After years of complaints from members of the public, the Honolulu Department of Planning and Permitting has begun to crack down on illegal farm dwelling and other development at the Marconi Point Condominiums on Oʻahu’s North Shore.
In late March and early April, the DPP issued notices for the following violations:
Unit 1, owned by Yue-Sai Kan, has a raised agricultural structure on it that the DPP allowed to be built without permits after Kan promised that it would not require electricity or plumbing. Recent inspections by the DPP found that the structure indeed had been upgraded with electricity and plumbing. Also, two greenhouses and a shipping container had also been constructed without required building permits.
Although Kan’s unit is one of the few within the CPR that are allowed a farm dwelling, she has not yet been able to build one. A Special Management Area (SMA) permit application submitted by her consultant last year, seeking to allow for farm dwelling construction and agricultural activities, was rejected by the DPP.
Unit 8, owned by the Mary E. Breen Trust, had an existing agricultural structure illegally converted into a farm dwelling, and two ag structures had been built without permits. Breen’s unit is another one that is allowed a farm dwelling, but her applications with the DPP to build one have stalled due, in part, to her failure to submit an agricultural development plan.
The CPR’s developer, Makai Ranch, hired architect William Wong to help facilitate the approval of her permit. The fallout from that endeavor has resulted in claims in federal court that Wong and corrupt DPP employees (all now in federal prison for bribery) caused the department to halt further development within the CPR until an SMA permit is obtained. (See cover story.)
Units 9 and 10, also owned by the Mary E. Breen Trust, had a greenhouse built without the required building permit.
Unit 12, owned by Hui Kawela, LLC, had a two-story ag structure converted to a farm dwelling, a one-story new farm dwelling built, an ag structure fitted with photovoltaic panels, and two shipping containers installed, all without required building permits.
Unit 13, owned by Native Farmland and Security, LLC, had a two-story ag structure converted to a farm dwelling and a greenhouse, shed/office, and shed constructed without required building permits.
In addition to these violation notices, the DPP issued two other violations notices to the Mary E. Breen Trust/Mary Breen (for units 9 and 10), another to Hui Kawela, another to Kan, another to Native Farmland and Security, and two to Sushil and Lorene Garg/Greystone HI Investments LLC (for units 16-19). All of those violation notices were for development within the SMA without the required SMA permit and apparently involved damaged or destroyed wetland areas.
For those violations, the notices stated that violators were subject to a civil fine of up to $100,000, and “any person who undertakes any additional development in violation of this chapter will, upon notice … be subject to a daily fine not to exceed $10,000.”
It is unclear whether Kan’s notice of violation for unauthorized development within the SMA includes an iron fence she had built that community members say poses a threat to nesting Laysan albatross in the area and should be taken down or replaced with a more benign, symbolic fence. The notice does not specify the problematic developments and DPP spokesperson Curtis Lum told Environment Hawaiʻi, “Because these are open NOV’s we cannot comment much on them.”
Also, with regard to the DPP’s grubbing violation notice issued to all of the owners of coastal units at Marconi Point for unauthorized grubbing of about five acres along the coastline last October, that case has been closed. The DPP had proposed a small fine of $200, plus $100 a day if the violation was not cured.
Lum stated, “That violation was corrected before we could assess fines. So that one is closed.”
He did not respond by press time to questions about what mitigation had been done or whether the initial $200 fine had been paid.
Couple Seeks Dismissal of Complaint, Citing ‘Matters of Public Interest’
Wayne and Tara Hu, owners of one of the Marconi Point units that are allowed a farm dwelling, were two of the many people (including former state Sen. Gil Riviere) who had raised concerns with the DPP over the years about some of the construction going on within the CPR.
The Hus laid out their concerns in an August 2023 letter to the developer and its attorneys, and sent copies of that letter to various city, state, and federal agencies that they believed might be able to address some of the matters raised.
Their inclusion of the USDA, which backed a large construction loan for several agricultural warehouses on units owned by the developer’s affiliate companies (RCA Trade Center, Inc. and MP Unit 21, LLC), prompted those companies last October to sue the Hus in 1st Circuit Court for damages and injunctive relief.
A mandatory settlement conference has been scheduled for next year, but on March 15, the Hus filed a motion to dismiss the complaint. A hearing on the motion has been scheduled for April 24.
In the motion to dismiss, the Hus’ attorney, Peter Lenhart, acknowledged that the 60-day deadline to file the motion after being served the complaint had passed and asked that the Hus be granted an extension due to difficulties they had securing funding for their defense from their insurance companies.
Lenhart argued that the complaint should be dismissed because it violated free speech provisions in the U.S. and Hawaiʻi constitutions, as well as the Hawaiʻi Public Expression Protection Act.
Citing a 2006 Hawaiʻi appeals court decision (Meridian Mortg. v. First Hawaiian Bank), Lenhart pointed out that to establish that the Hus wrongfully interfered with the companies’ contractual relations, they must show, “1) a contract between the plaintiff and a third party; 2) the defendant’s knowledge of the contract; 3) the defendant’s intentional inducement of the third party to breach the contract; 4) the absence of justification on the defendant’s part; 5) the subsequent breach of the contract by the third party; and 6) damages to the plaintiff.”
Lenhart argued that the companies can’t establish that there was an “absence of justification,” noting that the Hus, indeed, had a social justification for sending their letter to government agencies.
“The Hawaiʻi State Constitution … makes clear that the preservation of the State’s natural beauty and resources, conservation of agricultural lands, and the preservation of a ‘clean and healthful environment’ are for the benefit of the citizens of Hawaiʻi, and are, therefore, matters of public interest and concern. There have been numerous articles in Environment Hawaiʻi and Civil Beat reporting on issues at the Project related to many of the issues addressed in Defendants’ Letter and several community organizations have also raised concerns similar to those of Defendants’. If monies guaranteed by the USDA to build Plaintiffs’ eight industrial warehouses were being put to illegal use, then the government should know and take action,” Lenhart wrote.
In addition to seeking attorneys’ fees, the Hus also asked for “other relief” for what they believe is an abuse of process by the plaintiffs.
“Opposing counsel in a Zoom conference held February 1, 2024, informed undersigned counsel that Plaintiffs were required to file Plaintiffs’ Complaint in order to fulfill a ‘defense obligation’ contained in Plaintiff RCA’s loan agreement which required Plaintiffs to defend against allegations that its collateral (i.e., the property secured by its mortgage) had invalid building permits. Opposing counsel’s admission makes clear that Plaintiffs’ Complaint is nothing more than a façade to appease Plaintiffs’ lenders. It is clear that the causes of action in Plaintiffs’ Complaint are frivolous, meritless, and brought solely for the purpose of chilling Defendants’ free speech and right to petition the government. Defendants’ actions in mailing their Letter and requesting investigation into the questionable activities at the Project is not an action ripe for litigation since those actions did not cause or result in a breach of any of Plaintiffs’ contracts or result in a business advantage to Defendants.
“Opposing counsels’ actions in filing the Complaint was willfully done, by their own admission, without any intention of submitting to the Court a meritorious and serious request for relief. Those offensive actions have wasted the Court’s and Defendants’ time and resources and have further caused Defendants stress and damage by needlessly subjecting them to substantial attorneys’ fees in defending against Plaintiffs’ frivolous Complaint,” Lenhart wrote.
— Teresa Dawson
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