A group of Lahaina residents is seeking a creative path forward after fighting an affordable housing project for seven years only to win at the Hawaii Supreme Court but have little recourse because the development has already been built.

Billed as the first primarily affordable housing community to be built in West Maui in 40 years, the 203-unit Kahoma Village was constructed on the last undeveloped parcel on Lahaina’s Front Street with families starting to move in last year.

A group of concerned Lahaina residents known as the Protect and Preserve Kahoma Ahupua‘a Association had tried to intervene in 2014 when the Maui Planning Commission approved a developer’s application for a permit to build Kahoma Village.

The neighbors wanted a contested case hearing before the commission to address whether the current storm drain system would be able to accommodate the affordable housing development. They also had concerns about potential impacts on Hawaiian cultural and gathering rights, beach access, traffic congestion, property values, open space, the coastal ecosystem and the tsunami inundation zone.

But the planning commission denied the group’s intervention and green-lighted the developer’s permit application. So the neighbors took their grievances to court.

Earlier this month the Hawaii Supreme Court upheld a decision by the Intermediate Court of Appeals when it ruled unanimously that Maui County planners erred in permitting Kahoma Village while exempting it from adhering to the state Coastal Zone Management Act. The CZM Act, among other things, would have required the development to adhere to a West Maui Community Plan that’s intended to guide a region’s character and inform policy decisions about land use, parks and infrastructure.

The court also found that the group of residents had a constitutional right to intervene in the Maui Planning Commission proceedings, and that the commission violated the residents’ right to due process by not allowing them to participate.

The ruling invalidates Kahoma Village’s county permit to build. The problem, however, is that Kahoma Village has already been built.

Lance Collins, attorney for the residents that won before the Hawaii Supreme Court, said the victory was a somewhat hollow one since the project has already been built. 

Lance Collins, attorney for the Protect and Preserve Kahoma Ahupua‘a Association, acknowledged that it’s unlikely any buildings will be removed.

“This was actually something that came up during the Supreme Court oral argument earlier this year,” he said. “The justices were wondering, ‘Well, now what?’ because since it’s already been built the range of policy solutions that are available has narrowed, obviously.”

But it’s still possible, he said, to find alternate ways to satisfy some of the design changes that the neighbors would have sought if the county planning commission had heard their petition.

For example, Kahoma Village has 1.5 acres of noncontiguous park space for its residents to enjoy. But the West Maui Community Plan, which the project circumvented, requires the development to include a six-acre park.

Collins said he would like to see the developer compensate for this lost recreational space by creating a 4.5 acre park elsewhere in Lahaina town since there’s no longer room for more park space on the Kahoma Village parcel.

“I think there is statewide importance here.” — Attorney Lance Collins

The state Office of Planning, which oversees the CZM Act, said it is reviewing the Supreme Court opinion and deferred comment on the situation until it consults with the state’s Attorney General.

Maui County Communications Director Brian Perry would not make any county employees available to discuss the Supreme Court ruling, but he said the county is reviewing it and weighing its options.

Developer Stanford Carr did not respond to requests for comment for this story.

The Supreme Court ruling could also have broader implications for fast-tracking affordable housing projects across the state.

Clearing up a longstanding ambiguity, the court ruled that county councils don’t have the authority to exempt fast-track affordable housing projects from the CZM Act. (Although, in this case, the council did not seek to do so; rather it approved the affordable housing project on the condition that it comply with all ordinances and statutes).

In an effort to expedite the construction of affordable housing amid a statewide deficit, state lawmakers in 2006 passed a measure that allowed qualifying affordable housing projects to bypass certain planning and zoning statutes and ordinances.

Common exemptions have allowed apartments to be constructed in a residential district or have overhead utilities instead of underground utilities in a rural area.

But it had been unclear whether one of these so-called 201H affordable housing projects could be exempted from compliance with the CZM Act, a comprehensive series of state regulations aimed at protecting the environment and resources of shoreline areas.

“I think there is statewide importance here,” said Collins. “Because what the Supreme Court basically said is there’s no indication that the Legislature intended to allow anybody to exempt a project (from the CZM Act).

“There’s quite a number of projects over the years, at least on Maui, where this issue has come up but it hasn’t been addressed because nobody’s really paying any attention,” he said. “But hopefully not anymore now that the Supreme Court has given it clarity.”

In this unique case where the Lahaina affordable housing project has already been built, it’s up to the attorneys for the residents, the developer and the county to agree on alternative design solutions to satisfy the residents’ concerns.

Collins said the clash between developer and neighbors was not merely a classic case of NIMBY, or not-in-my-backyard.

“My clients said — when they represented themselves in front of the planning commission — they repeatedly said, ‘We do not want to kill this project. You just need to make changes to address our concerns,'” he said.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

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