WAILUKU - Maui County and developers have been ordered to pay nearly $19,000 in costs to attorneys for residents who sued to enforce current building height limits in Maui Lani subdivisions.
But 2nd Circuit Judge Joel August denied a request Tuesday for about $200,000 in legal fees sought by the attorneys, who haven't been paid while representing more than two dozen homeowners for the past two years.
While acknowledging that the residents acted when it appeared the government would not, August said it wasn't clear that the number of people who benefited from the injunction justified the awarding of legal fees.
"The court does not wish to discount the significance of the lawsuit which was brought by the plaintiffs," he said. "Clearly, the financial burden of bringing those claims has been tremendous. It is clear that private enforcement was necessary.
"We are supposed to be a government of laws, not of persons. This case has shown the community what happens when we become a government of persons and not a government of laws, and that's terribly significant."
Many of the residents who sued live along Palama Drive, which is adjacent to the Fairways at Maui Lani project in Kahului. 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.
Developers cited an "administrative decision" by former Mayor Alan Arakawa to exempt the projects from current building height limits.
In December, August ruled that Arakawa didn't have the authority to grant an exemption and that the residential height restriction enacted by the Maui County Council in 1991 applies to the Maui Lani project district. The height restriction limits building heights to 30 feet from the natural grade.
The judge's order prohibits the county from taking any actions, including issuing building permits, that conflict with the height restriction in the Fairways and New Sand Hills projects.
The decision has been stayed while the county appeals.
The ruling denying legal fees also will be appealed, said Lance Collins, one of three attorneys who represented residents in the lawsuit.
"It has a major chilling effect on the ability of people to have access to justice," Collins said.
Attorney David Gierlach, also representing residents, argued that the judge's ruling on the height restriction had widespread impact for all of Maui County.
"The failure to grant fees is going to have a real chilling effect on people like me who will not be willing to take on the county in the future," Gierlach said.
He said lawyers didn't charge residents, who couldn't afford to pay legal fees.
The $18,694 in costs awarded will be shared by the county and developers, who had intervened in the lawsuit and filed motions in the case until withdrawing shortly before the judge's ruling.
* Lila Fujimoto can be reached at lfujimoto@mauinews.com.
