MICHAEL G. SHEEHAN, Appellant-Appellant,
COUNTY OF KAUA'I, COUNTY OF KAUA'I PLANNING COMMISSION, DOE DEFENDANTS 1-10, Appellees-Appellees, and HUI HO'OMALU I KA'AINA, Intervenor-Appellee
This decision is published in table format in the Pacific and Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT. CIVIL NO. 10-1-0161.
On the briefs: Richard Wilson, for Appellant-Appellant.
David J. Minkin, Laura S. Lucas, (McCorriston Miller Mukai MacKinnon LLP), for Appellees-Appellees.
Harold Bronstein, for Intervenor-Appellee.
By: Foley, Presiding Judge, Fujise and Ginoza, JJ.
This secondary appeal stems from Appellees-Appellees County of Kaua'i and County of Kaua'i Planning Commission's (collectively, the Planning Commission) revocation of Appellant-Appellant Michael G. Sheehan's (Sheehan) land use permits due to violations of enumerated permit conditions. Sheehan appeals from a Judgment filed on July 21, 2011, in the Circuit Court of the Fifth Circuit (circuit court). The circuit court entered judgment against Sheehan and in favor of the Planning Commission and Intervenor-Appellee Hui Ho'omalu i Ka 'Aina (Hui), affirming in its entirety the Planning Commission's " Findings of Fact, Conclusions of Law; Decision and Order" (Commission's FOF/COL) that revoked four permits which authorized Sheehan to own and operate a boatyard at the mouth of the Hanalei River on Kaua'i.
On appeal, Sheehan asserts that the circuit court erred by (1) concluding that Sheehan failed to comply with the conditions of his permits, thus triggering the Planning Commission's authority to revoke; (2) disregarding and ignoring the deposition testimony of Planning Director Ian Costa; (3) concluding that Sheehan's constitutional rights were not violated; (4) affirming the Planning Commission's decision to revoke Sheehan's permits because the decision was contrary to the reliable, probative, and substantial evidence on the whole record; and (5) concluding that Hui had standing to intervene.
For the reasons stated below, we affirm the Judgment.
Sheehan operated a boatyard on property located on the Hanalei River in the County of Kaua'i (Property) pursuant to four permits issued by the Planning Commission in 1987: Special Management Area (SMA) Use Permit (U)87-8, Use Permit U-87-32, Special Permit SP-87-9, and Class IV Zoning Permit Z-IV-87-40 (collectively, the permits). In its order approving the four permits, the Planning Commission enumerated thirteen (13) conditions. Of the thirteen conditions, the following are pertinent for this appeal:
2. The following conditions be resolved with the Public Works Department:
a. All construction must conform to the requirements of the Flood Control Ordinance.
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c. Submit plans for preliminary review prior to requiring building permit.
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4. Approval of these permits shall be on a temporary basis and shall be reviewed after a one (1) year period by the Planning Commission. Should the [Department of Transportation (DOT)] develop a long-range solution/facility to accommodate the commercial tour boat operations at another location, the Planning Commission reserves the right to modify conditions or revoke the permits.
5. No new commercial tour boat operations other than those with existing [Department of Land and Natural Resources (DLNR)]/DOT revocable permits shall be allowed to use this facility. A listing of occupants of the proposed baseyard shall be submitted to the Planning Department for verification on a yearly basis. Any request for boat or vessel substitution, additional boats, transfer of revocable permits, increase in passenger capacity of commercial tour boat operations shall be subject to the review of the Planning Commission.
6. No launching/landing of commercial boats from the river side of the project site shall be allowed, unless permitted by the State [DOT].
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8. The Commission further reserves the right to require additional parking stalls on site if deemed necessary. At minimum, 100 parking stalls shall be provided initially, and need not be paved unless required by the Planning Commission after the annual review, or sooner if traffic hazards result.
12. The Planning Commission reserves the right to modify or revoke these permits should unforeseen problems arise or should the applicant violate conditions of this approval.
In July 2007, in response to complaints from community members, the Kaua'i County Planning Department (KPD) conducted a field inspection of the Property and issued a " Violation Notice" (July Notice) to Sheehan. The July Notice noted violations of Conditions 2, 5, 6, and 8, the triggering of Condition 4, and recommended that the Planning Commission issue an order to show cause as to why Sheehan's permits should not be modified, amended, or revoked.
Subsequently, the Planning Commission issued an " Order to Show Cause" (OSC) instructing Sheehan to appear at a hearing before the Commission. In the OSC, the Planning Commission described the alleged facts that the KPD contended demonstrate, by a preponderance of the evidence, that Sheehan violated Conditions 2, 5, 6, and 8 of his permits. The OSC provided that
[In violation of Condition 2, n]o current plans or building permit applications have been submitted, nor zoning or building permits issued for the many noted structures presently existing within the boat baseyard facility. One noted structure is being used as a dwelling. The placement of structures on the boat baseyard property without zoning and building permits for such structures constitutes a violation.
Staff notes that in October 1998, applicant had submitted plans and applications for one of the noted un-permitted storage structures. The [KPD] responded in writing on 12/17/98 that the application was incomplete and required additional information. This requested information was never resubmitted.
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[In regard to Condition 4, s]ince the Governors [sic] closure of Hanalei Commercial boating permits for access to the Na Pali Coast, the [DOT], Harbors Division and DOT'S successor, DLNR, Department of Boating and Ocean Recreation [DBOR], which regulates small boat harbor other than Nawiliwili and Port Allen, have permitted moorings and ramp permits at Kikiaola small boat harbor, Port Allen Harbor and Port Allen small boat harbor for such operators. No permits for commercial moorings or ramp permits within Hanalei Bay have been issued to date other than Temporary Mooring Permits issued to the enjoined commercial boaters, Whitey', Captain Sundown and Ralph Young. With the provided alternate venues for access to the Napali Coast, the Commission has the right to amend, modify or revoke the above referenced permits.
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[In violation of Condition 5, b]oth [current commercial operators using the boatyard] and their vessels, along with tender vessels, are not of the original identified entities permitted thru DOT issued permits . . . .
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[In violation of Condition 6, t]he identified commercial tour boat operators and/or the noted commercial boats/vessels operating out of the boat yard do not have commercial mooring or ramp permits issued from the managing agency DLNR-DBOR. It is also noted that neither the DOT or DLNR-DBOR agencies have to date not [sic] extended the launch and retrieve corridor to the canoe club facility from the Hanalei River mouth.
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[In regards to Condition 8, f]ield inspections on site and review of the approved/permitted plot plan have been conducted by the Department. Based on the current site conditions and implementation of parking stall size standards, the area being provided for the operation of the facility provides for much less than the minimum one hundred (100) parking stalls required.
The Planning Commission referred the OSC to a hearing officer.
Contested hearings were held on fourteen (14) days between March and June 2009. On April 14, 2010, the hearing officer issued his Proposed Findings of Fact, Conclusions of Law, Recommended Decision and Order (hearing officer's FOF/COL) which concluded that the Planning Department met its burden to demonstrate by a preponderance of the evidence that Sheehan violated Conditions 2, 5, 6, and 8, that Condition 4 was triggered, and that the Planning Commission could revoke the permits pursuant to Conditions 4 and 12.
The Planning Commission held a hearing to consider the hearing officer's recommendations. At the conclusion of the hearing, the Planning Commission adopted the hearing officer's FOF/COL in its entirety. On June 21, 2010, the Planning Commission issued its FOF/COL, which in pertinent part concluded
20. The Planning Commission, based upon reliable probative and substantial evidence on the record, concludes that the Planning Department has met its burden of proving, by a preponderance of the evidence that [Sheehan] has violated Condition 2 of the Permits.
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23. The various structures on the property, including a dwelling unit, and storage containers require a building permit. [Sheehan] does not have such building permit or approval from the Commission.
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30. The placement of two 12' x 8'6" x 40' mini storage containers and Matson type storage containers, the stock piling of miscellaneous waste material . . . and the construction of a wooden frame shed structure, without prior Planning Commission review and SMA approval, as required by [Hawaii Revised Statutes (HRS) § 205A-29(b) (2001)], has resulted not only in numerous violations of HRS Section 205A-28 [(2001)] and Section [10.0] of [Kauai's SMA Rules], but, by necessity, has resulted in the violation of Condition 2 of the Permit ...