Legislature advances bill giving counties more power to take private property

  • Mark Nakashima

A bill giving counties the power to take private property where civil fines have accrued and sell it to clear up the debt has passed the state House and its first Senate committee.

The measure, House Bill 1434, was requested by the City and County of Honolulu, but it will, if passed, apply to all counties. The county councils would first have to pass an ordinance or rules “defining ‘public nuisances’ with respect to each county’s respective circumstances,” the bill states.


“The County of Hawaii has not taken a position on HB 1434,” Executive Assistant Steven Bader, the mayor’s point man on state legislation, said in response to questions Monday. “We will monitor the bill and may decide to weigh in later if it continues to advance.”

Hawaii County already has the authority to take property it considers a public nuisance, such as the case in 2020 when it seized a downtown Hilo lot that had become the site of a homeless camp. For most of 2019, the county made increasingly serious demands to the property owners that the unpermitted structures — including makeshift dwellings, a chain-link fence and a concrete foundation — be removed, ultimately leading to the county seizing the lot when the owners refused to do so.

That foreclosure process, however, went through the court, while the measure contemplated by lawmakers would forgo that step. After all notices, orders, and appeal proceedings are exhausted, a county may satisfy all unpaid civil fines through the power of sale on the real property subject to a recorded lien.

“Your Committee finds that by authorizing the counties to collect on liens filed on properties through a non-judicial foreclosure process, this measure provides some leverage over landowners to comply or lose their property,” Rep. Aaron Ling Johanson, an Oahu Democrat and chairman of the House Committee on Consumer Protection and Commerce, said in a Feb. 15 committee report. “If the property owner fails to comply and the property is foreclosed upon, this measure enables the property to be put to productive use, allows liens attached to the property to be satisfied, and stops the accrual of additional debt or taxes on the property.”

Rep. Mark Nakashima, D-Hamakua, North Hilo, South Hilo, chairman of the Judiciary and Hawaiian Affairs Committee, agreed the counties need more authority.

“This measure addresses the need of the counties to bring closure to pending civil fines imposed on property owners who are in violation of county land use and building ordinances,” Nakashima said in his committee report.

There were no opposing testifiers during the House process. Testimony came only in support and only from Honolulu officials and City Council members and seemed to be centered on one particular property there.

But opposing voices began popping up by the time the bill reached the Senate and went through its first committee there on March 15.

“These two bills, (HB 1434 and its Senate companion), whatever the legislative or executive intentions are, can cause irreparable damage to private property rights,” Oahu resident Choon James said in testimony. “Something as drastic and severe as taking of private property must be conducted fairly, accurately, and with due process.”

Sen. Sharon Moriwaki, a Honolulu Democrat and chairwoman of the Government Operations Committee, questioned Honolulu officials about whether the property owner would still have due process rights.

“I think there’s concern that the public may be not having all of the rights for the violations that they can have exhausted, but you claim that of those will be addressed in our procedures,” Moriwaki said.

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