You can read the court’s Findings of Fact, Conclusions of Law, and Order here.
I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.
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Circuit
“Sustainability,” “smart growth” and “transit-oriented development” are the catchwords du jour these days in Honolulu, as we anticipate the $4B+ fixed guideway mass transit project. But from the San Francisco Chronicle comes this “cautionary tale” of a Bay Area Rapid Transit (BART) transit village gone. . .not quite right:
The basic moves are great: Three
ThinkTech Hawaii, Jay Fidell’s Hawaii Public Radio program on FM89.3 KIPO, has posted both the show (20mb mp3) and the aftershow podcast (13mb mp3) of yesterday’s “Honolulu’s Fixed Guideways – How Will The Surrounding Areas be Developed.” I was a guest along with UH Law Professor David Callies, and Honolulu attorney and developer
A heads up: from 5 – 6 pm on Wednesday, May 23, I will be a guest on Jay Fidell’s ThinkTech Hawaii program on Hawaii Public Radio, KIPO.
The topic? “Oahu’s Light Rail – How Will the Surrounding Areas be Developed.” KIPO can be tuned in at FM89.3, or streaming audio is available here.
As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order. Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.
If you think I missed any key cases or events, please email me.
On Christmas Eve 2006, the Honolulu City Council approved a $4B+ “fixed guideway” mass transit system to run from somewhere in West Oahu to somewhere in town. The nature of the system has not been selected (rail, busway, something else), nor has the route. But in January 2007, a half-percent increase in the general excise tax became effective, the proceeds from which are earmarked for the transit system. City officials say it’s a “go.”
I’ve made a few comments about the impact of a mass transit project on property owners (here, here, here, and here), but it is too early in the process to note any concrete legal developments. I’ve included the fixed guideway story in 2006’s land use highlights, however, since I suspect the legal issues will loom larger and larger as the project — the largest public works project in Hawaii’s history — moves forward.
Continue Reading ▪ 2006 Land Use in Review: “Fixed Guideway” System Approved
Is it just me, or is Honolulu’s proposed rail system — whoops, sorry, “fixed guideway” — beginning to look like the camel in the timeworn cliche? The city council has approved a transit system, while leaving decisions about the actual location of the route, and whether the system will be rail or something else
As reported here, and blogged about here, Susette Kelo, the lead petitioner in 2005’s infamous Kelo case, has sent a holiday greeting card to her tormentors that is anything but friendly:
The text, accompanying a sparkling, snowy image of Kelo’s iconic pink house in the Fort Trumbull neighborhood, reads, in its entirety:
Here
While much of the public’s attention on the Honolulu City Council’s upcoming vote on the proposed mass transit system focuses on the choice between rail or bus, and the location of the route, another issue — eminent domain — is beginning to surface.
In a story posted here (video included), Honolulu’s mayor acknowledges the impact of the use of eminent domain on property owners in the path of the rail lines, but suggests they “wait and see” before they react:
As the route nears town, more properties will see partial easements along road frontages, in addition to some full buyouts.
“As we come into town, it’s going to be a little tricky,” said Mayor Mufi Hannemann. “We’re going to run into those problems, and rightfully so. We’re going to run into landowners who say, ‘That’s my land. I don’t want it for rail. I’ll take you to court.’ ”
Robert Thomas, a Honolulu eminent domain attorney, says he’s already heard from property owners worried they may be in the way and vowing to fight if so. Governments have power to force sales when owners resist.
“The city has an obligation to the taxpayer to not overpay, so it will generally come in with the lowest possible figure that reason can bear,” Thomas said.
State law provides for a jury trial to settle price disputes.
“I would say to people who may be concerned, we appreciate your concern, but why don’t you just wait to see what actually comes out,” Hannemann said of the pending transit route.
The Mayor correctly points out that very few owners whose property is targeted by condemnation will be happy. When asked to sacrifice their family home or a lifetime of work establishing a business, a property owner cannot be faulted for objecting. On that point, the Mayor is 100% correct.
However, I wish I could agree with the Mayor’s suggestion that potentially affected property owners “wait and see” whether the City is coming after their land, home, or business, and if the City’s initial take-it-or-leave-it offers will adequately compensate those who are forced to give up their property. History and experience tell us that property owners who do not passively wait for the eminent domain summons to arrive, and who actively question the government’s valuation of their property, are more likely to obtain compensation for their property that they consider just.
It’s appearing more and more that Honolulu’s massive $4B+ rail project is on the fast track, and the City wants to control all development anywhere near the proposed project. In additon to the technical amendment to eminent domain law noted here allowing the City to to enter into longer term leases for land it grabs by condemnation, the City Council, as reported here, here (video), and here, is contemplating enacting a moratorium on all development within 1/4 mile of the rail route, and 1/2 mile of a transit station.
Supposedly designed to thwart land speculators anticipating the rail project, the proposal as drafted would put a halt to all development or improvement of any kind, large or small, within the noted zones.
In addition to the usual legal problems that accompany development bans (inverse condemnation), it is not clear why the City believes a moratorium in necessary unless it plans on taking huge swaths of private property by eminent domain (which it might if it follows the usual course for mass transit projects) in excess of what is needed for the rail footprint, and leasing or selling off the overage. If that is the case, the proposal may makes sense from the City’s perspective, since it may be seeking to capture any market gain that results from the project. But what does this mean for private property owners who now may find themselves in the path of the rail line? Someone down at the City better go read Klopping v. City of Whittier, a decision which prohibits the government from attempting to depress the market value of property in anticipation of condemnation.
Continue Reading ▪ Contemplating a Rail Development Moratorium