Thanks to Kona Blogger Aaron Stene for pointing out an article from West Hawaii Today, “County lawyers say fair share legal.”The article reports:
Council members who say Judge Ronald Ibarra’s 2007 ruling in a contested condemnation case invalidated the county’s fair share assessments are basing their argument on too specific a portion of the ruling, attorneys for the Corporation Counsel’s Office said.
Following the logic of the argument, the attorneys went on, someone could argue that the county’s condemnation powers were also invalidated, because both condemnation and fair share assessment were mentioned in a single sentence. Instead, the county’s attorneys said, the references were specific to the Coupe lawsuit in which the ruling was filed, according to written opinions from the office released Friday.
Disclosure: we represent the property owners in the Coupe lawsuit mentioned (more accurately termed the “Coupe condemnation,” since the Coupe Family is the defendant not the plaintiff, and was twice sued by the County). The “single sentence” referred to in the report is located on page 48 of the First Amended Findings of Fact, Conclusions of Law, and Order (Sep. 27, 2007):
Count 2: [Declaratory Judgment That Development Agreement is Illegal]
The condemnation and “fair share” assessment provisions of the Development Agreement are declared illegal. Judgment is hereby ordered to be entered in favor of C&J Coupe Family Limited Partnership and against County of Hawaii, and 1250 Oceanside Partners because County Resolution 266-00 illegally delegated the County’s power of condemnation through the Development Agreement to a private party, 1250 Oceanside Partners.
The story continues:
“Judge Ibarra, in essence, found theDevelopment Agreement invalid for a number of reasons, including theimpermissible delegation of the condemnation power by the County,”Ashida wrote. “To read the above finding to conclude the Judge foundthe County’s fair share assessment illegal would be tantamount toreading the finding to also conclude the Judge found the County’scondemnation powers illegal, since the finding simply says, ‘Thecondemnation and fair share assessment provisions of the DevelopmentAgreement are declared illegal.’ Clearly this is not what the Courtintended nor did.”
. . .
West Hawaii attorney Robert Kim disagreed with the Corporation Counsel’s assessment.
“Theletter to the County Council from Lincoln Ashida is too narrowlyconstrued and, with all respect for Mr. Ashida, my reading of JudgeIbarra’s order is much broader and calls into question all of the fairshare ordinances enacted by the county,” Kim said after reviewing theletters and Ibarra’s ruling. “It’s crystal-clear that Judge Ibarra hasheld the county does not have authority to enact fair share ordinances.”
Here’s the complete text of the Conclusion of Law (page 41) that the article refers to. You make the call about what the court concluded. Pay special attention to paragraph 84:
Impact Fees
81.The Development Agreement also purports to amend, supersede orsubstitute for ordinances and the impact fee statute. The DevelopmentAgreement imposes an impact fee, and the County has not enacted animpact fee ordinance pursuant to section 46-141 of the Hawaii RevisedStatutes, as amended. Haw. Rev. Stat. § 46-141.
82. The “fairshare” assessment imposed as to the Defendants and the other landownerswere based on Oceanside’s study and recommendation.
83. The “fair share” assessment is based on benefits and impacts to the landowners from the Mamalahola Bypass Highway.
84.County does not have statutory authority to impose a “fair share”assessment, but has statutory authority to enact impact fee ordinancespursuant to section 46-141 of the Hawaii Revised Statutes, as amended.
85.The “fair share” assessment under the Development agreement, insubstance, is tantamount to an impact fee that does not conform tosection 46-141 of the Hawaii Revised Statutes, as amended.
86. The portion of the Development Agreement that imposes the “fair share”
assessmentagainst the Coupe’s is void for not being in compliance with section46-141 of the Hawaii Revised Statutes, as amended.
We’ve written about this issue before, and commented on WHT’s fair share series: