Real Estate & Property Law

Opening Brief In Kona Eminent Domain Abuse Case: Pretext, Actual Purposes, And Private Benefit

By Robert Thomas (inversecondemnation.com)

Today, my Damon Key colleagues Ken Kupchak, Mark Murakami, Matt Evans and I filed the Opening Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P'ship, two condemnation cases arising out of the County of Hawaii's attempts to take a Kona family's property. This brief addresses several issues, but the most critical involve pretext and public purpose, questions left open by the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), but which were answered, in part, by the Hawaii Supreme Court in its opinion when these cases were first before the court last year. See County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here)

In that opinion, the court 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 that 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 brief challenges that conclusion. More about the cases here.

Full post as published by inversecondemnation on November 13, 2009 (boomark / email).