Can a Public Road Fail to Qualify as “Public Use”?

          We are back from our Christmas break, and note that things have been happening while we were away.

          The Hawaii Supreme Court outdid itself in County of Hawai’i v. C & J Coupe Family Limited Partnership,  (Civ. No. 00-1-0181K, opinion filed December 24, 2008). In it the Court held that the mere fact that a proposed public use is of a kind that is normally usable by all – i.e., a road – does not in itself preclude an owner’s right to put on a defense that the attempted taking is pretextual, in that the proposed road is sought to be built, not to satisfy a public need, but to facilitate the desire of a local private developer. In this situation, held the court, the owner contesting the taking is entitled to a trial on the merits, which may not be denied to him because of the ostensibly public nature of the taking. You can read the entire lengthy majority opinion and the dissent on 

           This is another step in the unfolding process of American courts beginning to take condemnees’ defenses to the right to take seriously, unlike the bad old days when the latter were given the back of the judicial hand and even in some cases the protesting property owners were chastized for demanding their constitutional rights, as the New York Court of Appeals did in the infamous City of Yonkers v. Morris case that we blogged about on September 15, 2008, as Justice Delayed Is Still Justice, or How the Bad Guys Got Their Just Deserts

           The Coupe case is thus similar to the recent District of Columbia Franco case, where the DC Court of Appeals reversed a trial court’s ruling rejecting an owner’s challenge to a municipal claim of public use, and remanded the matter for a trial on the merits. In other words, in cases of this kind the owner may face an uphill fight, given the state of the right-to-take law (exemplified by the recent Second Circuit case of Goldstein v. Pataki), but he is entitled to his day in court. In this imperfect world, one must be grateful for small favors. Besides, you never can tell; in some cases the owners may prevail on the merits, as in Brannen v. Bulloch County, 387 S.E.2d 395 (Ga.App. 1989), where the court held that the county exceeded its power in seeking to condemn privately owned land to reroute a road in order to avoid inconveniencing a lumber company that created a hazardous condition in an existing road.

           We have an unshakable hunch that the Coupe case, along with the other recent state court cases that have limited condemnors’ right to take, is a harbinger of a new judicial attitude. We further offer the speculation that much of this is a reaction – or perhaps more accurately, judicial revulsion occurring in the wake of the outrageous facts of the notorious Kelo case, where the U.S. Supreme Court held that taking unoffending private homes and turning over their razed sites for a dollar a year to a municipally-favored redeveloper for construction of purely private uses, such as high-end condos and upscale shopping facilities, somehow met the constitutional limitation  of “public use” — which the court conveniently redefined as “public purpose.” 

          And so, three cheers for the Hawaii Supreme Court, and our congratulations to Robert Thomas who represented the condemnees in the Coupe case, and who happens to be our fellow blogger who runs  

Follow-up: Along the line suggested in the penultimate paragraph of the preceding post, we commend to our readers’ attention the Pennsylvania Supreme Court’s opinion (filed in time for Christmas, on December 22, 2008) in a case with the mouth-filling caption of In re Condemnation by the Redevelopment Authority of Lawrence County, No. 1293 CD 2007, pointedly noting the states’ authority to reject Kelo’s endorsement of condemnation for “economic redevelopment,” and holding that the statutory phrase “economically undesirable land use” may not be used by redevelopment agencies as a basis for condemning land to make it more profitable in its redeveloped condition. In other words, “blight” means that there is something affirmatively wrong with the land, not that the condemnor and redeveloper can put it to a more profitable use.