HAWICA Oral Arguments In Appeal About From Where "Height" Is Measured

It can be difficult to piece together the full scope of the issues and arguments in an appeal from the oral arguments alone. Most often, arguments cover narrow issues of concern to the judges, and the advocates do not have the opportunity to cover every argument in the time allotted (that's what the briefs are for). And although oral arguments in the Hawaii Supreme Court and the Intermediate Court of Appeals are usually scheduled at 30 minutes per side which allows for a wider range of issues and a more in-depth discussion, the briefs are the best guide for what the arguments are. With that prologue, we wanted to focus your attention on an appeal that was argued last week in the ICA, Goo v. Tavares, No. 30142. The case involves a multitude of land use-related issues, including how "height" is measured, vested rights and estoppel, and the private attorney general doctrine. We aren't aware of the specific issues or their exact context (not having the briefs available), but this seems like a case worth following. Here's some background from the Maui News. The Judiciary web site summarizes the issues on appeal: This case, involving multiple parties, arises from development of the Sandhills Estates and the Fairways at Maui Lani residential projects in the Maui Lani Project District. At issue is the applicable height restriction for the projects under the Maui County Code. In particular, whether a pre-1991 definition of height measuring from the finished grade applies, or whether a 1991 ordinance applies which altered the definition of height to measure from "the natural or finish grade, whichever is lower." The Circuit Court of the Second Circuit (Circuit Court) ruled that the amended 1991 height restriction applies and enjoined action conflicting with the height restriction. The Circuit Court entered final judgment which, among other things, entered judgment in favor of plaintiffs. Multiple appeals have been taken from the final judgment. Issues on appeal include: whether the plaintiffs have standing; whether the Circuit Court had jurisdiction; whether necessary and indispensable parties were not joined; whether the developers have vested rights; whether the Circuit Court failed to give proper deference to the County's interpretation of its ordinances; whether issuance of an injunction was appropriate; and whether the plaintiffs are entitled to attorneys' fees under the private attorney general doctrine. The oral arguments started with a post-briefing development that might make the appeal go away, and the adovcates and the court spent some time trying to figure out what effect the County's recent ordinance might have on the case, and the appropriate way to deal with the latest development. (1:12:00 minutes) Stream the argument recording above, or download it here (caution, it's a 60mb mp3). We'll follow the case, and post any developments as they become available.

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