§171-37.5 Withdrawal or taking of leased land; fair compensation. (a) Upon a withdrawal or taking of leased land pursuant to section 171-37(3) that causes any portion of the land to become unusable for the specific use or uses for which it was leased, the lease rent shall be reduced in proportion to the value of the land withdrawn or made unusable; provided that if any permanent improvement made to or constructed upon the land by the lessee is destroyed or made unusable in the process of the withdrawal or taking, the proportionate value thereof shall be paid to the lessee based upon the unexpired term of the lease. No land that is under cultivation shall be withdrawn or taken until the crops are harvested, unless the board pays the lessee the value of the crops.
Upon a withdrawal, any person with a long-term lease shall be compensated for the present value of all permanent improvements in place at the time of the withdrawal that were legally made to or constructed upon the land by the lessee of the leased land being withdrawn.
In the case of tree-crops, as defined in section 171-37, the board shall pay to the lessee the residual value of the trees taken and, if there are unharvested crops, the value of the crops.
In the case of breeding livestock that cannot be relocated or marketed for the breeding value, the board shall pay to the lessee the difference between the appraised breeding value and the salvage value, including the cost of transportation to a market on the island on which the leased land is located. If there is disagreement between the board and the lessee as to the number of breeding livestock that cannot be relocated or marketed for breeding value, the issue shall be submitted to the department of agriculture to make a determination, which shall be final. The appraised breeding value shall be the fair market value of the livestock, as opposed to net present value, at the time the board approves the withdrawal or taking of a portion or all of the leased land. The fair market value shall be determined by:
(1) An employee of the department of agriculture qualified to appraise livestock; or
(2) A disinterested livestock appraiser whose services shall be contracted for by the board,
and the lessee shall be promptly notified of the determination; provided that should the lessee fail to agree upon the fair market value, the lessee may appoint the lessee's own livestock appraiser who together with the board's appraiser shall appoint a third appraiser and the fair market value shall be determined by arbitration as provided in chapter 658A. The lessee shall pay for the lessee's own livestock appraiser, the board shall pay for the board's livestock appraiser, and the cost of the third livestock appraiser shall be borne equally by the lessee and the board. Whenever more than one livestock appraiser is appointed, each shall prepare and submit an independent appraisal report.
(b) In addition to compensation received under subsection (a) or section 171-38, a lessee shall be entitled to compensation for costs attributable to the diminished use of the leased land, including reimbursement for the cost of any insurance required by the board to be maintained, or property tax paid, by the lessee on the portion of the leased land withdrawn or taken; provided that a lessee of land subject to easements shall be entitled to compensation under this subsection only if the easements are placed upon the land subsequent to the original lease and prevent the lessee from using the land for the original intended use. [L 2013, c 234, §2]
Structure Hawaii Revised Statutes
Title 12. Conservation and Resources
171. Public Lands, Management and Disposition of
171-2 Definition of public lands.
171-3 Department of land and natural resources.
171-4.5 Aha moku advisory committee; established.
171-5 Meetings, regular, special; quorum.
171-6.4 General administrative penalties.
171-7 General duties of the board.
171-8 Land agents and other employees.
171-8.6 Risk assessment working group.
171-11 Public purposes, lands set aside by the governor; management.
171-12 Permanent register of applicants for public lands.
171-13 Disposition of public lands.
171-14.5 Auction pre-qualification; agricultural and pasture leases.
171-19 Special land and development fund.
171-20 Notice of breach or default.
171-21 Rights of holder of security interest.
171-23 Land patents and deeds, issued when.
171-24 Land conveyances, preparation, signing, record, copies.
171-26 Rights-of-way to the sea, game management areas, and public hunting areas.
171-28 Government-owned Hawaiian fishponds; sale prohibition.
171-29 Report to legislature on all dispositions.
171-30 Acquisition of real property; general.
171-31 Depository for documents; filing, record.
171-31.5 Disposition of abandoned or seized property.
171-34 Planning; intensive agricultural and pasture uses.
171-35 Lease provisions; generally.
171-36 Lease restrictions; generally.
171-36.1 Reservation of rights to prehistoric and historic remains on leased public lands.
171-36.2 Public lands for historic preservation and restoration.
171-36.5 Commercial, industrial, resort, mixed-use, or government leases; extension of term.
171-37 Lease restrictions; intensive agricultural and pasture uses.
171-37.5 Withdrawal or taking of leased land; fair compensation.
171-38 Condemnation of leases.
171-40 Expired leases; holdover.
171-41 Commercial, industrial, and other business uses.
171-41.5 Amendment of commercial, hotel, or industrial lease.
171-41.6 Lessees within the last ten years of their lease terms; requests for interest
171-43 Lease of campsites or sites for youth athletic and/or educational activities.
171-43.1 Lease to eleemosynary organizations.
171-44 Lease for recreation-residence use.
171-45 Residence lots; sale or leases.
171-46 Residential sales or leases; planning.
171-47 Residence lots; improvement districts.
171-48 Residence lots, requirements.
171-49 Residence lots: unsold; forfeited; surrendered.
171-49.5 Resale, first offer to board; limitation on resale price.
171-49.7 Public lands suitable and available for residential development; inventory.
171-50.1 Acquisition of lands for exchange under chapter 516.
171-50.2 Exchanges for conversion of leasehold lands to fee simple ownership.
171-53 Reclamation and disposition of submerged or reclaimed public land.
171-56 Contract or license for concessions or concession space.
171-57 Reserved rights and easements.
171-58 Minerals and water rights.
171-59 Disposition by negotiation.
171-60 Development through private developer.
171-61 Cancellation, surrender.
171-62 Sales; payment, default.
171-63 Waiver of restrictions.
171-64 Covenants against discrimination.
171-64.5 Nonconventional uses; department of health; approval and authorization; Waimano ridge.
171-64.7 Legislative approval of sale or gift of lands.
171-65 Leases, leases with option to purchase, sales permitted; when.
171-67 Restrictions; conditions.
171-68 Applicants; qualifications of.
171-70 Findings and declaration of necessity.
171-72 Subdivision, improvement and lease of public lands.
171-73 Term, rent, and other conditions of residential leases.
171-74 Qualifications of lessees.
171-75 Persons disqualified to take residential leases.
171-76 Preference right to residential lease.
171-79 Purchase of fee title by lessee.
171-80 Cancellation of leases.
171-83 Costs of, and realization from, residential leasing.
171-84 Leases to certain developers of housing for low and moderate income families.
171-87 Disposition to victims of natural disaster, when.
171-91 Notice of availability of leases; selection of lessees.
171-92 Existing public leases.
171-94 Persons dispossessed or displaced.
171-95.1 Authority of board to extend leases under certain circumstances.
171-95.3 Renewable energy producers; lease of public lands without public auction.
171-95.5 Lease to public charter schools.
171-96 Lease to foreign governments.
171-98 Release of restrictions.
171-100 Successor determination program.
171-117 Public lands; agricultural park lands.
171-121 Molokai forest lands, management program established.
171-132 Designation of industrial park.
171-133 Authority to plan, improve, develop, operate, and maintain industrial parks.
171-134 Industrial park development.
171-135 Joint venture or development agreement.
171-136 Disposition of public lands within industrial park.
171-141 Lease for eligible permittee in industrial park.
171-142 Lease for lessees dislocated by condemnation proceedings.
171-144 Issuance of revenue bonds.
171-153 Beach restoration plan.
171-154 Authority to lease coastal lands.
171-155 Development of public coastal lands.
171-156 Beach restoration special fund.
171-172 Turtle Bay conservation easement special fund.
171-173 Turtle Bay appraisal and due diligence.
171-174 Lease of Turtle Bay lands.
171-193 Lessees within the last ten years of their lease terms; request for interest.