Federal Ct Complaint: City violates federal, state laws by blocking development of senior housing

Huapala Senior Care E, LLC, a developer of residential housing for elderly residents of Manoa Valley, today filed a lawsuit in federal court against the City and County of Honolulu. The lawsuit (see Complaint) charges that the City, specifically the Departments of Permitting & Planning and the Department of Environmental Services, have violated both federal and state laws in trying to block the development of some senior housing facilities in Manoa Valley.

Huapala Senior Care desires to construct four senior living homes in the center of Manoa Valley on a lot of about 53,000 square feet that has been zoned for residential living for years. Each of the four homes would house eight elderly tenants and two on-site senior care staff members. Huapala Senior Care is connected with Manoa Senior Care, a management company that currently operates seven retirement homes in Manoa Valley and Kaimuki with a total of 56 elderly residents.

According to the lawsuit, the action by the City stopping the construction of three of the planned homes is not only in violation of local State laws, which require that Senior Care Homes are treated the same as any single-family dwelling when it comes to obtaining permits; but it also goes against both the federal Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Those two national laws make it clear that a refusal to make reasonable accommodations in rules, practices or services when such accommodations are necessary to allow disabled or elderly people the opportunity for have housing is illegal.

Kenneth Kupchak, the attorney representing Huapala Senior Care, said the lawsuit was filed because the City, after giving assurances for a number of months that the project could proceed, moved to stop the buildout about six months ago. “In August of last year,” Kupchak said, “my client was told by the City that his project was conditionally approved, so long as there would be construction of a relief sewer line in the area by Huapala Senior Care.”

Soon after, Kupchak said, the City Permitting Office also issued a demolition permit for some older structures on the property and, in December, 2011, issued a permit allowing Huapala to construct four building foundations for the new senior living facilities. The four foundations were then built out at a cost in excess of $300,000.

However, in March of this year, seven months after giving its conditional approval, the City Permitting Office, in correspondence with the Huapala group, said that there were concerns with the project’s sewer flow and thus the development would need to be revised. According to Kupchak, Huapala management believed that it was entitled to a direct sewer connection based upon its plans, but “if the City had legal grounds to deny that, my client knew it could rely on an approved diversion as a worst case and that is why they proceeded to purchase the property.”

Therefore, to reassure the City that there would be no sewer problems with the project, Huapala’s engineering firm submitted documents proposing a diversion plan that would be paid for by the developer and eliminate any sewer issues. When the City did not approve that plan, Huapala proposed building an on-site Holding Tank that would retain sewage during the day and then release it into the existing sewer system during early morning hours when there would be no issue of excess flow. The Holding Tank proposal was also rejected by the City despite the fact that there is a written policy stating “holding tanks may be considered as an alternative method of servicing residential projects in areas where the sewer system is inadequate.”

The City did give final permission for one of the four buildings to be constructed and, as a result, Huapala has moved forward with the vertical construction of just that single structure. However, the other three home foundations, already built, remain unattended on the lot. Paul Dold, the President of both Huapala and Manoa Senior Care, says that his company does not want to be in a legal fight, but there is no other choice given the City’s stance. “Just as in our other projects, we have done our best to comply with all rules and regulations related to senior living facilities,” he said. “It’s very frustrating that a process which usually takes two-three months has now stretched out for more than a year. With Hawaii’s population of people over the age of 65 expected to grow dramatically over the next two decades, there will be an increasing need for places where our senior citizens can live their final years in comfort. We really hope the City will recognize that fact and that this can be resolved quickly.” Manoa Senior Care began business in 1994 and currently has three residential homes in Kaimuki and four in Manoa Valley. “We have excellent relationships with our neighbors in both Kaimuki and Manoa and all of our homes are built for the safety and comfort of our residents,” said Dold.