Hawaii Sierra Club Leader Hit With $1000 per day SMA Fines, Urges Permitting Reform
by Andrew Walden
Fines in excess of $236,000—still accruing at $1000 a day—and a lawsuit--are forcing into the open a 13-year battle over alleged violations of numerous State and County permitting and land use laws on a Huelo, Maui shoreline property owned by Hawaii Sierra Club Vice Chair and Maui Tomorrow President Lucienne De Naie and her husband Daniel Grantham.
According to the Complaint, filed January 29, 2018 by the County of Maui, “a second farm dwelling with an addition, pump house with a storeroom and numerous tents and water tank were constructed prior to obtaining a proper permit.”
The alleged violations were spotted by a Maui County inspector on March 29, 2016. After the alleged violations were allegedly not corrected, Maui County began imposing the $1000 daily fines June 1, 2017. According to the Complaint, De Naie and Grantham owed $236,000 as of January 23, 2018.
The County Complaint asserts that “no appeal or correspondence” has been received from De Naie or Grantham “regarding Notice of Violation 2017/0044” since an initial warning letter dated June 1, 2016.
Lucienne De Naie tells a very different story beginning with the couple’s 1989 purchase of the Huelo parcel with existing unpermitted structures. Responding to questions from Hawai’i Free Press, De Naie describes a system which would make Franz Kafka blush:
“The County ‘complaint’ says we have done nothing to remedy the violations, which simply is not the case at all. We did everything that we thought the County wanted, but in hindsight, we probably really did not understand what the County wanted.
“After thirteen years of applying for and securing and then ‘losing’ various permits from Maui County and paying a $7,000 plus penalty for a permit, we still do not have, we found ourselves ‘trapped’ in an arbitrary decision made by one County inspector.
“We could not get the second very elaborate SMA application we turned in in 2014 to even be reviewed by the county planning staff until there was an inspection of our ‘implemented farm plan.’ We had already been granted an SMA Exemption permit for the exact same area in 2010 by Maui County. That SMA review took three years to get, from the 2007 submission date. It didn’t require a farm inspection first. We just turned in a farm plan. Then we turned in the SMA (Special Management Area) application with after the fact permits and plans for the unpermitted buildings and waited for the County to tell us what else they needed. We spent thousands of dollars on plans, etc. for the first SMA permit. We ended up having to tear some the older outbuildings down to comply with a DSA (Maui County Development Services Administration) directive, but we didn’t know we needed a new SMA permit to do that. This put us in violation of our original SMA permit that we had worked hard to get and it was rescinded in 2013 and we needed to start over.
“We thought the 2014 SMA application would be the same, but it wasn’t. We got an email that we needed to schedule a farm inspection.
“We made the mistake of telling the farm plan inspector in 2015 that we were working with USDA in a conservation grant to enhance the existing farm area by planting another 50 or so native and fruit shrubs and trees in areas that had some planting, but still had more space. This was a four year plan. The inspector told us she was unable to come out and inspect our current farm use (which is substantial and does cover at least half the two acres as required) until the four year plan with USDA was complete and USDA had signed off. There was no way that would happen in less than four years, and we needed to begin the SMA review process now.
“Because she would not inspect, even after USDA staff reached out to her, our SMA application was deemed ‘inactive’ and returned to us in early 2017. That exposed us to more violation notices and large fines. We were completely overwhelmed.”
An 82-paragraph ‘Declaration’ filed by De Naie and Grantham in response to the County lawsuit describes their ordeal in far greater detail.
Property developers who have been targeted by Sierra Club and Maui Tomorrow lawyers might be excused if they were suddenly overcome with feelings of Schadenfreude—but that misses the opportunity.
We asked De Naie if her 13-years’ experience give her ideas about how the permitting process could be made more fair to builders and property owners such as herself. She responds:
“…The permitting system is very fragmented. Once branch of planning does not necessarily communicate with other branches. Therefore, the permittee is told one thing by Planning, but there may be other requirements for public works, DOH etc. If a permittee can afford to hire a consultant who ‘knows the ropes,’ that consultant advises them of all these requirements and how to meet them. Even then, with a consultant, I have heard stories of documents turned in to the county getting lost; permittees being falsely accused by County staff of not having turned in needed documents on time; or long delays for review of document before an applicant is told that some minor part is missing or needs to be changed. All these things happened to us, with no consultant, and people I know who hired a consultant also had to deal with similar situations.
“If a permittee is of modest means such as my husband Daniel and I, they enter a very confusing maze of intersecting and sometimes conflicting demands. We could not afford to hire a consultant to oversee the permit process. We spent the funds we had on architects and engineers to draw up after the fact plans for the various structures that were on our land when we bought it. In part the land was affordable in 1989 because only one structure was permitted. We did not build the structures that needed to be permitted, so it was a challenge and a learning curve getting after the fact plans of the carport and deck, storage building and second farm dwelling and securing permits….
“Many years ago I served on a regional planning commission in Southern California (coastal san Diego County). I learned then that some municipal systems of permit review are better than others. One town had a ‘one stop’ system, where several days a week the heads of the various departments reviewing the permits met with permit seekers. At one table, the requirements were discussed, questions answered, fact sheets distributed, etc. The average person applying for a permit received one in three to five months (this included coastal review).
“Another nearby town did not take this approach and had more of the ‘hands off approach’ seen in Maui County.
“Applicants in the second town took years to get permits. Both were charming coastal towns with older ‘down towns’ and newer inland developments. The difference was the management style.
“I believe the County of Maui needs to move to a ‘one stop’ system and also have an ombudsman to help guide people thru the process. Many of the people most hurt by the current planning process are local families who get really lost in the maze. Some of these folks have contacted me for help, but I have to explain that, after 13 years, I only understand parts of what applicants need to do and which department has jurisdiction where.”
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