- 3. “Right” or “Power?” Attribute of sovereignty Supreme Court 1795: “Despotic power” Hawaii – remnant of Royal Prerogative, existed even before private property In re Pa Pelekane, 21 Haw. 175 (1912) January 28, 2015
- 4. 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) January 28, 2015
- 5. 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.” January 28, 2015
- 6. Hawaii Constitution “Private property shall not be taken or damaged for public use without just compensation.” Article I, § 20 January 28, 2015
- 7. “Property” Rights? Property does not have rights… People do January 28, 2015
- 8. Inherent Limitations on Eminent Domain Power due process public use just compensation statutory limitations January 28, 2015
- 9. Five Issues what is “property?” when is it “taken?” what is “public” use? what compensation is “just?” what process is “due?” January 28, 2015
- 10. 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) January 28, 2015
- 11. Other Sources of Eminent Domain Power HRS chapter 101 express authority – § 101-2: “private property may be taken for public use” HRS § 46-1.5(6) – counties HRS chapter 516 (land reform act) HRO chapter 38 (condo takings) January 28, 2015
- 12. 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 - § 101-13 sue in its own name - § 101-14 Public utilities - § 101-4 Water companies - § 101-41 January 28, 2015
- 13. What is “Property?” Real property Fee Simple Absolute easements leaseholds mineral rights air rights January 28, 2015
- 14. What is “Property” II Intangible property -- contract rights patents trade secrets franchises tolls income stream January 28, 2015
- 15. What is “Property” III Other valuable interests - liens mortgages permits vested rights fundamental “sticks” expectations created by Gov’t Kaiser Aetna v. US, 444 U.S. 179 (1979) January 28, 2015
- 16. Property III HRS § 101-2: all real estate, together with all structures, improvements, franchises, or appurtenances; water rights, easements of every nature January 28, 2015
- 17. 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) January 28, 2015
- 18. 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) January 28, 2015
- 19. January 28, 2015
- 22. May 31, 2006 And, what about that rail project?
- 23. What to Expect? Construction disputes = Condemnation lawsuits = City/HART budget? = But, definitely better traffic May 31, 2006
Editor's Notes
- aka ‘Takings’ and ‘Condemnation’
- common law power – rarely codified until modern times despotic power – VanHorne’s Lessee Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 311 (C.C.D. Pa. 1795) Hawaii’s unique history dovetails with the English background of the United States –
- always keep this in mind – property owners have done NOTHING WRONG the only area in which the awesome powers of government may be aligned against you as much are when you are accused of a crime property owners have every right to object at every step of the way – their only crime is that they own property that the government wants government has an obligation to treat these people well this is not typical litigation
- note that there is NO AFFIRMATIVE GRANT of eminent domain power in the constitution consistent with other provisions, it LIMITS THE ABILITY OF GOVERNMENT
- still an unsettled question as to what “DAMAGED” means and how it may differ from how the Courts have interpreted “TAKEN”
- the Right TO property, not the right OF property
- Hawaii Supreme court has held that chapter 101 superceded the common law and must be strictly construed (against the government, one would presume since it impacts the fundamental right of property, and to hold otherwise would violate the Fifth Amendment). Case - Herring v Gulick, 5 Haw. 57 (1883)
- Five questions naturally follow from the language of the Constitutions, and inform the issue of whether an exercise of eminent domain authority is valid:
- always keep in mind the overriding purpose of the Takings Clauses: designed as a check on legislative overreaching and to insure that the cost of public benefits are not concentrated in a few politically powerless citizens but spread across the entire population
- PUBLIC UTILITY = common carriers, freight carriers – by rail, bus, other means telephone company water, gas, oil suppliers ----------------------------------- Water companies – rights of way for water systems – limited to one county – go to PUC first and get OK
- income stream – Sandy Beach – court held that ……….
- as property owner’s counsel, BE CREATIVE – constitution requires full value, so don’t ignore novel theories just because it hasn’t been done before listen to your clients – business people know best what is valuable in the marketplace Fundamental sticks – Kaiser Aetna, 1979
- HOW DID WE GET FROM THIS
- TO THIS?