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WAILUKU – A judge prohibited Maui County officials on Wednesday from issuing permits or approvals for buildings that don’t comply with height restrictions in two Central Maui subdivisions where the developer has raised property levels.

"Does this mean that the court is now going to become the office of planning for the county? The answer is no," Cardoza said. "This court is not going to be issuing permits or telling anybody how to build structures. I think the court can give specific guidelines as to how things will proceed on a temporary basis.

"That will be the extent of the court’s involvement. That should maintain the status quo."

Cardoza said he wanted to avoid the possibility of "some very drastic remedies" if building permits were issued and neighboring residents later prevailed on the merits of their lawsuit.

He granted the request for a preliminary injunction sought by Wailuku attorney Lance Collins on behalf of Central Maui residents Hirum Heu, Dwight Nacua, Joseph Medeiros and Anthony Gallo Jr.

Last month, the four sued Mayor Alan Arakawa, Planning Director Mike Foley and Maui County, saying their homes and lifestyles would be harmed by the mayor’s 2005 administrative decisions to allow developer Valentine Peroff to raise the grade level of the properties.

Building height restrictions adopted by the Maui County Council in 1991 prohibit buildings higher than 30 feet from the natural grade or finished grade, whichever is lower.

But because the Maui Lani projects received county project district approvals the year before, Arakawa said the restrictions didn’t apply. Before 1991, height restrictions didn’t specify either natural or finished grades.

At Sandhills Estates along Nakoa Drive, where Nacua and Medeiros live, sand was moved from another part of the property to create ocean view lots.

For the development near Palama Drive, where Heu lives, truckloads of dirt from around the old Paia Mill raised the finished grade by 15 or 20 feet, so that some residents’ properties now adjoin walls of dirt as high as rooftops.

Gallo lives in the Maui Lani subdivision The Island, where some residents are worried about what’s in the fill dirt that sometimes blows their way.

On Wednesday, Cardoza ruled the current building height restrictions should apply if the county issues permits or approvals for the two developments.

"If there’s a home to be constructed that’s going to fall within that, there’s no reason why the permit can’t be issued," the judge said. "If, on the other hand, that’s not going to be the case, then the permit should not be issued."

Including those who are suing, about 25 residents were in the courtroom for the hearing Wednesday morning.

"They’re very happy," Collins said after the judge’s ruling.

Collins, who is a candidate for the Maui County Council’s Kahului residency seat, took on the case pro bono, or without charge, after residents came to him.

"They were very concerned because they were unable to get any kind of help from the county for two years," Collins said.

Also in the courtroom gallery was County Council Member Michelle Anderson, who has questioned whether the mayor had the authority to allow the Maui Lani buildup. Arakawa has said he was administering the law.

"This should be a painful reminder to all developers and to the county administration that the county code must be followed, no matter how inconvenient it might be," Anderson said after the judge’s decision. "We should all be happy that the rule of law prevailed."

Earlier during oral argument, Collins said that allowing permits to be issued and houses to be built in the developments could cause "irreparable harm" to neighboring residents. He earlier raised the prospect of newly built houses toppling, retaining walls rotating and catastrophic flooding occurring in existing neighborhoods.

But Deputy Corporation Counsel Madelyn D’Enbeau, representing Arakawa, Foley and the county, said those who have bought lots in the developments would also be hurt if building permits aren’t issued.

As of July 17, seven building permits were pending in the Sandhills or Nakoa Drive subdivision, where all of the more than 100 lots have been sold, D’Enbeau said. She said all of the permits were requested by Maui residents.

A county administration proposal to amend building height restrictions is pending before the County Council, D’Enbeau said.

She said the current building height law "is not a workable ordinance in mass-graded areas," such as Maui Lani.

"There’s been a flexible policy which has been in effect for many years," D’Enbeau said.

She asked that residents identify the particular lots that were affecting their homes so not all owners in the Nakoa and Palama developments would be penalized. After the hearing, Collins said "it would be really awkward" if one row of houses in the new developments complied with height restrictions while another didn’t.

D’Enbeau also asked the judge to set an expiration date for the preliminary injunction to prevent a delay in resolving the lawsuit.

"I don’t think it’s fair to ask other citizens of the county, who have purchased fairly expensive lots and have plans and mortgages, that they be held up a year or two," D’Enbeau said.

Cardoza said the preliminary injunction would remain in place "while litigation is pending" and urged both sides to help speed along the process toward a final ruling.

Collins said his clients wanted to resolve the case quickly, but that would depend, in part, on whether the county would require engineering and other reports from experts.

In granting the preliminary injunction, Cardoza said he had to consider whether the residents suing were likely to prevail on the merits of the case, whether the possibility of irreparable damage favored granting the injunction and whether the public interest supported granting the injunction.

The judge said his consideration of all three factors weighed in favor of granting the preliminary injunction.

Lila Fujimoto can be reached at lfujimoto@mauinews.com.