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Defendant's Attorney: Robert M. Kohn and Nicolette Winter, Deputies Corporation
Counsel; Department of the Corporation Counsel, Honolulu,
Hawai‘i

Description: Honlulu, Hawai'i civil rights lawyer represented Plaintiff, who sued Defendants discriminated against because of his race.

Hitoshi Yoshikawa is a Japanese national and lawful
permanent resident who resides in Hawai‘i. In 2014, he
bought waterfront property in Kane‘ohe and hired a licensed
architect (Defendant James Schmit) and contractor
(Defendant Greg Talboys) to secure design plans and permits
to renovate the property in compliance with applicable
regulations. Yoshikawa’s plans were complicated by the fact
that a nonconforming structure had previously been built
within the shoreline setback area. Schmit secured permitting
to commence the project, and Talboys started work in
November 2015.

Defendant-Appellant Troy Seguirant (Seguirant) is a
building inspector for the City and County of Honolulu.
Seguirant inspected the site at least nine times between
December 2015 and May 4, 2016.1 During these inspections,
Seguirant did not raise any issues or concerns related to the
scope of the project.

On May 6, 2016, however, Seguirant issued a Notice of
Violation and Stop Work Order on the Project (May NOV),
alleging that the project inappropriately reconstructed the
nonconforming structure within the shoreline setback without
a new building permit. Schmit and Talboys contacted the
Department of Planning and Permitting (DPP) in an effort to
have the May NOV rescinded, but they were instructed that
NOVs were unappealable and they would have to wait to
appeal until a formal Notice of Order (NOO) was issued. In
October 2016, Acting DPP Director Art Challacombe issued
a written letter (Challacombe letter) stating that a revised
proposal from Schmit was acceptable. The letter authorized
Yoshikawa to submit an application for a building permit,
leading Yoshikawa to expend substantial resources revising
and resubmitting the plans in December 2016.

On February 2, 2017, while in Yoshikawa’s yard, Talboys
overheard Seguirant telling the next-door neighbor, “I keep
shutting them down but f--- [expletive] these Haoles2 don’t
listen, that’s why I try [sic] keep it local.” (first alteration in
original). Following this statement, on March 14, 2017,
Seguirant issued an NOO (March NOO) alleging that the
work violated the approved building permit and a new
building permit was required. Yoshikawa appealed the
March NOO to the Board of Building Appeals (BBA). In the
meantime, an Amended Building Permit consistent with the
Challacombe letter was issued, DPP officials assured
Yoshikawa that the project could proceed, and construction
resumed.

Seguirant issued a second NOV in April 2017. In
addition to repeating the initial allegations, Seguirant further
alleged that Yoshikawa had supplied false information to
obtain the Amended Building Permit and a new structure had
in fact been built on the location of the prior nonconforming
structure in violation of the Revised Ordinances of Honolulu.
Yoshikawa continued to challenge the orders, but city
officials went silent.

In November 2017, the BBA held a hearing on the March
NOO and, in early 2018, issued its Findings of Fact,
Conclusions of Law, and Decision and Order (BBA Order).

The BBA Order determined that a new building permit was
required for the removal of the walls on the existing structure
within the shoreline setback area, and that Yoshikawa had
failed to obtain the appropriate permit reflecting the actual
work done on the property. Yoshikawa did not appeal the
order.

Outcome: We affirm the district court’s order denying Seguirant
qualified immunity.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: