Posted by: Patricia Salkin | April 10, 2009

Court Must Decide If Public Purpose Claimed for Road Was Pretextual

The Hawaii Supreme Court ruled a trial court erred by not specifically considering whether a county’s claimed justification for a taking to build a highway was a mere pretext to benefit a private landowner, as the landowner affected by the taking charged In the late 1990s, the Hawaii County Council executed a development agreement with 1250 Oceanside Partners to rezone a 1,550-acre parcel of land on the island’s west shore for a luxury residential subdivision. As a condition of the rezoning, Oceanside agreed to build a road, characterized by the county as a bypass and by C&J Coupe as an access road to the development, across the property of a number of adjoining landowners, including Coupe. The agreement required Oceanside to acquire the needed property by private sale, but if necessary, the county would exercise its eminent domain authority to acquire the land.

 

Negotiations between Oceanside and Coupe to acquire a 2.9-acre parcel of land broke down in 2000. As a result, the county began eminent domain proceedings. Coupe defended by alleging, inter alia, that there was no public necessity for the taking. While the case was pending, the county started a second condemnation proceeding. The trial court consolidated the two cases. In 2007, it ruled the first condemnation was invalid because the county had delegated its condemnation authority to a private party. As to the second condemnation proceeding, however, the court ruled the taking was for a valid public purpose. 

 

The Supreme Court noted it was well settled that a legislative body having the power of eminent domain has broad discretion in determining what uses will benefit the public and what land is necessary to implement those uses. “However,” it said, “the legislature’s discretion in this area is not unfettered.” The great weight courts give the legislative finding means only the courts will not overrule it unless it is manifestly wrong. Courts may consider the validity of the asserted public purpose and under appropriate circumstances may consider whether the purported public purpose is pretextual. 

 

In Kelo v. City of New London, 545 U.S. 469, the Supreme Court held that while the government may not take the property of one landowner for the sole purpose of transferring it to another private party, it may transfer property from one private party to another if the purpose of the taking serves a public purpose. In a concurring opinion, Justice Kennedy said the constitutional requirement that the public use be rationally related to a conceivable public purpose would not justify a taking that “by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits.” 

 

The court said it did not have to accept Justice Kennedy’s formulation to conclude that Kelo and the relevant Hawaii precedents supply ample authority to require the trial court to reach the pretext issue. On its face, the stated public purpose in this case met the public use requirements of both the state and United States constitutions, the court continued. The county’s taking resolution stated the existing north-south Mamalahoa Highway cannot handle the existing traffic volume and the proposed bypass would provide a benefit for the entire Kona region. Nevertheless, the county’s stated public purpose need not be taken at face value if there is evidence that purpose might be pretextual. 

 

Coupe argued the facts of the case established the condemnation primarily benefitted Oceanside.  Notwithstanding the county’s arguments to the contrary, it was not clear from the trial court’s findings and conclusions whether it in fact considered and rejected the pretext argument, the court said. The lower court concluded the second condemnation was for a valid public purpose because the resolution authorizing it did not refer to the development agreement and was passed by a county council with a different makeup from the body that approved the initial condemnation. 

 

That conclusion may have elevated form over substance, the court said. The trial court did not say Coupe had not made a clear showing that the use was of a predominantly private character or declare that notwithstanding any private benefit to Oceanside, the condemnation’s actual purpose was for a valid public use. Consequently, the court said, it would remand the case to the trial court to expressly determine whether the claimed public purpose was pretextual.

 

County of Hawaii v. C&J Coupe Family Limited Partnership, 119 Hawai’I 352, 198 P.3d 615 (12/24/2008).  

 

The opinion can be accessed at: http://www.state.hi.us/jud/opinions/sct/2008/28822.htm

 

Read Gideon’s Trumpet Blog on this case here.

 

The InverseCondemnation Blog discusses the case here.

 

 

The Hawaii Legal News Blog reported on the case here.

 

Special thanks to James Lawlor, Esq. of the Land Use Legal Report for the original abstract which appeared on 1/15/2009.  For more information about the bi-weekly Report, contact Jim at landlaw@verizon.net


Responses

  1. The roadway will be an immense benefit to the public, saving hundreds of hours of commuting time daily for residents of Kona mauka and south. Clearly there’s an elevation of form over substance involved here, though not necessarily by the trial court.


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