HAWSCT Opinion in Eminent Domain Abuse Cases - Kona Bypass Highway

In a major decision regarding eminent domain, whether the government must pay damages when its attempts to condemn property fail, and the standards applicable to challenging the government's claim that a taking is for public use, the Hawaii Supreme Court today issued an opinion in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuits filed by the County in 2000 and 2005.

[Disclosure: we represent the property owner.]

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. Here's the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. More after a chance to read the 100 pages of opinions.

The filed briefs in the case are here:

• Opening Brief

• Answering Brief of the County of Hawaii 

• Reply Brief

The issues in the cases include:

• application of Haw. Rev. Stat. § 101-27 (1993), the statute that requires the government to make a property owner whole and pay damages when an attempt to take property by eminent domain is discontinued or dismissed

• whether the government may concurrently prosecute more than one condemnation lawsuit at the same time

• the standards for demonstrating that the government's claim of public use is pretext to hide private benefit