The agreement requires the association to pay a $15,000 fine up front and a potential $35,000 more if it fails to obtain permits or if it violates special management area rules within the next year.

“As the association manager for KRA, I take complete responsibility for my failure to obtain an SMA review and permits prior to the work commencing,” Paul Brown told the commission on Tuesday.

“There was no intent to circumvent the SMA process or permitting process, and I erred in considering this a repair project, rather than a development project. Lesson learned.”

A contractor for the association was removing the wall on June 7, 2017, when some West Maui residents caught wind of the project and questioned whether the association had a permit. Council Member Tamara Paltin, who was working as a lifeguard in the area at the time, said she was worried about public safety.

Lahaina resident Kai Nishiki, who helped bring attention to the project in June 2017, asks the commission to levy the full $50,000 fine.

“I’ve seen walls built in the past, and if there’s not proper drainage when there’s a lot of rain . . . sometimes the wall gets pushed out into the road,” Paltin said. “And so my concern was that without the permitting, was there an engineer’s plan?”

Lahaina resident Kai Nishiki also was concerned about the wall’s historic value and began taking photos when she saw what was happening.

Brown said when he heard the complaints from the community, he told the contractor to stop work immediately and then called the county Planning Department. By that time, about 30 feet of wall had been removed. Planning staff later came to inspect the site and issued a notice of violation to the association on June 30, 2017.

Brown said no work has been done on the site since the initial removal of the rocks.

The 100-foot-long wall is located within the special management area on Lower Honoapiilani Road near D.T. Fleming Beach. Because the association owns and maintains the road from the beach to Honoapiilani Highway, it fell to the association to pay for repairs when eucalyptus tree roots and erosion began to take a toll on the wall.

Commission Chairman Keaka Robinson holds up photos showing damage to the wall on Lower Honoapiilani Road.

“This area is very dangerous due to rocks falling into the roadway and onto the pedestrian areas,” Brown said.

The association is made up of property owners in Kapalua, including hotels, homeowners, condominium owners and Maui Land & Pineapple Co. Members all chip in to maintain the Kapalua resort common areas.

Brown said the board had two options — either repair small areas of the wall or take the entire wall down “knowing that it was probably going to get pushed down by the tree roots in the future.” The board decided to repair the entire wall. The plan was to remove the existing wall and dangerous trees, install a concrete wall to protect against erosion and rebuild over the wall using the original rocks.

After the project came to a halt, Brown publicly apologized on social media, and the association worked with an engineer to draw up plans and submit an application for an SMA permit. The association also researched the records of the prior landowners — Maui Land & Pineapple Co. — but didn’t find any documents that showed when the wall was first built. Among former employees who are familiar with the area, “the consensus is that it is not of ancient origin or historic significance,” Brown said.

“It is likely the wall was built when the lower road was widened and paved as part of the initial resort development,” he said. “Rock walls of a similar design and built from the same Kapalua blue rock, which comes from a quarry within Kapalua, are found within the resort and likely built around the same time.”

Planning Director Michele McLean said after the meeting that the State Historic Preservation Division is reviewing the application and has asked for an archaeological inventory survey before the county can issue a permit.

“They do not have enough info about the rock wall to make a determination,” McLean said. “We don’t have reason to doubt Mr. Brown’s representations, but the status of the wall will be determined through the AIS (archaeological inventory survey) process.”

Because that type of survey takes time, McLean said she wasn’t sure when the association might get its permit. She said the settlement agreement will go to Corporation Counsel and the mayor for their signatures, which could happen by the end of this week or next.

On Tuesday, the commission voted 6-0 to approve the agreement and added the condition that the association develop an educational program, at the request of Nishiki and Paltin. Brown said the association could bring together property managers and engineers on a regular basis to “try to ensure that this doesn’t happen again.”

To Nishiki, the problem of property owners doing unpermitted work no longer seems like a matter of ignorance. Resort executives are highly paid and have plenty of attorneys that could tell them in one phone call whether the work they’re doing is legal, she said.

“I feel like it’s not an ignorance issue,” Nishiki said. “It’s an arrogance issue where they just feel like, ‘This is our property. We can do whatever we want.’ ”

She also thought the association should have to pay the full $50,000 fine to send a message about the importance of the shoreline.

“The decision to reduce the fine to $15,000 sets a very dangerous precedent and message that our laws don’t have to be followed as long as you (are) wealthy and can hire some lawyers to negotiate a settlement,” she said after the meeting.

Brown said that if the association had destroyed a natural feature, “then yes, the maximum fine” would be appropriate.

“But I think if you look at this, this is work that would’ve been approved if we had gone through the process,” he said.

On Tuesday the commission also:

• Adopted a written decision and order to reject a hearings officer’s report on a county special use permit for the Paia Inn, which is seeking to operate as a nine-bedroom transient vacation rental. The commission rejected the Paia Inn’s application on Dec. 11.

• Approved a special management area use permit to R.D. Olson Investments II for the Keolani Triangle Retail Center, a four-unit commercial retail space on 0.8 acres at 520 Keolani Place in Kahului.

• Voted to waive its review of a step III planned development request by R.D. Olson Investments II for Hotel Ike, a 110-unit hotel located at 55 Gateway Place in Wailea. The step III review is to ensure the building plans match the original proposal.

* Colleen Uechi can be reached at cuechi@mauinews.com.