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Goo v. Arakawa

Supreme Court of Hawai'i

February 19, 2014

KAREN GOO, et al., Petitioners/Plaintiffs/Counterclaim-Defendants/Appellants/Cross-Appellees,
MAYOR ALAN ARAKAWA, Successor-In-Interest to Mayor Charmaine Tavares, WILLIAM SPENCE, Director of Planning, County of Maui, Successor-In-Interest to Director Jeff Hunt, County of Maui Respondents/Defendants/Cross-Claim Defendants/Appellees/Cross-Appellants/Cross-Appellees, and VP AND PK(ML) LLC, KCOM Corp., Defendants/Intervenor-Defendants/Cross-Claim Defendants/Counterclaimants/Cross-Claimants/Appellees/Cross-Appellees/Cross-Appellants, and KILA KILA CONSTRUCTION, Defendant/Cross-Claim Defendant/Cross-Claimant, and (John G.) JOHN G'S DESIGN & CONSTRUCTION, INC., Defendant/Cross-Claimant/Cross-Claim Defendant, and NEW SAND HILLS LLC., Respondent/Defendant/Intervenor-Defendant/Counterclaimant/Cross-Claim Defendant/Appellee/Cross-Appellee/Cross-Appellant, and DAVID B. MERCHANT; JOYCE TAKAHASHI; BRIAN TAKAHASHI, Defendants/Intervenor-Defendants, and DIANE L. REASER, et al., Defendants/Intervenor-Defendants/Counter-Claimants, and HOOKAI, LLC, SANDHILLS ESTATES COMMUNITY ASSOCIATION, Respondents/Intervenors/Appellees/Cross-Appellees/Cross-Appellants, and CHERYL CABEBE, GERRY RIOPTA, and MELISSA RIOPTA, Intervenor-Defendants/Appellees/Cross-Appellants

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David J. Gierlach and Lance D. Collins for petitioners.

Patrick K. Wong, Caleb P. Rowe, Brian T. Moto, and Jane E. Lovell (Madelyn S. D'Enbeau on the briefs) for respondents Mayor Alan Arakawa, Successor-in-Interest to Mayor Charmaine Tavares, William Spence, Director of Planning, County of Maui, Successor-in-Interest to Director Jeff Hunt, County of Maui.

Ronald T. Ogomori, Nathan H. Yoshimoto, and T.F. Mana Moriarty for respondents New Sand Hills, LLC., VP and PK (ML), LLC., KCOM Corp., and Sandhills Estates Community Association.



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[132 Hawai'i 306] POLLACK, J.

This case addresses the issue of the procedure that an appellate court should follow when a case becomes moot on appeal and one party seeks vacatur of the lower court's judgment.

We hold that the Intermediate Court of Appeals (ICA) erred in vacating the circuit court's judgments and December 31, 2008 Order Granting Partial Summary Judgment in this case and remanding the case for dismissal. In addition, we conclude that the ICA did not err in affirming the circuit court's denial of plaintiffs' request for attorneys' fees.

I. Background


On Maui, approval of development projects is a three-phase process. Phase I involves approval of ordinances by the Maui County Council (Council) that include prescribing the height and density of structures to be built in a project. Phase II requires approval of the preliminary plat by the Planning Commission. Phase III requires the approval of the final plat by the director of the Department of Planning. According to the Charter of the County of Maui, the director of the Department of Planning is charged with enforcing the zoning ordinances. Maui County Charter § 8-8.3(6).

Approval of subdivisions requires the approval of various state and county agencies. Ultimately the planning director can approve subdivisions if they " conform to . . . the county general plan, community plans, land use ordinances, the provisions of the Maui County Code, and other laws relating to the use of land[.]" Maui County Code § 18.04.030 (1993).

At the time of the relevant events in this case, Title 19, Article II, of the Maui County Code (MCC), known as the Comprehensive Zoning Ordinance (CZO), stated that " [n]o building shall exceed two stories nor thirty feet in height." Prior to September 4, 1991, the CZO " definitions" section defined

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[132 Hawai'i 307] " height" as the " vertical distance from finished grade to the highest point of the finished roof surface[.]" (pre-1991 definition) (Emphasis added).

On September 29, 1988, an application was filed for Phase I approval of the Maui Lani Project District (MLPD). On June 20, 1990, the Council enacted Ordinance 1924, which constituted Phase 1 approval for the MLPD. MCC Chapter 19.78, which codified Ordinance 1924, restricted structures in residential sub-districts to " two-stories, not exceeding thirty feet."

On September 18, 1990, the MLPD received Phase II approval when the Maui Planning Commission approved the MLPD's preliminary plat site plan.


On September 4, 1991, the Council enacted Ordinance 2031 (Height Restriction Law), which changed the definition of " building height." " Height" was defined as " the vertical distance measured from a point on the tip of a structure to a corresponding point directly below on the natural or finish grade, whichever is lower." (post-1991 definition) (Emphasis added).

The Height Restriction Law also provided definitions for " natural grade" and " finish grade." " Natural grade" was defined as " the existing grade or elevation of the ground surface which exists or existed prior to man-made alterations such as grading, grubbing, filling, or excavating." " Finish grade" was defined as " the final elevation of the ground surface after man-made alterations such as grading, grubbing, filing, or excavating have been made on the ground surface."

On October 18, 2003, the Sandhills Project within the MLPD received preliminary subdivision approval, and on March 12, 2004, it received Phase III approval. According to former Planning Director Michael Foley (Planning Director), " [t]he Planning Department reviewed the project relative to the finished grade and did not consider the effect of fill on building heights." In other words, the Planning Department did not calculate fill into the allowable building heights of structures in the MLPD.

On August 2, 2004, the Department of Public Works and Waste Management issued a Grading and Grubbing Permit for the Sandhills project that included a warning that adding fill to any lots would " reduce the allowable height to less than 30 feet from finished grade." On the same day, the Fairways project within the MLPD received preliminary subdivision approval. The preliminary subdivision approval letter for the Fairways project included a similar warning concerning the effect of fill on building heights.

On December 14, 2004, the Planning Director sent an " Interdepartmental Transmittal" rescinding the Planning Department's recommendation of Phase III approval for the Sandhills project based on the fact that the developers who were building the project had raised the finished grade of the project by adding tons of fill on top of the natural ground, and homes built on the fill could violate the Height Restriction Law because their rooftops would be higher than 30 feet from the lower natural grade.

On December 22, 2004, as a result of the rescission, representatives of the developers of the Sandhills and Fairways projects (collectively, " subject projects" ) had a private meeting with Mayor Alan Arakawa (Mayor), the Planning Director, and numerous representatives from various county agencies. At this meeting, the developers expressed their concerns about the County's application of the post-1991 definition of " height" to the MLPD and the County's " rescission" of final subdivision approval. The developers expressed their belief that Ordinance 1924, which had constituted Phase 1 approval for the MLPD, authorized the application of the pre-1991 definition of height, and the developers had already expended " substantial funds in conjunction with the Sandhills project."

As a result of this meeting and various internal communications, the Mayor orally advised the developers that the County " would continue to adhere to [the pre-1991 definition] to interpret the height restriction since the Sandhills and the Fairways Projects had already received Phase I and Phase

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[132 Hawai'i 308] II Project District Approvals prior to the 1991 enactment of the building height restriction amendment and were within the [MLPD]."

On May 31, 2005, the Mayor sent a letter to one of the developers confirming this oral agreement. The Mayor wrote that to resolve the conflict over the issue of developments using fill with regard to building projects, which were approved before the 1991 re-definition of height, " I made an administrative decision to allow the project to proceed with the building heights determined from the finished grade." The Mayor's letter went on to state, " Project District Phase III approval was granted based on this decision."

A copy of this letter was sent to the Planning Director on December 22, 2005, seemingly in response to the Planning Director's inquiry concerning the county's granting of Phase III approval for the Fairways project. By mid-2007, both the Sandhills and Fairways projects had received Phase III approval pursuant to the Mayor's decisions.


On July 18, 2007, in response to the grading and compacting of " tons of dirt" allegedly over thirty feet high and a retaining wall of equal size " loom[ing]" over their houses and blocking their view planes over a " pleasant green valley," Karen Goo, et al. (Homeowners), filed a complaint against the Mayor and the Planning Director (collectively, " County" ) alleging that the Mayor had unlawfully exempted the subject projects from the Height Restriction Law. The complaint also alleged tort claims against the County, defendants VP and PK(ML), KCOM Corp and, eventually, New Sand Hills (collectively, " Developers" ) alleging.[1] Counts I and II sought declaratory and injunctive relief requiring the County to enforce the Height Restriction Law generally and specifically to projects in the MLPD.

On November 16, 2007, Homeowners filed a motion for partial summary judgment (MPSJ). Homeowners' MPSJ requested an order that the County enforce the Height Restriction Law definition of " height" on the subject projects, and Developers be required to remove any improvements made in violation of the CZO's post-1991 definition.

On December 28, 2007, Developers filed a motion to dismiss Homeowners' complaint, which the County joined. Developers argued, inter alia, that the complaint failed to join indispensible parties, specifically " each and every lot owner within the [MLPD] permitted after the 1991 Amendment[.]" On February 25, 2008, the circuit court partially granted Developers' motion to the extent that the circuit court ordered Homeowners to provide notice of the lawsuit to " all lot or real property owners within the [MLPD] whose rights would be affected should [the circuit court] grant the relief sought by [Homeowners] in Counts I and II." The order required that Homeowners personally serve all of these " indispensable parties."

On May 21, 2008, the attorney for Homeowners submitted a declaration confirming that all potential parties-in-interest had been notified in accordance with the circuit court's order. A total of 337 parties acknowledged receipt of notice, while 523 parties received the notice, as indicated by certified mail receipts, but had not responded.

A hearing was held on Homeowners' MPSJ on December 9, 2009. On December 31, 2008, the circuit court issued its Findings of Fact, Conclusions of Law, and Order Granting Plaintiffs' Motion for Partial Summary Judgment (Order Granting Partial Summary Judgment), granting Homeowners' November 16, 2007 MPSJ. In accordance with its Order Granting Partial Summary Judgment, the Court ruled that the Height Restriction Law's definition of height applied

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[132 Hawai'i 309] to all projects in the MLPD and enjoined the county from issuing any building permits to projects that violated the post-1991 definition. The order stated that declaratory relief would apply to the MLPD as a whole; however, the circuit court limited the scope of the injunctive relief to the Sandhills and Fairways projects, " so that the remedy is no more burdensome to Defendant County of Maui than necessary to provide complete relief to plaintiffs." The order decreed:

1. The Maui Lani Project District, as a whole, is subject to the residential height restriction as determined in 1991 and codified at Maui County Code § 19.04.040,[2] which states that building height " means the vertical distance measured from a point on top of a structure to a corresponding point directly below on the natural or finish grade, whichever is lower."
2. Defendant, County of Maui, is enjoined from taking any action which conflicts with the Court's determination of the applicable height restriction relative to the Sandhills project and the Fairways project including, but not limited to, the issuance of building permits the result of which would be inconsistent with Maui County Code § 19.04.04.
3. This Order shall remain in effect until further order of the Court.


On January 23, 2009, Homeowners made a motion for attorneys' fees pursuant to the private attorney general doctrine. Homeowners set forth the three prongs of the private attorney general doctrine: " (1) the strength or societal importance of the public policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, [and] (3) the number of people standing to benefit from the decision." [3]

Homeowners argued their lawsuit forced the county to enforce important zoning laws, was necessary because the Mayor had acted illegally, a significant burden had fallen upon Homeowners because the County and Developers were actively opposing Homeowners, and all the people of Maui stood to benefit from the court's ruling.

On February 24, 2009, the circuit court held a hearing on the motion for attorneys' fees. The circuit court concluded that Homeowners met the first two prongs of the private attorney general doctrine. However, the circuit court found Homeowners did not meet the third prong because of the limited immediate applicability of the Height Restriction Law to only the subject projects within the MLPD and the fact that the offending fill blocking Homeowners' ...

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