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‘Substantially Means Substantially’

LUC commissioners vote unanimously to grant show cause motion.

August 30, 2012
Susan Halas , The Maui Weekly

Six commissioners of the Hawai'i State Land Use Commission (LUC) voted unanimously to grant a show cause motion sought by opponents of two large shopping centers and an apartment complex being developed in Kihei.

At issue was whether an 88-acre parcel that was granted a change from Agricultural to Urban light industrial subdivision use by the LUC in 1995 was in compliance with the original decision and order, when under new ownership, the use was expanded to retail and housing.

Hanging in the balance and certain to be delayed by this most recent action are more than $220 million in infrastructure and construction improvements. The first phase of the mall portion has already obtained all its discretionary permits from the county and is almost ready to break ground.

Article Photos

(Left to right) Kihei resident Daniel Kanahele, Irene Bowie of Maui Tomorrow, Mark Hyde of South Maui Citizens for Responsible Growth and Tom Pierce, attorney for Maui Tomorrow, celebrate after the state Land Use Commission hearing on Friday, Aug. 24, when six commissioners voted unanimously to grant a show cause motion sought by opponents of two large malls and an apartment complex being developed in Kīhei.
Photo: Susan Halas

Also likely to be delayed are hundreds of jobs that go with the development, if and when the projects go forward.

The commission met and voted on Friday, Aug. 24, at the Royal Lahaina Resort. Their decision means they found sufficient reason to reopen the docket on the particulars of the case.

A number of specific conditions were central to the 1995 LUC decision and order. Two were mentioned by members of the commission prior to taking the vote. One was Condition 15 that required the project to be built "substantially" as represented to the commission in the original hearings. The other was Condition 5--a requirement that the project include a frontage road and a connector road. These roads do not appear in the current plans.

The commissioners also noted that the property owners had failed to file annual reports for the years 2005-09 and had also not filed its annual report for the year 2012.

"The conditions are not just a formality," said Lance Inouye, one of the commissioners. "Substantially means substantially."

When the commission next meets to hear the matter at a date yet to be set, it will conduct an evidentiary hearing to determine if the present owners have or have not met the original conditions. If it is found not to be in substantial compliance, an amended plan would then be reviewed by the LUC, which would be either approved as presented, or approved with amendments. The plan may also be disapproved and require an addintional revised plan, subject to a subsequent LUC review. The LUC also has the power to withdraw its earlier approval and the land would revert to its original Agricultural status.

Seeking the motion to show cause were Maui Tomorrow, South Maui Citizens for Responsible Growth and Kihei resident Daniel Kanahele. Representatives from the state Office of Planning were also present and gave arguments in support of reopening the matter.

Opposing the show cause motion were representatives of Honua'ula Partners (a successor to Wailea 670) for the housing portion of the development, and Pi'ilani Promenade North (outlet stores) and Pi'ilani South (retail center), whose plans call for building two large shopping centers on the site. The underlying ownership of the outlet and retail portion is Eclipse Development Group LLC of Irvine, California.

The County of Maui sided with the owners. County representatives argued against granting the motion.

The commissioners also heard witnesses both for and against granting the show cause motion.

Testifying for the motion were residents of Kihei and a number of experts in planning and traffic.

Among those who spoke against granting the motion were representatives of several construction unions and their rank-and-file members. Also testifying against taking action to reopen the docket were County of Maui Planning Director Will Spence and longtime County Planner Ann Cua.

Also present and listening intently were state Sen. Roz Baker and Rep. George Fontaine, Maui County Councilmember Don Couch and Randy Piltz, an executive assistant in the office of Maui County Mayor Alan Arakawa.

Commenting on the decision, Mark Hyde, representing South Maui Citizens for Responsible Growth, said, "This represents a huge step forward in our case and a victory for the people of South Maui."

Attorneys for the owners declined to comment.

Absent was Charles Jencks, who has been the ongoing liaison for all the property owners. Tom Blackburn-Rodriguez, spokesperson for Pi'ilani Promenade and Honua'ula Partners (and Maui Weekly senior contributing writer), said Jencks was out of the country.

"We respect the decision of the state Land Use Commission and appreciate the thorough nature of today's proceedings," said Blackburn-Rodriguez, who delivered 500 signed cards from Maui and Kihei residents in support of the projects. "We look forward to the opportunity to present additional information in the next stage of the proceeding and we expect a positive outcome. We will continue to work with the commission and with the community as we move forward."

He added, "We expect to prevail in the next step of the proceedings."



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