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HomeMy WebLinkAboutCOM 0163.012 2010-2012Karen Guerreiro P.O. Box 6728 Ocean View, HI 96737 808 - 990 -3992 kiguerreiro @gmail.com July 22, 2011 Chair and Members of Hawaii County Council 25 Aupuni St. Hilo, HI 96720 Dear Chair and Hawaii County Council: I, Karen Guerreiro, resident and land owner of Ka'u, provide testimony today in support of Councilwoman Brittany Smart's proposed Resolution 60 -11: RESOLUTION TO TEMPORARILY DELAY COUNCIL ACTION ON GENRAL PLAN AMENDMENTS AND REZONING APPLICATIONS IN THE DISTRICT OF KA'U UNTIL THE KA'U COMMUNITY DEVELOMENT PLAN IS ADOPTED BY ORDINANCE, OR UNTIL DEC. 31, 2012, WHICHEVER SHALL OCCUR FIRST. I have been an active participant in the development of our Ka'u CDP. I am gravely concerned with the continued delays and delays and delays that have necessitated Councilwoman Brittany Smart's proposed Resolution 60 -11. We have turned a two year project into a four plus year project. We have spent a lot of time getting nowhere. I am also gravely concerned with the conflict of interest surrounding our chosen new consultants, PBR Hawaii to assist with our Ka'u CDP. PBR Hawaii is Nani Kahuku Aina, LLC's consultant for their proposed new town Kahuku Village, here in Ka'u. We have yet to answer the question: "Do we need a new town in Ka'u?" We have yet to answer the question: "Where would we put a new town in Ka'u?" We have yet to answer the question: "How will the county allocate money for solid waste, water, police, and fire department for proposed new town Kahuku Village and Ocean View ?" Who best to answer these questions? Not Nani Kahuku Aina, LLC's lead consultant, PBR Hawaii, for they of course would want a new town and they of course would want it located on Val and Katherine Peroff's property known as Nani Kahuku Aina , LLC's and their proposed new town Kahuku Village. Comm. No. / IP 3 & /2. Ref. To: Pte"W " Coahc: 1 Ref. Dote JUL 22 2011 I ask how this is not a grave conflict of interest utilizing same consulting firm for both projects. Per Ron Whitmore, there is no conflict of interest. Per Ron, Roy Takemoto of PBR Hawaii work on our Ka'u CDP is limited to the following area: 1. Creating village /town centers 2. Establishing community facilities districts 3. Development of a green infrastructure network in Ka'u 4. Creating strategies for "repairing" Ocean View and Discovery Harbor, by managing build out 5. With PlaceMakers, Roy worked on Community Profile Ron insists there is no conflict of interest. How can PBR Hawaii work simultaneously on our Ka'u CDP and the Peroffs newly proposed and petitioned new town Kahuku Village without a grave conflict of interest. How can they, PBR Hawaii, answer item 1? Creating village /town centers without wanting the outcome to favor the Peroffs' petition? For PBR Hawaii working on 2, establishing community facilities districts, is a major coup, for Nani Kahuku Aina, LLC's petition for amendment to the general plans asks for community facilities including fire and police station even if that means usurping Ocean View's request. Hence 2 is very pertinent to them. This is very much a grave conflict of interest. Val and Katherine Peroff have developed elsewhere in the state including on Maui. On Maui the Peroff's developed residential lots on a golf course, the Maui Lani subdivisions. The developers developed coveted ocean view lots in this area. In order to develop such coveted views, the developers had to raise the grade 30 + feet, blocking the beautiful ocean view of many already existing owners and violating Maui's 1991 building codes limiting buildings to 30 feet above natural grade. The Peroffs got past this 1991 height limitation in Maui by having the mayor of Maui sign off on their permits. You can read full history in the attachment. I fear for such disrespectful development occurring in Ka'u and hence, beg and plead, you Hawaii County Council, please pass Councilwoman Brittany Smart's resolution 60 -11 so we can freeze large scale development requiring general plan amendment changes and rezoning until the Ka'u CDP is completed. Thank you....Mahalo for your time. Respgctfully yours, Karen Guerreiro THE MAUI LANI RISE: Developer raises grades, blocks views of neighbors June 12, 2006 By VALERIE MONSON, Staff Writer Save I © SNARE r_ KAHULUI - How much fill Is too much fill? And, how can high can you go? Those questions are troubling neighbors of rapidly rising Maui Lani subdivisions while stirring controversy for Maui County Council members and officials of Mayor Alan Arakawa's administration. Residents of old -time neighborhoods along Nakoa and Palama drives say they are alarmed to see views from their homes obstructed by upcoming subdivisions in Maui Lani that have risen 15 or 20 feet above the natural grade because the developer has dumped hundreds of truckloads of fill into what had been low -tying areas. That means the new houses will get coveted ocean views while longtime residents, most of them local people who have never owned another home, will be faced with a towering neighbor. "This is a total shock," said Hyram Heu from the home he's lived in since small -kid time in the 1960s. "I knew about the golf course, and I knew about the plan to build the first group of houses that went up several years ago (The Island), but that didn't bother me because I knew we had the gulch and all the kiawe trees in there separating us." That gulch, however, has been cleared and filled with mill mud from the old Pala Sugar Mill, a substance that has been questioned by other neighbors because it could be laced with chemicals, including arsenic. Across from lieu's house, the level of the fill has been built up so high that the new plateau is above some of the Palama Drive rooftops - and that's without the two rows of two -story houses expected to follow, making the finished height possibly 50 feet or more in places. On the other side of Maui Lani, residents of Nakoa Drive were just as startled as Heu to see the gulch behind their homes begin to climb, too. Filled with sand from another part of the development, the 108 -lot subdivision has been raised to the point that some of the neighbors - many of whom have lived in their houses for 30 years or more - say they've already lost their ocean and mountain views. Both projects appear to conflict with a portion of the Maui County Code, which was amended In 1991 to limit the height of a building to no more than 30 feet above "the natural or finish grade, whichever is lower." The code was changed specifically because a new owner in Kuau had artificially elevated his lot to give him views that his neighbors previously enjoyed. But since Maul Lanl got its Project District Phase I and Phase II approvals from the County Council and the Maui Planning Commission more than 25 years ago - when building heights could be determined from the final, altered grade - the developer was given the green light to proceed under the old ordinance by v1AUI- LANI- RIS... THE MAUI LANI RISE: Developer raises g Mayor Alan Arakawa. The mayor told The Maui News that he reached that decision after meeting with county attorneys and other members of his staff last year when the issue came up. "We talked about what position we could defend in court because of the change of rules," said Ara -kawa. "Approvals were given to Maui Lani and the owner progressed on the assumption that those approvals were valid. You can't apply rules that weren't in place when it was approved. In court, we'd get killed." The mayor's decision drew fire during a council Planning Committee meeting last week in which residents of Nakoa Drive pleaded their case. Some council members were outraged that it appeared Arakawa had approved the old building heights on his own. There was even talk among council members about launching an investigation and, if wrongdoing were found, to possibly take the mayor to court. "What authority does the mayor have to contradict the county code ?" asked Council Member Michelle Anderson, who said it was "reprehensible" that developers were allowed to create such hardships on existing residences. Arakawa said it was a decision he didn't enjoy making. "There will be traumatic effects on individuals, but how can you Interpret this in any other way ?" he said. "I'm not going to disagree (that the existing homeowners won't suffer), but we had to make this decision based not on any one project but for the county." The two Maul Lani parcels are owned by separate limited liability corporations that are headed by the same man, Val Peroff of Oahu. Peroff was on the Mainland last week and unavailable for comment. Project Manager Jack Wat -kips also could not be reached. The mayor said he worried that the county could get caught up in another "Montana Beach" lawsuit in which taxpayers ended up spending more than $4 million for an oceanfront development near Paia because previously issued permits were rescinded. "We're not arbitrarily making the decision;" said Arakawa. "We're looking at facts based on the law." If the current ordinance were enforced, certain homes in the new subdivisions might be Limited to 10 feet or less because of the 20- foot fills already in place, "making some of these lots undevelopable," Arakawa wrote In a letter to Peroff. "To resolve this conflict, I made an administrative decision to allow the project to proceed with building heights determined from finished grade," the mayor concluded in a letter he signed May 31, 2005 - 11 days after 17 residents of Nakoa Drive sent a petition and photographs to Arakawa complaining about the rising sea of land behind their homes. In apparent response to the controversy, the Planning Department has proposed a change to the county code that states that the 1991 amendment would not apply to site plan approvals granted with a spedai management area permit or approvals of Project District Phase II or Planned Development Phase II. The Maul and Lanai planning commissions have recommended adoption of that language, but the Molokai Planning Commission stilt wants to review any project that intends to use the finished grade as its base. The situation at Palama and Nakoa drives - Palama runs along the Kahului edge of Maui Lani and Nakoa follows the Wailuku boundary - has stirred up other concems regarding the county's policy in approving grading permits, either at the department level or during the public review process. Because projects are usually in their early stages when they get their entitlements, decision - makers often have no idea what the final lay of the land will look like. The huge increases in elevation at Maui Lani have taken most everybody by surprise. Planning Director Mike Foley declined to comment for this story, referring all questions to Ara -kawa. But he shed some light on the MAUI- LANI- RI5.__ THE MAUI LANI RISE: Developer raises g... situation at Nakoa Drive during a Maui Planning Commission meeting a year ago. "Some of these projects have been around for a long time, but one of the controversial areas is in Sandhins (that borders Nakoa Drive), a portion of Maui Lani where the new project has been graded to the extent where the new houses are blocking the views from existing houses," Foley said, according to the meeting transcript. "The fill is 15, 20 feet on some of these Tots and It was approved, but It was approved with Inadequate review by the county staff and by the commission and by council and now we're seeing the unfortunate impacts of these approvals." At that same meeting, Susan Molkeha, then chair of the commission, said development plans that routinely come before the panel are almost always "conceptual" In nature "so we don't see grading." She said more information should be required early in the process so everyone realizes how much the original topography will be altered. Foley told commissioners he hoped that the new language would be approved and that the Planning Department would be able to "prepare some standards with Public Works regarding grading ... so that we have some criteria to look at that doesn't exist now." Corporation Counsel Brian Moto didn't respond to a phone call for comment, but he also spoke at that planning commission meeting. Moto said that some projects, particularly those with golf courses, often use fill to elevate the houses to resolve drainage issues. Golf courses often substitute for drainage areas, he said. Drainage is one of the key concems of the Palama Drive neighbors. Their street, already In a depression, floods so easily that "when we hear it start raining at night, we all jump out of bed and move our cars" to higher ground, said Annette Heu. While some runoff will be directed to the Maui Lani golf course, the 13 -acre, 50 -lot subdivision above Palama also has been designed with a system of multiple sump pumps in a concrete manhole that will be located between the Tower tier of new homes and above four of the Palama residences. Annette Heu said she doesn't think the developer has done his homework. She said the area is infamous for its Infestations of ground termites that can eventually gnaw through pumps. Heu and her husband worry that the new wall of fill will result in more flooding and muddy runoff because it has taken the place of the gulch, which used to carry away at least some of the water. Both Palama and Nakoa drives are older neighborhoods, mostly with humble one -story homes, many of them still occupied by the original owners who are now senior citizens on fixed incomes. According to neighbors, Nakoa means "the Warrior" because the lots were designated for returning soldiers with the famed 442nd Regimental Combat Team. Palama was part of the seventh increment of Dream City, which gave families In the plantation camps the opportunity to own homes. Because approvals for Maui Lani were granted so long ago, neighbors were never told when the new round of construction began last fall with the clearing of the gulch. Annette Heu said that work sent "rats and rats and rats" running into their homes and yards. Earlier this winter, a stream of dump trucks began rumbling down nearby Kea Street with loads of mill mud. Ever since, neighbors have lived with noise so loud that their houses shake and with so much blowing dust that their windows are caked with black crud. One homeowner wants to know if the developer will pay for all the family heirloom vases that have been knocked off his shelves by the vibrations of the heavy machinery. The state Department of Health has also ordered that samples of the mill mud be tested at the site of the Pala mill as well as at Maul Lani and a Spreckelsville site where the mud is being used as till because of concems that the sediment could contain harmful UIC111nd1,. THE MAUI LANI RISE: Developer raises g... But work continues as usual. Karen Goo lives next to the Heus. Her mother has a home just down Palama where a tall dust fence now separates her backyard from the new construction by Inches. Goo said she's been trying to recover from surgery even as the trucks and bulldozers grind overhead, sometimes six days a week and even recently on Memorial Day. "It's not that we're anti -de- velopment," said Goo. But, "If they're going to build, don't destroy the original lay of the land." Annette Heu agreed. "I don't think we'd be complaining If the houses were all on the same level and If they would fix the drainage," she said. Foley told planning commissioners last year that there's nothing in the law that ensures protection of private views. "Our regulations currently tell us to address the views from the roads, from the public domain, from parks and highways," he said. "We don't have regulations that specifically protect the private views and people do complain about that." Two years ago, the Haiku community pushed for conditions that set a precedent on protecting views along Hana Highway by restricting a developer's building heights to 20 feet from the original grade (10 feet less than the law allows) and implementing permanent building footprints that permits structures to be constructed only where they would be the least intrusive. In that case, members of the public told landowner Francesco Moretti that being limited to a one -story home was the tradeoff for living in such a beautiful location with spectacular views that should be enjoyed by everyone. The Maui Planning Commission essentially agreed. Before commissioners made a site visit to his property early In the process, Moretti erected "story poles" along his 45 -acre agricultural subdivision that were as high as his proposed structures on the eight lots. Commissioners and neighbors alike were able to assess the impacts. According to Foley, story poles can be helpful on large -lot applications but can be less effective In dense projects or ones that follow a slope. However, he noted that in one of the jurisdictions where he previously worked, the poles were automatically required of developers - and were often beneficial to all parties. "we had a lot of projects that were modified by the owners and the architects when they realized what the result looked like on the site," Foley told commissioners last year. "So it worked for both the neighbors and for the applicants." Of course, It could be too late to help the neighbors of Palama and Nakoa drives, but they're not giving up. And neither are members of the council's Planning Committee who are gathering more facts and expect to hold more meetings on the subject. Valerie Monson can be reached at vmonsonaimauinews.eom. © Copyright 2011 The Maui News. All rights reserved. This material may not be published, broadcast, rewritten .orredistributed. `mod Se the first yaw Subscribe to The Maui News Save i ..,�. .r.,........... 2nd Circuit Judge denied a Maui Lani de... �".+...M�M •4M w.w.r. W +rr.w.w w.w.rr�. Judge won't halt s Fairwa fill suit By LILA FWIMOTO, Staff Writer Fairways t reprinted courtesy Maui News 11/30/07 WAILUKU — Questioning former Mayor Alan Arakawa's "administrative edit Lani developments from building height limits, 2nd Circuit Judge to e Maui denied a developer's request to dismiss a lawsuit brought by KKahulluilhomeowners on Thursday houses now adjoin 30 feet of fill dirt n' whose "There is a real question about whether the mayor had any authority to determine that the height restrictions would not be enforced," August said. "Certainly, here the notice in his various permits that final approval depended on dew was on limits." comp�ance with the height August said he had seen no documentation that the Maui Lani development's approval, obtained in 1990, provided for houses to be buifigh II project from the finished grade, as the law would have allowed at the time. g of feet The following year, a new county law restricted residential building heights to 30 feet from or finished grade — whichever is lower. om the August also said he had no evidence that nearby residents were given notice about amount of fill planned for the Maui Lani subdivisions. the The judge made the comments Thursday as he denied most of the request by LLC and Maui County to dismiss the Iawsuit brought by 18 owners of houses Fairways project houses near August ruled that the lawsuit should include developer New Sand hills LLC as giving the plaintiffs 30 days to make the addition. a defendant, The lawsuit seeks to enforce current building height restrictions at the Fai Sand I- -fills subdivisions in the Maui Lani development Ys and New The lots in the New Sand Hills subdivision in Wailuku have been sold in some cases have built homes on the lots. to individual owners who Site work is continuing on the 14-acre Fairways subdivision, which is along Course and between The Island at Maui Lani subdivision and the er the homes al ng Palama Drive. older homes along With thousands of tons of dirt trucked to the Fairways site to fill a concerns about the loss of views and runoff from heavy rains. ' re�den have raised . Residents also have complained about vibrations and damage compacting work as well as dirt and dust from the construction r from etergelsey .com/Judge_wont_haltjairw... 1/4 2nd Circuit Judge denied a Maui Lani de... . asking that the case be dish ssed, attorney Ron Ogomori, representing VP&PK LLC and contractor KCOM Corp., said the issue in the case was "identicar to an earlier lawsuit brought by different area residents. That lawsuit was settled last year. But August said the only court finding in the 2006 case, which had been before 2nd Circuit Judge Joseph Cardoza, was that the building height ordinance "has since 1990 been historically and consistently interpreted by the county" to measure building heights in the Maui Lani project district from the finished. grade. August said the court didn't rule that that interpretation was valid. "Grading permits obtained by the developer specifically advised them there were zoning restrictions on building heights," he said. "The permits warn the owners and deveb placing fill on their lot would reduce the allowable height to less than finished grade." that In December 2004, then- county Planning Director Mike Foley rescinded the recomme for Maui Lani subdivision approval based on non ndation noncompliance with the building height larnr. But after a meeting that month including former Mayor Arakawa, other county officials and developers, Arakawa issued his "administrative edict, which essentially reversed the decision of the Planning Department and permitted the Maui Lani projects to proceed," August said. During an earlier court hearing, Arakawa testified that officials decided to aoow all projects that had obtained Phase 11 project district approval to proceed under the old building height law. Arakawa said the new building height law wasn't being enforced, even though more than a decade had passed since it was enacted by the Maui County Council. August said Thursday that the mayor "is not charged with enforcing zoning ordinances." "The central question is what authority did the mayor or Planning Department have to the unambiguous language of the 1991 ordinance and its supremacy clause," A nullify "That is a serious question in this case." ugust said. Deputy Corporation Counsel Madelyn D'Enbeau said most of the residents in the were notified when Maui Lani was seeki its Phase 11 lawsuit seeking project district approval. "This was a wen- publicized development," D'Enbeau said. "At that time, the rights intervene would create for them an opportunity to have a contested case. of people to "If they had concerns about what was going to happen .. that was the time for intervene." them to But August said the 1990 Maui Lani Phase 1d project district a then - Planning Director Chris Hart, didn't indicate that the foci' including a report by elevations more than 30 feet to levels above rooftops of nearby include raising y houses. Part of Hart's report, included in documents submitted by the county visual linkages to the natural setting are criticai.n, says: "Physical and etergelsey.com/Judge_wonthalt_Fairw... 2/4 2nd Circuit Judge denied a Maui Lani de... ,ornebody reading that back in 1990 — if they were a reasonable person — would certainly think that if physical and visual linkages to the natural setting are critical somebody necessarily be putting 30 feet of fill in there," August said. wouldn't He said another portion of the report described "tropical and colorful landscape buffer plantings" to create buffer zones that "are intended to both visually screen and soften adjacent areas." "1 don't think that gives anybody an indication that somebody's going to look up from their house and see a 30 -foot berm and retaining wall," August said. "There's a real question about what notice anybody would have been given about what eventually has occurred here." August said the Phase 11 approval covered uses of the land and the number of houses to be bulk but not the building height law then in effect "Significantly, those documents and aft the plans that were submitted the absolutely no mention of any grading or fill by developer make Y 9 ng plan, none at alt," August said. "The approval that was given was conditioned on adherence to building standards when the development actually corrmnenced. "There is no reference in the record that the court has seen yet that the building standards in in 1990 would be grandfathered in 12 years hence. There was no ran n the prior standard." 9 dFathering in of Noting that the Phase 11 approval was obtained by Maui Lani Partners, August said if the original developer's rights were transferred to current developers, written permission of the Planning Commission," "there had to be prior "lt's possible it exists, but the court has not seen it yet" August said. d. Attorney Lance Collins, representing residents, said a Dec. 18 court hearing is residents' request for partial summary judgment on the building height issue. i1edu1ed on Lila Fujimoto can be reached at Ifuiimnt o@ma jin mc xs., reprinted courtesy Maui News 11/30/07 brought to you by Wailea Makena Real Estate Inc. www. Wailes - Makena -real Stxe i-nm Peter Gelsey R (PB) Wailea Makena Real Estate, Inc. f+vww aPtmrtaeis y aom direct (808) 3574652 Toil free 800-482-5089 fax (808) 442 -0946 email naeisev aC�aoi sm etergelsey.com/Judgewonthatt Fainw... 3/4 Maui Lani lawsuit entangles all owners Court orders that notice be mailed out for 1,400 lots March 20, 2008 - By LILA FUJIMOTO, Staff Writer Save! 0 SHRRE WAILUKU — Notices will be sent to hundreds of Maul Lani lot owners to inform them that their property rights could be affected by a pending lawsuit over building heights in two Maui Lani subdivisions. The lawsuit was brought by about two dozen homeowners who live near the Fairways and New Sand Hills developments. The residents are seeking to enforce the current county law, In effect since 1991, that limits residential building heights to 30 feet from the natural or finished grade — whichever Is lower. They are challenging former Mayor Alan Arakawa's "administrative decision" to allow the two subdivisions to proceed under the prior law that measured building heights from the finished grade. Arakawa has defended the decision, saying the Maui Lani development obtained Phase 1I project district approval in 1990 when the old grading law was in effect. Neighbors say the height of fill dirt alone exceeds 30 feet from the natural grade In the 14-acre Fairways subdivision in Kahului. Thousands of tons of dirt were trucked in to fill a gully, raising elevations so the fill rises above the rooftops of some adjacent houses along Palama Drive. No houses have been built In the Fairways project. But homes have been built In New Sand Hills, where most lots have been sold. The residents filed a lawsuit against Maui County, developers VP & PK (ML) LLC and New Sand Hills LLC and its contractors. In January, 2nd Circuit Judge Joel August ordered that lot owners in all of Maui Lani be notified of the lawsuit and their rights to intervene. On Tuesday, the court- ordered notice was filed in the case. This lawsuit may affect your rights to develop and /or build upon your property within the Maui Lani Project District," the notice says. As a result, you have the right to intervene and may wish to consult legal counsel." During a hearing last week, attorney David Gerlach — representing the residents who are suing — said letters would be sent by certified mall to 1,400 Maul Lani lot owners. The owners include some who have multiple lots in the Maul Lan! project.distrlct. August has said It's unlikely the court would order houses to be torn down. But the notice mentions several posslbftlties If the court rules In favor of the residents who are suing. A ruling might affect the ability to build any home on a lot depending on the amount of fill on the lot, might require redesign of home plans, might affect the ability to remodel a home, might terminate building permits already issued and "might substantially impact the value of your lot," according to the notice. "You are being notified of this lawsuit because your failure to join in this litigation may waive forever your right to defend your development Interests in your lot," the notice says. It is recommended that you consult with an attorney immediately so that you have a full understanding of the matters at stake." Owners who want to be Involved in the lawsuit are told to file a document saying they intend to intervene within 30 days of receiving the notice. ani- lawsuit- ent... Questions remain about Maui Lani decisions May 20, 2008 Save I 'O_siiRC r' ',t:_, Alan Arakawa tends to embellish facts to fit his agenda (Viewpoint, May 14) so here are some points to consider on the Maui Lani issue. In the referenced meeting with the residents almost two years ago, Alan Arakawa made us two promises: He would set up a meeting with us and the county engineers, and another with the developer for the purpose of discussing damages. He took all our phone numbers then never called us. Alan admitted on the witness stand in the second lawsuit that Mike Foley originally denied the grading permits, and then at a county meeting to discuss reversing the decision, which a developer representative also attended, Alan made an executive decision to approve the grading. Why would a developer representative be allowed In such a meeting? In the first lawsuit, Judge Joseph Cardoza granted a preliminary injunction because the plaintiffs were fikey to prevail. They settled out of court so the Issue would be dropped. In the present lawsuit, when the residents get a favorable ruling it is going to cost the county a lot of money because of Mr. Arakawa's elitist attitude. He can argue the issue forever, but the taw is the law. Dick Snow Kihei Reoorrrrend cue the fist of your friends to raoormiend thus. Subscribe to The Maid News Save i . VP &PK (ML) LLC v. August (Order) NO.29217 IN THE SUPREME COURT OF THE STATE OF HAWAII VP&PK (ML) LLC; NEW SAND HILLS, LLC; MAUI LANI GOLF INVESTORS, LLC; MAUI LANI 100, LLC; MAUI LANI PHASE 6, LLC; MAUI LANI PARTNERS; THE TRADITIONS, INC.; CHRISTINE S. WONG and FREDERICK K. WONG, Petitioners, VS. THE HONORABLE JOEL E. AUGUST, JUDGE OF THE CIRCUIT COURT OF THE SECOND CIRCUIT, STATE OF HAWAII; MAYOR CHARMAJNE TAVARES, SUCCESSOR-IN-INTEREST TO MAYOR ALAN ARAKAWA, JEFF HUNT, DIRECTOR OF PLANNING, COUNTY OF MAUI, SUCCESSOR-IN-INTEREST TO DIRECTOR MICHAEL FOLEY, COUNTY OF MAUI; JOHN G.; KCOM CORP.; KILA KILA, CONSTRUCTION; and DOE DEFENDANTS 1 -100, Respondents. ORIGINAL PROCEEDING (CIVIL NO. 07-1-0258) ORDER Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) JJp consideration ofthe petition kr a writ ofd byPe�ners VP Maui Lani Golf-Investors LLC, Maui Lani 100 LLC, &PK (ML) LLC, New Sand Maui Lani Phase 6 LLC, Maui Lani Partners te.hi.usrjud /opinions /.../29217ord.htm ' VP &PK (ML) LLC v. August (Order) tie Traditions, Inc., Christine Wong and Frederick Wong and the papers it appears order denying support, � PPS � the June 4, r�'ing dismissal of Counts I and II for fai1ure to join indispensable parties is the subject ofa pending motion for reconsideration. If reconsideration ofthe June 4, 2008 order is denied and if declaratory and injunctive reliefis granted on Counts I and II, the June 4, 2008 order writ be reviewable on a appeal from a final judgment on Counts 1 and 11. It further appears that petitioners Christine Wong and Frederick Wong have actual knowledge ofthe pending litigation on Counts I and II, they are property owners whom the respondent judge considers to be interveners of right on Counts I and II, they can timely intervene on Counts I and II, and they can appeal from any adverse final judgment on Counts I and II and seek a stay of such judgment pending appeal p to HRAP 8. Likewise, all other petitioners, as parties to Civil No. 07 -1 -0258, can appeal from any adverse final judgment on Counts I and 11 and can seek a stay of such judgment pending appeal Therefore, petitioners Christine Wong Frederick Wong, and all other petitioners are not entitled to mandamus relief See Kema v. Gaddis, 91 Hawaii 200, 204- 05, 982 P.2d 334, 338 -39 (1999) (A writ ofmandamus is an extraordinary petitioner demonstrates a clear and indisputable ' � w� not issue unless the pet adequately the alleged p to relief and a lack of alternative means to redress ged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionazy authority ofthe lower courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures.). Our standard for a writ ofmandamus cited in Hawaii Nat. Bank, Honolulu v. Okino, 51 Haw. 367, 368, 461 P.2d 136, 137 (1969) was based onHRS § 659 -2 (1968) that was repealed in 1972. It finally appears that petitioners Christine Wong Frederick Wong, and all other petitioners do not have standing to seek feather mandannus relief on behalf of other unnamed petitioners. Accordingly IT IS HEREBY ORDERED that the petition for a writ ofmandamus is denied. DATED: Honolulu, Hawaii, July 8, 2008. ate.hi.usrud /opinions /.../2g217ord.htm 2/2 Right to sue affirmed in fill dispute Residents can't seek money for county's ignoring of rules 3uly 11, 2008 - By HARRY EAGAR, Staff Writer Save ! p SHARE WAILUKU - In the Palama Drive legal dispute over construction fill, 2nd Circuit Judge Joel August ruled Thursday that residents have standing to ask the courts to tell the county to abide by its own ordinances. At least, that would apply in land use disputes and if they have some immediate connection to the project. However, he also ruled that they cannot seek money damages from the county for past failures to follow the rules. There are two Palama Drive -Maui Lani suits. One seeks a declaratory ruling and Injunction to get the county to adhere to its grading ordinance. The other pits homeowners against developers and contractors for alleged actual damages from land preparation near Palama Drive, an older subdivision adjacent to part of Maui Lani. August scheduled a trial for the second suit to begin Aug. 10, 2009. He said the delays in the dispute are "making me crazy," so much so that he said he would draft the orders putting his decisions Into writing himself. This Is usually done by the lawyer whose argument prevailed. These lawsuits arose from the Fairways and New Sand Hills subdivisions at Maui Lani, which wanted to put In as much as 30 feet of fill before construction. The project goes back many years, but in 1991 the county revised Its grading ordinance to make it impossible to build a house on that much fill. Mayor Alan Arakawa overruled his director of public works, who opposed allowing the Fairways project to go forward under the pre-1991 rules. On Thursday, the county was seeking partial summary judgment in its favor against the homeowners. It lost the main point, which was that as private Individuals the homeowners along Palama Drive lacked standing to sue. August said the courts have gradually loosened their interpretation of the standing statute, In the direction of making the courts "more serviceable to the people." He not only rejected the county's argument, he also went beyond the counterargunxnt of the homeowners' attomeys. He said neither side had addressed the state law Hawaii Revised Statutes 46-4, which gives counties authority to regulate land uses. Subsection 4a, he said, explicitly gives the right to go to court to enforce ordinances to county officers and to owners of real estate directly affected" by the noncompliance. He noted that noncompliance with county laws is usually found among the developers, not the county Itself. Therefore, he refused to- sue - affirmed... Right to sue affirmed in fill dispute - Ma... the county's motion to dismiss the suit. However, another delay has arisen. Earlier this year, August ordered the plaintiffs to send notices to Maui Lani owners giving them a chance to intervene in the suit. This Is necessary, he said, because If he does Issue a declaratory ruling, it will affect the whole Maul Lani project district. Even though the Palama homeowners are adjacent to only a sliver of the huge project, a ruling on grading could affect the ability of owners far away to fully develop their lots. The plaintiffs sent out nearly a thousand letters alerting Maui Lani owners to their right to intervene. However, two- thirds of the letters never arrived. They had the correct street addresses but were sent to Wailuku instead of Kahului. About 523 owners were not given notice. August said the misdirected mailing was "incredibly negligent." David Gieriach, representing the plaintiffs, apologized. He said he had used a service that had a good reputation. August ordered the plaintiffs to promptly send new notices, by July 25. Owners will then have 30 days to give notice of their intent to intervene. Because of this delay, August postponed his hearing on a motion for partial summary judgment in favor of the developers and contractors until Oct. 7. We need to make sure this is decided expeditiously," said August. "This thing has dragged on way too long." August also rebuffed motions by the developer /contractor defendants to give them partial summary judgment on the grounds that the homeowners had "filed a frivolous complaint" and had pursued a "tortious abuse of process." He called the first objection "very interesting.... I don't think I've heard of that one before." He said there was plenty of evidence before the court that the complaints of the Palama Drive owners were dearly not frivolous." He also said no evidence had been presented that the owners were using a threat of lawsuits to extort concessions from the developers. August also chided the defendants, saying it was absurd to suggest that when residents try to get the county to enforce its own zoning laws they are abusing the legal process. "I find the argument a bit disingenuous," he said. * Harry Eagar can be reached at heagar@mauinews.com. Recommend Be the first of your friends to reaoninend this. Subscribe to The Maui News Save I 'Time has come' for renewabl... Plans for Maui Tani OK'd; no... Decision is near in Maui Lani fill case December 11, 2008 - By LILA FUJIMOTO, Staff Writer Save 1 Q SHRRRE WAILUKU - Second Circuit Judge Joel August said he hopes to issue a ruling before the end of the year on a motion by Kahului homeowners that Maui County be ordered to enforce current building height restrictions in the Maul Lani project district. During a court hearing Tuesday, attorneys argued overwhethera ruling should apply to the entire project district or only to the Fairways at Maui Lani project, where adjacent Kahului homeowners complain about fill dirt towering above rooftops of their homes along Palama Drive. More than two dozen homeowners who live next to the Fairways project and the new Sand Hills subdivision are suing Maui County, alleging the county hasn't followed its own ordinances in allowing the fill buildup In both Maul Lani subdivisions. Residents have cited damage to their homes from compaction vibrations and runoff from the Fairways site, where thousands of tons of dirt were trucked in to tum a gulch into a MI/ for the Project. Deputy Corporation Counsel Madelyn D'Enbeau, representing Maui County, said Tuesday that only the Fairways subdivision should be affected by the judge's pending ruling because it Is the only project directly affecting those who have sued. "The grading was done pursuant to a permit," she said. The only Issue we're talking about Is the height of houses that can be constructed in the subdivision. "Any Injunction should be restricted to the one subdivision." Current county law, in effect since September 1991, limits residential building heights to 30 feet above the lower of the natural or finished grade. The law was established after an Incident in Kuau in which a landowner added large amounts of fill to a property, and then built a home that intruded on neighboring properties. Former Mayor Alan Arakawa made an "administrative decision" allowing the two Maui Lani subdivisions to proceed under the prior law that allowed building heights to be measured from the finished grade. He has said that was because the 1,200 -acre Maui Lani project district was granted Phase 2 approval before the county changed the law affecting residential building heights when a property is filled. No homes have been built In the 13.5 -acre Fairways at Maul Lani, which has been put up for sate by Its owner, Oahu -based VP &PK LLC. In court Tuesday, August questioned the county's position that a ruling would affect only the Fairways project. He said he had ordered the plaintiffs to send notices to all property owners In the Maul Lan! project district, In part because of representations by the county and developers that all owners 'voile! ho afforta.l M. Mho n..Mrnmo nFMho tawe..if -is- near- in -M... Decision is near in Maui Lani fill case - . WYW Ya. a...WY, Yr \..b VVYoune...V VI V., D'Enbeau said the county has argued to limit the scope of the lawsuit since it was filed. If you limit the standing to the immediate area, you simplify this case greatly," she said. We certainly do not want the order to apply to all of Maui LanL" Attomey David Gerlach, representing the homeowner - plaintiffs, said he was "flummoxed" by the county's position. He said more than 1,300 letters were sent by certified mail to Maul Lani property owners informing them of the lawsuit and their right to intervene. "I believe the ruling will apply to all of Maul Lani," Gierlach said. "To do it in the piecemeal fashion the county is now suggesting makes no sense. Frankly, it will affect developments on the entire island." While Maui Lani developers at one time also were named as defendants in the lawsuit, claims against them involving the building height restriction were dismissed. In a separate lawsuit against the Fairway developers and contractors, the Kahului homeowners are seeking compensation for damages that occurred during construction. August said he was taking the residents' motion for partial summary judgment under advisement and would issue a written ruling In the next two weeks. * Lila Fujimoto can be reached at Ifujimoto@mauinews.com. Recommend Be the first of your friends to recommend thk. Subscribe to The Maui New Save 1 Height emit ordered for Maui Lani 3udge: Then -Mayor Arakawa exceeded authority in waiving standards of 1991 January 3, 2009 - 8y LILA PUJIMOTO Staff Writer Save j ® SHARE 1' t: . - WAILuKli - 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 Lanl 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 pe, 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 were disappointed in the decision, but we appredate 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 within 10 days whether to file a motion for reconsideration. In his ruling, August Partially granted a motion for partial summary judgment from attorney David Gieriach, 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 tum a gulch into a hiJf raising the elevation of the 13.5 -acre property so the fill dirt rises above some rooftops along Palama Drive. Palarna Drive homeowner Adrienne Owens, whose backyard now adjoins a 26 -afoot -high wail holding back the dirt, said Friday that August's ruling was "wonderful news." "I'm thrilled that the little peop1e 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 damage to their homes from co ons dust for runoff that occu compaction vibrations, dust and rred while the Fairways site was under construction. No homes have been built in the Fairways subdivision, which has 513173.html Height limit ordered for Maui Lani - Ma.. 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 homebullder placed fl!t 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 3endks. 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 itHls and Fairways subdivisions. When then - Planning Director Michael Foley granted Phase T11 approval for the New Sand Ms subdivision In March 2004, no mention was made of the finished grade. But &grading and grubbing permit issued In August 2004 induced 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 ins' 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 finai 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 Eater, 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 HHiS tots 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 December2005, 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 111 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 Lent 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 Oran exemption from the application of a Council- passed ordinance," August said in his ruling. "Whatever reliance a developer placed upon an unauthorized derision 15 misplaced ... Furthermore; the developers were on notice in various permits tnat conmrranno .._ _ 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 ( County, developers ordered to pay $18,694 February 28, 2009 - By LILA FU3IMO70, Staff Writer Save I 0 SHARE f'1 ?a_ WAILUKU - Maul County and developers have been ordered to pay nearly $19,000 in costs to attomeys 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 attomeys, 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 govemment 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 govemment of laws, not of persons. This case has shown the community what happens when we become a government of persons and not a govemment 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 tum 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 Maul 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 Glertach, also representing residents, argued that the judge's ruling on the height restriction had widespread impact for all of Maul 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 r- -developers-... County, developers ordered to pay $18,... ww�t, VltltO JI aaiu. 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 Ifujirnoto ®mauinews.com. TMie• AP, r,hrnmc Subscribe to The Maui News Save 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 3udge denies developers' request to intervene in Palama fill case Tune 20, 2009 - By HARRY EAGAR, Staff Writer Save I © SHARE 1' ?2 WAILUKU - Second Circuit Judge Joel August denied the Fairways at Maui Lani and New Sand Hills Estates developers perm'SSion to intervene in the appeal of his decision against the county in the Palama Drive fill case. He did allow limited intervention to some who had purchased lots in the subdivisions and to the New Sand Hills Community Association. "Several more trees were destroyed" to print arguments in the latest attempt by lawyers to complicate an already complex case, August said this week. Palama Drive homeowners sued to prevent New Sand Hills LLC from heaping up fill as much as 30 feet deep next to their properties. They won a partial victory In January, when August ordered the county not to issue building permits that conflicted with the 1991 height ordinance that imposes a limit above the natural grade. The subdivision at Maui Lani dated to before 1991 but did not seek permits until after. Alan Arakawa, then the mayor, allowed New Sand Hills to proceed under the old rules, but August ruled Arakawa had exceeded his authority. Although the county cannot now issue building permits, lot owners can seek variances. The county appealed the judge's order, but then several people who had not until then been parties to the case asked for permission to Intervene to protect their own Interests. Among the questions on whether to allow the intervention was whether any of them had or could rely on the county to protect their Interests as well as Its own; or, if not, when they should have been aware they needed to hire their own lawyers to protect themselves. In the case of the developers, August said they knew an along, having worked hand in glove with the county Department of Corporation Counsel in the county's defense, even submitting a greater bulk of briefs than the county did. However, the developers later withdrew. Now they were asking to come back in. August said this maneuvering seemed to demonstrate "a presumption about the role of govemment in a democratic society, as if it was based on an understanding with a particular official" that its interests would be looked after. August did not identify the official. This "jumping in and out is antithetical to the orderly administration of justice," August said. He also observed that Robert Greenfield, who was seeking to Intervene, apparently had acted as a developer at times but was now also acting as vice president of the New Sand Hills Community Association, which also was seeking intervention. •denies- develo... Judge denies developers' request to int 'This might create a conflict of interests, August said, since It seemed possible that at some point the association might have claims against the developers. As it has worked out, there are numerous opportunities for claims among the many parties, and, as lawyer Ron Ogomori observed, many cross- appeals even before AuguSt opened the field further. Ogomori won some and lost some Thursday, since some of his clients won intervention but his New Sand Hills LLC client did not Other developers besides New Sand Hills were excluded from intervention. The two parties that were admitted were the community association and Hookah' LLC, owner of a lot with 26 feet of fill on it. AuguSt said the county lawyers would no doubt be "zealous advocates" of other parties, but he determined that Hookah' and the association also had their individual concerns. In the case of Hookahs, It would be the fear that It could not get building permits. The association owns and must maintain the roads and common areas, and that duty could be affected by ground moving as a result of future determinations by courts or the Board of Variances and Appeals. There also was no evidence before the court that the parties August allowed to intervene had been given notice of the suit so that they knew they had interests at risk. The judge said they were sophisticated real estate people and probably had been given enough information, but since there was no evidence that they had been, the court could not assume it. In the case of New Sand Hills LLC, he said, it had failed to justify the relief it thinks it needs, although obviously "it would like to see the overturn" of the 2nd Circuit Court decision, the judge said. The appeal is before the Intermediate Court of Appeals, but August repeated what he had said at several hearings before: He expects It probably will end up at the Hawaii Supreme Court. * Harry Eagar can be reached at heagar@mauinews.com. Recommend Be the first of your friends to =amend this. Subscribe to The Maui News Save 1 Residents near Maui Lani shaken up, soiled due to development — lawyer Trial for their suit against developer, contractor starts August 12, 2009 - By LILA FUJIMOTO, Staff Writer Save I Q SHARE .f'!_ WAILUKU - Describing how neighboring homeowners suffered from dust, noise and compacting vibrations as a valley was filled with a mountain of dirt for a Maui Lani subdivision, an attorney said residents are seeking a "substantial verdict" against the developer and contractor. As a trial began Tuesday afternoon in a lawsuit brought by residents living near the Fairways at Maul Lani development, attomeY David Gierlach said evidence would show residents suffered thousands of dollars in property damage caused by the dirt and vibrations. Some suffered health problems from breathing in the dirt, Gierlach said, and vibrations shook homes, craddng walls and foundations and destroying family heirlooms. "Not only did many suffer from physical problems from the blowing dirt, but the anxiety that each of them had to live with as these vibrations went on day after day ... these are the most serious harms you will hear testified to at this trial," Gerlach said in opening statements to jurors. But lawyers for developer VP &PK (ML) LLC and contractor Kila Kila Builders said a Maui County inspector and a court- appointed contractor who visited the construction site reported no dust - control violations. An engineer hired to measure the vibrations determined it was "scientifically not possible for the vibrations to be damaging any of the neighbors' homes," said attorney George Playdon, representing the developer. Attorney Robert Richards, representing Kila KM Builders, said the company was just one of the contractors that worked at the site, starting after the project began and leaving before it was completed. For seven of the approximately 15 months that Kila Kila was at the site from April 2006 to July 2007, workers did no compacting because the developer was having trouble getting fill dirt, Richards said. When compacting was done, Richards said, standard practices were followed with a maximum of two vibrating rollers on the site. He said Kila Kiia's Involvement was "limited in scope, limited in duration, limited In time." All but two of the 16 homeowners bringing the lawsuit live on Palama Drive, which is adjacent to the project, In Kahului, Gierlach said. The other two live In Maui Lani. The residents claim nuisance, trespass and Infliction of emotional distress from the work that began in March 2006 and continued through late last year. "What was a deep valley filled with kiawe trees was transformed into a mountain of dirt," Gierlach said. 2227.html Residents near Maui Lani shaken up, soi Starting April 10, 2006, the developer had dirt trucked to the 13- acre site to raise the elevation, in some cases above adjacent rooftops along Palama Drive, he said. In all, Gieriach said 200,880 tons of dirt weighing more than 400 million pounds was transported to the site In nearly 8,000 tractor- trailer loads over a period of less than a year and a half. A grading permit warned that residential building heights were limited to 30 feet above the natural or finished grade, whichever is lower. "With the amount of fat put in, many of the lots created by this development cannot be built on," Gerlach said. In a separate lawsuit brought by the residents against Maui County, 2nd Circuit Judge Joel August iintJanufiarry ordered tthe county not to issue building permits height ordinance. August ruled that former Mayor Alan Arakawa exceeded his authority when he exempted the Fairways and New Sand Hills developments from the height ordinance, allowing the projects to proceed under the law that existed before 1991 and measured height from the finished grade. Along with dirt blowing from the construction site and vibrations from the compacting, residents endured workers trespassing onto their property by driving heavy equipment through yards and even having lunch in their hothouses, Gierlach said. Playdon said a surveyor determined that several walls along Palama Drive encroached into the Fairways lots. The compacting plan was approved by Maui County, which required the developer to build a drainage swale to carry off water and prevent flooding on Palama Drive, Playdon said. He said Palama Drive owners were told about plans for the drainage swale. Project Manager Mike Pullman "went to every single property owner," giving them his ced phone number and telling them to call if there were any problems, Playdon said. "If a wall was damaged, it was repaired," he said. "If a backyard was flooded, it was cleaned up." He said dust fences were put up, and water trucks and street sweepers were stationed at the site. Judge August is presiding over the trial, which is expected to last about a month. * Llla Fujimoto can be reached at ifujimoto.mauinews.com. Recomrend Be the first of your friends to remrrnerrd fhis. Subscribe to The Maui News Save j / News / Local News / 'New town' in Olowalu put be... Maul Prince has new contract.... Maui Lani jury deliberations to begin today Homeowners' claim of wrongdoing, builders' defense took 5 weeks September 16, 2009 - By LILA FUJIMOTO, Staff Writer Save 1 0 SHARE WAILUKU • Along with the costs of repairing broken walls and replacing soiled carpets and drapes, residents should be compensated $250,000 per household for their suffering from dust, noise and vibrations during construction work at a Maui Lani development, an attorney argued Tuesday. "It is fair, it is just and it is right," said David Gierlach, representing 16 homeowners in a 2nd Circuit Court civil trial against the developer and a contractor of the Fairways at Maui Lani project. "It will say in Hawaii we are a people of respect, and when you trample on that respect, you will pay a price equal to the respect you have trampled." During closing arguments Tuesday afternoon in the jury trial, attomeys for developer VP &PK (ML) LLC and general contractor Kila KGla Builders said neither should be found liable for damages. "There's no evidence that VP &PK did anything that it shouldn't have done in terms of the design and the hiring at the Fairways project," said George Playdon, representing VP&PK. Robert Richards, representing Kila Kila, said the homeowners' claims of negligence, nuisance and trespass stemmed from Incidents either before or after the contractor worked on the site from April 2006 to July 2007. "My client was not causing a problem," Richards saki. "Nobody ever put him on notice of any problem." Circuit Judge Joel August ordered jurors, who have sat through more than five weeks of testimony, to retum to court this morning to begin deliberations. In his closing arguments, Gierlach reviewed the damages caused as dirt blew into houses, foundations and walls cracked amid compacting vibrations, and workers trespassed onto property, knocking down wails, stealing fruit from trees and bulldozing a garden planted by one resident's late father. About 8,000 tractor - trailer bads of dirt were trucked to the 13- acre site to raise the elevation of the property and turn "a valley into a mountain of dirt," Glerlach said. Most of the homeowners in the lawsuit live in an older Kahului neighborhood adjoining the development. Gierlach said many are elderly residents who, after working hard to buy their homes, had their peace and quiet taken from them. Instead of a view of the West Maul Mountains, some residents' backyards adjoin a 20- to 30 -foot -high wall along the project boundary, Gierlach said. At Lillian Torrecet's residence on Palama Drive, the dirt on the floor was so thick that you could see wheelchair tracks, Gierlach said. 523704.html Maui Tani jury deliberations to begin to... it cnere s one naunctng image warn cuts cndi, i rs crre image or d wheelchair leaving tracks in the dirt in the kitchen," he said. Both defense attorneys said the case wasn't about the loss of views or the issue of height restrictions, which was litigated in a separate lawsuit brought by residents against Maui County. In January, August ordered the county not to issue building permits that conflict with the 1991 building height ordinance. That law limits residential building heights to 30 feet above natural or finished grade, whichever is lower. August ruled that former Mayor Alan Arakawa exceeded his authority when he exempted the Fairways and New Sand Hills developments from the height ordinance, allowing the projects to proceed under the law that existed before 1991 and measured height from the finished grade. Playdon said Fairways project manager Mike Pullman explained that the project grade was raised for gravity flow of effluent. Pullman also described trying to contact neighbors so they could call him if there were any problem from the construction. Most never complained, Playdon said. "If a situation you were in is causing discomfort or damage, doesn't common sense tell us you would do something to ease the discomfort or lessen the damage ?" Playdon asked. Gierlach said the result was the same whether residents complained or not. He said many of the homeowners opted to "dose their windows and live In hothouses rather than complain." Playdon said Honolulu engineer James Kwong, who measured vibrations from machinery doing compacting at the site, determined the vibrations didn't exceed the threshold where they could have caused damage. Playdon also questioned whether the vibrations could travel "across a golf course, up a hill and then randomly act" to affect two homes of plaintiffs who live in Maui Lani. Kila Kila was an independent contractor and not an agent acting for VP&PK, Playdon said. Richards said workers described as trespassing onto residents' property didn't work for Klia Kila but for other contractors that were working on the site at other times during the construction. * Lila Fujimoto can be reached at iujimoto @mauinews.com. Recorm end 8e the fist of your friends to recornnerid this. Subscribe to The Maui News Save $232K awarded in Maui Lani case Developer will pay six of 11 plaintiffs; Kila Kila excluded September 22, 2009 - By MELISSA TA WI, Staff Writer Save! 0 SHARE WAILUKU - A 2nd Circuit jury on Monday ordered the Fairways at Maui Lani developer to pay a total of $232,700 in damages to six of 11 plaintiffs who said construction of the project caused noise and nuisance and that workers trespassed on their properties. The jury did not award damages to the other five plaintiffs in the case, finding the defendants were not liable for damage at their properties. The jury also found that one of the defendants, general contractor KIIa Kila Builders, was not responsible for any of the damage. The 16 people who own the 11 homes sought damages from Fairways developer VP &PK (ML) LLC and general contractor Kila Kila Builders through a more than five -week civil trial. Plaintiffs testified that from approximately 2006 to 2008, dirt blew into their homes and vibrations rattled and damaged their properties. They said their lives were disrupted by other nuisances associated with the Kahului project's construction. But defense attorneys pointed out that no government agencies or a project manager found fault with the project, and that an engineer who tested vibrations at the job site said they were all below a "damage threshold." Outside the courtroom, Kila Kila lawyer Robert Richards reflected on the jury's finding that the general contractor was not responsible for damage to the project neighbors' properties. "I hope people understand that's why we went to trial," he said. Richards said "Maui boy" Duane Ting, head of Klla Klla, Is now vindicated. VP &PK attorney Aaron Creps said it was too early to say if there was going to be an appeal. "We respect the jury's decision," he said. George Piaydon also represented VP&PK during the trial. For the plaintiffs, the verdict was a mixed bag. Lance Collins, one of two attorneys for the plaintiffs, said he was pleased with the results for those who received awards but was disappointed for those who did suffer harm" but were not given any compensation. Although he had not had time to go over the full extent of the verdict, he said he was going to revisit the case of plaintiffs and brothers Larry and Scott Oshiro and either take a closer look at how the jury came to its decision and perhaps ask for a retrial. The brothers did not receive any award. Collins said the defendants acknowledged there was $7,000 to $9,000 in damage to the Oshiros' wall that was knocked down, :awarded- in -M... $232K awarded in Maui Lani case - Maui... while the plaintiffs thought there was around $20,000 to $25,000 worth of damage. Collins said he wondered how the jury did not award a monetary damage amount. Plaintiff Reyn Tateyama, who received a $37,900 award from the jury, was disappointed that all the plaintiffs did not receive an award. "1 think everyone had damage. I just think it wasn't fair," he said. As far as his award, he said, he doesn't think it compensates him for what was done, and said cracks to his wall and other damage will probably cost more to repair than what he was awarded. He added that other items such as old family vases that fell and cracked can never be brought back. "It's worth a lot more than money," he said. During the trial, Tateyama, who lives on Palama Drive, adjacent to the construction area, said bulldozers Smashed walls and destroyed a backyard garden planted by his late father. He added that workers had lunch in his hothouse, moved his plants and left trash on his property. One plaintiff who did not receive an award did not want to comment, and others could not be reached for comment Monday afternoon after the verdict was read. Awards for the plaintiffs ranged from $37,900 to $39,900. During closing arguments Sept. 15, the plaintiffs' other attorney, David Gleriach, asked that residents be compensated $250,000 per household. Collins noted that his clients have already prevailed in another court Issue involving the county regarding height Issues at the Fairways project. In January, 2nd Circuit Judge Joel August ordered the county not to Issue building permits that conflict with the 1991 building height ordinance. That law limits residential building heights to 30 feet above the natural or finished grade, whichever is lower. August ruled that former Mayor Alan Arakawa exceeded his authority when he exempted the Fairways and New Sand Hills developments from the height ordinance, allowing the projects to Proceed under the law that existed before 1991 and measured height from the finished grade. No houses have been built in the Fairways project. * Melissa.Tanjl can be reached at mtanji@mauinews.com. Recommend Be the fist of your friends to recon end this. Subscribe to The Maui News Save Maui Lani developer wins costs tied to trial March 5, 2010 - By LILA FUlIMOTO, Staff Writer Save 1 0 SHARE al''? ^ _ WAILUKU - Homeowners who weren't awarded damages in a lawsuit against the developer of a Maul Lan' subdivision have been ordered to pay $87,830 in developer's costs associated with a trial last year. Second Circuit Judge Joel August awarded the costs sought by developer VP & PK LLC during a hearing Thursday. He also awarded $9,375 in costs to the eight owners of six homes on Palama Drive In Kahului who received awards totaling $232,700 in damages last September after a jury trial. The residents sued the developer and general contractor Kila Ki la Builders over the Fairways at Maul Lani project, claiming that construction from 2006 to 2008 caused noise and vibrations that damaged property. About 8,000 tractor- trailer loads of dirt were trucked to the 13- acre site to raise the elevation of the property, obstructing views of the West Maui Mountains from some older homes on Palama Drive. After the five -week trial last year, a jury awarded damages to owners of six nearby houses involved in the lawsuit but didn't award damages to the eight owners of five other houses. While finding the developer liable for the damages, the jury found KIia Kila and owner Duane Ting not responsible. The developer's costs that were approved Thursday include amounts for travel within the state, copying documents, taking depositions of witnesses and some fees for expert witnesses, said Honolulu attorney Aaron Creps, representing VP & PK LLC. The costs do not include attomey fees. "We're pleased to recover the costs that we're allowed to under the law," Creps said. But attomey Lance Collins, who represented the homeowners, said the residents who didn't receive awards were "very disappointed." "For the plaintiffs that were not awarded damages, the result is that, in addition to having to live with that 30 -foot -high mountain of dirt with a road on top of it, they have to pay for speaking up," Collins said. The developer misbehaved, and the jury found some people were harmed by that and they found that others weren't. It seems in this sort of case, everybody should bear their own costs. The judge felt otherwise, and we respect the opinion." Collins said a large portion of the developer's costs were for Honolulu engineer James Kwon, a defense witness who said that his tests showed vibrations at the construction site were below the damage threshold. At a hearing in January, August awarded $30,504 in costs to Kila Kila. -Lani- developer -... Maui Lani developer wins costs tied to t... Court records show that the jury awards to homeowners have been paid. No homes have been built at the Fairways project. In a separate case, August ordered the county not to issue building permits that conflict with the 1991 building height ordinance. That law limits residential building heights to 30 feet above the natural or finished grade, whichever is lower. August ruled that former Mayor Alan Arakawa exceeded his authority when he exempted the Fairways and New Sand Hills developments from the height ordinance and allowed the projects to proceed under the old law that measured building height from the finished grade. * LIla Fujimoto can be reached at Ifujiimoto@mauinews.com. Reconnand Be the first of your friends to recor n end this. Subscribe to The Maui News Save I VIEWPOINT: Judge found Arakawa's ruling to be illegal August 29, 2010 - By LANCE D. COLLINS Save 1 O SHARE I would like to correct a number of factual errors in former Planning Director Mike Foley's Aug. 22 Viewpoint. It is patently false that developers of the Fairways and Sandhi!' Estates subdivisions at Maui Lanl ever received approvals to build 30 -foot walls of dirt behind existing homes, in some cases first fitting in gulches. The Phase II approval for Maui Lani stated: it is important for Maui Lani to develop a design framework which promotes the family and child centered lifestyles associated with the Maui community. Physical and visual linkages to the natural setting are critical." It did not include any design approvals for specific subdivisions within Maui Lani. In another section titled "Landscape Treatment Along the Edges of Maui Lani," it stated: "Colorful and tropical landscape buffer plantings shall be provided whenever the villages of Maul Lani abut existing or future residential areas. These landscape buffer zones are intended to ... soften adjacent areas." Nothing in the Phase II approval granted any entitlements to any specific designs or heights for any particular subdivision. Approvals for specific subdivisions all occurred after the 1991 zoning amendments requiring all residential structures to be built 30 feet from natural or finished grade, whichever is lower. The August 2004 grading permits for the Fairways and Sandhill Estates stated: "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 finished grade, whichever is lower.. .. Placing fill on your lot will reduce the allowable height to less than 30 feet from finished grade." Preliminary subdivision approval was also granted in August 2004 stating: "Building heights for new structures are limited to 30 feet above the existing natural grade." On Dec. 14, 2004, Foley himself rescinded subdivision approval for the subdivisions, stating in a memo: °The subdivider is required to submit documentation that all of the regraded lots can accommodate a dwelling or structure not exceeding 30 feet in height as measured from the original or finished grade, whichever is lower." The following week, then -Mayor Alan Arakawa held a private meeting with the developer, the county attomey, Foley and other planners, a Public Works representative and former Public Works Director Charlie Jencks. Arakawa told the developer that the county would disregard the current height - limitation ordinance and overruled Foley, which was confirmed in a document signed by Arakawa a few months later. In the subsequent court case, It was shown that Foley consistently applied the height restriction ordinance to all projects and that it took Arakawa's administrative edict to ignore county law for the developer. In the lawsuit brought by adjacent homeowners against the /POINT -- Judge -f... VIEWPOINT: Judge found Arakawa's ruli... county, Judge Joel E. August conduded that Arakawa acted beyond his authority when he reversed Foley's decision with his administrative edict. In a separate jury trlal by the adjacent homeowners against the developer, a jury found damages for every homeowner directly abutting the development. Foley's comments betray the history of his own consistent application of county law and ignore Judge August's final judgment holding Arakawa's decision to overrule Foley and county law as illegal. It is doubtful that the four years of litigation and appeals have ended up saving this county millions of dollars. Whether Arakawa's administrative edict can be called courageous or difficult is a judgment best left for each individual to make. But we ought to have all the facts. I encourage everyone to drive or walk along Palama Drive and see If the wall of dirt complies with the original approvals. * Attorney Lance D. Collins represented the residents who sued the county to enforce the Maui Lani zoning ordinances. Save 1 Recommend Be the first of your friends to reconrnend this. Subscribe to The Maui News