Lahaina homeless and recreational campgrounds issue soon to be heard in court
WAILUKU – I have a dirty little secret: I love lawyers. The more lawyers, the better I like it. I am always happy when I’m assigned to cover the State Land Use Commission (LUC), because that means there will be lawyers… and more lawyers… and yet more lawyers.
The LUC is a nine-member, quasi-judicial body that presently has eight seats filled and one vacancy. It is the agency that has the authority to change the classification of land from one category to another. Most frequently here in Hawaii, that change is from “agriculture” to “urban.” Most of the time the things that come before the LUC involve large amounts of land and major proposed development, but not always.
Back on Feb. 24, the LUC heard a kind of manini (small) item that involved just a little bit of agriculture land near the entrance to Lahaina. This dealt with issues related to the proposed construction of a homeless encampment and commercial campground on 7.9 acres of a 22-acre parcel located at Hokiokio Place and the Lahaina Bypass (Docket DR15-54).
At that time, the parties for and against this change got deeply involved in procedural questions: who had the jurisdiction over whether it could be used partly as a homeless campground, partly as a recreational campground and partly as a garden?
The lawyers for the county and the state argued that it was really something that should be decided by the County of Maui through a special use permit. The lawyer for the the nearby Pu’unoa Homeowners Association and DeVonne Lane (who opposed the change) argued “no.” Since campgrounds were explicitly forbidden on ag land by state law, it couldn’t be decided by the county; it should be decided by the LUC using a district boundary amendment.
When the LUC voted on Feb. 24, it was 6-1 (with one absent) that the LUC had jurisdiction, and if there were going to be changes to the use of this parcel, it would be via a district boundary amendment.
And so the matter was decided… or so it seemed.
Then in mid-April, the LUC agenda came out for April 20, a meeting to be held on Maui only about 60 days after the Feb. 24 meeting.
Surprise! The exact same item, the exact same docket number (DR15-54) was listed. This little matter and all of its ramifications were back on the agenda for “rescission,” a fancy word that means reconsideration.
But nobody seemed to know how it got there.
Nobody at the LUC would say for the record – not Riley Hakoda, the LUC’s chief clerk, and not Dan Orodenker, the commission’s executive officer. He replied by e-mail that it would be “inappropriate” to comment.
The lawyers for the landowner, the homeowners, the county and the state all said they had not asked for it.
When the April 20 proceedings got underway, attorney Deborah Wright of the Wailuku firm of Wright & Kirschbraun spoke first. Wright had previously represented the homeowners (she had won the vote the last go round, 6-1). She pointed out tersely that since the February meeting, the lawyers for the landowners had filed an appeal in circuit court, so that “as a point of law,” the LUC no longer had jurisdiction over the matter. She cited the law.
She also cited the LUC’s own rules (specifically sections 15.15.84 and 15.15.100) that put timelines and deadlines on LUC actions. She pointed out that those dates had passed. So, she said, by law and by their own rules, the LUC was not authorized to reconsider, because they did not have jurisdiction.
A similar opinion was expressed by Dawn Apuna, a deputy state attorney general representing the Office of State Planning. The court, she said, had jurisdiction, but the court could, if it wanted to, remand it (send the matter back) to the LUC.
Michael Hopper, a deputy corporation counsel representing the County of Maui, argued the other side. He said the LUC could reconsider its own prior action if they desired. But, he said, since he had only received the matter under discussion the day before, he unfortunately had no points of law to back up his opinion. So it was just that – his opinion.
Then the six members present went into executive session to be advised by their own attorney, Diane Erickson, a deputy state attorney general. They stayed in the room for a very long time.
There was a glass door, and those waiting outside could see a lot of earnest discussion going on among LUC members and staff – standing up, sitting down, walking around, waving of hands, all private.
When it was all over, the six commissioners voted unanimously (6-0) that the LUC had no jurisdiction
Asked how she felt when it was all over, Wright, who prevailed for a second time, said, “I am relieved.”
Out in the parking lot when it was all over, Hopper was asked how the item had gotten back on the agenda in the first place. He replied, “You tell me.”
He added that the next installment of the drama will play out in the courtroom of Second Circuit Court Judge Rhonda Loo. So far, as he knew, no date had yet been set. The county, he added, will not be party to the suit.
Nobody asked just how much this do-over cost the taxpayers.
So, the Lahaina News asks, how much did it cost to fly over six commissioners, the clerk, executive director, and multiple other LUC staffers, as well as staff from the Office of State Planning, a stenographer to take word-for-word testimony, not to mention the cost to those involved in the prior decision, who again had to show up with their own legal representatives to comment on the mystery agenda item, and then to unanimously decide the LUC had no jurisdiction?