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judge, denies motions in Palama fill case April 24, 2009 - By HARRY EAGAR, Staff Writer Save) O SHARE 1'r> WAILUKU - Second Circuit Judge Joel August rebuffed motions from both sides in the Palama Drive fill case Thursday, but both points likely will be appealed. August denied a county motion to stay his order from December bloddng the county from Issuing building permits that conflict with height ordinances at the Sand Hills or Fairways subdivisions at Maui Lani. The county Is appealing his decision. August also denied a motion from the victorious plaintiffs to exact attomey fees under the public attomey general doctrine. In February, he had ordered the county and developers of the properties to pay the winning lawyers $19,000 to cover their costs, but he denied 10 times as much in fees. August on Thursday said he was sure his decision would be appealed, and he seemed curious to know whether the Hawaii Supreme Court may use this case to extend the public attomey general doctrine, which has been around In theory for decades but only recently was applied In awarding fees to attorneys for the Sierra Club in the Hawaii Superferry dispute. The private attorney general doctrine was invented In Califomia and allows courts to award fees to reimburse private lawyers when they win a case that vindicates public rights, but only if the rights apply beyond the specific case. In the Superferry case, the wider right that was affected was the requirement that secondary impacts be considered in environmental studies. The private attomey general doctrine also demands that a significant number of people will benefit from the ruling. August noted that in the Maul Lani case, it was not dear whether more individuals benefited or more would consider themselves harmed by the outcome, since although the plaintiffs got what they wanted, an even more numerous group of lot owners are now all but prevented from making use of their property. "They are caught between a 40 -foot berm and a hard place," he quipped. The dispute was about whether the developers could use truckloads of fill to raise the height of their Tots. The county ordinance regulating fill was made stricter during the long gestation of the project, and then -Mayor Alan Arakawa decided the developers could abide by the older rules. August said Arakawa exceeded his authority. Nearby homeowners objected to losing their views and said their properties were damaged by the work. David Gierlach, the lawyer who agreed to represent them on contingency, said he will appeal August's derision, while he will continue to pay the bills to counter the county's appeal, so that when the high court finally rules on the fees request, his hoped -for private attorney general bill will be much higher than the $200,000 -plus where it stands now. denies - motion... Judge denies motions in Palama fill case... August said the victory by the Palama residents did not establish a wider public policy precedent, nor did it affect a large- enough number of people to trigger the private attorney general doctrine. On the county's side, in asking him to stay his December order, Deputy Corporation Counsel Madelyn D'Enbeau said the injunction affected many lots that had no effect on the views of the Palama Drive residents. And she suggested lot owners would suffer irreparable harm during the wait for the appeal dedslon. August said he did not find it likely that the appeal would succeed. Nor did he agree that some irreparable harm would occur that could not be compensated by money damages. In fact, he said, several lot buyers already have sued to rescind their contracts or to win damages; so apparently they believe they can be made whole by an award of monetary damages. Gierlach objected that it was an assertion, not backed up by evidence in court, that the Palama Drive residents would not be affected by building on the disputed lots. And, August said, it seemed Inappropriate for the county, which Is supposed to be neutral between different classes of residents, to be taking up the cause of one set of lot owners - the ones who have not built yet - against the possible Interests of the owners of developed lots. In any event, the owners of the bare lots have the option of asking the Board of Variances and Appeals for variances. A variance would not necessarily encroach on his December order, he said. * Harry Eagar can be reached at heagar(bmauinews.com. Recommend Be the fist of your friends to reonrrrnend this. Subscribe to The Maui News Save I