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Maui, land of infernal regulations
By Grassroot Institute @ 5:10 PM :: 1505 Views :: Maui County, Agriculture, Development

Welcome to Syd Smith’s Maui, land of infernal regulations

from Grassroot Institute of Hawaii, March 21, 2024

Maui is known for its breathtaking scenery, but its regulatory landscape is anything but paradise.

On the latest episode of “Hawaii Together” on ThinkTech Hawaii, Syd Smith, owner of Maliko Estate Coffee in Upcountry Maui and a member of the County Council’s Agriculture Working Group, detailed some of Maui’s logic-defying regulations — ranging from what crops she could plant and how, the restrictions and legal threats faced by short-term rental owners, and the Kafkaesque hassles homebuilders must go through in trying to access water.

Regarding water, Smith told host Joe Kent that the Maui Department of Water Supply has an “arbitrary” method of assigning what are called “fixture unit multipliers” to water fixtures based on their presumed water consumption. 

She said properties are allocated a set number of fixture units based on water meter size, ostensibly to prevent water meter malfunctions from excessive flow, but she has encountered evidence of this issue occurring only once.

To add plumbing beyond the fixture unit limit, one must either remove an existing water fixture from their property or obtain a larger water meter. But according to Smith, the latter involves joining the “dreaded Upcountry water meter list” — a process so drawn-out that, as she remarked, “Everybody knows you’re probably going to die before you ever get to the top.” 

Smith emphasized the broader implications of these rules for homebuilding on Maui.  

For instance, while the Maui Planning Commission recently approved a draft bill to increase the number of housing units per lot, Smith warned that the harsh limits on the allowable number of water fixtures per property could render density-increasing measures essentially meaningless.

To make matters worse, Smith noted that these development-hindering rules are often “unwritten” or subject to the arbitrary discretion of department personnel. 

“I’ve heard of it called the fixture-unit myth … because no one can find where it’s written down anywhere,” said Smith. “I actually believe that this has actually been the water department trying to control growth, which is not their job.” 

TRANSCRIPT

3-11-24 Syd Smith with host Joe Kent on “Hawaii Together”

Joe Kent: Aloha and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcasting network. I’m Joe Kent, executive vice president of the Grassroot Institute of Hawaii, filling in for Dr. Keli‘i Akina. He’s the president and CEO of the Grassroot Institute. 

Well, Maui has the most burdensome regulations in the nation. We all know that.

Hawaii has the most burdensome regulations in the nation, but that’s turned homebuilding — even for people who want to do something as simple as build a house in their backyard — that’s turned that into a very difficult task. 

And one person who has struggled with that task for a long time is Syd Smith. She has a farm on Maui. She’s the owner of Maliko Estate Coffee and she’s active in county agricultural and water issues. So Syd’s gonna talk to us today about some of the regulations that have been getting in the way. Welcome, Syd.

Syd Smith: Thank you, Joe. I appreciate the opportunity.

Kent: Well, thanks so much for being here. Can you tell our viewers a little bit about yourself and Maliko Estate Coffee?

Smith: Well, we started our coffee farm in 1998 — really 1991 — but we didn’t have trees ready to pick and harvest, and really have a label until 1998. So we decided to grow coffee because it grows in the shade.

And one of the first things that the county told us when we first went to them about complying with the agriculture zoning was that we needed to cut all our trees down and plant something in rows. And so, we are in a rainforest along a stream and this just seemed so wrong.

And so, you know, with sort of a tongue in cheek, they said, “Well, if you can find some kind of crop that thrives under a canopy of trees, then I guess we’d have to approve it.” 

So I actually got an agronomist from the Big Island to come to Hawaii, to Maui, and to talk to the planning department about coffee, because coffee is a jungle plant.

And so we already had coffee growing wild, and we had the ideal conditions. We were at the ideal elevation. And so they approved it, but only for me. And so I actually pushed them to approve it for other growers.

And at that time, there were no other coffee growers on Maui, but there had been. In 1901 and 1905, there were many. So that led me to get involved with starting the Maui Coffee Association

And then that led to getting involved with the Ag[riculture] Working Group, which we started in 2013, which is a policy group of the leaders of the commodity groups on Maui to give our best opinions to the [Maui County] Council and to the departments, because they don’t really have anyone in these departments any longer that are from a farming background.

Kent: So is that an official county body, or is it a group that you just kind of privately started, or where does that fit?

Smith: It was actually started by the chair of the agriculture committee at the County Council, who at that time was Don Guzman. Then he was given the agriculture committee and he knew nothing about agriculture.

So he first started going to the president of the Cattlemen’s Association, the president of the Coffee Association, which was me at the time, asking if we would be interested in serving on a group that he put together. And then each successive chair of the agriculture committee with the County Council has inherited us. And we also work with the administration. So it’s just a resource for them. 

And so you have to be a farmer or a rancher to be on this group. You can’t be a lobbyist or someone that’s working for a big corporation or a developer or something. You have to be a working farmer or rancher. And it’s normally the heads of these commodity groups that are on this group.

Kent: Well, to our viewers, one of the reasons I love so much talking to Syd is she is on the ground. She’s doing things like trying to build maybe a structure in her backyard or trying to help her business, and she keeps running into regulations. 

Isn’t that right, Syd? It seems every time I talk to you, you have another story about that.

Smith: Yeah. Everyone I know has these same problems. This isn’t just unique to me. It’s just that I don’t take no for an answer. You know, I find out why.

And sometimes there is no reason why. It’s an unwritten policy, or it’s just the mood of that person in the department that day. And as I’ve gotten more involved, I’ve found out sometimes it’s easier to change the policy than to comply with the policy.

Kent: Well, let’s start with the policy of water right now. Your group has started looking into water-related issues. Is that right?

Smith: Yes. Water is a huge issue for farmers. And it comes down to, you know, every time we need water the most is when we go on water restrictions.

And, you know, then we get, you know, a lot of pushback from, well, but that’s when we need the water, is at the end of harvest, it’s right when you need to use the water and that’s when you have a water restriction. 

So we actually changed the code to give farmers — you know, real farmers and ranchers — an excuse to continue using water. And so that passed just this past year. 

And. you know, water is always going to be an issue for farming. 

So you have a code that says you have to farm, and then they say, “As long as you don’t use any water.” 

You know, it’s like, you can’t comply with one department’s rule — the planning department’s rule to farm —  and then the water department that knows nothing about what the planning department’s doing or the tax department, you know, they’re all saying different things. They’re telling you different things. Water department doesn’t want you … 

Kent: And then that puts you in a Catch-22 sometimes too, just like you said. 

What other difficulties, though, are there in the water issue, especially when it comes to, let’s say you want to install a sink or a laundry machine or a shelter in the backyard or maybe a small accessory dwelling unit behind your house? How does water play into that?

Smith: Well, they have this sort of mysterious policy. It’s not in the code that we’ve ever been able to find, and it’s not in the administrative rules that we’ve ever been able to find. But they call it the fixture unit policy. 

So you’re allowed so many fixture units, and different fixtures are assigned a different number.

So a tub filler has a larger number than, say, a laboratory sink, which uses less water. And you have a hose bib that uses more water, they suppose. And so they allocate these units to every meter, depending on the size. And most people, even farmers, get a 5/8 meter.

And so then you go in to get your permit and the first thing they tell you is you’re maxed out on your fixture units.

It’s like, “What, really?” You know, you don’t even know about this policy until they tell you about it.

And then they tell you kind of on the side, “Well, but you can buy more units.” And it’s like, “Well, what’s the purpose of this fixture-unit policy when they didn’t used to have it?” I mean, I’ve built houses before here, where they didn’t have the policy and the water department didn’t even get involved in it. And all of a sudden now they do.

So we’ve been studying this for years trying to get a straight answer. And so the answer, at the beginning ,was if you pull too much water through a meter, you can break it. So they were saying that’s why you have this rule.

And that didn’t sound right because every farmer and rancher I know has had a broken water line where the maximum amount is going through the meter and no one has ever even heard of a broken meter before. So that wasn’t really sounding like a truthful answer, but that was their official answer for quite a few years.

We actually looked into this, another one of my Ag Working Group members actually really went down to the pipe fitters and the people that work on the ground and just kept asking, “Have you ever heard of a water meter breaking from too much water?” Usually the answer was no, and they acted like they didn’t know what we were talking about. 

But one said it did happen one time and it happened in Ulupalakua. It wasn’t the ranch, it was somebody that lived up there and they hooked a bigger pipe to a smaller meter and then went way downhill. And anyway, long story short, they fixed it with a 25-cent washer. 

Kent: [Laughs]

Smith: So like this was the only story that we could find, you know, where this had actually happened. So through …

Kent: So you’re saying this policy of fixture units where you’re limited to how many, let’s say, toilets or sinks and things that you can add onto your property, that limitation is so that you don’t have this bigger problem, supposedly, of breaking your water meter. But it’s not really a problem after all, you find.

Smith: Yeah. So, you know, I actually believe that this has actually been the water department trying to control growth, which is not their job. 

And I was actually at a Rotary breakfast that I was invited to by a neighbor because she said that the director of the water department is gonna be there. And they wanted to talk about the Upcountry water meter list, which for your viewers, this is a huge problem. And now …

Kent: That’s a big … Yeah. I’ve been hearing about the Upcountry water meter list for ever since I’ve worked at Grassroot, so for over 10 years now.

Smith: Yeah. People have died that have been on the water meter list. I mean, it’s a generational thing. And so if you’re in Kihei, you can get a water meter — which means desert in Hawaiian — but you can be in Haiku where it rains all the time, you can’t get a water meter.

And so you have to be on this list, this mysterious list that, you know, you don’t even know when you’re ever going to come to the top of the list. And so now, as our most recent director, he said, “Well, you know, everyone could get their meter right now, except we don’t have the engineers to process the plans.”

So before this, the reason was we don’t have enough water, and now the reason is we don’t have enough engineers. It’s always something.

So the fixture-unit issue was, well, just get a bigger meter, you know, if you need more fixture units, which is what they do on the mainland. 

On the places that do have a fixture-unit provision in the code, then if you want a lot more fixtures, they just switch out your meter to a bigger meter. Simple. 

But here you have to go on this dreaded Upcountry water meter list and everybody knows you’re probably going to die before you ever get to the top. And so that’s just not any kind of thing that people can comply with. 

So what most people do is they take out their laundry sink, the water department has to come in and look at it and make sure it’s really gone, that it’s been all sheetrocked over and that there’s not a pipe there. And then that’ll give you a couple of units. 

And then you take out a hose bib, you know, really cut it off completely so that it’s not over there and get that cut off and, like, OK, that gives you a couple more.

Then as soon as you get your cottage built, of course, you come right back in and you put your laundry sink, your hose bib, right back in. I mean, it doesn’t accomplish anything except that it costs money, you know, to have a professional coming to do all these things. You’ve got plumbers, you’ve got carpenters, people that have to do all this work.

I mean, it’s just a joke really. You know, like nobody, nobody believes that it has anything to do with anything except a way to make money. 

So in my case, I actually wanted to put in one hose bib for a cleanout on a septic tank that I had to update to, which is also another policy. If you get any kind of permit, you have to update from your cesspool to a septic tank. They believe that’s going to be over a billion dollars — with a “b” — for just the Upcountry area to do this.

Kent: Are you talking about, this is the classic cesspool problem, I guess, that is, you know, all the islands now have to update their cesspools to septic tanks, but it’s an expensive process. Is that what you’re talking about?

Smith: You know, mine was about $50,000, and they need to have a source of water to be able to use when they do a pumping, if they do. And so, you know, I just thought, well, OK, this is just part of the permitting process, and said, well, but you don’t have enough fixture units.

And I’m like, how could that possibly be on this particular lot that I have? I have two very small cottages with one kitchen and one bathroom in each one. I had my coffee-processing facility, which used one hose bib, and I had drip irrigation.

And so the engineer at the time in the water department said, “Well, you’re commercial, because you have a commercial farm and you have two short-term rental permits on your farm. So because you’re commercial, we’re gonna use the commercial fixture-unit guidelines, because commercial fixtures, like toilets and three-compartment sinks and restaurants, use more water than household fixtures.”

I said, “But that’s ridiculous. I don’t have any commercial fixtures. I don’t have a restaurant and I don’t have commercial toilets. So why am I being held to this type of different policy than residential, which is what it is, and farm, which is my zone.” 

And they said, “Well, that’s just the way it is.”

And so I actually had to take out my irrigation and my coffee processing to be able to put in the hose bib for the septic tank, which I was required to update to. And there was just no reason for it. 

And at the time, this is Mike Victorino was the mayor, and at the State of the County address, when I first got this news, I went to the public works director, who I knew at the time, and she said, “That’s ridiculous. I’ve never heard of such a thing. Let’s go over and talk to the director of planning.” 

And that was Michelle McLean at the time. And she goes, “Oh, that’s ridiculous. You know, like, that’s wrong.” 

And then, you know, as we were making our way towards the water director, who was Jeff Pearson at the time, the former mayor, Alan Arakawa, kind of joined our group, you know, like “What’s going on?” And I told him. He goes, “Well, that’s ridiculous. Let’s go talk to the director of the water department.” And he agreed.

And I had the director of the economic development came along, Tina Rasmussen. She goes, “This is crazy.” 

You know, it’s like, let’s, we had this whole group and Jeff Pearson, the director of the water department, said, “You’re absolutely right. That’s ridiculous. That’s a mistake. I’ll take care of it.”

And then I thought, well, the next week I’d get a letter or something. And I called them and I didn’t get a call back. 

And then about a week later, I called him again and he goes, “I’m sorry, I couldn’t override engineering. You’re gonna be held to the commercial fixture-unit policy.” 

And I said, “Where is this written down anywhere in the code? I can’t find it. No one can find it You know, like, where is it?” 

He goes, “Oh, I’m sure it’s in there somewhere. But you know, you’re not going to get your permit for your septic tank until you do this.” 

And I just had to do it. I had people, you know, waiting, you know, big heavy equipment that I’m paying for while it’s sitting there while waiting for this. And so I just had to take out my irrigation, which was drip irrigation, which they don’t even have on the worksheet. They have irrigation like overhead spraying, which uses a lot of water. They don’t even have a policy for drip irrigation.

Kent: So are other people that you know dealing with this issue too?

Smith: Anyone that has a 5/8 meter has a very limited number of fixture units that they can get. And most of the houses that were built, you know, back in the ’80s and ’90s did not have to comply with a fixture unit. So they have hose bibs all the way around their house.

You know, what’s really ironic is I can have a swimming pool with an infinity edge and as long as that pool is filled with a hose bib, it doesn’t count as a fixture unit. You know, so… [laughs]

Kent: So what do you think the County should do then to change this policy?

Smith: Just get rid of it. I mean, it’s not proven that it even is based on current technological standards. I mean, this is based on what’s called the Hunter curve. I mean, we’ve done a lot of studying on this at the Ag Working Group, because we just, where did this come from? 

And the Hunter curve was a series of studies that were done in the 1930s. And in 1940, it was published in a book by the government for plumbing standards for skyscrapers. You know, because there was this, you know, policy that if you built a skyscraper and everyone flushes their toilet at the same time, there’s not enough water at the top of the building to flush all the toilets. 

So it kind of makes sense for that, but we have different kinds of fixtures now that don’t use as much water and we have low-flow, you know, toilets.

Kent: Well, and if you, let’s say you have two toilets in your house, it doesn’t necessarily mean that you’re using more water.

Smith: No, it doesn’t. It has nothing to do with water use. I mean, if it did, then they wouldn’t even count a dishwasher, which saves water. But they do.

They assign a dishwasher has as many fixture units as a toilet. So it doesn’t make any sense. You can’t get a pot filler if you want to remodel your kitchen and put a pot filler by your stove. That doesn’t mean you’re not going to fill your pot. You know, it’s just not as convenient. Yeah. 

Kent: Well, so this is just one, this is kind of like a microcosm, just one policy. But there are so many policies like this on Maui and across Hawaii actually that I’m sure you’ve dealt with. 

But what we’ve seen though at the Maui Planning Commission, recently they approved a bill that would allow more homes on smaller lots.

So now again, this is the Maui Planning Commission, not the Maui County Council. But if it passes the Planning Commission, then it goes on to the Council. 

So basically that would mean if the bill passed or a policy like this passed, you could have more homes on your lots. You could have three homes there instead of two and so on. 

Do you think this is a good approach that could help the housing crisis?

Smith: It could if they could get the fixture units to build them. [laughs]

Kent: I see. So even if this passed, the fixture unit problem would still persist. You still have to have new toilets for those houses and new washing machines and so on.

Smith: Yeah. So, you know, I mean, people are taking fixtures that they use out of their house so that they can build a house for someone so that there’s more housing on Maui. But at every turn, there’s some policy that keeps you from doing it.

And you know, that policy was passed for residential areas, not for agriculture. They didn’t allow another house on agriculture land. You know, they allow it for, you know, residential areas. But there’s still help that fixture-unit unwritten policy. 

And I mean, I’ve heard of it called the fixture-unit myth, you know, because no one can find where it’s written down anywhere. 

Kent: Wow.

Smith:  You know, it’s other counties are looking at this. It’s not just us because every county has a housing issue and this keeps rearing its ugly head.

If you based it on water usage and they were trying to make you, you know, be careful with the water that you use, then they could simply have a tiering system on your bill that if you use too much water, you paid more or something like that, so that you would have an incentive to not use so much water. 

But it isn’t. It’s just arbitrary. And every time you know, it comes along, oh well, people want more fixtures. OK, we’ll just charge more for them.

Kent: Switching gears here, you mentioned earlier that you run a short-term rental. And I understand that FEMA, the Federal Emergency Management Agency, has been trying to house people displaced by the fires in short-term rentals. So did you try to interact with FEMA to connect the dots there?

Smith: I did. Before FEMA even got here, I actually contacted at least a dozen people that I knew that lost their homes in Lahaina and in the areas of West Maui out there, and none of them wanted to move Upcountry.

And they all said, “We want to stay in our district and be a part of the rebuild and have, you know, a voice in the whole community. We don’t want to leave our community. Our kids go to school here. Their friends are here. We don’t want to leave our community.” And that was unanimous with everyone I spoke to.

And everyone that I knew Upcountry had made those same calls to different people and they all got the same answer: No one wanted to leave their community. 

So we just thought, “Well, OK, I wouldn’t want to leave Upcountry if my house burned down and move to Lahaina either.” You know, you want to be close to your land or to your community. That’s, you know, in Hawaii, it’s all about your community and your ohana. So I absolutely could understand it. 

So then when FEMA kept saying that they need housing, they need housing, we reached out to FEMA. 

“So, oh, you don’t even qualify. You’re too far away.”

So OK, but we’re getting this nuclear-hammer message from the governor’s office that we’re not in compliance and we’re trying to comply, but we’re too far away. 

So there was just this disconnect between the speeches on TV and the reality. 

And no one ever came out on TV and said, “You know what? The Upcountry areas and even Kahului do not qualify.” And they have empty houses all over Kihei that FEMA actually rented and are paying for that are empty, that the people in Lahaina and West Maui did not want to move there.

So now they finally have said they’re going to build housing in West Maui, which is what they should have done, you know, in September. You know, they could have easily just asked the people that were right there what they wanted.

And you know, they were building a school right away. They were doing everything right on that front, but they didn’t listen to the community that wanted to stay near their jobs, which were at the hotels, and near their kids’ schools and near their friends and family. And that was so simple. 

But you know, it was like we were just swept into this, you know, evildoers. 

But the state passed in HRS, which is Hawaii Revised Statutes 205, they made it so that you could do short-term rentals on farms and Ag tourism on farms years ago, and then ran workshops in every county encouraging farmers to do this. And it’s right in the law.

Kent: When was that?

Smith: This was probably about 10 years ago. And you know, we went to the workshops. We were all ears. You know, this is, like, agriturismo is something that’s really popular in Europe. And it’s something that they’ve been doing for a lot longer than we have. 

And yet, Hawaii is, you know, the tourist capital. And they’re trying to diversify the visitor to get them out of the typical places, the beaches and the parks that are being overrun, you know, get them to go to other places, do other things so that they’re not all concentrated in one place. And this was their answer, which was a good answer.

And now that we’ve done and we’ve invested and we’ve done everything that we can to comply and to do the right thing and to be licensed and to go through all the hoops  — I mean, there’s a lot of hoops you have to jump through to do all of this  — and then you get the governor telling us that we’re just these horrible, horrible people that aren’t doing the right thing. And we’re just doing what we were asked to do, basically.

Kent: And just to be clear, what you’re doing is not illegal. You have your licenses. You have all the permits to do everything that you’re talking about. And, correct me if I’m wrong, you’ve even tried to rent to Lahaina displaced residents there. Have any rented Upcountry that you know of?

Smith: I don’t know of any. I don’t know of any. Now I have housed some Lahaina fire victims for, like, a week at a time, just because they needed a break, but they didn’t want to move here. They just needed a break from the stress. And so I was happy to do that.

And you know, I feel like we’re all in the same ohana here. You know, I offered also people in Kula to come because I knew two people that lost their homes in Kula. They didn’t even want to come here. I’m only 15 minutes from Kula. That was still too far.

So I really feel that people really want … the sense of community in Hawaii is probably stronger than it is in a lot of places where people just aren’t used to commuting two hours to work like they might be in Los Angeles or someplace. We really like to stay in our community. And I respect that. I feel the same. 

Kent: Are you going to be able to stay in the community with all of the different, you know, barriers that you continue to butt your head against?

Smith: I don’t know. You know, it’s really hard because, you know, we get a lot of offers from multimillionaires that want to live in a beautiful property with views and waterfalls and things like that. We started out with a garbage dump. And that’s our property was a garbage dump for over a hundred years.

And my husband and I ourselves spent five years cleaning it up. And now it’s beautiful, and now everybody wants it. 

And it’s been very difficult because you know how expensive it is to hire people and to pay the kind of wages you really need to pay so someone can live here. So we pay our people really good wages. And the reason we can is because we have the short-term rentals here. 

And we’ve never done it illegally. We’ve always done it with the licenses. And we never have, you know, ever been out of compliance with our rules. 

But, you know, it’s a possibility that we might have to sell if things keep going like they’re going. You know, they’ll just finally make us leave.

Kent: Well, what do you hope that can happen on Maui to change things?

Smith: I’m hoping that the Council, which I feel hopeful still, will assist us and make it possible to build more housing. 

And that I’m hopeful that they will recognize that you just can’t keep throwing roadblocks in people’s ways and expect a different result — because they’ve been doing this for decades and they haven’t gotten more housing.

Kent: Well, thanks so much, Syd. I really appreciate you talking with us today. Thanks so much.

Smith: Thank you, Joe. I appreciate it.

Kent: And thanks to you for watching. Aloha everyone.

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