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Supreme Court sends Hokulia case back to Ibarra

Karin Stanton/Hawaii247.com Contributing Editor

 
The Hawaii Supreme Court issued its opinion Wednesday, Dec. 24 on the case at the root of the Hokulia Bypass, with the likely result of delaying the project as it calls for more findings at Circuit Court level.

County attorneys said they are “very pleased” with the ruling.

County Corporation Counsel Lincoln Ashida said only one of the three decisions by the Supreme Court was a final decision on whether the first condemnation action in the case abated the second, and that was issued in favor of the County. On the other two, the Supreme Court simply remanded the case back to Judge Ibarra, Ashida said.

The 85-page ruling held the county’s successful second condemnation of property was legal and not barred by the doctrine called “abatement,” according to a statement released by the county statement late Wednesday.

The Supreme Court remanded the second condemnation case back to Third Circuit Judge Ronald Ibarra, with orders to re-examine whether or not the road has a public purpose and is not merely a benefit to the luxury subdivision being built by developer 1250 Oceanside Partners. Ibarra previously has ruled there is a legitimate public purpose.

After Ibarra makes these findings, another judgment will be issued.  If this judgment favors the county, the condemnation will stand and the project will continue to move forward as planned.

“The decision of the Court does not appear to be fatal as to the bypass road but will require some additional factual findings of the Court before another judgment is filed,” deputy Corporation Counsel Michael Udovic said in the county statement. “Needless to say we are carefully reading the opinion to distill salient issues.”

Deputy Corporation Counsel Joseph Kamelamela, lead counsel for the County in this case, is off island and has been notified. He will return Monday. 

“There may be additional proceedings, at this time it is too early to tell,” Udovic said. “We will be reviewing the opinion carefully in the next few days.”

Ashida said the county is optimistic about the eventual resolution of the case. 

“If Judge Ibarra supplements the record with appropriate findings and the Supreme Court believes they are adequate, (and) assuming Judge Ibarra enters findings and orders consistent with what he did earlier, all three issues may be resolved in favor of the county,” Ashida said. “In sum, it is too early to tell.”

How this case might impact future eminent domain cases in Hawaii was unclear Wednesday.

The Web site www.inversecondemnation.com has posted the full decision and other documents related to County of Hawaii v. Richards.

Web site author Robert H. Thomas, land use and appellate lawyer based in Honolulu who represents the property owner, wrote that issues in the cases include: 

* application of the statute that provides that the government must 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

Long planned and much anticipated by West Hawaii drivers, the highway is being developed by 1250 Oceanside Partners, which agreed in 1998 to build the 5.5-mile bypass between Keauhou and Napoopoo in exchange for building the subdivision.

A 1,500-foot parcel of land owned by the Coupe family is at the center of the lawsuits and is needed by the county to complete the bypass. The family successfully argued a condemnation action in 2000 was an illegal delegation of authority to the developer; however, Ibarra upheld the county’s second attempt to take the land in 2005. 

— Find out more:

www.inversecondemnation.com/fi…

2 Responses to “Supreme Court sends Hokulia case back to Ibarra”

  1. Aaron Stene says:

    I had a chance to digest the HSC’s majority opinion tonight

    http://www.state.hi.us/jud/opinions/sct/2008/28822.pdf

    On face value, it felt like I had lump of coal in my stocking. But after reading the WHT article, the HSC decision,and Hawaii County’s press release it seemed neither side lost anything by this ruling.The only folks that did lose are the residents of Ka’u and South Kona who have to endure more traffic congestion while this legal wrangling continues.

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