"Several more trees were destroyed" to print arguments in the latest attempt by lawyers to complicate an already complex case, August said this week.
By HARRY EAGAR, Staff Writer
reprinted courtesy Maui News 6/20/09
WAILUKU - Second Circuit Judge Joel August denied the Fairways at Maui Lani and New Sand Hills Estates developers permission 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 all 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 government 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.
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 Hookahi 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 Hookahi and the association also had their individual concerns.
In the case of Hookahi, 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
reprinted courtesy Maui News 6/20/09
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