By Mark M. Murakami – Since most of my practice involves the use or transfer of land (and not water – sorry) and since there is a very, VERY large public transportation infrastructure project in development in Honolulu, we thought we would provide some of the requirements for the Honolulu Area Rapid Transit (HART) project.
Because the HART rail project will involve federal funds, federal laws and regulations provide property owners (and their tenants) with additional statutory and regulatory protections above what is required by the Fifth Amendment, the Hawaii Constitution or Hawaii Revised Statutes Chapter 101. This is the first post in a series about Honolulu Rail.
Title 42, Chapter 61 of the U.S. Code is entitled: “The Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Asssisted Programs” and provides the statutory authority for the regulations which provide the details of the various benefits of the Uniform Relocation Act program.
The federal regulation (as originally published in the Federal Register) that provides the procedures and specific requirements for eminent domain projects that use federal funds can be found here.
Of note, the Uniform Act has unusual application in courts. The Uniform Act does not create any element of value or damage not in existence prior to the date of enactment. 42 U.S.C. 4602.
- Improvements shall be disregarded, either to increase, or decrease, fair market value as of the date of valuation. 42 U.S.C. 4651(3).
- Expenses incidental to acquisition, conveyance taxes, property taxes must be born by the federal agency. 42 U.S.C. 4653.
- Property owners are entitled to reimbursement of attorney’s fees if the federal agency cannot condemn or the condemnation is abandoned. 42 U.S.C. 4654. If the landowner is forced to bring an inverse condemnation claim, the property owner is entitled to a reimbursement of attorney’s fees, appraisal and engineering fees. 42 U.S.C. 4653 (c).
- These protections apply equally to HART or any State or County acquisition using federal funds. 42 U.S.C. 4655. Any “acquiring agency” must provide assurances to the federal agency funding the acquisition that the acquiring agency will comply with the protections of the Uniform Act.
Courts have grappled with landowners rights under the Uniform Act – fodder for future posts for sure.