Lahaina News | March 3, 2023
By Susan Halas
Summary, Part 1: In Hawaii all beaches are public, but some properties attempt to evade the rules. Hale Mahina Beach Resort in Honokowai has become the symbol of long- delayed and incomplete shoreline access enforcement. Public access with a paved path, sign and stairs were all specific conditions of the original Special Management Area permit granted to the beachfront condo complex in 1977. The condo did create a path as part of a settlement agreement in 2019 with the community group Na Papa’i Wawae ‘Ula’ula, but that path leads to a fenced overlook, not to the beach.
Hale Mahina has never fully complied with any of the public access requirements. It has never paid any fines.The first Notice of Warning (NOW) was only issued in January of 2023.
Effectively, the beautiful white sandy beach and ocean activities taking place in front of it are still reserved exclusively for the residents and guests of the condo, and the public has been shut out. After more than 40 years, there still is no shoreline access.
(For Part 1 of this story, read the Lahaina News front page article dated Feb. 23, 2023 or visit www.lahainanews.com.)
Part 2: Enforcing Public Shoreline Access
After decades on the back burner, the Hale Mahina hot potato has landed on the desk of Jordan Hart, 44, chief of zoning enforcement for the County of Maui. He is the county official responsible for overseeing the long-delayed shoreline access compliance at the oceanfront condominium complex in Honokowai. His official job title is Planning Program Administrator for the Zoning Administration and Enforcement Division (ZAED).
His father, Chris Hart, was a former Maui County planning director, and later, he founded a private planning consulting firm in Wailuku called Chris Hart & Partners (CH&P). Jordan Hart worked in that firm for 14 years from 2005 to 2019. During that period he bought the company and ran it for seven years. CH&P did work for some of the largest and best known real estate and tourism clients in Maui County.
In December of 2018, he was recruited by the Victorino administration to serve as deputy director of the Planning Department. He started the job, an executive appointed position, in February 2019.
In July 2020, he left the deputy post to become planning program administrator for ZAED, a civil service post. In this capacity he reports to Acting Planning Director Kathleen Aoki and serves as the chief enforcement officer for the Planning Department. When it comes to enforcement of shoreline access violations, the buck stops with him.
Hart took time to speak with the Lahaina News on the phone and in person. He answered many questions sent by e-mail in writing. He was patient and took pains to try to explain a complicated situation in an understandable way.
“Enforcement is complaint-driven in Maui County,” he wrote in an e-mail. “The most direct path to compliance is also prioritized over punishment. There are exceptions for violations constituting health & safety concerns and for transient vacation rental violations.”
In person he reiterated, “Our primary goal is compliance.”
Though he has only been in the public sector a few years, Hart is well-versed in the many complex rules and regulations, notices, warning and violation procedures, and he is very familiar with the circumstances surrounding Hale Mahina. He was not able to comment on why enforcement wasn’t resolved under prior administrations. Asked why the first Notice of Warning (NOW) was only issued in January of this year, he replied that it was only then that it became apparent to the department that meetings, discussions and other methods weren’t working.
Questioned about why he then gave the offenders an extension from January until October, Hart estimated it would take nine months to prepare the documents needed to obtain the necessary authorizations. He also estimated another 18 months under a best case scenario to get the approvals to build the steps, because the shoreline area is governed by many strict and complicated rules. He did not say how long it would take to actually build the steps.
The warning states that noncompliance can result in a Notice of Violation (NOV) and an initial fine of up to $100,000 and daily fines of up to $10,000 a day for each day the violation continues. So far, no fines have actually been imposed.
“There is no overnight way of doing it,” Hart said.
“The threat of the fine is the hammer we use to make them do it.” But in reality, he explained, fines in these kinds of situations quickly become huge, running to hundreds of thousands of dollars, giving the property more incentive to fight it in court than to comply. He also mentioned that his office has been given legal advice stressing “reasonableness” — that the actions that he now takes must give sufficient notice and be “reasonable.”
However, Hart made it clear, “If they do not comply, action will be taken.” Hart said that last month, he met with the Hale Mahina AOAO and the property manager. He also will be giving notice to the Fujiwara Trust, owners of the property.
The way Hart sees it, the condominium AOAO and property owners have limited options: they can comply with the terms of the 1977 SMA or show proof that they have been exempted from those requirements.
“We have looked closely,” he said, “and so far we have not found any proof of exemption and we don’t believe it exists.” If the issue evolves to a Notice of Violation (NOV), the AOAO and trust would have the ability to appeal to the Maui Planning Commission, the county body with jurisdiction over the special management area.
No matter which option the AOAO and trust takes, Hart said he intends to “pursue it all the way. It might take a long time, but it will be done correctly.”
In a later e-mail, he wrote, “We work hard every day to establish and maintain land use compliance on all issues received with the people and resources we have. While the process and issues can be tense and unpleasant at times, we do our best to treat the people we interact with, with respect and fairness.”
Even if it’s slow, “it’s a win,” commented attorney Lance Collins
“If they’ve been issued a Notice of Warning (NOW), that’s great news,” wrote Lance Collins, the attorney who represented Na Papa’i in the legal action that resulted in the 2019 settlement agreement.
“Remember, this has been going on for over 40 years, so if we get the stairs in three years. That’s a win. The new rules are not the enemy. Those rules are designed to protect the shoreline, so it’s actually better in some respects that the stairs be put in under the new rules to ensure that the stairs themselves don’t become a cause of further erosion.”
But looking at it from a different angle, he commented, “Of course, there is always the outstanding question of why, if it’s a condition of (the original 1977) permit to be built, why they’d have to get another permit to build it?”
As for the need for “reasonableness” and the extended timeline outlined by Hart, Collins wrote, “The county notified Hale Mahina in 2020 regarding non-compliance. Waiting until 2023 to issue the first warning doesn’t seem reasonable. Small business owners and homeowners are usually given 30 days to take action. I’m sure everyone would love three years plus nine months.”
Paltin: Hale Mahina is not the only shoreline issue on the West Side
Tamara Paltin, who represents West Maui on the County Council, has been monitoring the conditions at Hale Mahina for a long time. Though Hale Mahina is in the cross hairs right now, it is not the only West Side property with shoreline issues, she said, mentioning Kahana Sunset and Honokeana Cove.
But, when it comes to enforcement, she’s not sure the council has authority. “It’s strictly on the administration; it’s an impeachable offense (for the council) to tell their workers what to do.”
She said, “the council can offer resolutions, can try to budget additional funding for compliance officers, and can help to keep the issue in the public eye through media.”
Her own observation was that because enforcement is complaint-driven and staff and administration change over the years, many things fall through the cracks.
Currently there is no way for the public to track the many special conditions that run with permits. Some of them, like the Hale Mahina situation, go back decades. She wondered aloud if it might be a good idea to add a section to the property tax records (www.mauipropertytax.com) where shoreline access requirements and similar stipulations would be attached to public records and be more readily accessible.
She noted that the Planning Department has a hard time recruiting workers in zoning enforcement, and that there is quite a bit of turnover because it can be a difficult, unpleasant job “and the pay is low.”
Paltin was hopeful that more members of the public who have specific complaints would make use of the Request for Services (RFS) procedure the county uses to initiate enforcement (see story on filing a complaint below).
Mum’s the word from the Hale Mahina AOAO
On Feb. 17, the Lahaina News sent a follow up e-mail to Charles J. Ianello, president of the Hale Mahina AOAO, asking for comment by the deadline for this issue. So far no response has been received.