A Waipahu Burger King, a Kalihi 7-Eleven and an Ala Moana pool supply store are among 189 properties the city may need to buy to make way for Honolulu's planned $3.7 billion elevated commuter rail system.

Some landowners in the path of the new rail line, who may have little choice but to sell to the city, are not pleased with the potential eviction and complain that the process so far has left them in the dark.

The city, which has budgeted $70 million to purchase land needed to build the rail system, will offer property owners fair market value for their land based on an appraisal. That could prove controversial as some owners challenge the appraised value.

Mayor Mufi Hannemann hopes to begin construction on the 20-mile mass-transit system linking East Kapolei to Ala Moana late next year, with train operations beginning in phases between 2012 and 2018.

Under current plans, 89 commercial locations, 87 government or utility-owned properties and 13 residential properties could be acquired whole or in part.

A document listing the locations of these properties has been available on the city's Web site for more than a year. However, finding that list is not easy. As a result, many landowners and businesses may be unaware they're in the path of the transit project.

That's the case with the owner of land under a Kalihi 7-Eleven store at the corner of Dillingham Boulevard and Mokauea Street. The city is considering putting a train station nearby, which could result in the loss of 36 feet of that property's Dillingham Boulevard frontage.

"We weren't aware of that," said property owner Michael Kam. "Obviously there are some bad things and good things about (the train station), but 36 feet seems like a lot of property to be taken away."

Land owners that may be affected by the transit project will be notified before the release of a draft environmental impact statement later this summer, said city spokesman Bill Brennan. The city already is notifying landowners about potential right-of-way issues when they apply for building permits.

That effort appears to have failed in at least one instance.

Steve Johnson, general manager of California-based Kazi Foods Inc.'s Hawai'i operations, said he was not aware that the city may require 36 feet of frontage at a new Burger King planned for the corner of Mokuola Street and Farrington Highway in Waipahu.

Kazi, which operates Hawai'i KFC and Burger King restaurants, has worked with city officials on the restaurant's plans for months. However, city officials never mentioned they may eventually need part of the restaurant property's frontage, Johnson said.

"They've seen a schematic drawing of our site plan before we signed a lease for that property so, if they've known about that in the last six months, they would have made us aware that they're going to need a portion of it and to my knowledge they have not," he said. "They better not surprise me."

AWARENESS NEEDED

The Department of Planning and Permitting should tell applicants about the potential impacts of the transit project before giving out new permits, said City Council member Gary Okino. That could relieve the city of some future liability, he said.

"The people that give permits should be aware of" these right-of-way issues, Okino said. "It's not only for (the property owner). It's for us, too, because there could be some added expense to the city."

Early and frequent discussions with property owners and others could aid acceptance for the project, said Sen. Clarence Nishihara, D-18th (Waipahu, Pearl City, Crestview).

"To me, the earlier you have a discussion the better," Nishihara said. "If you put it in, and people feel like it's already a done deal — they're forced to make changes — then you're going to have even greater resistance."

Under current plans, the property acquisition process won't begin until the federal government approves the project's environmental impact statement, the city said. The city hopes that approval will come sometime in fall 2009. That would allow for groundbreaking on the project's first phase, which would connect East Kapolei to Leeward Community College.

One of the main reasons for starting construction on the 'Ewa end is to avoid right-of-way acquisition issues during the project's early stages, according to Jim Van Epps, project manager for Parsons Brinckerhoff, which is the city's largest transit contractor.

In the 'Ewa area, "the parcels are available or should be readily available to us to get the construction going easy," Van Epps said during a recent city-sponsored radio show. "We're not dealing with a lot of residential and commercial areas that are side by side by side that are going to take so many years for us to acquire in order to get the length of property that we need."

In an attempt to minimize the project's land requirements, the city plans to build the elevated, approximately 26-foot wide guideway within existing street rights of way and on government-owned land. However, the guideway, and its 50-foot wide stations, will still require the acquisition of various private lots.

A DIFFICULT FIGHT

Fighting the city on property condemnation is not easy. Because mass transit serves a public purpose, there's little preventing the city from acquiring property needed to build it, said Robert Thomas, managing attorney for the Pacific Legal Foundation's Hawaii Center, which lobbies for property owner rights. The U.S. Constitution allows local government to take private property if there is a compelling public interest in doing so.

"Right now, it looks like the chances of a fight on whether they can take this land is pretty remote," Thomas said. "There's very little standing in the way."

Once the acquisition process starts, the city will determine the fair market value for properties and offer to pay owners that amount, the city said. If landowners refuse to sell, the city may condemn the property.

The key battles between property owners and the city will be over what constitutes fair value for the lands being acquired, Thomas said. That decision will hinge on when the property assessments are made.

"The critical piece in the puzzle is, when are we valuing this?" he said. "The owner could claim a higher valuation, if it's an earlier date, especially if it's a slightly declining market." However, "If our economy is going the way people think it's going, then property values are going down, which could benefit the city's acquisition prices," Thomas added.

Among the land scheduled for acquisition are several Ala Moana properties near Pensacola and Waimanu streets. One of those lots is owned by Jim Frierson, who operates Island Pool & Spa at 1169 Kona St. That property is valued at $5.2 million, according to property tax records.

That tax assessment excludes the property's potential development value, which would not be realized if the city forces a sale of the land, Frierson said. City plans to acquire the property have already affected its value, he added.

"By just having that piece of paper exist, that has destroyed the potential value of the property," Frierson said. "Effectively, you can't really sell the property. Nobody's going to buy a property that's going to be condemned."