Koloa Creekside sues county

Lawsuit claims civil rights violations, unlawful conditions

Nathan Eagle

THE GARDEN ISLAND

A developer is suing the county for placing “unlawful” conditions on a proposed 72-unit multi-family residential subdivision in Koloa and for failing to afford due process rights, the lawsuit states.

Attorneys representing Koloa Creekside Estates filed the case Dec. 13 in Fifth Circuit Court, claiming civil rights violations and seeking damages and declaratory and injunctive relief.

“All we want is for the Planning Commission to follow the law by not down zoning the property arbitrarily and capriciously and follow the procedures governing the commission,” Kyong-su Im, attorney with the Honolulu-based law firm Paul, Johnson, Park and Niles, said yesterday. “What is at stake is that the county will spend a lot of time and money to fight a legal battle, and if it loses, not only our project but other developments covered by the Koloa-Po‘ipu-Kalaheo Development Plan can be much more significant than what the community wants.”

Commissioners declined to comment, noting county attorney advisement to not speak on matters concerning pending litigation.

The County Attorney’s Office did not respond to requests for comment yesterday.

Koloa Creekside Estates first applied for a Class IV zoning permit on Jan. 26, 2006, to create a residential development on a 9,384-acre lot on Weliweli Road west of the intersection with Waikomo Road, the lawsuit states.

Over the next year, the Texas-based limited partnership revised draft applications to comply with county Planning Department demands. The department determined that the development also needed a use permit and must meet requirements set forth in the Koloa-Po‘ipu-Kalaheo Development Plan.

The county adopted the plan in 1983, changing the zoning designation for the entire property to “special treatment-cultural.”

The developer submitted its fifth and final revised development permit application on March 14, 2007.

The Planning Commission held its first public hearing later that year on May 22 at the Lihu‘e Civic Center. Community members voiced concerns and conditions were revised over the course of six additional hearings spanning seven months.

The commission then voted to deny the permits on Nov. 13, 2007, to the delight of many Koloa residents. But the decision was short-lived.

Im and local attorney Jonathan Chun represented Koloa Creekside Estates developer Chris Jones and Project Manager Rusty Hutchinson at the meetings.

They testified before the commissioners that a mixed two- and three-story cluster was as far as the developer could afford to compromise without financially crippling the project.

The attorneys asserted a legal challenge would follow if the county imposed a two-story limit and said the county’s comprehensive zoning ordinance allows a four-story building height.

Koloa Community Association President Louie Abrams predicted a lawsuit. Not wanting to sacrifice all concessions from the developer in a court settlement — similar to what happened last year with Koloa Marketplace — the group asked the commission to reconsider its decision to deny the permits.

At its Dec. 11, 2007, meeting, the commission approved the project under certain restrictions — namely, a blanket two-story building height limit.

The commissioners voted against the Planning Department’s recommendation to permit two-story buildings along Weliweli Road and position the proposed three-story buildings in the interior concealed behind semi-mature trees where possible. The developer had agreed to this configuration.

According to Im, the county has more to lose than gain from the lawsuit.

“If the county wins, it does not get much since the visibility of the buildings will not be significantly different,” he said in an e-mail.

“The zoning for R20 allows for four-story buildings, but we were willing to go up to three-story for the interior buildings and two-story for the buildings adjacent to the streets, and the three-story buildings will not be visible from most of the angles from the street. Therefore, we were very surprised that the Planning Commission still insisted on all two-story buildings.”

Commissioner Steve Weinstein said yesterday that he could not state the reasons behind the commission’s decision. He said those remarks were made at the Dec. 11 meeting and stand on record.

An audio tape of the meeting could not be obtained by press time and the minutes are not yet available.

Community members have argued at the meetings for the commissioners to impose a two-story building height restriction to preserve a century-old tradition in the town’s makeup.

Weinstein said at the Nov. 13 meeting that he didn’t appreciate the design of the project from the start or its location and surface area. Other commissioners said they had faith in the ability to compromise.

The 18-page lawsuit names as defendants the county of Kaua‘i, the Planning Commission, and the Planning Department and its director. It asks for the Koloa Creekside Estates project to be found exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, if not, the imposed conditions to be declared unlawful.

The developer also opposes some requirements that it was previously willing to concede — such as a land dedication, impact fees and construction schedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

They claim the permit applications were completed on March 14, 2007, and preemptively dispute an anticipated county response that the permit application was deemed complete on April 25 of that year.

The developer says no additional materials were submitted beyond March 14.

The date is significant because it marks the point where the clock starts ticking for the county to process the application in accordance with due process laws.

• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com