NOTICE OF APPEAL AND REQUEST FOR
CONTESTED CASE, filed by: Maui Tomorrow
Foundation, Inc., South Maui Citizens for
Responsible Growth and Daniel Kanahele
In the Matter of: Decision of County of Maui
Public Works Director David Goode to Issue
Mass Grading Permit Numbers: G2012/0030
and G2012/0039
Affected Landowner and Properties: Pi`ilani
Promenade North, LLC, TMK No: (2) 3-9001-
016; and Pi`ilani Promenade South, TMK
Nos.: (2) 3-9-00-117, 171, 172, 173 & 174
APPELLANTS’ NOTICE OF APPEAL
Appellants Maui Tomorrow Foundation, Inc., South Maui Citizens for Responsible Growth, and Daniel Kanahele (“Appellants”), through their attorney Tom Pierce, Esq., hereby give notice of their appeal of a decision of David Goode, in his capacity as the Director of the Department of Public Works, County of Maui. This Notice of Appeal is filed pursuant to sections 12-801-79, et seq., of the Department of Planning, Board of Variances and Appeals, Rules of Practice and Procedure for the Board of Variances and Appeals (“BVA Rules”).
I. INTRODUCTION
This is an appeal of the Director of Public Works’ decision to issue grading permits to developers for two major retail shopping centers that will cover 68 acres of land mauka of Piilani Highway in North Kihei.
The Director issued the grading permits even though the retail shopping center use clearly violates the 1995 Hawaii Land Use Commission order which encumbers the land and expressly limits the permitted use to light industrial. The proposed retail shopping center also violates the current light industrial (M-1) zoning for the property, and is inconsistent with the current light industrial (LI) community plan designation for the property. Discovery is ongoing and additional legal issues may be presented.
The difference in impacts to the public from the retail use versus light industrial use may be seen by the traffic impacts alone. The Land Use Commission approved the light industrial project on the understanding that it would generate on average 4,800 trips per day. In comparison, the retail project will, according to the developer, generate 38,000 daily trips per day.
Appellants have been, and will continue to be, substantially harmed by the Director’s decision. Appellants have standing to bring this appeal, as well as the right to a contested case hearing pursuant to the Maui County Charter, the Hawaii Revised Statutes, and the BVA Rules, as set forth in further detail below.
The Director’s decision to issue the grading permits must be reversed by the Board of Variances and Appeals because it is based on clearly erroneous facts and law, is arbitrary and capricious, and constitutes a clearly unwarranted abuse of discretion.
A grading permit should not be issued until the developers submit a proposed use that is consistent with the 1995 LUC Order, zoning, and community plan, or, alternatively, until the developers have gone through the required planning process, including a review and new order by the Land Use Commission, county rezoning, and a community plan amendment.
Download entire Notice of Appeal
Mark Hyde’s Explanation of Pi’ilani Promenade illegalities and problems