Rice-cooker
BY ROBERT THOMAS – Check out this complaint, filed last week in federal court in Honolulu by a Kauai councilmember against the County of Kauai, a Planning Department Official, and the Kauai prosecutor. The councilmember claims the defendants maliciously prosecuted him for a zoning violation.

And just what was the alleged zoning violation?

While the Planning official was conducting a warrantless search of the councilmember’s home supposedly to respond to a complaint about an alleged zoning violation, she “allegedly observed a rice cooker and a refrigerator in the addition/family room in the family home.” Complaint para 44.

The addition/family room was a permitted structure in which no kitchen was allowed. The Planning official apparently concluded that the presence of the rice cooker and the fridge turned this room into a kitchen, and the councilmember received a Zoning Notice Violation.

The complaint goes on to explain how the case was dismissed by a State Deputy Attorney General who was assigned to prosecute the case after the Kauai Prosecutor was removed by the circuit court, and alleges that the councilmember was targeted by the defendants as political retaliation rather than a genuine belief that the presence of a rice cooker constituted a kitchen.

If all of this sounds familiar, it harkens back to a case we’ve covered here, one phase of which is currently sitting in the Hawaii Intermediate Court of Appeals awaiting a decision by the court. Hence the “Part II” in the title of this post, since the latest complaint seems like more of the same old stuff from Kauai.

In the Part I case, a Kauai family-owned small business was subject to similar actions by the Planning Department, including threatening visits from officials, months of Planning Commission hearings at which Jim Satterfield and his family were subject to abuse, and finally, the wrongful denial of three simple zoning permits by the Commission. Disclosure: we represent Kauai Springs and the Satterfield family that owns it, the victims of the Kauai Planning Department in that case.

The Commission denied the permits not because Kauai Springs had violated the Zoning Code, but rather because the Commision believed that “there may be outstanding regulatory processes … that the Applicant must satisfy.” The Commission itself could not identify what “outstanding regulatory processes” that it claimed Kauai Springs neeed to have satisfied, but nonetheless denied the permits, essentially putting the burden on Kauai Springs to guess.

When Kauai Springs appealed to the circuit court in 2007, the courtconcluded the Commission’s denial was arbitrary and capricious, and ordered the permits issued. Even after the order, however, the County delayed, dug in its heels, and only issued the permits after attempting to add a multitude of “conditions” designed to circumvent the court order.

The County appealed to the ICA. It knows that the Satterfields are holding on by an economic thread, and it apparently adopted a strategy designed to “bleed out” Kauai Springs by delay. The County understands that Kauai Springs is not flush with money and that the cloud of the appeal has impacted its ability to service its existing customers (including, ironically, many County offices and departments), and to deliver water to new customers.

The appeals process took several years just to get past the briefing stage. Here is Kauai Springs’ merits brief (June 2010), along with responses to the two amicus briefs filed in the case (here and here(December 2010)). The court heard oral arguments 15 months later in March 2012, 4 1/2 years after the trial court’s judgment in favor of Kauai Springs.

The appeals court has yet to issue a decision. Meanwhile, however, Kauai Springs and the Satterfields are holding on, if barely, fearing that the affirmation of the judgment by the court of appeals may come too late to be of any practical good because the County’s bleed out strategy, which seems aimed at transforming any eventual win by Kauai Springs into a Pyrrhic victory, and is becoming more of a reality every day.

But like we said earlier, this certainly seems like more of the “same old same old” from Kauai.

Complaint, Bynum v. County of Kauai, No. CV12-00523 RLP (filed Sep. 19, 2012

Comments

comments

SHARE
Previous articleA Microcosm Of Hawaii Land Use Law
Next articleHawaiian Adding Capacity to Auckland Service
Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.

1 COMMENT

Comments are closed.