SUPERIOR Court Judge Pro Tem David Wiseman has granted the request of the Commonwealth Zoning Board and Atkins Kroll to dismiss with prejudice the lawsuit of Anaks Ocean View Hill Saipan Homeowners Association Ltd. regarding AK’s plan to open a car dealership and auto repair shop in Puerto Rico.
The homeowners association, represented by attorneys Kate B. Fuller and Colin Thompson, earlier petitioned the court to review the zoning board’s decision to grant a conditional permit use application for AK’s Lexus dealership and 27-bay repair and autobody shop in Puerto Rico.
Atkins Kroll is represented by attorneys Sean Frink and Rodney J. Jacob.
In his order on Sept. 20, Judge Wiseman noted that the Zoning Board and AK moved to dismiss the petition as untimely and, therefore, jurisdictionally barred from judicial review.
The petitioner said the petition was timely filed.
Although the parties agreed that under the Administrative Procedure Act or APA, a person adversely affected or aggrieved by an agency action must seek judicial review “within 30 days” of that action, Judge Wiseman said they disagreed on the triggering event that started the 30-day clock in the context of the zoning board’s decision.
“The court is…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 judge said.
The zoning board and AK 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 homeowners association contends 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 a previous Supreme Court ruling, Judge Wiseman said, “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 as respondents in the homeowners association’s petition. They were represented by Assistant Attorney General Keisha Blaise.
The homeowners association served the zoning board members and Atkins Kroll with the petition on June 1, 2022.
