▪ 2006 Land Use in Review: Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform

The big story nationwide in property rights and eminent domain was, of course, the overwhelming negative reaction to 2005’s Kelo v. City of New London decision, which overflowed into 2006.  That reaction has manifested itself in three ways:

• Taking up the Supreme Court’s suggestion that state law was the means to protect property from eminent domain abuse, state legislatures and local governments around the country began restricting how the condemnation power has been exercised.

• State courts have also taken up the challenge, the biggest development in 2006 being the City of Norwood v. Horney decision from the Ohio Supreme court.  That case held that economic benefit standing alone will not support a claim of public use under the Ohio Constitution.  The court also held that a blight designation was too vague to have any legal force, and violated the Ohio Constitution.  Now, if only Mrs. Kelo and other property owners subject to overaggressive use of eminent domain could move their properties to Ohio or Michigan. 

• In the November 2006 election, several states passed eminent domain reform by constitutional amendment or initiative.  New Jersey Eminent Domain blog posted a summary of the election results.  These results tell me that property rights in general, and eminent domain reform specifically, are topics that have some traction and may cut across political lines. 

None of these approaches has yet been adopted by the Hawaii Legislature, the Hawaii courts, or Hawaii voters. 

How come?  The legislature had before it at least four proposals to reform eminent domain, and not one made it out of committee.  Hawaii appellate courts have not yet been confronted squarely with the issue, which did not arise in the one major eminent domain decision issued by the Hawaii Supreme Court in 2006.  Finally, initiative is not available in Hawaii on matters of state law, or locally on matters of statewide concern, so there is no possibility of Hawaii voters having a chance to directly enact eminent domain measures if the legislature refuses to do so.