2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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Oceanside is the developer of the project known as "Hokuli`a," sited on a 1550-acre parcel of land extending from the ocean to almost the Mamalahoa Highway. Hokuli`a's site straddles the boundaries of North and South Kona, County of Hawaii. Development Agreement, (Ex. A project map), Exh. J-45. The Coupes' property is located contiguous south to Hokuli`a. Exh. D-107 (5100, Site Map (Mamalahoa Hwy Bypass Road)). In January 1996, the County Council approved Ordinances 96-7 and 96-8 that primarily concerned change of zoning for the Hokuli`a project. Both ordinances provided, as conditions of approval,that Oceanside was to construct a bypass highway between Keauhou and Captain Cook ("Bypass"). The Bypass would need to cross lands owned by many landowners. As a result,the ordinances anticipated that the County might need to use its eminent domain power in connection with the construction of the Bypass. Exh. J-45 (Ex.s B and Q. On April 20, 1998, the County Council passed Resolution 244-98 that adopted a Development Agreement between the County and Oceanside that addressed compliance with the conditions of approval in Ordinances 96-7 and 96-8. Exh. J-45; J-314. ¶11(a) of the Development Agreement addressed potential use of the County's power of condemnation.' Exh. J-45. As interpreted by the trial court, the Development Agreement provided that, at Oceanside's request, the County was to condemn rights-of-way which Oceanside was unable to acquire through private negotiations. (R.O.A., 00-1-181K, V.41/00507, FOF¶30, and 05-1-15K, V.27/01031, FOF ¶30.) Starting in 1997, Oceanside and the County engaged in negotiations with the Coupes to obtain right-of-way needed to construct the Bypass through their property. Exh. J-142. However, despite lengthy negotiations, Oceanside and the County were unable to reach an Hawaii Long Range Land Transportation Plan Final Report(May 1998)pp. 24-32; Exh.J-380 (recognized the need, based on traffic safety considerations, for the Hokuli`a bypass); Mamalahoa Bypass Road Final EIS(1999); Exh. J-135 ("The fundamental public enhancement provided by the proposed project [Mamalahoa bypass] will be its contribution to helping relieve the congested regional transportation system." ; 2005 Hawaii County Council General Plan Ordinance 05-25) adopted the Mamalahoa bypass, Exh. P-7 Although not material to this appeal, contrary to the opening brief at page 6, 1stAmd.FOF$34 did not find that the Development Agreement attempted to relieve Oceanside of an obligation to acquire property for the Bypass. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) As noted earlier, Ordinances 96-7 and 96-8 established conditions of approval, as opposed to obligations. Furthermore, the two ordinances anticipated that the County might need to use its eminent domain power in connection with the construction of the Bypass. 3