Planning commission action on Montana Beach affirmed

"There can be no reliance on oral statements by public employees not vested with decision-making authority."

The Maui News
Friday, October 26, 2007
By HARRY EAGAR, Staff Writer

WAILUKU - Circuit Judge Shackley Raffetto has affirmed a Maui Planning Commission decision to uphold former Planning Director John Min's withdrawal of SMA exemptions from the Montana Beach project.

The county has acquired about half the 5.6-acre beachfront lot, but the failure of the appeal by unit owner Asghar Sadri has implications for the county's attempt to acquire the last lot from him.

Sadri has filed a complaint in U.S. District Court seeking an order for the county to allow him to proceed with building a house on the condominium property. The county has initiated condemnation proceedings to acquire the last unit.

In an order issued Oct. 2, Raffetto ruled that the owners of the condominium units could not rely on "so-called 'long standing policy' and/or oral employee assurances" from county staff, since in this case "both are against the law."

But he also raised a question about relying on county employees even when the policy they are enunciating is not against the law.

"There can be no reliance on oral statements by public employees not vested with decision-making authority," his order said.

In this case, the landowners were not dealing with low-level staffers. They went to the department head, Min.

But Raffetto said the county law is clear that when it comes to special management area permits, the decision-making authority is the Maui Planning Commission, even if it had delegated administration of SMA exemption requests to the planning director.

Min initially granted SMA exemptions, which allowed the owners to get building permits for houses on the lot being developed as three condominium units. Following a public protest after construction of houses began, Min withdrew the exemptions.

That had the effect of canceling the building permits, although one house was nearly complete and foundations had been laid for two others.

The dispute set off a cascade of lawsuits and, eventually, multimillion-dollar settlements with two of the owners. The county acquired the only house that was completed, although it has not decided what to do with it.

Despite the settlements with two owners of units, an appeal of the planning commission's August 2004 decision to affirm Min's actions continued in court with Sadri still seeking to develop his unit.

The owners claimed they had relied on county officials when they spent money on grading, design and building.

Raffetto found that the appellants never vested any rights, because "the SMA rules were clear and the last discretionary permit was not issued prior to any act of reliance." Raffetto found that the SMA permit was a discretionary approval.

Furthermore, he found that when the commission rejected the owners' appeals of the recision by Min, the commission's decision was not clearly in error.

The judge said he did not consider whether the county really had had a long standing policy of issuing multiple SMA exemptions for single lots. Whether it did or not, his order said that "the alleged 'long standing policy' of exempting three houses on a single lot would contravene the Legislature's manifest purpose in the CZMA."

Madelyn D'Enbeau, a deputy corporation counsel, successfully argued the defense of the appeal against the commission.

Wailuku attorney Isaac Hall, who represented Christine Hemming and Hui Alanui O Makena in intervening on the condominium owners' appeal to the planning commission, also argued in support of the commission to Raffetto.

"We are very happy (the judge) chose to affirm the planning commission decision," he said.