This map shows the site of proposed construction of a homeless encampment and commercial campground on 7.9 acres of a 22.9-acre parcel of agricultural land located at Hokiokio Place and the Lahaina Bypass in Lahaina. PHOTO BY SUSAN HALAS.

LAHAINA – By a vote of 6-1, the State Land Use Commission (LUC) granted the Petition for a Declaratory Order in reference to proposed construction of a homeless encampment and commercial campground on 7.9 acres of a 22.7-acre parcel located at Hokiokio Place and the Lahaina Bypass. This decision says that any action to proceed with these campgrounds in the State Land Use Agricultural District requires a District Boundary Amendment.

The hot potato issue of homeless and transient camping near the busy highway in an agricultural zone at the gateway to Lahaina was first put forward in June and August 2014 by the nonprofit Ho’omana Foundation appearing before the Maui County Planning Commission. It continued until mid-2015. According to Kurt Wallenhaupt, a planner with the County Planning Department who is assigned to this project, the property was owned by Kauaula Land LLC, and Peter K. Martin was identified as manager.

At the time the matter was before the Planning Commission, the campgrounds were vigorously opposed by neighbors – both those immediately adjacent to the site and those nearby in Puamana, an upscale gated community only a short distance away.

In the months that followed, the proposal built a substantial file in the Planning Department and in hearings before the Planning Commission. There it was heard as a request for a special use permit in June and July 2015. At that time, the Planning Commission took no action, but the file on the application remained active.

Almost a year later, the venue had shifted to the State LUC, where on Feb. 24, 2016, friends and foes of the campsites and associated proposed use appeared before the commission. Approximately 40 people attended the meeting, including the members of the public giving testimony, parties to the action and their legal staff, and the press. Seven of the eight commission members and LUC staffers were also present at the Haynes Meeting Room of the Maui Arts and Cultural Center in Kahului.

The LUC vote followed nearly three hours of public testimony, legal arguments and intense questions and answers from members of the commission addressed to those who testified and lawyers for the various interests. The outcome will require those who want a change of use for the land to file for a District Boundary Amendment (DBA), probably from the state, rather than continue to seek a special use permit in hearings before the Planning Commission.

Voting to authorize the more rigorous boundary amendment process were Commissioners Linda Estes, Nancy Cabral, Jonathan Scheuer, Edmund Aczon, Arnold Wong and Chad McDonald. Voting against the measure was Kent Hiranaga, a Maui resident who holds the Maui designated LUC seat. The vote came in favor of a DBA after Hiranaga’s motion to dismiss died for lack of a second. Commissioner Aaron Mahi was absent.

At the Feb. 24 LUC meeting (where an equally thick set of documents was also accumulating as docket DR15-54), the County Planning Department was represented by Deputy Corporation Counsel Michael Hopper. He said that the right to decide whether or not such a permit can or should be issued is a county function and supported his claim with a number of legal citations. Agreeing with the county in that position was attorney Brian Yee representing the State Office of Planning. Yee also cited a number of laws that would appear to give the edge to the county in deciding the matter. Yee said that because the parcel is small, within the 15-acre limit for a special use permit, and he did not find a prevailing attempt to “circumvent” the established rules, his office’s interpretation was that the county should have the decision making authority.

This opinion and related items were disputed by Deborah Wright, attorney from the firm of Wright & Kirschbraun, representing those opposing the project and listed on the agenda as Pu’unoa H.O.A. and Devonne Lane.

Wright made a number of points that appeared to be telling with the commissioners. Perhaps the strongest one is that overnight camping in prime agricultural lands identified as either “A” or “B” is a use that is expressly prohibited by the law. This parcel is classified as Ag “B.”

Other subjects she raised included that the site is not suitable or appropriate for the intended use, and that the home for the manager of the campground was put down as an “agricultural dwelling” while, she suggested, in reality no agricultural connection existed.

She also pointed out that although the actual area seeking a change of use is small – two acres for the campgrounds and 5.9 for the “garden” – the site is part of a larger parcel, and that piece of land at 22.7 acres is above the 15-acre limit. (To qualify to apply for a special use permit from the county, the area has to be under 15 acres.)

She also noted that no real agricultural commitment of any kind had been expressly stated in any application, although some had been implied. She said the words “may” and “might” for areas that could be designated for gardening were not requirements. This kind of vague language indicated that the future agricultural use, if any, might well be discretionary and would be hard to monitor or evaluate.

Further, she said that it would also be difficult to compel homeless campground residents, who were described as “transitional” in nature, to work in the “possible” gardens, and that it would be equally unlikely that those staying in a recreational commercial campground would be eager workers of the soil.

Instead, she suggested that the proposal is an exercise in “spot zoning,” an attempt by local developers – who had promised ag use on ag land – to subvert that use and get a foot in the door in a busy area with a commercial campground and leverage that into a larger scale commercial use.

As the meeting progressed, the commissioners stressed that the question before them was not about merits of the campgrounds, its location or viability. What they were considering was a procedural question of how the application should be processed. As the discussion by the lawyers unfolded, it also became clear that something like a turf war between the county and the state was emerging as to who had jurisdiction to grant or deny the project, and whether a special use permit or a more rigorous District Boundary Amendment should be the vehicle.

The ensuing discussion also split a variety of legal hairs on whether “not-permitted” cited in one statute meant the same thing as the word “prohibited” in another, and which was stronger and took precedence.

At the conclusion of discussion, commissioners were given options on how they could vote and what their votes would mean. In the end, their decision was to opt for requiring the District Boundary Amendment sought by Wright and those who opposed the campgrounds. Because of the size of the parcel and other technicalities that affected the process, it was not clear at the end of the meeting whether it would be the county or the state that would handle the DBA process should the nonprofit foundation seeking the campgrounds decide to continue to pursue their efforts.

Despite objections from attorney James Geiger representing the Ho’omana Foundation, the commissioners declined to hear a petition from the foundation seeking to intervene, saying that since the decision for the District Boundary Amendment had been made, the point was moot.