2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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Defendant-Appellant Oceanside has outstanding contracts for completion of the improvements, dating back to 1999. The value of these outstanding contracts is 128 million dollars. R, Test. Robert A. Stuit, Tr., July 23, 2003, a.m.,p. 69. In the absence of timely legal challenge, in 1999, approximately 60 Hokuli'a lots were sold. In 2000,40 to 60 lots were sold. Test. R. Stuit, July 23, 2003, a.m.,p. 77. Thus approximately 100 lots were sold prior to the filing of Plaintiff-Appellants'HRS Chapter 205 claims. These third-party purchasers are also severely prejudiced by the cloud cast by Plaintiff- Appellee's tardy HRS Chapter 205 claims. (Stuit Transcript See Appendix"G'.) Defendant-Appellants can now look forward to these third-party purchasers seeking relief,rightly or wrongly, from Defendant-Appellants should this matter not be speedily resolved. The Circuit Court ignored all of the foregoing. It concluded in COL No. 26 of the Count IV Order: 26. The project is not yet substantially complete. Of the approximately seven hundred houselots, only one house is in the process of being built. Given these circumstances,Plaintiffs were diligent in advancing these claims, and any delay that resulted in Plaintiffs' pursuing these claims is not unreasonable; therefore, Oceanside has failed to meet its burden to prove its affirmative defenses under the doctrine of laches. R at 66:21413A256-57. The foregoing is plainly erroneous, an abuse of equitable discretion and legally wrong in light of the substantial evidence in the record. Courts have applied laches to bar zoning violation injunctions where complainants knew or should have known of the claim but waited four months to sue,while the developer did$3,500 out of an estimated total cost of$6,000 worth of work, and removal would have cost an additional$1,500. Hill v. Board of Adjustment of the Borough of Eatontown, 122 N.J.Super. 156, 163, 299 A.2d 737, 741 (1972). See also Argument Section "D(3)"below. The Circuit Court's findings of no unreasonable delay are grossly inequitable and unrealistic. Without question, there has been severe prejudice to Defendant-Appellants due to Plaintiff-Appellees' delay in bringing their claims. There will never be a clearer case in which laches should bar claims. Plaintiff-Appellees' HRS Chapter 205 claims should be barred. 4. The Circuit Court Erred in Holding that As a Matter of Law,Laches Does Not Apply. In Paragraph No. 2 of its Count IV Order,p. 30, the Circuit Court avoided laches by concluding that"As a matter of law, Oceanside is barred from asserting an equitable estoppel or 32