After Harsh Questioning, LUC Finally OKs Maui Landfill Permit

posted in: August 2020 | 0

What Maui County thought would be a slam-dunk request to the state Land Use Commission turned out to be anything but. 

Last month, the county went before the LUC with a request to have it extend, and expand by more than 40 acres, the special permit under which a 71-acre portion of the Maui Central Landfill has been operating for the last 23 years. The permit expired on October 31, 2018, but because the county had applied for the extension well before that date, the landfill could continue to operate under permit. (The remaining 55 acres occupied by the landfill also
operates under a LUC special permit issued in 1986, one that has no time limit.) 

No community opposition had arisen to the project in the previous four years, during which time the county Environmental Management Department had been preparing the extension request. That included publication of an environmental assessment and a hearing before the Maui Planning Commission to extend the county Special Use Permit under which the landfill operates. Nor did any member of the public or environmental group appear before the LUC when it heard the county’s extension request on July 8 and 9. 

For the better part of those two days, however, it was unclear if the request would be approved. The sticking point was the fact that the expansion area included just under 22 acres of land that the previous owner, Alexander & Baldwin, had had the LUC designate as Important Agricultural Lands. 

“We knew the IAL would be an issue,” said Elaine Baker, head of the county Environmental Management Department’s Solid Waste Division. But working with the state Office of Planning and the Department of Agriculture, Baker thought the county had arrived at a way of dealing with it. As set forth in a July 1 memo from OP Director Mary Alice Evans to LUC executive officer Dan Orodenker, the OP was recommending that the commission approve the county’s request with a proviso that within a year of the LUC’s approval, the county submit a petition to the LUC to withdraw the acreage from IAL designation. 

Dawn Apuna, the deputy attorney general representing the OP at the hearing, told the commissioners that the OP wanted to give the county a year “to determine whether removal of the 22 acres would significantly affect the IAL petition originally submitted by A&B.” That petition resulted in the designation of more than 27,000 acres as IAL. The reason for withdrawal, she said, is that “as a landfill, it no longer meets the definition of IAL.” 

She went on to say that redistricting the land under the special permit into the Urban land use district was not required. “A special permit is more appropriate,” she stated. “A landfill is not necessarily an urban use. It is an unusual and reasonable use in the Ag District.” Under state law, special permits are allowed for such “unusual and reasonable” uses. 

“After 2030,” she continued, “the land could potentially be used for some kind of agriculture. … It’s premature to say the area would be used for Urban use, so a district boundary amendment is not appropriate at this time.”

LUC chair Jonathan Scheuer said he was bothered by the idea that special permits are only for temporary uses. “I’m struggling with the idea of temporary uses versus permanent. The way [HRS Chapter] 205 is constructed, the idea is that temporary uses can have a special permit, but permanent ones require a district boundary amendment…. I’m particularly concerned in this case, because even if [a special permit] has been done before, there are certain things you would not do after that landfill. No elementary school, for instance. You might do a sports field, you might not do housing. So there is a permanent change to the property as a result of landfill use. … Some things you’d never do again.” Maui County deputy corporation counsel Mike Hopper weighed in on the reasons the county was seeking a special permit. “One important fact, … was that this involves two already existing permits that have been in place for decades. … It was reasonable for the Department of Environmental Management to decide to amend the permit for a time extension. The life of the permit has expired, but because the application was sought prior, the operation can continue.” 

What’s more, he said, two more landfills in Maui County have been permitted under special permits. “It’s the practice across the state,” he said. 

Also, “the piecemeal nature of landfill expansion, having to add additional land, is not consistent with the district boundary amendment process, which doesn’t anticipate piecemeal” changes. 

Baker, head of the county Solid Waste Division, attempted to address the commissioners’ IAL concerns by proposing added conditions to the permit: “First one, within one year of approval of the amendment, the county shall identify county-owned agricultural property of similar acreage on Maui, have it designated as IAL to compensate for the loss of 22 acres of IAL associated with the landfill expansion. And upon restoration or closure of the Central Maui Landfill, where it is safe and practical to do so and if the land is still designated as Ag, the county shall seek to make lands available for future ag use in accordance with state guidelines.” Hopper tried to address concerns that the proposed uses in the expansion area – offices, a warehouse, areas for household hazardous waste, electronic waste, metals processing, abandoned vehicles, and construction and demolition waste – would be more properly located in areas within the Urban District. These were accessory uses directly tied to the landfill operation, he said, and “appear to be integral to the operations of the landfill.” 

Maui commissioner Lee Ohigashi was skeptical about the legal framework for removing IAL designation and asked Apuna how this might go forward. 

“Apply the same process” as used in designation, she replied. “Just reverse the process.” 

“Is that authorized under any statutory authority?” Ohigashi asked. 

Apuna: “It’s reasonable that that would be your avenue to remove it.” 

“So, your answer is no, it’s just reasonable. Is there any case authority you can cite?” Ohigashi continued. 

Apuna acknowledged that this would “break new ground” for the commission. 

At this point, Hopper noted that special permits can be allowed on IAL lands. 

Ohigashi was not satisfied. “If we say, okay, you have to file for a declaratory ruling to remove the IAL, we determine that according to statutory criteria, that we don’t need a statute or regulation?” 

Hopper agreed. 

Dan Giovanni, the commissioner from Kaua‘i, was not convinced. “My feelings are aligned with those of Mr. Ohigashi,” he said. The proposed uses extend the life of the landfill but need not be sited adjacent to it, he noted. 

“If this was purely a request for an amendment to make a larger landfill, I could accept Mr. Hopper’s argument that the modification of the permit made a lot of sense, but that is not what this is about.” 

Hopper noted that a landfill “is not only composed of what’s in the ground…. I don’t see how a special permit for a landfill would be allowed but these uses would not be.” 

Ohigashi asked Dan Morris, the deputy attorney general assigned to the LUC that day, whether it would be possible to approve the time extension but deny the expansion. Morris replied that it would not be. If the commissioners wanted to grant the time extension but deny the expanded footprint, he said, “that would require remand to the county of the changed request. It wouldn’t be the same special permit that was approved by the county. … You can’t grant in part and deny in part … without some attendant remand to the county.” 

Arnold Wong, an at-large member of the LUC, was more sympathetic to the county than Ohigashi. “I’m in a quandary,” he said, referring to the problem of the IAL. “I want to figure out a way to go around it. I don’t know how to do it.” 

Ohigashi then ripped into the county, saying that at any time, the county “could have come forward with an extension of time. It’s a simple motion. All they had to do was say, ‘hey, we need some extensions of time here because our permit is running out.’ … But they chose to package it together with a 40-acre industrial complex. … The Wailuku Industrial Park would fit this bill. So, rather than being in a quandary, I would remand, with instructions to them that they show in the record where this is necessary for the purposes of extending the life of the landfill and if so, come back with a boundary amendment.” 

Finally, Big Island commissioner Nancy Cabral made a motion to grant the county’s request with two conditions: that within a year, the county will apply to the LUC to have a similar area designated IAL, and that after the landfill is closed, the county will seek to make it available for future ag use “in accordance with state and federal guidelines.” 

Giovanni offered an amendment asking that the IAL petition be brought within five years of approval. 

During the discussion on the motion, Ohigashi repeated his strong opposition: “Simple reason why. I’m guided by what I believe the law is. As I review this matter, it became apparent to me that what we’re trying to do is utilize the amendment process for an existing special permit to create a new project…. What the county is trying to do is create a 40-acre industrial park. It’s not an accessory use. … The second part that really bothers me is, if they were planning on this five years ago, why didn’t they come up five years ago … and ask for a declaratory order or declaratory relief.” 

Cabral amended her motion to include conditions set forth in the OP’s memo, including the petition to withdraw the 22-acre IAL land within one year. 

Gary Okuda, also an at-large commissioner, spoke against the motion. “We’re faced with the situation where not only is there what I would think is a good project, but also a project which might have a need in the community, but we are basically told to look the other way on violations of process or procedure because the end result justifies the frankly sloppy way we went about this.” 

Dawn Chang, at-large commissioner (and also the only woman on the panel), weighed in: “I think the County of Maui was operating the landfill historically like all other landfills, by special permit. Was that right? In hindsight, maybe not. But I don’t think they were trying to do something extraordinary. So I’m not as offended by the county’s actions. … When I look at those lands, I don’t think they’re IAL. I would rather look at true ag land that can be used as IAL.” 

Scheuer concluded the discussion by saying that the deliberations “aren’t meant to increase suffering. We’re just trying to do our best… I hope you understand we’re sympathetic, … trying to be consistent with our duties yet not be tone deaf.” 

When the roll-call vote was finally called, approval of Cabral’s amended motion passed five to three, the bare minimum needed. 

Meanwhile, in Kihei 

Over the course of the five years it was being developed, the landfill special permit amendment received virtually no opposition. 

Not so with the first matter on the LUC’s two-day agenda in early July. That concerned a petition by then-owner Ka‘ono‘ulu Ranch to redistrict 88 acres of land in Kihei, Maui, that, over the course of its 26-year history, had generated considerable community opposition. 

Before the commission was the request of the current landowners – Pi‘ilani Promenade South, Pi‘ilani Promenade North, and Honua‘ula Partners – that the commission dismiss its Order to Show Cause proceeding launched more than seven years ago. The OSC followed the failure of the landowners to commence work on the project, which, over the course of a more than a decade, had morphed from a subdivision of light-industrial and commercial lots to a megamall and workforce housing. 

With two community groups (Maui Tomorrow and South Maui Citizens for Responsible Growth) and one individual (Daniel Kanahele) intervening in the case, a history of changing plans, a series of landowners, a withdrawn environmental impact statement, and a failed effort at mediation, it promised to be a contentious hearing. 

Suddenly, less than 24 hours before the meeting was to start, the parties to the case submitted a stipulation, which, if approved by the commission, would put paid to all past grievances. The proposed agreement would set the scope of development back to what had been proposed in the 1994 petition for a boundary amendment placing the land into the Urban District: 123 lots intended for commercial and light-industrial use mauka of Pi‘ilani Highway, now with the added set-aside of two conservation areas, together amounting to just shy of five acres. 

Attorney Marjorie Bronster, representing the Pi‘ilani landowners, told the commissioners that the petitioners “listened to what has happened in the past, to the community… The megamall as described in the 2013 plan has been withdrawn and will not be built … That is a commitment that Pi‘ilani Promenade has made.” 

“In May, the parties were at an impasse. I didn’t believe it would be possible to come to a settlement,” she said. “We worked very hard and were able to come up with an agreement, actually within the last 48 hours. That’s why we submitted the stipulation at 12:18 on July 7, yesterday. It was a long, hard road to get here. But the agreements laid out in the stipulation make specific requests to the commission that will obviate any need for a hearing on any of the currently pending motions… We ask the commission to adopt the stipulation as an order.” 

The conservation easements, she said, would “basically be no-build zones.” “We believe this will not violate the 1995 decision and order and accordingly we ask the commission to accept … the stipulation.” 

The attorney representing the intervenors, Tom Price, wanted to make sure the commissioners were aware that the conservation easements were first proposed by his clients – not the landowners. “I would like to note that this was something presented and entered into evidence this morning, but it had been submitted at an earlier date to the commission,” on June 26, he said. “This is something the petitioners on their own were proposing to the commission.” 

Commissioner Gary Okuda wanted to pin down Bronster on the landowners’ commitment to the conservation easements. “Is the conservation easement designation irrevocable? If there’s a change to the layout, will the location as described still be irrevocable?” he asked. 

“That is the plan,” she replied. “Paragraph Five of the stipulation, what the petitioners [landowners] agreed to do, they agreed to continue to consult in good faith with lineal and cultural descendants and the Aha Moku o Kula Kai, on easements to be established. The plan is this would run with the land and be irrevocable.” 

The commissioners unanimously approved the request to convert the stipulation to an order, along with the map indicating the location of the easements. 

Patricia Tummons 

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