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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 that In December 2004, then- county Planning Director Mike Foley rescinded the recomme for Maui Lani subdivision approval based on non ndation noncompliance with the building height larnr.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