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County files complaint over Haiku zip line

Company accused of breach of the settlement pact

Citing late tours, “screaming at a high volume” and a lack of required information, the County of Maui has filed a complaint against a controversial zip line in Haiku, alleging owner D&S Ventures has breached a settlement agreement with the county.

The complaint, filed Oct. 9 in 2nd Circuit Court, is asking the court to halt zip line operations until all violations are corrected. It also seeks court costs and attorneys’ fees.

“D&S has diligently complied with the terms of the settlement agreement in its operations of historic Camp Maui,” D&S Ventures owner Derek Hoyte said in response to the complaint Tuesday. “D&S has also consistently responded in good faith to all correspondence from the County of Maui.”

D&S Ventures’ seven-zip line tour, Northshore Zipline Co., is located on 17.5 acres at 2065 Kauhikoa Road, Haiku, that were once part of Camp Maui, the training grounds for the 4th Marine Division during World War II.

The zip line has come under fire from Haiku neighbors — who say the company set up lines without consulting the community — and from the county, which sent warning and violation notices to the company for operating without a permit in 2013 and 2014.

Late last year, though, the county Department of Planning reached a settlement agreement with D&S Ventures and said it could continue operating if it preserves the land’s military history. Haiku neighbors concerned about noise and other issues appealed the decision via attorney Anthony Ranken in January. A hearing in the contested case is scheduled to begin Oct. 29, though D&S Ventures is asking to delay or stay it, Ranken said.

Now, the county is saying D&S Ventures, despite having “several discussions” about the issues, continues to violate terms of the agreement, which was reached in December and requires zip line operations improvements within an “agreed upon time schedule.”

The complaint pointed to a Notice of Warning letter and a Notice of Violation document, both dated June 28 and sent from the county to D&S Ventures. The violations — of historic preservation / interpretation and sound attenuation — include an initial fine of $1,000 and a daily fine of $1,000 for each infraction.

The violation notice says per the settlement the zip line’s challenge course platforms must have “interpretive displays with historic information,” but video submission shows “interpretive displays do not include any historic information.”

Also, “verbal instruction and written signs to encourage guests to keep voices down” were required. However, “per video submission, guides did not instruct guests to keep their voices down at any time and it has been documented on several occasions . . . that guests were screaming at a high volume.”

In the warning letter, the county alleges tour guides do not provide enough historic information, an updated preservation plan wasn’t submitted to the State Historic Preservation Division and guided tours run longer than the “agreed upon time of 6 p.m.”

The complaint asks the court to declare D&S Ventures in violation of the settlement agreement and to halt zip line operations until “all violations have been corrected to the satisfaction of the county.”

Also, the county is seeking to be awarded all of its court costs, reasonable attorneys’ fees and any costs incurred in eliminating the violations.

The county “will suffer irreparable harm and injury by virtue of D&S Ventures’ continuing violation and is without an adequate remedy at law if D&S Ventures is not compelled to correct the violations,” the complaint says.

Maui County spokesman Brian Perry declined Tuesday to expand upon the county’s complaint.

“Because this is an active litigation, we are not able to comment beyond what’s been filed,” he said.

Ranken, who represents the Haiku neighbors, said the county’s complaint is a step in the right direction, but they wonder whether the county “is prepared to follow through.”

“My clients, neighbors of the zip line who are constantly subjected to the screams of the zip line riders, are ready to testify in court, and we will assist the county in any way we can if the county is ready to get serious about enforcement,” he said.

In August 2013, the Planning Department sent a notice of warning to the property owners and told them they needed a special use permit to operate a zip line in the county agricultural district. The zip line continued to operate and in December 2014, the department sent a notice of violation and an order to cease operations or be fined $1,000.

D&S Ventures argued that it did not need a special use permit because the property’s main use was to preserve, restore and rehabilitate the Camp Maui site. Guides go over site history during tours and old photos of the camp are posted around the property, zip line officials said.

The company pursued and was denied a special use permit in 2016 by the Maui Planning Commission, which said that the historical preservation uses seemed secondary to the zip line operations.

D&S Ventures won an appeal in 2nd Circuit Court in 2017, with the judge ruling the commission didn’t follow contested case hearing procedures. The case was sent back to the commission, which held a hearing in October that was recessed until December.

However, in December, Planning Department Director Michele McLean said the department and D&S Ventures had resolved a dispute and that “existing uses of the property, including the challenge courses with zip lines, are permitted in this case.”

McLean added that World War II Marine bases, including Camp Maui, had training or challenge courses “that were known to include zip lines.”

* Kehaulani Cerizo can be reached at kcerizo@mauinews.com.