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HomeMy WebLinkAboutCOM 0434.008 1996-1998 ~ Bruce A. Anderson PO Box 473, Kurtistown, HI 96760-0473 o Phone (808) 982-9016 To: Hawaii County Council From: Bruce A. Anderson -resident property owner in Hawaiian Acres Regarding: Acquisition of 8 Road in Hawaiian Acres "t RECEIVED 71me----- RY----- Date__---- 77''1-------- Mr. Chairman, Council members, '=~~~"v c;;uncll The County is proposing to acquire 8 Road and short pieces of some others, all- connected to each other and made, by Ordinance, into one lawful parcel.. The method to be employed by the county in the resolution now before you is, upon analysis, both illegal and unconstitutional. There are four ways the County could acquire this land: l.) through voluntary sale by the owner. 2.) by gift from the owner, 3.) by forced sale through condemnation and 4.) by finding that the property has been abandoned to the public because the owner exercised no property rights for a very long time; this last is called "adverse possession" The County has elected to employ the fourth method listed here, adverse possession. It is so called because the person claiming the property is admitting to using the property as though it were his own and adversely to the recorded owners' rights and interest. The claim also means that the recorded owner offered no resistance to the use of the property and did not exercise any property rights for a very long time and has therefor in all fairness, "abandoned" the property. There is a statute providing for how to do this in Hawaii when the property in question is a road. The manner in which the County intends to apply the statute is contrary to its meaning. The statute requires that there have been "no act of ownership" but the proponents of this Ordinance have read "no act" to mean only "blocking or gating for at least twenty four hours". 34.08 ~ y11e loo. ~n~~-'~ Itet. ?oi 3 199 Ret. Date SEP ~ . . Bruce A. Anderson Of course blocking or gating for twenty four hours would be an act of ownership, but if the makers of the law meant only those words they would have written them in instead of using the phrase "no act of ownership". But they did use that phrase, simply and plainly because they meant to include a very large number of "acts" of ownership. Next, the statute requires that the absence of "acts of ownership" be continual for five years. This was written in 1955. In I978 we passed a constitutional amendment forever removing from the legislature the power to set the time limit for abandonment to an adverse possessor, and we set the time limit at no less than twenty years. (Art XVI section 12) Today any statute setting the time for successful acquiring of property by adverse possession should be read to mean "no less than twenty years". The claim that the county can take this land after five years is wrong. In that same constitutional amendment we limited the amount of real-estate that an adverse possessor may claim successfully to five acres. The parcel the County is claiming has an area of thirty four acres. Since 1978 any claim to title to more than five acres by adverse possession is contrary and repugnant to the Hawaii state constitution and will not be honored by the courts. For all of these reasons the move to acquire the road through the abandonment theory should itself be abandoned. The time limit is wrong, the amount of property to be taken is too great, and the requirement that there have been no acts of ownership cannot be met. If the Council is quite certain it wants to acquire this road then it should proceed by negotiation or condemnation, and not by this proposed Ordinance. Sincerely, Bruce A. Anderson 0