ROBERT D.S. KIM

A Law Corporation

Attorney At Law

 

ROBERT D.S. KIM 4255-0

77-6400 Nalani Street, Suite A-1

Kailua-Kona, Hawaii 96740

Telephone (808) 329-6611

 

Attorney for Plaintiffs

 

             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 


WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

 

Plaintiffs,

 

vs.

 

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, DEPARTMENT OF HEALTH, a Department of the State of Hawaii, STATE OF HAWAII, COUNTY OF HAWAII, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

 

Defendants.

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Civil No. _______________

(Other Civil Action)

 

COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF; DEMAND FOR JURY TRIAL; SUMMONS

 

 


COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF

 

COME NOW Plaintiffs WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS (“Plaintiffs”), by and through their attorney, Robert D. S. Kim, a Hawaii law corporation, and for a complaint against the  Defendants ("Defendants") above captioned, allege and aver as follows:


                                                                      COUNT I

1.           THE PARTIES

1.  Plaintiff WALTER JOHN KELLY, is natural person, and recreational user of the ocean area offshore of, and adjacent to the subject property, and during the relevant times presented herein was a resident of Honaunau, County, Island and State of Hawaii.

2.  Plaintiff CHARLES ROSS FLAHERTY, JR., is natural person, and recreational user of the ocean area offshore of, and adjacent to the subject property, and during the relevant times presented herein was a resident of Kealakekua, County, Island and State of Hawaii.

3.  Plaintiff PATRICK M. CUNNINGHAM, is natural person, and commercial user of the ocean area offshore of, and adjacent to the subject property, and during the relevant times presented herein was a resident of Keauhou Bay, County, Island and State of Hawaii.

4.  Plaintiff MICHELE CONSTANS WILKINS, is natural person, and recreational user of the ocean area offshore of, and adjacent to the subject property, and during the relevant times presented herein was a resident of Kona, County, Island and State of Hawaii.

5.   Defendant DEPARTMENT OF HEALTH, is a department of the STATE OF HAWAII, charged with the enforcement and oversight of water quality standards pursuant to Haw. Rev. Stat. § 342D-1, et seq., as amended, and pursuant to Haw. Administrative Rules (“HAR”) Title 11, Chapter 54, as amended, entitled “Water Quality Standards”.  This Defendant is being joined at this time, as a nominal defendant for remedial purposes and to protect the interests and rights of the public.


6.   Defendant STATE OF HAWAII is a state governmental entity in the State of Hawaii, duly organized and existing pursuant to the Constitution of the State of Hawaii.  This Defendant is being joined at this time, as a nominal defendant for remedial purposes and to protect the interests and rights of the public.

7.   Defendant COUNTY OF HAWAII is a municipal corporation and/or governmental entity located in the County, Island and State of Hawaii.  This Defendant is being joined at this time, as a nominal defendant for remedial purposes and to protect the interests and rights of the public.

8.   Defendant 1250 OCEANSIDE PARTNERS is a Hawaii limited partnership, duly organized and existing under the laws of the State of Hawaii, actually doing business as on the Island, County and State of Hawaii, and known as OCEANSIDE 1250, whose principal place of business and mailing address is 74-5620 A Palani Road, Suite 200, Kailua-Kona, Hawaii.

9.         Additional Defendants John Does 1-10, Jane Does 1-10, and Doe Partnerships, Corporations, Governmental Units or Other Entities 1-20 ("Doe Defendants") are persons or entities who may be liable to Plaintiffs or may have an interest in the matter or issues pending, whose identities and capacities are presently unknown to Plaintiffs.  Plaintiffs have reviewed the permits, records, state and federal statutes, and other documents, but are unable to ascertain whether or not all parties liable to Plaintiffs are named therein.  Plaintiffs will identify such Doe Defendants when their names and capacities are ascertained.  Plaintiffs are informed and believe and thereon allege that some of these Doe Defendants are, and at all times relevant herein, were, in some manner presently unknown to Plaintiffs engaged in and/or responsible for the intentional and/or negligent acts, breaches and/or omissions alleged herein, and/or were in some manner responsible for the damages to Plaintiffs and the public, as alleged herein.

B.  PRELIMINARY ALLEGATIONS


10.   Defendant 1250 OCEANSIDE PARTNERS is the owner of that certain real property located in North and South Kona, Island, County and State of Hawaii, designated and known as Tax Map Key No. (3) 7-9-12:03; (3) 7-9-12:04 and (3) 8-1-04:03  (portion) (“subject property”) known herein as the Hokuli’a development project.

11.   Defendant 1250 OCEANSIDE PARTNERS, by and through its agents, representatives, contractors, employees and/or other individuals, have been engaged in acts of grading, utilizing explosives, and altering the natural terrain of the subject property from its natural state.

12.  Defendant 1250 OCEANSIDE PARTNERS, by and through its agents, representatives, contractors, employees and/or other individuals, have been engaged in the hauling of tons of dirt and fill from areas other than from the subject property to the subject property.  This imported soil, dirt and/or fill was, and is, being stored in huge mounds on the subject property.

13.  The Hokuli’a development project is planned as a luxury development including 730 house lots, a thirty-six (36) hole golf course, and club house located near to the Kealakekua Bay.

14.   Defendant 1250 OCEANSIDE PARTNERS was required to conform and adhere to the conditions imposed by all applicable permits and governmental approvals, including but not limited to, the NPDS Permit issued by Defendant DEPARTMENT OF HEALTH, pursuant to federal and state law, the Special Management Area Permit, issued and established by Defendant COUNTY OF HAWAII for the grading, use of explosives, and the importation and removal of dirt and soil to and from the property.

15.   Pursuant to the NPDS Permit issued by Defendant DEPARTMENT OF HEALTH, Form C, entitled “Notice of Intent (NOI) for Discharges of Storm Water Associated With Construction Activity”, no sediment discharge into state waters would be allowed by Defendant 1250 OCEANSIDE PARTNERS of any top soil brought to the subject property.


16.   The ocean waters off of Kealakekua Bay and the subject property are deemed Class AA open coastal waters as presented in Title 11, Chapter 54, Amended Administrative Rules for Water Quality Standards, the highest designation given for water quality which presents pristine conditions. 

17.   Pursuant to Title 11, Section 11-54-03(c)(1), as amended, it is the objective of this special designation of Class AA marine waters to insure that these waters remain in their natural pristine state, and no zones of mixing dirt or imported soil shall be allowed to be permitted in this class of waters.

18.   On or about September 8-9, 2000, the subject property experienced rainfall which triggered a massive runoff of sediment, dirt, soil and other imported material into the shoreline and other ocean areas of the Class AA marine waters located off of the subject property.

19.   This runoff of material caused pollution and/or alteration of the natural pristine state of the Class AA marine waters was directly caused by a human-caused source and/or action(s) in violation of state and federal law.

20.   This intentional and/or negligent polluting of the Class AA waters by Defendant 1250 OCEANSIDE PARTNERS, constitutes a criminal and/or civil violation of Haw. Rev. Stat. § 342D-1, et seq., as amended, and other administrative rules, is specifically prohibited by State law.

21.   Plaintiffs, above captioned, as well as the members of the public, have been directly injured by the intentional and/or negligent polluting of the Class AA waters by Defendant 1250 OCEANSIDE PARTNERS, in violation of Haw. Rev. Stat. § 342D-1, et seq., as amended, and are entitled to relief, including fines and penalties, damages, attorney’s fees and costs, and injunctive relief.

22.   An actual controversy of a justiciable nature exists between Plaintiffs and Defendants involving their respective rights and liabilities regarding the enforcement and initiation of immediate remedial measures set forth in State law to prohibit the intentional and/or negligent polluting of the Class AA waters by Defendant 1250 OCEANSIDE PARTNERS.


23.   The jurisdiction and venue of this action are properly before this Honorable Court.

                                                                     COUNT II

24.  Plaintiffs repeat, reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 23, as though fully set forth herein.

25.  Under these circumstances, damages at law would represent an inadequate remedy, and the issuance of a temporary and permanent mandatory injunction is claimed as being necessary to prevent irreparable injury to Plaintiffs, the Class AA waters, marine life, pristine natural resources and the public.

26.   Remedial relief includes the revocation of the applicable permits by the Director of Defendant DEPARTMENT OF HEALTH for any violation of the applicable state laws herein mentioned.

27.  Plaintiffs are also entitled to recovery of attorney’s fees and costs pursuant Haw. Rev. Stat. Chapter 342, as amended, and Section 607-25, and under any constitutional provision, statute, or common law basis for seeking enforcement of water quality control and for public safety.

                                                                    COUNT III

28.  Plaintiffs repeat, reallege and incorporate by reference each and every allegation contained in paragraphs 1 through 27, as though fully set forth herein.

29.  Defendant 1250 OCEANSIDE PARTNERS has injured and annoyed the Plaintiffs’ enjoyment of their legal rights and fee use in and of a public place, or where the public has a right to go, thereby creating a public nuisance.

30.  Plaintiffs, and the public, have been injured, and damaged by the acts and omissions of Defendant 1250 OCEANSIDE PARTNERS as alleged herein above, and are entitled to all relief afforded to them under the law, including injunctive relief and attorney’s fees and costs.

WHEREFORE, Plaintiffs pray as follows:


1.         For a mandatory temporary and permanent injunction against the appropriate Defendants named herein as prayed for;

2.         For reimbursement of Plaintiff's attorney's fees and cost of suit pursuant to state and federal law, including but not limited to Haw. Rev. Stat Sections 607-25, 342B-56 and other relevant provisions of state and federal law;

3.         For such other and further relief to Plaintiffs and for the protection of the public that this Court deems proper and just.

DATED:          Kailua-Kona, Hawaii, _____________________.

 

___________________________

ROBERT D. S. KIM

 

Attorney for Plaintiffs


             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 


WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

 

Plaintiffs,

 

vs.

 

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, DEPARTMENT OF HEALTH, a Department of the State of Hawaii, STATE OF HAWAII, COUNTY OF HAWAII, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

 

Defendants.

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Civil No. _______________

(Other Civil Action)

 

DEMAND FOR JURY TRIAL

 

 


DEMAND FOR JURY TRIAL

 

COME NOW Plaintiffs WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS by and through their counsel, Robert D. S. Kim, a Hawaii law corporation, and demands for a trial by jury on all issues so triable herein.

DATED:  Kailua-Kona, Hawaii,                  .

 

                                

ROBERT D. S. KIM

 

Attorney for Plaintiffs


             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 


WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

 

Plaintiffs,

 

vs.

 

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, DEPARTMENT OF HEALTH, a Department of the State of Hawaii, STATE OF HAWAII, COUNTY OF HAWAII, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

 

Defendants.

 

 

 

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Civil No. _______________

(Other Civil Action)

 

SUMMONS

 

 


SUMMONS

 

THE STATE OF HAWAII:

To the above-named Defendants:

 

YOU ARE HEREBY SUMMONED and required to serve upon Robert D. S. Kim, a Hawaii Law Corporation, Plaintiffs' attorney, whose address is 77-6400 Nalani Street, Suite A-1, Kailua-Kona, Hawaii 96740, an answer to the Complaint which is attached.  This action must be taken within twenty (20) days after service of this summons upon you, exclusive of the day of service.

If you fail to make your answer within the twenty (20) day time limit, judgment by default will be taken against you for the relief demanded in the Complaint.


There shall be no personal delivery of this Complaint between 10:00 p. m. and 6:00 a. m. on premises not open to the public, unless a Judge of the Circuit Court permits, in writing on this Summons, personal delivery during these hours.

DATED: Kealakekua, Hawaii,                       .

 

 

                                                             CLERK OF THE ABOVE-ENTITLED COURT