One Pukalani zoning lawsuit settled — or maybe it’s not

Details of pending case talked about in closed council session

By HARRY EAGAR, Staff Writer
WAILUKU — The county has lost a lawsuit over a 1964 zoning decision in the Five Trees-Corn Mill Camp area of Pukalani, and it has agreed to settle with one owner, Hanohano LLC.

However, at a County Council Policy Committee meeting last week, the administration refused to say that the Hanohano result would extend to the entire area covered by the original county zoning in open session. Most of the discussion was held in executive session, closed to the public.

Another unresolved lawsuit against the county is still in process.

The two suits cover about 42 acres, but there may be considerably more property in similar circumstances.

In March, 2nd Circuit Judge Joel August ruled that, even after giving the break on all inferences to the county, former Planning Director Mike Foley and Public Works Director Milton Arakawa are not authorized to invalidate decades-old zoning.

Zoning is a legislative act, August wrote in granting partial summary judgment to Hanohano, and only the legislature — in this case, the council — can change it.

Hanohano is a proposed 49-unit residential project on 28 acres makai of the Five Trees intersection. It is a venture of developer Everett Dowling. Don Fujimoto of the Dowling Co. said Thursday he had no comment because, although the Policy Committee voted for a settlement Wednesday, he still didn’t know what was in it.

The resolution recommended for approval on Wednesday authorizes the Department of Finance to make arrangements for execution of the settlement, which has been discussed only in closed session. The resolution will go to the full council for approval.

Fujimoto said Hanohano is not asking for money. It wants to proceed with subdivision.

In a closely similar suit filed by real estate agent Shirley Suguitan, covering 14 nearby acres, the county is asked to confirm R-3 residential zoning.

At Wednesday’s open session, Council Chairman Riki Hokama, sitting as a member of the Policy Committee, tried to get the administration to say whether it has directed the “appropriate department” to conform other owners “in similar circumstances” to August’s decision.

Deputy Corporation Counsel Madelyn D’Enbeau agreed that August had ruled the zoning granted by the county Board of Supervisors in 1964 is valid R-3 zoning for the whole area, but she said his order applies only to Hanohano’s two lots.

Planning Director Jeff Hunt didn’t volunteer any information to the council committee about how his department will treat the other owners whose original zoning predates urban classification by the state Land Use Commission.

He told The Maui News Friday it’s an issue under discussion “internally and with our legal counsel.”

“Although the court decision applied only to the specific case, the county has to be fair and consistent in how it treats properties in similar situations,” he said.

He said he agrees with Hokama that prior administrations did not have the authority to “narrowly invalidate” the zoning granted by the former Board of Supervisors based on the fact the zoning had been inconsistent with the state land use designation.

“The proper action would have been to take steps to approve the proper zoning for the affected property,” he said. “But to be fair to the previous administration, they did what they did after consultation with their legal counsel.

“We have been and will continue to analyze the rationale of that decision.”

Hokama also asked why the council had not been informed about the dispute, so that it could have considered “a legislative solution,” rather than a court fight. D’Enbeau said she didn’t know.

Zoning was a new idea on Maui in 1964. The state Land Use Commission created in 1961 was a first-in-the-nation attempt at state zoning. By 1964 the LUC was designating lands under four state land use classifications — conservation, agricultural, rural and urban.

Under the original law, the state authorized the counties to establish land uses within the urban districts, but retained authority over the other classes of land.

In August 1964, according to the summary in the committee resolution, the LUC designated much of Pukalani for agriculture.

Four months later, the county Board of Supervisors rezoned a sizable fraction of that agricultural area as residential, allowing 10,000-square-foot lots.

Parts of the area have been developed since, but in 1990 a corporation counsel advisory said that the county rezoning was invalid, since counties are not allowed to grant zoning in state agricultural districts.

After 1990, the administration considered the 1964 zoning to be invalid.

But Hanohano LLC, under the zoning that was granted, petitioned the Land Use Commission for urban classification, which was granted in 2005.

Another corporation counsel opinion maintained the original zoning was invalid and the county categorized the urban land as interim, requiring the landowners to apply for proper zoning — and giving the county a chance to impose conditions, including requirements for offsite road improvements, school impact fees and affordable housing.

Hanohano’s claim is that if the land has been R-3 for 44 years, Hanohano has a vested right to subdivision approval and building permits for residential uses. August said it is R-3.

His ruling said that the state constitution assumes that legislative bodies know their business.

Both the Suguitan and the Hanohano lots got after-the-fact LUC boundary amendments to urban, which August said showed that the zoning was a matter of statewide concern.

The 1990 corporation counsel letter, and more recent decisions by Arakawa and Foley, exceeded the county administration’s authority, August said.

“The planning department cannot enact or invalidate zoning ordinances,” he said.

Retired Circuit Judge John McConnell said exactly the same thing as a hearings officer in a Lahaina land use dispute four years ago over residential zoning inadvertently granted by a badly drawn land zoning map. Foley similarly revoked permits granted for a house on the shoreline parcel along Front Street.

While the Maui Planning Commission sided with Foley and disregarded McConnell’s finding, the county last year ended up paying $1.5 million to acquire the disputed housing site and settle a civil suit filed by owner Doug White.

David Jorgensen, representing Suguitan, said he was anxious to learn the details of the Hanohano settlement to see how it might affect his client.

Hunt said Maui residents need to understand that the decisions to grant and then attempt to revoke zoning in the Pukalani cases were made by previous county administrations and involve actions taken decades earlier.

“In dealing with the new court decisions, the department will need a thorough analysis,” he said.

On the Hanohano and Suguitan claims, he said he cannot comment because both are still in litigation.

“It’s fun cleaning up spilled milk,” he said.

• Harry Eagar can be reached at heagar@mauinews.com.