THE Anaks Ocean View Hill Saipan Homeowners’ Association Limited has petitioned the Superior Court to review the decision of the Commonwealth Zoning Board in granting a conditional permit use application for Atkins Kroll’s Lexus dealership and 27-bay repair and autobody shop in Puerto Rico.
The homeowner community also wants the court to issue an order setting aside Zoning Board Order 2022-1-03, and direct the board to revoke Conditional Use Permit 2020-10382.
The group likewise petitioned the court to issue a preliminary injunction prohibiting construction on Lot EA 496-R1 under Conditional Use Permit 2020-10382 until a full review has been concluded.
According to the 25-page petition for review, Anaks Ocean View is the lessee of “a safe, quiet, and beautifully landscaped property in the village of Puerto Rico that is home to a diverse community of approximately 170 residents of Saipan.”
On April 21, 2022, the board issued its Zoning Board Order 2022-1-03 granting a conditional use application for a car dealership on Lot EA 896-R1 immediately adjacent to Anaks Ocean View.
The Zoning Board permitted an “industrial” use on Lot EA 896-R, a car dealership, including “an extremely large, 27-bay repair and autobody shop with unknown, but inevitably significant impacts.”
The Zoning Board’s decision permitting the project is “arbitrary, capricious, and not in accordance with law under the Commonwealth Administrative Procedure Act, 1 CMC § 9112(f)(2)(i), because the Zoning Board either did not apply or improperly applied the legal criteria of the Saipan Zoning Law or SZL of 2013, as amended, 10 CMC § 3511 to the proposed project,” the petition stated.
It added that the Zoning Board’s failure to properly apply the SZL and take a hard look at the propriety of siting an industrial use next to a well-established residential community may have resulted from additional legal failures of the Zoning Board, namely the failure to implement important provisions of the Board’s enabling legislation, the Zoning Code of the Commonwealth of the Northern Mariana Islands, 2 CMC §§ 7201-7255.
According to the petition, these failures include, but are not limited to, the failure to hire a professional planner with the required credentials as staff to the board, 2 CMC § 7222(a), and the failure to evaluate the proposal in the context of a zoning plan that is economically neutral and protects Anaks from potential nuisances.
The Zoning Board approved the permit without observance of procedure required by law, the petition further alleged.
“Anaks repeatedly requested more time to submit information to the Board and a contested case hearing. The Board, however, provided Anaks neither actual notice of the proceedings nor an adequate opportunity to be heard. Finally, [the] Zoning Board’s decision to approve the conditional use permit without rigorously evaluating the impact on the vicinity generally and on the residents of Anaks Ocean View specifically violate NMI Const. Art I, § 9, the right to a clean and healthful environment,” the petition stated.
The plaintiffs are represented by attorneys Kate B. Fuller and Colin Thompson who filed the lawsuit on May 13, 2022.
The Commonwealth Zoning Board members — Perry Inos Jr., Francisco C. Aguon, Cecilia Taitano, Kevin C. Guerrero, Edna Nisola, and Shayne Villanueva, in their official capacities — were named as respondents in the petition.
Recusals
Following the filing of the lawsuit, the five judges of the CNMI Superior Court have recused themselves from handling the case.
Associate Judge Wesley Bogdan said he is “a resident and owner of property involved in this litigation.”
Associate Judge Joseph N. Camacho said conflict exists with him handling the case.
Presiding Judge Roberto C. Naraja, Associate Judges Kenneth L. Govendo and Teresa Kim-Tenorio said their impartiality might be questioned, which is why they disqualified themselves from hearing the lawsuit.
