KEALAKEKUA — An argument about ocean views on Maliko Street in the Alii Heights subdivision now awaits a judge’s verdict. ADVERTISING KEALAKEKUA — An argument about ocean views on Maliko Street in the Alii Heights subdivision now awaits a judge’s
KEALAKEKUA — An argument about ocean views on Maliko Street in the Alii Heights subdivision now awaits a judge’s verdict.
John S. and Jodi L. Galliard claim in court documents they tried multiple times to convince their neighbors, William Bates and Elizabeth Rawsthorne, to trim trees and plants to preserve their view, as required in their subdivision rules.
An appraisal by a company hired by the Galliards showed the property was originally worth $805,000 and lost $40,000 as a result of the loss of view.
The Galliards alleged they asked Bates and Rawsthorne in November 2013 to trim the trees back to preserve their view of the ocean. They backed their question with the subdivision’s covenant that requires plants to be “maintained at a reasonable height so as to not interfere with the view planes available to any other lot.”
Bates and Rawsthorne did not do so.
Their attorney, Robert Triantos, argued “reasonable height” and “view planes” were unenforcably vague.
Triantos said enforcing vague rules would result in residents being unable to make any changes to their property for fear of litigation.
The defendants sought to have the whole case dismissed, but Judge Melvin Fujino ruled the case should go on.
“The intent of the covenant is clear and unambiguous that the view plane is not to be interfered with,” he wrote. “There is a genuine issue of material fact as to whether the defendants’ trees interfere with the plaintiff’s view plane.”
Fujino presided over a trial in the civil case Feb. 16 and his evaluation of the case includes a visit to the site.
It’s a decision on which both sides are waiting. Both filed their proposed findings, which Fujino will review, before rendering his judgment, which is expected later this week.
Stephen Whittaker, attorney for the Galliards, argued Bates and Rawsthorne went so far as to build a “spite structure” after they were asked to control their trees.
The Galliards’ complaints claim they attempted to enter into mediation, but Rawsthorne declined.
“I don’t give a [expletive] about your view,” Rawsthorne allegedly said, according to the complaint filed by Whittaker.
Bates and Rawsthorne said they were approached by the other couple about their trees, but in a filing denied the alleged statement attributed to Rawsthorne.
The case file records some negotiations between the two families, which were ultimately unsuccessful.
The Galliards said after making a specific legal threat that their neighbor did move some areca palms and trimmed other trees, but did not alter the other plants.
The continued construction of the “spiteful outbuilding” seemed likely to completely block the view of the ocean, the complaint said.
Whittaker laid out several attempts to have Rawsthorne, Bates and their attorney come to the Galliards’ property to see the effect.
In one email, he told Triantos “if you want to see the property from the perspective pillaged by your clients’ behavior, be in touch.”
They did not do so, although Triantos argued the statements were largely an attempt to cover up that Whittaker did not bring a property appraiser into the situation at the appropriate time.
“Defendants have yet to see the damages they have wrought with their plantings and their imperious behavior,” Whittaker wrote.
The defense countered the admission of an expert appraiser, saying there was no proof one was even necessary and that it was too late, in any event, to include the evaluation last minute in the court proceedings. In fact, the plaintiffs even mentioned they might need an appraiser, but had not named a specific one, the defense wrote.
“Consequently, plantiff’s claims regarding diligent pursuit of settlement are nothing more than disingenuous lip service designed to elicit sympathy from the court and relieve their counsel from his error,” Triantos wrote.
Whittaker said it would not be appropriate to comment until after the judge rules. A message left with Triantos was not returned by press time.
Email Graham Milldrum at gmilldrum@westhawaiitoday.com.
