Despite opposition from the Chairperson Suzanne Case and from the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands (OCCL), the Board of Land and Natural Resources approved a Conservation District Use Permit for a water line to an unimproved kuleana parcel adjacent to the `Ahihi-Kina`u Natural Area Reserve (NAR) in South Maui.
By obtaining the CDUP, the value of the holding has increased for the 120-plus landowners with an interest in the kuleana lot, and they will likely be able to sell it for much more than the Maui County tax assessed value of $1,000. Selling the property would resolve a lawsuit initiated nearly 20 years ago when Betty Snowden realized she had a kuleana interest in lands now owned by Douglas Schatz, according to one of her attorneys.He added that under a settlement reached about a decade ago, Snowden and other kuleana landowners in the area there gave up their interest in some lots and agreed to sell the subject lot.
A court-appointed commissioner, Ray Wimberly, decided that water should be made available to facilitate the sale. Both the lot and the right-of-way across which the water line will cross lie within the Conservation District.
In evaluating the landowners’ request for the permit, the OCCL found two major issues: 1) it was unclear who owned the land across which the water line would run – the county or the state; and 2) there was a concern that the permit request was part of a larger plan to develop a residence on the lot.
OCCL administrator Sam Lemmo told the Land Board at its October 23 meeting that although the landowners had an easement from the county to install the line alongside the Makena-Keone`o`io Road right-of-way, a memorandum of agreement between the county and the state over joint maintenance of the road seemed to suggest that the state might hold jurisdiction — and, possibly, ownership — of the shoulder of the road, which is where the line would run. And if the state did indeed own the shoulder, that would mean it was within the NAR and that the landowners would need to get approval from the Natural Area Reserve System Commission.
Lemmo added that because the water line will be providing infrastructure to a vacant Conservation District lot within the resource subzone, he had some concerns about “whether this constitutes parceling … of a larger project.”
“Theoretically, I can’t do full-blown analysis of the project when I see only one component. My recommendation is to not accept the proposal,” he said.
Land Board member Chris Yuen, a former Hawai`i County Planning Director, didn’t seem concerned that the state might own the easement area.
“My take has always been these miscellaneous roads are county [owned] by operation of law,” he said.
Yuen was also persuaded by attorneys in the court case, who testified that the landowners have no future plans beyond installing the water line and selling the property.
“The whole project is the water line,” said attorney Andy Wilson. Wilson noted that the landowners planned to install the line alongside Schatz’s water line.
“We’re thinking, let’s give the Hawaiians the same … eligibility of water that’s existing down there,” Wilson said.
After an executive session, Yuen made a motion, seconded by Ulalia Woodside, to grant the CDUP.
“At the end of the day, this is a request for a two-inch diameter plastic pipe to lay along another plastic pipe … to service this vacant parcel,” he said. He added that while he appreciated the OCCL flagging is this as something possibly part of a larger project, “there is truly not a larger project at this point.”
Before the final vote, Land Board chair Suzanne Case said she had to respectfully disagree with Yuen and thought the CDUP did, indeed, pose a segmentation issue.
Approving the water pipeline is “a step along the way” to building a house in a very sensitive area, she said.
“I’m very, very sympathetic to the applicants’ long litigation and desire to create value. That is not our job. Our job is not to create value for a private parcel,” she said.
In the end, the board approved the permit, with Case being the only member to vote in opposition.