With the recent attachment of 41 conditions to lucrative zoning changes proposed by Makena Resort Corp., one might think the Maui County Council’s Planning and Land Use Committee was being tough on the company. Two letters to the editor in The Maui News following the committee’s April 14 decision went so far as to call the conditions extortion and warned that such burdensome requirements could discourage future development on Maui.
But the conditions, though numerous, aren’t worth much if they aren’t carried out or enforced. And though they govern everything from noise control to wall heights and require the resort to contribute resources to education, water sources, road improvements and affordable housing, the language relating to compliance is loose enough to allow the developer to wriggle free.
Condition 20 requires Makena Resort to provide to the planning director and the county council annual reports on the status of its compliance. But instead of setting specific deadlines by which the resort must meet the committee’s conditions, condition 20 allows the developer to determine “a reasonable estimate of the time needed for full compliance.”
The consequence for non-compliance is equally soft. Condition 21 states: “Failure to fulfill any condition may result in a reversion to former or more appropriate zoning and/or community plan designations or other remedies.”
If the developer gets its zoning changes, and starts erecting buildings while setting its own schedule for compliance, what happens if the county later finds conditions haven’t been met?
“There is no enforcement desk for conditions at the county that has been reliable,” says Lucienne DeNaie of the Maui Sierra Club. “The county can put whatever conditions they want on a development, but in essence there is no procedure for follow-through to make sure there’s enforcement. We often find that the applicant will accept conditions and go back and ask for them to be amended. Amfac did it with North Beach.” As a condition of its zoning approval for this West Maui development, Amfac was prohibited from building more hotels there until the Honoapi’ilani Highway bypass was built.
“They went in after 15 years, with no bypass, didn’t care that traffic was bad, and said we need an exception. This is done all the time,” DeNaie added in a recent phone interview.
According to the Maui County Code, changes in zoning must conform to policies set forth in the county’s general and community plans. While Makena Resort says its new zoning is supported by maps in the community plan, DeNaie and others have argued that this isn’t enough.
“Policy means not just the map,” says DeNaie. Policies in the Kihei-Makena plan “have a clear expectation of protection of cultural sites, water quality that has not been met by this project.”
The full council is expected to have its first reading of the rezoning request later this month. Whether the council chooses to tighten the language in the conditions could make the difference between a Makena that the people of Maui will still recognize as part of their home and a 600-acre monument to what the average resident can never have.
Marching Over Makena
People on Maui have fought Makena Resort from the beginning, and so far, have lost or settled nearly every battle.
“Condo-buyers go home.” That was just one of the slogans area residents wrote on protest signs back in the early 1980s, when the Japanese corporation known as Seibu applied for a Special Management Area permit to build the Maui Prince Hotel.
In 1973, Seibu bought about 16 acres of beachfront property from Ulupalakua Ranch for $2.5 million, and “an additional 1,000 acres from the Ranch for $7.5 million to create the proposed Makena Resort,” according to a timeline compiled by the activist group Maui Tomorrow. That same year, the timeline states, the developer’s resort plan sparked the first protests.
In 1975, Seibu, A&B Properties, C. Brewer, and Wailea Development Corp. jointly signed a Central Maui Source Development Agreement with the county Department of Water Supply. The agreement granted the developers up to 13.4 million gallons of water a day for their projects in Central and South Maui, in exchange for their contributing millions of dollars to the development of water sources and transmission lines from the ‘Iao aquifer. According to Maui Tomorrow, Seibu and Wailea Resort contributed $7 million to the project.
In the years following, Seibu paved part of the old dirt Makena Road, completed two golf courses, the Makena Golf Clubhouse, public comfort stations, parking, picnic areas, tennis courts, and opened the $40 million, 300-room Maui Prince Hotel.
The hotel was completed in 1986, despite opposition from the Sierra Club Maui, People to Save Makena, and others, who filed a complaint in Second Circuit Court to invalidate the SMA permit that the county had issued. Five years earlier, protesters challenged Seibu’s plan to close a section of the Hoapili Highway/Makena Road, which was part of the approximately 138-mile-long King’s highway. In the end, Hui Alanui o Makena settled its court challenge to Seibu’s proposal and the company acquired a portion of the road through a land exchange with the state Board of Land and Natural Resources.
In 1995, the company sought and received approval of boundary amendment changes to 146 acres of agricultural land to allow for the construction of a hotel and condominiums. The approval was conditioned on, among other things, the developer providing affordable housing, adequate water and road capacity, preservation of historical sites, and protection of nearshore water quality.
In November 1999, Makena Resort approached Maui County with a request for zoning changes to 603.303 acres: 441.29 acres from various zoning classifications to park zoning, 119.719 various acres to apartment zoning, 3.361 apartment-zoned acres to residential, 46 residential acres to BR (business/residential), 28.173 various acres to hotel zoning, 9.817 various acres to business, and 483 apartment acres to residential.
The Maui Planning Commission held a public hearing on the proposed changes July 25, 2000. At that meeting, the commission recommended that the County Council approve the changes, subject to ten conditions including limits on the density and size of residential and business units, regulations on noise and lighting relating to public access, school facilities, transportation improvements, and compliance with county affordable housing requirements.
In 2001, the County Council’s Land Use Committee held seven hearings between and during which members were regularly updated and informed about water availability, traffic conditions, and other infrastructure issues surrounding the development. By December, the committee, with some tweaks to the Planning Commission’s conditions, recommended approval. To make sure those conditions were enforceable, the committee (except for members Wayne Nishiki and Patrick Kawano) recommended that the county clerk record a unilateral agreement and declaration for conditional zoning to make the conditions run with the property.
It seemed as close to a done deal as one could get, but the recommendation was never brought before the entire council for approval. Instead, according to a February 27, 2003, letter from Makena Resort Corp.’s general manager Roy Figueiroa, “The council then held an additional public hearing on January 24, 2002. Following the public hearing, the council referred the application to its Land Use Committee and no additional meetings were held in 2002. The Land Use Committee referred the application to the newly elected 2003-2004 County Council in January 2003 and the council subsequently referred the application to its new Planning and Land Use Committee.”
Round Two
This time around, the committee members have mulled over the same issues they did in 2001. The committee began taking testimony on the issue last October, and the public lined up in droves with their signs in hand, “One O’ahu is enough,” or, “Vote for Makena.”
The Maui Chamber of Commerce took out a nearly full-page ad in The Maui News headed, “Makena: Rights to Due Process,” which stated that the County Council had years ago “set aside areas in the south and north sections of our island for resorts and activities to help attract and grow this new industry… Hence, the south water delivery system and roads would be paid for by those companies willing to invest in this huge economic conversion.” Because Makena Resort had invested millions in water source delivery and storage, the chamber asked, “Can you just decide that you can turn away from a negotiated contract after the other side has fulfilled its commitments?”
Another full-page ad was taken out by Marcia Godinez (a Kahului resident who used a home equity loan to pay for the ad). Godinez called for the protection of Makena’s shoreline areas and archaeological remains, and announced a Makena video contest intended to increase “public awareness about the priceless value of this area.”
In addition to the war of words played out in the newspapers, state and county government agencies weighed in on water, archaeology, transportation, and a host of other issues.
Take a Number
How the development would affect the central Maui water system was one of the biggest sticking points for the committee and many members of the public.
At full buildout, which the developer says should take about 24 years, the Makena Resort project is expected to require 1,074,910 gallons of water a day, according to a document submitted to the council by Figueiroa. In the short term, the resort is expected to need 124,600 gallons a day for its timeshare units, which would be completed in the first two years of development.
As of today, it’s not clear whether the Department of Water Supply will be able to meet either the short or long term demand. Its current water budget is tight and the department has taken the position that the Central Maui Source Development Agreement expired in December 1999 and, therefore, the county owes Makena Resort nothing in the way of water.
While Makena Resort has contended that it still has outstanding water credits with the county, the DWS’ Ellen Kraftsow says Makena Resort will have to queue up with everyone else seeking water. Her boss, DWS director George Tengan, says the general policy with respect to issuing water meters is that if water is available, a meter will be issued. If it isn’t, “then obviously we cannot issue” one.
And that’s bad news for Makena Resort.
The DWS has about three-dozen pages full of outstanding commitments for central Maui water. Filling these commitments would consume 0.565 mgd, with an additional 100,000 gallons a day reservation submitted by the state Department of Hawaiian Home Lands. According to a county document titled “Water Commitments Outstanding,” private parties have already deposited $2,638,695 for water reservations.
These commitments plus the system’s current withdrawals of about 24.4 mgd leave less than 1.5 mgd available from the Central Maui system. “Please note that this does not include Spencer Homes nor O’oka affordable housing projects, as these have not yet applied for meters or meter reservations. Also not included is the majority of the Wailuku Project District,” Tengan wrote in an August 2003 letter to the Board of Water Supply.
With regard to the status of other subdivisions, Tengan noted that the tally was “in progress.” Even so, he identified 143,000 gallons a day for subdivisions that had completed improvements but were not “showing full water use.” In addition, he found 1.885 mgd earmarked for pending subdivisions.
Then there are the projects given discretionary approvals by the county. While these projects are not guaranteed any water, they are taken into consideration when calculating potential demands. Tengan noted in his letter that of the roughly 8.5 mgd needed to supply all these projects, developments accounting for about 3.8 mgd have been put on notice that they “may be required to develop or participate in [water] source development.” That still leaves a projected anticipated additional demand on DWS water of well above 4.5 mgd.
Regime Shift
In July 2003, the ‘Iao aquifer was designated a state groundwater management area, which routes any applications for water made after July through the state Commission on Water Resources Management. The DWS can still issue meters for service supplied by the adjacent Waihe’e aquifer, and said in February it will grant first priority to “existing paid-for reservations and the DHHL [state Department of Hawaiian Home Lands].” Apart from these projects, the department will continue to give out meters from the date of designation until 800,000 gallons per day in estimated demand beyond committed water is reached. At that point, it will stop issuing meters, pending an assessment of the situation at the time or possibly the development of new sources of water. Within this 800,000 gpd limit, the Department will issue meters only to those ready to receive service.
“To date,” Tengan wrote in a February letter to councilmember Nishiki, “roughly 440,000 gpd in non-reserved meters have been issued against this amount, so absent any changes, the remaining water would be about 360,000 gpd.”
Judging by the long line of water applicants ahead of Makena Resort, its water needs are not likely to be met by the Department of Water Supply in the near future. Tengan says he wouldn’t object to Makena Resort developing its own water source and dedicating it to the county.
It would make sense for the resort to develop and dedicate a water system to the county, since the system already serving the resort area is run by the DWS, he says. In Kula and Upcountry, Tengan says, private developers have dedicated systems to the county.
Recognizing the limits of the Central Maui water system, the Planning and Land Use Committee has required Makena Resort to “participate in the funding and construction of adequate water source, storage, and transmission facilities and improvements to accommodate the proposed project in accordance with applicable laws, rules, and regulations of the county, and consistent with the county water use and development plan.”
Exactly when or how much Makena Resort is expected to contribute to water development was not specified, but the Kihei-Makena community plan prohibits further development until adequate infrastructure and facilities are in place prior to or concurrent with impacts of new development.
Do Over
In addition to the general concern about the development’s impacts to the water supply, lineal descendants of Hawaiians who lived in the Makena area are up in arms over the resort’s treatment of ancient sites. Maile Lu’uwai, whose family goes back seven generations in Honua’ula (which includes Makena), has written in The Maui News that Seibu’s Makena lands are some of the most archaeologically and culturally rich in all of south Maui. It’s been estimated that there are more than 500 sites there, with one site potentially containing a complex of 30 features. But despite more than 30 years of surveying by archaeologists hired by Seibu, no one has a clear picture of what’s there. And without that, it’s unlikely community plan policies calling for protection of cultural sites will be met.
But the Planning and Land Use Committee has tried to address that problem.
In March, Holly McEldowney, administrator of the Department of Land and Natural Resources’ Historic Preservation Division, rescinded her division’s 2000 determination that the change in zoning would have no impact. She informed Maui planning director Michael Foley, “We wish to revise our original comment … and state that we believe that the requested action, if approved, will have an effect on significant historic sites known to be present.”
In re-examining old correspondence and work done over the decades for the resort, the division found inconsistencies, including varying levels of work (some of it substandard), different types of mitigation, and cases where some sites were surveyed repeatedly and given different identification numbers.
“This unfortunate occurrence has made it much more difficult for us to evaluate the status of individual sites or site complexes and the need for any further survey or mitigation work,” McEldowney wrote. She then offered a list of mitigation measures, which the Planning and Land Use Committee incorporated into its conditions. These include a re-evaluation of all previous work done for the area and the preparation of a comprehensive map that accurately depicts inventoried areas, the re-investigation, or “ground-truthing,” of questionable areas, and the preparation of a scope of work for the proposed inventorying of all undeveloped areas.
DeNaie says that the resort’s tentative mitigation plan, not approved by the State Historic Preservation Division, preserved only 16 sites. “Who sets the significance of Maui’s history?” she asks.
To address those types of concerns, the committee required in its Condition 15 that the resort’s Cultural Resources Management Plan be “submitted for approval by [SHPD] and the Maui County Cultural Resources Commission, in consultation with the Maui/Lanai Island Burial Council and Na Kupuna O Maui.”
What Options?
The Planning and Land Use Committee, for better or worse, spent weeks creating its list of 41 conditions, even when several members felt they were micro-managing and stepping into the Planning Commission’s kuleana. When the matter finally comes before the full council, the public will get to weigh in on them and the “same old dog-and-pony show,” as DeNaie puts it, will start all over again. If comments made during the committee’s March 31 meeting are any indication of which way several of the council is leaning, there’s a strong possibility the rezoning request will be approved.
Council member Charmaine Tavares said she believed the council had little room to do otherwise. Condemnation of the resort’s lands is not an option, she said, because the county simply cannot afford to buy the property. Denial of the zoning change would still allow the resort to build on the property. “What does [denial] mean? That means on all the property already zoned, they can go over and build whatever at a higher density than what they’re proposing here, and if that’s what the community wants, fine. If we vote no on this, then they’ll just go through the SMA process. So I’m not defending the developer. I think I’m representing the public. Given the cards or the deck we have to play with, we have certain options that are reasonable.”
In her next breath, however, she did admit that she was “suspicious of what Makena Resort is up to.” Because the current zoning already allows it to build a variety of structures, at higher densities even, Tavares asked, “Why are they even here?”
As for council members Riki Hokama, Dain Kane, Michael Molina, Danny Mateo, and Joseph Pontanilla, all seemed just to want Makena off their desks.
As Molina said, addressing a request by Council member Jo Anne Johnson to defer discussion on Makena until after the county budget was addressed: “Forgive my language, but I had one guy tell me, what the hell are you guys doing spending all your time on Makena? There’s other pressing needs in this community. By golly, move on.”
— Teresa Dawson
Volume 14, Number 12 June 2004
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