Republican Maui Mayor Linda Lingle has made no secret of her intention to run for governor. However, to most Hawai`i residents outside Maui County, Lingle’s record on many issues remains a mystery.
Environment Hawai`i in this issue reviews Lingle’s record on several significant environmental and development issues that Maui County has faced during her tenure as mayor.
Background
According to information provided by Lingle’s office, Lingle was born to the Cutter family in St. Louis in 1953. Most of her childhood was spent in Southern California. In 1975, she graduated from California State University at Northridge in 1975, with a major in journalism.
She moved to Hawai`i in 1976, and for a short while was editor of the newsletter of the Teamsters Union. She moved to Moloka`i in 1976 and founded the Moloka`i Free Press, a fortnightly publication.
Her first run for office came in 1980, when she was elected to the Maui County Council. She won re-election four times, serving on the council through 1990, when she successfully ran for mayor. She was relected to the office in 1994.
According to press reports, Lingle has been married and divorced twice. She has chosen to retain the name of her first husband, whom she married while in college. When elected as mayor, she was married to Maui attorney William Crockett, whom she has since divorced.
Lingle is known as an avid swimmer. Her office says she swims two miles a day before starting work. Her enthusiasm for swimming, some say, lies behind the recent building boom in public pools on Maui.
Appointments
Many of the most heated environmental controversies on Maui have come before the Planning Commission for decision-making. The commission is advised by staff from the county Planning Department; technically it is autonomous and not a part of the county administration. The mayor does appoint commissioners, however, with the approval of the County Council.
Lingle’s appointments to the commission have been largely pro-development. Among the most notable is the 1993 appointment of Bill Nishibayashi, senior representative of the Maui division of the Hawai`i Carpenters Union. Nishibayashi acknowledged at the time of his appointment that the union often testified in support of development projects. He described his critics as “anti-growth,” while describing himself as “the opposite.”
In April 1991, Lingle nominated Kenneth Barr, a Kihei taxi driver, to the Planning Commission. For most of his five-year tenure on the commission, Barr was a one-man minority advocating moderate development.
Lingle attempted to appoint two other moderate voices to the commission — those of Louise Rockett of Lahaina in 1994 and Sally Raisbeck of Wailuku in 1995. The politically independent Rockett, who described herself as favoring “responsible development,” did not win confirmation by the County Council, whose majority suddenly decided to invoke a County Charter provision calling for partisan balance on the commission, a provision not known to have been invoked by the council in any confirmation discussion before or since. (Indeed, the current Planning Commission roster lists two Democrats and seven non-partisan members, with no member admitting to a Republican Party affiliation.)
Raisbeck, whose leanings may be described as environmental, also failed to win council confirmation. The black mark against her came from the Maui Hotel Association. Raisbeck, it seems, is opposed to illegal gambling. When the Maui Hotel Association conducted a $100-a-ticket raffle as part of its charity fund-raising operation in 1993, Raisbeck asked for free tickets, which the association had to provide to comply with the law. Raisbeck won two prizes, further alienating the affections of the association. Although Raisbeck then sent the charities a substantial donation, when she was nominated for Planning Commission, the Maui Hotel Association launched a campaign against her. The association never challenged Raisbeck’s right to the free tickets, but it did paint her as greedy and mean-spirited and altogether unworthy of appointment to the position. Raisbeck withdrew before a council vote.
Three other current Lingle appointments to the Planning Commission generally win good marks from environmentalists: Barbara Long, Moana Andersen, and Joe Bertram. Their votes generally form the minority bloc, with the six remaining members of the commission — all Lingle appointees — constituting generally a zealous pro-development majority.
The Moloka`i MEO
In late 1992, the Lingle administration claimed to have faced a dilemma, with environmental compliance pitted against the risk of losing state funds.
Specifically, the administration claimed, if it did not begin work on a new Moloka`i facility for the Maui Economic Opportunity Council, the county stood to lose $675,000 in state funds. On the other hand, if construction was delayed until after the county had complied with the state’s environmental disclosure law and had obtained the necessary Special Management Area permit, the county claimed, the funds would lapse.
The choice was apparently an easy one. The county Department of Public Works issued a building permit without insisting on the SMA permit, circumventing the Moloka`i Planning Commission’s authority. After the building was completed, the administration was sued by the Moloka`i Chamber of Commerce, which eventually prevailed. Only then was an after-the-fact environmental assessment prepared and an after-the-fact SMA permit issued.
Central Park Roadway
The development of plans for a new, 100-acre park between Wailuku and Kahului also landed the county in court — federal court, this time. In this case, the Lingle administration once again placed expediency and the desire to secure outside funds for a county project ahead of strict compliance with environmental disclosure.
In spring of 1993, the county began planning for the Maui Central Park. Preliminary plans called for building a straight four-lane road through the park, cutting through lithified dunes and rare plant habitat. The plans were submitted to the federal government for approval (as a highway project), and the county was assured of receiving $7 million for the project.
Meanwhile, Lingle appointed a Central Park advisory committee, which disapproved of the “straight-shot” road configuration. A more meandering roadway was proposed, and this configuration was eventually approved by the committee. Members of the Lingle administration assured committee members that the “straight-shot” highway was history.
However, when the draft environmental assessment for the park was issued in 1995, the “straight-shot” road was back in full, four-lane force. An environmental group, Maui Malama Pono, Inc., and two individuals, Mary Evanson and Dana Naone Hall, sued Maui County and the federal government, noting that the EA failed to discuss alternatives and was otherwise deficient.
Lingle said that the whole thing was just a misunderstanding. According to The Maui News’ account of November 29, 1995, Lingle said she had decided to go with the straight-shot alignment to get the federal funds committed; after getting a lock on the funds, then the county would request a change of alignment, she said. “For us to assume the citizens would understand the process is expecting too much,” Lingle told The Maui News.
Water Woes
The island of Maui has seen land development outpace water development. For years, the state Commission on Water Resource Management has warned the county Board of Water Supply of the need to reduce drafts from the `Iao aquifer, which is the major source of potable water for Wailuku, Kahului, Ma`alaea, Kihei, and Makena. On the western side of the island, the county is in the position of having to treat pesticide-contaminated water in order to meet demands imposed by new developments.
Despite these problems, Lingle generally refuses to acknowledge that the island is facing a water shortage. Shortages, to the extent they exist, are described merely as failures of the Board of Water Supply to be aggressive in development of new water sources. In December 1995, for example, Lingle scolded the Board of Water Supply as it considered how to avoid the Water Commission’s threatened take-over of the `Iao aquifer. “Maui has plenty of water. There is no water shortage,” she said. Talk about any shortages or a possible moratorium on meters has discouraged “those who are investing in Maui and those contemplating investing on Maui.”
Only in October 1997 did Lingle finally call for Mauians to exercise a little restraint in their consumption of water. “If each of us make a small effort,” Lingle wrote in The Maui News, “the results will be great. And I am talking about really small efforts. Like turning off the water while you brush your teeth… Like turning the water off while soaping your car. Like cutting back on the amount of water you use to irrigate your lawn.”
Lingle has said repeatedly that land development should dictate water development, and not vice versa. One of her first actions as mayor was to lift a moratorium on water meters for new developments in Central Maui. Three years later, when the Board of Water Supply attempted once again to put in place a rule that would give the Department of Water Supply some limited power to restrict new hookups in Central Maui, Lingle again vetoed the idea, which, she said at the time, “would appear to place the Department of Water Supply in the central role of land use planner for the County of Maui.”
In the fall of 1995, state Senator Randy Iwase’s Committee on Planning, Land and Water Use Management held hearings on the proposal of the state Review Commission on the Water Code to amend the state water laws by extending in some areas the Water Commission’s powers. Lingle added her voice to the cries of protest from developers and agribusiness interests. The proposed revisions, she said, constituted an attack on county home rule and amounted to a costly increase in bureaucracy at a time when government was supposed to be shrinking. “This sounds like some kind of sick joke,” Lingle said at the Maui hearing of Iwase’s committee.
Lingle has also made no secret of her desire to do away with the state Water Commission altogether. In 1990, while she was still a county council member, Lingle denounced the state Water Code. If the county can’t exercise control over water use, “we might as well throw in the towel as a county government,” Lingle was reported to have said at the time (April 1990).
In 1996, the Board of Water Supply pleaded with the council and the administration for a rate increase to allow for systemwide waterline repairs (an important part of water conservation efforts). Lingle again sided with development and hotel interests. The increase was not justified, she said, and a proposal for automatic rate hikes over three years was “ridiculous.”
East Maui Wells
One of the county’s proposals for solving water shortages involves drilling a series of wells in East Maui. The water would not go to homes in East Maui, however, but would rather feed growth in the Central Maui area. This has upset East Maui residents, whose water supplies are generally inadequate.
In 1993, the Coalition to Protect East Maui Water Resources sued the county over the adequacy of the final environmental impact statement that the Department of Water Supply had prepared. In 1994, Second Circuit Court Judge Boyd Mossman found in favor of the plaintiffs, ordering the county to prepare a supplemental EIS.
Nonetheless, when the supplemental EIS preparation notice was issued in March 1997, it was to cover just one of the proposed wells — a project described by the county as Phase I of the East Maui Water Development Plan. The county went back to court, asking for a determination from Mossman that the separation of the project into discrete phases now does not constitute illegal segmentation but is rather “tiering,” an approach allowed in federal law but, as plaintiff attorney Isaac Hall has noted, not recognized at the state level.
After a hearing in November, Mossman asked the parties to try to work out some agreement. That process is continuing, according to Gary Zakian, with the Corporation Counsel’s office.
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North Beach
One of the more unusual actions of the Lingle administration has been its negotiation of a development agreement with Amfac and Tobishima Pacific, which are seeking to build condominiums in a 96-acre area north of Lahaina known as North Beach (also Keka`a or Airport Beach). The administration entered into the agreement without the prior approval of the County Council or the Planning Commission, although the council had been advised that negotiations were occurring last summer.
The agreement gives the county an option to purchase about 34 acres of Amfac’s North Beach property for $15 million. This, the agreement states, reflects a “discounted purchase price,” which the owners are willing to accept because, in return for this, the county has committed to support the developers’ requests for approval of the Special Management Area permit needed for the Ka`anapali Ocean Resort (formerly called the Ka`anapali Vacation Club). The land for the county park is opposite the Lahaina sewage treatment plant and consists largely of wetlands. Some critics of the agreement suggest it would have been difficult for Amfac to develop and market the area that is now to be sold to the county.
Ka`anapali Ocean Resort is the first phase in an overall scheme that initially called for building 3,200 units in the North Beach area. That scheme was given preliminary approval and an SMA permit in 1988. Condition 7 of that 1988 SMA had required Amfac to build a bypass highway — or other appropriate traffic mitigation — before the first certificate of occupancy could be issued for any part of the development.
The developers had planned originally to build 1,250 units on the parcel now instead to be sold to the county. With the sale to the county, those 1,250 units will not be built, so that instead of a total of 3,200 units on the North Beach lands, a total build-out of no more than 1,950 units will occur, the agreement states.
Terms of the sale include the county’s agreeing not to require Amfac to build the bypass highway. Instead, Amfac will widen Honoapi`ilani Highway to four lanes. Starting in 1995, Amfac had indicated it wanted to have the Planning Commission interpret Condition 7 in a manner that would allow the widened road to substitute for the new bypass. Despite scheduled Planning Commission meetings on that issue, Amfac pulled the requests and no public hearing on the subject was held until this fall, after the county announced it had reached the agreement with Amfac. (Over two weeks in September and October, the commission conducted a contested-case hearing on the interpretation of Condition 7; the preliminary findings of hearing officer Joel August were issued only in January of this year.)
Elsewhere in the agreement, the county promises to “cooperate and support [sic] the revision of the drainage plan, design guidelines, transportation plan, and other matters in the Master SMA, as may be necessary or appropriate for the development of the KOR property;” to “timely process and take action on all applications pertaining to the Master SMA … even though the SMA permit may not yet have been approved…;” and to “timely support KOR to government bodies (boards, commissions, or agencies) for favorable action by said bodies.”
The agreement, which was not approved by the County Council, nonetheless contains an assurance to the developers that the county “shall not enact or approve ordinances, rules or regulations after the execution of this Agreement that would constitute a breach of this agreement.” (Later on in the document, there is the statement that despite this assurance, “this Agreement is not intended to require or coerce, nor assume or anticipate, any specific conduct or action by the County Council or any County board or commission.”)
Not until September 19, 1997, was the agreement disclosed to the Planning Commission. On that date, Corporation Counsel J.P. Schmidt informed the commissioners, in writing, of what he described as “a change in circumstances” that meant that the developer would no longer need to complete the Lahaina Bypass road as a precondition to the first development. “The county,” Schmidt wrote, “has now entered into an agreement with the North Beach developers to purchase approximately 33.8 acres… [I]f the density of the development of the project is reduced, the mitigative measures required should also be reduced accordingly. Based on the developers agreement with the County, over a third of the developable units have been removed from the plans…” For these reasons, Schmidt said, the county was no longer of the opinion that the bypass highway needed to be built.
Tainted Proceedings?
As mentioned, the Planning Commission did hold a contested case hearing last fall. Administration officials testified in support of Amfac’s position. When questioned on cross-examination, both Planning Director David Blane and Public Works Director Charles Jencks conceded their favorable testimony was compelled under terms of the option agreement.
In addition, the agreement requires that the corporation counsel, which advises the Planning Commission, support the project.
All this has undermined the Planning Commission’s ability to rely on county staff for unbiased, neutral advice, many people have alleged (including some members of the Planning Commission). On October 13, 1997, corporation counsel Schmidt informed Council member Wayne Nishiki that the agreement did not automatically compromise the independence of Schmidt’s office. However, Lingle herself announced in early November that she’d bring in outside counsel to advise the Planning Commission.
But, as Council member Nishiki reminded the mayor, the decision to employ or retain special counsel rests with the County Council and not with the mayor at all. The County Council, in the end, passed a resolution authorizing the Planning Commission to hire special counsel. At a meeting in mid-January, the Planning Commission voted to do just that.
The hearing officer in the contested case, Joel August, issued his proposed findings of fact and conclusions of law on January 2. August agreed with the Lingle administration in finding that the widening of Honoapi`ilani Highway would be sufficient traffic mitigation for the development of the first phase of North Beach.
August’s recommendations now go to the Maui Planning Commission.
Changing Directions
Planning Director David Blane and others in the Lingle administration signed the document, indicating they recommended the mayor’s approval. This would seem to be a reversal of position for Blane. In December 1996, Blane had advised the Planning Commission that the widening of Honoapi`ilani Highway was no substitute for construction of the Lahaina Bypass. At the time, Amfac was requesting that the commission grant approval of its request to make the substitution. “At this time,” Blane wrote, “I would like to inform the commissioners that the Planning Department does not feel that the proposal constitutes adequate mitigative measures and, therefore, does not support this request.
“After reviewing the lengthy history of this issue, it is clear to me that the Lahaina Bypass was always considered a necessity before any North Beach hotels could be built…. Although detailed traffic calculations may show that the proposed widening of this section of Honoapi`ilani Highway may address the short-term impacts of this hotel [the Ka`anapali Vacation Club], the department must evaluate this proposal over the long term.
“Although the decision is up to the Maui Planning Commissioners, I hope that you will consider what appears to be the clear intent of the original conditions for North Beach and that was that the Lahaina Bypass be completed.”
Foreclosed Options?
Some critics of Lingle’s agreement to purchase the North Beach parcel believe that the money would be far better spent if it were used to acquire all or part of a 600-acre tract, including Camp Pecusa, near Olowalu.
Council member Alan Arakawa reports that Amfac is asking about $15,000 to $20,000 an acre for the land, which would mean that the county could purchase the entire area for less than $12 million. “I would sooner see the county own this 600 acres than the North Beach 34 acres the mayor optioned for $15 million,” Arakawa was reported to have told the Haleakala Times.
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Airport Expansion
One of the most controversial and divisive projects to be proposed on Maui in recent years is the lengthening of the runway at the Kahului airport. The project is sponsored by the state Department of Transportation, not the county. Still, Mayor Lingle has been one of the most outspoken advocates for expansion of the runway as a much-needed means of supporting the county’s economic growth. Opponents of the expansion include nearly every conservation and environmental group in the state.
Among the organizations lobbying for runway lengthening has been the Pueo Coalition. Financed largely by unions and construction interests, the Pueo Coalition was a visible and vocal presence at many of the public hearings and meetings held to discuss the project.
In a speech made in July 1995 to the Maui Visitors Bureau, Lingle disclosed that she had allowed attorneys from the county Corporation Counsel’s office to provide legal advice to the Pueo Coalition. This, she said, would allow the group supporting airport expansion to be able to keep up with the legal maneuvers of airport opponents, whose court challenges to a 1992 environmental impact statement for the project were successful. In comments to The Maui News after her speech, Lingle said that county lawyers were “attending all the meetings of the Pueo Coalition, helping Pueo to understand the legal process involved. They are serving as a resource for the coalition should they have any questions.”
Isaac Hall, the attorney representing airport opponents, immediately criticized the practice. “The mayor and Pueo ought to pay the taxpayers back for the services that have been provided,” Hall told The Maui News. “The county’s attorneys ought to be instructing Pueo to hire their own private attorneys and not divert public funds for that purpose.”
Mary Evanson, a Maui resident long opposed to the airport expansion, made a formal complaint to the county’s Board of Ethics about the practice. The board dismissed Evanson’s complaint, but agreed to develop guidelines intended to let all parties know when assistance given by the county to private groups goes beyond what is routinely provided to all members of the public and becomes a special favor. In the wake of the Ethics Board’s action, corporation counsel J.P. Schmidt told The Maui News that he and his deputy Joseph Wolstyniak would continue to help the Pueo Coalition as they had in the past.
County Intercedes For Moloka`i Ranch
In the professed interest of spurring economic growth, the Lingle administration has intervened in cases before state boards and commissions on behalf of private parties.
Most recently, her administration intervened in a contested case hearing before the state Commission on Water Resource Management that concerned the application of a Moloka`i Ranch subsidiary, Waiola o Moloka`i, to develop a well. The application was opposed by several citizens of Moloka`i as well as the state Department of Hawaiian Home Lands.
In that case, which was heard in October and November 1997 before hearings officer Richard Cox (a member of the Water Commission), Waiola o Moloka`i, which is a water service provider to the ranch’s developments, was seeking permission to drill and pump 1.25 million gallons a day from the Kamiloloa aquifer. The ranch did not dispute the fact that it had no immediate use for all the water; it acknowledged that full use of the water it was seeking might not occur until another 20 years from now (although the ranch denied it was attempting to hoard water). The ranch also did not dispute the fact that its plans for build-out had not been made public and were not recognized in any official community plan or zoning map.
In support of the ranch’s application, Maui County intervened and presented two administration officials as witnesses — Planning Director David Blane and Robbie Ann Guard, with the administration’s Office of Economic Development. Blane acknowledged that he had not seen the ranch’s plans. When informed of elements of those plans, such as the luxury “campgrounds” and more than a thousand new housing units in Maunaloa town, Blane conceded that these were not anticipated in any existing county plan.
In fact, as Blane answered questions concerning Maui County’s interim zoning regulations (which apply to most of Moloka`i Ranch’s property), he explained that the Maui County Code allows existing uses to continue, but that it forbids the establishment of new commercial uses. “You notice the obvious absence of any commercial uses,” he said, after reading a list of what was allowed.
Attorney Alan Murakami, representing several intervenors, followed up by asking, “would it be fair to say that the Paniolo and Kaupoa camps” — both parts of Moloka`i Ranch’s commercial camping operation on land that the county has placed interim zoning — “are illegal uses?”
County corporation counsel Gary Zakian objected to the questioning and advised Blane not to respond. Zakian said that his office “has given advice” and the ranch’s use of the land for campsites “is permitted.”
The testimony of Guard was also not based on any review of Moloka`i Ranch’s plans. Instead, it could be described as a generic statement favoring any enterprise that held the potential for bringing jobs to Moloka`i.
Cox’s recommendation in the contested case was pending at press time.
Moloka`i Ranch Campgrounds
As suggested above, the Lingle administration’s handling of Moloka`i Ranch’s development of a series of campgrounds on interim-zoned agricultural land has been a source of controversy. While the hearing before the Water Commission touched on this briefly, the Land Use Commission has been the forum where this debate has been played out more fully.
The dispute concerns the ranch’s development of hundreds of visitor accommodations on land that the state LUC has placed in the Agricultural District. The ranch has claimed this use is consistent with state restrictions on the use to which such lands can be put. Several individuals on Moloka`i formed a loose association, called Pono, which has formally challenged this interpretation.
Starting in mid-1994, Moloka`i Ranch approached Mayor Lingle, seeking her assistance in getting approvals for overnight camping facilities. In a follow-up letter to one such meeting, held July 15, attorney Paul Mancini informed deputy corporation counsel Gary Zakian that the ranch had asked him to determine whether overnight camping required a special use permit. “I have concluded,” Mancini wrote, “that a Special Use Permit is not necessary and that an overnight facility on such lands is permissible.”
Winning the concurrence of the county planning director was not so easy, however. A year later, on August 2, 1995, Planning Director David Blane wrote a letter to Director of Public Works Charles Jencks, defending his position that the overnight campgrounds were not allowed in Agriculture land unless the Planning Commission issued a special use permit. Blane noted that past requests for overnight campgrounds had complied with this procedure, “most recently the Boy Scouts’ Camp Wolford” in April 1995. “Should we say that the Boy Scouts need a Special Use Permit for a wilderness camp in the state Agricultural District on one hand and that Moloka`i Ranch does not need a Special Use Permit for the Great Moloka`i Trail on the other hand?”
Jencks paid no attention to Blane’s letter. In fact, two weeks earlier, Jencks had himself written Keith Fernandez, vice president and general manager of Moloka`i Ranch, informing him that no special use permit is required, so long as the ranch did not charge a fee for use of the facilities. “However,” Jencks wrote, “should a fee be charged for use of the facilities, the operations may be designated as a visitor accommodation which is not appropriate for agricultural lands without a special use permit.”
The ranch apparently had a problem with Jencks’ implication that a permit would be required if the campgrounds were commercial. After further re-education, Jencks, on December 11, 1995, issued a revised determination.
In the letter, Jencks lists the three types of campgrounds the ranch anticipated building: bare-bones “wilderness camps,” where people will supply their own tents and cooking facilities; “nomadic-type camps,” where campers are provided with tents that are moved “pending weather and seasonal changes on the ranch;” and, finally, ECO-camps, requiring “more established infrastructure.”
The lands where the camps were to be located are rated as less productive than prime A and B ag lands; the state land use law is therefore somewhat less restrictive as to the uses to which the land may be put. The law specifically excludes “overnight” camping and golf courses on Class A and B lands; golf courses and golf driving ranges are specifically permitted on C, D, E, and U-class lands. The failure of the Legislature to call out specifically “overnight camping” in the list of permitted activities for less productive lands was held by Planning Director Blane to be a clear indication that the Legislature did not intend to include this activity as a permitted use.
Jencks, however, had a more sophisticated reading of the law, which basically held that since the camping was use “a logical adjunct” to pre-existing activities (riding stables and other outdoor activities) for which fees were charged, the ranch could proceed with the camping activities. And, apparently to get around the terminological difficulty with “overnight camping,” Jencks described what the ranch was proposing as merely an “open area recreational facility,” which the law does allow to be placed on less productive ag lands.
“In Section 205-4.5(6) of [Hawai`i Revised Statutes],” Jencks wrote, “there is provision for uses such as riding stables and other activities which are already established within the properties owned by the ranch and for which the proposed camping facilities would seem to be a logical adjunct. The Ranch has confirmed to this office that these activities are ones for which the public is already charged a fee.
“As indicated in previous conversations, if uses such as golf courses and golf driving ranges are permitted within areas other than those designated A and B … and the uses and activities normally associated with these activities are acceptable, then the development of camping sites as well as the operation of a camp program as proposed by Moloka`i Ranch is permitted…
“With regard to the issue of charging for the camping facilities, it is also the opinion of this department that since uses permitted for C, D, E and U lands logically include golf courses and driving ranges and other open area recreational uses, the issue of charging for the use of these facilities is allowed…. Once again, the department references present activities which are approved for A and B rated lands which appear to allow for the charging of fees such as riding stables and other such outdoor activities. In contrast, why would you not then allow for the charging of user fees for activities on C, D, E, or U lands?
“In summary, the department feels the ideas proposed by Moloka`i Ranch for the camping program are acceptable for lands rated C, D, E, and U and furthermore feel that the charging for use of the proposed activities is also permitted.”
The ranch began building the first of some 15 campgrounds it has planned. Starting in 1997, it began an extensive advertising and marketing campaign for what it described as The Great Moloka`i Ranch Trail. Daily rack rates for the tents at Paniolo Camp — yurt-like canvas structures with open-roofed bathrooms and large wooden decks — were listed at $270 per person, single occupancy (this includes transfer from the airport, meals, and snacks, as well as one “daily major activity such as paniolo round-up, horseback adventure, wildlife conservation park tours, mountain biking, whale-watching, kayaking and Hawaiian outrigger canoe expedition”).
In late February 1997, Pono, whose members are mostly Hawaiian or part-Hawaiian, brought before the Land Use Commission a request for a declaratory ruling or order. At the very least, claimed Pono attorney Isaac Hall, a special use permit for the campgrounds would need to be obtained from the Moloka`i Planning Commission; he went on to ask that the LUC find that the uses were so “urban-like” that “a district boundary amendment, rather than a special use permit, is required before any other permits or approvals may be granted.”
The Paniolo campground alone, Hall noted, has 60 rental units and a cafe; 112 units are planned at the Kaupoa camp; 20 at Kolo camp. “These are not tents,” Hall wrote; “they are wooden dwelling units with queen-sized beds and ceiling fans, lanais and lanai furniture, private bathrooms with flush toilets and showers with hot and cold water.”
The Land Use Commission held a hearing on the petition in May. Immediately following this, Moloka`i Ranch alleged that the LUC had violated the state’s Sunshine Law (Chapter 92F) by effectively conducting a private meeting during its lunch break. To lay such concerns to rest, on July 17, the LUC held a second hearing and took a second vote on the matter, with an identical outcome: namely, that “overnight camps” are not a permitted use in the Agricultural District.
On August 6, the LUC issued its declaratory order. By that time, terms had expired for some of the members who had voted on the matter and who signed the order. In November, all parties to the dispute agreed that the order should be nullified.
Two lawsuits are now pending in Second Circuit Court. One, filed by Pono, is seeking a determination that the LUC was correct in its vote and that the campgrounds are illegal. The second, filed by Moloka`i Ranch, seeks a determination by the court that the LUC has no jurisdiction in the matter.
Makawao Highlands
In 1996, the Lingle administration bailed out developers of a housing project in Makawao to the tune of nearly $2 million and is now completing work on a development that, in the end, is going to cost the county nearly $5 million to build. Despite the substantial expenditure of public funds on a housing project in the Agricultural District, no environmental assessment or environmental impact statement has been prepared.
According to statements from the Lingle administration, the bailout was done to avoid the county being sued for having provided erroneous information concerning the zoning of the land the developers intended to purchase.
The problem began in April 1991, when, according to a report prepared by the county’s Department of Housing and Human Concerns, the county Land Use and Codes Administration told developers Joel Cavasso (son of former Republican state representative Cam Cavasso of Lanikai, O`ahu) and Abe Lee that the 3.9 acres they were planning to develop in Makawao were in the state Rural District, when in fact the land was in the Agricultural District. On the basis of that information, Cavasso and Lee purchased the land two months later for $395,000 and planned to develop 13 market-priced houses.
In November 1993, the error was discovered. That meant that instead of 13 houses, at most four could be legally built on the property. The county issued a stop-work order. Soon thereafter, with the county’s assistance, Cavasso and Lee converted the project into an affordable-housing development, pursuant to Section 201E-210 of Hawai`i Revised Statutes. (That law gives affordable housing developments exemptions from some of the usual zoning and subdivision standards.) The conversion meant that up to 22 houses could be built on the land, with lots as small as 5,000 square feet. On September 24, 1994, the full County Council approved the development, as required by law, although no one on the council was informed at that point of the events that led up to the project’s conversion.
With the developers experiencing delays, their financing fell through, the county report says. In late 1995, Cavasso approached the Lingle administration, which eventually decided to purchase the property. The county-hired appraiser placed a value of $1.8 million on the land, but in the end, the Lingle administration agreed to purchase it for $1.95 million.
The purchase was not approved beforehand by the County Council. Instead, the county corporation counsel, J.S. Schmidt, informed Finance Director Travis Thompson in February 1996 that Thompson could use $1.95 million from the general fund — money that was later repaid with a loan of $3.3 million that the county received from Central Pacific Bank.
Only in late 1997 was the council asked to approve an additional expenditure of $720,000 for the project, which is ultimately expected to cost the county $4.83 million. (The county projects sales from the houses will bring in $4.5 million, for a total county subsidy of more than $300,000.)
Lingle admits that there may have been something less than full disclosure, but argues that, technically, the administration complied with all legal requirements.
In December 1997, the council’s Budget and Finance Committee recommended spending $400,000 to complete the project, but withheld its approval of $320,000 that the administration had requested to reimburse the county’s general housing revolving fund. In addition, the committee unanimously forwarded to the full council a recommendation that it hire an independent counsel to investigate the project.
When the full Council met to consider the project on January 16, Lingle appeared and lashed out at Council members and others who had criticized her actions. In the end, the Council referred the resolution to form an investigative committee back to the Committee of the Whole while it voted down the resolution to hire special counsel.
The project, which is nearly completed, is expected to increase traffic on Ke`e Road, a narrow county road that provides the only access to the new subdivision. To mitigate this, the county has proposed making Ke`e Road one-way.
Volume 8, Number 8 February 1998