Property owners along a private road off Alii Drive are embroiled in litigation over a gate some owners are building to try to make the area safer at night.
The county Department of Public Works last year revoked a building permit and issued a stop-work order for the gate across Kaiolu Drive where it meets Alii Drive, saying owners of all 14 lots in the small subdivision did not approve the application.
The dissenting owners, Scott Scherer and Mona Wu, who recently constructed a house on the corner lot near Alii Drive, had objected to the gate and filed suit in Circuit Court against property owner Douglas Dierenfield, who had applied for the permit to build the gate, and other unamed property owners , asking the court to put a stop to the work and assess damages to pay for repairs to their property.
Meanwhile, Dierenfield has filed his own lawsuit against the county, the county Board of Appeals, its acting chairman and Public Works Director Ikaika Rodenhurst, saying his constitutional right of due process was violated when the acting chairman, Richard Henderson, stayed the proceedings until Scherer’s and Wu’s court case was resolved.
The Scherer and Wu case, filed in January, 2021, has yet to be heard, Honolulu attorney Mitchell Wong said Tuesday.
Kim doesn’t think his client should have to wait forever. The board’s rules and procedures require a hearing to be conducted within 90 days after an appeal, he said.
“The Order preventing the Board of Appeals from hearing Appellant’s Motion for Judgment as a Matter of Law grossly prejudiced Appellant’s substantial rights and violated constitutional and statutory provisions, was clearly erroneous, and/or was arbitrary, capricious, and characterized by an abuse of discretion or clearly unwarranted exercise of discretion,” Ron Kim, Dierenfield’s attorney, said in court filings.
The county has filed a motion to dismiss Dierenfield’s lawsuit and a hearing has been set for Feb 14 before 3rd Circuit Judge Robert Kim.
Deputy Corporation Counsel D. Britt Bailey, in her motion on behalf of the county, says the court doesn’t have jurisdiction because there has been no final action by the Board of Appeals.
“Appellant has not been deprived of anything. Chairperson Henderson’s Order staying proceedings is simply that – a stay,” Bailey said in court filings. “The Order does not speak to the merits of the underlying matter, which have yet to be heard.”
Dierenfield is asking the court to remand the case back to the Board of Appeals with instructions for that board to enter judgment in his favor and to order Rodenhurst to re-issue the building permit.
The permit was approved under the old building code, and then revoked under the new code approved this summer, which expressly gives the director that authority.
Ron Kim said there is nothing in the county code requiring unanimous approval by all property owners. Twelve of the property owners had approved of the project and an additional one didn’t object but didn’t want to share in the cost, he said.
Property owners in testimony pointed to vagrancy, litter and crime as reasons for installing the gate. In letters to the Department of Public Works, the residents, several of them elderly and others with young children, described their fears caused by nighttime activity in the area. Concerns have been raised so high, there are now surveillance cameras up and down their roadway, they said.
The gate would remain open during the day and be closed only at night, they said. They characterized the lone dissenter as an owner of a vacation rental who doesn’t live in the community.
But San Francisco attorney Peter Craigie, representing Scherer and Wu, said public access has been grandfathered in due to the many years of use by the surfing public, including many famous surfers. He predicted erecting the gate will cause more lawsuits.