Future of ‘eyesore’ property tied up in court

The future of a once-busy Waimea Shell gas station hangs in the balance between two sides in a court case.

The station, 65-1192 Mamalahoa Highway, has stood vacant since it closed a couple of years ago. It has been called an eyesore by the environmental advocacy group Outdoor Circle, which has requested beautification of the property.

“It’s been an eyesore for way too long, right there in the middle of town,” the group’s president, Cheryl Langton, said in September.

But, behind the scenes, the station is like an iceberg, with much more below the surface than meets the eye.

The location’s future has become embroiled in a court battle between Foodland and Hilo resident Gloria Wong, who represents the Wong Family Trust as property owner. Foodland is a Hawaii grocery chain that employs more than 2,500 people statewide, including staff at Hilo’s Sack N Save Gas N Go on Kinoole and the Sack N Save at Puainako Center.

Foodland wants to build a modern gas station, across the highway from its Waimea grocery store, with the goal of making it an income-producing community asset instead of an eyesore.

At the crux of a behind-the-scenes legal tit-for-tat is a missing signature.

Foodland, with the lease agreement it got for $200,000, is required to have the landowner’s signature before it can get approval to build the new gas station.

In the meantime, Foodland complains it has forked over more than $46,000 in rent for a property the grocery chain says it cannot earn income from until it builds the modern gas station.

Wong has declined to approve Foodland’s renovation plan for the gas station, saying she needs Foodland to show its plans for fuel-tank installation, all hazards for the property and, essentially, every communication it has had regarding the case.

She wants such details, she claims via her attorney’s filings, in order to decide whether Foodland’s plans will put her at risk of liability in the event of a fire or fuel leak that might affect neighbors of the property.

For more than a year, the case has worked its way through costly court hearings, briefs, filings, settlement conferences, letters from both sides making demands of the other, claims, counterclaims and competing views on who should disclose what to whom during the discovery process.

All the while, the gas station has sat empty on the busy thoroughfare.

Foodland originally sued Wong because it wanted the court to compel her to approve the plan, alleging there was no reasonable argument against it and saying the lease does not give her the option to decline to approve if there’s no reason to do so.

Both Foodland and Wong got a surprise during a September hearing when Hilo Circuit Judge Glenn Hara said he wanted to see briefs telling him whether environmental court would be a better venue for the case to move forward.

Hara ruled he had jurisdiction, because Foodland did not cite environmental issues in its initial filing. But he noted that some of Wong’s objections relate to soil contamination, future hazards related to fuel, and whether spillage from the tanks at the former Shell station was completely removed before the lease was bought by Foodland.

The old fuel tanks, at least one of which had leaked, were removed by previous leaseholders, under terms of the lease-sale agreement with Foodland. Soil tests revealed fuel had indeed contaminated the ground. But removal of more soil resulted in tests that showed the soil was safe.

Dennis K.W. Lee, an engineer speaking as an expert witness on behalf of Wong in court filings, said, “since the use of the property deals with (hazardous materials), the landowner must be careful and prudent in the review of what is being installed since the landowner could be liable for future contaminants on the property and fire-explosive hazards to the neighbors.”

But the state Department of Health issued a letter, after the old gas storage tanks were removed, indicating the property is safe for occupancy.

Andy Char, a partner with Chun Kerr LLP (counsel for Foodland), acknowledged by telephone that the owner of a property, Wong, is indeed liable.

But, he said, if the property is deemed hazard-free, as the former Shell station has been, and then a hazard is created, the property owner would have a liability claim against the entity that creates the hazard. That means Wong would have a liability claim against Foodland if an explosion occurred or gasoline leaked.

Wong indicated to the newspaper that the court documents speak on her behalf, and she declined to be interviewed.

Foodland said in court filings that Wong failed to behave with “good faith and fair dealing” by declining to approve the gas station plan. But Wong asserts she needs to review Foodland design plans for safety before signing the required document.

Char said there are clients attorneys work for whose cases have merit in both law and in character. Foodland is one of those, he said. Attorneys have a tendency to question the motivations of everyone, Char said. But Foodland has impressed Char.

“As cynical as I am,” he said, “I think they’re a pretty good bunch of people.”

The company believes that the community will benefit from having a new gas station, Char said.

“Foodland is anxious to provide that,” he said. Even after a year of litigation, he said, “I still don’t understand what Ms. Wong is seeking.”

The next court hearing, scheduled for February, was to focus solely on whether the cases should be transferred to environmental court, thrown out and filed anew in environmental court or kept in Hilo Circuit Court.

That means it will likely be March or later before Foodland’s request for summary judgment and Wong’s request for dismissal will be heard. However, the case has taken so long that the presiding judge, Hara, retired at the end of December.

The judge who replaces Hara is expected to take over the case in February.

Email Reporter Jeff Hansel at jhansel@hawaiitribune-herald.com.