Appealing from the Third Circuit Court (Civil No. 00-1-181K), Richards contends that the Circuit Court erred in failing to award him statutory damages after the County attempted, but failed, to condemn Richards' private property.
HRS § 101-27, provides as follows, inter alia:
(Second emphasis added.)
Defendant allowed damages upon abandonment or dismissal of proceedings. Whenever any proceedings instituted under this part are abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant entitled thereto. . . .
The County attempted to condemn Richards' property twice. The County's first attempt to condemn the property failed, because it was found not to have a "public purpose" as required by the takings clauses of the state (Haw. Const. art. I, § 20) and federal (US Const. amend. 5) constitutions. However, the County's second attempt to condemn Richards' property succeeded.
Richards argues that the phrase "finally taken" under HRS § 101-27 speaks to a single condemnation action; therefore, he is owed damages, costs, and fees under HRS § 101-27 from the County's first failed attempt. The County contends that HRS § 101-27 applies to all subsequent attempts to condemn the same property; therefore, since it succeeded on its second try, HRS § 101-27 should not apply to its first failed attempt.
Oral arguments were heard by the Hawaii Supreme Court on Thursday, October 16, 2008 - 9:00 A.M.