The application of Indonesian businessman T.P. Liem to build a house on Hawea Point, Maui, provides an excellent illustration of the problems that emerge from a permissive interpretation of Land Board policy with regard to development in Conservation District lands that have never before been developed. It also points to the need to clarify exactly how the Land Board is to take county plans into account when making its decisions – to say nothing of the need to set some limits on the size of houses built in Conservation District land or which are otherwise exempt from county review under the Coastal Zone Management Act.
The story of the Liem Conservation District Use Application has its start in Washington. In the mid-1980s, when the perceived need to reduce the budget deficit weighed heavily on the Reagan administration, the federal government decided to auction off lands deemed to be surplus. Into that category fell almost eight acres of land at Hawea Point on Maui, the northwestern tip of the island. The Coast Guard had a lighthouse there or, rather, a beacon atop a metal scaffold, but no other use had been made of the site. Almost all of the land is in the General subzone; a small part along the rocky coast is Limited.
On occasion, surplus land will be sold to local or state governments at a discount, enabling it to be used as parkland or for some other public use. This time, the General Services Administration (the federal agency handling the sale), decided that a “careful analysis of [the property’s] highest and best use” did not warrant selling it cheaply to the county. In 1987, the land was sold at auction to Liem for $2.4 million, with Liem and all other prospective buyers having been fully informed that the land was not in an area that implied any right to build.
In 1989, Liem filed a Conservation District Use Application seeking to build a single-family residence covering some 40,000 square feet and to remove the lighthouse from its existing position and situate it at another spot, where it would not be so close to the house site. The estimated cost of the house and improvements was said to be $8.5 million. It originally called for nine bedrooms, a 45-foot-high viewing tower, servants’ quarters, a game room, and assorted parlors. The plans show several freestanding buildings, but all are connected by covered lanais or walkways. Water consumption for the occupied house was estimated at between 2,000 and 3,000 gallons per day. Daily irrigation would consume another 28,000 gallons.
Before any CDUA can be granted for land within the county Special Management Area (described in Chapter 205A of Hawai’i Revised Statutes), the applicant must have in hand all appropriate county permits. When Maui County Director of Planning Chris Hart took a look at the Liem plans his initial reaction was to classify it as a development that would require a county permit, and not as a single-family residence (exempt from county review). “When we actually saw the magnitude of this particular project, we felt that from an honest interpretation of the law, it should be considered as development,” Hart said at the public hearing held on this CDUA on February 8, 1990.
But on the advice of Maui County corporate counsel, the county issued a notice to Liem stating that because the plans were for a single-family residence, which is exempt from county review in the SMA, no county permit would be required. However, almost every other type of activity does require county permission, and this includes the proposal to move the lighthouse. Rather than undergo review for that by an unsympathetic county panel, Liem simply decided to scale back the house plans somewhat and leave the lighthouse where it is.
With the need for county permissions thus circumvented, no further obstacles stood in the way of Land Board consideration of the Liem CDUA.
On March 9, the staff recommendation to the Board was for approval. At the public hearing, Roger Evans, administrator of the Office of Conservation and Environmental Affairs, explained the staffs rationale: “Since 1978, when the Board adopted the General subzone, which is the pre-urban condition…, the Board statewide has consistently and to the best of our knowledge not ever denied a request for one house per lot to be in the General subzone… If the Board would not allow the [Liem] dwelling, that to the best of my recollection would be the first time that the Board has not allowed it on a piece of privately owned land in General subzone.”
The Board decided to approve the CDUA, but on condition that a contested case hearing (which was requested at the Board meeting) was found not to be necessary. (Another condition was that the final plans would be subject to Board approval – a standard condition, but one that, in this case, was specifically stated to be raised in regard to the size of the house.)
Within the week (March 6), the Friends of Hawea Point as well as several nearby landowners had filed a petition for a contested case, which was granted by the Board on June 8. Among the points raised in their petition, filed by attorney Isaac D. Hall, were the allegations that the proposed structures do not comply with Maui County ordinances (especially those concerning community plans) and that the “structures are not designed for and will not be used only by a single family.”
As Environment Hawai`i went to press, it appeared likely that the petitioners would arrive at a private settlement with agents for Liem.
Volume 1, Number 3 September 1990