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Appellate court upholds ruling on Heeia Bay project

July 2, 2014 - 12:05am

Hawaii’s Intermediate Court of Appeals has upheld a 3rd Circuit Court judge’s ruling that a Heeia Bay church property project was not exempt from some permitting regulations.

John Dagres and Judith Fitzgerald sued former Planning Director Bobby Jean Leithead in 2010, after exhausting appeals before the county’s Board of Appeals. Dagres and Fitzgerald own property adjacent to the Hawaii Conference Foundation’s land at Heeia Bay. The foundation, the investment arm of the Hawaii Conference of the United Church of Christ, wanted to turn one building on the oceanfront property into a parsonage, had designed one building to look like a bunkhouse and indicated a third building would be a church meeting facility with classrooms. That was later changed to a community resource and cultural center.

Leithead Todd initially denied the foundation a permit in 2009, but work began anyway. The foundation then filed a new application, which decreased the value of the renovations from about $200,000 to $125,000.

Judge Ronald Ibarra, in his 2011 ruling, cited the possible spoiling of nearby waters by increased sewage and also the impact of increased noise from the church-related property. To address those same ecological concerns, he said a special management permit to work along the shore should have been required.

Because the property is on the shoreline, it is within Hawaii County’s special management area. Development within such an area can require a minor or major permit or a permit exemption; a major permit includes telling neighbors what work is being done, proof that the work will not substantially impact the management area and, eventually, approval by the Leeward or Windward Planning Commission.

The state’s three-judge appellate court agreed with Ibarra’s conclusions. Leithead Todd had decided, in part, the project was exempt from the special management area requirements because the foundation described the work as repair and maintenance in the case of one building and because one of the buildings was a single-family dwelling already.

The appellate judges quoted from the dictionary, defining repair and maintenance.

“The addition of an (Americans with Disabilities Act) bathroom and ramp does not constitute either repair or maintenance,” the justices wrote.

The building isn’t a single-family dwelling either, they wrote, because part of the proposed work was to install a kitchen. The definition of a single-family dwelling includes a place to cook, they wrote, so if the kitchen isn’t there, it can’t be a single-family dwelling.

Appellate justices also noted that another building couldn’t be considered to be an existing structure when it had been “drastically altered” since it was originally permitted decades ago. State legislation makes clear that any work within the special management area requires permits, they wrote.

“Yes, as evidenced by the facts of this case, if ‘existing’ as to (the building in question) merely means physical presence on the land or that an original structure was permitted but it has since doubled in size, (the foundation) would be allowed to significantly expand a structure in violation of the applicable building code, or the requirements of SMA regulations, to propose subsequent alterations to the building, claim exemption to SMA review for the unpermitted construction,” the ruling said. “To allow such action outside the parameters of the SMA statutes and regulations is clearly inconsistent with the purpose (of state laws regarding special management areas).”

Denying the exemptions doesn’t deprive the foundation of its ability to use the property, the justices added. Foundation officials can always seek the appropriate permits for their work.

Messages left for Dagres and the foundation’s attorney were not returned as of press time Tuesday. Deputy Corporation Counsel Amy Self said she was still reviewing the ruling Tuesday.

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