NAPILI — The County of Maui has issued a Notice of Warning to Developer Greg Brown for a makai wall at a controversial home under construction at 5385 Lower Honoapiilani Road in Napili, because the wall was built without any permits.

County Planning Director Michele Chouteau McLean noted in an e-mail: “Brown submitted an after-the-fact SMA (Special Management Area) assessment for the wall, and we are still processing it.

“Before we consider issuing any approvals for the wall, we will conduct a compliance inspection of the rest of the property and the structure. If we find any noncompliance, then we will take appropriate enforcement action and not issue any approvals for the wall until compliance is achieved. To date, the only SMA violation is the wall, but we have not conducted a compliance inspection of the structure yet.”

She reported that the county has not seen any violations of Napili Bay Civic Improvement District (NBCID) building restrictions, which were updated last year.

“Some of the changes to the NBCID zoning will apply to the Brown property, and some will not. The changes to height will not apply because the permits for the structure were issued before the change was adopted. But the changes that prohibit new vacation rental use will apply because the use has not yet been established on the site.”

Applicant Napili Beach House LLC was granted a county SMA Exemption to build a new two-story, 7,483-square-foot, single-family dwelling with swimming pool, ground catchment and landscaping outside of the Shoreline Setback Area.

Napili resident Chris Salem last week sent a letter to Pat Lindquist of the Napili Bay and Beach Foundation, McLean, members of the County Council and other county officials challenging the size of the structure.

“While there is a laundry list of violations by Brown Development on both the spirit and specific language of the adopted SMA laws, we can look no further than issued SMA Exemption to find a clear misrepresentation which is grounds for revocation. This structure is NOT less than 7,500 square feet, which is the threshold for ‘single family home’ exemptions,” he wrote.

“In violation of Title 19 of the Maui County Code, the developer failed to account for the square footage on the third level. In fact, they listed on their attached plans a ‘Gross Interior Area: 3,567 SF.’ This misrepresentation is for the second level floor area,” the e-mail continues.

Lindquist was on vacation on the Mainland last week. She said the Napili Bay and Beach Foundation Board of Directors will review Salem’s e-mail and decide if they want to respond.

“We have been crystal clear from the get-go what we see as errors in the SMA exemption designation and implications,” she wrote.

A major issue for area residents is the new building’s height. To preserve views and the character of the area, the former Napili Bay Civic Improvement District restrictions limited structures to two stories — typically up to 20-25 feet high.

Brown’s attorney, Jeffrey Ueoka, explained the controversy over the building’s height in a June 25, 2021 letter to the County Council.

“We believe the misunderstanding regarding the height is based on the fact that the design standards of the zoning district simply limit structures to two (2) stories, without a specific height limit. The home per the County-approved construction plans exceeds 35 feet, when including the elevator and stairway shafts, however it is not more than two (2) stories, and therefore is in compliance with the zoning,” he wrote.

“Greg, at his own expense and at the Planning Department’s urging, recently had a licensed surveyor confirm in writing that the as-built height of the building today is under 35 feet. However, if Greg moves forward with construction of the rooftop amenities, stairways, and elevator shaft, as permitted by the County approvals, the height will exceed 35 feet. Greg is willing to redesign the home minimizing the protrusions above 35 feet to see-through type railings, the elevator shaft, and minimal rooftop utility/support structures, provided he is granted assurances that the home will be allowed to be utilized as a vacation rental as allowed by the current zoning.”

Acting on input from the Napili Bay and Beach Foundation and area residents, the Maui County Council amended the language of the Napili Bay Civic Improvement District last year.

Now, no new structures in the district can exceed two stories and 30 feet in height, and no new short-term rentals are allowed in the district. All existing businesses may proceed as usual.