2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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On October 10, 2000, the trial court issued an Order Putting Plaintiff in Possession in Civil No. 00-1-181K. 1stAmd.FOF¶65 (R.O.A., 00-1-181K, V.41/00507 and 05-1-1$K, V.27/0103 1). (R.O.A., 00-1-181 K, V.1/00004.) On February 21, 2002, the County issued final subdivision approval for the Bypass that identified the specific Coupe parcel needed for County approved plans for the Bypass as comprising an area of 3.348 Acres. Exh. D-119; Exh. R-420. On December 11, 2002, the Court entered an order in Civil No. 00-1-181K staying the order of possession until final judgment. Exh. D-126. (R.O.A., 00-1-181K, V.5/00079.) The trial court stayed the possession order on the grounds that there was a genuine issue of material fact as to public purpose related to the validity of the Development Agreement.5 id. On January 23, 2003, the County Council adopted Resolution No. 31-03, authorizing the County to initiate a second eminent domain proceeding for condemnation of the Coupes' property for the Bypass. Exh. J-241. Unlike Resolution 266-00, this resolution did not reference the Development Agreement and instead the County Council determined that the Bypass will provide "a regional benefit for the public purpose and use which will benefit the County." Id. Also,the trial court found that by 2003,the"County realized that the Bypass required more land than Civil No. 00-1-181K and County Resolution 266-00 was attempting to condemn." 1stAmd.FOF¶86. (R.O.A., 00-1-181K,V.41/00507 and 05-1-15K, V.27/01031.) Therefore, Resolution 31-03 sought a 3.348-acre parcel as compared to the 2.9-acre parcel sought in Resolution 266-00. On January 28, 2005, the County filed its second condemnation action against the Coupes in Civil No. 05-1-15K. Exh. J-242. Resolution 31-03 and the January 2005 Complaint both 5 See 1stAmd.FOF 65-72 (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031); See also 7/11/02 transcript(R.O.A., 00-1-181K,V.6/T0002); 9/5/02 Order Amending Order Granting County of Hawai`i's Motion for Partial Summary Judgment as to Defendants/Counterclaimants' Sixth and Seventh Affirmative Defenses and First Claim for Relief Asserted in the Answer and Counterclaim Filed January 24, 2001 (R.O.A., 00-1-181K,V.3/00056); 12/10/02 transcript (R.O.A., 00-1-181K, V.6/T0003); and 12/11/02 Order Granting Defendants'/Counterclaimants' Motion to Vacate Order Putting Plaintiff in Possession,or in the Alternative for a Stay on the Order Putting Plaintiff in Possession Until Final Judgment Filed November 27, 2002 (R.O.A., 00-1-181 K, V.5/00079). 5