2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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14 THE COURT: Is seeking. 15 MR. KUPCHAK: Half an acre is different. 16 THE COURT: And you say it's a substantial 17 difference. 18 MR. KUPCHAK: Twenty percent difference. The Coupes have never retracted these statements. (S.R.O.A.,00-1-181K, 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)."7 (R.O.A., 00-1-181K, V.41/00507, and 05-1-15K, V.27/01031.) Regarding the abatement claims,the trial court concluded: Abatement 6. Abatement may be invoked where: (1)the party is the same in a pending suit, (2)the cause is the same, and(3)the relief is the same. Shelton Eng'g Contractors v. Hawaii Pac. Indus., 51 Haw. 242, 249 (1969). If abatement is invoked,the second action is generally the one that is 7 The opening brief at page 3 incorrectly states that the trial court found that the proposed taking in Civil No. 00-1-181K"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 ¶¶ 78-80, and 05-1-15K, V.27/01031, COL IN 78-80.) Thus, once Resolution 31-03 directed condemnation independent from the Development Agreement, the trial court determined there was proper public purpose. (R.O.A., 00-1-181K, V.41/00507, COL ¶¶93, 99, 101, 102, and 05- 1-15K, V.27/01031, COL 1193, 99, 101, 102.) 8