THE Anaks Ocean View Hill Saipan Homeowners Association Ltd. has asked the Superior Court to reconsider its ruling in dismissing the lawsuit against the Commonwealth Zoning Board regarding Atkins Kroll’s plan to build a Lexus car dealership and auto repair shop in Puerto Rico.
In September 2022, Judge Pro Tem David Wiseman granted the zoning board’s request to dismiss the complaint with prejudice.
Represented by attorneys Kate B. Fuller and Colin Thompson, the homeowner’s association requested the court to reconsider its decision and order to vacate the judgment it issued in favor of the zoning board and Atkins Kroll.
Fuller and Thompson likewise requested the court for a stay order of the zoning board’s decision to approve the conditional use permit application of Atkins Kroll.
The court ruling, the lawyers said, has deprived their client of the right to judicial review of “this important public matter concerning the control and use of the land.”
They said the court overlooked legal precedent and the zoning board’s own actions that “secreted away the date by which the clock started for Anaks to file its appeal.”
They said “the rational provided by the ruling is untenable, as a conditional use permit is almost always granted from an application to the zoning board for a conditional use permit, and therefore appealing the actual issuance of a permit would provide more clarity and consistency than appealing the board’s oral decision….”
“Anaks appealed within 30 days of the issuance of the conditional use permit,” the attorneys added.
On May 13, 2022, 30 days after the issuance of the permit, Anaks appealed the zoning board’s action as required by the Northern Mariana Islands Administrative Procedures Act, the lawyers said.
“In holding that the 30-day period for appeal started to run from the hearing on March 18, 2022, …the court ignores the zoning board’s stated process, as well as the significance of the permit, and determines that the zoning board’s oral decision was final agency action and the issuance of the conditional use permit was not.”
Moreover, the lawyers said the zoning board’s actions are misleading if it believed that the final agency action occurred at the hearing on March 18, 2022.
According to the lawyers, “The zoning board withheld issuing a written order (which is required whenever practicable under the Saipan Zoning Law) until over thirty days after public vote, and relied on that order as the basis for issuing the permit.”
The lawyers added, “The zoning board provided no reason for waiting over thirty days to sign Zoning Board Order #2022-1-03. After engaging in this process, the zoning board then turns around and contends that its order was not really what authorized the conditional use permit, the document critical to Atkins Kroll’s construction of its car dealership with general vehicle repair.”
The result: The homeowners association loses its right to judicial review, the lawyers said, adding: “This is a manifest injustice.”
In his order on Sept. 20, 2022, Judge Wiseman said the court was asked to determine whether the 30-day clock to appeal a decision of the zoning board begins running from the date of the zoning board’s public vote; from the date of issuance of the zoning board order, if any; or from some other date.
The Zoning Board and Atkins Kroll contend that the clock began running as of the date of the board’s public vote — in this case, March 18, 2022 — which renders the petition, filed 56 days later, untimely by 26 days.
The Anaks homeowners contend that the clock began running as of the issuance of the zoning order dated April 21, 2022, which renders the petition — filed 22 days later — well within the 30-day time limit.
Citing previous Supreme Court ruling, Judge Wiseman stated that “as a matter of good policy for the sake of consistency and clarity, the 30-day clock to petition for judicial review begins running as of the date of the zoning board’s public vote.”
“Because the jurisdictional deficiency cannot be cured, the matter is dismissed with prejudice,” the judge added.
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 respondents in the homeowners’ petition. They were represented by Assistant Attorney General Keisha Blaise while Atkins Kroll was represented by attorneys Sean Frink and Rodney J. Jacob.
The site of Atkins Kroll’s Lexus car dealership and repair bay adjacent to Anaks Ocean View Hill in Puerto Rico, Saipan.
