Following up on this story, West Hawaii Today reports “Attorneys argue against Supreme Court ruling on bypass,” about whether a second attempt to condemn property ostensibly for a road ispretextual when the court determined the first attempt was unconstitutional and nothing changed:
Attorneys for the Richards family and theCoupe Trust, in documents filed in 3rd Circuit Court Friday, argue thatthe condemnation action initiated by Hawaii County in 2005 wasessentially the same as one filed in 2000 and later dismissed.
Disclosure: we represent the property owner in this case.
The Hawaii Supreme Court in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here) held that courts have an obligation to take allegations of pretext seriously — even when the taking is for a “classic” public use — and remanded the case for consideration of evidence of pretext.
The proposed findings wesubmitted referenced in the WHT article are available here. The County of Hawaii’s proposed findings are available here. For further detail and analysis, see “Determining Eminent Domain Pretext in Serial Takings.”
[Note: the headline is a bit off — no one is arguing “against” the Supreme Court ruling; on remand the parties are applying the Supreme Court ruling.]