Thursday, October 16, 2008

Should the Government Pay a Landowner for Its Failed Attempt to Condemn a Landowner's Property?

The Hawaii Supreme Court recently heard oral arguments in Hawaii County v. Richards, Haw. Sct. Doc. No. 28822.

Appealing from the Third Circuit Court (Civil No. 00-1-181K), Richards contends that the Circuit Court erred in failing to award him statutory damages after the County attempted, but failed, to condemn Richards' private property.

HRS § 101-27, provides as follows, inter alia:

Defendant allowed damages upon abandonment or dismissal of proceedings. Whenever any proceedings instituted under this part are abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant entitled thereto. . . .

(Second emphasis added.)

The County attempted to condemn Richards' property twice. The County's first attempt to condemn the property failed, because it was found not to have a "public purpose" as required by the takings clauses of the state (Haw. Const. art. I, § 20) and federal (US Const. amend. 5) constitutions. However, the County's second attempt to condemn Richards' property succeeded.

Richards argues that the phrase "finally taken" under HRS § 101-27 speaks to a single condemnation action; therefore, he is owed damages, costs, and fees under HRS § 101-27 from the County's first failed attempt. The County contends that HRS § 101-27 applies to all subsequent attempts to condemn the same property; therefore, since it succeeded on its second try, HRS § 101-27 should not apply to its first failed attempt.

Oral arguments were heard by the Hawaii Supreme Court on Thursday, October 16, 2008 - 9:00 A.M.


Anonymous said...

This case is a bit more complicated
than what you blogged.

As a result of this decision

Judge Ibarra awarded the 1,500 foot section of the Coupe's property to Hawaii County pending
appeal in December 2007. Judge
Ibarra upheld that decision in January 2008.

Then Charles & Joan Coupe filed their appeal with the Hawaii Intermediate Court of Appeals after the latter decision was officially recorded in April 2008.

Hawaii County and Oceanside asked
the Hawaii Supreme Court to transfer this appeal from the ICA
to Hawaii Supreme Court in July.
This was done so this legal roadblock is extinguished in a more timely manner.

Hawaii Land Use Law and Policy said...

Thank you for the additional information, Aaron. I blogged only the question presented under the current appeal.

Anonymous said...

The current appeal also addresses the legality of the condemnation also :

"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."