§607-25  Actions based on failure to obtain
government permit or approvals; attorney's fees and costs.  (a)  As used in
this section, "development" includes:



(1)  The placement or erection of any solid material
or any gaseous, liquid, solid, or thermal waste;



(2)  The grading, removing, dredging, mining, pumping,
or extraction of any liquid or solid materials; or



(3)  The construction or enlargement of any structure
requiring a discretionary permit.



(b)  As used in this section,
"development" does not include:



(1)  The transfer of title, easements, covenants, or
other rights in structures or land;



(2)  The repair and maintenance of existing
structures;



(3)  The placement of a portable structure costing
less than $500; or



(4)  The construction of a structure which only
required a building permit and for which a building permit could be granted
without any discretionary agency permit or approval.



(c)  For purposes of this section, the permits
or approvals required by law shall include compliance with the requirements for
permits or approvals established by chapters 6E, 46, 54, 171, 174C, 180C, 183,
183C, 184, 195, 195D, 205, 205A, 266, 342B, 342D, 342F, 342H, 342J, 342L, and
343 and ordinances or rules adopted pursuant thereto under chapter 91.



(d)  For purposes of this section, compliance
with the procedural requirements established by chapter 343 and rules pursuant
to chapter 343 constitute a discretionary agency approval for development.



(e)  In any civil action in this State where a
private party sues for injunctive relief against another private party who has
been or is undertaking any development without obtaining all permits or
approvals required by law from government agencies:



(1)  The court may award reasonable attorneys' fees
and costs of the suit to the prevailing party.



(2)  The court shall award reasonable attorneys' fees
and costs of the suit to the prevailing party if the party bringing the civil
action:



(A)  Provides written notice, not less than
forty days prior to the filing of the civil action, of any violation of a
requirement for a permit or approval to:



(i)  The government agency responsible for
issuing the permit or approval which is the subject of the civil action;



(ii)  The party undertaking the development
without the required permit or approval; and



(iii)  Any party who has an interest in the
property at the development site recorded at the bureau of conveyances.



(B)  Posts a bond in the amount of $2,500 to
pay the attorneys' fees and costs provided for under this section if the party
undertaking the development prevails.



(3)  Notwithstanding any provision to the contrary in
this section, the court shall not award attorneys' fees and costs to any party
if the party undertaking the development without the required permit or approval
failed to obtain the permit or approval due to reliance in good faith upon a
written statement, prepared prior to the suit on the development, by the
government agency responsible for issuing the permit or approval which is the
subject of the civil action, that the permit or approval was not required to
commence the development.  The party undertaking the development shall provide
a copy of the written statement to the party bringing the civil action not more
than thirty days after receiving the written notice of any violation of a
requirement for a permit or approval.



(4)  Notwithstanding any provision to the contrary in
this section, the court shall not award attorney's fees and costs to any party
if the party undertaking the development applies for the permit or approval
which is the subject of the civil action within thirty days after receiving the
written notice of any violation of a requirement for a permit or approval and
the party undertaking the development shall cease all work until the permit or
approval is granted. [L 1986, c 80, §2; am L 1990, c 20, §1; am L 1995, c 69,
§15; am L 1996, c 82, §6; am L 1997, c 2, §12]



 



Law Journals and Reviews



 



  Enforcement of Environmental Laws in Hawai`i.  16 UH L. Rev.
85.



 



Case Notes



 



  Under this section, attorneys' fees may be awarded to:  (1) a
member of the public who prevails against a private party who has been or is
undertaking development without obtaining all permits or approvals required by
law from governmental agencies; and (2) a defendant private party who prevails
against a plaintiff who has brought a frivolous suit.  86 H. 132, 948 P.2d 122.



  Where plaintiff's claims were not frivolous, award of
attorneys' fees to defendants not warranted under this section.  86 H. 132, 948
P.2d 122.



  Where nothing in this section indicates that this section
should provide the exclusive means for awarding attorney's fees and costs
against a party for a violation of chapter 343, this section was not the
exclusive means for awarding attorney's fees and costs for violations of
chapter 343; also, this section did not prevent an award of attorney's fees
against defendant Superferry pursuant to the private attorney general
doctrine.  120 H. 181, 202 P.3d 1226.



  Where there was no record in the case that defendant Superferry
qualified under subsection (e) as a private party that was "undertaking
development without obtaining all permits or approvals required by law",
trial court erred in awarding plaintiff attorney's fees and costs against
defendant based on this section.  120 H. 181, 202 P.3d 1226.