Assessment of the Zoning Administration and Enforcement Division, Department of Planning, Maui County

from Maui County Auditor, April, 2022 (excerpts)

EXECUTIVE SUMMARY

On April 6, 2021, the Maui County Council (“Council”) passed Resolution No. 21-63, and authorized the County Auditor to execute a contract for an assessment of Zoning Administration and Enforcement Division, Department of Planning, Maui County (ZAED). This assessment was conducted pursuant to the authority of the Council and the County Auditor, as provided in the County Charter….

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Finding 1: The conditions under which ZAED is required to process applications contribute to lengthy permit review times and inconsistencies. ZAED does not have performance measures for reviewing applications. A backlog of permit applications exists.

ZAED processes several types of permit and land use applications. Some are processed by ZAED alone, and for others, ZAED is one step in a process that requires approval by multiple government agencies. To review ZAED’s processing of permit and land use compliance applications, we obtained an understanding of the application process through interviews with ZAED employees involved in the application review process and requests for documents, workflows, and SOPs relating to the process. We also reviewed documentation of the application review process and processing time through data from the KIVA system used by the County for permitting and enforcement recordation and tracking.

One of the Council concerns for this assessment of ZAED was that processing times for permit applications can be very lengthy. However, delays are often caused by the involvement of multiple county and State agencies in the review process. Since the reviewing agencies are diverse and have their own priorities, it is not unusual that substantial delays are caused when these other agencies do not timely process applications. Applicants may also delay the process by not responding to requests by the reviewing agencies to supplement or correct applications, sometimes for weeks or months.

However, ZAED also has internal problems that affect its processing time. Data provided by the Department of Public Works (“DPW”) shows that ZAED effectively complied with the statutory requirement in Maui County Code (“MCC”) section 16.26B.105.3.1., which requires, for building permits, that reviewing agencies such as ZAED provide their concurrence or provide substantive written comments on the construction documents no later than 30 calendar days from the date the building official sends the required documents to the departments. In Fiscal Year (“FY”) 2021 ZAED achieved 95 percent compliance but did not perform as well in prior years.

Internal reasons for delays are staffing issues caused by vacancies and turnover, and the imposition of additional workload without sufficient consideration for staffing. ZAED lost the majority of its supervisory personnel in 2021, and only one has been filled as of January 2022. Since experienced staff is relied upon to provide guidance or historical information to newer staff, the departures represent a significant loss of expertise. Additional turnover could be expected, based on the results of the employee survey. Since there is a small pool of unemployed in Maui, ZAED and the Department should focus on retaining its existing employees, including addressing concerns about working conditions in the employee survey and reviewing whether its compensation is sufficient for retention.

Reviewing applications and enforcement are not the only duties of ZAED employees, and they have been asked to staff other projects. These include short term rental regulation, which appears to be a responsibility of the Current Division. Another program reducing available review time is the public inquiry “hot line,” or POC initiative staffed by ZAED employees. Employees reported that staffing the hot line takes away from their regular duties, and that they are required to deal with many extraneous calls for other Planning sections or unrelated Maui County agencies. Although the hot line may be a valuable public service, consideration should be given to the reality that providing staffing this service is at the expense of resources that could be used reviewing applications and enforcement.

In addition to application processing delays, we also found that consistency in ZAED is an issue because the County, the Department and ZAED do not have robust and clear laws, policies, procedures, and other standards to ensure consistency. To review applications in its jurisdiction, ZAED must comply with numerous County and State laws and regulations. As guidance, it relies heavily on numerous Departmental memoranda. The memoranda are not easy to find or readily available to the public. A prior audit of the County’s planning code, MCC Title 19 (“Title 19”), surmised that the need for the numerous internal memoranda is “..undoubtedly attributable to the fact that Title 19 as it is currently written is outdated and difficult to apply without a lot of interpretation and additional explanation.”2

If the laws and regulations used to review permits are not clear, the risk of inconsistency increases. Consistency in ZAED decision-making is important because without it, the public will not be protected as required by law, applicants may not be treated fairly, and trust in the regulatory system may be lost.

ZAED does not have sufficient and effective performance goals. The Planning Department reports on certain “performance measures” applicable to ZAED’s work in its Annual Reports, comparing actual permits or other matters reviewed to an estimate for that year. However, as the Department itself notes, many of the measures are data, not indicators of performance.

As to the existence of a backlog, we examined data from the KIVA system to determine whether a backlog exists. Using building permits as an example, the data shows a backlog because the number of applications filed exceeded the number of permits reviewed in FY 2018 and 2021. …

read … Full Report

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