Preservationists try to save Pa'ia beach
By Timothy Hurley
Advertiser Maui County Bureau
PA'IA, Maui — In the early 1990s, an advisory group of citizens working to create Maui County's Ha'iku-Pa'ia Community Plan designated a 5.7-acre oceanfront parcel next to Baldwin Beach as open space.
Timothy Hurley • The Honolulu Advertiser
The idea was to leave room for expansion of one of the north shore's most popular beach parks.
Rob Parsons of the Maui Group of the Sierra Club opposes development near the Baldwin Beach Park in Pa'ia.
Today, there is a large, two-story home sitting on the oceanfront lot, and two others are under construction.
The development — just east of the Baldwin Beach Park on the former site of a lime kiln used years ago for sand and coral mining — has come under attack from environmentalists trying to preserve oceanfront land and from beachgoers who want to maintain access along the shore.
The controversy has drawn the attention of both Mayor James "Kimo'' Apana and the County Council, and may lead to changes in how the county carries out regulatory oversight of shoreline development.
Maui Planning Director John Min is being criticized for ruling last December that individual owners of three single-family house lots on the oceanfront parcel did not need coastal zone management permits, even though state law seems to indicate only one such residence can be exempt as long as it is not part of a larger development.
Min said he was simply following a policy established by previous planning directors, giving him discretion to allow up to three homes on a lot. A county attorney has backed up his decision.
Apana, Min's boss, agrees the planning director was simply following the law at the time. But the mayor also acknowledged that what occurred was "an abuse of a loophole in the law.''
"It isn't proper. It is not the spirit of the law,'' he said.
Apana has met with opponents of the project and has promised to look into allegations of wrongdoing associated with the development. He also has vowed to negotiate a wide easement to maintain beach access.
His assurances have not stopped Kula resident Christina Hemming and Hui Alanui O Makena from challenging Min's action in a formal appeal to the Maui Planning Commission. A hearing on the issue is expected later this year.
In the meantime, the County Council has jumped into the fray by assigning the issue to its Land Use Committee. Committee Chairman Alan Arakawa said he plans to investigate whether county officials acted properly in allowing the developer, Montana Beach LLC, to go forward with its project.
"The integrity of the process has been challenged,'' said Arakawa, who added there are enough red flags to warrant a thorough investigation. "A lot of people are disenchanted with how government is doing its business.''
Arakawa said he specifically remembers putting language in the area's community plan in the mid-1990s that forbids buildings at the lime kiln site. "This is an area we were trying to get into (a) park,'' he said.
But while the community plan calls for open space, the parcel's former "interim'' zoning designation had no restrictions on development.
The original building permits were issued in 1997 but were rescinded after the landowner, Kurt Ulmer of Montana Beach LLC, failed to conduct an archaeological review. They were re-issued in 1999 after the review was completed. In each case, the permits were issued on the basis of assurances by an architect that all procedural rules would be followed.
When Hemming, a Baldwin Beach regular, saw the house construction behind the little cove she ducks into when the wind pick ups, she began to worry.
"I saw privatization coming,'' she said. "I was afraid they were going to turn it into a private beach.''
Hemming decided to monitor the progress of work and do a little digging. She said her effort unearthed numerous questionable construction practices and other irregularities involving coastal zone laws. It eventually led her to hire a lawyer and to challenge the county for allowing the project without the higher level of scrutiny required of those who want to develop shoreline areas.
Hemming's crusade has gained momentum, with the Maui Group of the Sierra Club, the local branch of the Surfrider Foundation, Hui Alanui O Makena and other groups voicing opposition, and 1,300 individuals signing a protest petition.
"The situation is totally out of control out there. It's gone way too far,'' said resident Robert Karpovich, an area resident who also has worked to oppose the project.
"We can't afford to lose this beach,'' Ginger Johnson told the council earlier this month. "We need this beach. We need this park.''
Rob Parsons, conservation chairman with the local Sierra Club, said the problem goes beyond the lime kiln site. Other coastal residential developments on Maui have dodged a full public airing of coastal zone issues by means of loopholes and a liberal interpretation of the law, he said.
Although Min argues he has the discretion to allow up to three homes on a lot, Hemming and Hui Alanui O Makena spokeswoman Dana Naone Hall said the law's wording is clear: An exemption applies to only one single-family residence on a parcel — not three.
Montana Beach attorney Tom Welch contends the law's language gives the planning director more latitude in judging whether a small project, such as this one, would have an impact on the coastal zone.
He said another section of the coastal zone law exempts subdividing a parcel into four or fewer parcels, which indicates the policy falls within the spirit of the law.
Because previous directors had been following that policy since the coastal zone management law was established 25 years ago, Min was well within the law to issue permits, he said.
But former planning director Chris Hart said he followed no such policy when he was in charge from 1986 to 1991, though he can understand how such a policy could have been established, given the law's wording.
And David Blane, a former Maui planning director in the mid-'90s, said no such policy existed during his tenure. In fact, he recalled one instance along the shore in Makena in which he opposed a multiple exemption because of its potential impact on the coastal zone.
Blane, who is now director of the state's Office of Planning, conceded that the law has been unclear, and said the planning director has always had the discretion to make the call on coastal exemptions.
In any case, Welch said, it's hard for opponents to argue that three homes would have a cumulative impact greater than the parcel's traditional industrial use by Hawaiian Commercial & Sugar Co.
Looking back, Min said, it's unfortunate the exemption request didn't occur before the building permits were issued.
"If we had reviewed it at the outset, maybe we would have looked at it a little differently,'' Min said.
But considering what his predecessors had allowed and the relatively low density of the project, he felt he had to approve it, he said.
Apana said he has instructed his department heads not to allow any more exemptions in sensitive coastal areas. He also has directed his staff to review existing planning rules, find loopholes and inconsistencies, and change the laws before they create more problems.
