For three decades or so – no one seems to be sure of the precise time – a quarry has operated on a rocky slope above Honoapi‘ilani Highway near Ma‘alaea, Maui. Not until 2006, though, did Pohakea Quarry obtain a state special permit. Such permits are to be granted for uses that are unusual, given the land use district in which the use is to take place (in this case, the state Agricultural District), but are nonetheless reasonable.
The permit, which, since 2011, allows for quarrying on 79 acres of land, expired in December 2019. Under a provision in the corresponding county permit, the quarry could continue operating after that if it had applied for another extension at least 120 days before the expiration date.
And the owner of Pohakea Quarry, Hawaiian Cement, did just that, submit- ting to the county Planning Department its application for a 10-year renewal of the permit two years ago, in June 2019.
Not until November 2020, however, did the Maui County Planning Commission vote to recommend that the state Land Use Commission grant a 15-year time extension. And finally, last month, the LUC approved the county’s recommendation. So after a year and a half of operating without a state permit, the quarry once more has the LUC’s blessing.
But the proceeding before the LUC last month and subsequent queries from Environment Hawai‘i raise questions concerning the way in which the time extension request was handled at both the county and state level:
• Why and by whom was the 10- year time extension request changed to a 15-year extension – actually, a 16-year extension (2019-2035)?
• Did the county violate LUC rules in submitting its recommendation to the state commission?
• Was the record submitted by the county a “complete record,” as required by law and rule?
• In considering special use permit requests, is the Land Use Commission precluded by law from considering testimony or evidence that is not in the record forwarded by the county?
• How diligent was Maui County in verifying compliance with permit condi- tions?
When the Maui County Planning Department notified the Land Use Commission in July 2019 of the quarry’s request for a time extension, the response of its executive officer, Dan Orodenker, was critical.
“At this time, we cannot recommend an extension be granted,” Orodenker informed the county. “Our records indicate that there may be violations of conditions previously imposed by the Land Use Commission.” The LUC permit contained 23 conditions, including a requirement that the quarry submit annual progress reports. “The only annual report received by the LUC since the 2006 [decision and order] was submitted on April 2019,” he noted. “The petitioner’s progress report from 2006 until now is untimely.”
“As there is significant ambiguity involving compliance with conditions,” he concluded, “we cannot support further extension of the Special Permit in the absence of some evidence demonstrating current and continued compliance with the county-level conditions and the conditions contained in the Decision and Order.”
Addressing the concerns identified by Orodenker took some time. When the county Planning Commission finally met in November 2020 to decide whether to recommend to the LUC a 15-year extension of the quarry’s special use permit, commissioner Denise La Costa wanted the Planning Department to explain why it took so long for the department to bring the application before the commission.
“Why, when the renewal was applied for in June 2019, did it take until September 2, 2020, for the Conditional Use Permit to be granted [by the Planning Department] and then two months later came to us?” she asked.
Paul Fasi, the county planner overseeing the permit renewal application, responded: “As long as the applicant has an application in process, then they can continue operations, as long as we’re processing their permit. And the reason it took so long is because the applicant had to catch up with their compliance reports, so we were kinda waiting for that.”
Fasi went on to say that, despite the lack of timely reporting, the quarry operated in compliance with requirements. “They were compliant throughout,” he assured the commission. “I would not bring this before the Planning Commission unless they had met their compliance requirements.”
The only thing they weren’t com- pliant on, Fasi said, was the reporting requirement, “so they had to catch up and go, you know, a year at a time to catch up, so we were waiting for that, and upon review, based on those compliance reports, they were in complianc the whole time. So, we accept that based on what they told us.”
Although the quarry had applied for a 10-year extension, by September 2020, when the county Planning Department approved the time extension for the conditional permit, the extension being sought was for 15 years. The conditional permit – one of three allowing opera- tion of the quarry (two approved at the county level, one by the LUC) – was specifically for concrete recycling and the use of the scale house and office on the site. Now, planning director Michele McLean informed the quarry’s agent, Michael Munekiyo of the planning firm Munekiyo Hiraga, the conditional permit would expire December 15, 2035. (Although McLean’s letter refers to a 15-year extension, it is effectively 16 years, given that the previous time extension expired December 15, 2019.)
In the materials forwarded to the LUC by the county in support of the Planning Commission recommendation favoring approval of the time extension, there is no document that explains the change in the duration of the permit. Fasi, the county staff planner, was asked when this change was made, and he referred all questions to Bryan Esmeralda, the planner with Munekiyo Hiraga. Esmeralda had not replied to our questions by press time.
The question was posed to Michele McLean, Maui County planning director. “I believe the discussion of the permit duration was either verbal or by email,” McLean stated in an email to Environment Hawai‘i. “Nothing relating to this change was included in the MPC’s [Maui Planning Commission] staff report package, so it would not have been part of the complete record submitted to the LUC.”
A Time Crunch
By statute, the Land Use Commission has just 45 days from the time it receives “the complete record of the proceeding before the county planning commission” to make a decision on it. On April 29, McLean, the planning director, forwarded the county Planning Commission recommendation to the LUC, thus setting off the timer for the LUC’s consideration of it.
That same statute, however, requires the county to give the LUC a copy of its decision, “together with the complete record of the proceeding before the county planning commission,” within 60 days of that decision being made.
With the Planning Commission having voted to recommend the LUC approve the time extension on November 24, the county should have forwarded it to the LUC by late January at the latest.
In an effort to explain the delay in submitting the “complete record” to the LUC, McLean said, “We did not realize that past compliance reports were delinquent until after the MPC had taken action. If we had realized this prior to the MPC meeting, it would not have been scheduled until the reports were provided. For the same reason, the planner [Fasi] stated what he believed was true at the time – that permit conditions had been met.”
Regardless of that apparent lapse, the LUC still was under the gun to schedule a hearing on the county request within the 45-day time frame. The earliest reasonable date was June 9.
When the LUC met that day, it had received just three written comments from the public. Two were from companies that used the quarry’s products. The third was from Lucienne DeNaie, representing the Sierra Club, Maui. (Penny Levin of Wailuku also submitted extensive critical comments; however, these were not received until June 10, a day after the LUC met to discuss the quarry permit.)
An Endangered Species
In written testimony, DeNaie raised concerns about the quarry’s potential impact on cultural sites as well as unspecified rare native species. In her oral statement to the commission, she specifically called out the potential presence of yellow-faced bees, a native insect that obtained federal protection in 2016, a decade after the initial LUC permit was obtained.
Under normal circumstances, the suspected presence of a federally protected endangered species would be of concern to the commission. In the context of a special permit, however, it has been the practice of the commission to limit itself to considering only the record that the county has given it.
Orodenker, the LUC’s executive officer, explained it this way to Environment Hawai‘i: “[W]e have the authority to modify an SP [special permit] but if there is some issue that was not dealt with at the county level, it has to be remanded. The evidence-gathering and the due-process hearing takes place at the county level.” The options avail- able to the LUC, Orodenker said, are: it can amend the county decision, reject it, or remand it to the county for further action. It cannot, however, consider any issue that wasn’t included in the county record, he said.
The LUC statute, Chapter 205 of Hawaii Revised Statutes, does not clearly state this. Rather, according to Orodenker, the basis for this is an attorney general opinion issued some decades ago. The gloss on HRS §205-6, which deals with issuance of special permits, mentions an attorney general opinion issued in 1968, which discusses the “authority of land use commission to modify permit approved by county commission.”
That opinion, No. 68-30, was written in response to a question as to whether the LUC could extend the term of a special permit issued by Kauai County for a helicopter operation. The county had set the termination date as June 30, 1969, but that was amended at the LUC level to December 31, 1969, a date that coincided with the helicopter operator’s lease of the property on which it operated.
“We think the Land Use Commission does not possess the power to extend a time limitation imposed by a county commission as a condition of its approval of an application for a Special Use Permit,” states the opinion, written by Jack C. Morse, deputy attorney general, and approved by Bert T. Kobayashi, attorney general at the time.
The notes to the statute also reference a Hawai‘i Supreme Court opinion, Perry v. Planning Commission of the County of Hawai‘i. In that case, a quarry operator on the Big Island wanted to include screening and crushing operations, as well as a cement batching plant, in its activities, but the county recommended against this. When the LUC considered the special permit, it included those operations. A resident challenged the LUC action, but the Supreme Court upheld it. Since the operations were included in the original application the quarry operator had filed, the court determined, the LUC could approve them. Again, this case would not appear to tie the hands of the LUC in the way that the commissioners seemed to think at the June meeting.
Michael Hopper, the deputy corporation counsel for the county, told the commissioners that any evidence needs to be introduced at the Planning Commission for it to be a matter of record. “I would love to have this clarified,” he said. “I don’t see restrictions on introducing new evidence at this level, … but I believe you’re in a contested case where essentially the evidentiary period is closed. The parties have to refer to that record.”
“My only thing to point out,” he added, “check with your AG on whether oral testimony can be accepted at this stage in the proceeding. … We are repeatedly told at this stage there’s no opportunity for new evidence.”
Commissioner Dan Giovanni of Kauai said he, too, was “very concerned about the protocol we may be establishing when any public testifier can come forward … to lay a claim at this point … and throw it into a situation where we are seriously considering remand of the petition back to the beginning. I just have a lot of concerns about what precedent we might be setting…. I can see in all future LUC petitions, we’re opening the door for somebody to intervene, not to intervene, but just to present public testimony, raising concerns from left field, unverified. Throwing everything into turmoil.” When DeNaie was questioned by commissioners, she acknowledged that neither she nor anyone else from the Sierra Club had testified when the quarry permit came before the county Planning Commission. “We missed that agenda item,” DeNaie said.
Commissioner Arnold Wong then asked her why her testimony was “so last-minute?”
“We have no staff,” she replied. “Our actions need to be approved by our board of directors. The directors met on Monday, and we wrote the letter Tuesday.” The commission was meeting on Wednesday.
Commissioner Gary Okuda asked if the Sierra Club was opposed to the quarry.
“We did talk about this a little at our meeting,” she said. “Our overall feeling was that the quarry operation does provide a service for the community … However, it appeared that there had been kind of lax oversight over the years at this location.”
Commissioner Lee Ohigashi was first to suggest that DeNaie’s testimony could not be considered. “We can only rely on the record that is on file,” he said. “I’m concerned whether these issues you brought up had been brought up to the Maui Planning Commission in a previous proceeding that may be included as part of the record.”
Again, DeNaie said that her group didn’t testify when the Planning Commission considered the quarry permit time extension, given the limitations of its volunteers to monitor all agendas of state and county boards.
Commission chair Jonathan Likeke Scheuer questioned DeNaie about the yellow-faced bees. “You said they were listed … in 2016,” he said. “That’s since the last time this permit came before the LUC.”
“Do you think that, since it’s a renewal of a special permit, are they required to look at those kinds of things?” he asked.
“Under your duty to protect natural and cultural resources [including]… a rare native species found nowhere else,” DeNaie replied, “I would think you would have a duty to ask the applicant to conduct a survey and determine if their activities would have any impact on the habitat of the bees.”
Scheuer posed the question to Esmeralda: “Was a review for any additional endangered or threatened species that had been listed since the previous permit was issued a part of your firm’s preparation of the special use permit time extension application?”
Esmeralda said it was not.
Scheuer: “So you didn’t go through and say, are there any changed conditions?”
Again, Esmeralda replied in the negative.
One of the issues that has bothered commissioners in the issuance of special permits has been their longevity. Permits issued for limited-time uses become effectively open-ended, with the most notorious possibly being the permit for the Waimanalo Gulch landfill on O‘ahu.
Scheuer asked Esmeralda about post-quarry plans for the area.
“I don’t believe we specified anything, any specific agricultural use that would occur following quarrying use,” he replied.
“So, at the end of operations, what is the ag use going to be?” Scheuer asked. Karlynn Fukuda of Munekiyo Hiraga jumped in at this point: “Hawaiian Cement leases the property from the landowner, so it’s the landowner’s decision to determine what, if any, agricultural operation they would like to do with the land. Once the lease ends, Hawaiian Cement doesn’t have any jurisdiction.”
(Unmentioned at any point in the LUC meeting was the fact that the lease terminates in 2024.)
Scheuer pressed on: “But, Miss Fukuda, is it required under the nature of a special use permit, that the land would then presumably still be suitable for agriculture at the end of the permitting period?”
Fukuda referred to the requirement that the quarry “provide a remediation plan” for county review.
“I don’t think you’re answering my question,” Scheuer said. “Should the land be suitable for agriculture at the end of the special use permit period?”
Fukuda took a moment to answer. “Yes, it’s a simple answer, I guess.”
Ohigashi, who represents Maui, followed up with still more questioning on this point.
“I’m a little concerned with the response to one of the chair’s questions about the responsibility of returning to agriculture…. It appeared that the petitioner seemed to say … that the type of activity would be up to the landowner because they’re the landowner and we’re the lessees. Is that what the petitioner is saying?”
Fukuda: “Maybe I didn’t understand the question correctly, but I did want to make it clear that Hawaiian Cement, the applicant, has a lease agreement with the landowner. … So their lease agreement is relative to the quarry they have, and following completion of the quarrying operation, the land, according to the lease agreement, would be returned back to the landowner. … Agricultural operations following the quarrying operation is not something that Hawaiian Cement may be in the business of.”
Ohigashi said it concerned him that Fukuda’s response, that her client was only leasing the property, didn’t address the return to its past use – “repatriation,” as he called it.
“We’re not talking about the lease. We’re talking about the special use permit. If the petitioner can slough it off and say, I’m only interested in the quarry and not the return of the land to an agricultural use … My question then is, shouldn’t we have the owner as a party?”
After much discussion, the commission ultimately decided that since Condition 12 of the existing permit already required Hawaiian Cement and the landowner to prepare a closure plan and present it to the county for approval, the LUC did have authority to tweak that condition. In the end, it voted to require that the condition be changed to not only prepare a plan, but also “timely implement” it.
The Last Word
One of the other issues that bothered the LUC was the county’s proposed removal of a requirement in the original permit that there be ongoing archaeological monitoring during quarry operations. According to the county, it had obtained a letter from the State Historic Preservation Division relieving it of the need for constant monitoring.
However, the letter was not included in the record forwarded by the county. In the final order approved by the LUC, this issue is addressed. “The commission found during deliberations that … the required SHPD correspondence” had not been included in record, the conditions would be retained.
And as for the yellow-faced bees?
The commission “found Ms. DeNaie’s testimony to be reasonable and compelling such that further review of measures to protect the yellow-faced bees was warranted,” according to the decision and order approving the time extension.
With that, it added Condition 24 to the permit: “That the Department of Land and Natural Resources-Division of Forestry and Wildlife and the United States Fish and Wildlife Service be consulted with regard to the issue raised on Hawaiian ‘yellow-faced bees’ in the Petition Area.”
— Patricia Tummons