Oral arguments have been scheduled in a lawsuit in which a Milolii homeowner is suing the county, alleging its Electronic Processing and Information Center system, known as EPIC, has trapped him in a permitting catch-22 that will allow him only to demolish his home — which is in a shoreline management area — not to remodel or live in it.
Legal counsel for Shahzaad Ausman, a principal of 88-129 KAI LLC, the plaintiff, and the county Corporation Counsel, representing the Board of Appeals and former Public Works Director Stephen Pause — who has since been succeeded by Hugh Ono — are set to make their cases before Third Circuit Chief Judge Wendy DeWeese at 2 p.m. Feb. 3 in Kona Circuit Court.
“I’ve spoken to the new mayor but nothing yet,” Ausman said Tuesday, referring to Mayor Kimo Alameda, who appointed Ono. “Nothing has trickled down, and it appears it’s heading for opening arguments.
“The opposing attorney hasn’t reached out, and I have heard nothing except ‘we are looking into it’ — quote.”
Ausman’s attorney, Patrick Wong, filed an opening brief asking the court to reverse the Board of Appeals’ affirmation of the Department of Public Works revocation of an alterations permit granted to the previous homeowner, two years after its issuance.
According to DPW, the revocation of the remodeling permit for the home at 88-129 Kai Ave. in Milolii Beach Lots is based on the expiration of a building permit issued in 1987 that was allegedly absent a final inspection of the shoreline cottage, which was completed in 1989.
“He’s confident about the case, obviously, or he probably wouldn’t have taken it,” Ausman said about Wong, a partner in the Kona office of Carlsmith Ball. “But when you go before the judge, it’s up to the judge. The best thing I could’ve hoped for is maybe the county would have tried to settle this before, given all the delays.
“We’re three years into this, now. But I haven’t heard from the county, and I’m disappointed. We’re so close to oral arguments, and I don’t even have a proposal for settlement. And what I’m worried about is they’re going to wait to the last minute and say ‘we need more time,’ postpone the hearing so we can go settle it, and then they don’t do anything.”
Wong’s arguments are that Ausman, who purchased the property for $275,000 on May 6, 2021, “reasonably relied on the validity of” the alterations permit issued in 2020, “as he received assurances from DPW that the permit remained valid and active as of July 2022.”
According to the brief, between June 2021 and September 2022, Ausman “expended $138,885 in renovation related finances, mortgage payments and related expenditures.”
The brief asserts that Ausman “will continue to experience substantial injury despite the due diligence exercised to confirm the existence and validity” of the 2020 permit.
“DPW should not be allowed to retroactively revoke a permit two years after its issuance on the basis that they could not locate the final inspection records” for the original 1987 permit, the document states.
“I hope they work on this and we don’t have to go to court and can settle this, because I think the solution would be simple. And that would be to honor the permit as it was,” said Ausman.
As of Tuesday, the Office of Corporation Counsel hadn’t filed its own brief in rebuttal. The Corporation Counsel, when asked for comment about the case in October, told the Tribune-Herald that it “does not comment on pending litigation.”
Email John Burnett at jburnett@hawaiitribune-herald.com.
