KAHULUI - Maui County's director of planning testified Thursday that he believes the developers planning two large retail centers and 250 affordable housing units in Kihei have not violated land-use conditions imposed on the property.
Planning Director Will Spence was called as a witness in the state Land Use Commission's ongoing "show cause" proceedings to determine whether the projects are in compliance with 20 conditions the body imposed in 1995 when granting a land reclassification Kihei project from agricultural to urban.
"It's the county's position that there has been no breach of any of the conditions," he said.
This north Kihei lot along Piilani Highway shown Thursday was the subject of a state Land Use
Commission hearing the same day in Kahului.
This is the planned site for a total of 700,000 square feet of retail space to be built to Eclipse Development Group.
The Maui News / MATTHEW THAYER photo
Spence's testimony is key because as director of planning for the county, he has a statutory obligation to enforce orders by the Land Use Commission.
At issue in the case is whether any of the LUC's conditions have been violated since the property changed hands and plans have shifted from a proposed 123-lot light industrial subdivision under former landowner Kaonoulu Ranch to two large shopping centers totaling 700,000 square feet of retail space under California-based Eclipse Development Group.
Also proposed on the site is an affordable housing project Honua'ula Partners wants to build there tied to its master-planned luxury golf community of the same name past the end of Piilani Highway as it exists today.
A challenge from community groups South Maui Citizens for Responsible Growth and Maui Tomorrow Foundation and Kihei resident Daniel Kanahele prompted the Land Use Commission to revisit the site's approvals.
The groups contend that the developments now being proposed are substantially different from what Kaonoulu Ranch represented to the LUC. The developers have not formally petitioned the commission to proceed with their projects.
Asked by Maui County Deputy Corporation Counsel Jane Lovell how he reached his opinion, Spence said none of the conditions on the property limit the amount of commercial or retail activity that can take place on the 88-acre parcel. He also noted that apartments are a permitted use within the county's light-industrial-zoned districts.
"When I look at the decision and order, I see no such specific condition that says only light industrial, or a (required) percentage of light industrial, or (limiting the) amount of commercial," Spence said. "There's no specific condition on that."
He cited, as an example, a condition the Land Use Commission placed on the Maui Business Park Phase II project in Kahului, limiting the amount of commercial use there.
"If we do not have explicit conditions . . . I can't tell if there's a breach or not," Spence said.
Joel Kam, an attorney for landowners Piilani Promenade and Honua'ula Partners, argued the point that if Spence can't tell if there's been a breach, how would a landowner "reasonably ascertain" from the LUC order whether or not retail and apartment housing uses are prohibited.
Speaking broadly, Spence described Maui's existing light industrial subdivisions as a "hodgepodge of different uses."
He cited the Lahaina Gateway shopping center and Maui Marketplace as examples of retail centers in light-industrial-zoned districts, as well as Iao Parkside and Opukea at Lahaina as examples of residential projects with housing uses on light industrial lands.
Charlie Jencks, a representative for both Eclipse Development and Honua'ula Partners, also testified Thursday that he believes the projects being proposed are allowed uses.
Asked why the landowners never went back to the Land Use Commission to seek approval to build retail and affordable housing on the site, Jencks said he didn't feel it was needed.
"Based on the simple reading of the (decision and order), it seemed to me . . . that we were entitled to build the use we were proposing - the housing and the retail center," Jencks said. "I took the time to look at the (Kihei-Makena) Community Plan and the (decision and order) and the zoning and deliberately scheduled meetings with the mayor, the director of planning, the deputy director of planning (at the time) to discuss what it is that we were proposing . . . (and) to ask the specific question, is this something that comports with your interpretation of these documents. And the response was yes."
Jesse Souki, director of the state Office of Planning, has previously argued that the matter before the commission is "not whether the proposed project today is consistent with county zoning and other county entitlements," but rather "about whether the proposed project is substantially compliant with the findings of fact, conclusions of law, and decision and order issued more than 17 years ago on Feb. 10, 1995."
Given the parcel's light-industrial zoning, Jencks agreed that "certainly, there needs to be a light industrial component."
He shared a new commitment by Eclipse that at least 125,000 square feet of space on 11.5 acres would be dedicated to what he called a home-improvement-center-type tenant, such as The Home Depot. But, he said, no lease agreement or tenant has been lined up yet.
Jencks testified that Eclipse is "ready to go in the very immediate future" and estimated that it would take about two years for the retail centers to be completed and open for business.
He said the company has posted a cash bond with the county for $22 million for the needed infrastructure improvements for the project. That includes:
* $2.3 million for roadway improvements and the first segment of the long-planned Kihei-to-Upcountry highway.
* $1.4 million for Piilani Highway widening improvements.
* $4.8 million for a 1 million gallon domestic water tank that would be dedicated to the county to serve north Kihei. The retail center and affordable housing units would use about 20 percent of the tank's capacity, Jencks said.
He noted that Eclipse would not fund the improvements should its retail development be halted.
The LUC is scheduled to resume its proceeding at 8 a.m. today at the Courtyard by Marriott Maui Airport hotel in Kahului.
LUC Chairman Kyle Chock said once the evidentiary hearing portion of the case is completed, the proceedings will move on to oral arguments by the parties and eventually to deliberation by the commission.
* Nanea Kalani can be reached at firstname.lastname@example.org.