LIHUE — The county will not have to defend against negligence and conspiracy charges in a lawsuit filed by Hanalei resident Michael Sheehan in 5th Circuit Court. Judge Kathleen Watanabe granted a motion Wednesday that dismisses two charges against the
LIHUE — The county will not have to defend against negligence and conspiracy charges in a lawsuit filed by Hanalei resident Michael Sheehan in 5th Circuit Court.
Judge Kathleen Watanabe granted a motion Wednesday that dismisses two charges against the county, in Sheehan’s civil action filed against defendant’s Hermina Morita and Lance Laney, alleging un-permitted structures within a Special Management Area.
Deputy County Attorney Ian Jung argued that the allegations were factually flawed in placing the property in the special management area, rather than a conservation district protective sub-zone. It was also wrong in stating that the county has jurisdiction over state land use, he said.
Jung said the charge of civil conspiracy for permitting structures without state approval, or for lack of enforcement of violations within a special land area and conservation district, does not amount to tortious conduct. The county has no jurisdiction to enforce the CZO in the conservation district, and that no connection to negligent acts involving civil conspiracy exist.
The county did nothing illegal, Jung said.
Sheehan’s attorney Richard Wilson argued against the motion. He said that Morita and Laney were permitted by the county to rebuild one structure following Hurricane Iniki in 1992. He alleges that neither that first structure or subsequent structures received pre-requisite state approval to build in the State Land Use Conservation District Protective Subzone in Hanalei.
This amounted to an illegal activity and with willful participation by the county, Wilson said.
Howard Bronstein, attorney representing Morita and Laney, was in support of the motion to dismiss charges against the county.
The second motion, filed by Sheehan, was a request for Judge Watanabe to recuse herself from the case. It was denied.
Watanabe was the Kauai county attorney from 1990 to 1994. During that time Sheehan filed a federal lawsuit against the county over its attempts to shut down his Hanalei River boatyard. Sheehan filed an affidavit that included the county attorney in her professional capacity as part of the county’s alleged wrongdoing in his lawsuit. Watanabe replied to the accusations in a separate affidavit.
Wilson said that with Watanabe presiding, a third party could question whether the case is in conflict with revised codes of judicial conduct.
Bronstein objected to the Sheehan motion for Watanabe’s recusal. He said Watanabe’s affidavit was normal court procedure to address allegations contained in Sheehan’s affidavit, and the federal complaint did not name Watanabe in her personal capacity.
Jung also objected to the motion, saying no evidence existed to show that Watanabe presiding over the case would violate codes of ethics or impartiality in the matter.
After reviewing the exhibits, Watanabe said there was not a conflict and that it would be easy for the court to recuse itself out of the appearance of conflict. However, she said the court could preside and offer “impartial and unbiased” judgment.
“I could do the easy thing, or do the right thing,” Watanabe said.
The case will continue with Morita and Laney as the defendants. Sheehan’s claims the neighbors misused the property to cause pollution, flooding and other problems.
In May, the DLNR fined Morita and her husband Lance Laney $31,000 for building and operating Taro Patch Hale bed and breakfast on protected lands without permission or proper permits, and ordered them to tear down existing structures.
