The Hanalei River boatyard operated by Mike Sheehan has for years been a thorn in the side of the Kaua`i County Planning Department, its Public Works Department, its Planning Commission, and environmental groups too numerous to count.
But last month, the Hawai`i Supreme Court dealt a blow to Sheehan’s efforts to continue operations when it refused to hear Sheehan’s appeal of the finding of the Intermediate Court of Appeals.
In denying Sheehan’s application for a writ of certiorari, the court upheld the ICA’s ruling last October. In turn, the ICA upheld the finding of the 5th Circuit Court, which itself upheld the county Planning Commission’s determination that Sheehan was in violation of terms of four permits the commission issued nearly three decades ago 1987.
Sheehan’s battle against the county now moves back into federal court. Three years ago, his attorney, Richard E. Wilson, brought a federal lawsuit on Sheehan’s behalf against the county, the Planning Commission, six individual commissioners, Mayor Bernard Carvalho, the county’s coastal zone management inspector, Leslie Milnes, and hearings officer Glen Kosaka.
A Short Synopsis
The controversy generated by tour boats launching from the Hanalei River goes back at least four decades, to the mid-1970s. (The September 1991 edition of Environment Hawai`i is devoted to a discussion of this issue, for anyone wanting more background.)
Sheehan has sued the county and other entities several times over the last two decades. The case decided by the ICA last October addresses questions over the validity of the permits he claims give him the right to continue operating the Hanalei River boatyard.
Giving rise to the state lawsuit was a series of events beginning in 2007 that culminated in the 2010 decision of the Planning Commission to revoke those permits. A county planning inspector had determined, following a July site, that Sheehan was in violation of several permit terms.
On the inspector’s recommendation, the Planning Commission issued an order to show cause to Sheehan, which was the subject of a contested case hearing in the spring of 2009. Not until April of the following year did the hearings officer issue his recommendation that the commission find Sheehan to be in violation of four permit terms and that the commission could revoke the permits. In June, the commission adopted the hearing officer’s recommendations and revoked Sheehan’s permits.
He appealed to the 5th Circuit Court within the month. As the ICA decision notes, “Besides challenging the Planning Commission’s revocation of his permits, Sheehan argued that the decision to revoke the permits violated Sheehan’s due process and equal protection rights, as well as the [Planning Commission’s] own procedures, and the hearing officer’s decision to allow [Hui Ho`omalu i ka `Aina, a citizens’ group] to intervene “ also violated the Planning Commission’s Rules of Practice and Procedures.
It took another year, until May 2011, for the Circuit Court to reach its decision in the case. Sheehan had to convince the court that the commission’s adoption of the hearings officer’s recommendations, and its revocation of the permits, “was unjust and unreasonable,” the court wrote – and he did not meet this “heavy burden,” it found. “This Court is not left with a firm and definite conviction that a mistake has been made,” it wrote.
As to the claims of constitutional violations, the court dismissed those as well.
A Flawed Appeal
Sheehan’s appeal to the Intermediate Court of Appeals centered on the fact that there was some discrepancy in the contested case hearing between testimony given in a deposition by former Planning Director Ian Costa and testimony he made orally during the course of the hearing.
The lower court determined that Sheehan himself had “opened the door to potentially inconsistent deposition and hearing testimony by voluntarily calling Costa as a witness … after he had deposed him prior to the [Order to Show Cause] hearing.” What’s more, “by failing to contest Costa’s hearing testimony either during or after the OSC hearing, [Sheehan] waived any objection to and his right to challenge on appeal Costa’s testimony at the OSC hearing that was at odds with Costa’s deposition testimony,” the lower court found.
The ICA considered whether the lower court was in error on this point – and found that it was not. What’s more, Sheehan’s argument that Costa’s believed Sheehan was not in violation of permit terms was not supported by Costa himself. “[R]eview of the deposition reveals that Costa specifically denied that he concluded Sheehan was not in violation of the conditions of his permits, merely acknowledged that some of the evidence submitted appeared to show Sheehan complied with certain conditions…,” the ICA found.
Sheehan also argued that one of the conditions he was found to have violated was not a condition enforceable by the Planning Department but, rather, by the county’s Public Works Department. That condition required Sheehan to obtain building permits for structures on the boatyard, and Sheehan contends that because he was in the process of obtaining permits when the show-cause order was issued, it is not within the Planning Commission’s power to find him in violation of that condition. However, the ICA dispenses with this in a footnote: “Sheehan does not dispute that he was warned in 1993 that he needed to obtain building permits for some of the pertinent structures on the property, it was not until five years later that Sheehan applied for the proper permits from the PWD, he did not complete the process due to his failure to file sufficient information, and he did not renew pursuit of applicable permits until 2008, after issuance of the OSC.”
Another condition required that limited the tour-boat operators able to use Sheehan’s facilities to those that were originally permitted in 1988. None of the users in 2007 were the same as those at the time Sheehan received his permits, but Sheehan argued that because the county accepted a handwritten list of permittees that he had substituted for the original permittees back in the late 1980s, the county could not now find him in violation of this condition. “However,” the ICA noted, “Sheehan cites no authority for an estoppel or waiver argument. Whether Sheehan’s previous lists from nearly twenty years prior were compliant is irrelevant as the Planning Commission determined his current list was not. It is understandable that the Planning Commission would view a list that contains no original permittees as violative” of this condition.
The ICA makes short work of Sheehan’s claims of a violation of his constitutional rights to due process and equal protection. He was afforded ample opportunity to argue his claims in the OSC hearing, the ICA found, and he made no cogent argument that his rights to equal protection had been violated.
As to the intervention of Hui Ho`omalu i ka `Aina, the court determined that even if it had no interest in the matter that was clearly distinguishable from that of the general public, the Planning Commission’s rules permit “[a]ll other persons” to apply for leave to intervene. “
“Sheehan’s contention is thus without merit,” the court concluded.
Kaua`i County has begun condemnation proceedings against several of Sheehan’s lots along the Hanalei River to be used in the expansion of the county’s Black Pot Beach Park. According to a county press release last October, following the ICA ruling, three of Sheehan’s lots have already been transferred to the county, including the parcel where the boatyard was operating. The process of developing a master plan for the park was to begin early this year.