Real Estate & Property Law

Oral Arguments in Kona Eminent Domain Abuse Appeals: Damages for Failed Condemnations, Abatement, and Pretext

By Robert Thomas (inversecondemnation.com)

West Hawaii Today reports on yesterday's oral arguments in the Supreme Court of Hawaii in County of Hawaii v. Richards, the appeal from two eminent domain actions on the Big Island of Hawaii.   [Disclosure: my Damon Key colleagues Ken Kupchak, Mark Murakami, and Christi-Anne Kudo Chock and I represent the property owners.]

"These arguments are not about a road. They're about the law," said Robert Thomas, an attorney for the trust. "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."

. . . .

Hawaii County lost its first condemnation lawsuit when a Circuit Court judge found the condemnation served more of a private purpose for Oceanside than a public purpose, as is required before government can take land by force. The county, under a new County Council, amended its condemnation plan, adding another half acre to the project and removing references to the Hokulia agreement, and the court consolidated the two cases.

"Even while we were in trial in the consolidated cases, the facts were being changed on us," Thomas said, explaining that attorney's fees continued to accrue because the cases were different.

. . . .

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.

Justices heard almost an hour of argument but didn't indicate when, or how, they'd rule. Questions aimed at attorneys seemed to be more of the devil's advocate variety, with justices not tipping their hands on their inclinations.

The Court summarized the issues in the case:

Defendants-Appellants C&J Coupe Family Limited Partnership, Robert Nigel Richards, Trustee under the Marilyn Sue Wilson Trust, Miles Hugh Wilson, et al., appeal from (1) the denial of their motion for damages pursuant to Hawai`i Revised Statutes (HRS) § 101-27 in Civil No. 00-1-181K, and (2) the September 27, 2007 First Amended Judgment in Civil No. 05-1-015K, granting Plaintiff-Appellee County of Hawaii's condemnation of Appellants' property.  This court accepted Appellee's petition for transfer on July 8, 2008.

In the appeal from Civil No. 00-1-181K, Appellants contend that the Circuit Court of the Third Circuit (the court) erred in failing to award them statutory damages after Appellee's attempt to condemn Appellants' private property was rejected as not having a "public purpose" as required by the takings clauses of the state and federal constitutions.  Appellants argue that the phrase "finally taken" as used in that statute speaks to a single condemnation action.  Appellee contends that it applies to all subsequent attempts to condemn the same property.

In the appeal from the Amended Final Judgment in Civil No. 05-1-015K, Appellants maintain that the court erred in (1) denying their motion to dismiss for lack of subject matter jurisdiction under the doctrine of abatement and (2) declining to look beyond Appellee's asserted public purpose to determine if it was mere pretext.  Appellee argues that (1) abatement does not apply because the property sought in Civil No. 05-1-015K was different from that sought in Civil No. 00-1-181K and (2) the court correctly found that the condemnation in Civil No. 05-1-015K was for a public purpose.

Jesse Souki discusses the appeals on his Hawaii Land Use Law Blog here.  The briefs in the case are here:

• Opening Brief

• Answering Brief of the County of Hawaii 

• Reply Brief

A link to the trial court's findings, along with a summary of the case is posted here.

Full post as published by inversecondemnation on October 17, 2008 (boomark / email).