WAILUKU - The county Board of Variances & Appeals on Friday dismissed an appeal of Maui County's issuance of grading permits for the planned Maui Outlets and Piilani Promenade shopping complexes in Kihei.
In the contested case hearing, the board unanimously granted the county's motion, saying that the board did not have jurisdiction to hear the appeal over the permits the Department of Public Works granted to Eclipse Development Group of Irvine, Calif., in April.
Eclipse is developing Maui Outlets, a planned 300,000-square-foot shopping center on a 30-acre site, and Piilani Promenade, a planned 400,000-square-foot retail complex on 68 acres. The developments, often referred to by critics as the Kihei "mega-malls," are mauka of the Piilani Highway-Kaonoulu Street intersection.
Attorney Tom Pierce, representing three parties challenging a county grading permit for two proposed malls in Kihei, speaks to the county Board of Variances & Appeals during a contested case hearing Friday at the Kalana Pukui building in Wailuku. The board said it did not have jurisdiction to hear the appeals. Sitting next to Pierce is Deputy Corporation Counsel Jane Lovell, who was representing the Department of Public Works that granted the permits to Eclipse Development Group of Irvine, Calif.
The Maui News / MELISSA TANJI photo
The nonprofit Maui Tomorrow Foundation, South Maui Citizens for Responsible Growth and Kihei resident Daniel Kanahele appealed the issuance of the two grading permits.
"The (Public Works) department did their job and the appellants didn't prove otherwise," said Board Chairman Kevin Tanaka in explaining the board's decision after the hearing, where much of the board's discussion was held in executive session.
The board went into executive session for about 30 minutes after the appellants' attorney, Tom Pierce, was called out of order several times when he attempted to speak out of turn.
"We, to the best of our ability, followed the rules and procedures we are bound to," Tanaka said after the hearing held at the Kalana Pukui building. "The appellant is moving on to the (state) Land Use Commission. That's what they should be doing; not coming to the BVA."
"We are disappointed with the ruling," Pierce said.
But he added that the ruling was just a "procedural issue." The larger matter of whether Eclipse was complying with conditions placed on the property by the state Land Use Commission in 1995 will be discussed by the LUC in its upcoming hearings scheduled for Aug. 23 or 24.
Pierce also is representing the same three parties in their appeal to the LUC.
Pierce previously told The Maui News that Eclipse was not developing the property consistent with the conditions placed on the property by the LUC in 1995. At that time, the LUC imposed conditions on former landowner Kaonoulu Ranch in granting a zoning change from agricultural to urban.
Project opponents and the state Office of Planning say the project has shifted from the light industrial subdivision approved in 1995 to the two malls.
The developer disagrees, contending that plans for the property have always included the possibility of retail.
Tom Blackburn-Rodriguez, a spokesman for Eclipse Development, said after the hearing that they are "pleased with the decision that was rendered" and will continue on with the processes that lie ahead, including the LUC hearing.
He added that the developers still will continue to have contact with the community and the county regarding the project and that the grading work is ongoing at the site.
If built, the projects will add about 90 shops and restaurants to South Maui.
Outside the hearing, Blackburn-Rodriguez said that a report in the Pacific Business News that the restaurant Olive Garden and store Trader Joe's could be in the development is "not correct."
"At this time, Eclipse Development (is) in conversations with a number of potential vendors, and we're not at liberty to disclose those until we reach an agreement with them," he said.
In her motion to dismiss the appeal, Deputy Corporation Counsel Jane Lovell cited several issues to make her case, including that the grading ordinance does not contain an appeal procedure.
She added that the Public Works director only can deny a grading permit application if the grading creates a hazardous condition. That was not the case with this project.
Lovell said that the appeal to the panel was from parties who are "eager to stop the project," but "this is not the way for them to achieve that goal" by "attacking a grading permit."
She told the board that that decision, whether this project fits within its land use classification, will be decided by the LUC.
"This board really does not have the jurisdiction or the power to tell the LUC what to do," she told board members.
In his argument before the board, Pierce said that it was important to consider the grading permits.
"What is more dramatic moving forward than breaking ground?" he asked the board.
Pierce said that under county law, the Public Works director can suspend or revoke a grading permit if the director finds incorrect information on the permit.
Pierce said that this might have been the case, referring to Eclipse's plans for the shopping malls versus the light industrial subdivision proposed in 1995 when the land use change was granted.
He also added that the board is charged with hearing this type of appeal because it was a "discretionary" decision by the Public Works director.
On behalf of the three parties he represents, Pierce also has filed another appeal with the Board of Variances & Appeals, saying the planning director has not enforced the LUC order, which required the landowners to develop the project consistent with the original petitioner's representations made in 1995.
No hearing has been set for that matter.
* Melissa Tanji can be reached at firstname.lastname@example.org.