Lahaina News | February 24, 2023
HONOKOWAI — The Hale Mahina Beach Resort, a condominium complex in Honokowai, has for more than 45 years managed to avoid, evade, resist and refuse to comply with required beach access regulations stipulated in their 1977 agreement with the County of Maui. That agreement gave them the go-ahead to build their resort structures fronting one of Maui’s loveliest beaches.
In Hawaii all beaches are public, but from Dec. 19, 1977 until today, the condo has never completed a shoreline access path, never put up an identifying access sign or provided the required steps to the beach for the use of the public.
From that day to this, the County of Maui has paid scant attention to the ongoing violations spanning more than four decades. The complex only received its first Notice of Warning (NOW) on Jan. 23, 2023. So far, Hale Mahina has not paid a penny in fines and continues not only to deny public access to the shore but also to harass, cite and intimidate those who try to use the beach in front of the condominium, according to neighborhood residents who took legal action to compel compliance.
The story of how one small but determined vacation resort was allowed to privatize a public beach is a tale worth telling. And as one might suspect, the story has many twists and turns.
THE STORY UNTIL NOW
On Dec. 17, 1977, Toshi Ishikawa, then planning director for the County of Maui, wrote to a representative of the leasehold condominium complex that would eventually become the Hale Mahina Beach Resort informing him that the Maui Planning Commission had unanimously approved their request for a SMA (Special Management Area) permit to construct a four-story, 52-unit apartment condominium project (TMK (2) 4-3-006:041-0000). This SMA, with specific additional conditions attached, was the critical document enabling the project to build their leasehold complex on beachfront land owned by the George Fujiwara Trust(s) in Honokowai.
Two specific access conditions were stated in that 1977 letter:
- That the proposed public beach right of way shall be set aside by easement in favor of the county of Maui/maintained as part of the … resort and publicly identified by the standard Maui County Beach ROW sign mounted on a 4 in. by 4 in. redwood post.
- That said beach right of way shall be paved and aesthetically improved through the addition of irrigation and landscape planting and that stairs shall be incorporated at the existing sea/retaining wall for public access to the beach.
Since 1977, Hale Mahina Beach Resort, located at 3875 Lower Honoapiilani Road, has never fully complied with either of those requirements and has systematically stalled, evaded and denied the public access to the shoreline.
Additionally, it has harassed and cited those members of the public who did attempt to exercise their rights.
In 2019, legal action instituted by the shoreline protection organization Na Papa’i Wawae ‘Ula’ula resulted in a settlement agreement.
Hale Mahina did partially fulfill a portion of the 2019 settlement agreement by clearing the easement along the property line between Hale Mahina and its neighbor Hoyochi Nikko, but that path is not yet paved, it lacks signage and it is essentially a trail to nowhere. It only goes up to the edge of the existing seawall, and there it ends with fencing on all sides. The drop from the end of the path to the beach is a distance estimated at 12 to 18 feet. Because beach sands ebb and flow depending on the season, sometimes the distance from the top of the sea wall to the shore below is greater, and sometimes less.
The required stairs have yet to be started.
As Debbie Lei Taniguchi Uli’i, a long-time neighbor who lives directly across the street, wrote in her Letter to the Editor recently published in the Lahaina News, “FINALLY cleared and opened after YEARS and YEARS of promise. Only to be terribly disappointed, distressed, crushed, aghast to discover that this path ends with a railing that STOPS access to the beach, to the ocean; CAN only look, but No CAN touch the beach, the ocean. AGAIN, NO ACCESS, NO TRESPASSING, STAY OUT.”
“I squeeze between the railing and the wire fence (being respectful to not cause any damage) to get to the other side and lower myself with rope 10-12 feet.”
(The next time), “I return eagerly for another swim a few days later and find the wire fence zip-tied to railing which does not allow me to squeeze through to the other side to lower myself to the beach below. The only way now, as I see, is to climb OVER the 4½ feet railing to get to the other side. This is an obstacle that makes it so difficult and dangerous for this 70-plus-year-old wahine. I am dismayed, I am angry. But I WILL find a way!”
The Lahaina News spoke with a number of other long-time area residents. All of them used words like “disturbed,” “frustrated,” and “angry” to explain how they felt about being shut out.
WHAT DID THE COUNTY DO?
It was only in November 2020 that the Hale Mahina Apartment Owners Association (AOAO) received its first written communication from the county reiterating the need to comply with the original 1977 terms and 2019 settlement agreement, and this only in connection with a request from the condominium for a painting permit. That communication gave them until December 2022 to complete the path.
That letter was later rescinded.
In a communication dated Oct. 22, 2021 over the signature of Jordan Hart, then deputy planning director, an appointed position, the resort was granted permission to paint, but only mentioned the fulfillment of the beach access requirement in passing and dropped all reference to the settlement agreement.
Hale Mahina painted its buildings. It did not fulfill its shoreline access requirements.
FIRST WARNING FROM THE COUNTY IN JANUARY 2023
It was not until Jan. 22, 2023, approximately a year and four months later, that the AOAO received their first Notice of Warning (NOW) again over the signature of Jordan Hart. He was now serving in the civil service position of planning program administrator heading ZAED (Zoning Administration and Enforcement Division) of the Maui County Planning Department. The warning advised the AOAO if they did not take necessary measures to fulfill the original 1977 requirements, they would face stiff fines and possible civil and criminal enforcement actions.
According to the warning letter: “…civil fines for the violations will be an initial fine of up to $100,000, and a daily fine of up to $10,000 for each day the violation continues.” The letter went on to extend the date by which the AOAO must file “all necessary land use applications” to implement conditions 7 & 8 to no later than Oct. 1, 2023, an extension of more than eight months.
Asked about the extension, Hart said that because all of the remaining compliance is in the shoreline area — and there are many complicated rules that govern what is allowed — he felt that the extension was the minimum time needed for the AOAO to complete the necessary paperwork. Beyond that, if no further difficulties were encountered, he estimated that it would be at least another year-and-a-half and perhaps several years longer until the stairs were actually built.
WHAT DOES THE HALE MAHINA AOAO SAY?
As of February 2023, the complex has not complied with either the initial 1977 requirements or fully fulfilled the terms of the 2019 settlement agreement.
The Lahaina News asked Charles J. Ianello, president of the Hale Mahina AOAO, for his comments on the situation.
In an e-mail dated Feb. 13, 2023, he wrote, “I have recently received information from the County of Maui Planning Department that a revised letter regarding the issue you are seeking a response or comment is being prepared and mailed. I have not received the letter as of this date. Therefore, I do not have a response or comment at this time. If and when I receive the revised mailing from the Planning Department, I will be happy to review it along with advice from legal counsel. At that time, I will consider what type of response to make to your questions. I look forward to reading your article.”
WHAT DO THE PEOPLE WHO BROUGHT THE LEGAL ACTION SAY?
Kai Nishiki was not so reticent: “Meanwhile, fishers can’t fish. Surfers can’t surf. Our children can’t swim in the ocean while tourists enjoy a de facto private beach,” she said.
“It’s pay to play. Unless I can afford to stay at the condo, I can’t use the beach.”
Nishiki, an area resident who has long been active in trying to obtain beach access, chairs the West Maui Community Plan Advisory Committee (WMCPAC) and is also the spokesperson for Na Papa’i, the group that brought a legal challenge and obtained a 2019 settlement. She mentioned that she and her children had been cited by the police in 2106 when they attempted to use the beach.
Prior to taking legal action, Naā Papa’i circulated a petition in 2017 with over 2,000 signatures objecting to the situation. Her comment then was: “We used to fish, surf and dive along here for many years and now access is completely gone. Private property owners have recently installed fencing and hired surly managers to call the police on any trespassers/intruders.”
Today she says, “We’re tired of being treated like second class citizens.” She made her comment standing at the end of the dead end path that ended in a fence looking down on a rocky shore. She gestured to the many people surfing and on paddle boards, but from where she stood there was no way to get to the water.
Nishiki also made comments critical of Hart: She noted that before he joined the county in 2019, he had been for many years a private planning consultant. She commented, “It appears Jordan Hart’s advocacy as a private planner for resorts trying to limit public shoreline access has continued during his government service. Before entering public service, Hart represented Days Inn Hotel in South Maui that took away a large portion of our public access parking at the Keawakapu Beach Reserve.”
“In 2019, after being appointed deputy director, Mr. Hart was made aware of the conditions of the 1977 SMA.” She said that during Hart’s tenure as deputy planning director, “Hale Mahina was never fined for this non-compliance. Rather, it required the community to sue to obtain its public access.”
She went on to say that in 2020, instead of enforcing the original 1977 conditions or the 2019 settlement, Hart took further action that extended Hale Mahina’s timeline. At that time, he failed to issue a Notice of Warning (NOW) or Notice of Violation (NOV), nor were any fines or penalties imposed.
“While we are hopeful that the threat of daily fines will motivate resorts to comply with their obligations regarding public access going forward, the community should not be required to have to file lawsuits and multiple requests for assistance… to get the county to take action,” she said.
WHAT NEXT?
As for a faster way forward, Nishiki suggested Hale Mahina could install a ladder or allow use of the existing staircase on their own property as an interim measure.
On Feb. 13, Lahaina News visited the Hale Mahina beachfront and confirmed that they did indeed have a very serviceable ramp and stairs leading from their grassy sunbathing area down to the ocean. These steps appeared to have been in place for many years. They also had locked gates at all entrances. Each gate had a sign which read: “Private Property, for owners and guests only. Please keep gate closed. Mahalo! Room key required to enter/exit.”
Privately, both sides express the hope that this matter will come to the attention of Maui’s new mayor, Richard Bissen, a retired judge, who may be willing to use the stature of his office and his years of experience on the bench to come to a faster, more equitable resolution.
(This is Part 1 of a two-part story. Part 2 will run in the March 3 issue of the Lahaina News. It will review actions and comments by the Maui County Planning Department and other public officials, and also contains comments by the lawyer for Na Papa’i.)
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