County to use eminent domain in Kilauea

LIHU‘E — The Kaua‘i County Council voted unanimously Wednesday to proceed with the acquisition of 23.5 acres of property in Kilauea using the process of eminent domain.

The county plans to use the property to build affordable housing. The 7-0 vote in favor of adopting Resolution 2021-27 came after a lengthy discussion about Kaua‘i’s affordable housing crisis.

The council’s decision to use eminent domain to obtain the property comes after negotiations with the landowner, Leland Bertsch of B&D Properties, a North Dakota-based LLC, fell apart over the last two years.

Bertsch told The Garden Island that he valued the property at around $30 million — a price the county was unwilling to pay.

During the council’s meeting Wednesday, county Housing Director Adam Roversi said that the two parties were “so far apart that we’re not going to come to a negotiated agreement” to purchase the property by normal means.

Roversi stressed that the county “had no over-arching desire” to use eminent domain to acquire the property, but that it was necessary because of the inability to negotiate a price.

County Attorney Matthew Bracken told councilmembers that the process will proceed to court, where a fair market price for the property will be determined. There, B&D Properties will be able to dispute the necessity and legality of the claim.

Bracken noted that the property is currently zoned for agricultural use and will need to be rezoned through the county and state before housing can be developed on the site — a process he said could take one to two years.

Roversi pointed out that even though the property is zoned for agricultural use, there is no active farming or ranching taking place on the property and he did not believe there had been any since the dissolution of the Kilauea Plantation Company in the 1970s.

Councilmember Billy DeCosta praised the move to acquire the land using eminent domain, saying that the price of the property was effectively exclusionary to Kaua‘i residents. DeCosta said that the price of property on the island effectively locks out locals, leaving only wealthy off-island investors able to buy land on Kaua‘i.

“Large landowners, watch out,” DeCosta said. “Because we are doing what is in the best interest of our community. Locals cannot buy land today. How do we help them? This is one way to help them. Is Kilauea the only piece of property or the only one on the North Shore for residents to look out for? Wrong. We will look from west to north, and we will make sure that we have our community in the best interest.”

Councilmember Felicia Cowden took a softer tone, emphasizing that the county’s use of eminent domain was “not a predatory action.”

Council Chair Arryl Kaneshiro echoed her sentiment, pointing out that the county had used “every tool in the toolbox” to move forward with housing projects across the island, including at the Waimea 400 site and Lima Ola Workforce Housing.

•••

Kaleb Lay, reporter, can be reached at 647-0329 or klay@thegardenisland.com.​

61 Comments
  1. peter October 7, 2021 6:58 am Reply

    How many unused acres does the Depart of Hawaiian Homelands own on the east side of Kauai ? Enough residential lots to build over 1200 homes ! Why take a landowners land when so many homesites designated for Native Hawaiians are sitting unused ? Shameful !


    1. Will G October 7, 2021 1:23 pm Reply

      What’s shameful is you think it would be a good idea to steal Hawaiian land AGAIN!!


      1. Ashley October 7, 2021 3:38 pm Reply

        I know, right? You can really tell which comments are from locals and which ones aren’t. For shame


      2. manawai October 8, 2021 7:48 am Reply

        Interesting how you go right to the misassumption that “peter” meant the DHH lands should be used for housing for the general public. I choose to think he mean that if Hawaiians got homes on the lands that the Democrats have been failing to get Hawaiians onto for many decades, it would have a material impact on the number of houseless Hawaiians! This would reduce the demand for affordable housing on Kauai. But I guess it went right over your head.


        1. peter October 8, 2021 10:29 am Reply

          Exactly ! There are 1200 home sites available for eligible Native Hawaiians. But the County, State & Feds can’t find the funding to provide housing for those who are legally entitled to it.

          Creating housing for 1200 Native Hawaiian households will help ease the pressure on the demand for housing at least on that side of the island.

          No need to take someone’s land.


          1. Will G October 8, 2021 3:16 pm

            My apologies Peter. There were a couple ways to see your comment and I went the wrong way. Have a good weekend


      3. peter October 8, 2021 10:49 am Reply

        That is not what I was suggesting. Fund the DHHL first, prioritize building homes for eligible Native Hawaiians. Do that first then see if there’s still a need to take an owner’s land for workforce housing.


      4. Peter October 9, 2021 11:45 am Reply

        Takes a man with character to admit when they’re wrong. Respect !


  2. Sam G October 7, 2021 7:01 am Reply

    ‘“Large landowners, watch out,” DeCosta said.’ With this precedent I would advise ALL land owners to watch out.


    1. LJ October 7, 2021 9:39 pm Reply

      Why is that? You worried they might take a quarter acre lot with a single family dwelling(kauai average) and turn it into…a quarter acre lot with a single family dwelling?


  3. Kauai Ken October 7, 2021 7:08 am Reply

    If the land has been sitting with no farm activity since the 70s it begs the question which property tax classification are they paying? They (and everyone else like them should be paying the much higher “Investment property” rate, not the nearly free ag rate. This may fix Kauai’s budget problem


    1. manawai October 8, 2021 7:59 am Reply

      Kauai Ken, you should do some research before you embarrass your self again. The Kauai County ag tax rate ($6.75 per thousand of value) is over twice as high as the homestead rate of only $3.05 per thousand. The ag rate is higher than even the residential tax rate of $6.05. It’s all there on the County website if one merely takes the time to look at it. The much lower ag rate is for properties that ARE actively and continually farmed and which must report their farm production and finances to keep that rate.


  4. Kauai Ken October 7, 2021 7:10 am Reply

    If the land has been sitting with no farm activity since the 70s it begs the question which property tax classification are they paying? They (and everyone else like them should) be paying the much higher “Investment property” rate, not the nearly free ag rate. This may fix Kauai’s budget problem.


    1. Kerry R October 7, 2021 11:20 pm Reply

      Amazing that the Council would attempt to use eminent domain to buy 23 acres of land for ‘Affordable Housing’ in Kilauea – at the same time they’re bending over backward to help a Calif developer build luxury condos for tourists on 25 acres in Koloa.
      Really bad optics – someone’s palms are getting greased.


  5. Palani October 7, 2021 7:13 am Reply

    It doesn’t take a genius to figure out that the land owner was waiting for a large developer to make him an offer in order to build another Princeville-like development for tourists and off-island owners. It will be interesting to find out what the courts decide the land is worth. 23.5 acres is a lot of land. How many homes can be built on that? I suspect the price will come in at about $250,000 an acre instead of the $1.27M asked.
    Optionally, the county could start raising the property tax rate for agricultural lands held that are not being exploited. That would force holding companies to either sell or to bring agricultural jobs to the island.


    1. Ashley October 7, 2021 3:33 pm Reply

      Exactly! You know the land owner bought the land cheap back in the day, and he’s been sitting on it to sell to mainland developers for mega bucks. Guy doesn’t care about Kauaians, just wants to line his greedy pockets.


  6. VintageVNvet October 7, 2021 7:31 am Reply

    This type of eminent domain usage has been declared unconstitutional over and over.
    Not denying the need for affordable housing at all, that certainly IS needed…
    Likely to cost us a ton more than other approaches/techniques for housing.


    1. manawai October 8, 2021 8:05 am Reply

      Sadly, Vintage you’re are incorrect. For example, try Googling the Kelo v. City of New London case. The Supreme Court has expanded the definition of public purpose to mean higher tax revenue. That is a 180 from being declared unconstitutional.


  7. kauaiboy October 7, 2021 8:03 am Reply

    I support our Councilmembers in this move.

    1. There is plenty of other ag-zoned property lying dormant. Perhaps this will be a kick in the pants to motivate owners to establish real agricultural uses on properties they control.

    2. The location is the most sensible, cost effective place to expand an existing town in an area which is desperate for affordable housing. We need housing opportunities for local working folks, not wealthy mainlanders, be they wannabe residents or second homeowners.

    3. Mr. Bertsch values the property at around $30 million? Get real. As an ag-zoned parcel it yields the right to have 5 “farm dwellings’ (read gentleman wannabe farm mansions) and 1 guest house. After infrastructure is in place and those 5 units were put into a condominium form of ownership, which are both costly procedures) those 4+ acre parcels would be worth about $5 to $6 million dollars at today’s prices. My bet is that an honest appraisal for the current value of that land in its current state and current zoning will come in at $5 million or less. Sorry. Mr. Bertsch. Had you negotiated fairly and closer to the actual current value, you might have done far better.


    1. Ashley October 7, 2021 3:49 pm Reply

      I agree. This landowner seems money hungry to me. Would’ve sold to a wealthy developer and rezoned the ag land anyway. Instead of affordable housing, housing would ended up being built for wealthy non residents. A problem we have enough of as it is. People complain about the homeless problem and yet complain even more when the county tries to manage it. Affordable housing isn’t free or poor housing like some suggested yesterday. In Hawaii, affordable is 300,000-500,000 dollar homes. Still expensive, but at least within reason to local working families, as opposed to $700,000-900,000 homes now.


    2. kauaiboy October 8, 2021 7:21 am Reply

      Upon re-reading my post, i feel I may have made a confusing statement.

      After infrastructure is in place and those 5 units were put into a condominium form of ownership, (which are both costly procedures) those 4+ acre parcels would be worth about $1 million to $1.1 million, or $5 to $6 million dollars for the entire property at today’s prices.

      And would Mr. Bertch get a zoning change approved by the Planning Commission? Not a chance, and for good reason.The County would be gifting Mr. Bertsch millions of dollars for what? So that he, or some developer buyer, could develop another princeville? That is the last thing we need on Kauai.


      1. Sam G October 8, 2021 10:40 am Reply

        Using your logic every larger lot which could accommodate another house should be subdivided, the excess land seized, and taken by the County in the name of building affordable houses. From there you could do as other Marxist countries have done and start moving people into other peoples’ homes, if those home are deemed larger than necessary for the number of people registered to that address. You do seem like an smart person, and while the kind of land seizure is messy I feel better knowing we have an intelligent person such as yourself to oversee our path to utopia.


  8. behappy October 7, 2021 8:33 am Reply

    No one is safe from the 7 as they just told everyone. Yet ir’s ok to bring in hindreds, maybe thousands, of new residents to quaint Kilauea town. It will never be the same! How many units can you get on 20 acres? Is that much land really needed? Why not give the owners a break and take just what you need for a reasonable amount of units? Or why not use your money in Lihue where facilities are available to accommodate a huge new population?


    1. kauaiboy October 8, 2021 7:44 am Reply

      Let’s see. On 23.5 acres taken by eminent domain, you could see about 80% used for house lots and 20% used for roads and utilities. That’s 19 acres for house lots. An acre is 43,560 square feet. 19 x 43,560= 827,640 square feet for house lots. At 8000 square foot house lots, that would be 103 house lots. Do you not believe that there are 103 hard-working “low income” families who deserve a shot at owning a home (with strict restrictions on resale capability? Look around Kilauea alone. Hundreds upon hundreds of people are crammed into homes with 8 to 15 residents (and at least 4 or 5 vehicles) . And that is just in Kilauea. Look island wide and there are thousands of “low income” families who would love an opportunity to buy a house lot at a reasonable cost.

      If you feel that there would only be 103 “lucky ” recipient home lot owners, lets build affordable apartment units and increase the total to 200 or 250 “lucky” recipients. At an average of 5-6 occupants per house, you have added a maximum of 1500 residents, of which maybe 700 could be added to the labor pool. There are jobs available for each and every one of them right here on the North Shore!

      If you feel that 1500 “lucky” residents is unfair, use half the land to build a North Shore High School.

      All of you with your panties in a twist about eminent domain should be realistic about community needs, the ideal site for Kilauea town expansion, and about the price which should be negotiated with Mr. Bertsch.


  9. Joe Public October 7, 2021 8:54 am Reply

    At least I now know what 7 never to vote for again. Before taking other peoples property, give up your own homes first!


    1. LMat October 7, 2021 1:40 pm Reply

      And there-in lies the conundrum…
      You can’t “give up” your home if you never had the chance to own one in the first place.


    2. LJ October 7, 2021 9:58 pm Reply

      Obviously a mainland based land holding company sitting on defunct ag-zoned land that hasnt been used in decades is exactly the same as taking peoples homes… Get a grip. This was a land-speculation move that failed. Real estate speculation is the whole reason no one can afford a home.


  10. Welp October 7, 2021 9:23 am Reply

    Unreal. Here we go folks. For community planning left the county looking bad. So in order to save face they’re taking someone’s property to build subsidized rental apartments. Very disappointed. Whos to say they won’t “need” your property next.


  11. Marie October 7, 2021 10:11 am Reply

    Mixed feelings. The county needs to purchase land for affordable housing, but I hate eminent domain was used on anyone. But I truly hope housing is built to sell to working residents who have to pay back any subsidy back to Kauai if they ever resell. Residents need to be able to stay and live on Kauai and keep Kauai a thriving community. And a mix of some affordable rental apartments for low income or lower income earners. We need to stop more low income people from becoming homeless in the first place.


  12. Makani B. Howard October 7, 2021 10:52 am Reply

    Worst decision EVER! The council has lost their minds!

    You can do this for something that EVERYONE in county will use, but not just a select few.

    Shame on you!


    1. kauaiboy October 8, 2021 3:14 pm Reply

      Just a select few?

      Maybe 1200 new Kilauea residents, 600 new workers for the North Shore, 400 North Shore business owners to benefit from an increased labor force. Not to mention a happier populace. That is a whole lot more than “just a select few”.

      That said, the Realtors are probably circling. Commissions on sales of affordable houselots or apartment units should be capped at 1.5%. .5% for the listing broker and 1% for Realtors representing the buyers. Consider that as “giving back to the community” from which Realtors have garnered huge commissions for sales of inflated housing choices.


  13. Kelly October 7, 2021 11:24 am Reply

    Kauai County Council is doing what is best for our people, and the land owner should have negotiated in good faith. He doesn’t need $30,000,000, and he will still end up being paid more than the land is worth. We have people here, now, in the community who can make good use of that land. Now let’s make sure that the housing we create is useful and beautiful.


    1. Ashley October 7, 2021 3:52 pm Reply

      You’re right. I’m sure many locals feel the same way. I sure do.


      1. USAF Brat October 8, 2021 10:14 am Reply

        Asley, you werent even born yet to be able to comment on Grove Farm. After all lOOk who is the council chair, connect ALL the dots.


        1. Ashley October 8, 2021 1:21 pm Reply

          UFF Brat, Doesn’t matter if I was born or not. Do you know my age? Grove farm gave plenty land, shoots, the land the community college is on was gifted by Grove Farm. The adolescent treatment facility built not long ago was gifted to the county from Grove Farm.


  14. KauaiEd October 7, 2021 11:38 am Reply

    Help me understand something. Just recent news there was what, 400 acres on the west side given back to the public? I looked at the planned use and there was like a dog park, shooting range, skate board park, walking paths, and other non-housing uses. it is somewhat odd in my opinion that this land wasn’t predominantly planned for housing.


    1. Ashley October 7, 2021 3:54 pm Reply

      They already have affordable housing set up for the west side. They have for Lihue, Poipu, Kapaa. North shore shouldn’t be kept from having affordable housing options for residents there as well.


  15. KauaiFarmMan October 7, 2021 1:59 pm Reply

    Typical tyranny of our local politicians. There’s not enough state land to develop? Grove farms doesn’t have enough land to spare? Eminent domain laws were not made for this purpose. This wealthy landowner will fight this in the higher courts costing us tax dollars and the county will lose. This is a shameful abuse of power. Stealing land won’t fix this housing crisis. There’s no such thing as affordable housing anymore. Look at construction material cost. Look at the lack of skilled tradesmen we have on island. No one is stopping building mega mansions that they they’re getting paid top dollar for to build charity projects. When you look at the numbers it is logistically impossible to build homes on Kauai in the current market to make them affordable to the wages paid here. Our leaders did this to us by stopping development for so many years , driving home prices sky high. Now post pandemic, construction material and shipping costs make the idea of affordable housing a pipe dream.


    1. Ashley October 7, 2021 3:56 pm Reply

      Grove Farms has donated plenty land already. They’ve at least attempted to pay their due to the local community. What has this landowner done?


  16. Hirondelle October 7, 2021 3:17 pm Reply

    If land is being condemned for the public good, why has the rotting hulk of Coco Palms been left all these years? While we’re pondering that, we should inquire if this 23+ acres and its housing are going to “sunset” from “affordable” to “bidding war” in ten to twenty years?


  17. Kauai Girl October 7, 2021 4:09 pm Reply

    To Will G – I don’t think Peter is suggesting we take Hawaiian Homelands away from the Native Hawaiians. I would offer that Peter recognizes that there are so many in our Native Hawaiian community who need housing, that should be available to them. Native Hawaiians shouldn’t have to be on a decades long waiting list. Give them the housing they deserve and that will help address a good portion of our housing shortage.
    Looking back, I’m surprised that no one remembers this land was once offered as a housing development for the Kilauea community, and the Kilauea community turned it down. I went to the meetings. Kilauea did not want more housing. It would ruin their small town image. The traffic would be terrible. They couldn’t / wouldn’t look to the future and think about making housing attainable for their children, and their children’s children. Short sighted.


    1. peter October 8, 2021 10:43 am Reply

      You are absolutely correct. I think it’s shameful that the County does not prioritize funding housing for eligible Native Hawaiians on land which is already set aside and buildable. There are 1200 homesite available around Anahola. While I understand that workforce housing, (sometimes occupied by transplants) is important, I believe that taking care of Kanakas should be a much higher priority !


  18. Daniel October 7, 2021 4:54 pm Reply

    Abuse of power, plain and simple. And the fact that council members are telling other landowners to “watch out” as if owning land that you bought and paid for is a crime and the county can punish you by stealing your land. Pathetic. There’s so much wrong with this. Hawaii has one of the highest percentages of land owned by the state in the country; use your own land. Offer to buy if you must, but if a guy says no the answer is no. He doesn’t need a reason. And it’s especially absurd that they would offer way less than the land is worth even as ag land, but then pay a “fair price” at that rate knowing they will conveniently fast track a zoning change upping the value immeasurably. It’s not the same rules that citizens live by. For that matter, it is not government’s job to provide housing anyway, just allow an environment where the private sector can work rather than threating to steal people’s land, county council!


    1. Sam G October 8, 2021 10:24 am Reply

      It is the government’s job to provide housing if your government is socialist, and since you live in a deep blue communist state…


  19. Patriot October 7, 2021 5:12 pm Reply

    The county/state/federal govt already owns 100’s of thousands of acres in Kauai and can’t manage to create an affordable housing project without stealing land from citizens. Very sad times we live in under this liberal communist Kauai govt!


    1. Will G October 8, 2021 9:49 pm Reply

      Fake Patriot!
      You hate this Rock? Move already!


  20. Ashley October 7, 2021 5:54 pm Reply

    That’s a good article, particularly for the commenter, Peter, who suggested Hawaiian Homelands give up their acreage. All those naysayers that think they know everything should read your linked article, maybe then they wouldn’t come off as being stupid. Aka peter.


      1. peter rath October 9, 2021 5:55 am Reply

        Nowhere in my comment did I write that the DHHL should give up its land. Maye you should upgrade your reading comprehension skills. And here’s a link to DHHL land use plans:

        https://dhhl.hawaii.gov/wp-content/uploads/2011/06/Anahola091907_small.pdf


  21. andrew October 8, 2021 8:48 am Reply

    Dang…they could have bought coco palms for $22,000,00. Shoulda woulda coulda. Or how about some imminent domain for another lane from Kapaa to Lihue? While we are at it, can we imminent domain some sewage treatment plant land? Like the 21st century kine that clean up the sewage really well and we have cleaner ground water and oceans?


    1. Ashley October 8, 2021 1:37 pm Reply

      They aren’t going to build affordable housing in a flood zone, genius. Building at the old Coco Palms is madness with all the erosion and flooding taking place whenever it storms. No one wants to build near there.


  22. behappy October 8, 2021 9:04 am Reply

    Would someone give me an update on the affordable housing in Hanamaulu? How did that work out?


  23. That Lady October 8, 2021 11:00 am Reply

    Wait…they can just take peoples’ land now??

    That is insane. Everyone with two brain cells to rub together will leave.

    Communism/socialism never works. Everyone ends up starving.


    1. Ashley October 8, 2021 1:28 pm Reply

      Yes, please do! All of you mainlanders moving to Kauai and displacing locals can leave. If you haven’t noticed, most of us don’t want you here anyway.


  24. SimpleSimon October 8, 2021 1:25 pm Reply

    Ok… 45 comments at the time of reading this and yes, eminent domain and housing are both complex issues. But not ONE comment suggesting the County after 30+ years would exercise eminent domain over the rotting corpse of what once was Coco Palms? Just sayin…


  25. Some people's kids October 8, 2021 9:27 pm Reply

    Decosta owns 10 acres. Kaneshiro owns even more. They donating any? I think the land owner will win in court and tax payers will be out a few mil for lawyers fees and back to the drawing board. Decosta tends to always talk about the Robinsons when he mentions land owners but never talks about Grove Farm. Because he has a Grove Farm lease. He forgets that his brother has Robinson housing at dirt cheap rent and that the Robinsons provide around 300 houses for west side residents at cheaper rent that you can’t beat anywhere. But Billy hates the Robinsons since he and two others rustled a Robinson cow and since then he has been banned from their land. He’s on a war path now.


  26. nobody October 9, 2021 8:26 am Reply

    This Kilauea parcel of land is perfectly placed for housing. Bike and walk to the new town center. No car needed!!!! It’s really an opportunity to create the type of growth we need. I’m in favor of apartments like the ones next to the Princeville fire station. Create some usable open space within the development.
    This could be an example for the rest of the island.


  27. KauaiFarmMan October 9, 2021 9:00 am Reply

    Why don’t we take the council members property’s and use them for affordable housing.
    How can these tyrants justify taking land away from a private land owner when there is 100,000s of acres of state land, Hawaiian homelands, and Grove Farms land to use . All of these council members should be removed from office for this gross over reach of power. Absolutely sickening.


    1. Billy de cost us October 9, 2021 1:53 pm Reply

      I agree. I am baffled that all 7 voted in favor to force the sale of a private citizens property. It sets an extremely dangerous precedent. Where as in the future you have something desirable to the government or lobbyist in tight with gov. They can and will take it. Maybe we need those 1000 acres billy leases for 100$ a year from grove farm. Must be nice. Or Luke evslins families compound. Sure could use some extra housing over there. How about kaneshiros acreage on the Southside. These guys is all hypocrites and bs politicians.


    2. Sam G October 9, 2021 3:32 pm Reply

      The real question isn’t how these tyrants justify taking land, but why does the public keep voting people like that into power?


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