{"id":333,"date":"2014-04-01T23:31:29","date_gmt":"2014-04-01T23:31:29","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=333"},"modified":"2014-04-01T23:31:29","modified_gmt":"2014-04-01T23:31:29","slug":"hawaii-county-keeps-negotiating-with-sma-violator-despite-court-ruling","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=333","title":{"rendered":"Hawai`i County Keeps Negotiating with SMA Violator, Despite Court Ruling"},"content":{"rendered":"
The County of Hawai`i Planning Department has won a favorable ruling from the 3rd Circuit Court in a case that challenged the county\u2019s ability to set shoreline setback distances. Despite that, the deputy corporation counsel representing the Planning Department, Amy Self, has kept the county\u2019s efforts to sanction builder Scott Watson on hold in the six months since the ruling.<\/div>\n
\nAs\u00a0Environment Hawai`i<\/i>\u00a0has reported, Watson was found by the Planning Department to have violated setback conditions established back in 2006, when the Pepe`ekeo subdivision of which Watson\u2019s lot is a part received final county approval. Watson appealed to the county Board of Appeals in late December 2012. Before the BOA heard the appeal, however, Watson\u2019s attorney, Steve Strauss, sued the county in 3rd Circuit Court, arguing that the county did not have the authority to establish setbacks.<\/p>\n

As the court case was pending, Strauss and Bobby Jean Leithead-Todd, in one of her last actions as planning director, signed an agreement in May in which the county backed off a number of claims against Watson and his co-owner, Gary Olimpia and Hilo Project, LLC, Olimpia\u2019s company. Among other things, the county agreed not to fine Watson for his failure to install a silt fence in timely fashion, agreed to allow Watson to relocate public shoreline access, agreed to drop a violation that Watson had not placed a four-foot high fence around a swimming pool, and agreed to lift its stop-work order.<\/p>\n

Under the agreement, both parties pledged to \u201ccooperate in efforts to have the court expedite decision [sic] on the issues with respect to a declaratory relief action\u201d concerning the shoreline setback appeal.<\/p>\n

On August 22, Judge Glenn S. Hara signed an order denying Strauss\u2019 motion for summary judgment or partial summary judgment. Hara took note of the fact that the 2006 Special Management Area permit for the overall subdivision stated, \u201cno house or other substantial structure shall be built closer to the ocean than 40 feet from the top of the sea cliff.\u201d Strauss argued that the condition imposed \u201ca substantial burden\u201d on Watson\u2019s ability to develop his lot.<\/p>\n

\u201cAt the hearing on July 19, 2013,\u201d Hara continued, \u201cboth parties acknowledged that the SMA permit conditions became restrictive covenants burdening the subject property\u2026\u201d<\/p>\n

Strauss had argued, however, that the setback was more restrictive than what was allowed by state law. \u201cIt is apparent from a reading of the applicable statutes,\u201d Hara wrote, \u201cthat a setback of greater than 40 feet from the \u2018shoreline\u2019 could be set during the subdivision approval process\u201d and in this case is still binding upon the lot owner.<\/p>\n

Despite Hara\u2019s ruling, neither the county nor Strauss has pushed the case toward trial. And the hearing of appeals of the notices of violation before the Board of Appeals seems to be on indefinite hold.<\/p>\n

In September, following Hara\u2019s ruling, the BOA was scheduled to hear the case, but Deputy Corporation Counsel Self asked the chair of the BOA for a continuance \u201cto allow the parties the additional time needed to work out a settlement of the matters.\u201d<\/p>\n

The case was rescheduled for November 8. This time, Strauss wrote directly to the Board of Appeals:<\/p>\n

\u201cI request that you reschedule hearing [sic] \u2026 from November 8, 2013, at 10:00 a.m. to an open extension date set by mutual agreement between the parties. The parties are working on settlement [sic], which may result in a withdrawal of the petition and eliminate the need for a hearing.\u201d<\/p>\n

Rodney Watanabe, the BOA chair, replied on November 15, agreeing to the open extension date. \u201cPlease inform the board when you are ready to proceed with a hearing on this matter,\u201d he wrote.<\/p>\n

Meanwhile, in Ninole<\/i><\/b>
\nWatson also received a notice of violation in December 2012 for having a helicopter landing pad atop the house he had built in Ninole, around 20 miles north of Hilo on the Hamakua Coast.<\/p>\n

As Environment Hawai`i reported last June, Watson and co-owner Laurie Robertson ignored repeated warnings by the county Planning Department that fines were mounting daily.<\/p>\n

Even a promise by outgoing Planning Director Leithead-Todd to cut the fines by 10 percent if the violation were resolved by May 23 was not incentive enough to get Watson to resolve the matter.<\/p>\n

In late May, the Planning Department forwarded the case to the Corporation Counsel for legal action. At the time, accumulated fines totaled more than $28,000.<\/p>\n

The fines remain unpaid. No legal action has been taken at all by the corporation counsel\u2019s office.<\/p>\n

For Further Reading<\/p>\n

The following articles in past issues of Environment Hawai`i provide further details on the projects of Watson at Pepe`ekeo and Ninole:<\/p>\n