In their ongoing federal lawsuit against the City & County of Honolulu, companies owned by the developer of the Marconi Point Condominiums on O\u02bbahu\u2019s North Shore now argue that a 2017 email among Department of Planning and Permitting staff that they discovered late last year justifies the filing of a third amended complaint.<\/p>\n\n\n\n
Attorneys for the city and DPP disagree.<\/p>\n\n\n\n
The companies owned by developer Jeremiah Henderson III argue that the DPP improperly denied or otherwise stymied the approval of building permits within the 96-acre property that lies entirely within the city\u2019s Special Management Area.<\/p>\n\n\n\n
The DPP informed the companies years ago of the need for development within the agricultural CPR to be reviewed in accordance with SMA rules. The companies, however, have insisted that no special management area permit is required for development to proceed.<\/p>\n\n\n\n
In December 2023, U.S. District Judge Jill A. Otake dismissed the companies\u2019 claims that building permits should have been issued to unit owners and a roadway subdivision the developer sought granted. She determined that despite the companies\u2019 claims that they were given assurances by the DPP that no SMA permit was needed, the department always retained its authority to decide whether or not an SMA permit was required. She did, however, keep claims regarding the developer\u2019s attempts to obtain agricultural subdivision permit approval alive.<\/p>\n\n\n\n
The companies filed an amended complaint, hoping to revive their dismissed claims, but on June 24, the city and the Henderson companies filed a stipulation regarding the city\u2019s motion to dismiss the amended complaint.<\/p>\n\n\n\n
The companies agreed to the voluntary dismissal of their claims regarding building permits and to not re-file them unless they discovered new evidence that showed \u201cunlawful or illegal conduct of the city\u201d and \u201cwould be probative of the claims being dismissed by th[e] stipulation.\u201d<\/p>\n\n\n\n
Amongst the thousands of pages of documents that the DPP provided to the companies as part of discovery, they found a November 2017 email exchange between then-DPP director Kathy Sokugawa and DPP branch chief Mario Siu-Li that the companies\u2019 attorneys argue supports the refiling of the building permit counts, even though the court determined that the window to amend the complaint closed last year.<\/p>\n\n\n\n
Still, the companies\u2019 attorneys argue in filings last month, \u201cIn the e-mail, Defendants\u2019 discuss interpreting a provision of state law to require condominium property regimes on agricultural-zoned property to comply with subdivision requirements as a prerequisite for issuing building permits. The same email then expressly names<\/em> Plaintiffs\u2019 project as a target of this new rule. Later internal correspondence among Defendants\u2019 employees refer to Plaintiffs\u2019 project and the DPP Director\u2019s ‘new approach to ag condo projects. \u2026<\/p>\n\n\n\n \u201cDefendants\u2019 \u2018new approach\u2019 constitutes a rule, which is defined as an agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.\u2019 Defendants did not follow the formal rulemaking requirements of the Hawai\u02bbi Administrative Procedure Act. Defendants used this \u2018new approach\u2019 to wrongfully withhold building permits from Plaintiffs. Because Defendants adopted and enforced this rule without formal rulemaking, the rule is invalid, and Defendants could not use it as a basis to withhold Plaintiffs\u2019 building permits. \u2026<\/p>\n\n\n\n \u201cDefendants\u2019 Supplemental Production reveals that their \u2018new approach\u2019 to withholding permits, absent formal rulemaking, is arbitrary and likely unlawful.\u201d<\/p>\n\n\n\n In addition to arguing that the companies missed their window to amend their complaint and failed to demonstrate good cause for an exception, deputies corporation counsel for the city state in their opposition for leave to amend, \u201cThe Court should reject Plaintiffs\u2019 proposed amendments as futile because they neither correct the jurisdictional defects fatal to the dismissed claims nor establish \u2018New Evidence\u2019 under the Stipulation. DPP employees sent the internal emails after<\/em><\/strong> Plaintiffs had already received notice of their need to comply with SMA permitting requirements and roadway and agricultural subdivision approvals.<\/p>\n\n\n\n \u201cThus, Plaintiffs\u2019 allegations of a pretextual \u2018new approach\u2019 do not plausibly show that DPP lacked discretion to require Plaintiffs to obtain an SMA permit, and Plaintiffs, which have not applied for an SMA permit, still have no vested rights to the building permits or roadway subdivision without the required SMA permit.\u201d<\/p>\n\n\n\n \u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" In their ongoing federal lawsuit against the City & County of Honolulu, companies owned by the developer of the Marconi Point Condominiums on Oʻahu’s North Shore now argue that a 2017 email among Department of Planning and Permitting staff that … 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":[21,338,535],"tags":[3],"class_list":["post-16378","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-land-use","category-march-2025","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16378","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=16378"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16378\/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=16378"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16378"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16378"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}