Amidst the sound and fury regarding the Coco Palms developers, the County of Kauai should pause and consider what it will cost and what we will lose by taking the Coco Palms property by eminent domain. The law is that private property cannot be taken without just compensation (Constitution Amendment V). What might be just compensation re: Coco Palms property (hereafter referred to as “CCP”)?
First, the value of 49 acres of CCP. The current appraisal as of June is $42 million.
Second, there has been extensive litigation against the development in the last two years.
A) Two young men, Noa Mau-Espirito and Kamu Hepa, alleged through a pala pala sila nui (royal patent) that they had rights of ownership of the ahupuaa of Wailua (which includes CCP).
Their announced goal “… get all families with royal patents in Wailua back on their land.” (TGI Oct. 30, 2017). They filed a claim for $200,000,000 against Kauai County. (TGI, March 9, 2018. A frivolous claim.) They filed a quiet-title action against CCP in 2018.
B) On March 30, 2018, the developers of CCP were sued in federal court of the Eastern District of Virginia for violation of the Endangered Species Act and two other claims.
C) In 2018, concerned Hawaiians objected to the state Department of Land and Natural Resources assigning a leasehold of 20 CCP acres to Coco Palms Hui LLC, owned by Chad Waters and Tyler Greene.
The cost to defend or prosecute all these claims is in excess of $315,000. This litigation cost was necessary to clear title to CCP. Cost of protecting title is a proper claim for “just compensation” in an eminent domain proceeding.
It should be noted that Greene’s defending title ended any royal patent claims to other Wailua land beside CCP and any claims to $200,000,000. Mau-Espirito and Hepa are appealing Judge Michael Soong’s decision. The federal lawsuit is still ongoing, but meaningless. These lawsuits have prevented the issuance of title insurance until three weeks ago, which has prevented funding the project.
Third, asbestos and remediation. Without any help from the county, CCP has paid out $4 million to clean up asbestos and put the existing structures into a buildable condition. This remediation effort and asbestos cleanup would be a proper claim for “just compensation.”
Fourth, Waters and Greene have paid out in taxes, fees, road and site improvements some $948,000. Some part of these costs are benefits to the property and may be claimed as “just compensation.”
Both the mayor and Gary Hooser want a cultural center at CCP. Is that a proper public purpose for the exercise of the county’s power of eminent domain? Maybe, but what is the cost to pay for a cultural center?
A buildout for CCP is estimated between $170 million to $300 million. It would be safe to say that the cost of a cultural center is in the millions. In 2013, Greene created a Kauai Cultural Committee to plan out a cultural center at CCP. It would feature all the cultures Hooser mentions, including classes in the Hawaiian language and a kalo farm (Hepa and Mau were offered land to farm kalo but they refused the offer). CCP will lease land needed for $1 a year and also aid in the establishment of a cultural center.
Hepa and Mau-Espirito have cost Greene $3 million in interest owed to a lender. Recoverable in an action for eminent domain? Uncertain but possible.
Why my interest in CCP?
Greene approached me when I served as president of the Kauai Historical Society with an offer of space for the society, at no cost, in the rebuilt Coco Palms. This would re-establish the historical presence of the society at CCP.
I promised my successor at the society, Bill Wilcox, that I would try to make it happen for the po‘e of Kauai, which means all the people of our island.
In view of the troubles the developers have experienced, they should welcome an action in eminent domain. But they are foolish and want to bring back Coco Palm to its former glory.
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Bill and Judith Fernandez are residents of Kapaa.
