In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the court held that a taking is not immune from judicial scrutiny for pretext or private benefit simply because the property is being taken for a “classic” use such as a road. The court recognized that the recitation by the government of some public benefit to a taking will not insulate it from judicial review if the claim of public benefit is a pretext to hide a private guiding hand. The court remanded the case to the trial court for a review of the record and a determination among other things of whether the County’s claim that it instituted the taking independently stood up, or whether the taking was simply a better-disguised retread of an earlier failed condemnation.
The recent decision by the Hawaii Supreme Court in the two casesinvolving the County of Hawaii’s attempts to take the property of aKona family for the Hokulia Bypass concerns much more than whether aroad is built. Disclosure: we represent the propertyowner in these cases.
n remand, the circuit court concluded “[t]he County Council’s adoption of [the resolution of taking] was rationally related to the need for a Bypass Highway and the County Council’s asserted public purpose and supported by the circumstances beyond the face of the resolution was not prextextual.” The court’s findings and conclusions on remand are posted here.
Why is it important for the government to get it right when taking property? After all, won’t the government eventually get what it wants?
In another portion of that same opinion, the court held that the government is liable under Haw. Rev. Stat. § 101-27 (1993) for all “damages” sustained by a property owner when a condemnation fails or is dismissed,even if the government succeeds in a subsequent — or concurrent –attempt to take the property. The court remanded the case to the trial court for a determination of the damagessustained by the property owner at the trial court level, and in a May 14, 2009 order (postedhere),thetrial court awarded the property owners 100% of the attorneys feesincurred at trial of that case, including over $1.5 million inattorneys fees and$111,000 in costs.
In the second reported opinion in the case, County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Haw., May 22, 2009) (amended opinion posted here),the Supreme Court held that the damages recoverable by a property ownerinclude the damages it incurs appealing a case, and that the govermentis liable for all of the prevailing property owner’s costs,even if the government may have won intermediate steps. What mattersfor determination of liability is whether the property is”finally taken,” not whether the government may win intermediate stepsalong the way. In other words, if the taking does not succeed, thegovernment is liable for 100%of the property owner’s fees and costs, even those related to motions the government may have won.