Attorneys on both sides claim victory in Maui Lani case

Maui County Department of Corporation Counsel attorneys say a state Supreme Court opinion this week favored the county, lifting an injunction on building and allowing development to proceed in two Maui Lani projects where county building height restrictions were at issue.

But Wailuku attorney Lance Collins says the 5-0 decision was a victory for the homeowners he represents on Palama Drive, which adjoins one of the developments in Kahului.

Collins said that the opinion issued Wednesday “reaffirmed” the decision by now-retired 2nd Circuit Judge Joel August that invalidated Mayor Alan Arakawa’s 2005 decision to exempt some Maui Lani developers from the county building height ordinance.

In 2008, August issued a permanent injunction preventing the county from approving the development based on Arakawa’s actions after some nearby residents sued the county and developers of the Fairways and Sand Hill Estates subdivisions.

Some homes on Palama Drive adjoin the Fairways project, where thousands of tons of dirt were trucked in to turn a gulch into a hill, raising the elevation of the 13.5-acre property so the fill dirt is above some rooftops along Palama Drive.

The county ordinance requires a building’s height to be measured from the top of the structure to the original or finish grade of the lot, whichever is lower.

But in 2011, after August’s decision, the County Council passed an ordinance allowing building heights to be measured from the top of the structure to the finish grade in project districts or planned developments with initial permits before 1991.

Both the county and Collins’ clients agreed the passage of the ordinance made the injunction moot.

But Collins said residents wanted to see August’s order remain in place.

“We’re very happy that the Supreme Court reaffirmed Judge August’s ruling, which was that what Mayor Arakawa did was wrong,” Collins said. “The real issue was protecting the Palama Drive folks’ judgment. That’s all that they really have to show. They were really wronged in all of this.

“The benefit for all of us is by having that, it will guide the county in the future.”

Because of the passage of the building height ordinance that applied to Maui Lani projects, the Intermediate Court of Appeals ruled that the case as moot, lifted the injunction against development in the subdivision and vacated August’s 2008 judgment.

The residents appealed the decision to the Supreme Court, which agreed the issue was moot, thus lifting the injunction and allowing developers to proceed, according to county attorneys.

But the Supreme Court left open the issue of whether August’s order should be vacated, sending that issue back to 2nd Circuit Court.

Attorneys said that the county plans to file a motion to vacate the order. Although that doesn’t have to be done for building to proceed, county attorneys said they didn’t think the decision that the county had acted wrongfully was accurate in the first place.

The Supreme Court agreed with August and the appeals court that the homeowners were acting on behalf of their own private interest in deciding they weren’t entitled to attorneys fees paid by the government.

The work done on behalf of the homeowners by Collins and two other attorneys amounted to about a half-million dollars in legal fees.

“It’s a little bit disappointing, but somebody’s got to take these cases,” Collins said.

The Supreme Court opinion was written by Justice Richard Pollack.

* Lila Fujimoto can be reached at