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Eminent Domain Use Should be Last Resort
January
2007
The Hawaii Association of REALTORS® recognizes the need for government use of eminent domain in providing a public purpose, such as erosion control, transportation or affordable housing, but protecting the right of citizens to be secure in their ownership of property is a core value of our industry. Eminent domain - when not used for the purpose it was intended - is wrong regardless of who it helps or benefits.
In the wake of Kelo, many states have already amended their laws to further restrict the use of eminent domain, and other state legislatures are preparing to act in their next session to toughen their eminent domain laws. As an advocate for private property rights, HAR offers some insight that might contribute to a policy solution specific to help the Castle Hills homeowners.
One of the objections of landowners whose properties are made the target of an eminent domain action is that the procedures required by state law are not adequate to ensure meaningful opportunity for those landowners, and citizens generally, to be heard. By tying the public hearing process to the step of reviewing the results of an alternatives analysis before the use of an eminent domain plan is formally proposed, there is a greater opportunity for landowners and citizens to ensure that government will either avoid the use of eminent domain altogether, or revise its plan so as to minimize the use of eminent domain.
Government must recognize that the "fair market value" of the property taken (based on the willing seller/willing buyer rule) is not sufficient to adequately compensate owners whose properties are condemned. HAR believes that "just" compensation to affected property owners should cover not only the value of the property condemned, but also all other reasonable and necessary costs generated by the condemnation action, including attorney's fees, moving expenses, temporary housing, and lost business revenue.
The potential for "abuse" in the use of eminent domain is government's failure to put in place mechanisms that not only ensure that there is sufficient public purpose and control, but ensure that the stated public benefits will, in fact, be realized. Government should require that such mechanisms (whether by contract, public retention of fee interest or other method) be included for the exercise of eminent domain to be valid.
2007 Legislative Bills
HAR's 2007 legislative goal is to recommend and support policies based on 5 principles that both REALTORS® believe are important. As an advocate for private property rights, HAR will work on strengthening Hawaii's eminent domain laws in 2007.
I. Calling for Increased Judicial Review (25K PDF file)
- Summary (10K PDF file)
II. Just Compensation (10K PDF file)
- Summary (10K PDF file)
III. Request for Good Faith Settlement (10K PDF file)
- Summary (10K PDF file)
IV. Reacquisition of Condemned Property (10K PDF file)
- Summary (10K PDF file)
Review and Analysis of 2006 Legislative Bills
The National Association of REALTORS®, on behalf of the Hawaii Association of REALTORS® has requested a review by of three proposed bills – House Bill 2233 (“HB2233”); Senate Bill 2986 (“SB2986”), and Senate Bill 31911 (“SB3191”) – that propose to limit eminent domain in the state of Hawaii.
I. Executive Summary and Analysis of Bills by Robinson & Cole (150K PDF file)
II. 2006 Bill - HB2233 (1000K PDF file)
III. 2006 Bill - SB2986 (250K PDF file)
IV. 2006 Bill - SB3191 (1200K PDF file)
Eminent Domain Articles and Reports
I. NAR Working Principles on Eminent Domain (100K PDF file)
II. Article: Swift Legislation [Over]Reaction to Eminent Domain, Patricia Salkin (225K PDF file)
III. Eminent Domain Law Summary in Hawaii, Robert Thomas, Esq. (200K PDF file)
IV. Article: Washington Times, Eminent Domain Surges After Ruling (360K PDF file)
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