Attorneys for Maui County have asked the state Land Use Commission to consider excluding public testimony at next week's proceedings to determine if the landowner planning a pair of large shopping centers in Kihei has violated land-use conditions imposed on the property.
The county - which is a party in the case - argues in its request that the Land Use Commission already heard extensive public testimony at an August hearing in Lahaina. It says allowing more repetitive testimony will delay the process.
Opponents of the controversial project argue that the public has never had an opportunity to weigh in on the development since plans were changed from a light industrial park envisioned in the 1990s.
The Land Use Commission, beginning Thursday, will revisit approvals for the 88-acre lot along Piilani Highway that's subject to conditions the body imposed in 1995 when granting a land reclassification from agricultural to urban.
At the time of the change, former landowner Kaonoulu Ranch had proposed a light industrial subdivision for the site. The ranch later obtained a light industrial zoning designation from the county and the area was classified as light industrial in the county's Kihei-Makena community plan that took effect in 1998.
Since then, Eclipse Development Group has proposed building the Maui Outlets and Piilani Promenade shopping centers on part of the site. On another piece, Honua'ula Partners wants to build 250 affordable housing units tied to its master-planned luxury golf community of the same name above Wailea.
Neither developers of the planned retail centers nor the affordable housing project have formally petitioned the Land Use Commission to proceed with their projects.
Attorneys for Eclipse have said commercial uses were always part of the plans for the site, and that the previously proposed industrial park was conceptual at the time.
A challenge from community groups South Maui Citizens for Responsible Growth and Maui Tomorrow Foundation and Kihei resident Daniel Kanahele prompted the Land Use Commission to revisit the site's approvals.
The August hearing in Lahaina focused on whether or not the commission should hold an order to show cause, which was granted and is scheduled to begin 9:30 a.m. Thursday at the Courtyard by Marriott - Maui Airport hotel in Kahului.
The landowners will have to "show cause" as to why the property should not revert to its former land use classification or be changed to a more appropriate classification.
The county's motion to exclude public testimony is scheduled to be considered first Thursday morning.
"The Land Use Commission heard extensive public testimony at the hearing on Aug. 24, in which a broad spectrum of views were expressed by public witnesses," county attorneys wrote in support of the motion. "Over the course of several hours, public witnesses gave testimony in favor of, and against, the proposed shopping mall and affordable housing project at issue in this proceeding. . . . Allowing the same public witnesses to testify again, or allowing testimony from new witnesses reiterating points made by previous witnesses, would be unduly repetitious."
Fourteen people signed up to testify at that August meeting, according to Land Use Commission Chief Clerk Riley Hakoda.
The county's motion also argues that an order to show cause proceeding is judicial in nature and, therefore, exempt from the provisions of the state's Sunshine Law, or open meetings law.
"The county does not mean to suggest that the public should be excluded from attending the hearings, or that the commission's deliberations should be held behind closed doors," the motion says. "Rather, the county asks this commission to recognize the legal difference between a public meeting and a contested case hearing, and to limit testimony to those witnesses disclosed by the parties in order to allow for the most efficient use of the commission's time and the rendering of a prompt decision."
Hakoda said he couldn't recall an example of a similar request being granted.
"I cannot think of a time when the chair has shut out testifiers," he said. "In general, managing testimony all depends on the size of the crowd. If there's a lot of people signed up, there is a time limit, and they're informed to keep to the matter at hand. But it's not done with an iron fist."
Mark Hyde, president of South Maui Citizens for Responsible Growth, said he was stunned by the county's request.
"I find it quite stunning that the county - which is supposed to be of the people, by the people and for the people - has filed a motion to keep the people from having a voice in this matter," Hyde said. "It's remarkable that our county - even in the context of tussles that go on before any litigation - would seek to suppress the voice of the public."
South Maui Citizens for Responsible Growth, Maui Tomorrow and Kanahele were collectively granted intervener status in the case, which allows the parties to participate in the proceedings before the commission.
"When you look at the history of this project, the public hasn't had a voice. When it had come before governmental agencies for oral comment, it was a different project," Hyde said, referring to the previously proposed light industrial subdivision.
"To deny people the right to come forward in this matter - the outcome of which will determine the future of South Maui - it's not right," he said.
* Nanea Kalani can be reached at firstname.lastname@example.org.