Fifteen years ago, the Land Use Commission approved the redistricting request of Emmanuel Lutheran Church of Maui. By the commission placing the land into the Urban District, the church could move forward with an ambitious, $20 million, 10-year plan to build new classrooms and facilities for its school and a new sanctuary. Most of the development would occur on about half of 25 acres owned by the church, lying between Honoapiʻilani Highway and Waiale Road, south of Wailuku.
Today, the landscape – weedy trees and scrub grasses – is mostly unchanged.
But in other respects, it is vastly different.
In 2018, the church had yet to move forward with its plans. Acknowledging that it was unable to finance its grand plans and still having to pay off a hefty mortgage, it approached the LUC with a plan to bifurcate the project and subdivide the land. It had already lined up a party to purchase about half the property, but it needed LUC approval of the proposed subdivision and sale of approximately 12.5 acres to Waikapu Development Venture, LLC (WDV). President of WDV is Peter K. Martin, whose projects elsewhere, especially in West Maui, have not been without controversy.
On November 29, 2018, the commission approved the requested amendments. Specifically, the LUC order issued after that meeting states, “Upon the completion of the subdivision process to split the petition area into two large lots, ELC [the church] will sell one of those lots to WDV. ELC will develop the updated ELC project on the portion of the petition area it retains. WDV will develop the workforce housing project authorized under County of Maui Resolution No. 18-150.” The housing project was to be developed within four years of the date the LUC’s decision took effect.
Although the vote was made in November, the language of the final order was not approved by the commission until June 27, and the certification – the final signing-off on the decision, before which it has no legal effect – was not made until July 11, 2019.
Despite the absence of official sanction and the fact that the parcel had not yet been subdivided, WDC and the church moved forward with the sale of the property.
On June 28, officers of both parties signed two documents: a warranty deed and an agreement of sale. The deed was filed with the Bureau of Conveyances on July 3; it describes the property being sold as the entire parcel, with a purchase price of $1,150,000. The agreement of sale was filed two days later, and only on this document does there appear the description of the property to be sold as “proposed lot ‘A-2’ … being 12.760 acres, more or less,” about half of the undivided property.
And so, despite the commission having authorized the sale of only half of the land, and even that to occur only following county subdivision, the developer today owns the entire parcel. Maui County tax records show WDV as the sole owner of record, with Emmanuel Lutheran holding an “agreement of sale.” Emmanuel Lutheran Church will only regain the half of the property where it intends to build its facilities once the subdivision is completed.
The church did manage to pay off its mortgage a month later. In 2016, when it had refinanced earlier loans, the balance stood at around $411,000. In August, the mortgage was paid off, but the church had little left over with which to pursue its own plans.
A Slowdown
In 2018, WDV had given the commission reason to believe that it would complete construction of 80 units of workforce housing within four years. It had the agreement with the church providing for purchase of about half of the church’s property. The timeline it presented to the LUC had the first families moving into the new homes by the end of 2020.
Based on those representations, the commission voted to approve WDV’s plan, “provided that WDV’s Waikapu Affordable Workforce Housing Project shall be developed within four years.”
WDV presented a similarly ambitious schedule to the Maui County Council, which approved plans for the housing – 68 single-family houses plus six duplexes and a one-acre “pocket” park – in September of that year, again with a four-year deadline for completion: September 7, 2022.
Recognizing it would require more time, in 2020, the developer sought, and received, a time extension from the county. In July of that year, the County Council granted WDV two more years – until September 2024 – to complete the housing. Finally, in late 2022, the developer began work on a waterline along Waiale Road, one of the conditions of the affordable housing project. But that was pretty much the only progress. The promised subdivision of the church lot into two parcels of about 12.5 acres each had not yet – and still has not – been completed.
Nor were these the only undone tasks. One of the requirements of the boundary redistricting was that annual reports be filed with the Land Use Commission. From 2018 until April 2023, neither the church nor WDV filed anything with the commission.
An Update – and a Request
On April 13, 2023, the LUC received a nine-page letter signed by Martin (for WDV) and by two church officers (for Emmanuel Lutheran). “We apologize for the gap in reporting and respectfully request your acceptance of this report satisfying reporting requirements for 2018, 2019, 2020, 2021, 2022, and 2023,” they wrote.
The church “still does not have the ability to begin or complete construction by the March 7, 2018, deadline of ten years,” their letter stated, attributing the delays to “numerous factors,” including financial issues and falling enrollments. “The Covid-19 pandemic made development even more difficult,” they added.
WDV also referred to Covid and “current economic conditions” in explaining its own failure to complete construction by the July 11 deadline. In addition, Martin complained of county and state agencies being slow to review construction plans.
A month later, with the LUC staff having pointed out technical and other problems with the March report, WDV and the church filed a revised one. This set forth more accurately the conditions of the 2018 amendment to the original LUC decision, as well as a proposed document to record with the Bureau of Conveyances, replacing one filed in 2022. Along with the revised report and attachments, Peter Horovitz, the attorney who had been representing WDV for years, notified the LUC of a change of counsel. Henceforth, Jeff Ueoka would be counsel of record for WDV, Horovitz stated.
On June 6, the commission met to discuss the annual report and hear a status update from Ueoka. A representative of the church, Leif Sjostrand, was present as well, although the church had no specific plans so far as development of its parcel was concerned.
Ueoka, however, had quite a bit to share with the LUC.
The project has been on hold for a while, he acknowledged, but now the “team” was working with the county on getting approvals for a $10.65 million grant and modifications to the original workforce housing proposal. From the commission, he said, WDV was “hoping for an extension of the completion of construction deadline. We were going to ask for a deadline of July 11, 2027 – but would like to extend that to September 2027, to line up” with the county permit.
Modifications to the original layout now included no duplexes, but rather only single-family houses. To accomplish the revised layout, sidewalks had been relegated to just one side of the street, cul-de-sacs had been eliminated, and the “pocket” park had also been erased. The duplexes were dropped, Ueoka said, since they were not as easily marketed as single-family homes.
“We wanted to have the county take over the detention basin and greenways in hopes of eliminating … the need for a home-owners association. But the council wasn’t keen on that when we proposed it. Also, we need to modify the zoning language in regards to the duplexes,” Ueoka told the commission.
“We need to go through with the 201H amendment,” he said, referring to the chapter in state law that gives developers of affordable housing certain exemptions from standard conditions. “And we are probably going to need to come back to you guys to get extension of timelines in the district boundary amendment. We need to complete the two-lot subdivision and have to go through subdivision plans, plans for infrastructure improvements, house plans for the subdivision. Hopefully, by the end of 2024 we can start work on the homes, and in 2025, 2026, homes should be done. People should move in. That’s the dream.”
When questioned by commissioner Lee Ohigashi about the prospects of the county grant, Ueoka reported that just the day before, the fiscal year 2024 budget for the county had been approved, including the affordable housing award, “subject to receipt of approval of the 201H time extension.”
Commissioner Gary Okuda pressed Ueoka on the financial strength of WDV. “The status report doesn’t actually get into financial ability,” Ueoka replied. “Recently, the membership group” – referring to the membership of WDV – “has evolved and there is the ability to get construction financing for this project. It was on hold due to changes in pricing and everything. … Now with the county subsidy, … it’s a strong possibility this project can be financed.”
The Ka Paʻakai Question
Okuda went on to ask Ueoka about the ethnographic study that had been appended to the status report. The study, by Honua Consulting, was intended to satisfy the requirement imposed by the LUC in 2018 that a new cultural impact assessment be done to fulfill the commission’s obligations under Ka Paʻakai.
“Have you or anyone else reviewed the cultural impact analysis study?” Okuda asked Ueoka. “It’s a document prepared by Honua Consulting titled Ethnographic Survey …”
Okuda quoted from the Ka Paʻakai v. Land Use Commission decision of the Supreme Court. The Honua Consulting report, he said, “that was intended to satisfy or present evidence so that the Land Use Commission could satisfy and do its duty as required by Article 12 of the Hawaiʻi State Constitution and as emphasized by the Hawaiʻi Supreme Court in Ka Paʻakai. Correct?”
Ueoka agreed.
“In reviewing the report,” Okuda continued, “persons were interviewed to determine whether or not there would be impacts with respect to the matters which the Hawaiʻi State Constitution says that government agencies have a duty to protect. Correct?”
Again, Ueoka agreed.
Okuda continued: “And it looks like two people were interviewed in the study. What is the evidence in the record that was submitted to us, anywhere in the record, that these two people that were interviewed have knowledge and experience in customary and traditional rights of native Hawaiians relevant to giving us the ability to make the decisions and carry out our duties as required by Article 12 and the Ka Paʻakai case? What makes these two people reliable or persuasive or … relevant witnesses?”
“Like anything, it’s subjective,” Ueoka said. “I believe Honua Consulting selected these individuals. Since Maui is small, I do know both of them. They’re local guys, born and raised. I’m not sure what you would want to see further. We relied on Honua Consulting’s knowledge and general background and expertise in this, why they chose these two individuals.”
“But,” Okuda continued, “is there anything in the report prepared by Honua Consulting that indicates what the qualifications or the standards are that were used to determine who to interview to gather evidence as to whether there is or is not impacts which are relevant to a Ka Paʻakai or Article 12 analysis?”
Ueoka then read passages from the report, noting that one of those interviewed, Ikaika Blackburn, “is ‘associated with the project area through his lifelong residency in Wailuku, Maui, and Na Wai ʻEhā [a group that has litigated water rights in the area]. It talks about Mr. [Daryl] Fujiwara, ‘a lifelong resident of Maui and active community member, he brings a helpful perspective and expertise on the cultural resources, traditions, and customs that exist in the project area. He does not believe that the project will negatively impact cultural resources, traditions, or customs.’”
“But,” Okuda asked, “what’s the evidence that these people have the qualifications, either age, education, experience, training, as either cultural practitioners or somebody who would have relevant knowledge to give the type of analysis that the Hawaiʻi Supreme Court said we on the Land Use Commission better take a look and seek out, otherwise we’ll get reversed again.
“For example, you could say I’m a lifetime resident of Kailua, Oʻahu, where I grew up. I’m familiar with where the beach is, I went swimming at the beach once in a while. But I would never claim that I was a cultural practitioner or anyone with real knowledge of what the cultural practices were or are in Kailua or the general area. I can point out where the heiau is, but just growing up in the area, I’m not sure if that would qualify me to give the type of expertise.
“I’m just making a point that perhaps you might consider some type of supplementation going forward. Because if the analysis and the work that the Land Use Commission is required to affirmatively take is not present, that can stop even giving approvals on extensions, if we don’t have evidence that complies with the requirements of Ka Paʻakai and Article 12. … I’m not sure whether the record is sufficient at this point where further action could be taken.”
Ueoka said WDV would follow up with Honua Consulting. “They determined who to interview and we trusted them,” he said.
A ‘Critical Path’
Commissioner Michael Yamane wanted to know about the status of the two-lot subdivision.
“Where are you in that process, and has the sale already occurred, or does the subdivision have to happen first, and is that a critical path for you to pursue the development?” he asked.
“The sale, there you gotta wait till the subdivision’s completed, of course, per county rules,” Ueoka replied. “But we’re close on the subdivision. The waterline, my understanding, is that’s the last big thing, and the two-lot subdivision should be completed soon.”
“Has the sale already been closed?” Yamane asked.
“I’m not 100 percent sure if the sale is closed. But typically, for this one, my understanding is it closed in the sense that they both hold title to the whole property,” Ueoka said.
When Yamane asked if any money had changed hands, Ueoka turned to someone sitting in the back of the for the answer: “A million fifty thousand for the land,” Ueoka then told Yamane.
Is it possible to proceed without the subdivision? Yamane wanted to know.
“You can submit while the two-lot subdivision is pending,” Ueoka replied. “We can submit the 80-lot subdivision, which can be reviewed concurrently by the County of Maui.”
Members of the commission expressed concern over the ability of Waikapu Development Venture to go forward. Commission chair Dan Giovanni asked Ueoka about what he called “go/no-go issues.”
What if the county subsidy doesn’t come through? Giovanni asked.
“If we don’t get it, it’s a no-go,” Ueoka said, adding that the project “was in the process of being scrapped before an owner representative worked with the County Council.”
When did that happen?
“It started the beginning of May,” Ueoka said, with the council giving approval just one day before the LUC meeting. “We still need to work with the mayor and administration” on details, he said.
“So that’s weeks to months away,” Giovanni noted, with Ueoka agreeing.
As to the amendment of the 201H plans, Ueoka said, WDV “would like to get to the council in the next couple of weeks.” There was work to do in setting deed and resale restrictions, owner occupancy conditions, and the like. “We hope to get started in the next couple of weeks. Then it needs to go to committee and then the council. That’s six to eight weeks.”
There was the matter, too, of getting Land Use Commission approval of a time extension. “We hope to get through this process with the commission by the end of summer,” Ueoka said.
Finally, there was the matter of the two-lot subdivision. “If that fails, it’s a no-go. We’re closing up that last requirement, so that should be okay,” he said.
Then there were the subdivision infrastructure plans and permitting, which would take multiple months for approval. In 2024, Ueoka said, he anticipated subdivision improvements will go in. “We’re not anticipating it being overly painful. County water, county sewer. That’ll probably take at least 12 months. Building permit processing – assume that’s months. Home construction can commence when we get building permits.”
Giovanni then asked about financing. “When will you get a construction loan?”
Ueoka said that WDV had been in touch with lenders, but if a loan isn’t obtained, “that would be a no-go. I give that weeks to months.”
Climate Change Issues
“In the changes you’re proposing, you’re eliminating the park area, green space. No landscaping in rights of ways,” Giovanni noted. So, he asked Ueoka, “I’d like you to inform this commission of what steps you’re taking as a developer to be respectful of the impact you might have … [You’re] taking Ag land and covering it with a lot of concrete here.”
Even though there would not be trees in the rights of way, Ueoka said, “there will still probably be grass or something. … There’s a big drainage area that will be grassed, and green along Honoapiʻilani. But you’re right, no park.”
In the end, the commission asked for the parties to the docket to report back within three months. This, Giovanni said, would allow the commission “to get a clear understanding of what the church is planning. … You can give us a clearer update of the financial transactions between the parties. You can give a clear indication of the go/no-go conditions.” Giovanni also invited Maui County “to give us a more detailed presentation on their view of this project.
“This could be an important workforce housing development for Maui. There’s no question about the need. We want to assist in making it successful, keeping it on track,” Giovanni said.
“But there are some balls in the air here. They’re being juggled, and I’m not sure who the juggler is. And I’m not sure how many balls. But we need to understand all that.”
— Patricia Tummons
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