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County will appeal judge's ruling in Maui Lani fill case February 11, 2009 - By HARRY !AGAR, Staff Writer Save ( p SheRt WAILUKU - Maui County will appeal 2nd Circuit Judge Joel August's ruling in the Maui Lani fill case and in the meantime ask for a stay of his Jan. 2 decision that the county could not exempt developers from height requirements. On Tuesday, August declined to accept a motion fora stay without a formal, written order, and he also said his original order was clear: lot owners can apply for variances. His order said the county cannot issue building permits at Fairways at Maui t.anl or Sand Hills Estates if they conflict with current height limits. Deputy Corporation Counsel Madelyn D'Enbeau wanted confirmation that that would not prevent the Board of Variances and Appeals from considering applications. August said it would not, but he cautioned the board's legal advisers to keep the appeals process within narrow bounds. "There are lots of lots affected," August said, and they are not all the same." Appeals will have to consider each lot case by case. He offered some "general comments" about what the owners can anticipate. Granting mass variances would not likely be accepted, according to his research into variance laws. The variance process is not intended as a means to effectuate a wholesale abandonment of the intention of a zoning ordinance," he said. The county changed its height ordinance In 1991 after a Kuau builder used fill to raise a house high above neighboring buildings. It now limits residential heights to 30 feet above natural grade. The Maui Lani subdivisions got preliminary approvals before 1991 but did not seek Phase 3 Project District Approvals until 2004. According to August's findings of fact, the developers were concerned about marketing their tots If they could not raise them, and Mayor Alan Arakawa granted an exemption, or allowed them to follow the old ordinance. The neighbors were concemed about having high walls and a mountain of fill rising next to them, as well as alleging damages from vibrations from the soil compaction and runoff. August ruled that only the planning director had authority to issue the exemption. "I don't know how many people may be applying for variances," the judge said. He suggested that the county attorneys advise the board "to be mindful not to trespass on the legislative prerogatives of the County Council." He cited a New York case in which an entire nine -lot subdivision was granted variances to be 25,000 square feet when the local zoning required 40,000. The mass variances were not upheld. 4-1. Alan Ant-a'1 a rant ne'A>ne ..n1n1.0 1- lawaii .,a.ianra anneal -will- appeal -ju... County will appeal judge's ruling in Mau. u .... , p...•wl,a uu. vv • ••••••w . .w.......+�.p..... decision, regarding a Buddhist temple on Oahu. It was eventually required to lower Its steeple, with the Hawaii Supreme Court writing that zoning ordinances were to be "strictly but reasonably construed" but that legal interpretation was to "yield to the intention revealed by the context." "The letter of the law must give way to the spirit and intention" of the zoning, the court ruled. From a legal manual, August extracted a test for granting a variance. The exception must be related to a terrain condition unusual in the area. It should not alter the essential character of the neighborhood. It should not result from a previous action of the applicant. "I haven't found a case exactly on point," August said. But he said that the last provision would be especially relevant "when the developer caused the need for the remediation sought in order to maximize market value." * Harry Eager can be reached at heagar@mauirrews.com. Reconrrend Be the fist of your friends to recommend this. Subscribe to The Maui News Save (