A lawsuit filed against developer D.G. “Andy” Anderson alleges he is operating a Haleiwa restaurant without legal permits and continuing to let treated wastewater contaminate nearby waters.
The lawsuit — filed in state Circuit Court on Friday by Campbell Estate heiress Abigail Kawananakoa, the Save Haleiwa Beach Park Coalition and Haleiwa resident Cora Sanchez — also names the city Department of Planning and Permitting and state Department of Health for failing to address abuses that community residents have complained about since spring.
The parties want the court to require the city and state to halt operations at the Haleiwa Beach House restaurant, which is located at the site of the former Jameson’s By the Sea across from Haleiwa Beach Park, until Anderson and his wife, Jean, obtain a major special use permit from the Honolulu City Council and address other concerns.
Anderson, a former state senator, told the Honolulu Star-Advertiser the lawsuit is based on false premises and he is complying with the government agencies.
It has been a closely watched property since Anderson purchased it in 2010. Both government agencies have cited him for violations that resulted in fines and a temporary shutdown.
The Health Department fined the restaurant $5,000 in June for violating an administrative order that required the establishment to not exceed 83 dining chairs and 31 bar stools after DOH had determined that the restaurant unlawfully expanded its seating capacity to 388 seats without adequately enlarging its wastewater system.
The Health Department had earlier shut down the restaurant for about a week after confirming that treated sewage had flowed from its wastewater system onto a neighboring property next to the Loko Ea Fishpond, which is frequented by children.
It was allowed to reopen after Anderson agreed to lower the capacity to 114 seats instead of the 388 seats it carried when it first opened.
DPP fined Anderson for two violations — $4,700 for failing to obtain a special use permit to pave a parking lot on the north side of the property and other additions or alterations, and $5,400, which is continuing to accrue at a rate of $100 daily, for failing to get a building permit before pursuing additions and alterations including a new, second-floor deck and an enclosure of the first floor.
William Saunders, attorney for the plaintiffs, said the case is as much about the failure of the state and the city to enforce its laws as it is about Anderson ignoring them.
For what is clearly a multimillion-dollar renovation, Anderson sought a “minor” special use permit, giving the estimated amount of work to be done at under $12,000, Saunders said. A “minor” permit, which can be obtained if work does not exceed $500,000, is processed administratively by DPP. A developer seeking a “major” special use permit would need to go before the City Council.
THE city gave Anderson the minor permit and to date has not required him to obtain a major permit, which would also involve a full-scale environmental assessment, Saunders said.
The lawsuit also alleges that Anderson has been allowed to pave city park land next to the restaurant and use it for customer parking. The restaurant opened in March despite DPP warnings not to do so until he obtained the necessary permits.
DOH issued a variance allowing for a septic-tank wastewater system under an erroneous assumption that there was no nearby water body around the business, according to the suit, which says the restaurant is less than 50 feet from the legal shoreline at Haleiwa Beach Park and less than 50 feet from Loko Ea Fishpond and Loko Ea Stream Bed, a recognized wetland area.
“The expansion project work has already resulted in contamination of a streambed and has, and is likely to continue to have, a substantial adverse environmental and ecological effect, taking into account potential cumulative effects,” the lawsuit said.
Saunders and the restaurant’s opponents insist there is ample evidence that effluent is percolating onto the nearby property.
Blake McElheny, a member of the Save Haleiwa Beach Coalition and longtime North Shore community activist, sent the Honolulu Star-Advertiser multiple photos of ponding or wet ground that appear to be seeping from underground into the stream bed and nearby field.
Health Department spokeswoman Janice Okubo said inspectors went out to the area 10-12 times between June and August in response to community complaints of ponding offsite caused by the wastewater system but did not find ponding and could not do a test.
Both DOH and DPP officials declined to discuss the accusations made against them in the lawsuit, citing a policy not to comment on pending litigation.
Anderson told the Star-Advertiser that he received two of three outstanding permits and is in the process of retaining another that would give him the go-ahead for a new wastewater treatment system. “Everything is moving according to plan,” he said.
Anderson said he applied for and received a minor SMA because the type of work he’s done to determine which type of permit he should get falls short of the $500,000 threshold for obtaining a major use permit.
He acknowledged the one time in June when “water” was detected off-site by DOH. “It was not raw sewage, it’s treated in the septic tank,” Anderson said. “It’s treated effluent. It’s treated water but these people make all kinds of charges and accusations and you guys print it up carte blanche and you just compound the problem.”
Star-Advertiser staff writer Andrew Gomes contributed to this report.