Judge: gov't erred in not providing notice - KUAM.com-KUAM News: On Air. Online. On Demand.

Judge: gov't erred in not providing notice

by Mindy Aguon

Guam - Citing it as "an example of an ordinary citizen fighting City Hall and winning", a Tamuning resident is celebrating her victory over the government. She filed suit against the Guam Land Use Commission after not receiving notice of public hearings for the project that now towers over her home.

The Guam Land Use Commission will have to rehear a zone variance application that it approved three years ago for Younex International after a Superior Court judge determined the government failed to properly give notice to nearby residents of a public hearing on the company's application for a zone variance.

Tamuning resident Mary Ann Sablan looks out her front door every day to see what she calls the "Tombstones of Jonestown".  It's better known to others in the community as the Emerald Verace Condominiums. "If those buildings are not torn down or destroyed, if we were ever to have another 8.0 earthquake, there's gonna be some human lives taken on that and we why wait for that," she told KUAM News. "One way or another, it will go down, that's how I see it. It's really dangerous."

That's the message Sablan would have told the Guam Land Use Commission had she been informed of a public hearing they had back in November 2007 for a zone variance application submitted by Younex International. Instead, she learned of the high-rise condominium project in the local media and then watched in disbelief as construction began.

"We went through a lot of inconvenience, with the construction the noise, the pollution and everything. I just couldn't believe that something that huge can be developed right on that property," she said.  

"All you had to do was walk across Western Boulevard and her house is right there on the corner, yet she wasn't given notice and it was very easy the requirements are very simple," added Darlene Hiton. As Sablan's attorney, she says during the trial it was very clear with testimony from her client and other residents in the area, that the Open Government Law was violated as many landowners were never provided notices about the GLUC public hearing.

"It didn't require very much," noted Hiton. "But yet the government chose to pick and choose who they were going to notify instead of following the law."

Superior Court Judge Elizabeth Barrett Anderson declared the GLUC's approval of Younex's zone variation null and void and said failure of the respondent to have provided notice to the petitioner is inexcusable and almost merits a finding of negligence. But GLUC board chair Jay Lather defends the actions of the Commission, issuing a statement today. Lather says the organization complied with local law regarding notice requirements for zone variances.

Additionally he says, "By this decision the court has now applied the additional notice requirements for conditional use applications to zone variances. This is beyond Guam law."  Lather added, "The GLUC respects the courts and we are looking to the attorney general for guidance as to how we should proceed in light of this new requirement."

Younex meanwhile isn't commenting on specifics saying the matter is being reviewed internally for appropriate actions. Because this is a legal matter no further comments can be made.

As for Sablan and other residents in Tamuning, if the GLUC has another public hearing on Younex's zone variance, she says, "I have a strong feeling is they'll just have to do what's right. And that is those buildings are dangerous. It has to come down one way or the other."

Now, if the GLUC chooses not to appeal the judge's ruling and proceeds with holding another hearing on the zone variance issue for Younex, two things could happen: the Commission could grant another zone variance allowing the Emerald Verace project to proceed, or the Commission could deny the variance, which further raises the question of whether the four high-rise buildings that have already been erected would have to be demolished.

It's also worthy of note that should also note that while the plaintiffs ask for attorneys fees and other legal costs associated with the case, Judge Barrett Anderson denied the request.

Writ of Judicial Review for this case

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