What if they built a mall and no one came?
July Community Meeting Recap
Energy and anticipation were in the air inside, as the sun was setting outside the Charter School, overflowing with interested residents and various media for last night’s (7/19/12) long awaited discussion of the proposed “largest outlet shopping mall in Hawaii,” to be built in Kihei. Too bad the developers refused to participate.
The meeting commenced before an overflowing audience of well over 200 with a short presentation by KCA’s Daniel Kanahele to explain what KCA testified to the Council’s General Plan Committee concerning South Maui in the Maui Island Plan, and how the committee reacted in their voting.
Then it was onto the main topic, with a detailed presentation by Mark Hyde on the history of the area proposed for the huge Eclipse two mall complex,and the legal land use situation (See companion handout below pix,) followed by a complementing briefer traffic analysis by Victoria Huffman, before they both joined permaculturist Michael Howden and former Planning Director Mike Foley to compose a knowledgeable panel moderated by KCA’s Jon Miller.
Look for news reports of the meeting on KHON-TV Ch 2 , Maui TV News, Maui News, Maui Weekly and MauiNow for more details, and a complete meeting telecaste on Akaku TV soon.
Remember the July meeting has moved to Akaku TV Studio at 333 Dairy Rd Kahului on Tuesday 7/24/12 beginning at 6:00 PM for the County Primary Election Candidates Forum, so you can watch it live on CH 53 from home. See you on August 21. Mahalo.
I. Summary of Hawaii Land Use Laws
A. The State:
The Hawaii Land Use Commission (LUC) has the responsibility to classifyHawaii’s lands into one of four categories: urban, rural, agricultural or conservation.
- Property owners may petition the LUC for a change in classification. (HRS 205-4 (a).)
- Upon filing a petition to reclassify land, the LUC conducts a hearing. Notice of the hearing is required to be given to the public. (HRS 205-4 (b).) Citizens can appear and testify. (HRS 205-4 (c).)
- If a petition is approved, LUC rules empower the Commission to impose conditions “to assure substantial compliance with representations made by the petitioner in seeking a boundary amendment.” (HAR 15-15-90 (a).) Counties are responsible for enforcing conditions imposed.
- LUC rules mandate that every boundary amendment be conditioned on the petitioner developing the land in substantial compliance with the representations made to the Commission. “Failure to so develop the reclassified area may result in reversion of the reclassified area to its former classification . . . .” (HAR 15-15-90 (e) (1).)
- LUC rules also mandate that a successful petitioner file annual reports with the Commission detailing progress made on the approved project and addressing compliance “with the conditions imposed.” (HAR 15-15-90 (e) (3).)
B. The County:
Zoning within state approved land districts is reserved to the counties. (HRS 205-5)
Zoning must implement community plans.
- Zoning regulates land use in the county “in accordance with” the land use directives of the Hawaii Revised Statutes, the county charter and the general and community plans of the county. (M.C. Chapter 19.)
- Community plans are developed with input from the state, county agencies and the general public, and are to be based on “sound policy and information.” (M.C. 280B.070.)
- The Kihei-Makena Community Plan was adopted into law in 1998 and remains in effect.
- Community plans can be amended off cycle by petition and must be supported by either an EA or an EIS and subject to public testimony.
II. Case History
A. Land Use Commission Petition
In July 1994, Kaonoulu Ranch petitioned the LUC for a boundary amendment to reclassify 88 acres of land onPi’ilani Highwayof land from agricultural to urban.
Notice of the proceedings was published in the Maui News, informing the public that the ranch was seeking approval for a “commercial and light industrial subdivision.” The public was told to consult the Petition on file with the state and county for more information on the application.
The ranch’s petition proposed development of “KaonouluIndustrial Park, a 123-lot commercial and light industrial subdivision . . . .”
- The project was said to be needed to address a shortage of commercial and light industrial space “for businesses servicing the Kihei-Makena region.”
- “TheKaonouluIndustrial Parksite will emerge as a regional focal point for distribution activity as well as light industrial activity.”
- “The project is proposed as an industrial park which would be sold in fee simple to purchasers.”
- A site plan for the park was submitted (see attached).
- A marketing report was presented, describing pent up demand for sites in Kihei and describing demand for services of suppliers of materials and a variety of business services, including repair and maintenance, management and accounting, etc.
- A traffic study was presented, stating “Because the project is expected to provide industrial space in support of resort, residential and other development, in theSouth Mauiarea, regional traffic impacts would be positive . . . .”
B. Land Use Commission Decision and Order
Kaonoulu Ranch’s Petition was approved in 1995, subject to 20 conditions:
- Condition 1: Obtain amendment of the Kihei-Makena Community Plan and get an appropriate zoning change.
- Condition 5: ImprovePi’ilani Highwayat the intersection withKaonoulu Streetand “. . . provide for a frontage road parallel toPi’ilani Highwayand other connector roads within the Petition area . . . .”
- Condition 15: “Petitioner shall develop the Property in substantial compliance with the representations made to the Commission.”
- Conditions 16 – 19: Record the conditions against the property to bind current and future owners.
C. Community Plan Amendment/Update
As required by Condition 1, the Kihei-Makena Community Plan was updated and enacted into law in 1998. It remains in effect today.
- The community plan specifically designates the property “LI” defined as “Light Industrial. This is for warehousing, light assembly, service and craft-type industrial operations.”
- The plan also states that industrial space south of Ohukai and mauka ofPi’ilani Highway(where the property is located), should “limit retail businesses or commercial activities to the extent that they are accessory or provide service to the predominate light industrial use. These actions will place industrial use near existing and proposed transportation arteries for the efficient movement of goods.”
In 1998, Kaonoulu Ranch sought re-zoning for theKaonouluIndustrial Park. The application was based on the same representations made to the LUC, that the property be developed into a light industrial park. An identical “illustrative” site plan was submitted.
The property was re-zoned “M-1 Light Industrial” by the County in 1999.
- The CountyCodedefines M-1 Light Industrial as follows: “The M-1 light industrial district is designed to contain mostly warehousing and distribution types of activity, and permits most compounding, assembly, or treatment of articles or materials with the exception of heavy manufacturing and processing of raw materials. Residential uses are excluded from this district.” (M.C. 19.24.010 – Generally. Emphasis added.)
- The following code section, M.C. 19.24.020, outlines a host of acceptable uses in an M-1 light industrial zone, including commercial activities. [The county posits that this section negates the preceding section, ignoring the meaning of the word “mostly” in the definition of light industrial and, one can argue, common sense.]
E. Subsequent History
- Kaonoulu Ranch decided not to develop the property, informed the LUC of such and sold the property to Maui Industrial Partners, LLC, in 2005, subject to the LUC’s conditions.
- Maui Industrial Partners, LLC, sold three fourths of the property to Pi’ilani Promenade South, LLC and Pi’ilani Promenade North, LLC in September 2010; one forth of the property was retained for 250 workforce housing units for Wailea 670.
- In January 2012, the Maui News published an article indicating that the property would be developed into a large shopping center and outlet mall.
- The developer’s web site indicates that the project will consist of 700,000 square feet of leasable retail shopping space, and will be the largest outlet mall inHawaii. Also, the intersection of Kaonoulu and Pi’ilani is said to become the largest intersection inMauiCounty, drawing traffic island-wide.
- An independent traffic engineer recently calculated that the difference in traffic between the proposed light industrial park and the 700,000 retail shopping complex is 25,000 additional car trips per day.
- No amendment of the community plan has ever been sought or obtained. No zoning change has been sought or obtained to support a purely retail project .
- This spring the Planning Director presented at a monthly KCA meeting, stating that the project was entitled years ago, that nothing could be done to address it and questioning why members of the public did not appear to be heard when they had a chance in 1994 before the LUC and 1998 before the County Planning Commission – both when the project was a 123- lot light industrial park.
- No frontage or connector roads are planned by the developer, according to grading plans recently approved by the County. (See attached plan overview.)
- The light industrial park presented to the LUC will no longer be built; the new project will be 100% retail with no light industrial uses. No new traffic or marketing studies have been prepared or presented nor has the public been given an opportunity to be heard on the impact the new project with have on south Maui, the effect big box stores will have on local retailers and existing shopping centers, the effect on traffic, and incongruity with the community plan and light industrial zoning.
- Fifteen annual reports have been filed with the LUC by the owners of the property, all claiming that the property will be developed as represented to the Commission in 1994 and omitting reference to the fact that no frontage or connector roads will be built or that the project has changed from a light industrial park into a regional shopping center and outlet mall.
- In April 2012, Maui Tomorrow, South Maui Citizens for Responsible Growth and Daniel Kanehele filed an appeal with the Maui County Board of Variances and Appeals, challenging the grading permits, zoning, etc. issued by the county for the retail shopping centers.
- In May 2012, Maui Tomorrow, South Maui Citizens for Responsible Growth and Daniel Kanehele filed a motion with the LUC seeking to have the urban land reclassification retracted for breach of conditions.
FOR MORE INFORMATION OR TO CONTRIBUTE TO THE LEGAL FUND, GO TO: maui-tomorrow.org
EXECUTIVE TEAM NAMES AND PHONE NUMBERS: http://eclipsedevelopmentgroup.com/about.htm