§101-2  Taking private property for public
use; disposal of excess property.  Private property may be taken for public
use.  Private property may also be taken by the State or any county in excess
of that needed for such public use in cases where small remnants would
otherwise be left or where other justifiable cause necessitates such taking to
protect and preserve the contemplated improvement, or public policy demands
such taking in connection with the improvement, in which case the condemning
authority may sell or lease such excess property, with such restrictions as may
be dictated by considerations of public policy in order to protect and preserve
such improvements; provided that in the disposal of any such excess property,
if such property is less than the minimum lot size requirements of the
applicable zoning regulations, is of a configuration or topography which in the
judgment of the appropriate county zoning authority cannot be put to a
reasonable use in accordance with the applicable zoning regulations, or lacks
proper access to a street, it shall be offered to the owner or owners of the
abutting land for a reasonable price based on an appraisal; provided further
that if such excess property conforms to said minimum lot size requirements, is
of a configuration and topography which in the judgment of the appropriate
county zoning authority can be put to a reasonable use in accordance with the
applicable zoning regulations and has proper access to a street, then the State
or the county, as the case may be, may sell such property at public auction. 
If there is more than one abutting owner who is interested in purchasing any
such excess property which is less than the minimum lot size requirements of
the applicable zoning regulations, is of a configuration or topography which in
the judgment of the appropriate county zoning authority cannot be put to a
reasonable use in accordance with applicable zoning regulations, or lacks
proper access to a street, it shall be sold by the condemning authority by sealed
bid to the abutting owner submitting the highest offer above the appraised
value; provided further that if any such excess property abuts more than one
parcel, the condemning authority may make application for subdividing such
property so that a portion thereof may be sold to each abutting owner at the
appraised value if the public interest is best served by such subdivision and
disposal.  All moneys received from the sale or lease of such excess property
shall be paid into the fund or appropriation from which money was taken for the
original condemnation and shall be available for the purposes of such fund or
appropriation. [L 1896, c 45, §1; am L 1909, c 10, §1; RL 1925, §808; am L
1925, c 59, §1; RL 1935, §50; am L 1941, c 149, §1; RL 1945, §301; am L 1945, c
185, §1; am L 1951, c 12, §1(b); RL 1955, §8-2; HRS §101-2; am L 1975, c 110,
§1; am L 1976, c 7, §1]



 



Cross References



 



  County eminent domain provisions, see §§46-61 and 62, and
county charters.



  Sale of remnants of public lands, see §171-52.



  Water for Hawaiian home lands, see HHCA §221.



 



Law Journals and Reviews



 



  Hawaii's Land Reform Act:  Is It Constitutional?  6 HBJ 31.



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



  Dolan v. City of Tigard:  Individual Property Rights v. Land
Management Systems.  17 UH L. Rev. 193.



 



Case Notes



 



  Proceedings under federal statute by United States to condemn
land in Territory for public use.  1 U.S.D.C. Haw. 140, 179; 1 U.S.D.C. Haw.
222.



  Supersedes the common law.  5 H. 57.  Statutes of this
character are to be strictly followed.  6 H. 638.



  Water, riparian rights.  31 H. 376, aff. 52 F.2d 356.



  Taxpayer whose interests are not affected may not assail
statute.  39 H. 67.



  Public school sites include private lands set aside for such
purpose through an act.  8 H. 60.  Exercise of power of eminent domain by State
for purpose of taking land and then conveying it to the U.S. for a national
park is for a public use.  44 H. 370, 355 P.2d 25.



  Question of public use is ultimately judicial, public
necessity is legislative, subject to judicial review.  43 H. 253.  Legislative
determination to acquire additional lands for Honolulu civic center was valid
although specific use of lands was not specified.  46 H. 279, 378 P.2d 882.



  Voluntary deed given by condemnee, effect of on claim based
on change of public use.  49 H. 365, 373, 418 P.2d 482.



  Ejectment is available remedy notwithstanding defendant has
power of eminent domain to establish the use complained of.  50 H. 189, 436
P.2d 207.



  Sections 46-61 and 46-62 and this section neither limit
counties’ general power of eminent domain as set out in §46-1.5(6), nor divest
counties of authority to enact ordinances allowing for condemnation of land for
any particular public purpose.  76 H. 46, 868 P.2d 1193.



 



Due process.



  Hawaii may not change its laws governing property rights of
riparian landowners to use of water without compensating owners for lost
rights.  441 F. Supp. 559.



  Due process violated by court decree stating property seaward
of vegetation line belonged to the public since the decree resulted in a taking
of private property and no title hearing was held.  460 F. Supp. 473.



  Enactment of 1977 General Plan during pendency of appeal made
it necessary to review condemnation in light of 1977 plan rather than 1964
plan.  62 H. 411, 616 P.2d 213.



  Cited:  20 H. 365, 366; 36 H. 348, 350.