public use requirement in Hawaii

2010Auth. v. Lyman, 68 Haw. 55, 68 , 704 P.2d 888, 896 (1985) (“Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not proscribed by the public use clause.” (Citing United States v. Gettysburg Elec.

2010Auth. v. Lyman, 68 Haw. 55, 68 , 704 P.2d 888, 896 (1985) (“Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not proscribed by the public use clause.” (Citing United States v. Gettysburg Elec.

2008Goldstein v. Pataki, 488 F.Supp.2d 254, 278, 286 (E.D.N.Y.2007) [hereinafter, Goldstein I], judgment affirmed by, 516 F.3d 50 (2d Cir.), cert. denied, — U.S. -, 128 S.Ct. 2964 , 171 L.Ed.2d 906 (2008) (emphases added).

2008Goldstein v. Pataki, 488 F.Supp.2d 254, 278, 286 (E.D.N.Y.2007) [hereinafter, Goldstein I ], judgment affirmed by, 516 F.3d 50 (2d Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 2964 , 171 L.Ed.2d 906 (2008) (emphases added).

2008Agency v. Pappas, 119 Nev. 429 , 76 P.3d 1, 14 (2003) (holding that "[a] property owner may raise, as an affirmative defense to the taking ... [, that] the avowed public purpose is merely a pretext or used in bad faith" (footnotes omitted)); Ottofaro v. City of Hampton, 265 Va. 26 , 574 S.E.2d 235, 237 (2003) (concluding that "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). [28] As noted, in the instant case, property condemned pursua

2008Agency v. Pappas, 119 Nev. 429 , 76 P.3d 1, 14 (2003) (holding that "[a] property owner may raise, as an affirmative defense to the taking ... [, that] the avowed public purpose is merely a pretext or used in bad faith" (footnotes omitted)); Ottofaro v. City of Hampton, 265 Va. 26 , 574 S.E.2d 235, 237 (2003) (concluding that "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). [28] As noted, in the instant case, property condemned pursua

2008Orange v. 769 Assocs., L.L.C., 172 N.J. 564 , 800 A.2d 86, 91 (2002) (reiterating that "[c]ourts have long held that the condemnation of private property for use as a public road fulfills the public use requirement" (citation omitted)); Ottofaro, 574 S.E.2d at 238 (holding that where "the City own[ed] the road, and ... the road [was] open for use to the public," the appellant's land had been condemned for a public purpose); Ford v. Dickerson, 222 W.Va. 61 , 662 S.E.2d 503, 506 (2008) (listing condemnation as one of three means by which "the public may acquire a valid right to use land owned by

2008Orange v. 769 Assocs., L.L.C., 172 N.J. 564 , 800 A.2d 86, 91 (2002) (reiterating that "[c]ourts have long held that the condemnation of private property for use as a public road fulfills the public use requirement" (citation omitted)); Ottofaro, 574 S.E.2d at 238 (holding that where "the City own[ed] the road, and ... the road [was] open for use to the public," the appellant's land had been condemned for a public purpose); Ford v. Dickerson, 222 W.Va. 61 , 662 S.E.2d 503, 506 (2008) (listing condemnation as one of three means by which "the public may acquire a valid right to use land owned by

2008"Because that plan unquestionably serve[d] a public purpose," id., the Kelo Majority "[d]eclin[ed] to second-guess the City's considered judgments about the efficacy of its development plan," id. at 488 , 125 S.Ct. 2655 , and held that the challenged takings "satisf[ied] the public use requirement of the Fifth Amendment." Id. at 484 , 125 S.Ct. 2655 .

2008"Because that plan unquestionably serve[d] a public purpose," id., the Kelo Majority "[d]eclin[ed] to second-guess the City's considered judgments about the efficacy of its development plan," id. at 488 , 125 S.Ct. 2655 , and held that the challenged takings "satisf[ied] the public use requirement of the Fifth Amendment." Id. at 484 , 125 S.Ct. 2655 .

2008See Novi, 701 N.W.2d at 150 (stating that “the single fact that a project is a road does not per se make it a public road"); see also Ottofaro, 574 S.E.2d at 237 (despite holding that road was valid public purpose in that case, recognizing that "whether a taking is for a public purpose is a judicial question, reviewable by the courts” and "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). .

2008See Novi, 701 N.W.2d at 150 (stating that "the single fact that a project is a road does not per se make it a public road"); see also Ottofaro, 574 S.E.2d at 237 (despite holding that road was valid public purpose in that case, recognizing that "whether a taking is for a public purpose is a judicial question, reviewable by the courts" and "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). [37] In the same vein the dissent argues "that i

2008Orange v. 769 Assocs., L.L.C., 172 N.J. 564 , 800 A.2d 86, 91 (2002) (reiterating that "[c]ourts have long held that the condemnation of private property for use as a public road fulfills the public use requirement" (citation omitted)); Ottofaro, 574 S.E.2d at 238 (holding that where "the City own[ed] the road, and ... the road [was] open for use to the public," the appellant's land had been condemned for a public purpose); Ford v. Dickerson, 222 W.Va. 61 , 662 S.E.2d 503, 506 (2008) (listing condemnation as one of three means by which "the public may acquire a valid right to use land owned by

2008Orange v. 769 Assocs., L.L.C., 172 N.J. 564 , 800 A.2d 86, 91 (2002) (reiterating that "[c]ourts have long held that the condemnation of private property for use as a public road fulfills the public use requirement" (citation omitted)); Ottofaro, 574 S.E.2d at 238 (holding that where "the City own[ed] the road, and ... the road [was] open for use to the public," the appellant's land had been condemned for a public purpose); Ford v. Dickerson, 222 W.Va. 61 , 662 S.E.2d 503, 506 (2008) (listing condemnation as one of three means by which "the public may acquire a valid right to use land owned by

2008See Midkiff, 467 U.S. [] at 245[, 104 S.Ct. 2321 ] ("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").

2008See Midkiff, 467 U.S. at 245 , 104 S.Ct. 2321 ("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").

2008Agency v. Pappas, 119 Nev. 429 , 76 P.3d 1, 14 (2003) (holding that "[a] property owner may raise, as an affirmative defense to the taking ... [, that] the avowed public purpose is merely a pretext or used in bad faith" (footnotes omitted)); Ottofaro v. City of Hampton, 265 Va. 26 , 574 S.E.2d 235, 237 (2003) (concluding that "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). [28] As noted, in the instant case, property condemned pursua

2008Agency v. Pappas, 119 Nev. 429 , 76 P.3d 1, 14 (2003) (holding that "[a] property owner may raise, as an affirmative defense to the taking ... [, that] the avowed public purpose is merely a pretext or used in bad faith" (footnotes omitted)); Ottofaro v. City of Hampton, 265 Va. 26 , 574 S.E.2d 235, 237 (2003) (concluding that "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). [28] As noted, in the instant case, property condemned pursua

2008The dissent states that "our own case law demonstrates that the rational-basis test—identical to that laid out in the federal precedent—is the appropriate standard to be applied in determining whether a governmental taking has a public purpose under the public use clause of the Hawai`i Constitution, as well as the federal constitution." Dissenting opinion at ___, 198 P.3d at 657 .

2008See Novi, 701 N.W.2d at 150 (stating that "the single fact that a project is a road does not per se make it a public road"); see also Ottofaro, 574 S.E.2d at 237 (despite holding that road was valid public purpose in that case, recognizing that "whether a taking is for a public purpose is a judicial question, reviewable by the courts" and "the fact that the City filed with its petition for condemnation a resolution that stated that the landowners' property would be taken for a public use does not bar judicial review of the issue of public use"). [37] In the same vein the dissent argues "that i

1982The Waihee sources also play an integral part in the BWS’s plans to satisfy future water needs and there are no immediately accessible replacement sources. 18 “Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 552 (1937). 19 Rank contains a thorough discussion of the public use doctrine and review of the California cases in the context of a major California water rights action.

1982E.g., Life of the Land v. Ariyoshi, 59 Haw. 156, 158 , 577 P.2d 1116, 1118 (1978) (public interest one of three elements re propriety of temporary injunction of construction projects).

1982E.g., Life of the Land v. Ariyoshi, 59 Haw. 156, 158 , 577 P.2d 1116, 1118 (1978) (public interest one of three elements re propriety of temporary injunction of construction projects).

1982See, Reppun v. Board of Water Supply, 65 Haw. 531 , 656 P.2d 57 (1982).

1982See, Reppun v. Board of Water Supply, 65 Haw. 531 , 656 P.2d 57 (1982).

1982To the same effect is Elwood v. City of New York, 450 F. Supp. 846, 874 (S.D.N.Y. 1978). 24 This assumes that the complainant is not chargeable with laches, estoppel or some other lack of diligence in bringing suit which precludes, independent of the public use doctrine, consideration of his action for injunctive relief.

1952Housing Authority et al., 331 Pa. 209 , 200 Atl. *550 834, 840.) Indeed, “where [as here] the Legislature declares a particular use to be a public use the presumption is in favor of this declaration, and will be binding upon the courts unless such use is clearly and palpably of a private character." (West et al. v. Whitehead et al., 238 S. W. 976, 978 [Tex. Civ.