When is a delay a denial?
Hawaii County was unsuccessful Monday getting a Kona judge to agree with its motion to dismiss a lawsuit filed over its revocation and stay of a building permit to build a gate across Kaiolu Drive, but it’s unlikely the gate can be constructed without further legal action.
3rd Circuit Judge Robert Kim made quick work denying the county’s motion to dismiss in a five-minute hearing, saying he had read the “well-briefed” motions and there was no need for oral presentations.
“My concern with regard to the motion is it’s open to an open-ended stay,” Kim said. “I find in the circumstances, the delay is the type of delay that would preclude the appellant from getting relief.”
Most of the property owners on the dead-end road off Alii Drive had asked that the road be gated at night because of crime, vagrancy and litter. But owners of one of the properties disagreed, saying public access has been grandfathered in due to the many years of use by the surfing public, including many famous surfers.
The county Department of Public Works last year revoked a building permit and issued a stop-work order for the gate, saying owners of all 14 lots in the small subdivision did not approve the application.
The dissenting owners, Scott Scherer and Mona Wu, who recently constructed a house on the corner lot near Alii Drive, had objected to the gate and filed suit in Circuit Court against property owner Douglas Dierenfield, who had applied for the permit to build the gate, and other unamed property owners, asking the court to put a stop to the work and assess damages to pay for repairs to their property. That case is still pending.
Meanwhile, Dierenfield has filed his own lawsuit against the county, the county Board of Appeals, its acting chairman and Public Works Director Ikaika Rodenhurst, saying his constitutional right of due process was violated when the acting chairman, Richard Henderson, stayed the proceedings until Scherer’s and Wu’s court case was resolved.
Kim said the lawsuits could take years and he added that the Board of Appeals, by not making its own findings of fact, instead “piggybacked” off the courts instead.
In court filings, Dierenfield’s attorney Ron Kim said the Board of Appeals, by issuing what amounts to a “nonfinal” order, is depriving his client of the opportunity to appeal.
“Appellees have deprived Appellant of his vested rights in the Building Permit and of his procedural due process right to a timely appeal of that deprivation,” Kim said in his motion. “The Motion seeks to further deprive Appellant of the ability to appeal the Order, an adverse determination which prevented a hearing from proceeding as required by law, with the result of Appellant being arbitrarily and capriciously denied a hearing.”
The county, through Deputy Corporation Counsel E. Britt Bailey, said Henderson was within his “broad discretion” to halt the work on the gate until the neighbor lawsuit was resolved.
“Appellant has not been deprived of adequate relief, the proceedings before the Board have not been terminated, and judicial review remains available,” Bailey said in court filings. “The only effect of the Order is to pause the proceedings, which does not foreclose adequate relief.”
