HomeMy WebLinkAboutCOM 0072.001 2002-2004 JAN-06-03 1T:1d Fran:DAtpN KEY LEpV6 KUPCNAK NASTEkT 6085332242 T-361 P.4o,2~./05 JJ~oh~a-2x14
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Gully Council
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DAMON KEY LEONG KUPCHAK HASTERT
A lAW CORPORATION
pJ fFtLiC T CTiMONY IN OPPDCITION TOR SOLUTION'il 03
rowm~nnli.,n 1. Rcaolution 3I 03 is a misplaced and frivolous attempt to ignore the illegality
of the Development Agretment between County and Oceanside.
7400 Ywuh, corer
,ml n~llw~a~ Count a fo 09ed resolution ie un recadented in this urisdiction and
Honolulu, Illlxwli 9E01'.•lagn Y~ P P P 7
elsewhere. County seeks to bring yet another action to condemn a property that ie the
Talgrhow IMt16A'.~AO+1 subjwt of an existing condemnation action (Civ. No. 00-1-0181IC). The same issues
F{nimik ldpg1517~214!
PaAtminlu4PnarulAAwMntfnn ere involved. Accordingly, the proposed resolution serves no purpose other than
wkh,ne:_rwr.n4w4rbewr<om to create more work tior lawyers.
NVron g. gditel
cr. win v. Pursuant to the Development Agreement between the County and Oceanside
i,mewl^ which violates the law in many ways, including by delegating condemnation discretion
kdAlt.l `"`dm." and b assi ublic b' and im vement district laws, Oceanside has ills all
ara~drrohikh YP nBP rddirtg Pro $ Y
,~n ciumiav, leveraged the sale of property along the path of the `toad." At this point, Oceanside,
u~.vwq. w,un ooi Coaaty, owns the adJolning property. No plans have ever existed to condemn
wle v. Ni,t~
°„dnw. KH Oceanside's property. Indeed, the County cannot now acquire, and has no foreseeable
Mm 14n~ means of acquiring this property in the Rowe. It is ttnnugh the illegal Dovelopmrnt
~'t"' A eemont that Coun ho ea so link its ac uisition, County is attem ling to
cMgMy w. geple $i' tY P q p
rmrana.wlpaap condemn as isolated remnant in violation of the law. The court appears to have
s"""°"M'~'~'° already anticipated this sham attempt to ignore the central role of the illegal
Dtnu C.H L°°np
Dodd P. McCtuky Development Agreanent (Soe Attached Transcript).
f°ml'°C•MCwMnMU
ct6ini Filing another condemnation suit does not no to the issue ofthe le slily of the
4~;.n.n.~w., ga 8
x,gia.c sn,4n Development Agreomont, which is inextricably interwoven into the County's actions,
MAmc.vamm regardless of whether a resolution mentions the Development Agreement or not. It
Ns 1hn FNn
rwT~d y„~;a" appears that Oceanside's Highway is the equivalent of a fee paid to obtain zoning. Has
County waived its right to reimbursement from Oceanside for this acquisition? Flan
O1o°""' Oceanside waived its right to reimbwsement from the upzoning taxes? Is County
F.Owlr ter.,
"em im„n+ prepared to comply with the public bidding laws for construction on the Richards'
Rte"" T1mini° property'? Hoe anyone so advised the pubho of the true ooeW entailed in this request?
~An,:me .n wsma,ICdr,mhi;,
~"dm~~dMrx~wwr4„td Simply put, the legality of Counry's actions with respect to the Tichards'
u~wla d Comr4w
,IdnnAaf,n property are currently being resolved in court. Council should act prudently and allow
`y,s wdTr the system to take its due course without unnecessary sad more costly political
s }~rj ab sub
act to abuOdcf process claims, nand may have to
d fend tw sets of
ounterclairns
ran ' in a consolidated action.
erw~ding buWnnr cOcnn
wnddwrclA acceu In
wphiuicmd legal advice
end .rwPOmnl sen•.w~
tbmm. No, r
Ftile No.
Ref. To: C
Ref. Date JAN 0 7 700?
JAN-O6-03 iT:15 From:DAUON KEY LEONG HUPCNAK NASTERT 8085332242 T-361 P.03/05 Job-214
haws i i lawysrcom
DAMON KEY LEONG KUPCHAK HASTERT
Public Testimony in Opposition to Resolution 31 03
Page 2
II. Resolution 31 03 is ultimately futile.
Even acauming that bringing another condemnation suit,howavcr costly, for the
same property is not prohibited, because any action would involve the soma property
and the same issues in the pending condemnation proceeding, the dictaus of judielai
economy and the etronr policy of avoideace of multiplioity of auih to secure
consistent rulings would demandthat the resolution ofn"ascend condemnation action'
be consolidated with the pending suit. ,gg Lane Co v. Busch Dev..Inc., 662 P.2d 419,
42l (Wyo. 1983) ("A multiplicity of suits should not be allowed whert: justice can be
done in ono suit ~ Bolts v. Alts. Inc., 60 ECaw. 58, b0 (19'78) ("the rule against
splitting a cause of action is an aspect of Res,/udtcata and precludes the splitting of a
single cause of acrian or an entire claim either as to the theory of recovery or the
specific relief demanded. The rationale for the rule is to prevent a multiplicity of suits
and provide a limit to litigation. It exists to avoid hatassmtnt of the defendant,
vexatious litigation, and the costs incident to successive suits on the same cause of
action."). Hare, the same issue regarding the same property is currently being litigated.
This Committee should allow the judicial system to run its course.
In sum, bringing a separate action would be a waste of taxpayer money and the
Council's time, and may result in an increased damages award.
Respectfully submitted,
DAMO~N KEY LEONG KUPCHAK HASTERT
~"~1`''~
Keruteth R. Ku _
Attorneys for a Family
KRK:ds
Attachment
isssnasnu
JAN-O6-03 IT:16 From:DAA101Y KEY LEONG NUPCHAK HASTERT 6085332242 T-361 P.04/05 Job-214
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a Municipal ) CV. N0. 00-1-181K a
Corporation, )
)
Plaintiff, )
vs• ~
)
R088RT NIaEL RICI{ARDS, Trueta~ )
Under the Marilyn Sue Wilson )
Trust, et al., 1 ,
Defendants. )
) `
TRANSCRIPT OF PROCEEDINGS
Eefore the Honorable Ronald Ibarra, Judge, Kona
Division, presiding, on Tueeday, December 10, 2002.
--000--
DEFENDANTS'/COUNTERCLAIMANTS' MOTION TO VACATE ORDER
D'JTTINO PLAINTIFF IN POSSfi9SION, OR IN THE ALTERNATIVE FOR
A STAY ON THE ORDER PUTTINp PLAINTIFF IN POSSESSION UNTIL
FINAL JUDGMENT.
JAN-O6-03 11:16 From:OAagti KEY LEONG KUPCNAK HASTERT 606b332242 T-361 D Ob/:b :::-ra
~ S Pays 6
1 And that's where the Court is always concerned about whu 1 saying. From the administration of the County, we are
2 does the Court do, espoclally when the wall, go ahead. 2 prepared to So forward with a cepante condemnation aedon
3 MR. TAKASE: Your Hohar, l guess the defendants 3 aside from the development agreement io acquire Chia lest
4 ste saying that the devebpment agreement created the 4 pier of property.
3 public use. Our position is that is incorrect. The public 5 THE COURT: And is the County proceeding if,
6 use and publie need has ahvsya ban there. And it's been 6 assume Shpt scenario occurs, in other words I'm not
7 prior to this case being itlad. lt'a there oven now. The 7 saying itwill - that the development agreemen[ is set
g County is prepared if,1 guess, the development agreement 8 eaide and the County goes in for a condemnation, is the
9 is found to be illegal W do ahead and flls on their own a 9 County going into condermtalinn for the purposes because
10 stew condetrtnation aetiott, ] 0 they had a deal with Oceanside 1250, or buically for
1 I THE COURT: Watt. Hut the proceat now is the 11 public purpoae7
!2 landovmerta psyittg for the itmd. 12 MR. TAKASE: No. i think where you latow,l j
13 MR. TAKASE: At thfs point in lime, yea. 13 don't want to mix [ha two. i
14 Oceanside 1230, under the development agreement, is payin 14 THE COURT: Well, thane what you're telling me
l S for acquisition of the property. 15 that if the development agreement is set aaida, the County
I6 THE COURT: And Chic Court at that time when ! 6 can ga in condemnation without the development agroement, ~
17 denying or reconsidering the public purpose shkd, at 17 MR. TAKASE: Yes, your Honor.
18 leant there's a genuine iuw ofmaterial feat in its 18 THE COURT: And the question ] have is ~
19 recansidendon prior to the entry of ttnal judgmem, thu ] 9 notwithstandingthe develops not following the developer's
20 lht acquiH[IOn of [he property is for public purpose. 20 agreement, bur within tM dewbper'c aaresmen4 ie then III
2I That's the state of the record, right? 21 an agreement at least between the County and the developer
22 MR. TAKASE: Yec. And that's what I guars I'm 22 that the County would use its crmdenmetion powers if the ~
23 asying is that from the County's ride, wa have talked about 23 developer cannot acquire the property?
24 what would happen if the development agrccnxnt is thrown Z4 So whet I'm wying ts, notwlthctandtng the ~
25 out and this cue is set aside. And tfiafe what I'm 25 developrnant agreement, or what I'm uking is, being sa ~i
Paee 7
1 aide, is the County nevMheleas, quota, following the a
2 developer's agreement by going tnto condetrtnanan now? 1 condemn it jun because that's our agreetreht with
2 Oceanside.
3 Beuuu ifno6 why didn't the Camry condemn the property 3 Because if the Cautt Leta aside the develo
4 before the project wu developed, unless the road wan ptirettt
? 4 egreemrnt, there is no development agreement. Thane is no
5 necessary for the development of the project. 5 agreement between us and Oceennde anymore, gut the Count
6 MR. TAKASE: Wall your Honor, the way the 6 still recognizes the need for this road to be there. And
7 develapmens agresmrnt wac as up was that the County wanted ? this is the lest parcel to get the building dotty. We aro
8 this road. Oceanside 1250 did not some to the County
9 saying look, wt: went to build you this road. And es a 8 Going to go in, if we need to, with our own money to go in.
9 THE COURT: Ifthe develo mart did not occur
10 consequence of that, you will allow us to develop the 10 would the County have built that road? ~
l l propMy. l I MR. TAKASE: I think the Coum would have liked '
12 THE COITRT: Hut if the road wan rot an exadian, 12 to build the road. Practicall s akin no, we could noc
13 would the County have gaud the projen? 13 afford to build the road, y ~ &
14 MR. TAKASE: Ins unclear. That's what we asked 14 ']pIg COURT. And the Count would not have htdit
i S for; that's whet they agreed to. So if they came back and 15 the road without the 4evelopment rt thin time?
1 a said, no, we re not going to build $ at All, I don't know
t 6 MR. TA[KA$E; I drink m moat likelihood, no. It
17 what the County would have dons 17 would not have had the resources. It would not have done
18 THE COURT: laa4 then an isaua of the road
19 being quid pro quo: ]n exchmge for the permits and 1 S tt without the agreement,
20 allowing us to deveiop this property, we will build the ' 9 THE COUAT: And if them is no bypua road, the
~ 20 only access to the property is
21 road. 21 MR. TAKA5E: down Haleki'i.
22 MR. 7AIC4S?: Yec, ;t is. But at this point in
23 time i think what 14n trying to coy s that the County is 22 THE COURT: And would the County have approved
23 the subdivision if that only existing road is the access to
24 willing to go, still go forward oven ifthe development 24 the progeny
IS aareemem is sa ands. R'a're not going to po back in to qs MR. TAKASE: Yeu knew, again