Honua'ula plan on hold over sunshine law complaint
By Edwin Tanji
Maui News
WAILUKU — A Maui Circuit Court judge on Wednesday blocked Maui County from taking further actions to permit the Honua'ula project district pending a determination of whether the County Council violated the state sunshine law in approving zoning for the project.
The injunction issued by 2nd Circuit Judge Joseph Cardoza does not deal with the merits of the zoning for the 670-acre project district but whether the council members violated open-meetings requirements in reviewing and acting on the zoning bills.
Council members were in a daylong meeting on the 2009 budget Wednesday, while Mayor Charmaine Tavares said she would need to review Cardoza's written decision before she could comment on what steps the county will take.
Tavares signed the bills for project district zoning to allow development of a 1,400-unit residential project with commercial sites and a golf course on former pasture lands mauka of the Wailea Resort.
Deputy Corporation Counsel Mary Blaine Johnston said the order applies only to further county actions based on a finding that the plaintiffs were likely to prove their complaint.
"The judge said there is a likelihood that plaintiffs will prevail and he believed it was better to keep the status quo in place until the issue is worked out," she said.
Attorney Lance Collins, representing the five Maui residents who filed the complaint, said Cardoza found that three primary issues in the complaint were valid:
But Collins said the judge's ruling does not mean the issue will be going to trial, if the county will agree to restart the process to act on the bills at legally posted meetings providing for full public participation.
"They have to hold a new round of meetings, whether they come to the same decision or not. If the county wants to comply with the law, they will have to do it again," he said.
"At this time, they've pretty much done most of the work of deciding what they are going to do, but to comply with the law, they have to give the opportunity for the people in the public who have something to say to say it; to allow people to persuade them not to move it forward."
However the council deals with Cardoza's order, the representative for Honua'ula Partners LLC said it won't stop the developer's work. Preparing detailed plans and documents for the next step in the process will take months of additional engineering and design work in any case, said Charlie Jencks, who handled the zoning application before the county over the past four years.
"We still have a lot of work to do to prepare for the Phase II application for project district approval. This just means we can't pull any permits under the zoning, and we aren't prepared to do that now. We have months of work ahead of us anyway, and we're just going to continue on with this process."
The complaint, filed by Daniel Kanahele, Warren Blum, Lisa Buchanan, James Conniff and Cambria Moss, was based on deliberations in the Land Use Committee that were initiated on Oct. 18, 2007, as well as the vote to approve at a Feb. 14 meeting.
Under the state sunshine law, public testimony must be accepted at every meeting of a public board or agency on matters on the panel's agenda.
With hundreds signing up to speak on the Honua'ula zoning bills, the committee attempted to prevent a continuing series of daily public presentations by having its meetings recessed rather than adjourned, to be continued on another day. Under the law, new public testimony is not required for a meeting that has been recessed rather than adjourned.
But the lawsuit challenged the legality of recessing and continuing a meeting on 13 days spread over two months. It also raised a more serious question of legality of discussion of materials that were not presented at the original Oct. 18 meeting and should have constituted grounds for a new agenda and a new meeting.
The complaint also cites actions by council members during a series of sessions in February when the County Council prepared to act on first reading, with the meeting opening on Feb. 8, recessed to Feb. 11 and recessed again to Feb. 14.
Collins said council members distributed written memorandums on proposed amendments that were circulated outside of the meetings.
"It's not so much an absolute violation of the Sunshine Act when they circulate memorandums when they are at a meeting, but the violation is they communicated with each other outside the meetings when they were supposedly in recess," he said.
Tavares said that recessing multiday meetings and introducing evidence in writing are common ways of expediting all kinds of county business.
"This could have serious implications for how government does business," she said.
