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Hawaii's Eminent Domain Laws and Property Rights

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.

Meet OCA's Hawaii Attorney

Mark M. Murakami

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.

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.

  • 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.

  • 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.

  • 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?

  • 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.

  • 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.

  • 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.

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

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. Besides being an experienced lawyer, Mark is a veteran who served with distinction in the U.S. Coast Guard and Reserve from 1992 to 2022. Mark served on three different Coast Guard cutters, including command of a patrol boat in California. He also spent four years serving as a judge advocate and Special Assistant U.S. Attorney prosecuting maritime and environmental crimes and advising on international and law enforcement issues. He has been awarded the Defense Meritorious Service Medal, two Meritorious Service Medals, two Coast Guard Commendation Medals, and four Coast Guard Achievement Medals. He will retire from the Reserve in July 2022 with the permanent rank of Captain. 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.

SIGNIFICANT EMINENT DOMAIN AND PROPERTY RIGHTS REPRESENTATIONS AND REPORTED DECISIONS

Mark has worked on several eminent domain, land use, and voting rights cases in Hawaii.

  • County of Hawaii v. Coupe Family Limited Partnership, 124 Haw. 281 (2010) (On Briefs)
  • County of Hawaii v. Coupe Family Limited Partnership, 120 Haw. 400 (2009) (On Briefs)
  • Kellberg v. County of Hawaii (land use)
  • Kostick v. Nago, 960 F. Supp. 2d 1074 (D. Haw. 2013) (three judge panel) (On Briefs)
  • Kauai Springs, Inc. v. Kauai Planning Commission, 133 Haw. 141 (2014) (On Briefs)
  • Oahu Publications dba Honolulu Star-Advertiser v. Abercrombie, 134 Haw. 16 (2014) (On Briefs)
  • MVRA v. County of Maui, Ninth Circuit Court of Appeals (Unpublished Decision) (2008)(On Brief)

He also worked on several amicus curiae briefs on national cases involving property rights, land use, regulatory takings, and navigational servitudes, including:

  • District Council 50 v. Lopez, 129 Haw. 281 (2013) (Amicus Brief)
  • Guggenheim v. City of Goleta, Supreme Court Docket No. 10-1125, Cert Denied (2011)(Amicus Brief)
  • United States v. Tohono O’odham Nation, 131 S. Ct. 1723, (2011) (Amicus Brief)
  • Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. 130 S. Ct. 2592 (2010) (Amicus Brief)
  • Winter v. NRDC, 129 S. Ct. 365 (2008) (Amicus Brief)
  • UFO Chuting v. Thielen, Supreme Court Docket No. 07-1427, (2008) (Amicus Brief on Cert Petition)

Speaking Engagements

  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Jurisdictional Offers Must Include Assessment of Severance Damages,” January 2022, Scottsdale, AZ
  • American Law Institute: Eminent Domain and Land Valuation Litigation, Moderator “The First Question in Determining Just Compensation: What Property Should be Valued?” January 2020, Nashville, TN.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Misconceptions and Urban Legends About Eminent Domain in the Popular Media,” January 2019, Palm Springs, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Overview of Issues in Federally Funded Highway and Railway Projects,” January 2017, San Diego, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Motions Practice: Define, Narrow, and Win,” January 2016, Austin, TX.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Denominators and Bright Lines: The Search for the Relevant Parcel in Eminent Domain and Regulatory Takings,” February 2015, San Francisco, CA.
  • HSBA Probate Section Presentation on New Probate Forms Manual (January 2014)
  • HSBA Real Property and Financial Services Section – Annual Real Estate Litigation Update (2013-2021)
  • Seminar Group – 2nd Annual Eminent Domain and Condemnation Law (August 2013)
  • Federal Appeals – Hawaii State Bar Association Appellate Law Section (March 2013)
  • Seminar Group – Eminent Domain and Condemnation Law (July 2012)
  • University of Hawaii Law School, Professional Responsibility, February 8, 2012 (CoPanelist)
  • ABA Section of State and Local Government – Regionalism in Land Use Decisions (May 2011), Portland, OR
  • Cambodia Policy and Strategy of National Committee for Maritime Security, Siem Reap, Cambodia (2009)

Published Articles and Papers

  • Finding a New Path: A Practical Look at PASH, the Public Trust, and Western Property Law. 43 U. Haw. L. Rev. 613 (2021)
  • The Law of Eminent Domain – A Fifty State Survey (Hawaii chapter), ABA Section on Litigation, Committee on Condemnation, Zoning & Land Use, (2012)
  • Eminent Domain – A Handbook of Condemnation Law (2011) (chapters on Prelitigation Process and Flooding and Erosion
  • Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010) (with Mark M. Murakami and Tred Eyerly)
  • Hawaii State Bar Association, Hawaii Probate Forms Manual – Contested Matters Chapter (2014), (2021)
  • Hawaii State Bar Association, Federal Appeals Manual (2013)
  • Eminent Domain: A Handbook of Condemnation Law (2011) (Co-Author)
  • Damages Resulting From A Taking: An Overview; ABA State and Local Government Section (2011) (Co-Author)
  • Laws Can Play Critical Role in Fighting Piracy, Pacific Business News, May 1, 2009 (Author)
  • Op-Ed, Ruling Preserves Navy Strength in Defense, Honolulu Advertiser, December 4, 2008 (Co-Author)
  • Justice Ruth Bader Ginsburg and Gender Discrimination, 20 Hawaii Law Rev. 699 (1998) (Co-Author)
  • From Details to Concepts: The New Development Plans, published in the HSBA Real Estate Section Newsletter (1998) (Author)
  • Blog: www.hawaiioceanlaw.com

Professional Affiliations

  • Counselor of Real Estate, Hawaii Chapter, Chair (2022-Present)
  • ABA Section on Litigation – Real Estate Condemnation and Trust Litigation Committee – Programming Co-Chair
  • Board of Directors, Hawaii State Bar Association (2012 – 2017)
  • Board of Directors, I’m a Bright Kid Foundation (2016 – Present)
  • Board of Directors, Good Beginnings Alliance (2011 – 2018)
  • U.S. Coast Guard/Reserve (1988 to 2022)

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.

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. Besides being an experienced lawyer, Mark is a veteran who served with distinction in the U.S. Coast Guard and Reserve from 1992 to 2022. Mark served on three different Coast Guard cutters, including command of a patrol boat in California. He also spent four years serving as a judge advocate and Special Assistant U.S. Attorney prosecuting maritime and environmental crimes and advising on international and law enforcement issues. He has been awarded the Defense Meritorious Service Medal, two Meritorious Service Medals, two Coast Guard Commendation Medals, and four Coast Guard Achievement Medals. He will retire from the Reserve in July 2022 with the permanent rank of Captain. 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.

SIGNIFICANT EMINENT DOMAIN AND PROPERTY RIGHTS REPRESENTATIONS AND REPORTED DECISIONS

Mark has worked on several eminent domain, land use, and voting rights cases in Hawaii.

  • County of Hawaii v. Coupe Family Limited Partnership, 124 Haw. 281 (2010) (On Briefs)
  • County of Hawaii v. Coupe Family Limited Partnership, 120 Haw. 400 (2009) (On Briefs)
  • Kellberg v. County of Hawaii (land use)
  • Kostick v. Nago, 960 F. Supp. 2d 1074 (D. Haw. 2013) (three judge panel) (On Briefs)
  • Kauai Springs, Inc. v. Kauai Planning Commission, 133 Haw. 141 (2014) (On Briefs)
  • Oahu Publications dba Honolulu Star-Advertiser v. Abercrombie, 134 Haw. 16 (2014) (On Briefs)
  • MVRA v. County of Maui, Ninth Circuit Court of Appeals (Unpublished Decision) (2008)(On Brief)

He also worked on several amicus curiae briefs on national cases involving property rights, land use, regulatory takings, and navigational servitudes, including:

  • District Council 50 v. Lopez, 129 Haw. 281 (2013) (Amicus Brief)
  • Guggenheim v. City of Goleta, Supreme Court Docket No. 10-1125, Cert Denied (2011)(Amicus Brief)
  • United States v. Tohono O’odham Nation, 131 S. Ct. 1723, (2011) (Amicus Brief)
  • Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. 130 S. Ct. 2592 (2010) (Amicus Brief)
  • Winter v. NRDC, 129 S. Ct. 365 (2008) (Amicus Brief)
  • UFO Chuting v. Thielen, Supreme Court Docket No. 07-1427, (2008) (Amicus Brief on Cert Petition)

Speaking Engagements

  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Jurisdictional Offers Must Include Assessment of Severance Damages,” January 2022, Scottsdale, AZ
  • American Law Institute: Eminent Domain and Land Valuation Litigation, Moderator “The First Question in Determining Just Compensation: What Property Should be Valued?” January 2020, Nashville, TN.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Misconceptions and Urban Legends About Eminent Domain in the Popular Media,” January 2019, Palm Springs, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Overview of Issues in Federally Funded Highway and Railway Projects,” January 2017, San Diego, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Motions Practice: Define, Narrow, and Win,” January 2016, Austin, TX.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Denominators and Bright Lines: The Search for the Relevant Parcel in Eminent Domain and Regulatory Takings,” February 2015, San Francisco, CA.
  • HSBA Probate Section Presentation on New Probate Forms Manual (January 2014)
  • HSBA Real Property and Financial Services Section – Annual Real Estate Litigation Update (2013-2021)
  • Seminar Group – 2nd Annual Eminent Domain and Condemnation Law (August 2013)
  • Federal Appeals – Hawaii State Bar Association Appellate Law Section (March 2013)
  • Seminar Group – Eminent Domain and Condemnation Law (July 2012)
  • University of Hawaii Law School, Professional Responsibility, February 8, 2012 (CoPanelist)
  • ABA Section of State and Local Government – Regionalism in Land Use Decisions (May 2011), Portland, OR
  • Cambodia Policy and Strategy of National Committee for Maritime Security, Siem Reap, Cambodia (2009)

Published Articles and Papers

  • Finding a New Path: A Practical Look at PASH, the Public Trust, and Western Property Law. 43 U. Haw. L. Rev. 613 (2021)
  • The Law of Eminent Domain – A Fifty State Survey (Hawaii chapter), ABA Section on Litigation, Committee on Condemnation, Zoning & Land Use, (2012)
  • Eminent Domain – A Handbook of Condemnation Law (2011) (chapters on Prelitigation Process and Flooding and Erosion
  • Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010) (with Mark M. Murakami and Tred Eyerly)
  • Hawaii State Bar Association, Hawaii Probate Forms Manual – Contested Matters Chapter (2014), (2021)
  • Hawaii State Bar Association, Federal Appeals Manual (2013)
  • Eminent Domain: A Handbook of Condemnation Law (2011) (Co-Author)
  • Damages Resulting From A Taking: An Overview; ABA State and Local Government Section (2011) (Co-Author)
  • Laws Can Play Critical Role in Fighting Piracy, Pacific Business News, May 1, 2009 (Author)
  • Op-Ed, Ruling Preserves Navy Strength in Defense, Honolulu Advertiser, December 4, 2008 (Co-Author)
  • Justice Ruth Bader Ginsburg and Gender Discrimination, 20 Hawaii Law Rev. 699 (1998) (Co-Author)
  • From Details to Concepts: The New Development Plans, published in the HSBA Real Estate Section Newsletter (1998) (Author)
  • Blog: www.hawaiioceanlaw.com

Professional Affiliations

  • Counselor of Real Estate, Hawaii Chapter, Chair (2022-Present)
  • ABA Section on Litigation – Real Estate Condemnation and Trust Litigation Committee – Programming Co-Chair
  • Board of Directors, Hawaii State Bar Association (2012 – 2017)
  • Board of Directors, I’m a Bright Kid Foundation (2016 – Present)
  • Board of Directors, Good Beginnings Alliance (2011 – 2018)
  • U.S. Coast Guard/Reserve (1988 to 2022)
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