The Honorable Wayne Hedani and Members

VIA Fax: (808) 270-7634

August 4, 2009

The Honorable Wayne Hedani, Chair and Members Maui Planning Commission Kalana Pakui Building 250 South High Street, #200 Wailuku, HI 96793

RE: Comments Regarding Directed Growth Strategy Element and the Revised Land Use Element of the Draft Maui Island Plan

Dear Chair Hedani and Members,

My name is Dave Arakawa, and I am the Executive Director of the Land Use Research Foundation of Hawaii (LURF), a private, non-profit research and trade association whose members include major Hawaii landowners, developers and a utility company. One of LURF’s missions is to advocate for reasonable, rational and equitable land use planning, legislation and regulations that encourage well-planned economic growth and development, while safeguarding Hawai’i’s significant natural and cultural resources and public health and safety.

We commend the Maui Planning Department for their hard work in researching and preparing the draft of the Maui Island Plan (MIP), the Maui General Plan Advisory Committee (GPAC) for their comments, advice and recommendations, the residents of Maui for engaging in the public planning participation process, and to the Maui Planning Commission, for its diligence in holding the many meetings for public testimony on the MIP over six months.

While LURF generally supports the vision, core values and the broad guiding land use principles contained in the MIP, the following is a summary of LURF’s concerns regarding the MIP:  The MIP should serve as a policy guidance document, with broad and flexible guidelines;  The MIP should not be an implementation manual with specific restrictions, standards, prohibitions and limitations – instead, such specifics should be part of the community plan process and The Honorable Wayne Hedani and Members Planning Commission August 4, 2009 Page 2

implemented through various ordinances and county rules and regulations.  The MIP should not be an attempt to architecturally design all of Maui’s communities to be like the mainland.  It will be difficult for the Planning Commissioners to reasonably evaluate projects based on over 200 pages of requirements and prohibitions, etc.  The comments and recommendations of long-time Maui professionals with experience and expertise in agriculture, tourism, housing and education should be included in the MIP.  The new paradigm and framework of the new Important Agricultural Lands (IAL) law should be incorporated into the MIP.  The Corporation Counsel should issue a written opinion which resolves the legal issues relating to specific MIP restrictions on a property owner’s ability to use, modify, enhance or replace their structures and properties. (Important add Makena argument);  The “radical change” of “New Urbanism” and more dense and nulti- level housing units may not be consistent with Maui’s local culture and lifestyle.  Any “radical changes” should initially be implemented on a trial or limited basis in certain areas.  The public, Planning Commission and Council should demand a Report on the “Pros and Cons” of “New Urbanism.”

LURF has many members that are long-time members of the Maui community, and we are interested in working further with Maui County regarding these issues and concerns.

Background. The Maui Island Plan is part of along with the Countywide Policy Plan and Community Plans are part of a “planning hierarchy” that includes the Hawaii State Plan and State Functional Plans as key components. As outlined in his March 27, 2009 memo to the Maui Department of Planning, Maui Planning Director Jeffery S. Hunt, AICP, generally describes the four-fold purpose of the MIP as follows: . Assess existing conditions, trends and issues specific to the Island of Maui; . Provide policy direction for the use and development of land, the extension and improvement of transportation services and infrastructure, the development of community facilities, the expansion of the Islands economic base, the provision of housing, and the protection of natural and cultural resources; . Establish polices to manage change and to direct decisions about future land use and development; and . Provide the foundation for setting capital improvement priorities, revising zoning regulations and developing other implementation tools.

The MIP is intended to be used as a guide to lawmakers for “day to day decision making by doing the following:” . Providing direction for the development of future polices and regulations (e.g. future zoning and other ordinances, future guidelines and area- specific plans that describe what kind of development can occur where); . In some cases, providing policy to help determine the appropriateness of development proposals; and The Honorable Wayne Hedani and Members Planning Commission August 4, 2009 Page 3

. Assigning resources for capital investments and programmatic initiatives.

Furthermore, the Maui Island Plan is anticipated to communicate expectations and preferences “about future development to property, owners, developers, and the business community.”

LURF Comments. LURF provides the following general comments and concerns regarding the current draft of the Directed Growth Strategy element of the draft MIP. LURF’s concerns are based on, among other things, the following:

 Can the Planning Commissions reasonably evaluate projects based on over 200 pages of requirements and prohibitions, etc.? The current voluminous nature of the MIP and the many specific standards, restrictions, prohibitions and limitations will make it difficult for the Planning Commission to do reviews and recommendations for new projects;  The MIP not include the comments and recommendations of long- time and experienced Maui professionals in agriculture, tourism, housing and education. The MIP should incorporate the comments and recommendations made by the stakeholders and professionals with expertise in areas including, but not limited to, agriculture, tourism, housing and education;  The MIP ignore the new Important Agricultural Lands (IAL) law?  Is the “radical change” of “New Urbanism” consistent with Maui’s local culture and style? The MIP appears to be driven by the new development concept of “New Urbanism,” which calls for more dense and multi- level housing units – this concept should be studied further to determine whether it is consistent with Maui’s local culture and lifestyle;  “Radical changes” should initially be implemented on a trial or limited basis. Maui County should take a more measured approach and first implement “New Urbanism” on a trial basis in certain areas;  Resolve legal issues first. The Prior to implementing the new MIP restrictions and prohibitions, the Corporation Counsel should issue a written opinion which resolves the legal issues relating to specific MIP restrictions on a property owner’s ability to use, modify, enhance or replace their structures and properties. (Important add Makena argument);  The public, Planning Commission and Council should deand a Report on the “Pros and Cons” of “New Urbanism.” Before adopting a MIP based on the new planning approach of “New Urbanism,” which will “radically change the ways the county does business,” the public and Maui County decision makers should be provided with an objective study of the pros and cons and examples of successes and failures of the “New Urbanism” approach.

. MIP should be a broad and flexible guidance document which includes the vision, principles, goals, policies, are general recommendations for implementing actions and land use maps to serve as guidelines for policies and regulation of future developments. The MIP should not be an implementation manual with specific restrictions, standards, prohibitions and limitations and description of enforcement mechanisms

. The MIP should not be a regulatory implementation manual, with specific and specific regulatory prohibitions, restrictions, and The Honorable Wayne Hedani and Members Planning Commission August 4, 2009 Page 4

regulations currently contained in the MIP should more properly be included in regulatory ordinances and rules and regulations, instead of the MIP. It appears that the MIP attempts to specifically design all of Maui’s communities, based on currently available information, population projections and assumptions, by including specific Development Standards and Smart Plan Model Assumptions and other detailed restrictions, requirements and enforcement processes. Maui County should not specifically design communities though the MIP, instead, such specifics should be part of the various ordinances and county rules and regulations. The ordinance and rulemaking process is the proper avenue for the implementation of regulatory standards, requirements and enforcement.

. The current voluminous MIP, with detailed standards, assumptions, restrictions, requirements, prohibitions and enforcement processes will make it difficult for the Planning Commission to do reviews and recommendations for new projects. The MIP serve as a simple policy guideline to follow and not as a mandate on the future developments. The policies adopted by the Plan should be broad and allow flexibility among landowners and developers.

. There should be an objective analysis of pros and cons, successes and failures of the radical changes of the “New Urbanism” approach to the MIP. Based on a recent presentation by the Maui Planning Department, The Maui News has reported that the “New Urbanism” approach to the General Plan, MIP and community plans will “radically” change the way Maui County does business” - - Prior to adopting “new urbanism,” the County decision-makers should have an objective analysis of the pros and cons and past success and failures of “New Urbanism.”

. Instead of adopting a MIP based on the new planning approach of “New Urbanism,” the MIP should reflect the comments and recommendations made by the stakeholders and professionals with expertise in areas including, but not limited to, agriculture, tourism, housing and education. We understand that stakeholders and professionals with expertise, including the Maui County Farm Bureau and the Maui Hotel and Lodging Association submitted comments and concerns regarding the MIP, and those comments and concerns are not adequately reflected in the MIP. Before adopting a radically new planning approach of “New Urbanism, “ we would respectfully recommend that the County incorporate the comments and recommendations of these professionals with specific expertise into the MIP.

. “Maui should test drive New Urbanism, before they buy it.” Basing the Maui Island General Plan and the future of Maui County on the new planning concept of “New Urbanism” is a huge decision with major consequences. Instead of radically changing the entire county all at once and implementing strict new laws and requirements based on the “New Urbanism” planning concept - - - perhaps Maui should experiment with New Urbanism on an incremental project-by-project basis.

. Prior to implementing the MIP, major legal issues should be resolved relating to certain new MIP restrictions on a property owner’s ability to The Honorable Wayne Hedani and Members Planning Commission August 4, 2009 Page 5

use, modify, enhance or replace their structures and properties. For years, landowners and businesses have been basing their future plans, financing and expenditures based on the existing land uses shown on the Maui General Plan, Community Plans and zoning. The proposed MIP, however, unilaterally changes the existing land uses of certain areas – such changes are unfair and without reasonable justification. We also understand that the new MIP includes new specific restrictions and prohibitions proposed by the MIP may deprive existing land owners of certain property rights, which may amount to an unconstitutional taking of property by Maui County. We also understand that there has been recent pending and settled litigation with Maui County regarding regulations and enforcement which amount to an unconstitutional taking under the law. We would strongly urge that the Planning Commission and Council require a legal review and written legal opinion regarding the legality of the restrictions, prohibitions and other regulations in the MIP and possible liability of Maui County.

Thank you for the opportunity to express our views on this matter.