Real Estate & Property Law

HAWSCT To Hear Pretext And Private Benefit Appeal

By Robert Thomas (inversecondemnation.com)

Today, the Hawaii Supreme Court filed this Order Granting and Accepting Application for Transfer (Dec. 21, 2009), in County of Hawaii v. C&J Coupe Family Ltd. P'ship, transferring the appeal from the Intermediate Court of Appeals. [Disclosure: my Damon Key colleagues and I represent the property owners in this case.]

This is the property owners' appeal of the County of Hawaii's attempts to take a Kona family's property. The first round of appeals resulted in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here), which held that a property owner has a right to challenge the government's assertion that a taking is for public use. In reviewing a taking, courts have an obligation to take seriously a property owner's claim that the government's stated public purpose is a pretext masking its true purposes. The court held that substance matters, not form, when government adopts a resolution of taking. Id. at 383, 198 P.3d at 646.

The court held the trial court erroneously accepted the County?s stated purpose at "face value," and the "single fact that a project is a road does not per se make it a public road." Id. at 381, 198 P.3d at 643 (emphasis original). The court vacated the trial court?s approval of the taking, and remanded the case with instructions to "thoroughly consider" evidence of pretext and private benefit by examining the County?s "actual purposes," its "veracity," and by "look[ing] behind the government?s stated public purpose" with a "closer objective scrutiny of the justification being offered." Id. at 375, 198 P.3d at 638 (?[O]ur case law supports the proposition that a court can look behind the government?s stated public purpose.?).

After the remand from the Hawaii Supreme Court, the trial court again validated the taking, concluding there was "no evidence"of pretext or private benefit. This appeal challenges that ruling. The Opening Brief which we filed last month is available here.

Full post as published by inversecondemnation on December 21, 2009 (boomark / email).