The last thing any homeowner expects is the condemnation of his or her home by the government, as is the case with the families living in Castle Hills near Kapunahala Stream in Kane'ohe.

This power to take property against the owner's will, known as eminent domain, has recently been the subject of legislation across the nation because of a controversial decision by the U.S. Supreme Court in 2005. In Kelo v. City of New London, the Supreme Court extended eminent domain power by allowing local governments to seize private property in the name of enlarging their tax base and promoting economic development.

Many in Hawai'i may remember the uproar and discussion about the potential taking of private property from small land-owners in Waikiki so that a local hotel chain could build a bigger, better hotel.

The Hawai'i Association of Realtors recognizes the need for government use of eminent domain for a public purpose, such as erosion control, transportation or affordable housing. But, protecting the right of citizens to be secure in their ownership of property is a core value of our industry. Eminent domain— when not used for the purpose it was intended — is wrong regardless of who it helps or victimizes.

In the wake of Kelo, many states have amended their laws to further restrict the use of eminent domain, and other state legislatures are preparing to act in their next session to toughen their eminent domain laws. As an advocate for private property rights, HAR offers some insight that might help the Castle Hills homeowners.

HAR believes that eminent domain should be a means of "last resort." Government should be required to rigorously explore and objectively evaluate all reasonable alternatives to achieving a public purpose that would "avoid" the taking of private property. This alternatives analysis would require the government's good faith consideration of all reasonable alternatives to the use of eminent domain.

One of the objections of landowners whose properties are made the target of eminent domain is that the procedures required by state law are not adequate to ensure meaningful opportunity for landowners and citizens to be heard. By tying the public-hearing process to a review of an alternatives analysis before eminent domain is formally proposed, there is a greater opportunity for landowners and citizens to ensure that government will either avoid eminent domain, or revise its plan so as to minimize its use.

Government must recognize that the "fair market value" of the property taken (based on the willing seller/willing buyer rule) is not sufficient to adequately compensate owners whose properties are condemned. HAR believes that just compensation should cover not only the value of the property but also all other reasonable and necessary costs, including attorney's fees, moving expenses, temporary housing and lost business revenue.

Although it appears that the condemnation in Castle Hills is being proposed for a public purpose (erosion control), government can expect a critical eye and continued fight from not only property owners, but other stakeholders advocating for private property rights.

We would encourage our state and county governments to embrace an approach and policy that prevents abuse of eminent domain yet maintains their ability to use it as a tool for the public good.

Michael Stott is chairman of the Hawai'i Association of Realtors Legislative Committee. He wrote this column for The Advertiser.