Height limit ordered for Maui Lani

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WAILUKU - Saying former Mayor Alan Arakawa had "no authority" to exempt Maui Lani subdivisions from current building height requirements, 2nd Circuit Judge Joel August granted an order that prohibits Maui County from issuing building permits that conflict with the current height limits in two Maui Lani projects.

The order for partial summary judgment applies to the Fairways at Maui Lani and the New Sand Hills, which is currently marketed as Sand Hills Estates.

In his decision filed Wednesday, August said the Maui Lani project district is subject to the residential height restriction - enacted by the Maui County Council in 1991 - that limits building heights to 30 feet from the natural or finished grade, whichever is lower.

The judge's order prohibits the county from taking any actions, including issuing building permits, that conflict with the height restriction in the two subdivisions.

Maui County Deputy Corporation Counsel Madelyn D'Enbeau said the county is considering its options, which include asking the judge to reconsider his ruling or waiting for the August to issue a final judgment on which the county can appeal the decision.

"Naturally we're disappointed in the decision, but we appreciate the effort the judge put into looking at all of the issues in what is a complex case," she said.

She said the county would need to decided withinn 10 days whether to file a motion for reconsideration.

In his ruling, August partially granted a motion for partial summary judgment from attorney David Gierlach, representing about two dozen homeowners who sued the county to have the height restriction enforced.

Some of the residents live along Palama Drive in Kahului, which is adjacent to the Fairways project. For the Fairways, 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 rises above some rooftops along Palama Drive.

Palama Drive homeowner Adrienne Owens, whose backyard now adjoins a 26-foot-high wall holding back the dirt, said Friday that August's ruling was "wonderful news."

"I'm thrilled that the little people can make a difference," she said.

In a separate lawsuit against the developer and contractors, she and other property owners are asking to be compensated for damage to their homes from compaction vibrations, dust and runoff that occurred while the Fairways site was under construction.

No homes have been built in the Fairways subdivision, which has been put up for sale by its owner, Oahu-based VP&PK LLC.

In his 49-page order, August outlined the history of the county building height ordinance and the Maui Lani project district.

Before September 1991, building height was measured from the finished grade to the rooftop. A change to the zoning code was initiated after a Kuau homebuilder placed fill on a single-family residential lot before building a house that towered over neighboring properties - prompting complaints from neighbors, according to then-Public Works Director Charles Jencks. The 1991 change revises the way building height is measured to specify that if fill is added to a site, building heights can be no more than 30 feet over the original "natural grade."

Applications for change in zoning and project district approval for Maui Lani were filed in September 1988. The 1,200-acre project district obtained Phase I and Phase II project district approvals in 1990.

About 10 years passed before the county issued construction permits for the New Sand Hills and Fairways subdivisions.

When then-Planning Director Michael Foley granted Phase III approval for the New Sand Hills subdivision in March 2004, no mention was made of the finished grade. But a grading and grubbing permit issued in August 2004 included the statement: "The applicant is advised that there are zoning restrictions of building heights which are measured from the top of the structure to the natural or finish grade, whichever is lower . . . Placing fill on your lot will reduce the allowable height to less than 30 feet from finished grade."

On Dec. 14, 2004, Foley rescinded final subdivision approval for New Sand Hills. In an interdepartmental transmittal, he said "issues have arisen regarding the current grading and the future compliance with building height restrictions."

Eight days later, Foley, Arakawa and other county officials met in private with Jencks, who was then associated with the Maui Contractors Association, and representatives of Maui Lani developers to discuss height restrictions in the Maui Lani project district. The developers said New Sand Hills lots were being sold and that applying the 1991 height definition "would have serious and adverse effects" on their ability to build and sell lots in the Fairways project.

Shortly after the meeting, Arakawa told the developers that the county would apply the old height restriction to the New Sand Hills and Fairways projects because they had received Phase II project district approvals before the height restriction was changed.

In a May 2005 letter to Fairways developer Val Peroff, Arakawa said he had made an "administrative decision" to allow the projects to continue under the old ordinance measuring building heights from the finished grade.

In December 2005, Arakawa sent the same letter to Foley about the Fairways and New Sand Hills projects. The mayor also responded to an inquiry from Foley asking for clarification on the county grading Phase III approval for the Fairways project.

August's ruling said it was "unclear" why Foley would ask about an approval that only he was authorized to issue and how Arakawa could issue Phase III approval for the projects when only the planning director has the authority to do so.

The judge said Arakawa did not have the authority to decide not to enforce the height definition within the Maui Lani project district. Arakawa's decision to overlook the 1991 height ordinance "had the prohibited effect of defeating the purpose and effect of the comprehensive zoning ordinance," August found.

"Mayor Arakawa had no authority to enforce zoning ordinances, nor issue a variance or an exemption from the application of a Council-passed ordinance," August said in his ruling. "Whatever reliance a developer placed upon an unauthorized decision is misplaced . . . Furthermore, the developers were on notice in various permits that compliance with the new height definition was required."

Lila Fujimoto can be reached at lfujimoto@mauinews.com.