Fifteen years ago, the Land Use Commission approved the redistricting request of Emmanuel Lutheran Church of Maui. By the commission placing the land into the Urban District, the church could move forward with an ambitious, $20 million, 10-year plan to build new classrooms and facilities for its school and a new sanctuary. Most of the development would occur on about half of 25 acres owned by the church, lying between Honoapi\u02bbilani Highway and Waiale Road, south of Wailuku.<\/p>\n\n\n\n
Today, the landscape \u2013 weedy trees and scrub grasses \u2013 is mostly unchanged.<\/p>\n\n\n\n
But in other respects, it is vastly different.<\/p>\n\n\n\n
In 2018, the church had yet to move forward with its plans. Acknowledging that it was unable to finance its grand plans and still having to pay off a hefty mortgage, it approached the LUC with a plan to bifurcate the project and subdivide the land. It had already lined up a party to purchase about half the property, but it needed LUC approval of the proposed subdivision and sale of approximately 12.5 acres to Waikapu Development Venture, LLC (WDV). President of WDV is Peter K. Martin, whose projects elsewhere, especially in West Maui, have not been without controversy.<\/p>\n\n\n\n
On November 29, 2018, the commission approved the requested amendments. Specifically, the LUC order issued after that meeting states, \u201cUpon the completion of the subdivision process to split the petition area into two large lots, ELC [the church] will sell one of those lots to WDV. ELC will develop the updated ELC project on the portion of the petition area it retains. WDV will develop the workforce housing project authorized under County of Maui Resolution No. 18-150.\u201d The housing project was to be developed within four years of the date the LUC\u2019s decision took effect.<\/p>\n\n\n\n
Although the vote was made in November, the language of the final order was not approved by the commission until June 27, and the certification \u2013 the final signing-off on the decision, before which it has no legal effect \u2013 was not made until July 11, 2019.<\/p>\n\n\n\n
Despite the absence of official sanction and the fact that the parcel had not yet been subdivided, WDC and the church moved forward with the sale of the property. <\/p>\n\n\n\n
On June 28, officers of both parties signed two documents: a warranty deed and an agreement of sale. The deed was filed with the Bureau of Conveyances on July 3; it describes the property being sold as the entire parcel, with a purchase price of $1,150,000. The agreement of sale was filed two days later, and only on this document does there appear the description of the property to be sold as \u201cproposed lot \u2018A-2\u2019 \u2026 being 12.760 acres, more or less,\u201d about half of the undivided property.<\/p>\n\n\n\n
And so, despite the commission having authorized the sale of only half of the land, and even that to occur only following county subdivision, the developer today owns the entire parcel. Maui County tax records show WDV as the sole owner of record, with Emmanuel Lutheran holding an \u201cagreement of sale.\u201d Emmanuel Lutheran Church will only regain the half of the property where it intends to build its facilities once the subdivision is completed. <\/p>\n\n\n\n
The church did manage to pay off its mortgage a month later. In 2016, when it had refinanced earlier loans, the balance stood at around $411,000. In August, the mortgage was paid off, but the church had little left over with which to pursue its own plans.<\/p>\n\n\n\n
A Slowdown<\/strong><\/p>\n\n\n\n In 2018, WDV had given the commission reason to believe that it would complete construction of 80 units of workforce housing within four years. It had the agreement with the church providing for purchase of about half of the church\u2019s property. The timeline it presented to the LUC had the first families moving into the new homes by the end of 2020. <\/p>\n\n\n\n Based on those representations, the commission voted to approve WDV\u2019s plan, \u201cprovided that WDV\u2019s Waikapu Affordable Workforce Housing Project shall be developed within four years.\u201d<\/p>\n\n\n\n WDV presented a similarly ambitious schedule to the Maui County Council, which approved plans for the housing \u2013 68 single-family houses plus six duplexes and a one-acre \u201cpocket\u201d park \u2013 in September of that year, again with a four-year deadline for completion: September 7, 2022. <\/p>\n\n\n\n Recognizing it would require more time, in 2020, the developer sought, and received, a time extension from the county. In July of that year, the County Council granted WDV two more years \u2013 until September 2024 \u2013 to complete the housing. Finally, in late 2022, the developer began work on a waterline along Waiale Road, one of the conditions of the affordable housing project. But that was pretty much the only progress. The promised subdivision of the church lot into two parcels of about 12.5 acres each had not yet \u2013 and still has not \u2013 been completed.<\/p>\n\n\n\n Nor were these the only undone tasks. One of the requirements of the boundary redistricting was that annual reports be filed with the Land Use Commission. From 2018 until April 2023, neither the church nor WDV filed anything with the commission.<\/p>\n\n\n\n An Update \u2013 and a Request<\/strong><\/p>\n\n\n\n On April 13, 2023, the LUC received a nine-page letter signed by Martin (for WDV) and by two church officers (for Emmanuel Lutheran). \u201cWe apologize for the gap in reporting and respectfully request your acceptance of this report satisfying reporting requirements for 2018, 2019, 2020, 2021, 2022, and 2023,\u201d they wrote.<\/p>\n\n\n\n The church \u201cstill does not have the ability to begin or complete construction by the March 7, 2018, deadline of ten years,\u201d their letter stated, attributing the delays to \u201cnumerous factors,\u201d including financial issues and falling enrollments. \u201cThe Covid-19 pandemic made development even more difficult,\u201d they added.<\/p>\n\n\n\n WDV also referred to Covid and \u201ccurrent economic conditions\u201d in explaining its own failure to complete construction by the July 11 deadline. In addition, Martin complained of county and state agencies being slow to review construction plans.<\/p>\n\n\n\n A month later, with the LUC staff having pointed out technical and other problems with the March report, WDV and the church filed a revised one. This set forth more accurately the conditions of the 2018 amendment to the original LUC decision, as well as a proposed document to record with the Bureau of Conveyances, replacing one filed in 2022. Along with the revised report and attachments, Peter Horovitz, the attorney who had been representing WDV for years, notified the LUC of a change of counsel. Henceforth, Jeff Ueoka would be counsel of record for WDV, Horovitz stated.<\/p>\n\n\n\n On June 6, the commission met to discuss the annual report and hear a status update from Ueoka. A representative of the church, Leif Sjostrand, was present as well, although the church had no specific plans so far as development of its parcel was concerned.<\/p>\n\n\n\n Ueoka, however, had quite a bit to share with the LUC.<\/p>\n\n\n\n The project has been on hold for a while, he acknowledged, but now the \u201cteam\u201d was working with the county on getting approvals for a $10.65 million grant and modifications to the original workforce housing proposal. From the commission, he said, WDV was \u201choping for an extension of the completion of construction deadline. We were going to ask for a deadline of July 11, 2027 \u2013 but would like to extend that to September 2027, to line up\u201d with the county permit.<\/p>\n\n\n\n Modifications to the original layout now included no duplexes, but rather only single-family houses. To accomplish the revised layout, sidewalks had been relegated to just one side of the street, cul-de-sacs had been eliminated, and the \u201cpocket\u201d park had also been erased. The duplexes were dropped, Ueoka said, since they were not as easily marketed as single-family homes.<\/p>\n\n\n\n \u201cWe wanted to have the county take over the detention basin and greenways in hopes of eliminating \u2026 the need for a home-owners association. But the council wasn\u2019t keen on that when we proposed it. Also, we need to modify the zoning language in regards to the duplexes,\u201d Ueoka told the commission.<\/p>\n\n\n\n \u201cWe need to go through with the 201H amendment,\u201d he said, referring to the chapter in state law that gives developers of affordable housing certain exemptions from standard conditions. \u201cAnd we are probably going to need to come back to you guys to get extension of timelines in the district boundary amendment. We need to complete the two-lot subdivision and have to go through subdivision plans, plans for infrastructure improvements, house plans for the subdivision. Hopefully, by the end of 2024 we can start work on the homes, and in 2025, 2026, homes should be done. People should move in. That\u2019s the dream.\u201d<\/p>\n\n\n\n When questioned by commissioner Lee Ohigashi about the prospects of the county grant, Ueoka reported that just the day before, the fiscal year 2024 budget for the county had been approved, including the affordable housing award, \u201csubject to receipt of approval of the 201H time extension.\u201d<\/p>\n\n\n\n Commissioner Gary Okuda pressed Ueoka on the financial strength of WDV. \u201cThe status report doesn\u2019t actually get into financial ability,\u201d Ueoka replied. \u201cRecently, the membership group\u201d \u2013 referring to the membership of WDV \u2013 \u201chas evolved and there is the ability to get construction financing for this project. It was on hold due to changes in pricing and everything. \u2026 Now with the county subsidy, \u2026 it\u2019s a strong possibility this project can be financed.\u201d<\/p>\n\n\n\n The Ka Pa\u02bbakai Question<\/strong><\/p>\n\n\n\n Okuda went on to ask Ueoka about the ethnographic study that had been appended to the status report. The study, by Honua Consulting, was intended to satisfy the requirement imposed by the LUC in 2018 that a new cultural impact assessment be done to fulfill the commission\u2019s obligations under Ka Pa\u02bbakai.<\/em><\/p>\n\n\n\n \u201cHave you or anyone else reviewed the cultural impact analysis study?\u201d Okuda asked Ueoka. \u201cIt\u2019s a document prepared by Honua Consulting titled Ethnographic Survey \u2026\u201d<\/p>\n\n\n\n Okuda quoted from the Ka Pa\u02bbakai<\/em> v. Land Use <\/em>Commission decision of the Supreme Court. The Honua Consulting report, he said, \u201cthat was intended to satisfy or present evidence so that the Land Use Commission could satisfy and do its duty as required by Article 12 of the Hawai\u02bbi State Constitution and as emphasized by the Hawai\u02bbi Supreme Court in Ka Pa\u02bbakai. <\/em>Correct?\u201d<\/p>\n\n\n\n Ueoka agreed.<\/p>\n\n\n\n \u201cIn reviewing the report,\u201d Okuda continued, \u201cpersons were interviewed to determine whether or not there would be impacts with respect to the matters which the Hawai\u02bbi State Constitution says that government agencies have a duty to protect. Correct?\u201d<\/p>\n\n\n\n Again, Ueoka agreed.<\/p>\n\n\n\n Okuda continued: \u201cAnd it looks like two people were interviewed in the study. What is the evidence in the record that was submitted to us, anywhere in the record, that these two people that were interviewed have knowledge and experience in customary and traditional rights of native Hawaiians relevant to giving us the ability to make the decisions and carry out our duties as required by Article 12 and the Ka Pa\u02bbakai<\/em> case? What makes these two people reliable or persuasive or \u2026 relevant witnesses?\u201d<\/p>\n\n\n\n \u201cLike anything, it\u2019s subjective,\u201d Ueoka said. \u201cI believe Honua Consulting selected these individuals. Since Maui is small, I do know both of them. They\u2019re local guys, born and raised. I\u2019m not sure what you would want to see further. We relied on Honua Consulting\u2019s knowledge and general background and expertise in this, why they chose these two individuals.\u201d<\/p>\n\n\n\n \u201cBut,\u201d Okuda continued, \u201cis there anything in the report prepared by Honua Consulting that indicates what the qualifications or the standards are that were used to determine who to interview to gather evidence as to whether there is or is not impacts which are relevant to a Ka Pa\u02bbakai <\/em>or Article 12 analysis?\u201d<\/p>\n\n\n\n Ueoka then read passages from the report, noting that one of those interviewed, Ikaika Blackburn, \u201cis \u2018associated with the project area through his lifelong residency in Wailuku, Maui, and Na Wai \u02bbEh\u0101 [a group that has litigated water rights in the area]. It talks about Mr. [Daryl] Fujiwara, \u2018a lifelong resident of Maui and active community member, he brings a helpful perspective and expertise on the cultural resources, traditions, and customs that exist in the project area. He does not believe that the project will negatively impact cultural resources, traditions, or customs.\u2019\u201d<\/p>\n\n\n\n \u201cBut,\u201d Okuda asked, \u201cwhat\u2019s the evidence that these people have the qualifications, either age, education, experience, training, as either cultural practitioners or somebody who would have relevant knowledge to give the type of analysis that the Hawai\u02bbi Supreme Court said we on the Land Use Commission better take a look and seek out, otherwise we\u2019ll get reversed again.<\/p>\n\n\n\n \u201cFor example, you could say I\u2019m a lifetime resident of Kailua, O\u02bbahu, where I grew up. I\u2019m familiar with where the beach is, I went swimming at the beach once in a while. But I would never claim that I was a cultural practitioner or anyone with real knowledge of what the cultural practices were or are in Kailua or the general area. I can point out where the heiau is, but just growing up in the area, I\u2019m not sure if that would qualify me to give the type of expertise.<\/p>\n\n\n\n \u201cI\u2019m just making a point that perhaps you might consider some type of supplementation going forward. Because if the analysis and the work that the Land Use Commission is required to affirmatively take is not present, that can stop even giving approvals on extensions, if we don\u2019t have evidence that complies with the requirements of Ka Pa\u02bbakai <\/em>and Article 12. \u2026 I\u2019m not sure whether the record is sufficient at this point where further action could be taken.\u201d<\/p>\n\n\n\n Ueoka said WDV would follow up with Honua Consulting. \u201cThey determined who to interview and we trusted them,\u201d he said.<\/p>\n\n\n\n A \u2018Critical Path\u2019<\/strong><\/p>\n\n\n\n Commissioner Michael Yamane wanted to know about the status of the two-lot subdivision.<\/p>\n\n\n\n \u201cWhere are you in that process, and has the sale already occurred, or does the subdivision have to happen first, and is that a critical path for you to pursue the development?\u201d he asked.<\/p>\n\n\n\n \u201cThe sale, there you gotta wait till the subdivision\u2019s completed, of course, per county rules,\u201d Ueoka replied. \u201cBut we\u2019re close on the subdivision. The waterline, my understanding, is that\u2019s the last big thing, and the two-lot subdivision should be completed soon.\u201d<\/p>\n\n\n\n \u201cHas the sale already been closed?\u201d Yamane asked.<\/p>\n\n\n\n \u201cI\u2019m not 100 percent sure if the sale is closed. But typically, for this one, my understanding is it closed in the sense that they both hold title to the whole property,\u201d Ueoka said.<\/p>\n\n\n\n When Yamane asked if any money had changed hands, Ueoka turned to someone sitting in the back of the for the answer: \u201cA million fifty thousand for the land,\u201d Ueoka then told Yamane.<\/p>\n\n\n\n Is it possible to proceed without the subdivision? Yamane wanted to know.<\/p>\n\n\n\n \u201cYou can submit while the two-lot subdivision is pending,\u201d Ueoka replied. \u201cWe can submit the 80-lot subdivision, which can be reviewed concurrently by the County of Maui.\u201d<\/p>\n\n\n\n Members of the commission expressed concern over the ability of Waikapu Development Venture to go forward. Commission chair Dan Giovanni asked Ueoka about what he called \u201cgo\/no-go issues.\u201d<\/p>\n\n\n\n What if the county subsidy doesn\u2019t come through? Giovanni asked.<\/p>\n\n\n\n \u201cIf we don\u2019t get it, it\u2019s a no-go,\u201d Ueoka said, adding that the project \u201cwas in the process of being scrapped before an owner representative worked with the County Council.\u201d<\/p>\n\n\n\n When did that happen?<\/p>\n\n\n\n \u201cIt started the beginning of May,\u201d Ueoka said, with the council giving approval just one day before the LUC meeting. \u201cWe still need to work with the mayor and administration\u201d on details, he said.<\/p>\n\n\n\n \u201cSo that\u2019s weeks to months away,\u201d Giovanni noted, with Ueoka agreeing.<\/p>\n\n\n\n As to the amendment of the 201H plans, Ueoka said, WDV \u201cwould like to get to the council in the next couple of weeks.\u201d There was work to do in setting deed and resale restrictions, owner occupancy conditions, and the like. \u201cWe hope to get started in the next couple of weeks. Then it needs to go to committee and then the council. That\u2019s six to eight weeks.\u201d<\/p>\n\n\n\n There was the matter, too, of getting Land Use Commission approval of a time extension. \u201cWe hope to get through this process with the commission by the end of summer,\u201d Ueoka said.<\/p>\n\n\n\n Finally, there was the matter of the two-lot subdivision. \u201cIf that fails, it\u2019s a no-go. We\u2019re closing up that last requirement, so that should be okay,\u201d he said.<\/p>\n\n\n\n Then there were the subdivision infrastructure plans and permitting, which would take multiple months for approval. In 2024, Ueoka said, he anticipated subdivision improvements will go in. \u201cWe\u2019re not anticipating it being overly painful. County water, county sewer. That\u2019ll probably take at least 12 months. Building permit processing \u2013 assume that\u2019s months. Home construction can commence when we get building permits.\u201d<\/p>\n\n\n\n Giovanni then asked about financing. \u201cWhen will you get a construction loan?\u201d<\/p>\n\n\n\n Ueoka said that WDV had been in touch with lenders, but if a loan isn\u2019t obtained, \u201cthat would be a no-go. I give that weeks to months.\u201d<\/p>\n\n\n\n Climate Change Issues<\/strong><\/p>\n\n\n\n \u201cIn the changes you\u2019re proposing, you\u2019re eliminating the park area, green space. No landscaping in rights of ways,\u201d Giovanni noted. So, he asked Ueoka, \u201cI\u2019d like you to inform this commission of what steps you\u2019re taking as a developer to be respectful of the impact you might have \u2026 [You\u2019re] taking Ag land and covering it with a lot of concrete here.\u201d<\/p>\n\n\n\n Even though there would not be trees in the rights of way, Ueoka said, \u201cthere will still probably be grass or something. \u2026 There\u2019s a big drainage area that will be grassed, and green along Honoapi\u02bbilani. But you\u2019re right, no park.\u201d<\/p>\n\n\n\n In the end, the commission asked for the parties to the docket to report back within three months. This, Giovanni said, would allow the commission \u201cto get a clear understanding of what the church is planning. \u2026 You can give us a clearer update of the financial transactions between the parties. You can give a clear indication of the go\/no-go conditions.\u201d Giovanni also invited Maui County \u201cto give us a more detailed presentation on their view of this project.<\/p>\n\n\n\n \u201cThis could be an important workforce housing development for Maui. There\u2019s no question about the need. We want to assist in making it successful, keeping it on track,\u201d Giovanni said.<\/p>\n\n\n\n \u201cBut there are some balls in the air here. They\u2019re being juggled, and I\u2019m not sure who the juggler is. And I\u2019m not sure how many balls. But we need to understand all that.\u201d<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" Fifteen years ago, the Land Use Commission approved the redistricting request of Emmanuel Lutheran Church of Maui. By the commission placing the land into the Urban District, the church could move forward with an ambitious, $20 million, 10-year plan to … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15211,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[513,338],"tags":[7],"class_list":["post-15210","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-july-2023","category-land-use","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15210","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15210"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15210\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15211"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15210"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15210"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15210"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}