Tussle over land results in TRO

A company that is constructing a four-story commercial building on a public land in Garapan has asked for and been granted a temporary restraining order that prevents the Department of Public Lands from conveying any part of 1,950 square meters of the property it wants to another.

H.S. Lee Construction Co., Inc.is planning to build parking spaces for its commercial building but Best Sunshine International, Ltd. apparently opposed the carving of the lot as it is part of a big land needed for its casino project.

Superior Court Associate Judge David A. Wiseman issued the TRO on Friday at the request of H.S. Lee Construction Co., Inc. pending a hearing and determination of its motion for preliminary injunction. The judge set the hearing on the preliminary injunction on March 2 at 9:30am.

Assistant attorney general Peter Prestley, counsel for DPL and Secretary Pedro A. Tenorio, opposed the TRO, saying he does not see any irreparable harm and immediate threat that H.S. Lee Construction will suffer.

Prestley said he had just spoken with Tenorio, who informed him that there’s no lease agreement yet between DPL and H.S. Lee regarding the land. Prestley said they are still negotiating and in fact there is no agreement yet as to the price.

Attorney William Fitzgerald, counsel for H.S. Lee Construction, said the court can issue the TRO based on his client’s verified complaint.

Fitzgerald said DPL first agreed to reserve 1,950 square meters for the 68 parking spaces of H.S. Lee’s building but it later claimed the land will be needed for the casino project.

Fitzgerald said if his client is not given the piece of land, they will lose everything, their investment, thus causing irreparable injury.

“We’re talking about a very small property,” said Fitzgerald, referring to their compromise for 1,000 square meters instead of the initial 1,950.

In an interview after the hearing, Prestley said the TRO is a first step on the way to a preliminary injunction. He said H.S. Lee Construction has to show a reasonable likelihood of success on the merits.

“They are fighting to lease some public land and they don’t have the lease to enforce at this point,” he said.

Prestley said he does not think H.S. Lee’s injuries are irreparable because any damage can be repaired with money.

“A TRO is a 10-day thing and usually granted. So we have preliminary injunction hearing on March 2,” he said.

Prestley disclosed that Imperial Pacific applied for the whole piece of property located in front of I Love Saipan building, but there’s no lease agreement between anyone yet on that property.

In H.S. Lee Construction Co. Inc.’s complaint and request for TRO and preliminary and permanent injunctions, Fitzgerald said that, on May 12, 2014, H.S. Lee Construction wrote a letter to Tenorio about its plan to build a four-story hotel and commercial space in Garapan.

At a July 13, 2014, meeting with H.S. Lee’s representatives, then-acting Zoning Board administrator Maryann B. Arriola determined that 68 parking spaces would be needed for the proposed project, which meant they would need 1,950 square meters more of land to meet Zoning’s parking requirements.

Shortly after that, Fitzgerald said, H.S. Lee representatives wrote Tenorio about Arriola’s determination and sought to enter into a lease for 1,950 square meters of land.

On Sept. 10, 2014, Tenorio sent a letter to H.S. Lee representatives, stating that DPL “has reserved a portion of public land per your request, but awaits final review and approval, until such time that information being requested to formalize the permit are submitted by your firm.”

Based on the assurances received from government officials to grant the required public land, Fitzgerald said H.S. Lee entered into a 32-year lease with Triple J. Saipan for the establishment of an international chain restaurant on the building’s ground floor.

On Oct. 24, 2014, H.S. Lee representatives learned that a proposed casino operator was now also seeking use of the same 1,950 square meters of public land.

At the Oct. 28, 2014 meeting, Fitzgerald said Tenorio informed H.S. Lee and associates that it was his impression that a Zoning permit had already been issued for the development project and that no additional land was required for the project.

The lawyer said Tenorio stated that, based on this assumption he sought to cancel the public land commitment to H.S. Lee and transfer this commitment to the casino.

However, H.S. Lee and Triple J. Saipan representatives corrected Tenorio by stating that no Zoning permit had been issued, and that a restaurant using 8,000 square meters on the ground floor requires 68 parking spaces and the 1,950 square meters of public land.

In an offer of compromise, Fitzgerald said Tenorio stated that if H.S. Lee and Triple J representatives would reduce the request for public land from 1,950 square meters to 1,000 square meters, this would allow him to satisfy the needs of both the casino and H.S. Lee and help the government.

On Oct. 28, 2014, H.S. Lee representatives sent a letter to Tenorio, stating that as a compromise they would be willing to reduce their request to 1,000 square meters, although this would require design and construction of a two-story parking deck at great costs to them.

Based on the government’s assurances of accepting the 1,000-square-meter compromise, Fitzgerald said H.S. Lee paid architects to design a new parking structure and site plan to accommodate the proposed hotel and restaurant uses.

Fitzgerald said Rachael Roque of DPL then informed Triple J representatives that DPL had changed their mind again and now would only grant 290 square meters of land to H.S. Lee.

On Jan. 28, 2015, H.S. Lee associates contacted Tenorio to state that the new proposal to reduce the assigned public land to 290 square meters would not meet their requirements for the international chain restaurant and hotel uses and was contrary to all previous agreements and assurances.

On Feb. 9, 2015, Fitzgerald said H.S. Lee and Triple J representatives met with Tenorio and DPL staff and were informed that the casino group had rejected the compromise and now wanted the government to “severely limit” the public land granted to H.S. Lee and give all the remaining 1,950 square meters of land that had previously been reserved for H.S. Lee to them.

Fitzgerald said H.S. Lee and Triple J representatives informed Tenorio and staff that this new reduction was another breach of an agreement and was not acceptable.