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The Honolulu Advertiser
Posted on: Friday, March 5, 2010

Maui Lani developer wins costs tied to trial


By LILA FUJIMOTO
Maui News

WAILUKU Homeowners who weren't awarded damages in a lawsuit against the developer of a Maui Lani subdivision have been ordered to pay $87,830 in developer's costs associated with a trial last year.

Second Circuit Judge Joel August awarded the costs sought by developer VP & PK LLC during a hearing Thursday.

He also awarded $9,375 in costs to the eight owners of six homes on Palama Drive in Kahului who received awards totaling $232,700 in damages last September after a jury trial.

The residents sued the developer and general contractor Kila Kila Builders over the Fairways at Maui Lani project, claiming that construction from 2006 to 2008 caused noise and vibrations that damaged property.

About 8,000 tractor-trailer loads of dirt were trucked to the 13-acre site to raise the elevation of the property, obstructing views of the West Maui Mountains from some older homes on Palama Drive.

After the five-week trial last year, a jury awarded damages to owners of six nearby houses involved in the lawsuit but didn't award damages to the eight owners of five other houses. While finding the developer liable for the damages, the jury found Kila Kila and owner Duane Ting not responsible.

The developer's costs that were approved Thursday include amounts for travel within the state, copying documents, taking depositions of witnesses and some fees for expert witnesses, said Honolulu attorney Aaron Creps, representing VP & PK LLC. The costs do not include attorney fees.

"We're pleased to recover the costs that we're allowed to under the law," Creps said.

But attorney Lance Collins, who represented the homeowners, said the residents who didn't receive awards were "very disappointed."

"For the plaintiffs that were not awarded damages, the result is that, in addition to having to live with that 30-foot-high mountain of dirt with a road on top of it, they have to pay for speaking up," Collins said.

"The developer misbehaved, and the jury found some people were harmed by that and they found that others weren't. It seems in this sort of case, everybody should bear their own costs. The judge felt otherwise, and we respect the opinion."

Collins said a large portion of the developer's costs were for Honolulu engineer James Kwon, a defense witness who said that his tests showed vibrations at the construction site were below the damage threshold.

At a hearing in January, August awarded $30,504 in costs to Kila Kila.

Court records show that the jury awards to homeowners have been paid.

No homes have been built at the Fairways project.

In a separate case, August ordered the county not to issue building permits that conflict with the 1991 building height ordinance. That law limits residential building heights to 30 feet above the natural or finished grade, whichever is lower.

August ruled that former Mayor Alan Arakawa exceeded his authority when he exempted the Fairways and New Sand Hills developments from the height ordinance and allowed the projects to proceed under the old law that measured building height from the finished grade.