WAILUKU - The Maui Planning Commission unanimously rejected appeals Tuesday that were aimed at challenging permits for the Rock & Brews restaurant, with project partners that include KISS hard rockers Gene Simmons and Paul Stanley.
Appellant attorney Isaac Hall argued that his clients' rights for a public review of the project under the Coastal Zone Management law were denied because the project's full cost was undervalued at less than $500,000.
If the project had cost more than $500,000, then it would be required to undergo a full public review before the Maui Planning Commission. Instead, valued at less than the threshold amount, the project received a minor special management area permit administratively from Planning Director Will Spence.
Maui attorney Isaac Hall holds up a cartoon passed around to Maui planning commissioners Tuesday by Rock & Brews architect Jim Niess. Hall, who represents those opposing permits given to the Paia project, called the cartoon offensive to his clients during a hearing on whether to proceed with an appeal of those permits.
The Maui News / MATTHEW THAYER photo
Maui County Planning Director Will Spence listens to Rock & Brews attorney Peter Horowitz on Tuesday.
The Maui News / MATTHEW THAYER photo
Rock & Brews attorney Peter Horowitz said Hall was alleging that the restaurant developers were "hiding the ball" by not being open to a public review process.
But that's "very far from the truth," he said.
The project went through the county's permit process, complied with county regulations and was reviewed in public meetings before the Liquor Control Commission and the Urban Design Review Board, as well at a public meeting called by developers to answer questions, Horowitz said. Notices of the Liquor Control meeting were sent to neighbors within 500 feet.
The developers addressed public concerns, agreeing, for example, to stop playing music at 9 p.m., he said.
The Urban Design Review Board required changes to project plans that increased costs, he said.
Horowitz said the restaurant developers are confident about their construction valuation because it was based on the cost of building the restaurant. The appellants' arguments about valuation amounted to speculation, he said.
Deputy Corporation Counsel Michael Hopper represented the county Department of Planning and joined in the Rock & Brews' motions to dismiss the appeals or to grant the developer summary judgment.
The minor SMA permit was created for projects such as Rock & Brews, he said, noting that it's not a massive hotel renovation or the Hawaii Superferry.
"It's a restaurant and bar replacing a restaurant and bar," he said.
Allowing the appellants' contested case to proceed would allow a "back door" for a SMA major review process that's not allowed by law, Hopper said, and it would render SMA minor permits meaningless.
A contested case process would be costly and time consuming, he said.
Hopper said commission members could only overturn Spence's administrative granting of an SMA minor permit if they found abuse of discretion, which "it was not."
The commission cannot substitute its own judgment for the planning director's, he said.
Hall said the state Legislature granted the public the right to review special management area permit matters in the Coastal Zone Management law, and the developers could not use the Liquor Commission, the Urban Design Review Board or a public meeting to subvert the public participation requirement of the law governing SMA permits.
"That's not a substitute for the SMA major permit process," he said.
The project valuation should have been derived from the development as a whole, including the demolition of the structure that was at the site, he said.
The project's valuation was for the building's shell, he said. It didn't include demolition, site work, finishing work, drywall and painting.
"It's not a complete assessment of all the costs involved," Hall said.
The appellants' review of 58 pages of project documents led to an estimate of $866,000 in costs, he said.
The planning director also had no basis for determining that the project would have no significant environmental impacts, other than the developers' summary assertions that there were none, Hall said.
"There's no evidence to support any of those findings," he said.
There also was no analysis of traffic impacts of Rock & Brews or of its predecessor, Jacques Bistro, he said, arguing that the restaurant would have impacts on traffic and parking in Paia.
The Jacques restaurant was an open, outdoor courtyard with no roof and no walls, Hall said.
Rock & Brews is replacing it with a building with four walls and two stories, he said.
Hall showed photos to demonstrate that the construction went "right down to the dirt," and the developers "built a completely new building," he said.
Hall said the project developers have refused to disclose the costs of construction, and the appellants "intend to find out what those actual costs are."
After hearing more than an hour of arguments from attorneys, commission member Max Tsai moved to dismiss what by then had been consolidated into a single appeal. His motion was seconded by fellow commissioner Jack Freitas.
Commissioners met in a closed executive session for 10 to 20 minutes to discuss legal matters with Deputy Corporation Counsel James Giroux. After emerging from that session, three commissioners put comments on the record.
Commission Vice Chairman Warren Shibuya said the project's valuation came in under $500,000, which was short of triggering a SMA major permit. There only was one bidder to construct the building, he said, and other estimates of the project's valuation would be speculation.
Shibuya said Rock & Brews also had hearings in public forums before the Liquor Commission and Urban Design Review Board, both giving residents a chance to participate.
Tsai said he didn't find that the planning director's decision was clearly erroneous, and Freitas said he believed that the restaurant project could be built for less than $500,000.
The project's SMA minor permits were challenged by the Maui Tomorrow Foundation and a number of Paia residents.
In light of the commission's denial of their appeal, Maui Tomorrow Executive Director Irene Bowie said late Tuesday that "we're considering all of our options right now."
Those include a possible appeal to 2nd Circuit Court.
"We're stunned by the unanimous decision of the planning commission," she said.
There was no "robust discussion" of the issues raised by the appellants, Bowie said, noting there was a quick motion to dismiss their appeal.
"They missed a lot of points of our appeals," she said. "We're disappointed. We don't think justice was served today."
Meanwhile, Rock & Brews has scheduled a two-day opening celebration Jan. 25 and 26, with Simmons and Stanley planning to attend in person and with a "special KISS Rock & Roll VIP package" available at the Fairmont Kea Lani in Wailea.
* Brian Perry can be reached at firstname.lastname@example.org.