By CHRIS HAMILTON, Staff Writer

WAILUKU - As its financial future remains blurry, Maui Land & Pineapple Co. took steps Thursday toward formally handing over control of its beach-access points, parking lots and restrooms to its independent partner, the Kapalua Resort Association.

However, ML&P was unsuccessful, for now at least, in a controversial request for a subdivision variance before the Maui County Board of Variances and Appeals. The nine-member board barely had a quorum Thursday and deferred the request after a 3-1 vote in favor.

The board needs at least five yes votes to pass an item, and its members decided to put the Kapalua Bay Park Subdivision item on its Dec. 10 agenda. But board members didn't do it without hearing an earful from residents questioning the flailing company's real intent with the 2.4-acre property that includes the Kapalua Bay beach and Merriman's Restaurant at One Bay Club Drive.

A nonprofit environmental group with four board members, the West Maui Preservation Association, with the help of attorney Lance Collins, attempted and failed to intervene in the case. If the intervention had been granted, the variance request could have been sent before a hearings officer, who would take testimony, interview witnesses and then render a report to the board.

The board voted unanimously to deny intervention, with a few of its members saying they know nothing about the environmental group, its basis to intervene and whether its motion was timely. ML&P was represented by attorney Paul Horikawa, who formerly advised the Board of Variance and Appeals for the county.

Collins said he has clear-cut legal precedent on his side and alluded to an appeal in the courts.

But the would-be intervenors, as well as some neighbors and other residents, questioned why ML&P would go the variance route, rather than take up its request with the General Plan Advisory Committee or Maui County Council.

Collins and GPAC Vice Chairman Dick Mayer, who said he was speaking on his own behalf, accused ML&P of circumventing County Code in order to get what equates to a community plan amendment.

"This is just a subdivision on paper," ML&P development coordinator for community development Yarrow Flower told board members in the Planning Department conference room. "If we were truly looking at selling the land, we would clean up the zoning.

"We have no intention of developing this area," she said.

Flower stated that the Kapalua Resort Association simply has much better resources at this time than ML&P to care for the public-access areas. She said the organization of homeowners and businesses for years has been caring for the beaches and infrastructure at Kapalua, Namalu and Oneloa bays on the west side.

ML&P also plans to reaffirm its agreements with the county to manage and maintain the access trails, parking lots and restrooms at D.T. Fleming Park and with the association to pick up garbage at Mokuleia and Honolua bays, which don't have restrooms or paved parking, Flower said.

As for the zoning issues, the community plan and zoning ordinance have two maps for the area with designations that don't match up with boundaries marked public/quasi public, residential, open space and commercial.

"The variance doesn't really vary anything," Flower said, adding that the beach access can't be changed, and ocean setback laws put in place since the restaurant was built in 1977 prevent new development on the site.

However, neighbors such as Paul Engler seriously doubted ML&P's statements. He said he doesn't buy that ML&P has no plans to sell Merriman's, which has only been in existence for a couple years, Engler said. The building sat vacant for years, he said.

And as for the Kapalua Resort Association, Engler said it does a poor job of caring for what it's got, noting that some of the shower heads rarely function properly.

"Who is the Kapalua Resort Association?" Engler asked, echoing a similar question posed by board members about the West Maui Preservation Association.

Flower said that the association is very stable and has been supported by its owners since it was put together in the 1970s.

* Chris Hamilton can be reached at chamilton@mauinews.com.

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