SAYING that the lawsuit was filed prematurely and the plaintiff has not exhausted available administrative remedy, Superior Court Associate Judge Joseph N. Camacho dismissed the complaint of Su Ung Tae, who has accused Freddy Cataluna and Five Star Builders of “encroachment, trespass, and nuisance.”
“While the Saipan Zoning Law provides a right of private action for someone reporting a violation of the Saipan Zoning Law, Title 2 CMC §7254(d)(2) of the CNMI Code requires that person to give the Zoning Board written notice of the violation and await the Zoning Board’s response,” the judge said.
“Plaintiff Su Ung Tae failed to exhaust the administrative remedy as required by Article 14 §1412 of the Saipan Zoning Law and Title 2 CMC §7254(d)(2) of the CNMI Code,” the judge added.
In his order on Sept. 27, 2024, the judge granted defendants Freddy Cataluna and Five Star Builders’ motion to dismiss.
“In cases where an administrative agency provides relief, claimants are generally required to exhaust that option before initiating litigation,” the judge reiterated.
The complaint
Tae, represented by attorney Stephen Nutting, said his property and the Cataluna property are required by the zoning district map of the Saipan Zoning Law to adhere to the zoning setbacks concerning an existing boundary line shown on the as-built survey.
“Defendant Five-Star built the extension building, dog kennel, and warehouse that encroach over the boundary line across Tae’s property. Defendants did not adhere to the zoning setbacks and encroached on Tae’s property for a total area of 155.62 square meters,” the complaint stated.
Tae said the encroaching structures infringe upon his right to exclude Cataluna from his property and constitute an unlawful trespass.
“The trespass is willful, wrongful, and without Tae’s consent,” the complaint added.
Tae said he has continually suffered and endured the dogs’ noise and smell.
“The smell, the unsanitary conditions of the kennel, and the barking have affected Tae’s health and well-being. Tae has suffered substantial harm physically and in his use and enjoyment of his property,” the complaint stated.
It added that Cataluna built a dog kennel over the existing boundary line between the parties’ properties. Three to 10 dogs are kept at a time in the dog kennel.
Statute of limitations
In response, the defendants, represented by attorney Michael Evangelista, said there is no actual survey of the respective lots recorded with the Commonwealth Recorder.
The as-built survey that Tae relies on is an unofficial survey, and the “Existing Boundary Line” that Tae refers to is the actual boundary line, the defendants’ motion to dismiss stated.
In addition, the six-year statute of limitations prevents Tae’s claims, the defendants added.
“Tae knew of the dog kennel since 2015 and the alleged encroaching structures since 2017. Tae filed this lawsuit on May 15, 2023, eight years since 2015, and six years since 2017. Defendants assert there is no private right of action in the [Saipan Zoning Law] or the regulations to enforce setback rules. Since there is no private right of action, Tae cannot rely on the setback rules, which means there is no possible encroachment or trespass,” the defendants stated.
“Tae has also not submitted any documentation indicating he sent a written notice of a violation to the Zoning Board and the Zoning Board refused to take action,” the defendants added.
