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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

Robert H. Thomas

Robert H. Thomas

Robert H. Thomas is a director with Damon Key Leong Kupchak Hastert in Honolulu, Hawaii. He specializes in property and land use issues including eminent domain, inverse condemnation, regulatory takings, property rights, water rights, and voting rights. He has tried cases and appeals in Hawaii, California, and the federal courts, including the Court of Federal Claims. On behalf of landowners in Hawaii and nationwide, Robert appears as counsel for amici curiae ("friends of the court") before state appellate courts, state supreme courts and the U.S. Supreme Court.

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
rht@hawaiilawyer.com | www.hawaiilawyer.com

Robert serves as the Chair of the American Bar Association’s Section on State & Local Government Law. He is the Managing Attorney for the Pacific Legal Foundation’s Hawaii Center, a public interest legal foundation dedicated to defending private property rights and individual freedom. He has also been appointed by William & Mary Law School to the Brigham-Kanner Property Rights Conference Advisory Board and serves as a Planning Co-Chair and Faculty Member of one of the American Law Institute’s longest running legal education programs on eminent domain and land valuation litigation. Robert is frequently invited to speak on land use and eminent domain issues in Hawaii and across the country and regularly publishes scholarly papers and articles on this area of the law. He authors a widely-read blog on land use, property, and takings law, inversecondemnation.com, and his commentary on property rights issues is often quoted in the media.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

A complete list of reported cases in which Robert has been involved, is available here.

  • Robert has filed briefs amicus curiae on behalf of the Owners’ Counsel of America in support of property owners in a number of property rights cases reviewed by the United States Supreme Court including: Brandt Revocable Trust v. United States, 572 U.S. ___ (2014), Koontz v. St. Johns River Water Management District, 570 U.S. ___ (2013), Arkansas Game & Fish Comm’n v. U.S., 568 U. S. ____ (2012), and Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 998 So. 2d 1102 (2010).  He has also co-authored amicus briefs on behalf of Owners’ Counsel of America in support of landowners in eminent domain cases before various state supreme courts.
  • County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007) (represented homeowners in appeal of government challenge to validity of county charter capping real property taxes for resident homeowners).
  • Maunalua Beach Ohana 28 v. State of Hawaii (appeal pending in the Hawaii Intermediate Court of Appeals) (represent amicus supporting property owners who claim statute effected a regulatory taking of their shoreline property).
  • Kelo v. City of New London, 545 U.S. 469 (2005) (amicus curiae brief on the “public use” requirement in eminent domain).
  • Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (amicus curiae brief on the standards for regulatory takings).
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) (represented Maui farmers in challenge to allocation of fresh water on Maui, and related appeal for attorneys fees pursuant to 42 U.S.C. § 1988).
  • Leslie v. County of Hawaii, 109 Haw. 384, 126 P.3d 1071 (2006) (amicus curiae brief regarding proper scope of coastal zone regulations).
  • Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999) (represented property owner in Tucker Act case seeking just compensation for inverse condemnation of submerged and riparian property adjacent to the Oakland Inner Harbor – one of the few cases where a court has upheld an owner’s claim to compensation for taking of navigable waters).
  • United States v. Alameda Gateway, Ltd., 213 F.3d 1161(9th Cir. 2000) petition for cert. withdrawn due to settlement (Aug. 2000) (companion case to above; represented property owner on appeal in suit brought by Corps of Engineers seeking reimbursement of costs from property owner).
  • Maunalua Associates, Inc., fka Bedford Properties, Inc. v. City & County of Honolulu, No. 89-3539-11 (Haw., First Cir. 2002) (represented property owner in 15+ year, $100 million land use litigation seeking just compensation for downzoning and regulatory taking of vested development permit).
  • Boone v. United States, 725 F. Supp. 1509 (D. Haw. 1989) and 743 F. Supp. 1367 (D. Haw. 1989), aff’d, 944 F.2d 1489 (9th Cir. 1991) (trial and appeal protecting private navigable waters under inverse condemnation theory).
  • Kaiser Hawaii Kai Dev. Co. v. City & County of Honolulu, 70 Haw. 480, 777 P.2d 244 (Haw. 1989) (represented property owner in a case invalidating voter initiative as a means of enacting land use legislation in Hawaii).
  • Sandy Beach Defense Fund v. City & County of Honolulu, 773 P.2d 250 (Haw. 1989) (defended coastal development permit from due process and equal protection challenges in Hawaii state courts and satellite litigation in Honolulu Zoning Board of Appeals).
  • Lum Yip Kee, Ltd. v. City & County of Honolulu, 767 P.2d 244 (Haw. 1989) (amicus curiae brief challenging initiative as method of enacting zoning ordinances in Honolulu).

Speaking Engagements

Below is a select list of the many presentations Robert has recently given on land use and eminent domain. For a complete listing, including upcoming events and speaking engagements, visit here.

  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Eminent Domain National Law Update,” February 2015, San Francisco, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Challenging the Take,” February 2015, San Francisco, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “A Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice,” January 2014, New Orleans, LA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Condemning Underwater Mortgages,” January 2013, Miami Beach, FL.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation, “The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases,” January 2012, San Diego, CA.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation, “The “Social” Lawyer: New Media Strategies for Marketing Your Eminent Domain Practice,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation, “Winning Arguments in Challenging the Right To Take and Public Use, February 2010, Scottsdale, AZ.

Published Articles and Papers

Robert regularly publishes scholarly and practical articles on property rights and takings law and his most recent publications include those listed below. For a full list, please visit here.

Professional Affiliations

  • ABA State and Local Government Section – Chair, Condemnation Law Committee
  • ABA Council of Appellate Lawyers
  • ABA Litigation Section (Hawaii Editor, Case Notes – Committee on Condemnation, Zoning & Land Use)
  • Co-Chair and Faculty, American Law Institute-Continuing Legal Education: Eminent Domain and Land Valuation Litigation Litigation Course of Study
  • Former Adjunct Professor, University of Santa Clara School of Law
  • Board of Directors, Owners’ Counsel of America (2012-2015)

Education

  • Columbia University School of Law, LLM, with Honors, 1995, (Harlan Fiske Stone Scholar)
  • University of Hawaii School of Law, J.D., 1987, (Law Review: Executive Editor)
  • University of Santa Clara, B.S., 1984

Bar Admissions and Memberships

  • Hawaii
  • California
  • U.S. Supreme Court
  • U.S. Court of Appeals (Ninth and Federal Circuits)
  • U.S. District Court (Hawaii and Northern District of California)
  • U.S. Court of Federal Claims, U.S. Tax Court
  • American Bar Association
  • Hawaii Bar Association
  • California Bar Association

Honors and Awards

  • Listed in The Best Lawyers in America®, Eminent Domain and Condemnation Law

Robert serves as the Chair of the American Bar Association’s Section on State & Local Government Law. He is the Managing Attorney for the Pacific Legal Foundation’s Hawaii Center, a public interest legal foundation dedicated to defending private property rights and individual freedom. He has also been appointed by William & Mary Law School to the Brigham-Kanner Property Rights Conference Advisory Board and serves as a Planning Co-Chair and Faculty Member of one of the American Law Institute’s longest running legal education programs on eminent domain and land valuation litigation. Robert is frequently invited to speak on land use and eminent domain issues in Hawaii and across the country and regularly publishes scholarly papers and articles on this area of the law. He authors a widely-read blog on land use, property, and takings law, inversecondemnation.com, and his commentary on property rights issues is often quoted in the media.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

A complete list of reported cases in which Robert has been involved, is available here.

  • Robert has filed briefs amicus curiae on behalf of the Owners’ Counsel of America in support of property owners in a number of property rights cases reviewed by the United States Supreme Court including: Brandt Revocable Trust v. United States, 572 U.S. ___ (2014), Koontz v. St. Johns River Water Management District, 570 U.S. ___ (2013), Arkansas Game & Fish Comm’n v. U.S., 568 U. S. ____ (2012), and Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 998 So. 2d 1102 (2010).  He has also co-authored amicus briefs on behalf of Owners’ Counsel of America in support of landowners in eminent domain cases before various state supreme courts.
  • County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007) (represented homeowners in appeal of government challenge to validity of county charter capping real property taxes for resident homeowners).
  • Maunalua Beach Ohana 28 v. State of Hawaii (appeal pending in the Hawaii Intermediate Court of Appeals) (represent amicus supporting property owners who claim statute effected a regulatory taking of their shoreline property).
  • Kelo v. City of New London, 545 U.S. 469 (2005) (amicus curiae brief on the “public use” requirement in eminent domain).
  • Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (amicus curiae brief on the standards for regulatory takings).
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) (represented Maui farmers in challenge to allocation of fresh water on Maui, and related appeal for attorneys fees pursuant to 42 U.S.C. § 1988).
  • Leslie v. County of Hawaii, 109 Haw. 384, 126 P.3d 1071 (2006) (amicus curiae brief regarding proper scope of coastal zone regulations).
  • Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999) (represented property owner in Tucker Act case seeking just compensation for inverse condemnation of submerged and riparian property adjacent to the Oakland Inner Harbor – one of the few cases where a court has upheld an owner’s claim to compensation for taking of navigable waters).
  • United States v. Alameda Gateway, Ltd., 213 F.3d 1161(9th Cir. 2000) petition for cert. withdrawn due to settlement (Aug. 2000) (companion case to above; represented property owner on appeal in suit brought by Corps of Engineers seeking reimbursement of costs from property owner).
  • Maunalua Associates, Inc., fka Bedford Properties, Inc. v. City & County of Honolulu, No. 89-3539-11 (Haw., First Cir. 2002) (represented property owner in 15+ year, $100 million land use litigation seeking just compensation for downzoning and regulatory taking of vested development permit).
  • Boone v. United States, 725 F. Supp. 1509 (D. Haw. 1989) and 743 F. Supp. 1367 (D. Haw. 1989), aff’d, 944 F.2d 1489 (9th Cir. 1991) (trial and appeal protecting private navigable waters under inverse condemnation theory).
  • Kaiser Hawaii Kai Dev. Co. v. City & County of Honolulu, 70 Haw. 480, 777 P.2d 244 (Haw. 1989) (represented property owner in a case invalidating voter initiative as a means of enacting land use legislation in Hawaii).
  • Sandy Beach Defense Fund v. City & County of Honolulu, 773 P.2d 250 (Haw. 1989) (defended coastal development permit from due process and equal protection challenges in Hawaii state courts and satellite litigation in Honolulu Zoning Board of Appeals).
  • Lum Yip Kee, Ltd. v. City & County of Honolulu, 767 P.2d 244 (Haw. 1989) (amicus curiae brief challenging initiative as method of enacting zoning ordinances in Honolulu).

Speaking Engagements

Below is a select list of the many presentations Robert has recently given on land use and eminent domain. For a complete listing, including upcoming events and speaking engagements, visit here.

  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Eminent Domain National Law Update,” February 2015, San Francisco, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Challenging the Take,” February 2015, San Francisco, CA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “A Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice,” January 2014, New Orleans, LA.
  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Condemning Underwater Mortgages,” January 2013, Miami Beach, FL.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation, “The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases,” January 2012, San Diego, CA.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation, “The “Social” Lawyer: New Media Strategies for Marketing Your Eminent Domain Practice,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation, “Winning Arguments in Challenging the Right To Take and Public Use, February 2010, Scottsdale, AZ.

Published Articles and Papers

Robert regularly publishes scholarly and practical articles on property rights and takings law and his most recent publications include those listed below. For a full list, please visit here.

Professional Affiliations

  • ABA State and Local Government Section – Chair, Condemnation Law Committee
  • ABA Council of Appellate Lawyers
  • ABA Litigation Section (Hawaii Editor, Case Notes – Committee on Condemnation, Zoning & Land Use)
  • Co-Chair and Faculty, American Law Institute-Continuing Legal Education: Eminent Domain and Land Valuation Litigation Litigation Course of Study
  • Former Adjunct Professor, University of Santa Clara School of Law
  • Board of Directors, Owners’ Counsel of America (2012-2015)
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