What The US Supreme Court's Property Rights Decision Means For Hawaii's Property Owners

by Robert Thomas, InverseCondemnation.com, June 27, 2019

We've already set out our general thoughts about the Supreme Court’s decision in Knick v. Township of Scott in a series of posts on the case. But we haven't yet noted what the case might mean on the ground in Hawaii, our home turf. 

In a client alert we did: Hawaii’s property owners now have many more options for fighting back against oppressive government regulation of property than they did last week: 

--You can go straight to federal court to claim that a county ordinance or regulation has violated your Fifth Amendment rights, if the regulation allows the public to enter your land, or severely restricts your uses of your property. You no longer need to go to state court at all. You still may choose to do so—and there may be good reasons why you may want to consider state court—but you cannot be forced to.

--There may be advantages to federal court: life-tenured judges insulated from politics, who are used to protecting federal constitutional rights; a fast docket (Hawaii’s federal court has one of the fastest civil dockets in the nation); the federal courthouse is in Honolulu not on a neighbor island, so lawsuits against neighbor island counties no longer need be brought there with the associated expenses; and federal juries are selected from a statewide pool, unlike Hawaii circuit court juries which are county-by-county.
--Critically, if a property owner is successful in her federal civil rights claim, she is entitled to an award of reasonable attorneys’ fees and costs. Hawaii law does not recognize the same right. 

--Appellate review of the Hawaii federal district court is by the U.S. Court of Appeals for the Ninth Circuit comprised of judges from across the western states. Property owners who bring their federal takings claims in federal court can avoid appellate review by the Hawaii Supreme Court, a forum which is not reputed to be terribly property-rights friendly.

--This does not mean that if a local government affirmatively condemns your property by eminent domain that you can sue to stop it in federal court. Knick is, for now, reserved for claims alleging takings where a regulation so burdens a private owner’s reasonable uses, that the local government should pay compensation.

PDF: Changes Ahead for Property Owners: After More Than 30 Years, Supreme Court Reopens Federal Courthouse Door...