Judge rules plants shouldn’t block views

KEALAKEKUA — A judge’s decision reported Thursday in West Hawaii Today regarding a neighbor dispute over ocean views in the Alii Heights subdivision was incorrect.

The judge ruled in favor of the couple who sought remedy from their neighbors whose shrubbery they claimed obstructed their ocean view. John S. Gailliard and Jodi L. Gailliard prevailed in their civil suit against Elizabeth Rawsthorne and William Bates, Judge Melvin Fujino wrote in an order filed Wednesday.

The ruling awarded the Gailliards monetary relief for their loss of property value suffered because of their neighbors’ plants.

“Plaintiffs are awarded $40,000 as damages from Defendants’ breach of contract resulting from the diminished value of Plaintiffs’ property during said breach,” Fujino wrote.

He gave the defendants 30 days to trim the plants down to the home’s roofline, and maintain them at that level.

The case was filed Oct. 3, 2014, and heard in a bench trial on Feb. 16. The case stemmed from a dispute between the two couples over plantings by Rawsthorne and Bates that interfered with the Gailliards’ views.

Plants “on every lot shall be maintained at a reasonable height so as not to interfere with the view planes available to any other lot,” the subdivision’s rules read.

Since the exact heights were not indicated, the defendants had argued it was too ambiguous. But Fujino wrote that the meaning was “clear and unambiguous,” citing other parts of the subdivision’s rules.

The dispute included several communications between the two couples, with the Gailliards requesting the plants be trimmed or removed. The defendants did remove about 50 plants, including trees and shade-requiring plants beneath, according to court filings.

The defendant’s attorney described the Gailliards’ desires as “scorched earth policy,” which was unfair to the avid gardeners.

According to testimony, Rawsthorne told the Gailliards there was no homeowner’s association, so they weren’t bound to the rules and that the solution to the view issue was to move.

The testimony showed that the Gailliards were not the only people to claim they lost sight of the ocean, as neighbors said they had lost upward of 25 percent of their previous view because of the plantings.

Fujino agreed that the plantings had taken about $40,000 from the value of the Gailliards home and that the defendants will pay for that loss. Fujino also found that the claimed $20,000 in emotional loss was barred by the economic loss rule.

The original story printed Thursday erroneously cited the proposed findings of fact court filing, which is where the parties of a case present how they feel the judge should rule, as the judge’s ruling. The filing is phrased and formatted like a judgment and was incorrectly relied upon to write the story. The Gailliards name was also misspelled. It is the policy of West Hawaii Today to correct inaccurate information when it is brought to the attention of the newspaper.

Stephen D. Whittaker, attorney for the Gailliards, said he was not authorized to speak on the record. Robert Triantos, one of the attorneys for Rawsthorne and Bates, declined comment, saying he would need to speak to his clients first.