EMINENT DOMAIN

     Section 20.  Private property shall not be taken or damaged for public use without just compensation. [Am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions

  Section 486H-10 prohibiting manufacturers and jobbers of petroleum products from operating a retail service station for retail sale of petroleum products did not violate eminent domain clause of Hawaii constitution.  Att. Gen. Op. 95-4.

Law Journals and Reviews

  The Amended Just Compensation Provision of the Hawaii Constitution:  A New Basis for Indemnification of the Condemnee.  6 HBJ 55.

  Extending Land Reform to Leasehold Condominiums in Hawai`i.  14 UH L. Rev. 681.

  The Constitutionality of a Naked Transfer:  Mandatory Lease-to-Fee Conversion's Failure To Satisfy a Requisite Public Purpose in Hawai`i Condominiums.  25 UH L. Rev. 561.

  The Wash of the Waves:  How the Stroke of a Pen Recharacterized Accreted Lands as Public Property.  34 UH L. Rev. 525 (2012).

  Knick in Perspective:  Restoring Regulatory Takings Remedy in Hawai`i.  42 UH L. Rev. 136 (2019).

  Necessity Exceptions to Takings.  44 UH L. Rev. 60 (2022).

Case Notes

  Even assuming provision is sufficiently clear to waive State's immunity under Eleventh Amendment, provision would confer jurisdiction only upon state courts.  693 F.2d 928.

  Inverse condemnation action discussed.  840 F.2d 678.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests violated public use clause of U.S. and Hawaii Constitutions, ordinance was constitutional; landowners' claim under just compensation clause not ripe for federal adjudication.  124 F.3d 1150.

  Courts are immune from prohibition against taking without compensation.  402 F. Supp. 95.

  Where provision was made for just compensation, city ordinance providing mechanism for transfer of fee interest from condominium lessors to lessees was constitutional.  802 F. Supp. 326.

  Condominium lease-to-fee ordinance did not effect an impermissible taking.  832 F. Supp. 1404.

  Attorney's fees and expenses are not embraced within "just compensation".  53 H. 582, 499 P.2d 663.

  "Damaged" provision discussed.  55 H. 226, 517 P.2d 7.

  Taking under Land Reform Act is for a public use; act's valuation scheme does not deprive landowners of just compensation.  68 H. 55, 704 P.2d 888.

  Just compensation in leasehold condemnation under chapter 516.  72 H. 383, 819 P.2d 82.

  Condemnation of leased fee interests in residential houselots continued to satisfy "public use" prerequisite of Fifth Amendment to U.S. Constitution and this section.  79 H. 64, 898 P.2d 576.

  As Hawaiian custom and usage have always been part of the laws of the State, court's recognition of customary and traditional Hawaiian rights did not constitute judicial taking.  79 H. 425, 903 P.2d 1246.

  As water is a state public trust resource to which no individual, including Waiahole Ditch water use permittees, could claim an exclusive right, permittees being required to fund subsequent stream studies and monitoring activities was not an unconstitutional "regulatory leveraging".  94 H. 97, 9 P.3d 409.

  No unconstitutional taking of petitioner's property without just compensation by water resource management commission's denying petitioner's request to use the ground water underlying its lands and allocating it instead to other leeward parties where the right to absolute ownership of water exclusive of the public trust never accompanied the "bundle of rights" conferred in the Mahele.  94 H. 97, 9 P.3d 409.

  Under the Hawaii constitution, courts may consider the validity of the public purpose asserted by the government in a condemnation action and, under appropriate circumstances, consider whether a purported public purpose is pretextual; thus, under the circumstances of the case, where it appeared that the trial court erred in declining to expressly examine the pretext issue in the condemnation, the trial court's judgment in the condemnation vacated and case remanded.  119 H. 352, 198 P.3d 615.

  Although a contract that delegates a county's eminent domain powers raises well-founded concerns that a private purpose is afoot, a per se rule of pretext would threaten the established rule of deference given to the government's findings and declarations; by allowing a defendant to present evidence of pretext beyond the government's findings and declarations, the fact that a legislative body may not admit that the purpose is for a private benefit does not alleviate the defendant's burden to show pretext or necessitate a per se rule of pretext.  124 H. 281, 242 P.3d 1136 (2010).

  Where record reflected that the developer was not the only entity that stood to benefit from the construction of the bypass road and the fact that the bypass allowed the developer to develop its property did not detract or destroy the public character of the bypass or render the condemnation invalid.  124 H. 281, 242 P.3d 1136 (2010).

  Act 73, L 2003, by declaring accreted land to be "public land" and prohibiting littoral owners from registering existing accretion under chapter 501 and/or quieting title under chapter 669, permanently divested a littoral owner of his or her ownership rights to any existing accretions to oceanfront property that were unregistered or unrecorded as of the effective date of Act 73 or for which no application for registration or petition to quiet title was pending; thus, Act 73 effectuated a permanent taking of such accreted lands without just compensation in violation of this section.  122 H. 34 (App.), 222 P.3d 441 (2009).

  Act 73, L 2003, by declaring accreted land to be "public land" and prohibiting littoral owners from registering future accretion under chapter 501 and/or quieting title under chapter 669, did not effectuate a taking of future accreted lands without just compensation in violation of this section where plaintiffs had no vested right to future accretions to their oceanfront land that may never materialize.  122 H. 34 (App.), 222 P.3d 441 (2009).

  As a community plan amendment is not an administrative act, it cannot reasonably be required as a step in reaching a final agency determination for ripeness purposes; ripeness requires only that landowners take advantage of any available variances or waivers under existing law, it does not require them to undertake changing the law itself; thus, appellants were not required to seek a change in the applicable law, i.e., the community plan, in order to satisfy the ripeness requirements for their takings claim.  128 H. 183 (App.), 284 P.3d 956 (2012).