SUPERIOR Court Judge Pro Tem David Wiseman has denied the relief sought in the Anaks Ocean View Hill Saipan Homeowners Association Ltd.’s petition for review of the Commonwealth Zoning Board order that allowed the construction of a car dealership and repair shop in Puerto Rico.
Judge Wiseman also affirmed the Zoning Board’s decision to grant Conditional Use Permit No. 2020-10382, and issue Zoning Board Order No. 2022-1-03.
On May 13, 2022, the Anaks homeowners association filed a petition seeking judicial review of the Zoning Board’s decision to approve Atkins Kroll’s conditional use permit application.
The petition requested that “the Court issue a preliminary injunction prohibiting construction on Lot EA 496-R1 under Conditional Use Permit 2020-10382 until the conclusion of this action” or, in the alternative, that the matter be remanded to the Zoning Board for further proceedings in compliance with its statutory obligations.
Background
On Jan. 4, 2022, Atkins Kroll applied for a permit with the Zoning Board to build a dealership and vehicle repair facility next to the Anaks condominium complex in Puerto Rico.
On March 18, 2022, the Zoning Board approved Atkins Kroll’s application and issued the permit on April 13, 2022.
The Anaks homeowners association filed a petition to challenge the permit in Superior Court.
The court, through Judge Wiseman, dismissed the petition, saying it was untimely filed.
But on appeal, the local Supreme Court held that the Anaks petition was timely filed and set aside the dismissal.
Following the high court’s decision, Anaks renewed its request to review the Zoning Board’s decision.
Represented by attorneys Kate B. Fuller and Colin Thompson, the homeowners association requested the Superior Court to issue a stay order with respect to Zoning Permit 2022-10382 to “prevent irreparable harm” to the homeowners.
They said the homeowners association “has a very high probability of success in prevailing on its claim that the Zoning Board’s permitting decision is arbitrary and capricious and not in accordance with [the] law.”
According to the homeowners association, “Placing the largest vehicle repair and auto-body shop, complete with an automotive paint booth emitting hazardous air pollutants, in the front yard of a well-established residential community is the quintessential ‘pig in the parlor instead of the barnyard’ situation.”
The homeowners association asked the Superior Court to issue an order to stop the construction of the car dealership and repair shop, which held a groundbreaking ceremony on March 10, 2023.
But Judge Wiseman rejected the homeowners’ motion for stay of an agency action, saying that they did not show adequate justification for granting a stay of Conditional Use Permit No. 2022-10382.
In a 34-page ruling issued on March 11, 2024, Judge Wiseman, having reviewed the full certified record, is satisfied that the Zoning Board’s decision to grant AK’s conditional use application was supported by substantial evidence — that is, the decision was a reasonable exercise of discretion and was adequately supported by evidence in the record.
“The Court also finds that the Zoning Board did not act arbitrarily or capriciously but rather acted within a zone of reasonableness after considering all of the relevant compatibility issues,” the judge said.
As for Anak’s claim that the Zoning Board approved the conditional use permit without fully considering the project’s environmental impacts on the vicinity generally and the residents of Anaks specifically, Judge Wiseman said, “The record does not support Anaks’ position and shows, instead, that the Zoning Board took numerous studies concerning noise, air, and light pollution (among others) into consideration when making its decision.”
The judge added, “Anaks also complains that the Zoning Board ‘did not include a noise limit in the Conditional [Use] Permit’ but fails to explain how this subjects Anaks to ‘significant environmental injuries’ that are ‘probable to occur.’ Indeed, none of the injuries Anaks speculates will occur seem likely given the 19 conditional safeguards embedded in AK’s [conditional use permit]. There is no indication that AK has or will imminently violate said conditions, and even just one violation out of any of the 19 conditions would subject AK to a $1,000 per day penalty for noncompliance and risk of permit revocation.”
