Beach unit condemnation sought

The Maui News
Saturday, June 16, 2007
By HARRY EAGAR, Staff Writer

WAILUKU - The Office of Corporation Counsel has asked the County Council to consider acquiring the last unit in the Montana Beach condominium through eminent domain and condemnation.

The county is locked in court with Asghar Sadri, who claims in a federal civil rights lawsuit that he is suffering a loss of up to $20 million in being blocked from using his property. That does not mean he thinks his beachfront lot is, by itself, worth $20 million. He is claiming damages from being unable to use his property for the past six years.

Sadri's lawyer, Jim Fosbinder, was surprised by the eminent domain move Friday. He said he "has no idea" how Sadri would respond.

In court filings against the county, Sadri said that he does not want to sell to the county, as two other Montana Beach buyers did, but wants permits to build his house.

If a government body initiates an eminent domain taking, the landowner can resist or be cooperative. In the end, if the civil suit gets that far, a jury sets a value, whether the owner wants to sell or not.

Sometimes, an owner who is willing to sell will prefer to go through an eminent domain process, rather than negotiating a price, because it provides a neutral forum to establish a fair value.

However, this action is very far from that stage, according to Deputy Corporation Counsel Madelyn D'Enbeau, who submitted the resolution to the council. It does not ask the council immediately to approve a condemnation action but only to place it before a standing committee for discussion. At the regular council meeting Friday, the resolution was referred to the Policy Committee.

D'Enbeau said her office has also suggested Rosemary Fazio, a Honolulu lawyer with experience in eminent domain cases, to be hired by the county to handle the legal action, if the resolution is approved. Condemnation law is complicated and specialized, she says.

If the council does authorize an attempt to condemn the land, it is not clear what effect that would have on Sadri's suits in U.S. District Court. D'Enbeau said several lawyers have disagreed whether an eminent domain action would bring about a suspension of the lawsuit pending its resolution.

Fosbinder said even if the county proceeds with eminent domain, it "wouldn't have any effect" on Sadri's claims for past and present damages.

If the condemnation were successful, and the government took ownership, then that would stop of accumulation of damages, he said. But it would not erase the claim for damages since August 2001, when then-Planning Director John Min rescinded building permits and waivers that had been granted for the three-unit condominium.

Government cannot use its power of eminent domain except for a public purpose. In this case, the suggested public purpose is to provide "public park and open space."

The 5.5-acre Montana Beach lot is designated for park and open space in the county community plan for the area. But it is classified urban reserve, which allows construction of a residence.

The property historically was used as a lime kiln by the Hawaiian Commercial & Sugar Co., processing coral sand into a soil amendment for the sugar fields. It is adjacent to Baldwin Beach, which is provided to the county on a dollar-a-year lease from owner Alexander & Baldwin.

Fosbinder pointed out that the open shoreline in either direction from Montana Beach is not owned by the county, "although everybody acts like it is." A&B owns the adjoining land, including lots zoned agriculture, conservation and residential.

Maui County has two parcels: the 2-acre Paia Beach Park and an 11,500-square-foot residential lot utilized by the Paia Youth and Cultural Center.

If the county wants to buy more of the shoreline, Fosbinder said, it "could get 10 times as much" by leaving the Montana Beach lot alone and buying the A&B land, which includes 31 acres in conservation zoning and 3.5 acres on the shoreline zoned residential.

The county paid $6.4 million to settle other lawsuits involving two other buyers into the Montana Beach condominium. Sadri is the last of the buyers retaining an interest in the project as a residential condominium.