Creekside case presses on

County withdraws motion to dismiss civil rights suit

by Nathan Eagle – THE GARDEN ISLAND

A South Shore developer’s civil rights case against the county will go forward as planned, lawyers said yesterday, marking another legal battle based in large part on lagging government action.

The County Attorney’s Office on Wednesday agreed to withdraw its motion to dismiss the lawsuit Koloa Creekside Estates filed Dec. 13 in 5th Circuit Court.

County spokeswoman Mary Daubert said the office was unable to comment on the case.

Kyong-su Im, the lead attorney for the developer, said the lawsuit is expected to reveal an inconsistent county planning process that at times violates applicants’ due process rights.

Creekside alleges that the conditions the county Planning Commission imposed on the proposed 72-lot residential subdivision, such as a two-story building height restriction, are arbitrary and capricious.

The developer also claims that the county failed to take action on its pending zoning and use permits in the time frame prescribed by law. As such, the applications should have been approved automatically as the ordinance requires, court records state.

This happened in a similar case last year. It ended in a federal court settlement in September that some residents considered devastating to the community.

Koloa Marketplace in October 2006 filed a lawsuit against the county for civil rights violations, alleging the Planning Department failed to process permit applications in a timely manner.

“There seems to be a lot of lawsuits being filed lately … it’s unfortunate,” Im said.

In both cases, the developers said they made numerous concessions to address the concerns of the county and residents, but the conditions ultimately imposed went too far and happened too late.

Creekside initially proposed four-story, multi-family buildings, but later agreed to drop this down to mixed two- and three-story structures.

Residents had voiced concerns about preserving Koloa’s historic character as protected under the Koloa-Po‘ipu-Kalaheo Development Plan that limits building height.

Creekside attorneys argue that the project is exempt from the codified plan because it is “overbroad and vague” and the county has treated the developer “egregiously differently than other similarly situated applicants.”

The lawsuit states that Creekside revised its permit applications five times after meeting multiple times with county planners and community members from January 2006 to March 2007.

After holding public hearings from May to December, the Planning Commission initially denied the requested permits on Nov. 13. It overturned that decision Dec. 11, approving the permits subject to a modified list of conditions.

In a Jan. 29 court document, Creekside attorneys question the county’s basis for asking the judge to toss the case out.

The County Attorney’s Office filed for the motion to dismiss based on the Planning Commission failing to issue a “written decision and order containing findings of fact and conclusions of law,” which it claims is the only decision the court can review. Without it, there is no subject matter to base a case.

The Planning Commission has this on its Feb. 12 agenda, which, if approved, would apparently ratify the commission’s Dec. 11 approval of Creeksides’ permit applications.

But Im said his understanding is that this is not a step the commission normally takes — generally, the commissioners’ oral approval of the permits at their meetings is considered a final decision.

“You either do it or you don’t,” he said. “Then now to make the argument that it should’ve been done just doesn’t make any sense. It’s been over two months already. What do you want?”

Court documents say that Creekside representatives do not know of any circumstances where the commission issued such a written decision when it approved an application for permits with conditions.

Creekside attorneys further argue that if indeed the final decision has not been made because the commission has not approved this written order, timeliness would again come into play and the application must be approved automatically.

County ordinance requires the planning director to issue a report recommending approval or denial of an application within 60 days after receiving it. The commission then has 60 days after it receives the director’s report to issue the permits with or without conditions or deny it.

In the Koloa Marketplace case, court records show that the commission did not issue a written decision and order until after the developer sued the county. County attorneys in that lawsuit didn’t object to the commission not having issued a final decision and did not file a motion to dismiss.

“If the county thinks that a Planning Commission decision is not final until a written decision and order is issued, and if the county has consistently taken this position, why did the county not object to the lack of a written decision and order in the Koloa Marketplace case?” ask Creekside attorneys in their appeal to the county’s motion to dismiss.

The next court date has not been set, Im said.

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