A Kona judge ruled Friday that the Hawaii County Board of Appeals erred when it sided with the Department of Public Works, which revoked a 2020 renovation building permit that was in effect after a man bought a small Milolii Beach Lots house in a shoreline management area four years ago.
Third Circuit Chief Judge Wendy DeWeese ruled that Shahzaad Ausman, the sole member of 88-129 Kai LLC, “was entitled to rely on the 2020 permit” when he bought the property in 2021 from the prior owner, Douglas Peterson.
“I feel like a million bucks, right?” Ausman told the Tribune-Herald on Monday. “I’ve been fighting for so long, and at every corner there was something happening. And when I finally saw the decision and read it, I was in tears, just shaking in disbelief because this is potentially over. And I can go on with my life now and go on with my house now.”
Ausman, through his attorney, Patrick Wong, filed suit in 2023 against the BOA and former Public Works Director Stephen Pause, alleging the county’s Electronic Processing and Information Center system, known as EPIC, had trapped him in a permitting catch-22 that would allow him only to demolish his home, not to remodel or live in it.
According to DPW, the revocation of the remodeling permit for the home at 88-129 Kai Ave. was 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.
Friday’s ruling states that Ausman completed work authorized by the 2020 permit in March 2022 and called for an inspection by the county, but nobody came. Ausman also had his carpenter call the county for an inspection, but to no avail.
DPW told Ausman on July 9, 2022, that the original 1987 building permit for the home was expired, and he was notified by a letter to his attorney on Oct. 6, 2022, that the 2020 permit also had been revoked.
The ruling states that Ausman spent almost $140,000 on renovations before the DPW revoked the 2020 permit.
Ausman appealed to the BOA, which decided on May 18, 2023, to “uphold” Pause’s decision to revoke the 2020 permit.
According to Friday’s ruling, Ausman “did reasonably rely on the 2020 permit and purchased the property from Peterson after conducting (his) due diligence.”
DeWeese also ruled the DPW’s revocation of the 2020 permit was “unjust and unreasonable in its consequences.”
“(Ausman’s) substantial rights have been prejudiced because the administrative findings, conclusions and order are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record,” she wrote.
“I bought the house knowing it was a fixer-upper, but now I can enjoy it,” Ausman said. “Before, I was on edge because I didn’t know what was going to happen with the house. And the county threatened me in letters that I could not live in the house or they would fine me.
“I thought being told I couldn’t live in my house was an extreme thing for them to say to me.”
Ausman also is seeking to be reimbursed for his legal fees. He told the Tribune-Herald he and Wong will have to petition the court again to receive reimbursement.
The Tribune-Herald reached out to the Office of Corporation Counsel, the county’s civil attorneys, seeking comment, including whether they plan to appeal the judge’s decision, but didn’t receive a reply in time for this story.
Email John Burnett at jburnett@hawaiitribune-herald.com.
