by Robert Thomas, InverseCondemnation November 5, 2013
The Honolulu City Council has proposed a charter amendment that asks the voters to approve eliminating the Mayor's current veto power over the Council's eminent domain resolutions.
The Resolution doesn't directly say that, of course, but what it does command is that after the Council adopts a resolution to take property, the city administration must within 90 days start the condemnation action. In other words, no mayoral veto. Currently under the Charter, the Mayor may veto resolutions of taking:
Resolutions authorizing proceedings in eminent domain shall not be acted upon on the date of introduction, but shall be laid over for at least one week before adoption. Such resolutions shall be advertised once in a daily newspaper of general circulation and may be advertised, as deemed helpful, in other newspapers at least three days before adoption by the council. Not less than three copies of such resolutions shall be filed for use and examination by the public in the office of the city clerk at least three days prior to the adoption thereof. Upon adoption, every such resolution shall be presented to the mayor, who may approve or disapprove it pursuant to applicable provisions governing the approval or disapproval of bills.
Rev. Charter § 3-202.9 (emphasis added).
Now the possibility of a mayoral veto isn't much of a limitation on the county's powers of eminent domain (broadly delegated to the counties by state law), but at least its something. And the Council now wants to carve out an exception to the usual checks-and-balances.
According to the Resolution, the charter amendment is needed because "the Council has encountered difficulties with eminent domain proceedings because the roles of City agencies for such proceedings are not established." We're not aware of what these "difficulties" entail, and the Resolution doesn't say more, but we have to ask a couple of questions.
First, shouldn't the decision whether to take someone's private property be difficult? Or at least if there are differences of opinion within the City and County about whether to exercise eminent domain, then the decision-making process be subject to the usual checks-and-balances? And if there indeed are internal administrative problems "because the role of City agencies ... are not established," then isn't the solution to establish the procedures, and not eliminate what little protection property owners have?
Second, the Resolution makes it seem like the Council and the Mayor independently make decisions to exercise eminent domain:
WHEREAS, while most condemnation proceedings are initiated by the City Administration, the Council may of its own accord initiate proceedings to acquire private property for the City through eminent domain, subject to the payment of just compensation, regardless of whether the Mayor agrees with such actions.
State law, however, delegates the eminent domain power to "each county" and not to the Council or the Mayor, which means that the county as a whole must exercise the power as it collectively decides, with one of the only real restrictions imposed by state law being that the exercise must be accomplished by resolution. In other words, the "City Administration" doesn't initiate condemnation proceedings (it may propose them to the Council, but all takings decisions ultimately are made by Council). And if indeed there are differences of opinion between the City Administration and the City Council, then "the county" hasn't really made a decision, has it?
What this proposal would do is give the Council unfettered ability to make all condemnation decisions, and do so without any limitation from any other part of City and County government. We don't know the details of what prompted this proposal other than that, but it's a bad idea. Anything that makes the already-easy process of taking private property and impressing it into public service even easier, doesn't sound like a good thing.
The short answer to the question we posed in the title of this post: No.
TEXT: Resolution No. 13-221 (City and County of Honolulu (Sep. 16, 2013)