Ā§101-2Ā  Taking private property for publicuse; disposal of excess property.Ā  Private property may be taken for publicuse.Ā  Private property may also be taken by the State or any county in excessof that needed for such public use in cases where small remnants wouldotherwise be left or where other justifiable cause necessitates such taking toprotect and preserve the contemplated improvement, or public policy demandssuch taking in connection with the improvement, in which case the condemningauthority may sell or lease such excess property, with such restrictions as maybe dictated by considerations of public policy in order to protect and preservesuch improvements; provided that in the disposal of any such excess property,if such property is less than the minimum lot size requirements of theapplicable zoning regulations, is of a configuration or topography which in thejudgment of the appropriate county zoning authority cannot be put to areasonable use in accordance with the applicable zoning regulations, or lacksproper access to a street, it shall be offered to the owner or owners of theabutting land for a reasonable price based on an appraisal; provided furtherthat if such excess property conforms to said minimum lot size requirements, isof a configuration and topography which in the judgment of the appropriatecounty zoning authority can be put to a reasonable use in accordance with theapplicable zoning regulations and has proper access to a street, then the Stateor the county, as the case may be, may sell such property at public auction.Ā If there is more than one abutting owner who is interested in purchasing anysuch excess property which is less than the minimum lot size requirements ofthe applicable zoning regulations, is of a configuration or topography which inthe judgment of the appropriate county zoning authority cannot be put to areasonable use in accordance with applicable zoning regulations, or lacksproper access to a street, it shall be sold by the condemning authority by sealedbid to the abutting owner submitting the highest offer above the appraisedvalue; provided further that if any such excess property abuts more than oneparcel, the condemning authority may make application for subdividing suchproperty so that a portion thereof may be sold to each abutting owner at theappraised value if the public interest is best served by such subdivision anddisposal.Ā  All moneys received from the sale or lease of such excess propertyshall be paid into the fund or appropriation from which money was taken for theoriginal condemnation and shall be available for the purposes of such fund orappropriation. [L 1896, c 45, Ā§1; am L 1909, c 10, Ā§1; RL 1925, Ā§808; am L1925, c 59, Ā§1; RL 1935, Ā§50; am L 1941, c 149, Ā§1; RL 1945, Ā§301; am L 1945, c185, Ā§1; am L 1951, c 12, Ā§1(b); RL 1955, Ā§8-2; HRS Ā§101-2; am L 1975, c 110,Ā§1; am L 1976, c 7, Ā§1]

 

Cross References

 

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

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

Ā  Water for Hawaiian home lands, see HHCA Ā§221.

 

Law Journals and Reviews

 

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

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

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

 

Case Notes

 

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

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

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

Ā  Taxpayer whose interests are not affected may not assailstatute.Ā  39 H. 67.

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

Ā  Question of public use is ultimately judicial, publicnecessity is legislative, subject to judicial review.Ā  43 H. 253.Ā  Legislativedetermination to acquire additional lands for Honolulu civic center was validalthough specific use of lands was not specified.Ā  46 H. 279, 378 P.2d 882.

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

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

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

 

Due process.

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

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

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

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