Hawai`i County Keeps Negotiating with SMA Violator, Despite Court Ruling

posted in: Development, March 2014 | 0
The County of Hawai`i Planning Department has won a favorable ruling from the 3rd Circuit Court in a case that challenged the county’s ability to set shoreline setback distances. Despite that, the deputy corporation counsel representing the Planning Department, Amy Self, has kept the county’s efforts to sanction builder Scott Watson on hold in the six months since the ruling.
As Environment Hawai`i has 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’s 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’s attorney, Steve Strauss, sued the county in 3rd Circuit Court, arguing that the county did not have the authority to establish setbacks.

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’s 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.

Under the agreement, both parties pledged to “cooperate in efforts to have the court expedite decision [sic] on the issues with respect to a declaratory relief action” concerning the shoreline setback appeal.

On August 22, Judge Glenn S. Hara signed an order denying Strauss’ 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, “no house or other substantial structure shall be built closer to the ocean than 40 feet from the top of the sea cliff.” Strauss argued that the condition imposed “a substantial burden” on Watson’s ability to develop his lot.

“At the hearing on July 19, 2013,” Hara continued, “both parties acknowledged that the SMA permit conditions became restrictive covenants burdening the subject property…”

Strauss had argued, however, that the setback was more restrictive than what was allowed by state law. “It is apparent from a reading of the applicable statutes,” Hara wrote, “that a setback of greater than 40 feet from the ‘shoreline’ could be set during the subdivision approval process” and in this case is still binding upon the lot owner.

Despite Hara’s 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.

In September, following Hara’s ruling, the BOA was scheduled to hear the case, but Deputy Corporation Counsel Self asked the chair of the BOA for a continuance “to allow the parties the additional time needed to work out a settlement of the matters.”

The case was rescheduled for November 8. This time, Strauss wrote directly to the Board of Appeals:

“I request that you reschedule hearing [sic] … 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.”

Rodney Watanabe, the BOA chair, replied on November 15, agreeing to the open extension date. “Please inform the board when you are ready to proceed with a hearing on this matter,” he wrote.

Meanwhile, in Ninole
Watson 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.

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.

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.

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.

The fines remain unpaid. No legal action has been taken at all by the corporation counsel’s office.

For Further Reading

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

    • “Shoreline Easement Lost as Builder Racks Up SMA Violations,” December 2012;
    • “Builder Defies Planning Department with Helipad on ‘Sod Farm’ Dwelling,” December 2012;
    • “Hawai`i County Sends Violation Notices to Builder Over Construction at Two Sites,” January 2013;
  • “Hawai`i County Is Challenged in Court Over Ability to Determine Coastal Setbacks,” June 2013

The articles are available on our website, http://www.environment-hawaii.org. Access is free to current subscribers.

 

 

Volume 24, Number 9 March 2014

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