Hawaii leads way
to ruling on
A Supreme Court decision on
the taking of property will not
affect the state
A U.S. Supreme Court decision upholding a Connecticut city's right to force residents to sell their homes to a developer has few implications for Hawaii, one of the state's leading experts on land-use law said yesterday.
Hawaii law already grants governments broad power to take property from private landowners on behalf of private parties, said David Callies, a professor at the University of Hawaii's William S. Richardson School of Law. Federal courts, Callies said, also have been increasing the power of governments to condemn property of people who are unwilling to sell.
"On the whole, this is a continuation of where we were," Callies said.
In its 5-4 decision yesterday, the Supreme Court ruled that the city of New London, Conn., could force residents to sell their homes to make way for a waterfront development anchored by a $300 million Pfizer Inc. research facility. The residents included a woman who had lived in her home for 87 years and another who had made extensive improvements to a home bought in 1997.
Governments have long used eminent domain power to force landowners to sell property to be used for public facilities, such as roads, airports and sports stadiums. Lawyers call this "public use." Recently, Callies said, the Supreme Court has expanded governments' eminent domain powers, allowing them to be used not just for public use projects, but also for those with a public purpose.
In the New London case, the court majority reaffirmed the public purpose rationale. Writing for the majority, Justice John Paul Stevens wrote, "Promoting economic development is a traditional and long-accepted governmental function, and there is no principled way of distinguishing it from other public purposes the court has recognized."
For example, Stevens cited a Hawaii case in which a trustee for the Bishop Estate challenged a law forcing the trust to sell property to lessees. In that case, the court upheld the law on grounds that there was a compelling public interest for Hawaii to eliminate "the social and economic ills of a land oligopoly."
That case, known as the Midkiff decision, paved the way for the New London decision, Callies said.
"The light has always been green after Midkiff," he said.
Not everyone was pleased.
In a searing dissent, Justice Sandra Day O'Connor wrote that, under the banner of economic development, all private property is vulnerable to being taken from one private landowner and given to another, as long as local policymakers argue the taking will benefit the public.
"Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
"The Founding Fathers formed the country on the basis that the individual was more important than the government, and what the Supreme Court said was, 'That's not true,'" said Richard Rowland, president of the Grassroot Institute of Hawaii, a think tank. "It's disgusting."
In its ruling, the court said states have the power to restrict eminent domain powers beyond the federal standards. But Callies said Hawaii has not done so.
"In Hawaii, the truth of the matter is that that government can basically take private property where it wants as long as it pays compensation," Callies said. "The public use standard is dead. Government can take anything at this point."