The Maui News | December 4, 2018
By COLLEEN UECHI, Staff Writer
Cardoza also rules against some of plaintiffs’ counts
A 2nd Circuit Court judge determined Monday that shoreline hardening plans for the Hololani condominiums should have required an environmental assessment, and that county officials did not take that into account when approving changes to the condos’ plans.
Judge Joe Cardoza ruled in favor of Na Papa’i Wawae ‘Ula’ula and the West Maui Preservation Association — which had filed a lawsuit to stop the project — on two of six counts, though the groups saw it as a victory on Monday.
“For the community groups’ perspective, this is vindication for what they’ve been saying,” attorney Lance Collins said. “The judge did not rule in favor of the more technical procedural claims. But that doesn’t take away from the fact that he ruled in the plaintiffs’ favor in the gravamen, or central point of these cases, that there wasn’t sufficient environmental review.”
However, Cardoza ruled against the community groups in another case involving Hololani and the state Board of Land and Natural Resources.
Na Papa’i Wawae ‘Ula’ula and the West Maui Preservation Association had filed a lawsuit in July against Maui County, then-Planning Director Will Spence and the Hololani condo association, claiming that Spence should not have approved changes to Hololani’s shoreline hardening plans.
Hololani has long dealt with shoreline erosion problems, and in February 2007, the state Department of Land and Natural Resources authorized the condos to install emergency sandbags and erosion blankets for three years — after Hololani initially put up an illegal structure. The emergency permit had been reauthorized three times as of May 2014.
In June 2014, the Maui Planning Commission approved Hololani’s plans for a 400-foot seawall that would include a sloped revetment extending into the ocean and backed by sheet piles. But because the seawall would encroach onto the state-owned shoreline, Hololani had to get the state Legislature’s approval for an easement.
When the Legislature did not make a decision during the most recent session, Hololani sought Spence’s approval to modify the project. Only sheet piles would be installed instead, and the sheet piles would be moved from the state shoreline onto Hololani property. The existing sandbags would remain.
Spence approved the sheet-pile project changes, which he described as “a minor realignment,” and said that the project was still in compliance with the plans presented to the commission.
“We are also comfortable that this modification is not larger than the original project, will have less of an impact on the environment, and falls within the scope of the special management area and shoreline setback approvals granted by the commission,” Spence said in a June 29 letter to Stuart Allen, president of the Hololani board of directors.
However, Collins argued that the commission, not Spence, should have made the decision. Collins said it was a new project and should thus require a new environmental assessment.
The plaintiffs also claimed Hololani was constructing on state land without authorization and that the state needed to go through a rule-making process before determining its landward boundary — counts that Cardoza did not rule in favor of.
However, Cardoza did determine that the project needed a new environmental assessment.
“I think this is a big win for the Kahana community and transparency in government, and that backroom deals by developers are not to be tolerated and that there’s a process to follow so that the community is informed,” said Kai Nishiki, organizing member of Na Papa’i. “I am glad that Judge Cardoza saw that the developers were looking to circumvent the process and that we need to follow the law.”
Maui County spokesman Rod Antone declined comment Monday. Attorneys for Hololani could not be immediately reached for comment Monday evening.
Allen said in an email Monday that “Hololani is pleased that the court dismissed the entirety of one case against the AOAO project and that four counts in the second case have been dismissed.”
“As the judge acknowledged, he expects the AOAO will move to reconsider the unclear results in the remaining two counts,” Allen said.
In a second case involving the state Board of Land and Natural Resources, Cardoza ruled in favor of the board and Hololani.
On March 23, the board had deferred action on Hololani’s time extension request for a conservation district use permit for shoreline erosion control. The board denied a request for a contested case proceeding from a group of West Maui residents and community activists.
Na Papa’i Wawae ‘Ula’ula, the West Maui Preservation Association and Kahana fisherman Felimon Sadang appealed to the Maui Environmental Court on April 5, saying that the board improperly denied their request for a contested case and asking the court to block construction of the Hololani seawall until there was “compliance with all applicable laws.”
Collins said that Cardoza “went through a detailed analysis” of the case and said that “he didn’t feel the Sunshine Law required that the land board put the denial of the petition for the contested case request on their agenda.”
“We’re disappointed with results of the state (case) because we do believe that the land board didn’t comply with the Sunshine Law,” Collins said.
Collins said Hololani had expressed plans to go back to the Legislature “and try to get approval for the part of the project that they believe is on state land.”
* Colleen Uechi can be reached at firstname.lastname@example.org.