The county was in error 23 years ago when it started charging owners of a historic home on Alii Drive two sewer fees instead of one, the county Environmental Management Commission said Wednesday.
The commission voted 4-2 that the county was “clearly erroneous” and violated the county code when it charged a second sewer fee for an outbuilding connected to the house’s sewer line with a Y-connection. But the commission, on a 3-3 vote, balked at finding that the county abused its discretion or acted in an arbitrary or capricious fashion.
Commissioners Dee Fulton, Rick Gaffney and Melissa Cardwell said they thought the department abused its discretion by charging the fee.
“This was clearly, grossly, crassly, a misinterpretation of the law,” Fulton said. “The code is being deliberately misinterpreted. … These people are acting from a point of bias.”
But Chairwoman Georjean Adams and Commissioner Lee McIntosh didn’t think that the county’s actions met the standards required in the law.
“I think DEM’s decisions were well within their discretion,” said Adams, who pointed to her own background writing regulations for the U.S. Environmental Protection Agency as a basis for her opinion.
“It’s just the bureaucracy grinding through with what they had,” she added.
The county contends the 264-square-foot outbuilding meets the definition of an unoccupied structure requiring a sewer hookup and therefore a fee because it has a sink, toilet, shower and washing machine.
The owners, Richard Henderson and Richard Henderson II, managers of Kai Ala Partners LLC of Hilo, are asking the county to refund $7,800 in sewer fees the partnership has paid over the past 23 years. The building is not a separate housing unit, but a storage building, they said.
The main house and the outbuilding are on one of two separate parcels with a total value of a little more than $2 million. The parcels have been listed on the Hawaii Register of Historic Places because the beach house was constructed incorporating the old stone walls of a Catholic Church built in 1864, and thus are charged only the minimum property tax of $200 each annually.
The Hendersons charge the director with “unjust enrichment.” The plaintiffs, to make their case, had to show that the director violated the law in charging a sewer fee on the building, that the action was clearly erroneous or that they abused their discretion.
“The Hawaii County Department of Public Works, Sewer Division has mistakenly and repeatedly charged KAPLLC for two sewer user service fees when they made the original billing in July of 1998,” the complaint states.
But the county, through Deputy Corporation Counsel Cody Frenz, says the Hendersons should have spoken up sooner. The plaintiffs had an obligation to check their invoices before paying them, and the time to make claims has long expired, county attorneys said.
“You can’t cry over spilled milk 23 years later,” Frenz said.
It’s now up to the Hendersons to draft a document detailing findings of fact and conclusions of law for the commission to vote on at its May 25 meeting.
