Tag Archives: eminent domain

Supreme Court Justice Sandra Day O’Connor

Supreme Court Justice Sandra Day O’Connor was a Reagan nomination.

Here is the landmark case about private property rights. Sandra Day O’Connor was right all along.

On June 23, 2005, the Supreme Court ruled in a 5–4 decision in favor of the City of New London. Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Dissenting: Sandra Day O’Connor, Anthony Scalia, William Rehnquist, and Clarence Thomas

Up to today, the Sandra Day O’Connor was right. Corporate Pfizer did not even build after pushing the entire neighborhood out with the weight of its powerful allies and cronies.

Kelo v. City of New London, 545 U.S. 469 (2005)

Docket No.04-108

Granted:September 28, 2004

Argued:February 22, 2005

Decided:June 23, 2005

Annotation

PRIMARY HOLDING

Economic benefits are a permissible form of public use that justifies the government in seizing property from private citizens.

FACTS

Susette Kelo and other private property owners in the city of New London, Connecticut sued the city for an alleged abuse of its eminent domain power. The city government had condemned privately owned real estate within its boundaries and transferred it to the New London Development Corporation, a private entity, for a comprehensive redevelopment plan.

The plaintiffs grounded their claim on an argument that the city’s stated purpose of economic development was not a public use, as required to exercise the eminent domain power under the Fifth Amendment. However, a state law provided that economic development was a public use.OPINIONS

Majority

  • John Paul Stevens (Author)
  • Anthony M. Kennedy
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Stevens continued the Court’s ongoing trend of finding that a public purpose constituted a public use, and he did not find any requirement that the city rather than a private entity pursue that public purpose. Even though the urban area was not blighted, and no social harm was threatened, the city was justified in trying to improve its tax base by attracting wealthier property owners.

Concurrence

  • Anthony M. Kennedy (Author)

It is important to note that this concurrence is not binding, since Kennedy joined the majority opinion. However, he felt it appropriate to provide clearer guidance on how to review challenges to the eminent domain power under the Fifth Amendment. Rational basis is the proper level of scrutiny to apply here, which requires a rational relationship to a legitimate government purpose. Kennedy suggested that it should be interpreted in a highly fact-specific manner and that defining the government purpose should be left to a trier of fact. Among factors for courts to consider, according to this view, are whether the private developer would benefit more than the city, whether the city had committed public funds before identifying the private beneficiaries, whether the government had engaged in a good-faith review of development alternatives, whether the government could supply evidence regarding the depressed economic conditions, and whether the government was unaware of private beneficiaries beyond the developer at the time that it decided on the plan.

Dissent

  • Sandra Day O’Connor (Author)
  • William Hubbs Rehnquist
  • Antonin Scalia

Taking a pragmatic view of the decision’s impact, O’Connor argued that it would encourage cities to take away property from impoverished residents and distribute it among wealthy developers and prospective residents. This is because they have greater influence over the political process and can subvert it to create inequalities.

Dissent

  • Clarence Thomas (Author)

Thomas was not persuaded by the majority’s identification of a public purpose with a public use, which he found was not supported by the Fifth Amendment from a textualist perspective.CASE COMMENTARY

This decision was widely controversial and unpopular among the public, but it was not as startling as people may have believed. The Court’s conflation of public use with public purpose had appeared in earlier decisions on eminent domain as well. Many observers found this outcome more unpalatable, however, since the city was essentially using its power to remove lower middle class property owners and seek wealthier residents, rather than trying to remedy social ills as in the older cases.

As it turned out, the corporation never managed to get the funding for the redevelopment plan and left the property abandoned as an empty lot. None of the jobs or the other economic benefits materialized as Pfizer, the principal beneficiary of the project, changed its plans.


O’CONNOR, J., DISSENTING
KELO V. NEW LONDON
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 04-108

SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al.
on writ of certiorari to the supreme court of connecticut
[June 23, 2005]
Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.
Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.
I
Petitioners are nine resident or investment owners of 15 homes in the Fort Trumbull neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit. Two petitioners keep rental properties in the neighborhood.
In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to “complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually ‘build momentum’ for the revitalization of the rest of the city.” App. to Pet. for Cert. 5.
Petitioners own properties in two of the plan’s seven parcels—Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is slated for the construction of research and office space as a market develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural organization) though the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated, mysteriously, for “ ‘park support.’ ” Id., at 345–346. At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking. Tr. of Oral Arg. 36.
To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning their properties for the sake of an economic development plan. Petitioners are not hold-outs; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC’s proposed use for their confiscated property is not a “public” one for purposes of the Fifth Amendment. While the government may take their homes to build a road or a railroad or to eliminate a property use that harms the public, say petitioners, it cannot take their property for the private use of other owners simply because the new owners may make more productive use of the property.
II
The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, “that no word was unnecessarily used, or needlessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash., 538 U. S. 216, 231–232 (2003).
These two limitations serve to protect “the security of Property,” which Alexander Hamilton described to the Philadelphia Convention as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain power—particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority’s will.
While the Takings Clause presupposes that government can take private property without the owner’s consent, the just compensation requirement spreads the cost of condemnations and thus “prevents the public from loading upon one individual more than his just share of the burdens of government.” Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893); see also Armstrong v. United States, 364 U. S. 40, 49 (1960). The public use requirement, in turn, imposes a more basic limitation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public’s use, but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 336 (2002) (“The concepts of ‘fairness and justice’ … underlie the Takings Clause”).
Where is the line between “public” and “private” property use? We give considerable deference to legislatures’ determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U. S. 439, 446 (1930) (“It is well established that … the question [of] what is a public use is a judicial one”).
Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership—such as for a road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles, 262 U. S. 700 (1923). Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use—such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30 (1916). But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See, e.g., Berman v. Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984).
This case returns us for the first time in over 20 years to the hard question of when a purportedly “public purpose” taking meets the public use requirement. It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not. We are guided by two precedents about the taking of real property by eminent domain. In Berman, we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U. S., at 30. It had become burdened with “overcrowding of dwellings,” “lack of adequate streets and alleys,” and “lack of light and air.” Id., at 34. Congress had determined that the neighborhood had become “injurious to the public health, safety, morals, and welfare” and that it was necessary to “eliminat[e] all such injurious conditions by employing all means necessary and appropriate for the purpose,” including eminent domain. Id., at 28. Mr. Berman’s department store was not itself blighted. Having approved of Congress’ decision to eliminate the harm to the public emanating from the blighted neighborhood, however, we did not second-guess its decision to treat the neighborhood as a whole rather than lot-by-lot. Id., at 34–35; see also Midkiff, 467 U. S., at 244 (“it is only the taking’s purpose, and not its mechanics, that must pass scrutiny”).
In Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, the State and Federal Governments owned nearly 49% of the State’s land, and another 47% was in the hands of only 72 private landowners. Concentration of land ownership was so dramatic that on the State’s most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id., at 232. The Hawaii Legislature had concluded that the oligopoly in land ownership was “skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare,” and therefore enacted a condemnation scheme for redistributing title. Ibid.
In those decisions, we emphasized the importance of deferring to legislative judgments about public purpose. Because courts are ill-equipped to evaluate the efficacy of proposed legislative initiatives, we rejected as unworkable the idea of courts’ “ ‘deciding on what is and is not a governmental function and … invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.’ ” Id., at 240–241 (quoting United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946)); see Berman, supra, at 32 (“[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation”); see also Lingle v. Chevron U. S. A., Inc., 544 U. S. __ (2005). Likewise, we recognized our inability to evaluate whether, in a given case, eminent domain is a necessary means by which to pursue the legislature’s ends. Midkiff, supra, at 242; Berman, supra, at 103.
Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: “A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.” Midkiff, 467 U. S., at 245; id., at 241 (“[T]he Court’s cases have repeatedly stated that ‘one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid’ ” (quoting Thompson v. Consolidated Gas Util. Corp., 300 U. S. 55, 80 (1937))); see also Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (1896). To protect that principle, those decisions reserved “a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use … [though] the Court in Berman made clear that it is ‘an extremely narrow’ one.” Midkiff, supra, at 240 (quoting Berman, supra, at 32).
The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society—in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28–29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.
In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.
There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: “We deal, in other words, with what traditionally has been known as the police power.” 348 U. S., at 32. From there it declared that “[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id., at 33. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers.” 467 U. S., at 240. This language was unnecessary to the specific holdings of those decisions. Berman and Midkiff simply did not put such language to the constitutional test, because the takings in those cases were within the police power but also for “public use” for the reasons I have described. The case before us now demonstrates why, when deciding if a taking’s purpose is constitutional, the police power and “public use” cannot always be equated. The Court protests that it does not sanction the bare transfer from A to B for B’s benefit. It suggests two limitations on what can be taken after today’s decision. First, it maintains a role for courts in ferreting out takings whose sole purpose is to bestow a benefit on the private transferee—without detailing how courts are to conduct that complicated inquiry. Ante, at 7. For his part, Justice Kennedy suggests that courts may divine illicit purpose by a careful review of the record and the process by which a legislature arrived at the decision to take—without specifying what courts should look for in a case with different facts, how they will know if they have found it, and what to do if they do not. Ante, at 2–3 (concurring opinion). Whatever the details of Justice Kennedy’s as-yet-undisclosed test, it is difficult to envision anyone but the “stupid staff[er]” failing it. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1025–1026, n. 12 (1992). The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing. In this case, for example, any boon for Pfizer or the plan’s developer is difficult to disaggregate from the promised public gains in taxes and jobs. See App. to Pet. for Cert. 275–277.
Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the “public purpose” in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective—private property is forcibly relinquished to new private ownership.
A second proposed limitation is implicit in the Court’s opinion. The logic of today’s decision is that eminent domain may only be used to upgrade—not downgrade—property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. See Lingle, 544 U. S. __. The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Cf. Bugryn v. Bristol, 63 Conn. App. 98, 774 A. 2d 1042 (2001) (taking the homes and farm of four owners in their 70’s and 80’s and giving it to an “industrial park”); 99 Cents Only Stores v. Lancaster Redevelopment Authority, 237 F. Supp. 2d 1123 (CD Cal. 2001) (attempted taking of 99 Cents store to replace with a Costco); Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 304 N. W. 2d 455 (1981) (taking a working-class, immigrant community in Detroit and giving it to a General Motors assembly plant), overruled by County of Wayne v. Hathcock, 471 Mich. 415, 684 N. W. 2d 765 (2004); Brief for the Becket Fund for Religious Liberty as Amicus Curiae 4–11 (describing takings of religious institutions’ properties); Institute for Justice, D. Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain (2003) (collecting accounts of economic development takings).
The Court also puts special emphasis on facts peculiar to this case: The NLDC’s plan is the product of a relatively careful deliberative process; it proposes to use eminent domain for a multipart, integrated plan rather than for isolated property transfer; it promises an array of incidental benefits (even aesthetic ones), not just increased tax revenue; it comes on the heels of a legislative determination that New London is a depressed municipality. See, e.g., ante, at 16 (“[A] one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case”). Justice Kennedy, too, takes great comfort in these facts. Ante, at 4 (concurring opinion). But none has legal significance to blunt the force of today’s holding. If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court’s rule or in Justice Kennedy’s gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one.
Finally, in a coda, the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. Ante, at 19. This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them.
***
It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644–645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.” Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).
I would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse the judgment of the Supreme Court of Connecticut, and remand for further proceedings.

Who’s behind these non-judicial Power of Sale bills?

UPDATE: SB 875 & HB 15 are speeding on. ( HB 538 is quite similar.)

Keep in mind the counties already have “Judicial Foreclosure” and “Eminent Domain” powers in place. But the justification is that these processes take too long.

In other words, these bills will allow the counties to be the Police, Prosecutor, Jury, Judge, and Executioner. The Judicial Due Process will be cut off.

We’re asked who started these non-judicial foreclosure bills to forced sale of a private property, based on the Honolulu Department of Planning and Permitting (DPP) fines, without going to court.

Here are some quick answers:

It originated in 2022 as HB 1434 with Honolulu Mayor Rick Blangiardi. Keep it mind that this Power of Sale requests applied to ALL Counties in Hawaii. Based on my observations of him, it’s unlikely that this non-judicial Power of Sale idea originated from Blangiardi unless he’s hoping for a new stream of revenues from fines and sale of properties.

If I have to take a guess, it would be his Managing Director Mike Formby, formerly with the Pacific Resource Partnership (PRP) or former Department of Planning and Permitting (DPP) Director Dean Uchida.

Five (5) City Council members, known as the Gang of 5, also submitted testimony – Chair Tommy Waters, Esther Kia’iana, Brandon Elefante, Calvin Say, and Radiant Cordera.

What were the underlying motives?

Fortunately, Bill 1434 failed to pass last year.

I was in the same Mayoral campaign with Rick Blangiardi in 2020. Based on my observations and
his words, he had very shallow understanding about Honolulu City Hall workings.

This year 2023, Mayor Blangiardi is back with HB 106 and SB 216 by request to Senate President Ron Kouchi and House Speaker Scott Saiki.

However, presto! The tactics have changed a bit this year. There are five (5) clone bills with the same agenda speeding through.

Google Searches show no county mayors, state legislators or city council members appear to have warned Hawaii about this draconian assault on private properties.

Here are the rest of the three (3) bills.

SB875 is introduced by Senators Stanley Chang, Donovan Dela Cruz and Sharon Moriwaki. This bill is alive and has crossed over on March 7, 2023.

This time around, written testimonies come from only Honolulu City Council former Budget Chair Calvin Say and DPP Director Dawn Takeuchi Apuna.

Companion Bill HB498 is introduced by Representative Jackson Sayama.

HB 15 is introduced by Representative David Tarnas (D) It has no senate companion bill but it has crossed over on March 7, 2023.

HB538 is another similar one that includes judicial or non-judicial foreclosure. It is introduced by MATAYOSHI, BELATTI, HASHIMOTO, HOLT, KILA, KITAGAWA, LAMOSAO, MARTEN, NISHIMOTO, TAKENOUCHI, TARNAS, Chun.

The time line provided in this bill is too unrealistic. It assumes that DPP is 100% efficient. In actual fact, it takes a very long time to get a permit. Some permits take a much longer time because it may need a shoreline certified shoreline. This could easily take six months to complete.

Bill 106 threatens private property owners

This is a reprint from the Star Advertiser published February 15, 2023. The limit for Star Advertiser was 600 words. For educational purposes, we’re adding more info through links and photos.

EDITORIAL | ISLAND VOICES

Column: Bill threatens private property owners

  • By Choon James and Natalie Iwasa
  • Today 
  • Updated 7:19 pm

As part of the 2022 county package to state legislators, Honolulu Mayor Rick Blangiardi requested “nonjudicial foreclosure” powers, i.e., the power to seize private property without going to court. Fortunately, House Bill 1434 did not pass last year.

This year’s package includes another request for “nonjudicial foreclosure,” aka “power of sale.” 2023 HB 106 BELOW represents an alarming threat to property owners and is prevalent in totalitarian regimes.

This year’s HB 106 offers weak assurance that “a county may, after all notices, orders, and appeal proceedings are exhausted, satisfy all unpaid civil fines through the power of sale on the real property subject to a recorded lien.”

Unfortunately, our years of civic participation at Honolulu Hale show that due process has not always been fair and equitable to ordinary residents.

Furthermore, recent federal indictments and guilty pleas continue to show the troubled Honolulu Department of Planning and Permitting (DPP) has no consistent record of fair play or efficient management. Written testimonies reveal alarming threats toward private property rights.

Dawn Takeuchi Apana, DPP director designate, stated: “Specifically, this bill would authorize the city to bring closure to pending civil fines imposed on landowners who are in violation of the city’s land use ordinances and building codes, through a nonjudicial or administrative process.”

Honolulu City Councilman Calvin Say also submitted testimony for a quicker seizure: “Our city corporation counsel is currently able to initiate a Judicial Foreclosure process, which has been successful in similar instances, however this is a long process that takes valuable resources away from other pressing legal matters.”

In other words, give us the authorization to hurry it up by bypassing the regular court method of foreclosure.

The House Committee on Judiciary & Hawaiian Affairs, whose members include Chairman David Tarnas and Vice Chair Gregg Takayama, approved HB 106 on Jan. 31. Its report states in part:

“Your committee finds that authorizing the counties to collect on liens filed on properties through a nonjudicial foreclosure process provides some leverage over property owners to comply or lose their property. If a property owner fails to comply and the property is foreclosed upon, this measure would enable the property to be put to productive use, allow liens attached to the property to be satisfied, and stop the accrual of additional debt or taxes on the property.”

Chairman David Tarnas and Vice Chair Gregg Takayama, approved HB 106 on Jan. 31. 2023

Hawaii’s state legislators should recognize that most ordinary residents sacrifice and work their tails off to achieve real property ownership. Each county’s goal should be to help property owners comply with the law and correct their violations, not summarily seize their properties.

HB 106 invites corruption and exposes residents, especially those who have fewer financial resources available to them, as easy casualties of this potential power of sale. All Hawaii counties would be affected.

It should be noted the U.S. Supreme Court ruled unanimously on Feb. 20, 2019 (Timbs vs Indiana), that the Constitution’s ban on excessive fines — civil asset forfeitures are a type of fine — applies to state and local governments, thus limiting their ability to use fines to raise revenue.

The late Justice Ruth Bader Ginsburg also astutely argued fines could be used to retaliate against political enemies and had been used as a source to raise revenue.

RBG was a tireless and resolute champion of justice.

Hawaii has a few egregious property owners, but this tyrannical bill is not the solution. We urge our legislators to vote “no” on HB 106.

###


AUTHORS: Natalie Iwasa is a CPA and certified fraud examiner; Choon James is a residential Realtor and farmer. They have spent combined decades of civic participation at Honolulu Hale as community advocates for good governance.

REJECT HB 106: Authorizes a county to proceed with a power of sale on real property subject to city fines.

The City and County of Honolulu is asking to have POWER of SALE on Oahu’s property owners based on DPP liens. Bill 106 will affect ALL Counties.

JHA 1/31/23 2:00 PM Tuesday
325 VIA VIDEOCONFERENCE

BILL 106 and companion SB 216 may sound harmless in an ideal world with perfect fairness and equity and justice for all.

But in real life, these bills are too over-reaching and will further marginalize Private Property Rights. 

Bill 106 slams Due Process for ordinary citizens. There are systemic failures of discrimination, inequity, and entrenched bureaucracy at Honolulu Hale. This Power of Sale will expose every property owner to the possible whim of politicians, government officials and its powerful political machine. 

Although there is supposedly a fair “process” in place, our decades of participating at Honolulu Hale and the records have shown otherwise. Repeatedly we have witnessed that this same “process” has been unfair and inequitable to ordinary citizens. No matter how thin the cheese is sliced, there are always two sides to it. But the government almost always wins because it has the upper-hand, resources and a legal corporate team to ignore or fight ordinary citizens.

Most ordinary citizens are not born with a silver spoon in their mouth. They work their tails off to achieve real property ownership. The County’s role ought to be helping property owners correct their violations and be in compliance; not be too eager to seize private properties through fines. 

Unfortunately, the Honolulu Department of Planning and Permitting (DPP) does not have a consistent and good record. This is no way to live in a Democracy where Big Brother and its long arm of government continues to become more powerful and subvert Due Process due its citizen.

This POWER of SALE is NOT about a mortgage company foreclosing based on non-payments of a borrower. This is about the government seizing properties, based on DPP fines.

There is an alleged reason or justification that this Power of Sale is needed to enforce “monster homes” or “illegal vacation rentals”.

The isolated problems with monster homes and illegal vacation rentals are not compelling enough to provide counties with this unfettered powers. DPP needs to examine why monster homes are approved for permits in the first place. There was a time when a property owner could only build up to 50% of its land area. Incrementally, the city has approved regulations and ordinances that allow increased density in its land-use legislation.

As a matter of public policy making and with a bigger picture, providing all counties with this Power of Sale for the above alleged reason is akin to tearing down a Cathedral to fry an egg.

Ordinary citizens cannot afford expensive legal representation to make sure their side of the story is heard and fairly considered in the legislative decision-making.

Affluent and well-connected citizens have the means to circumvent DPP. Ordinary citizens will become the casualties of this powerful and overreaching legislation.

This Power of Sale (aka Non-judicial Foreclosure) is overreaching and tyrannical. This Power of Sale authority makes every property owner a sitting duck at the whim of the city.

Basing a POWER of SALE ( aka NON-Judicial Foreclosure) through DPP fines and recorded liens is the worst possible exposure for more corruption and possible political retaliation.  

The City and County of Honolulu requested this same power aka “non-judicial foreclosure” in 2022. 

Please read the 2022 written testimonies that provide a very brief summary of this issue. This far-reaching governmental power will affect all Counties but it was one of the best-kept secrets in 2022. It is the same in 2023.

Please protect Due Process and protect private property rights. As if Eminent Domain is insufficient for the government, the Honolulu County is again asking for a quick Power of Sale aka non-judicial foreclosure.

This governmental power is too much to bear in a democratic society. Private Property Rights must be revered as one of Democracy’s foundational pillars. The counties have other options.

Resolution 22-11: City Council Woman Heidi Tsuneyoshi Complains About Free Speech

Honolulu Council Woman Tsuneyoshi complained about her constituents exercising their Free Speech at the Honolulu City Council Hearing on February 23, 2022.

About a hundred community members and high school students were protesting on February 19, 2022 in Hau’ula. They were against her flawed and quick Resolution 22-11 to seize private property through the Department of Planning and Permitting’s fines.

Based on her record and behavior on this issue, this city council woman IS bullying her constituent, an immigrant owner from Tonga.

This is not to say that neighbors cannot complain about their concerns and be heard. This is about treating all constituents the same with the same Due Process.

However, it was ok for Tsuneyoshi to malign her own constituent in the Honolulu Star Advertiser, with a readership of about 162,287 on Oahu, that the owner has been in violations with DPP for 5 years. The public record shows Owner Taufa has been the owner for 2.5 years!

Tsuneyoshi forgets she’s paid by taxpayers in her position with good benefits at the Honolulu City Council. Residents have the right to question and protest her actions. Basic First Amendment is a constitutional right – – The Public has the right to assemble and to exercise their Free Speech.

Democracy thrives when residents are not afraid to protest and question politicians on any issue.

Her public complaints against the residents’ protests reveal narcissism in this politician. Most property owners are not born with a silver spoon in their mouth. They work, sacrifice, and toil very hard to be a property owner. Seizing a private property, without proper vetting and due process, through eminent domain or judicial foreclosure in this case is very hostile and severe.

Tsuneyoshi herself is championing this very harsh seizure of a family property but she’s complaining about signs against her as a public official? This is a major disconnect in her logic.

What are the behaviors of a narcissist?

Narcissistic personality disorder involves a pattern of self-centered, arrogant thinking and behavior, a lack of empathy and consideration for other people, and an excessive need for admiration. Others often describe people with NPD as manipulative, selfish, patronizing, and demanding.

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NOTE: Because this is such a severe assault on private property rights, I will be following this issue. I will post different segments on this site, for easier reading.

Resolution 22-11 to Seize Private Property Through Eminent Domain – The Imbalance

I’m going to be following this Resolution 22-11 introduced by District 2 City Councilmember Heidi Tsuneyoshi and sharing my misgivings about this flawed process.

The February 23, 2022 Hearing was the second time Mr. Hopoate Taufa had participated at the Honolulu City Council proceedings. Watching the proceedings was quite chilling – an unsophisticated immigrant versus a smooth-talking politician who had no qualms engaging in disinformation.

The public testimony was conducted at the beginning of the council hearing. Local resident Ben Martin of Ko’olauloa of fifty years also opposed the Resolution. He has known Owner Taufa for thirty years. Perhaps his was sharpest rebuke against Tsuneyoshi’s actions:

Judicial Foreclosure is drastic. It should be the last resort. And it should not be a way to resolve a problem. Miss Heidi Tsuneyoshi is the protagonist representing the complainants. I’m an attorney by profession. And she’s representing the complainants assuming like they are the victims. But also Pate is a victim of the DPP for the long delays of approving and helping him comply. “

Should the council member be objective and fair to all parties involved? She’s holding a public office and supported by all taxpayers of Oahu.

Martin highlighted the strikes against Owner Taufa. Although Tsuneyoshi should represent ALL of her constituents in solving a community problem, her actions showed her intentions to punish him with the biggest stick the city had – eminent domain.

This is not to say that neighbors cannot complain. Neighbors have the right to complain and address their concerns. Owner Taufa needs to fix his violations and be a good neighbor.

But a city council Resolution to seize private property through eminent domain is a drastic measure that requires careful study of over-arching issues and correct data. Based on my observations, there had been insufficient vetting done prior to this action being adopted.

To make this situation worse, Tsuneyoshi just announced that she was running for Republican nomination for Governor. Her platform – “servant leader,” “her love for the people of Hawaii,” “transparency and accountability in government,” contradicts her actions with her Resolution 22-11.

Tsuneyoshi did not think it was important to do an outreach to this immigrant family. Something as drastic as seizing private property requires a basic courtesy outreach to her constituents.

Tsuneyoshi did not even inform Owner Taufa of the Executive Matters and Legal Affairs (EMLA) Committee Meeting on February 8, 2022. It was the EMLA Chair Tupola from another District who offered that courtesy to Owner Taufa.

The video of the EMLA meeting showed Tsuneyoshi asking for a recess when Tupola announced that Owner Taufa would be coming online to explain himself.

Tsuneyoshi called for a quick recess upon hearing that. Why? Insiders said Tsuneyoshi was upset with the EMLA Chair that she was not told this ( getting Taufa online) was going to happen.

So, was Tsuneyoshi’s strategy to push through this Resolution 22-11 for Eminent Domain under the radar? Note there was no testimony at the EMLA Committee on February 8, 2022.

RESOLUTION 22-11 Adopted on February 23, 2022. Search Warrant on Property February 24

District 2 Honolulu City Council member Heidi Tsuneyoshi’s Resolution 22-11 for Eminent Domain to acquire a private property through the Department and Planning (DPP) Fines was introduced at the Executive Matters and Legal Affairs on February 8, 2022. The Eminent Domain Resolution 20-11 was quickly amended to “Judicial Foreclosure” within half an hour in that EMLA Committee.

The full Honolulu City Council adopted amended the Resolution 22-11 at its Regular Meeting on February 23, 2022. ( Public Testimonies are in the front. Resolution discussion begins around 2:45.)

This Resolution ignited grassroots support for the embattled property owner. Additional efforts came from grassroots who do not follow the city council proceedings. Some do not even have email accounts or access to ZOOM or the likes.

Photo Permission granted by property owner.

On the other hand, we see a full-scale governmental convergence on this small immigrant owner by his District City Council woman Heidi Tsuneyoshi’s quick adoption of this Resolution 22-11.

BE IT FINALLY RESOLVED that copies of this resolution be transmitted to the
Mayor, the Managing Director, the Director of Land Management, the Director of
Planning and Permitting, the Corporation Counsel, the Prosecuting Attorney, the State
of Hawaii Attorney General, and the State of Hawaii Director of the Department of
Commerce and Consumer Affairs.

The morning after the adoption of the Judicial Foreclosure Resolution 22-11, a SEARCH WARRANT was executed at the subject property. The SEARCH WARRANT sets this property up a new level of criminalizing the violations through the Hawaii Revised Statutes. This shows the force and the long arm of the government.

Rumors were circulating in the communities of the authorities “searching” for bodies, skeletons, drugs, and other illegal activities.

I asked the property owner Taufa after the Search Warrant was completed. He said that the authorities brought a backhoe to dig some parts of the property. They also searched the containers. He thought that perhaps he was being connected to a recent event where an alleged suspect was found in his property.

The Property Owner said that his worker found a man hiding in his farm one morning. The intruder in his farm was hurt and had blood on him. Taufa said they called 911 to come help this intruder.

I believe the property owner’s act of charity towards this intruder in his open farm by calling for an ambulance may just protect the owner from being accused of being a possible accessory to a crime.

This intruder was recognized by HPD who later arrested him as the alleged criminal who was involved in a fire in Pearl Ridge, that later revealed a body.

The Star Advertiser account helps complete the pieces of this puzzle:

Police located the white SUV Tuesday morning ditched along Kamehameha Highway in Punaluu. The vehicle was registered to Cox.

That afternoon, police located Deangelo in Laie with burns to his hand and cuts to his arms. Officers also recovered a loaded pistol from Deangelo’s waist and 21 bullets from his pants pocket.

Emergency Medical Services personnel treated him and took Deangelo to a hospital for further treatment.

(Note: Media reported the alleged criminal was found in Laie. The subject farm property is located in Hau’ula.)

Resolution 22-11: STRONGLY OPPOSE -Selective Targeting With Hostile Taking of Private Property

There is no question that the subject property owner Taufa needs to correct his violations. But these violations take time to cure.

A city council member should especially make the efforts to reach out to those in trouble and try to help them. Immigrant families especially need more education and understanding in addressing Hawaii’s land use issues.

I’ve known many immigrants here for over forty years. Some may be here for a while but still need understanding due to inherent cultural perceptions or lack of knowledge or carelessness. For example: I continue to help educate our Southeast Asian farmers that “Round-Up” must be used very carefully, if at all. Many think that “Round-up” and other chemical fertilizers are simply “Good medicine”.

Even some from the Continental Mainland have misunderstandings of Oahu’s land-use ordinances. In places like Idaho, Tennessee, or Upstate New York, there are still counties with no land-use designations. A property can do as they wish. They can drill a well, build an air-strip, do a quarry business or build a residential home side by side of each other. Hawaii fortunately has a wonderful land-use designations on paper.

It’s a known fact that many contractors store their equipments and do their businesses out of their ag-zoned parcels whether it be roofing, trucking, and so on. I’m not saying that these owners are correct. But parts of the islands do not have “industrial” zone area for such business activities. But I’m saying that it is a very common occurrence in Oahu to mix ag-land with construction businesses.

Thus, if such a quick severe punishment is imposed on one particular owner and not the others, there should be at least a fair and objective outreach by the city council member first.

A few neighbors near this property have complained about this property. They have the right to do so. The Hau’ula Community Association President has weighed in although many in Hau’ula does not feel she represents the community at large. This activism began to snow-ball to include a few north shore environmentalists, who in turn has solicited for testimonies from around the island for DPP to “do its job” in enforcement.

I understand the frustrations with DPP. But we cannot allow this anger against DPP’s chronic lack of enforcement by turning this small property owner into a whipping boy. This is grossly unfair. There is no question that the property owner has violations to cure. Enforcement by DPP is important. But social justice is important too, especially when dealing with minorities and immigrant families.

Unfortunately, instead of granting some outreach to the property owner, City Council Member Tsuneyoshi initiated her first step with this Resolution 22-006.

RES22-006

Measure Title: STRONGLY URGING THE DEPARTMENT OF PLANNING AND PERMITTING TO IMMEDIATELY ADDRESS OUTSTANDING VIOLATIONS RELATED TO THE PROPERTY AT 54-406 KAMEHAMEHA HIGHWAY IN HAU’ULA (TAX MAP KEY 5-4-004:021).

Date Introduced: Jan 7, 2022 Introduced By:HEIDI TSUNEYOSHI

Committee: ZONING AND PLANNING (ZP)

Resolution Status

Voting Legend: * = Aye w/Reservations

DateTypeDescription
01/07/2022INTROIntroduced.
01/13/2022ZPReported out for adoption.CR-007 (22)4 AYES: CORDERO, ELEFANTE, KIAʻĀINA, SAY
01/26/2022CCLCommittee report and Resolution were adopted.9 AYES: CORDERO, ELEFANTE, FUKUNAGA, KIAʻĀINA, SAY, TSUNEYOSHI, TULBA, TUPOLA, WATERS

After persuading the entire City Council to adopt her Resolution 22-06 on January 26, 2022, despite flawed information, City Council Member Heidi Tsuneyoshi quickly introduced another Resolution 22-11 to use eminent domain on the Taufa’s property at the Executive Matters and Legal Affairs Committee on February 8, 2022.  

Resolution 22-11

Measure Title: URGING THE CITY ADMINISTRATION TO ACQUIRE THE PROPERTY AT 54-406 KAMEHAMEHA HIGHWAY IN HAUULA (TAX MAP KEY 5-4-004:021) IN ORDER TO PROTECT THE PUBLIC HEALTH AND SAFETY FROM ENVIRONMENTAL DEGREDATION, INCLUDING, IF NECESSARY, TAKING STEPS TO ACQUIRE THE PROPERTY BY EMINENT DOMAIN.

Date Introduced:Jan 20, 2022 Introduced By:HEIDI TSUNEYOSHI

Committee: EXECUTIVE MATTERS AND LEGAL AFFAIRS (EMLA)

Resolution Status

Voting Legend: * = Aye w/Reservations

DateTypeDescription
01/20/2022INTROIntroduced.
02/08/2022EMLAReported out for adoption as amended in CD1 form.CR-168 AYES: CORDERO, ELEFANTE, FUKUNAGA, SAY, TSUNEYOSHI, TULBA, TUPOLA, WATERS1 EXCUSED: KIAʻĀINA      

The Star Advertiser prepared and published an article on the proposed takings in the morning of February 8, 2022 EMLA ( Executive Matters Legal Affairs) Committee.

District 2 Council member Tsuneyoshi as quoted to Star Advertiser’s Ashley Mizuo:  

Hopefully, it isn’t seen as coming after a property owner. … It was hopeful that we could have come to a resolution where he would have complied with all that’s been told to him to do, but unfortunately, after five years that wasn’t the case.” ( Note that the owners acquired the property in November 2019 which is about two years ago.)

TSUNEYOSHI’S WORDS TO THE STAR ADVERTISER CONTRADICT HER ACTIONS

A close look at the timeline shows that Tsuneyoshi was already lining all the ducks in a row despite her words to the Star Advertiser that it ” shouldn’t be seen as after a property owner “.

February 26, 2020. Note Resolution 22-006 was adopted by the Honolulu City Council.

January 20, 2022. However, note that her new eminent domain Resolution 22-011 was prepared and introduced six days BEFORE Reso 22-006 was adopted.

It’s hard to buy her public statements that “Hopefully, it isn’t seen as coming after a property owner …”.

MORE TARGETING BY TSUNEYOSHI

The discrimination and targeting mounted when Tsuneyoshi persuaded the EMLA Committee to amend her Eminent Domain to Judicial Foreclosure. This action was completed in about an half hour period.

There were other little changes like a spelling error in her Resolution 22-11 with the word correcting “degredation” to “degradation” in the title of her resolution and miscellaneous technical and non substantive amendments.

But other far more substantial errors in the Resolution’s contents were untouched. Contrary Information and concerns submitted by the public did not appear to be considered by her.

EVEN MORE TARGETING of PROPERTY OWNER THROUGH INCONSISTENT TREATMENTS

At the Executive Matters & Legal Affairs Committee, there was more targeting of the property owner through inconsistent treatments.

There were three (3) Resolutions relating to Eminent Domain takings. It’s important to note that the 1.Taufa Resolution 22-11 is the only hostile taking of property. Tsuneyoshi stated his compounded DPP fines was about $400,000.00 (However, statement to the news media on February 21, she changed the news media that his fines were about $300,000.00 ). During the EMLA meeting, the Taufa’s eminent domain action was the only Resolution that was changed to Judicial Foreclosure in a very short period.

2. Resolution 21- 280 for eminent domain relates to an abandoned property in Pensacola with Fines of about $900,000.00

3. Resolution 22-22 involves a property owners in Waianae who told the City Council members that she would be so happy if the city would acquire her property.

NO CONSISTENCY

These actions should be alarming to any private property owner. There is no consistency in the application of Due Process. There appeared to be no clear understanding of the differences of Eminent Domain versus Judicial Foreclosure but it was quickly decided upon anyways.

So, what is the threshold to take someone’s property by Eminent Domain or Judicial Foreclosure?

Is it $900K as in the the Pensacola Street property?

Or is it $300K or $400k as in the subject Hau’ula Property?

Since the Hau’ula property is now solely targeted for Judicial Foreclosure takings, how is this process going to play out?

Judicial Foreclosures is generally a mortgage delinquency issue. We know that the county has powers to auction off a private property owner who has trouble paying their real property taxes. We also know that the City County of Honolulu has practiced forbearance in helping private properties solve their financial problems by allowing them TIME.

In this case here, we’re talking about county land-use violation fines. Some of violations were incorrect but the owners were fined.

There are still many OTHER unanswered questions relating to this issue.

Why is City Council member Heidi Tsuneyoshi rushing this hostile taking of this property?

Resolution 22-011: STRONGLY OPPOSE – This Process is Too Hasty and Flawed For Adoption

Honolulu City Council member Heidi Tsuneyoshi is rushing city legislation Resolution 22-011 for the Mayor and the Department of Planning and Permitting ( DPP) to impose “Judicial Foreclosure” on this private property owner. ( It started out as “eminent domain” but was quickly amended to “Judicial Foreclosure”).

I understand there are land-use violations by the owners. Yes, the owner must correct the violations. There is no question about that. Those who know also know that working with DPP takes time.

We need to remember that these past two years also suffered from COVID19 lockdowns and disruption. He has submitted applications to cure his violations. He’s been working with a hired engineer and an architect to cure the violations. Again, these actions take significant time. Processing permits takes time even before the COVID19 pandemic.

But if DPP is told to not issue him permits to cure his violations, it’s a Catch 22. It’s discrimination and retaliation. It’s Big Government wielding its Big Stick that undermines due process.

This is a hardworking immigrant owner from the Island of Tonga. I submit that the cultural differences and lack of understanding need to be part of the deliberations. I’ve recently talked with Hopoate and Annetta Taufa. They did not recognize or understand the severity of these hostile actions till just recently. So now they’re fighting for their land. Unfortunately, Annetta is also fighting literally for her life. She’s under hospice care in their home in Laie.

It’s wrong for Tsuneyoshi to push eminent domain or judicial foreclosure quickly on a small private property. Her actions are abusive and undermine private property rights. Tsuneyoshi has accused the owner of violating for five years to the other city council members and to the Honolulu Star Advertiser with a readership of about 147,959 weekdays 162,287 Sundays. But, the owners acquired this property on November 2019. That’s 2.5 years.

This private property taking is off to hostile and unfair start. Resolutions to seize private property must be carefully and correctly vetted with correct data and correct research. City Council members should be working with their constituents when they’re in trouble, not bully them with severe punishments so quickly. Our immigrant families may need extra help on many levels. Understanding Hawaii’s diversity and showing some compassion is in order, especially for legislators

Honolulu Mayor Kirk Caldwell on a Rampage

Woman Criticizes Honolulu’s Government, Has Her Protest Signs Bulldozed

Nick SibillaNick Sibilla, Contributor   

How people respond to criticism can reveal a lot about their character.  Some might try to debate or reason with those they disagree with.  Others prefer to ignore critics.  City officials in Honolulu take a different approach: They use a bulldozer.

Choon James is a successful real estate broker with over two decades of experience in Hawaii.  But the city of Honolulu is seeking to seize property she’s owned for almost a decade to build what she calls a “super-sized” fire station in rural Hauula.

Since January 2010, she has put up signs to protest Honolulu’s use of eminent domain.  These signs declare “Eminent Domain Abuse: Who’s Next?” and “YouTube Eminent Domain Abuse—Hawaii.”  For more than three years these signs have been up without any incident.

DSC07929DSC07926

But now the city is showing a callous disregard for Choon’s freedom of speech.  Back in May, Honolulu seized two of her eminent domain protest signs.  Without her consent, city employees went onto the property and seized and impounded her signs before damaging them. Even worse, the city slapped her with a notice for trespassing, for property she is trying to defend in court.

After these signs were torn down, Choon placed three more signs there.  These lasted just a few months before the city once again seized the signs.  This time, Honolulu was much more dramatic.  On October 18, city workers, backed by police officers, squad cars and a bulldozer, came by and literally bulldozed those protest signs.

The city’s actions show a shameful lack of respect for the First and Fourth Amendments.  Citizens have a right to protest government actions.  The First Amendment was enacted precisely to protect citizens who criticize the government from retaliation.  Lawsuits challenging Honolulu’s unreasonable seizures and chilling attacks on free speech are now pending in federal court.

Unfortunately, Honolulu is not alone in trying to silence critics who question eminent domain.  The Institute for Justice has represented citizens in St. Louis, Mo., Norfolk, Va., Tennessee, and Texas who protested abusive property seizures and faced censorship.  Out of these four cases, IJ successfully defended free speech in three cases, while the fourth is currently in litigation.

After 24 of his buildings were taken by St. Louis, Jim Roos painted a giant mural on a building he owned advocating “End Eminent Domain Abuse.”  But St. Louis labeled the mural an “illegal sign” and wanted to force Jim to remove the sign (and stifle his right to protest) or face code violations.  He teamed up with the Institute for Justice and sued the city.  In a major win for the First Amendment, in July 2011, the Eighth U.S. Circuit Court of Appeals ruled in favor of Jim and allowed the mural to stay up.

In a similar vein, IJ has defended grassroots activists from a frivolous defamation lawsuit and protected an investigative journalist’s right to free speech from a vindictive private developer.

More recently, the Institute for Justice is suing the city of Norfolk for trying to squash a small business owner’s eminent domain protest sign.  The Central Radio Company, a repair shop, has been in Norfolk for almost eight decades.  But Norfolk had plans to seize the property with eminent domain for a private redevelopment project.

To protest, owner Bob Wilson displayed a huge banner on-site.  The city responded by telling Bob he had to take down the sign or face fines of up to $1,000 per day.  Fortunately, the Virginia Supreme Court unanimously struck down the city’s attempt to seize Bob’s land; his free speech case is still infederal court.

As the cases make clear, courts routinely respect Americans’ First Amendment rights.  Honolulu should do the same.

DSC07922DSC07920
Postscript: Mayor Kirk Caldwell also shut down the owner’s business with Reynolds Recycling on October 21, 2013. Public push back forced the Mayor to cut a deal with Reynolds to return to the adjacent city Lot 64 on December 20, 2013. The Caldwell Administration did not disclose that it is on a month-to-month lease. Should the Mayor gets permission from the courts to condemn, the last two commercial zone lots will be decimated and recycling business  gone.
DSC07946DSC08057
The only valid reason for Mayor Kirk Caldwell to shove this extra expensive fire station onto this small rural community is he owes a plum building contract to a donor!  The Mayor  wants to build a huge Kapolei City station in the small rural town of Hauula.
The Mayor can be contacted at mayor@honolulu.gov    808 768-4141
City Council Chair Ernie Martin  at emartin@honolulu.gov   808 768-5002
Choon James at ChoonJamesHawaii@gmail.com   808 293 9111