The Maui Planning Commission must decide on the appeal, which began Tuesday during the commission’s regular meeting. After about five hours of testimony and questioning, the contested case hearing was recessed to a special meeting at 9 a.m. Jan. 27.

Hololani, which has long faced shoreline erosion, had received county and state permits to conduct temporary sandbag repairs and other shoreline maintenance fronting the sheet pile wall at the condos at 4401 Lower Honoapiilani Road in Lahaina.

After West Maui fisherman Nick Cleveland posted Facebook pictures last April of a Goodfellow Bros. 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 condominium association and Goodfellow Bros., a Kihei-based general contractor.

During testimony Tuesday, 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 to prevent runoff of dirt, silt or clay from entering the ocean.

Also, heavy machinery should not be used that close to the ocean in “very sensitive shoreline projects,” he added.

“They should’ve never stored the bucket within the aquatic environment nor should they have driven the excavator down through the drainage area there, down onto the water in the beach,” Buika said. “It could’ve been done . . . following the stop work order via the land spit area up above, behind the temporary sheet pile wall.”

The Planning Department’s notice of 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. It was first issued May 1, then amended June 24 and July 9.

Pointing to photos, site inspection and witness statements as evidence, 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.

According to county documents, Hololani and Goodfellow lawyers contend that the county fine was determined in an arbitrary manner. They also said the state — not the county — has jurisdiction over the area makai of the shoreline.

Goodfellow lawyers in appeal documents said the complexity of various shoreline laws and rules lead to confusion over jurisdiction among federal government, the State of Hawaii and the County of Maui.

Jeffrey Ueoka, Goodfellow attorney, said lawyers were unable to “directly identify any statute or rule which clearly prohibits the use of equipment for shoreline erosion control projects.”

“Planning has not alleged nor has it produced any evidence of any damage to the environment, including any damage to the shoreline and marine resources,” he added.

The state Department of Health issued a notice of violation and order on May 28 to Hololani and Goodfellow Bros., according to Hololani lawyers. 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.

Hololani lawyers in appeal documents said the county’s penalty assessment is “arbitrary” and “capricious,” noting that it’s 15 times higher than DOH’s penalty based on the same evidence.

They added that the notice of violation is “based on clearly erroneous finding of material fact or erroneous application of the law; and/or arbitrary and capricious in its application, and/or a clearly unwarranted abuse of discretion.”

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