Councilmember Rawlins-Fernandez expressed concern that the MRA’s actions could lead to “liability or legal issue”

A meeting of the Maui Redevelopment Agency regarding possible zoning changes to Wailuku Town drew passionate community testimony on Friday, Nov. 15, sparked largely by news of a six-story, 156-room hotel planned for the area at the corner of Market and Main Streets. The changes within the MRA’s draft zoning code amendment include, most notably, a building height limit increase to 82 feet, or six stories, from the current four-story limit, in areas fronting Main, Church, and High Streets (buildings categorized as “Type A Block Face”).

Of the approximately 20 testifiers who stepped to the podium Friday, all opposed the changes, citing reasons ranging from a need for affordable housing (as opposed to hotels) to concerns about preserving the town’s charm and views of ‘Iao Valley, to fears that the increased building heights would chart Wailuku on a Waikiki-esque course.

A rendering of the proposed Wailuku Hotel courtesy Supreme Bright Wailuku, LLC

But Councilmember Keani Rawlins-Fernandez urged the agency to reconsider any zoning changes for a separate reason.

“Member Rawlins-Fernandez would like you to consider the issues and grave concerns regarding the legality of this redevelopment agency and the possibility of further liability or legal issue,” said Trinette Furtado, an executive assistant of Rawlins-Fernandez, who read a statement from the councilmember during the hearing. “This agency’s current path of projects and planning are voted upon by a group of unelected planners and developers, allowing override of the General Plan, Community Plan, and Zoning Ordinance without an ordinance passed by Council or a Charter amendment approved by voters.”

Rawlins-Fernandez’s statement is a direct challenge to the authority of the MRA, an organization that gets its power from a 1949 addition to the Hawai‘i Revised Statutes (HRS). The  so-called “Urban Redevelopment Act,” HRS 53, lets counties create, via resolution, redevelopment agencies empowered to “undertake and carry out urban renewal projects and related activities.”

The Maui Redevelopment Agency is composed of five unelected members, appointed by the mayor and approved by the County Council, who each serve five-year terms. In recent years, its powers have been wide-ranging and consequential, including advising the planning and construction of the Wailuku Civic Complex, providing input on the revitalization of Wailuku,  including changing the zoning code and building rules, and reviewing building permits. The MRA can pass rules and decisions influencing the Wailuku Redevelopment Area with a simple majority (three votes) and the approval of the mayor.

During September’s meeting of the MRA, Wailuku resident Susan Halas noted that this process circumvents the normal procedure for zoning changes and public input, which would include the County Planning Commission and County Council. “I would remind the MRA that there is no other situation in our county where a five-member appointed board can, by the vote of only three of those members and without further review, make changes to the property rights of thousands of area residents,” she said. (Disclosure: Halas has written previously for MauiTime.)

Attorney Lance Collins, PhD. Collins was also the compiler of the 17-volume Proceedings of the Charter Commissions of the County of Maui. Collins does not think the MRA is legal.

When asked for his opinion about the MRA’s legitimacy, attorney Lance Collins responded, “I think the existence of the Maui Redevelopment Agency is not legal, and their exercising the power of zoning is also not legal.”

In 1968 and 1978, he explained, amendments to the State Constitution “strengthened and empowered” County Charters. Before that, it was common for state law to dictate how counties should administer boards and commissions. But, a 1978 ruling held that any state provisions about the administration of the Board of Water Supply, Liquor Control Commission, and Police Commission that conflicted with the Maui County Charter were invalid.

Because of those Constitutional amendments, Collins said, “State law was invalidated because it conflicted with the Charter.”

Applying that logic to the MRA, he added, “How the County decides to administer its land use and planning was clearly spelled out in the Charter. There’s no provision that gives the Maui Redevelopment Agency authority over any of that.”

Further, although the MRA “exists purportedly because of a resolution passed 10 years ago by the County Council… the Charter doesn’t empower the County Council to create agencies by resolution,” Collins said.

If these conflicts between the Maui County Charter and the existence and authority of the MRA are not resolved before further zoning changes, it could “probably expose the county to liability,” Collins said, “if anybody relies on their actions.”

Both Rawlins-Fernandez and Collins agree that a ballot question would need to be introduced at the next election to approve a Charter amendment in order to justify the kind of power the MRA is currently exercising.

The MRA, Nov. 15

County spokesperson Chris Sugidono responded Tuesday to a request for Department of Corporation Counsel’s comment on Rawlins-Fernandez’s testimony. Sidestepping the councilmember’s assertion, Sugidono maintained that the MRA does have the authority to make zoning amendments: “This process is consistent with the Wailuku Redevelopment Plan, which was approved by the Maui County Council in 2000.” Corporation Counsel did not comment.

Rawlins-Fernandez said that she “plans to take this issue up in the appropriate committee – or committees – as soon as possible, where it should legally be considered by the appropriate body elect.”

As for the zoning changes that were the topic of Friday’s meeting, they’ve been postponed pending public input. Whether that will slow down the hotel construction, though, is yet to be seen. Jonathan Starr, who is proposing the “Kama‘aina Business Hotel” on Market and Main, and was present for the stream of community testimony opposed to the hotel and increased height limit, told Maui Now Monday that he plans to apply for a variance from the rules to allow his six-story hotel.

All that stands in his way is the approval of three MRA members and the mayor.

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