WAILUKU, Maui — In the Palama Drive legal dispute over construction fill, 2nd Circuit Judge Joel August ruled yesterday 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.

The Maui News reports 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 counterargument of the homeowners' attorneys.

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 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 Maui 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 Gierlach, 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 clearly 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.

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