Owner of Piʻihana Property Ignored LUC, County Conditions

posted in: February 2021, Land Use | 0

When Vernon Lindsey and his Wailuku Plantation, LLC, purchased the property that was part of the 1990 boundary amendment petition, the property consisted of seven discrete legal parcels, part or all of which were within the petition area.

Among them was an irregularly shaped parcel of about 25 acres that ran between Piʻihana Road, on the north, and Iao Stream, on the south.  More than half of the lot lies within the flood plain.  

The sketches and maps drawn up in 1989 when C. Brewer and Co. proposed shifting the Agricultural land into the Urban district show neat areas of townhouses and single-family homes on small lots, built around a network of winding streets with a park and open spaces.

Initial plans for a project district were approved by the county in 1991. The following year, a Phase II project district approval was granted, anticipating 50 acres of single-family housing, 16 acres for multi-family units, and 12 acres for parks and open space.

Customarily, this would set the stage for the developer to submit preliminary subdivision plans, laying out street configurations, lot sizes, legal lot accesses, utility easements, and the like. Once the infrastructure requirements had been fulfilled and other exactions satisfied, the lots could proceed to be developed and/or sold.

That didn’t happen.

Instead, in 2018, Dominic Crosarial, P.E., of DMC Engineering, asked the county Department of Public Works for a determination of lots within that parcel reflecting land commission awards and royal patent grants going back to the time of the Mahele. After reviewing the materials that Crosarial submitted, on September 30, 2018, David Goode, at the time the director of the DPW, informed Crosarial that there were 45 such separate lots for which separate tax-map key numbers might be applied. “Please be advised that our review of this matter was limited to a separate lot determination for TMK (2) 3-4-032:001. We did not make determinations or validate any information regarding legal access, ownership, metes and bounds, lot area, legality of existing structures, and building setbacks,” Goode advised.

That was all Lindsey needed to start selling off small lots within the larger parcel. On December 31, 2019, Jason McFarlin, on behalf of Wailuku Plantation and Vernon Lindsey, filed the required annual report to the Land Use Commission. In it, he listed the sales of seven shards of the larger parcel. The Maui property tax website shows most of the transfers were in the form of quitclaim deeds, and recorded sale prices were as low as $10 in several cases, up to $400,000.

In 2020, at least two more parcels were sold off, including one, for $10, to Crosarial, the same individual who facilitated the shattering of the larger lot into 45 pieces.

Meanwhile, Lindsey was himself planning to build what was described as a “farm dwelling” on the same lot, as he noted in his Phase III project district application, submitted in November 2018.

The Planning Department was taken aback. 

In a letter dated April 29, 2019, department director Michele McLean informed Lindsey that “there is an existing Notice of Violation still open for the property, … with fines accruing.” (See separate article in this issue for details.)

Moreover, McLean continued, “we are uncertain as to how this one farm dwelling fits with your overall plans as the new owner of a portion of the Pi`ihana Project District. …”

Whatever Lindsey’s plans for the property, under the county’s Phase II project district approval, no building permit was to be issued “until a construction contract has been executed and a notice to proceed has been issued for the extension and improvement of Eha Street, from Wailuku Industrial Park to Imi Kala Street.”

If Lindsey indeed wanted to change the conditions of the Phase II project district approval, McLean wrote, he would need to submit a preliminary site plan and proposals for “drainage, streets, parking, utilities, grading, landscape planting, architectural design concepts and guidelines, building elevations, building sections, construction phasing, open spaces, land uses, and signage.”

Also, “proposals for recreation and community facilities, proposals for floor area ratios, lot coverage, net buildable areas, open space ratios, impervious ratios, and density factors.”

McLean then outlined what would be needed to move on to a Phase III approval.

Lindsey seemed to back off the idea of changing plans.

On August 6 of that year, his attorney, McFarlin, notified the Planning Department and LUC that he was representing Lindsey and Wailuku Plantation. “Wailuku Plantation LLC intends to develop the Piʻihana Project District pursuant to the conditions set forth” in the LUC’s decision and order, he stated.

The next month, when the LUC sought an update on progress toward fulfillment of the Piʻihana project, McFarlin stated that his client intended to develop the project as presented by C. Brewer in 1990.

The meeting left the commissioners with more questions than answers, as memorialized in a November 2019 letter to McFarlin and Brian Ige, also representing RCFC Kehalani.

Nearly all the questions had to do with the Piʻihana project – specifically, Lindsey’s apparent lack of understanding of the requirement for annual reports and notification of changes in land ownership, as well as concerns over the financial arrangements needed to move forward.

In December 2019, McFarlin submitted an annual report, which included information on the ownership of parcels sold off by Wailuku Plantation. “Financing is currently being obtained to build Affordable Housing within of [sic] the Piʻihana Project District,” he wrote. “Bids for construction and materials are also being obtained for the Bridge, Roadways, and Affordable Housing. This site has a number of exactions that make the development of this project difficult… The petitioner … will keep the commission updated on any progress on this topic.”

Owners of the small parcels purchased from Wailuku Plantation were aware by last year that Lindsey planned to downzone the property and be relieved of the exactions associated with the LUC redistricting. In online information advertising several of those lots for sale, there appears the statement that “The property is in the process of being down zoned back to agriculture zoning which began in August 2019.”

— Patricia Tummons

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