{"id":15962,"date":"2024-05-01T06:23:20","date_gmt":"2024-05-01T16:23:20","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=15962"},"modified":"2024-05-01T07:20:46","modified_gmt":"2024-05-01T17:20:46","slug":"judge-dismisses-case-brought-to-silence-complaints-about-warehouses-at-marconi-2","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=15962","title":{"rendered":"Judge Dismisses Case Brought to Silence Complaints About Warehouses at Marconi"},"content":{"rendered":"\n

On the morning of April 24, outside the courtroom of 1st Circuit Judge Jon Tonaki, the relief was palpable. Judge Tonaki had just granted Wayne and Tara Hu\u2019s motion to dismiss<\/a> a lawsuit filed against them six months earlier by companies associated with the developer of an agricultural condominium project at Marconi Point on O\u02bbahu\u2019s North Shore.<\/p>\n\n\n\n

Last October, RCA Trade Center and MP Unit 21 sued the Hus over a 50-page grievance letter<\/a> the couple\u2019s attorney, Peter Lenhart, had sent on their behalf to the developer\u2019s attorneys and various government agencies, including the state Department of Land and Natural Resources, the Honolulu Department of Planning and Permitting, and the USDA.<\/p>\n\n\n\n

The Hus own a unit at Marconi Point that is across from eight large agricultural warehouses the companies built on the far side of the 96-acre CPR. Among other things, the Hus\u2019 letter complained about the visual impact of those warehouses, alleged improper use of them, and the fact that they were being advertised as industrial spaces. <\/p>\n\n\n\n

\"\"<\/a>
The City & County of Honolulu argues that interior work on these agricultural warehouses, especially the construction of bathrooms, warrants a Special Management Area permit. Credit: Peter Fowler\/Endure Films<\/figcaption><\/figure>\n\n\n\n
\n\n\n\n

The letter also complained about off-road vehicles being allowed through the CPR\u2019s locked gates and onto the beach, unauthorized tree planting and boundary amendments, and the unpermitted conversion of agricultural structures on other units within the CPR into dwellings.<\/p>\n\n\n\n

The complaint and subsequent filings by RCA Trade Center and MP Unit 21, which own the units where the warehouses have been built, suggest that the Hus\u2019 letter somehow played a part in the companies\u2019 lender, North Avenue Capital, deciding to withhold withdrawals under their $7,883,000 USDA-backed loan, then later \u2014 after the lawsuit was filed against the Hus \u2014 find them in default.<\/p>\n\n\n\n

The companies sought from the court a declaration that the agricultural warehouses could stay and be finished as intended. They also sought an injunction preventing the Hus from \u201cinterfering\u201d with the companies\u2019 relationships with their lender and the government, as well as damages and attorneys\u2019 fees.<\/p>\n\n\n\n

The companies claimed the damages they incurred include costs associated with mitigating the effects of the Hus\u2019 allegations, \u201creassuring Plaintiff RCA Trade Center\u2019s lender, and otherwise confirming the propriety of plaintiffs\u2019 past and anticipated construction activities, both through the declaratory rulings sought in this lawsuit and otherwise,\u201d according to their complaint.<\/p>\n\n\n\n

According to the companies\u2019 attorney, they have \u201cbeen able to resolve the lender\u2019s concern, pending USDA consent to the loan modification. However, the delays have caused damage to Plaintiffs in the form of delays due to the loan modification, additional accrued interest and carrying costs, delays in preparing the warehouses for occupancy by future tenants, and increased costs associated with responding to and addressing Plaintiffs\u2019 lender\u2019s concerns.\u201d<\/p>\n\n\n\n

As of press time, no loan modification had been recorded with the state Bureau of Conveyances.<\/p>\n\n\n\n

In any case, whether the Hus\u2019 letter had anything to do with the loan freeze and subsequent default \u2014 and it\u2019s not clear that it did \u2014 Judge Tonaki found that it was protected speech under the First Amendment of the U.S. Constitution, as well as the Hawai\u02bbi Revised Statue 634G, also known as the Hawai\u02bbi Public Expression Protection Act.<\/p>\n\n\n\n

In sharing their complaints about activities at Marconi Point with government agencies, \u201cDefendants were exercising their constitutional first amendment rights and rights of any citizen. \u2026 Under 634G, the complaint should be dismissed,\u201d Tonaki said.<\/p>\n\n\n\n

Opposition<\/strong><\/p>\n\n\n\n

The Hus\u2019 motion to dismiss, filed in March, argued that the issues raised in their letter dealt with matters of public concern and were, therefore, protected under the First Amendment of the U.S. Constitution and HRS 634G.<\/p>\n\n\n\n

The companies, in their opposition to the motion, argued that the relevant parts of the letter dealt with the Hus\u2019 personal enjoyment of their property, not matters of public interest.<\/p>\n\n\n\n

\u201cTo shoehorn this case into the scope of Chapter 634G, Defendants now attempt to revise history and recharacterize their grievances as matters of public concern. To support this, Defendants attached several exhibits to the Motion to show that Environment Hawai\u02bbi<\/em>, Civil Beat<\/em>, and the Star Advertiser<\/em> have reported on some issues in the Letter. These articles, save for one regarding the warehouses, do not concern the issues in the Complaint, were mostly published after the <\/em>Plaintiffs filed the Complaint, and are irrelevant to the Motion \u2026<\/p>\n\n\n\n

\u201cThe Complaint is far narrower than the laundry list of grievances outlined in Defendants\u2019 52-page Letter,\u201d the companies argued. \u201cEach count [in the complaint] flows from a disagreement over the warehouses, the Declaration, and Defendants\u2019 private <\/em>concerns over the use and character of the Project by their neighbor. None of these issues are of public concern.<\/p>\n\n\n\n

\u201cDefendants point to an online article published on \u2018Environment Hawai\u02bbi<\/em>.\u2019 The article is titled, \u2018New Owner at Marconi Point Decimates Coastal Habitat for Native Bees, Birds.\u2019 This article has nothing to do with this lawsuit. First, the article speaks of actions of a new owner<\/em>, who is not the Plaintiffs. Second, the article has nothing to do with Defendants\u2019 concerns as the Letter does not mention coastal habitats for birds or bees.\u201d<\/p>\n\n\n\n

  (While the Hus\u2019 letter does not mention bees, it does list among its many complaints, \u201callowing people vehicular access to the beach areas for \u20184-wheeling\u2019 in sensitive environmental areas having nesting native birds and turtles.\u201d)<\/p>\n\n\n\n

Reply<\/strong><\/p>\n\n\n\n

\u201c[T]he Letter includes a mix of both personal impacts as well as many obvious public concerns. \u2026 Both public concerns and private concerns can co-exist notwithstanding Defendants\u2019 interest in maintaining \u2018quiet country living,\u2019\u201d the Hus\u2019 attorneys wrote in their reply. <\/p>\n\n\n\n

They continued, \u201cMany of Defendants\u2019 concerns set forth in their Letter as concerns the 8 warehouses are also concerns being expressed by DPP and its demand for [a Special Management Area permit] before they will proceed with further permitting request by Plaintiffs to obtain interior electrical and bathrooms.\u201d (DPP is the Honolulu Department of Planning and Permitting.)<\/p>\n\n\n\n

\u201cPlaintiffs would not have brought the instant lawsuit if not for Defendant\u2019s Letter and their interest in knowing that their Building Permits are valid. Plaintiffs admit that one of the strongest motivations for bringing the lawsuit was to show their private lender that their building permits were \u2018good\u2019. Plaintiffs claim there is only one article supplied by Defendants that has any relevance to the averments in their Complaint. However, there is substantial evidence of \u2018public concern\u2019 relating to Plaintiffs\u2019 warehouses including actions taken by DPP and in other newsletters, articles, t.v. programming, etc. Also, there is nothing that says that Defendants cannot be the first to raise an issue of \u2018public concern\u2019. \u2026 They can be the first to the starting line on a matter of \u2018public concerns\u2019. Someone has to be the first to \u2018Ring the Bell\u2019. \u2026<\/p>\n\n\n\n

\u201cWhen Defendants\u2019 letter went to the U.S. Dept. of Agriculture and questioned whether federal monies should be applied to fund the construction of warehouses being put to illegal use, that, alone, should also be a matter of \u2018public concern\u2019. \u2026 The issues of increased vehicular traffic, industrial exterior lighting, disposal of human waste in an area not served by public sewers, etc., and commercial and industrial activities on AG-2 zoned land, all are matters of public concern,\u201d they wrote. <\/p>\n\n\n\n

Dismissed<\/strong><\/p>\n\n\n\n

When it came time to argue the motion, Judge Tonaki was quick to point out that the Hus\u2019 motion to dismiss came long after the deadline to file such a motion had passed. That lateness was a problem, he said. And it was one pointed out by the companies\u2019 attorneys in their opposition to the motion.<\/p>\n\n\n\n

Lenhart, pointing to emails between himself and the companies\u2019 attorney Ross Uehara-Tilton, argued that the Hus had been lulled into thinking that they would be given more time to secure insurance funding for their defense. And under the law, a motion to dismiss can be filed outside the 60-day deadline after the initial complaint is filed, if good cause is shown.<\/p>\n\n\n\n

The companies\u2019 lawsuit was a SLAPP suit (SLAPP standing for Strategic Lawsuit Against Public Participation), Lenhart argued, adding that fundamental rights were at stake.<\/p>\n\n\n\n

If the motion were not granted, “First Amendment constitutional rights will be chilled or frozen,\u201d he said.<\/p>\n\n\n\n

Attorney David Abitbol, representing the companies, reiterated their argument that the relevant issues raised in the Hus\u2019 letter were not matters of public concern.<\/p>\n\n\n\n

But doesn\u2019t any citizen have a right to bring attention to matters they\u2019re concerned about, Judge Tonaki asked. \u201cThe fact that the [government] agencies were cc\u2019d forms the basis of the case,\u201d he said.<\/p>\n\n\n\n

Abibtol disagreed, arguing that it was the letter itself.<\/p>\n\n\n\n

Judge Tonaki also questioned the declaratory relief sought by the companies, noting that the Hus don\u2019t have any permitting power. \u201cHow are the defendants the proper party?\u201d he asked.<\/p>\n\n\n\n

Abitbol replied that the court could take judicial notice of the existing building permits and \u201celiminate any controversy between plaintiffs and defendants.\u201d<\/p>\n\n\n\n

\u201cWe can settle what fundamentally is a disagreement \u2026 about whether the warehouses should remain,\u201d he said.<\/p>\n\n\n\n

After hearing Lenhart\u2019s explanation for the delay in filing the Hus\u2019 motion to dismiss, Tonaki found in their favor.<\/p>\n\n\n\n

\u201cThe court was initially inclined to rule this was untimely. With the record, the court was unconvinced that good cause was shown,\u201d he began. However, he continued that in hearing the arguments, there seemed to have been some understanding that deadlines would be put off until insurance funding was secured.<\/p>\n\n\n\n

\u201cThe court does find the initial claims by the plaintiffs fall under 634G,\u201d he said.<\/p>\n\n\n\n

He added that even if he did not grant the motion to dismiss under 634G, he would expect to see from the Hus a motion to dismiss for failure to state a claim or a motion for summary judgment. He noted that he was concerned that the complaint sought relief that he could not grant. \u201cThe court would need to hear from the building department,\u201d he said.<\/p>\n\n\n\n

The final order granting the motion to dismiss, which was being prepared as of press time, will include the plaintiffs\u2019 payment of the fees and costs the Hus incurred in their defense.<\/p>\n\n\n\n

A First?<\/strong><\/p>\n\n\n\n

The decision in the Hus\u2019 case is one of the first, if not THE first, under the revised version of the Hawai\u02bbi Public Expression Protection Act passed by the 2022 Legislature.<\/p>\n\n\n\n

According to Denise Antolini, a retired professor and associate dean at the University of Hawai\u02bbi William S.Richardson School of Law, the previous version was limited to public \u201ctestimony,\u201d a term that had been \u201cstrictly construed by our courts in a prior situation. So the original law simply did not function as intended because the terms were too narrowly written.\u201d<\/p>\n\n\n\n

Antolini helped draft the current version of the law, after the group she was involved with, Save Sharks Cove Alliance, was counter-sued in 2019 for $13 million by developer Hanapohaku LLC, in response to the group\u2019s lawsuit opposing a Special Management Area permit issued by the City & County of Honolulu.<\/p>\n\n\n\n

The court in that case found that the group\u2019s lawsuit was not protected by the HPEPA, because it was not testimony. Although the countersuit was settled for zero dollars, the case fueled the successful efforts to revise the Act.<\/p>\n\n\n\n

\u2014  Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

On the morning of April 24, outside the courtroom of 1st Circuit Judge Jon Tonaki, the relief was palpable. Judge Tonaki had just granted Wayne and Tara Hu’s motion to dismiss a lawsuit filed against them six months earlier by … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15847,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,338,524],"tags":[3],"class_list":["post-15962","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-land-use","category-may-2024","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15962","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15962"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15962\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15847"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15962"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15962"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15962"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}