Panel rejects special use permit for Paia Inn
Appeal likely to 2nd Circuit Court
WAILUKU — The Maui Planning Commission voted 5-1 Tuesday to reject a hearings officer’s recommendation to grant Paia business owner Michael Baskin a special use permit.
Baskin had appealed the commission’s decision to deny him a permit in December 2016. While the hearings officer in the contested case, retired Judge E. John McConnell, believed Baskin’s request followed the criteria for a permit, commission members disagreed.
“We’re naturally disappointed, because there’s a lot of people here to support, and we supported the judge’s decision,” Baskin said after the meeting. “We expected them to honor the judge’s decision in full support. So it’s a big surprise.”
Baskin had been seeking a special use permit to operate the Paia Inn as a nine-bedroom transient vacation rental next to Flatbread Co. in Paia town. There are five existing guest rooms, and he was seeking to convert four offices into rooms.
Commission members originally denied Baskin’s permit in December 2016 because of his previous problems with the county. In July 2015, a county investigation of Baskin led to a $500,000 fine — the largest ever levied by the Planning Department — and 30 notices of violation for issues that included short-term rental, special management area, zoning and building code laws.
At the December 2016 meeting, commission members cited community opposition and Baskin’s outstanding fines — he paid the last of his fines in January 2017 after requesting an extension — as some of the reasons for denial.
Baskin appealed the decision, and the commission chose McConnell to serve as the hearings officer in contested case hearings in April and May. Baskin, Bill Frampton, Fabian Penny and then-Planning Director Will Spence testified; the county did not take a position per a settlement agreement. McConnell did take into consideration past testimony to the commission.
McConnell’s report, issued in July, stated that Baskin’s application met all seven of the applicable criteria for a permit, which included meeting the intent of the general plan, community plan and zoning district, as well as avoiding negative impacts to the local community. (The eighth criterion, which refers to agricultural and rural districts, did not apply in this case.)
McConnell called the Paia Inn a “sensitively designed inn with nine bedrooms” in a Country Town Business District that allows transient vacation rentals with up to 12 bedrooms.
“The assertion that these nine rooms would interfere with schools, parks, playgrounds, water systems, sewage and disposal, drainage, roadway and transportation systems, etc., is simply unfounded,” McConnell wrote.
He stated that parking issues have been resolved, and that “the public is protected: no outstanding violations or fees exist, engineering and fire safety inspections have been passed, and there have been no complaints of noise or anything else involving the Paia Inn.”
McConnell said that Baskin had “numerous letters of support from adjacent neighbors and Paia community leaders and businesspeople,” including Flatbread Co., the Paia Youth & Cultural Center and Paia Town Center. He said that testimony from opponents to Baskin’s application — namely Francine “Mopsy” Aarona and Martin Brass — were irrelevant to the application.
“Neither Mr. Brass nor Ms. Aarona own property adjacent to the Paia Inn, and their opposition appears to be personal in nature and not based on any of the relevant criteria,” McConnell wrote.
Commission members did not agree with all of McConnell’s findings. After a nearly hourlong executive session, member Lawrence Carnicelli made the motion to reject the report, saying he disagreed with McConnell’s findings on whether the public would be “protected from the deleterious effects of the proposed use,” one of the county’s permit criteria.
“The judge has cited a couple of references with which I disagree,” Carnicelli said. “There are also things that he puts in here that conflict with each other; one being that all adjacent owners behind and directly across the street are in support.”
The commission did not take public testimony from the standing-room-only crowd. Chairman Keaka Robinson said that “both sides have had ample time to put forth testimony.”
“There has been sufficient time and evidence put into this case,” Robinson said. “We think there is enough data, and we’re going to go with what’s in front of us.”
Commissioners Carnicelli, Stephen Castro, Kahu Alalani Hill, Larry Hudson, P. Denise La Costa voted for Carnicelli’s motion to reject the judge’s recommendation, while Kellie Pali voted against the motion. Carnicelli declined to comment further after the meeting, deferring to Robinson.
Pali said that she opposed the motion because as a new commissioner, she hadn’t been exposed to the case for as long as others had been. She said her focus was not on what happened in the past but on the hearings officer’s report.
“I just trusted the legal system, in that he knew the law and the applicable law more than I did,” Pali said, adding that regardless, she would’ve liked to see some revisions.
McConnell said after the meeting that Carnicelli’s reason “was just contrary to the facts.” While Brass testified that he was a 50 percent owner in Flatbread Co. at the time of the December 2016 meeting, he had since sold his interest. The current adjacent owners support Baskin’s application, McConnell said.
“If you’re going to disapprove it, at least come up with a rational basis,” McConnell said. “It’s not about whether Baskin is a good guy or not. It’s about whether the standards of the ordinance were met, and plainly they were.”
Aarona, however, said that she was “very pleased” with the decision. In response to arguments that her testimony should not count because she is only a part owner of a property not immediately adjacent to the Paia Inn, Aarona said that she has lived full time in her beachfront home behind the Paia Inn since 2002.
“I am responsible for this property because I am one of the heirs, and I am the oldest of the heirs,” she said, adding that she and her husband own Hawaiian Homes property in Waiohuli, but that they built a home there for their daughter to live in.
Aarona said her home is surrounded by three other Baskin-owned properties — Paia Pad, Paia Life and Paia Place. She said she has supported some vacation rentals in the past if they had a purpose and if the owners lived on Maui. For example, members of one family rented out their home after their children went away to college.
However, she took issue with the Paia Inn’s many violations and said that “I just want him to be legal.”
“I feel that they should not have a vacation rental in the middle of town . . . because we have so many residential areas behind town,” she said. “It should be kept that way.”
Both Baskin and his attorney, Terry Revere, said there have been no noise complaints in the 10-year history of the Paia Inn (Planning Director Michele McLean said Tuesday that the department was not aware of any) and that Baskin had resolved issues with parking and paid all of his fines. Revere didn’t think Baskin’s past violations should keep him from getting a permit.
“We’ve been working hard to get this all resolved,” Revere said. “The short answer is no, they can’t say, ‘Well, we think you violated the rules in the past, ergo we’re not going to give you anything because we don’t like you,’ is not one of the seven criteria that they have to look at.”
Revere said that the decision was “very very likely to be reversed,” and that the commission “only gave one reason for shooting it down.”
“It’s very likely we’re going to appeal, and we’re going to be back in Circuit Court,” Revere said. “The Circuit Court is very likely to reverse again because these guys are simply not following the procedures.”
* Colleen Uechi can be reached at firstname.lastname@example.org.