OFFICE OF PLANNING'S RESPONSE TO MOVANT'S MOTION FOR A HEARING, ISSUANCE OF ORDER TO SHOW CAUSE, AND OTHER RELIEF
BEFORE THE LAND USE COMMISSION OF THE STATE OF HAWAI'I July 13, 2012
The Office of Planning (OP) supports the Movant's Motion for an order to show cause hearing specifically as it relates to Hawaii Administrative Rules § 15-15-93 (b) which states in relevant part as follows:
"(b) Whenever the commission shall have reason to believe that there has been a failure to perform according to the conditions imposed, or the representations made by the petitioner, the commission shall issue and serve upon the party of the person bound by the conditions, representations, or commitments, an order to show cause why the property should not revert to its former land use classification. "
I. INTRODUCTION
OP finds there is "reason to believe" that Petitioner has failed to substantially comply with its representations as required by Condition 15 of the Findings of Fact, Conclusions of Law, and Decision and Order, effective on February 10, 1995 (the "1995 Decision and Order").
Petitioner originally represented that the Petition Area would be developed with a "123-lot commercial and light industrial subdivision." See Finding of Fact 21 of the 1995 Decision and Order. It now appears that Petitioner is building apartment buildings and two shopping centers, with no apparent light industrial activity within four lots and a roadway lot. This new use was not accounted for in 1995, and consequently,the conditions imposed in 1995 may not reflect the impacts to issues of statewide concern caused by the new use. Petitioner has apparently chosen not to file a motion to amend the 1995 Decision and Order to bring its actions into compliance.
Consequently, an order to show cause hearing should be held. OP does not, however, take any position at this time whether the Petition Area should be reverted. The question of reversion can be decided after an order to show cause hearing is ordered, and may be affected by the subsequent actions of Petitioner.
II. FACTUAL SUMMARY
hi 1994, Petitioner filed a Petition to reclassify approximately 88 acres of land from agricultural to urban. After a one-day hearing in which no public testimony was submitted, the Land Use Commission ("LUC") approved the Petition. On February 10, 1995, the LUC issued its Findings of Fact, Conclusions of Law, and Decision and Order (the "1995 Decision and Order") reclassifying the Petition Area subject to certain conditions.
On March 20, 1998, the County approved the Community Plan Amendment for Light Industrial uses in the Petition Area.
On May 25, 1999, the Property was zoned to M-1 Light Industrial by Ordinance No. 2772, Bill No. 27 (1999), with four (4) conditions. The M-1 Light Industrial district allows a variety of uses, including light industrial, commercial, and apartments. The County did not place any conditions or restrictions on the amount of commercial use that could be built on the Petition area. The proposal for the Zoning application was for a 123-1ot project, the same as approved by the LUC. See OP Exhibit 1 and 2.
On April 8, 2008, the Maui County Council adopted Ordinance No. 3554, Bill No. 22, A Bill for an Ordinance to Repeal Ordinance No. 2171 (1992) And To Establish Kihei-Makena Project District 9 (Wailea 670) Zoning (Conditional Zoning), For Approximately 670 Acres situated at Paeahu, Palaua, Keanhou, Maui, Hawaii, Condition 5. Under this ordinance, one of the new owners of the Petition Area, Honua'ula Partners, LLC, was required to provide 250 workforce housing units within the Petition Area. Condition 5 states as follows:
"5. That Honua'ula Partners, LLC, its successors and permitted assigns, shall provide workforce housing in accordance with Chapter 2.96, Maui County Code (the "Residential Workforce Housing Policy"); provided that, 250 of the required workforce housing units shall be located at the Kaonoulu Light Industrial Subdivision and completed prior to any market-rate unit, that 125 of those workforce housing units shall be ownership units, and that 125 of those units shall be rental units. In addition, construction of those workforce housing units shall be commenced within two years, provided all necessary permits can be obtained within that timeframe. Honua'ula Partners, LLC, its successors and permitted assigns, shall provide a minimum two-acre park at the Kaonoulu Light Industrial Subdivision, which shall be credited toward the requirements of Section 18.16.320, Maui County Code, for that subdivision."
Consequently, Petitioner was aware as early as 2008 that the land use for the Petition Area was changing to include residential units. See OP Exhibit 3.
On August 14, 2009, the County approved the Petitioner's request for a four (4) lot subdivision plus a roadway lot as follows: Lot 2A--30.152 acres; Lot 2B--13.129 acres; Lot 2C--18.519 acres; Lot 2D--19.539 acres, and (roadway) Lot 2E--4.898 acres. This subdivision is consistent with the current proposed use, but differs from the proposal in the zoning application and the map submitted to the LUC in its approval process. See OP Exhibit 2.
On April 18, 2012, the Petitioner obtained a Grading and Grubbing permit. The application for a Grading and Grubbing permit included "Subsurface Investigation Report," dated August 2011. This is the first government document discovered by the Office of Planning which describes a proposed shopping center for the Petition Area. Paragraph 2 of the Introduction in the Subsurface Investigation Report states that the development is for "Two related shopping center complexes...the shopping centers will house a number of retail shops of varying sizes, including large national retailers." This proposal for retail shops and the apparent exclusion of light industrial activities differs from the 123-1ot light commercial and industrial subdivision approved by the LUC.
The Office of Planning is aware of only two of Petitioner's annual reports filed ha the 12 years since the 1995 decision. The first was dated April 7, 2010 and notes that the Petition Area is a large lot subdivision, implying that further subdivisions will occur later. The second faxed on May 19, 2011 similarly notes that the Petition Area is a large lot subdivision, implying that further subdivisions will occur later. Further subdivisions, however, do not appear consistent with the current proposal for two shopping center complexes. In any case, the construction of apartments and two shopping centers and the apparent exclusion of light industrial activities is not mentioned in the two annual reports that the Office of Planning was able to retrieve.
III. ARGUMENT
The issue before the LUC is not whether the new use is consistent with County zoning or subdivision, rather, the issue is whether the new use is consistent with the LUC's 1995 Order....
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Kihei Community Association: http://www.gokihei.org/
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Entering the fray last week were State Senator Roz Baker and State Representative George Fontaine who represent the South Maui Kihei area. Independently, they have both written letters to the LUC and to the state Department of Transportation (DOT) raising questions about the property owners’ carrying out of the 1995 LUC Order and if they are meeting all conditions associated with the order, including traffic improvement requirements.
Both Baker and Fontaine called for public hearings on the project to be held in Kihei.
Maui News June 28: Groups dig in against mega-malls in S. Maui
"It's apparent that a number of the conditions the LUC imposed when approving the switch to urban are not being enforced, and never have been," Fontaine said after the meeting. "It just seems unbelievable that you can go from a light industrial park to a large mall or shopping center without having any community input. It's disappointing that we have a process in place where there appears to be loopholes allowing a project of this size to go forward and simply telling the community that it's a done deal."
MN: Landowner deviates from representations — filing