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Burmeister v. County of Kaua'i

United States District Court, D. Hawaii

May 25, 2018

COUNTY OF KAUA`I, and DOES 1-50, Defendants,


          Leslie E. Kobayashi United States District Judge

         On November 1, 2017, Plaintiffs Klaus H. Burmeister and Ulrike Burmeister, as Trustees of the Burmeister Family Trust Dated January 21, 1994 (collectively “Plaintiffs”) filed their Motion for Partial Summary Judgment on Counts I, II, X, and XI(“Motion”). [Dkt. no. 42.] Defendant County of Kaua`i (“Defendant” or the “County”) filed its memorandum in opposition on March 23, 2018, and Plaintiffs filed their reply on April 2, 2018. [Dkt. nos. 82, 84.] This matter came on for hearing on April 16, 2018. Plaintiffs' Motion is hereby denied for the reasons set forth below.


         This action arises out of Plaintiffs' ownership of real property on the island of Kaua`i and the four residences on that property (“Property”). Plaintiffs originally asserted eleven claims, including breach of contract (“Count I”) and trespass to land (“Count III”) in their Complaint, filed on July 25, 2016. [Dkt. no. 1.] In its Order Granting In Part and Denying In Part Defendant's Motion For Summary Judgment On All Counts, filed on May 2, 2018 (“5/2/18 Order”), this Court granted summary judgment in favor of the County on all counts, except Count I and a portion of Count III. [Dkt. no. 87.[1] Therefore, the Motion is denied as moot insofar as it seeks summary judgment on Counts II, X, and XI, and the Motion is construed as seeking partial summary judgment only as to Count I.

         In a nutshell, Plaintiffs' Count I claim arises out of the Enforcement and Settlement Agreement (“Settlement Agreement”), which the parties executed on January 7, 2008 (“Effective Date”).[2] While the parties agree the Settlement Agreement covers certain issues arising under the County's Comprehensive Zoning Ordinance (“CZO”), Plaintiffs contend the County breached this agreement when it undertook zoning and building enforcement actions after the Effective Date.[3] The County, however, argues these actions were related to flood zone compliance, which is outside the scope of the Settlement Agreement. In addition, at the hearing on the Motion, the County argued that, although the flood zone violations at issue were known at the of the Settlement Agreement, these violations were not discussed in negotiations and reiterated that flood zone compliance is outside the scope of the Settlement Agreement.

         The parties are familiar with the facts which are set forth in the Court's prior order and therefore it will not repeat those facts here, except as relevant to the instant Motion. See 5/2/18 Order, 2018 WL 2050131.

         In 2002, Plaintiffs purchased the Property and operated the four residences as transient vacation rentals (“TVRs”). [Pltfs.' CSOF at ¶ 7; Def.'s CSOF at ¶ 7.] On June 24, 2004, the County Planning Department (“Planning”) issued a Zoning Compliance Notice (“June 2004 ZCN”), and cited Plaintiffs under the CZO for unpermitted construction and alteration of the residences. [Milnes Decl., Exh. 5 at 1-2.] Disputes ensued between the parties. After more than three years, the parties executed the Settlement Agreement. [Pltfs.' CSOF at ¶ 16; Def.'s CSOF at ¶ 16.] Pertinent to the issues at hand, the Settlement Agreement's terms provide that:

-“Zoning permits and Special Management Area permits shall be issued” for the residences and the fence, “and the same shall thereafter be deemed in full compliance with County zoning requirements”; [Settlement Agreement at ¶ 2;]
-“Residence #4 shall be permitted to remain in its present location until the crest of the active beach berm fronting Residence #4 reaches any portion of Residence #4, at which time Residence #4 shall at the Owners' expense be removed . . . . Until [such time, Residence #4] shall not be enlarged or reconfigured”; [id. at ¶ 3;]
-Under various scenarios in which some of the residences are destroyed, the parties agree as to how many residences may be rebuilt; [id. at ¶ 4;]
-A sideyard setback issue pertaining to the laundry building is resolved; [id. at ¶ 5;]
-“Except as otherwise set forth herein, the Owners shall not be required to obtain any other permits from the County for all existing structures and improvements”; [id. at ¶ 6;]
-“Compliance with the foregoing requirements . . . shall cure any and all outstanding building or zoning violations at this time as to any and all structures currently existing on [the Property]”; [id. at ¶ 7].

         On February 15, 2008, a month after the Settlement Agreement's Effective Date, Planning issued a Special Management Area (“SMA”) permit to Plaintiffs, which recognized Residence #4 as a nonconforming use. [Pltfs.' CSOF at ¶¶ 26-27; Def.'s CSOF at ¶¶ 26-27.] On March 19, 2008, the County Department of Public Works (“DPW”) denied Plaintiffs' building permit application #06-783 for Residence #4 due to violation of flood zone requirements. [Def.'s CSOF, Decl. of Stanford Iwamoto (“Iwamoto Decl.”), Exh. 17 at 3.] ¶ 2009, after an inspection, Planning issued TVR certificates for all four residences. [Pltfs.' CSOF at ¶ 28; Def.'s CSOF at ¶ 28.]

         On September 30, 2010, DPW issued Plaintiffs a Notice of Apparent Violation (“NOAV” and specifically “September 2010 NOAV”) because Residence #4 is not “elevated above the base flood elevation.” [K. Burmeister Decl., Exh. 5 at 1.] Plaintiffs contested the citation based on the Settlement Agreement. [Pltfs.' CSOF at ¶ 30; Def.'s CSOF at ¶ 30.] On July 10, 2015, DPW issued Plaintiffs a NOAV (“July 2015 NOAV”) for violation of flood zone requirements. [K. Burmeister Decl., Exh. 6.] Specifically, DPW cited Residence #4 for failure to obtain a building permit and an occupancy certificate required in special flood hazard areas. [Id. at 1.]

         On June 14, 2016, Plaintiffs applied to Planning for renewal of Residence #4's TVR certificate (“TVR Renewal Application”). [Pltfs.' CSOF at ¶ 28; Def.'s CSOF at ¶ 28.] On June 21, 2016, Planning issued Plaintiffs a Notice of Violation (“June 2016 NOV”), and demanded they “complete the building permit process or remove” Residence #4. [K. Burmeister Decl., Exh. 7 at 2.] On July 18, 2016, Planning withheld approval of the TVR Renewal Application based on the June 2016 NOV, and demanded Plaintiffs cease and desist using Residence #4 as a TVR. [Pltfs.' CSOF, Decl. of Counsel (“McAneeley Decl.”), Exh. 14.]

         On July 27, 2016, Planning rescinded the June 2016 NOV, and refused to approve the TVR Renewal Application because Plaintiffs had not resolved the ...

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