SUPERIOR Court Judge Pro Tem David Wiseman has denied the request of Anaks Ocean View Hill Saipan Homeowners Association Ltd. to issue an order stopping the construction of a car dealership and repair shop in Puerto Rico.
The judge rejected the homeowners’ motion for stay of an agency action.
In his 23-page order, he said the physical and environmental harms alleged by Anaks are purely speculative and consist of largely unsubstantiated concerns that the Atkins Kroll project “will contribute to air pollution,” “will generate a great deal of noise during the day,” will “increase light at night,” will “increase traffic on an already dangerous road,” “will limit…the ocean view of the residents,” and will “have the potential to contaminate the groundwater in the area.”
“The record demonstrates that these concerns were addressed at length by AK during the permitting process,” the judge added.
“Anaks’ concerns are even more tenuous in view of the fact that for these concerns to become a reality, AK would have to violate the conditional safeguards (of which there are 19 total) embedded in its conditional use permit — an act which itself would subject AK to penalties of $1,000 per day for noncompliance as well as the risk of permit revocation,” Judge Wiseman said.
“Anaks’ assertion that the 19 conditions are ‘so vague as to be unenforceable’ does not change the fact that its concerns of possible future harm are speculative nonetheless and are based upon a presumption that AK will, in fact, violate its own conditional use permit,” the judge said.
“Such mental gymnastics weighs against a finding of imminent, irreparable harm.
“Furthermore, the economic injury alleged by Anaks does not constitute an irreparable injury because it can be compensated with money damages,” the judge said.
Anaks has not shown adequate justification for granting a stay of Conditional Use Permit No. 2022-10382, he added.
“First, Anaks has not met its burden of showing a combination of probable success on the merits and the possibility of irreparable injury. Second, Anaks has not met its burden of showing that serious questions are raised and that the balance of hardships tips sharply in its favor,” the judge said.
In March 2023, the CNMI Supreme Court ruled that the Superior Court had jurisdiction to review a permit issued by the Commonwealth Zoning Board to Atkins Kroll for a Toyota/Lexus dealership and vehicle repair facility in Puerto Rico.
Anaks then requested the Superior Court to issue an order to stop the construction of the car dealership and repair shop in Puerto Rico that held a groundbreaking ceremony on March 10, 2023.
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 then filed a petition to challenge the permit in Superior Court.
The court, through Judge Pro Tem David 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 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 court to issue a stay order with respect to Zoning Permit 2022-10382 to “prevent irreparable harm” to Anaks.
They said Anaks “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 Anaks’ motion, “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.”
