LIHUE — The County Planning Director can be subpoenaed for deposition as a witness in a civil matter, even if the county was already dismissed as a defendant in a negligence case brought by former Hanalei boatyard owner Michael Sheehan against his neighbors.
Judge Kathleen Watanabe of the 5th Circuit on Monday ruled against the county attorney’s motion that would have prevented Director of Planning Michael Dahilig from being deposed for questioning as a witness.
“The county is no longer a party in the case, but that doesn’t preclude the Planning Department from being deposed,” Watanabe said.
Deputy County Attorney Ian Jung represented the motion. He said an appropriate department official could be produced to answer any question related to permitting structures. The state Board of Land and Natural Resources is the enforcement authority within the protective subzone, and the court dismissed allegations that the county was complicit in allowing a Class C zoning permit, he added.
Sheehan’s attorney, Richard Wilson, said if the current director of planning was not present at the time the alleged wrongdoing occurred, then a deposition would serve to state an official record of evidence to match with testimony at trial. Information that was learned about matters from conversations with departmental staff or other knowledge should be documented, he said.
If Dahilig does or does not know something, then it should be a matter of record before trial, Wilson said. It will avoid a situation where a potential witness at trial might recollect something not previously stated as evidence.
The county is party to this case even if this court removed it as a defendant, Wilson said. To prevent the deposition of a potential witness at trial, or to try and limit the scope of questioning with an argument that it amounted to harassment of a witness is not a valid.
“That is not a basis for quashing a subpoena,” Wilson said.
The county was removed as a defendant in the case on Sept. 24, after Watanabe dismissed counts alleging negligence and conspiracy on the part of the county. The judge also denied Sheehan’s motion to recuse herself as presiding judge on Nov. 12 — on a motion citing conflict for having served as a county attorney and deputy county attorney from 1990 to 1994.
The defendants, Hermina Morita and Lance Laney, were permitted by the county with approval from the Board of Land and Natural Resources to rebuild their Hanalei home following Hurricane Iniki in 1992. The case alleges a second structure built without BLNR approval was permitted by the county while Morita served on the Planning Commission.
Sheehan is suing Morita and Laney for misuse of their property to cause pollution, flooding and other problems within the State Land Use Conservation District Protective Subzone in Hanalei.
In May, the DLNR fined Morita and Laney $31,000 for building and operating Taro Patch Hale bed and breakfast on protected lands without permission or proper permits, and ordered them to tear down existing structures.
Howard Bronstein, the attorney representing Morita and Laney, was present for the county motion on Monday but did not present argument.
Sheehan was the owner of Hanalei River Enterprises, Inc., a company that ran the boat landing adjacent to Black Pot Beach Park in Hanalei. The County Council approved the initiation of condemnation proceedings in January 2013, and the Department of Parks and Recreation is planning work to expand it into the beach park area beginning 2015.
The state Intermediate Court of Appeals affirmed the 5th Circuit Court ruling in 2011 that found the county Planning Commission acted appropriately in revoking the boatyard permits. A 5th Circuit jury awarded Sheehan $5.8 million, or $1 million more than the county assessment for the property in a separate matter.