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In defense of taking land for public use


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POSTED: Sunday, October 04, 2009

Suzette Kelo should have won. Taking a perfectly good single-family house in order to “;economically revitalize”; a neighborhood is neither good policy nor good law. However, neither that case nor the Hawaii case that preceded it should have resulted in the recent Hawaii case overturning a government taking for a very public road. Nor are any of the three quite as described by Rob Thomas in his recent review of the book “;Little Pink House”; (”;Story behind court ruling resonates in isles,”; Star-Bulletin, Sept. 20).

Facts matter.

First, as Thomas suggests, the U.S. Supreme Court relied on its earlier Hawaii Land Reform Act decision in deciding Kelo. But the Act does not permit the use of eminent domain by landowners. A state agency - the Hawaii Housing Authority - condemned the land under single-family homes. No court has ever authorized the use of condemnation by private citizens.

Second, the Connecticut government redevelopment agency in the Kelo case condemned the Kelo property in order to economically revitalize an entire neighborhood - not “;to entice a major pharmaceutical company to relocate to New London.”; The relocation was already a fact of life.

The government concluded that such economic revitalization was for a public purpose (not public use like a road, a park, a school, and so forth - a critically important distinction). Given where Thomas goes next - that the private client which his firm represented was similarly a small and powerless victim of an essentially private and pretextual condemnation at the behest of a large and powerful private developer, devoid of any public merit or use - the juxtaposition is hardly surprising.

Simply not true.

First, the road in question for which the County of Hawaii condemned Thomas' client's land is, was, and always was meant to be a public bypass road designed to relieve highway traffic congestion in South Kona. The road commences at one point on the highway, virtually parallels the highway for nearly five miles, and then ends at another public road near the same highway. Does this sound like the county “;(took) land from Hokulia's neighbors for a road to service the (Hokulia) project”;? Such a road is a classic use by the public.

Second, the county had planned for such a public bypass road for decades, but could not afford to acquire the necessary land and build it. Enter Hokulia, which agreed to both acquire the land and construct the road at a cost exceeding $50 million in exchange for the guarantee of its existing zoning for 20 years in order to complete its approved resort-residential project. Hokulia did not “;order”; the county to do anything. It simply told the county that it was going to be well nigh impossible to fulfill their agreement to finish a very expensive public bypass road if the county didn't condemn a hold-out private landowner in the path of the highway. Does this sound like the county “;sold the decision whether to exercise eminent domain to the developer”;?

Third, Thomas prefaces his version of the Hokulia case by observing that “;eminent domain dispossess(es) the politically powerless of their land and business in favor of moneyed private insiders,”; presumably attempting to cast his client in the role of the powerless and Hokulia as the private insider. But Thomas' client is a well-known and well-off local family. Politically powerless? Hokulia the private “;insider”;? Not likely.

Fourth and finally, until the recent decision of our state Supreme Court, courts held that only government condemnations - of private property for a public purpose (redevelopment, economic revitalization) might be “;pretextual”; - for private, and not public, benefit.

There are two vitally important points: First, the pretext argument had - until now - never been applied to a condemnation for use by the public like a public road, but only to condemnations for sometimes ill-defined and mixed (public-private) purposes.

Second, the handful of successful pretext cases - until Hawaii's - are all extreme examples of government takings for transparently private purposes, like a government agency condemnation of a 99 Cents store next to a Costco at Costco's express direction in order to prevent competition.

In sum, the national 48-state backlash following the condemnation of Suzette Kelo's little pink house is a predictable reaction to government overreaching in aid of economic revitalization. However, government must have and exercise its condemnation power to acquire private property for facilities classically used by the public - like public roads.

So much as suggesting such condemnations can be pretextual is just plain wrong, both in terms of public policy and law.

———

David Callies is an elected member of the American College of Real Estate Lawyers, an elected Fellow of the American Institute of Certified Planners, and the Kudo Professor of Law at the University of Hawaii, where he teaches land use and real property law. The author of “;Public Use and Public Purpose after Kelo v. City of New London,”; he also filed a brief in the Kelo case supporting Kelo, on behalf of 13 law professors.