Real Estate & Property Law

2008 Land Use In Review: Public Use And Pretext In Eminent Domain

By Robert Thomas (inversecondemnation.com)

One of the bigger developments, at least in Hawaii law, came in the last week of the year. We're talking about the Hawaii Supreme Court's decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) (and we're not just hailing the case because we're the attorneys for the landowner).

The Court held that government, not property owners, bears the financial risk that a condemnation fails and, importantly, joins a number of courts in holding that the government's proclamation that a taking is for public use is not immune from judicial inquiry. All five Justices agreed that under Haw. Rev. Stat. § 101-27 (1993), the government must  pay damages (including attorneys fees and courts costs) to make a property owner whole when a taking attempt fails.  Three Justices, in an opinion by Justice Acoba (joined by Justices Nakayama and Duffy) held that a reviewing court must take seriously a property owner's claim that the asserted public use is merely a pretext:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. The majority opinon is posted here. The Hawaii Supreme Court joined other courts addressing the issue in 2008.  Those opinions will be covered in a separate post, shortly.

Full post as published by inversecondemnation on January 07, 2009 (boomark / email).