2008-06-13_County_of_Hawaii_v._Coupe_Family_and_Robert_Nigel_Richards_-_Application_for_Transfer_to_the_Supreme_Court

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On July 27, 2007, during oral argument on a Hawaii Rules of Civil Procedure ("HRCP"), Rule 50 motion for judgment, counsel for the Coupes argued that there are "substantial differences"between Civil No. 00-1-181K and Civil No. 05-1-15K. (Page 50, S.R.O.A., 00-1-181K,VANT0032, and 05-1-15K, V.30/T0032.) On August 2, 2007, during the closing argument, counsel for the Coupes again took the position that the 2.9-acre parcel prayed for in Civil No. 00-1-181K is substantially different from 3.348-acre parcel prayed for in Civil No. 05-1-15K (Pages 78 and 79 of the S.R.O.A., 00-1- 1814,V43/T0015, and 05-1-15K, V.30/T0015.) On September 27, 2007,the trial court entered its First Amended Findings of Fact, Conclusions of Law and Order wherein it: (1) denied the County's request for condemnation in Civil No. 00-1-181K on the grounds that"County Resolution 266-00 illegally delegated its power of condemnation,through the Development Agreement,to a private party, 1250 Oceanside Partners, and therefore did not have proper public purpose"(page 46); and (2) granted the County's request for condemnation in Civil No. 05-1-15K on the grounds that"there was a valid public purpose in Civil No. 05-1-15K" (page 49)because "County Resolution 31-03 did not refer to the Development Agreement"and"stands independently from the Development Agreement" (page 43)and"the final determination of the Mamalahoa Bypass Highway remained with the County of Hawaii Department of Public Works (page 25).114 (R.O.A., 00-1-181K, V.41/00507, and 05-1-15K,V.27/01031.) 4 The opening brief at page 3 incorrectly states that the trial court found that the proposed taking in Civil No.00-1- 181 K"was not for public use, but for Oceanside's private benefit." The trial court never found that the Bypass was for Oceanside's private benefit. The trial court found that regardless of the significant public benefit to be derived from the Bypass,Resolution 266-00 was not supported by public purpose because the decision to condemn was improperly delegated to Oceanside in the Development Agreement. (R.O.A.,00-1-181K,V.41/00507,COL 1178- 80,and 05-1-15K,V.27/01031,COL 1178-80.) Thus,once Resolution 31=03 directed condemnation independent 4