A December 2021 flood that allegedly caused extensive damage to an East Oahu home later resulted in a lawsuit against the City and County of Honolulu.

Filed in 1st Circuit Court in November 2023, the lawsuit by plaintiffs Michael Sklarz and Jo Frasier claimed their residence at 158 Hanapepe Loop in the Portlock neighborhood of Hawaii Kai was severely damaged after “contaminated floodwater, wastewater, and debris” overflowed from a nearby storm drain onto their property and into their home.

The lawsuit blamed the flooding on what it said was the city’s failure “to inspect, control and maintain the waterways of East Oahu in order to prevent and mitigate damages due to flooding and stormwater.”

The plaintiffs sought relief by way of monetary damages from a court trial. The city, in turn, sought to stop the civil action altogether.

To that end, the Honolulu City Council on Dec. 11 adopted the city administration’s request for authorization to settle the complaint.

The Mayor’s Office this week confirmed the case was settled.

“In exchange for the release of all claims, the city will pay plaintiffs $75,000,” Ian Scheuring, deputy communications director for Mayor Rick Blangiardi, told the Honolulu Star- Advertiser. “Plaintiffs’ primary allegation was that their property was damaged as a result of flooding that occurred on Dec. 6, 2021, due to a clog in a city storm drain.

“The city denies liability for the incident,” he added, “and the settlement of the disputed claims by the city is not an admission of liability.”

But for the plaintiffs’ attorney, Eric Seitz, the Council’s vote and the settlement of the lawsuit were equally surprising.

“First of all I didn’t know that we settled,” he told the Star-Advertiser by phone. “Nobody got back to us.”

Seitz confirmed his clients had made a settlement offer of $75,000 to the city “two or three months ago. And they kept telling us ‘we’ll get back to you,’ but they never got back to us.”

Regardless, Seitz said the city “has had lots of problems with drains in East Oahu.”

“That’s very well-documented,” he added. “There were repair issues and construction issues.”

As the lawsuit states, the city, as the owner, operator and easement holder, is “tasked with and responsible for planning, designing, and constructing (facilities) and improvements to plan for, detect, mitigate and prevent loss of life and property due to flooding.”

The complaint further noted the city is also tasked with “inspecting and maintaining all waterways, facilities, and improvements in East Oahu including, but not limited to all streams, channels, and drainage ways that traverse or affect Hanapepe Loop.”

In addition, the city is “responsible for inspecting, managing, maintaining, and reporting to the state Department of Health, which had been delegated the responsibility for the application, oversight, and management of the city’s National Pollutant Discharge Elimination System, or NPDES, permit” by the U.S. Environmental Protection Agency, the lawsuit states.

“Since 1987, the city has not planned, designed or implemented a written storm prevention or mitigation plan for any streams, channels or waterways on the island of Oahu,” the complaint alleges. “In 2010, the city purportedly planned, designed, and implemented a system to inspect, maintain and report the inspection, maintenance, and reporting of drainage basins in East Oahu to secure an NPDES permit from the EPA.”

Despite making “these representations to the state and federal government, the city has either failed, neglected, or refused to provide any such maintenance reports or records in violation of the NPDES permit.”

“The city has testified that due to a change in computer software that it is unable to produce any maintenance records before 4 or 5 years ago,” the lawsuit contends.

“The city has testified that every summer up until 2009, a full crew from the city Department of Facility Maintenance would physically go into the streams and waterways with heavy equipment to clean and maintain the streams and waterways,” the lawsuit states. “This maintenance would go on for several weeks during the summer when the streams and waterways were at their lowest flow.”

It adds that the city had testified that because of a 10-year dispute with the federal government over the use of heavy equipment for waterway and stream maintenance, maintenance was severely curtailed from 2009 up to the 2018 storm, “causing an extensive build-up of debris and clogging.”

“The city has produced the only maintenance records that it has,” the suit says, showing less than two weeks’ worth of maintenance “once every two or three years.”

Scheuring said the Mayor’s Office could not immediately respond to claims the city failed to provide maintenance reports on inspections of the drainage systems to the EPA or DOH.

“We need additional time to investigate the answer to this question,” he said.

The EPA did not immediately respond to a request for comment.

Meanwhile, Seitz asserted his clients’ lawsuit was based, in part, on the catastrophic Hahaione flood of 2018.

“On April 13, 2018, the next inevitable storm occurred, which predictably caused flooding across East Oahu leaving hundreds of tons of debris on roads and inside homes, businesses, and schools,” the complaint states. “Hundreds of homes were damaged and approximately 180 families received serv­ices at disaster recovery centers on Oahu that were set up in the weeks after the event.

“Following the April 2018 Hahaione Flood, residents reported that sewers overflowed with raw sewage backing into drains and sewage-laden water running into streets, neighborhoods, and living rooms,” the lawsuit states. “Water backed up and drains and infrastructure were blocked and clogged due to being under-designed and not maintained.”

Although not as destructive an event, Seitz said similar damage occurred at his clients’ Portlock residence over three years later.

“There was damage to their floors. There was damage to furniture in their house. They lost time working because of the fact that they had to redo significant portions of their house,” he said. Their “damages were probably a little over $120,000,” though he noted that figure could have easily risen to $150,000.

However, Seitz claimed his clients “agreed that at this stage in their lives they did not want to spend a lot of time litigating this.”

“So, if we could settle the case, we would take $75,000,” the lawyer said, “which is an adequate amount of money to compensate them for what it actually cost them out of pocket.”