WRITTEN TESTIMONY: CHRISTOPHER SALEM
RE: CONSTRUCTION ON LOWER HONOAPIILANI ROAD (NAPILI)
Dating back to the shores of Montana Beach, citizen driven complaints have revealed a pattern of abuse of discretionary authority and negligent administration of the delegated duty to uphold the Shoreline Management Area (“SMA”) rules and environmental laws pursuant to HRS §205A. Millions of dollars of citizen driven complaints and costly legal disputes in Maui County have been the direct result.
Two decades later, the damaging pattern continues right before our eyes along the pristine shores of Napili Bay. The massive Brown development, which citizens were denied of their rights to public hearings and environmental preservation, was exempted from SMA by the staff of the Planning Department. Director Michele Mclean alleges she would not have issued the exemption despite her name being signed by a staff member on the SMA Permit exemption.
Consequently, questions and debates have arisen about where the duty lies to ensure the adopted SMA rules are honored and enforced. Allegations have been made that Planning Department has the “sole authority” to enforce violations of environmental rules adopted by the Maui County Planning Commission. The County Charter speaks otherwise. The Supreme Court ruling this week raises serious questions of whether the County Council should replace the Planning Commission as the SMA rule making authority.
At a community protest meeting in Napili attended by Planning Director McLean and Deputy Planning Director Hart, the citizens were informed that the decision to issue a SMA Permit violation notice to Brown Development would be a collective one between the Mayor, Corporation Counsel, Planning Director, and the County Council.
A summary of the alleged violations and false representations by the Developer Brown is attached. For the record, this violation summary was forwarded to Mayor Victorino, Council Member Tamara Paltin, the Chair of the Council Planning Committee, and Planning Director Mclean. No County from official either branch of County government has responded to a written request to review and opine on the findings and conclusions. Local attorneys, representing the impacted property owners and community members, have agreed with the findings and conclusions.
Which raises a parallel question; When a questionable act or decision by a Director or Department is discovered, under the Maui County Charter, which branch of government is responsible for an investigation of citizens’ or County employee complaints and to declare whether the decisions are consistent with adopted County laws and ordinances?
How can our County Council just stand by as the Planning Dept. allows Greg Brown to continue construction on his Monster Hotel in Napili, knowing full well that the community's rights under the Coastal Zone Management Act were violated in the same manner as the Supreme Court just ruled happened at Kahoma Village?
In order to get an exemption from SMA permits and avoid community review, Brown's project was originally submitted as a single-family home. By ordinance, single-family homes on Maui can be no taller than 30ft.
A letter Planning Director McLean sent Greg Brown on March 12th warns: “If the structure is used for any purpose other than a single-falimy home, the basis for the Department’s SMA exemption would be invalidated and, therefore, the SMA exemption would be rescinded.”
Brown’s structure has two separate wings each with 4 bedrooms with full baths and walk-in closets and two of everything; two full kitchens, two pools, two hot tubs, two "media rooms" with full baths and walk-in closets, two “dens” with full master baths and walk-in closets, two living rooms, two dining rooms, two staircases, with a central lobby and elevator for ADA compliance, and it towers almost 50 ft above original grade. The plans show just under 7,500 sq ft of living space which is just under the limit for allowed SMA exemptions, but there’s an additional 2000 sq ft that are unlabeled on the plans. No professional I have shown the plans to consider this a single-family home.
.
If the project continues, because our rights had been violated yet again, citizens will eventually sue and win, just like we did at Oluwalu, Montana Beach, Palama Drive and now at Kahoma, and by then the County will be financially liable.
Our charter forbids the County Council from telling a Department Director specifically how to do their job but, to mitigate financial loss, the charter does empower the Council to investigate and determine whether a Director is abiding by existing ordinances.
If a violation is determined, what could a Director do but accept responsibility and make their own choice to correct it? That’s how our Charter sets the checks and balances to protect the community.
Unfortunately, this is the exact point where Corporation Counsel typically intimidates Council Members by claiming if they initiate any action that ultimately determines that a Director did act outside their authority it will expose the County to litigation and that they will be "on their own" to defend themselves if, as individuals, they are held personally responsible for any resulting settlement costs. Several past Council Members have personally told me about Corp Counsel’s intimidation, including Mike Victorino.
The resulting settlement costs from future litigation will only grow every day that Greg Brown’s project is allowed to proceed. Rescinding the exemption now so the losses fall to those consultants paid to violate their professional stamps and not the County, is our best course of action today.
Government Relations, Ethics and Transparency Committee Meeting
June 29, 9AM
Testimony provided by Nick Drance
GREAT-36 CC 21-242
I attended the meeting with residents and Michelle McClean and her Assistant Director. A couple of us videotaped the meeting which you may be interested in seeing. Here are the takeaways I got.
Obstacles to an action plan are:
• The Planning Department needs specific suggestions from residents (which could also be our elected representatives) on solving the problem.
They might be:
• The structure should be torn down.
• The structure should be lowered to the official height limit.
• The developer must make changes that guarantee to the county that the structure will only be used as a residence and no part of it would be used as a short-term rental.
Penalties
• Some believe that the developer deliberately deceived the Planning Department, essentially submitting misleading fraudulent plans. If a review of the plans and any subsequent changes reasonably indicate that fraud occurred, appropriate legal action should be taken.
Solutions
Personally, my suggestion would be to immediately form an agreement with the developer to engage in independent mediation and let the mediator make a determination on these issues. Otherwise, some form of a stay order might be created so that no further work can be done until the County investigates the matter, which would likely take 2-3 years.
The standard penalty should be applied.
In any case, no one is above the law. It became clear to me from my standpoint, that the management and organization of the Planning Department as it exists today, de facto enables some developers to game the system. Obviously most developers don’t do this, but I have a feeling that when it happens, sometimes it an egregious violation.
Will this happen again?
Case in point is while in that meeting we learned that the staff member involved was on leave, the Department Director indicated that she was unaware of the situation. She indicated that the number of staff members in the department, made it oversight on every permit impossible. That essentially means there are actually countless Department Directors able to function independently. This is an untenable situation.
That causes another problem. The Director indicated that the potential cost of litigation cost to taxpayers plays a major role in determining the way forward. This means that a developer can deliberately deceive the County knowing that there is a good chance that something less than 100% conformity to the law is possible and likely. If a developer is caught doing the wrong thing, he or she to some extent, holds the cards.
I’ve been told that an audit of the Department has been requested by some several times, to no avail. The current thinking by many is that not only will there be many situations like this but that currently, there likely exists others. All of this is problematic however, it should be noted again, that no one is above the law and if we let something slide in one area but not the other, we are complicit. There must be a safeguard against impropriety or clerical errors that result in significant consequences.
Law Office of
Bradley D. Salter
24 Malialani Place, Lahaina, HI 96761
Phone: (808) 298-7873 - Fax: (808) 669-0800
Licensed in California and Hawaii since 1978
June 16, 2021
Dear Committee Members;
I am writing regarding to oppose the issuance of the building permit and exemption of the SMA, the obvious breach of public trust that has arisen over the SMA exemption and the Developer “Brown’s” obvious mis-application and possible, intentional misrepresentation of the facts surrounding that exemption.
The action that should be taken is to revoke the permit and remove the construction at Mr. Brown’s expense for the reasons I have enumerated below:
The SMA exemption and building permit should not have been granted based on the following;
1. While the property is in a Hotel District, it is zoned Residential therefor, Residential Zoning limitations including height limits, must apply.
2. In order to build what Mr. Brown has attempted, he would have had to apply for a zoning change to Hotel Zoning which likely would have triggered an SMA and other requirements and no doubt been under greater scrutiny. Had the developer’s architects respected that this property is not zoned Hotel without going through the change in zoning perhaps this would not have happened. Does some responsibility fall upon the Architects who stamped the plans?
3. Residential height limit is 30 feet. Mr. Brown has attempted and misled the Planning Department in his application to believe that he is entitled to build to the Hotel zoning height of 45”.
4. Another neighbor had the property under contract and attempted to rezone the property several years ago to allow for hotel zoning, to no avail and they spent upwards of $1million in the attempt to do so and his plan was rejected.
5. The home was obviously not built as a second home and it is obviously and apparent that the home was built with the idea of putting as many heads on beds as possible and in doing so, violates the Maui County Regulations for zoning of this type.
Even Mr. Brown’s attorneys have indicated that this home was built for Vacation Rental and that was not applied for in his permit application.
6. For all of the above reasons, this home is completely inappropriate in this neighborhood, is in opposition to the Napili Community Plan and is a blatant attempt to usurp County Regulations to suit Mr. Brown’s own agenda.
WRITTEN TESTIMONY: CHRISTOPHER SALEM
RE: CONSTRUCTION ON LOWER HONOAPIILANI ROAD (NAPILI)
Dating back to the shores of Montana Beach, citizen driven complaints have revealed a pattern of abuse of discretionary authority and negligent administration of the delegated duty to uphold the Shoreline Management Area (“SMA”) rules and environmental laws pursuant to HRS §205A. Millions of dollars of citizen driven complaints and costly legal disputes in Maui County have been the direct result.
Two decades later, the damaging pattern continues right before our eyes along the pristine shores of Napili Bay. The massive Brown development, which citizens were denied of their rights to public hearings and environmental preservation, was exempted from SMA by the staff of the Planning Department. Director Michele Mclean alleges she would not have issued the exemption despite her name being signed by a staff member on the SMA Permit exemption.
Consequently, questions and debates have arisen about where the duty lies to ensure the adopted SMA rules are honored and enforced. Allegations have been made that Planning Department has the “sole authority” to enforce violations of environmental rules adopted by the Maui County Planning Commission. The County Charter speaks otherwise. The Supreme Court ruling this week raises serious questions of whether the County Council should replace the Planning Commission as the SMA rule making authority.
At a community protest meeting in Napili attended by Planning Director McLean and Deputy Planning Director Hart, the citizens were informed that the decision to issue a SMA Permit violation notice to Brown Development would be a collective one between the Mayor, Corporation Counsel, Planning Director, and the County Council.
A summary of the alleged violations and false representations by the Developer Brown is attached. For the record, this violation summary was forwarded to Mayor Victorino, Council Member Tamara Paltin, the Chair of the Council Planning Committee, and Planning Director Mclean. No County from official either branch of County government has responded to a written request to review and opine on the findings and conclusions. Local attorneys, representing the impacted property owners and community members, have agreed with the findings and conclusions.
Which raises a parallel question; When a questionable act or decision by a Director or Department is discovered, under the Maui County Charter, which branch of government is responsible for an investigation of citizens’ or County employee complaints and to declare whether the decisions are consistent with adopted County laws and ordinances?
How can our County Council just stand by as the Planning Dept. allows Greg Brown to continue construction on his Monster Hotel in Napili, knowing full well that the community's rights under the Coastal Zone Management Act were violated in the same manner as the Supreme Court just ruled happened at Kahoma Village?
In order to get an exemption from SMA permits and avoid community review, Brown's project was originally submitted as a single-family home. By ordinance, single-family homes on Maui can be no taller than 30ft.
A letter Planning Director McLean sent Greg Brown on March 12th warns: “If the structure is used for any purpose other than a single-falimy home, the basis for the Department’s SMA exemption would be invalidated and, therefore, the SMA exemption would be rescinded.”
Brown’s structure has two separate wings each with 4 bedrooms with full baths and walk-in closets and two of everything; two full kitchens, two pools, two hot tubs, two "media rooms" with full baths and walk-in closets, two “dens” with full master baths and walk-in closets, two living rooms, two dining rooms, two staircases, with a central lobby and elevator for ADA compliance, and it towers almost 50 ft above original grade. The plans show just under 7,500 sq ft of living space which is just under the limit for allowed SMA exemptions, but there’s an additional 2000 sq ft that are unlabeled on the plans. No professional I have shown the plans to consider this a single-family home.
.
If the project continues, because our rights had been violated yet again, citizens will eventually sue and win, just like we did at Oluwalu, Montana Beach, Palama Drive and now at Kahoma, and by then the County will be financially liable.
Our charter forbids the County Council from telling a Department Director specifically how to do their job but, to mitigate financial loss, the charter does empower the Council to investigate and determine whether a Director is abiding by existing ordinances.
If a violation is determined, what could a Director do but accept responsibility and make their own choice to correct it? That’s how our Charter sets the checks and balances to protect the community.
Unfortunately, this is the exact point where Corporation Counsel typically intimidates Council Members by claiming if they initiate any action that ultimately determines that a Director did act outside their authority it will expose the County to litigation and that they will be "on their own" to defend themselves if, as individuals, they are held personally responsible for any resulting settlement costs. Several past Council Members have personally told me about Corp Counsel’s intimidation, including Mike Victorino.
The resulting settlement costs from future litigation will only grow every day that Greg Brown’s project is allowed to proceed. Rescinding the exemption now so the losses fall to those consultants paid to violate their professional stamps and not the County, is our best course of action today.
Government Relations, Ethics and Transparency Committee Meeting
June 29, 9AM
Testimony provided by Nick Drance
GREAT-36 CC 21-242
I attended the meeting with residents and Michelle McClean and her Assistant Director. A couple of us videotaped the meeting which you may be interested in seeing. Here are the takeaways I got.
Obstacles to an action plan are:
• The Planning Department needs specific suggestions from residents (which could also be our elected representatives) on solving the problem.
They might be:
• The structure should be torn down.
• The structure should be lowered to the official height limit.
• The developer must make changes that guarantee to the county that the structure will only be used as a residence and no part of it would be used as a short-term rental.
Penalties
• Some believe that the developer deliberately deceived the Planning Department, essentially submitting misleading fraudulent plans. If a review of the plans and any subsequent changes reasonably indicate that fraud occurred, appropriate legal action should be taken.
Solutions
Personally, my suggestion would be to immediately form an agreement with the developer to engage in independent mediation and let the mediator make a determination on these issues. Otherwise, some form of a stay order might be created so that no further work can be done until the County investigates the matter, which would likely take 2-3 years.
The standard penalty should be applied.
In any case, no one is above the law. It became clear to me from my standpoint, that the management and organization of the Planning Department as it exists today, de facto enables some developers to game the system. Obviously most developers don’t do this, but I have a feeling that when it happens, sometimes it an egregious violation.
Will this happen again?
Case in point is while in that meeting we learned that the staff member involved was on leave, the Department Director indicated that she was unaware of the situation. She indicated that the number of staff members in the department, made it oversight on every permit impossible. That essentially means there are actually countless Department Directors able to function independently. This is an untenable situation.
That causes another problem. The Director indicated that the potential cost of litigation cost to taxpayers plays a major role in determining the way forward. This means that a developer can deliberately deceive the County knowing that there is a good chance that something less than 100% conformity to the law is possible and likely. If a developer is caught doing the wrong thing, he or she to some extent, holds the cards.
I’ve been told that an audit of the Department has been requested by some several times, to no avail. The current thinking by many is that not only will there be many situations like this but that currently, there likely exists others. All of this is problematic however, it should be noted again, that no one is above the law and if we let something slide in one area but not the other, we are complicit. There must be a safeguard against impropriety or clerical errors that result in significant consequences.
Mahalo nui,
Nick
Law Office of
Bradley D. Salter
24 Malialani Place, Lahaina, HI 96761
Phone: (808) 298-7873 - Fax: (808) 669-0800
Licensed in California and Hawaii since 1978
June 16, 2021
Dear Committee Members;
I am writing regarding to oppose the issuance of the building permit and exemption of the SMA, the obvious breach of public trust that has arisen over the SMA exemption and the Developer “Brown’s” obvious mis-application and possible, intentional misrepresentation of the facts surrounding that exemption.
The action that should be taken is to revoke the permit and remove the construction at Mr. Brown’s expense for the reasons I have enumerated below:
The SMA exemption and building permit should not have been granted based on the following;
1. While the property is in a Hotel District, it is zoned Residential therefor, Residential Zoning limitations including height limits, must apply.
2. In order to build what Mr. Brown has attempted, he would have had to apply for a zoning change to Hotel Zoning which likely would have triggered an SMA and other requirements and no doubt been under greater scrutiny. Had the developer’s architects respected that this property is not zoned Hotel without going through the change in zoning perhaps this would not have happened. Does some responsibility fall upon the Architects who stamped the plans?
3. Residential height limit is 30 feet. Mr. Brown has attempted and misled the Planning Department in his application to believe that he is entitled to build to the Hotel zoning height of 45”.
4. Another neighbor had the property under contract and attempted to rezone the property several years ago to allow for hotel zoning, to no avail and they spent upwards of $1million in the attempt to do so and his plan was rejected.
5. The home was obviously not built as a second home and it is obviously and apparent that the home was built with the idea of putting as many heads on beds as possible and in doing so, violates the Maui County Regulations for zoning of this type.
Even Mr. Brown’s attorneys have indicated that this home was built for Vacation Rental and that was not applied for in his permit application.
6. For all of the above reasons, this home is completely inappropriate in this neighborhood, is in opposition to the Napili Community Plan and is a blatant attempt to usurp County Regulations to suit Mr. Brown’s own agenda.
Respectfully Submitted
/Brad Salter/
_____________________________________—
Brad Salter
Please see attached written testimony.