Commission cuts fine for shoreline work by $50,000

Method of work, jurisdiction at issue in contested case

The Maui Planning Commission voted to slice a county fine by more than $50,000 against a locally owned contractor and a condo for shoreline restoration work that sparked concern after an excavator was pictured operating in the ocean.

Hololani Resort Condominiums and Goodfellow Bros. appealed the $75,000 county violation alleging their sandbag work at the Kahana property last April temporarily put the environment at risk. They said the county fine amount was "capricious and arbitrary," adding that the state, not the county, has jurisdiction makai of the shoreline.

During the contested case hearing late Wednesday, the commission voted 5-1 with two excused to uphold the violation but reduce the fine to $20,000.

"Goodfellow Brothers is not a company that does things wrong," commissioner P. Denise La Costa said before the vote. "Seventy-five (thousand) was absolutely in my thought capricious and arbitrary. I think a different way of assessing fines might come out of this as well."

During lengthy testimony Wednesday, Goodfellow witnesses said the incident was a "misunderstanding" over whether machinery was allowed on the shoreline, reiterating that the company has been a longtime partner of the county.

"We try and make sure we do the right thing. We are not trying to hurt anybody or hurt anything," said Bo McKuin, Goodfellow Maui regional manager. "My whole crew is local guys, born and raised, fishermen. They were the ones operating; I feel bad they're in the public's eye for being in that machine."

Still, McKuin said the company takes responsibility for its actions and strives to do better.

"In regards to our Hololani Resort Temporary Shoreline Protection project, I just wanted to get an opportunity to thank the members of the community who brought their concerns to light," he said Thursday. "We take responsibility for what happened and we have learned from it, and GBI will fully comply with the ruling issued by the Planning Commission."

Hololani, which has long faced shoreline erosion, had received county and state permits for Goodfellow Bros. to conduct temporary sandbag repairs and other shoreline maintenance fronting the Lahaina condominiums.

After West Maui fisherman Nick Cleveland posted Facebook pictures in April of a Goodfellow excavator partially submerged in the ocean fronting Hololani, concerned residents, including Maui shoreline activist Kai Nishiki, contacted county and state agencies about the project.

The County of Maui Planning Department issued a stop work order and a subsequent notice of violation against the Hololani condo association and Goodfellow, a Kihei-based general contracting company.

The violation cited the use of heavy machinery in the shoreline setback area and in the ocean, along with a failure to implement best management practices for the various permits issued.

During testimony earlier this month, James Buika, a county Planning Department coastal resource planner who has worked with Hololani for a decade, said the project didn't have measures in place -- such as turbidity curtain -- to prevent runoff of dirt, silt or clay from entering the ocean.

Pointing to photos, site inspection and witness statements, the violation carried a civil fine of $75,000.

It also required that a work plan be submitted for permitted activity to be performed from the "landward" side of the sandbags, with no equipment on the beach. The project was later completed from land.

When the county in April asked the state about whether state permits for the project were being followed, a state official responded that Goodfellow did have a "right of entry" from the land division.

"If it's just the excavator issue, they just need to fix it and get out of there while observing (best management practices)," said Sam Lemmo, administrator of the state Department of Land and Natural Resources' Office of Conservation and Coastal Lands.

Goodfellow and Hololani echoed during the hearing that there are no rules saying machinery cannot be placed in the water. Engineering plans, which had been approved by the state and the county, said "all project-related materials and equipment placed in the water should be free of pollutants."

McKuin said Goodfellow cleaned and prepped the machinery before entering the shoreline to ensure it was free of pollutants.

Commissioners on Wednesday pointed to the state's fine against the contractor and the condominium association, which was around $20,000, as a way of determining the county fine.

Based on the social media photos, the state Department of Health issued a notice of violation and order on May 28 to Hololani and Goodfellow. It was not contested and they paid $21,000 in penalties, calculated as $5,000 per day for each of the four days worked, plus a $1,000 filing fee for a water quality permit. DOH gave authorization to proceed with the project June 24.

"The violations with the tractor in the water wasn't (the county's) kuleana, so to go over and beyond (the state's) fine, I didn't think that was right," commissioner Jerry Edlao said before the Wednesday vote. "I think we should stay at that level or below. I'm comfortable at that level, not to exceed what the state has already fined them."

Hololani and Goodfellow will now draft a decision and order that goes to the Planning Department. Then the document is scheduled for commission adoption. After a decision and order is issued, any party may appeal.

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