West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases

The Big Island's West Hawaii Today reports "Both sides claim win in latest ruling" about the Hawaii Supreme Court's recent opinion in the cases involving the County of Hawaii's attempt to take the property of a Kona family to meet the County's obligations under a development agreement with the developer of the Hokulia project.  Disclosure: we represent the property owner in these cases.

In County of Hawaii v. C&J Coupe Family Ltd. P'ship, No. 28822 (Apr. 21, 2009) (posted here), the court confirmed that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27, including the reasonable attorneys fees and costs it incurs on appeal when its property is not "finally taken" for public use. The trial court struck down an attempted taking for a road for lack of public use,

The road, part of a development agreement between the county and Oceanside 1250, developers of the Hokulia luxury community makai of Kealakekua, is 60 percent complete despite more than seven years of litigation.

In a separate eminent domain case against the same owners prosecuted concurrently, the trial court held the property could be taken, so the County refused to pay section 101-27 damages. 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 Supreme Court rejected the County's argument, holding that if property is not taken in an eminent domain case the County must make the owner economically whole, even if the property is taken in another case.

The Supreme Court also vacated the second taking attempt, remanding it to the trial court for an inquiry into whether the asserted public purpose was pretextual.  The report continues:

Still forthcoming is a ruling by Ibarra on whether the county condemned the land on a pretext on behalf of developers instead of for an actual public benefit. The Supreme Court sent that portion of the case back to the lower court after hearing arguments on it last year.

Ibarra's clerk could not say Wednesday when that ruling might be made. Ibarra received briefs from the parties in the case last month.

In September 2007, Ibarra ruled the county could take the property by paying $162,204.83 for the land, plus interest and 10 percent annually for "blight" damages.

The Coupes appealed, saying the county lost its condemnation claim and can't just keep filing new ones until one sticks. Attorneys argue the public purpose is just a pretext, as the real benefit goes to Hokulia, not the public.

"These arguments are not about a road. They're about the law," Robert Thomas, an attorney for the trust, said in oral arguments in October. "The government in cases of eminent domain has a huge advantage. It creates the facts. ... If they lose, they're not prohibited from trying again and again and again."

The strip of property is part of a 51/2-mile limited access road that will eventually link Napoopoo Junction in South Kona with Keauhou and beyond to the planned Alii Parkway. It's being built by Oceanside 1250 as one of a number of community benefits in return for the right to build Hokulia.

Hawaii County and Oceanside 1250 contend the road has been on planning maps for decades and serves an obvious public purpose in relieving heavy traffic through the mauka Kona area.

Our proposed Findings of Fact and Conclusions of Law on the pretext issue are posted here ("Determining Eminent Domain Pretext In Serial Takings").