County seeks dismissal from suit

The County of Kauai is requesting a judge dismiss it as a defendant in a lawsuit filed by Hanalei resident Mike Sheehan against Hawaii Public Utilities Commission Chair Hermina Morita and her husband.

County Attorney Al Castillo said Monday that his office plans to “vigorously defend” its motion in court.

“This case presents a factual scenario similar to that of feuding neighbors with the unfortunate insertion of an innocent third party,” he wrote of the county in his motion, filed Aug. 7.

In his nine-page civil complaint, Sheehan alleges Morita and her husband, Lance Laney, damaged his property and polluted the Hanalei River, and that the county conspired with the couple to cover up their illegal activity.

The suit is the latest is a controversy surrounding Morita’s now-vacant Taro Patch Hale bed and breakfast, located on a 3.18-acre parcel within the State Land Use Conservation District Protective Subzone, at the end of Ohiki Road, on Kauai’s North Shore. In May, after a lengthy investigation, the Department of Land and Natural Resources fined Morita and Laney $31,000 for building and operating the Hanalei getaway on protected lands without permission or proper permits, and ordered them to tear down existing structures.

Sheehan claims the couple’s building activities — clearing vegetation, grubbing and modifying the flow of the river — have adversely affected his property, located about five miles downriver of Morita’s, causing it to flood periodically.

As for the county, Sheehan and his attorney say it knew about the illegal activity — as well as that the pollutants posed a threat — but did nothing to stop it. The plaintiff is accusing the county of negligence in failing to enforce land use laws and conspiracy.

In his motion to dismiss, however, Castillo says the plaintiff “fails to understand” state land use laws, that the DLNR (not the county) has jurisdiction to enforce in State Land Use Conservation Districts, and therefore it is impossible for the county to be negligent in not enforcing the law.

The plaintiff’s claim of civil conspiracy, Castillo argues, is a derivative claim and must be connected to tortious conduct. It “must be dismissed because it is not supported in either law or fact,” he wrote.

The county’s motion is scheduled to be heard at 1 p.m. Sept. 24 before Judge Kathleen Watanabe.

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