Decisive vote next week in boatyard dispute

LIHU‘E — The Kaua‘i County Council will make a last-ditch effort next Wednesday to hire outside legal counsel for a case trying to balance private and public interests.

The county is working to reach a deal with Hanalei boatyard owner Michael Sheehan on a fair price to pay for his river-side property in a “friendly condemnation” so Black Pot Beach Park can be expanded.

On Oct. 5, the council came one vote short of releasing $75,000 to the County Attorney’s Office. With at least five out of seven votes needed to spend the funds, the roll call came in at 4-2, with Councilmen Mel Rapozo and KipuKai Kuali‘i voting against it.

Council Chair Jay Furfaro is hoping that Councilman Dickie Chang’s absence from that meeting may make the difference next week when the request returns to the agenda as a special order of the day.

Both sides of the dispute have said they just want to do what is right, but the pono move to make seems to reside in the eyes of the beholders.

Sheehan “wants to do what is right for the community, selling a big portion of the property,” his attorney, Richard Wilson, told the council at its Oct. 5 meeting. But if the price isn’t right, Wilson said he “will do whatever is necessary” to protect his client’s interest.

The council on Jan. 26 unanimously passed Resolution 2010-59, allowing the county to enter into a “friendly condemnation” of Sheehan’s riverside property, used for many years as a boatyard for tour companies, surf rentals and other commercial activities. It has most recently been used as the site of a weekend craft fair.

The resolution was the “formal authority” by the council for the County Attorney’s Office to enter into the “final round of the negotiations” with Sheehan, Deputy County Attorney Amy Esaki said Jan. 12.

On that day, responding to a question posed by Rapozo on whether such proceedings would entail any kind of cost to the county in the form of hiring special counsel for eminent domain, Esaki said, “No, we’re attempting to do a friendly purchase.”

Eight months later the County Attorney’s Office asked the council for $75,000 to hire special counsel to represent the county against Sheehan in Civil No. 11-1-0098 in Fifth Circuit Court, seeking condemnation of the land.

Wilson said his client has never wanted to sue the county, but he is being forced to do so. Sheehan himself told the council he is “very happy” to discuss alternatives to a lawsuit, which he calls a total waste of time and money.

If the council can’t figure out a “better way” to handle the situation, Sheehan said, both parties should seek to retain a state mediator, which would cost much less.

Councilwoman JoAnn Yukimura said that cheaper alternative is not always available, but she was willing to give it a try. She crafted an amendment to the communication, giving the county attorney power to use part of the $75,000 — at his discretion — to seek mediation from the state.

That amendment passed by a simple majority of four votes, with Rapozo and Kuali‘i voting against it. But when the motion to approve the communication, as amended, was on the table, that fifth vote became vital.

“If I don’t get five votes I’m going to be sad, but hopeful to continue negotiation,” Furfaro said in his final statement before the roll call.

With Chang absent on official business, and Rapozo and Kuali‘i rooted in opposition, Furfaro saw his request swept down the river in a 4-2 vote. But before adjourning the meeting, he said he would put the item back on the agenda as a special order of the day at the Oct. 19 meeting, when Chang’s vote could change the outcome.

Legal battle

Wilson on Jan. 12 said Sheehan had been in negotiations — “not just discussions” — with the mayor, county attorneys and the county finance director for the better part of the year. He said he had received an appraisal after the administration “walked the property,” and was waiting for an offer.

Sheehan on Oct. 5 said a county-hired appraiser “didn’t value the problematic issue of permits.” Moreover, the boatyard facility Sheehan built some 25 years ago for $250,000 would cost more than $1 million today, according to his calculations.

However, the county Planning Commission in 2010 revoked Sheehan’s permits. He appealed with the Fifth Circuit Court, which earlier this year reaffirmed the commission’s decision. Sheehan then appealed with the Intermediate Court of Appeals, and that decision is pending.

Wilson on Oct. 5 said the appraisal is not very far from what he thinks the property is worth, at least in terms of “raw land.” But the county attorney, he said, told him all improvements are included in the appraisal and would not engage in those discussions.

Until two weeks prior to last week’s meeting, Wilson said he was unaware that a lawsuit had been filed four months ago. He and Sheehan said they had not been served the condemnation papers.

But when Yukimura asked Sheehan if he was willing to send the county a counteroffer in case the county sends a formal offer, his answer was, “Certainly.”

Rapozo said he doesn’t feel the county has done enough to negotiate with Sheehan, and although he too wants the county to purchase the property, he said he wants it to be a “fair” process.

Councilwoman Nadine Nakamura urged Sheehan to send a counter offer, and also urged the county attorney to be open to negotiations.

Using the word “pono,” which in Hawaiian means doing the right thing, Wilson said his client would love to sit down with the council and discuss the matter.

Hanalei resident Carl Imparato bought none of that. He said Wilson talks about acting on good faith and doing what is right, but the council needs to know what goes on in the community.

“Hanalei Community Association has worked for years to get rid of illegal signs,” Imparato said. “The only place you will see illegal signage or signs in Hanalei now is in front of the Sheehans’ property; there are five or six of them.”

Window of opportunity

On Sept. 21 Sheehan repeatedly told council members that the $75,000 would not be enough in case a legal battle ensued. The council ended up deferring the matter because County Attorney Al Castillo had made a mistake while inputting the civil case number on the agenda.

Rapozo on Oct. 5 opposed releasing funds for outside counsel. He said he didn’t feel the county had done enough to reach an agreement with Sheehan, and wanted the council to first try to resolve the matter with a state mediator. If after 30 days nothing would be achieved, he said he would be willing to negotiate.

“I’m 63 years old; I’ve been dealing with this since I was 29,” Furfaro said, adding that he was hoping he would get the five necessary votes to fulfill the county attorney’s request.

At the end of the day, his disappointment was apparent.

“I raised my children along that river,” Furfaro said moments prior to roll call. “It has gotten to the point that we need to do the work of appropriate preservation of this area for its significant value that is Hanalei.”

Visit www.kauai.gov for more information.

• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.

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