Housing and Land Use Committee (2025-2027) - Regular Meeting

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Good morning, everyone. Well, the Housing and Land Use Committee meeting of August 5th, which is now at September 9th, 2026, please reconvene. It is 10.32 AM. Members and people of the public, I apologize for the delay. It's been one heck of a morning. I am the chair of this committee, Nohelani'u'uhajans, members in accordance with the Sunshine Law. Please identify by name who, if anyone is in the room, vehicle, workspace with you today. Minors do not need to be identified. Let's begin with Committee Vice Chair Kaunoi Batongan. Good morning.

Aloha kakahiaka kakou.

Council Member Tom Cook, good morning.

Aloha, good morning. Thank you.

Council Member Gabe Johnson, good morning, and thank you for being with us today. I'm glad you arrived safely.

Thank you, Chair. Good morning, council members, community members. I'm here, ready to work. Thank you.

Thank you. Council Chair Alice Lee, good morning.

Good morning. Aloha, everyone, kākou. And I'm home alone in my workspace. Looking forward to your meeting. Nobody else is here.

Okay, thank you. Council Member Tamarapalton, good morning. I hope your travel here too was okay. I know yesterday you guys took some cracks.

Aloha kakaiaka. I think they were cleaning the high tide up again in the middle of the night, so it was clear.

Thank you. Member Keani Rollins-Fernandez, aloha and good morning.

Aloha kakaiaka, Chair. Hope your morning takes a turn for the better now that you're here with us. I'm at my private residence alone. Mahalo.

Thank you very much. Council Member Shane Sinensi, aloha and good morning.

Here at my home office space, I'm here by myself. No testifiers, no testimony. But I did want to say aloha to my executive, Uncle Don, who's watching the meeting on TV.

Uncle Don. Aloha, Uncle Don. Okay, I feel better now. Thank you, Shane. And Council Member Sugimura, aloha and good morning.

Aloha, good morning. Hi, Uncle Don.

We aloha you, Uncle Don.

Yeah.

From the administration, we have with us the Deputy Planning Director, Anna Lillist, and Gregory Post. We have also the County Real Property Tax Administrator, Carrie Stockwell, Deputy Director of Public Works. May you join us? I forget what you said. Well, he's on call. Okay, great. If we need him, he's there. And we also have with us Deputy Corporation Council, Nahululu Nakawa. Also with us today is our wonderful HRU Committee staff. Good morning, everyone. Please see the last page of the agenda for information on meeting connectivity. Members, the items on our agenda today are Resolutions 26-129 and 26-30, which refer to the Maui Planning Commission proposed bills to amend the Kihei Makena Community Plan and West Maui Community Plan and to change the zoning for certain apartment district properties to H3H4 districts to allow for continued TVR uses. Both items are before us. Oral testimony is closed on both items, but we will continue to accept any written testimony. Before we recess on August 27th, we were considering a motion as amended to set the criteria for properties to be included in Resolution 26129, and the current criterias are the property must have a majority of its structures in the 3.2 Slorexa a special flood hazard area or the shoreline setback area set under the Maui Planning Commission shoreline rules and the property must not have been originally intended for affordable workforce housing. The criteria so far is not final. Again, we were continuing our work on that, but just so everyone can see where we stand, I have distributed an ASF that our wonderful staff worked on. that incorporates the current criteria into the resolution, along with the qualifying properties. We'll continue our discussion on the criteria, including any amendments. Once we finalize the criteria, I will take a recess. If it's needed, it'll probably be needed, so we can identify what properties qualify. Afterwards, we can proceed with a recommendation on resolution 26-129, then we can discuss 26-130. I believe we took that recess and Member Poulton and Member Rollins-Fernandez had proposed criteria as well to discuss. And I'll begin with you, Member Poulton, and then I'll move on to you, Member Rollins-Fernandez, to continue to discuss. So, Member Poulton, please go ahead.

My other proposed criteria in seeing the rebuild of Lahaina it appears as though the county is defending French Street because a lot of our infrastructure is underneath of it. And so my proposed criteria would be Malka of South Kihei Road to qualify, not Makai, but Malka because if the county as we've seen with the recent sinkhole is defending South Kihei Road,

then you know the properties mauka of south kihei road shouldn't be changed for sea level rise exposure area reasons can i can i ask you a question so i can understand so you want the properties only makai of south kihei road to be considered for this resolution not mauka mauka will remain potentially if your amendment passed in apartment Okay, thank you. Discussion? Member Cook, do you have discussion?

Yeah, I'm not supportive of that. Kihei's terrain, the elevations, the impact is pretty well documented on the maps and some of the roads are gonna make it, some of the roads aren't. So anyway, I'm not supportive of that. I think it impacts my community too much and I'd like to stick with the existing criteria. Thank you.

Does anybody, Chair Lee?

A question for Member Palten. Go ahead. So if we supported your criteria, how many properties that are currently on the TIG as well as proposed to be added for exemption would be impacted?

I haven't done that. I haven't done that calculation. Some of the ones on the TIG that were Malka or Makai of South Kihei Road was for different reasons. Right now we're on the Slorexa reason. But regardless, I haven't done it for the Slorexa or for the other ones. It just seemed, as we were doing our site visits for the South Maui Community Plan, and we noticed some of the units were mauka, or some of the lots, I guess that we had been discussing where Malka of the South Kihei Road and we've seen the county defending South Kihei Road with the sinkhole like redoing it and that the infrastructure under there so that was the nexus for seeing Makai of South Kihei Road because In Lahaina, same thing, Front Street, a lot of our infrastructure is underneath of it. And kind of the question on rebuild and not rebuild has been centered around Malka of Front Street and not Makai of Front Street because the county finished their project with the seawall restoration and seems to be letting folks rebuild on the Mauka side and not the Makai side. But I mean, a lot of it also has to do with the state submerged lands and other issues of that sort. So,

And it doesn't matter if a number of the properties that would be affected were never intended to be workforce housing.

It doesn't matter to me because we're not in a TVR crisis, we're in a housing crisis, that's why.

No, but that was the argument used before, previously. to not exempt any property that was intended originally for workforce housing so um i'm still in support of that criteria as well okay all right i have a hard time with that probably won't support it thank you thank you

Can I ask you and probably Member Rollins-Fernandez a favor? Can we maybe discuss your proposed conditions? Take a quick recess so we can do some research. Obviously, we didn't hear this condition before. It's not like we can discuss it. And so at least I can do some research so I can determine how I feel after a little bit of research.

You said I'm totally okay with whatever way you wanted to go, but I just mentioned that one because you said criteria. Yeah. And then I thought we were, there's criteria and then there's proposed condition, but you kind of use them interchangeably.

I kind of did.

I'll be happy to discuss whichever one you want, but my criteria is, that was my one criteria. Proposed condition are different. So whichever, do you want me to just...

Yeah, why don't we just do that and then we can take a quick recess and do a little bit of research for all of us to help our decision-making process and we can come back and vote and then probably take another recess and then they can compile what properties qualify in the criteria and then obviously the conditions will go with. So sure, why don't you give us your conditions as well, and then I'll move on to Member Rollins-Fernandez.

Okay, and so I'll just say it, and if there's clarifying questions, answer it. I have two proposed conditions, and if folks wanna clarify, I'm okay with that, but not discussing, right?

Sure, I guess we can get into a small discussion, but I did want to take a moment at least to do some research, even for our planners and our corp councils and everyone.

Okay. And then my first proposed condition for consideration in the committee report would be if there isn't public beach access. And I'm sorry if I said this already, because... I'm not 100% sure if it got recorded, but public beach access from 8 a.m. to 10 p.m. to the public shoreline would be the first one. I don't think that needs much clarification. The second one, and I can... state my rational nexus, but for those that are transferring from apartment zones to hotel zones to get an updated state-certified shoreline assessment, and my explanation of that is that the state-certified shoreline changes And I don't think that that has been done for a while. It's the average throughout the year of the high wash of the waves. And what it denotes is the difference between private land and public trust lands. And the purpose of it is there are certain laws regarding public trust lands. And there may be things that are encroaching onto our public trust lands as the sea level rises. And we've been talking about managed retreat and other things. The law protects the migration of a healthy beach, and we've been talking about managed retreat. And so... I would like the state certified shoreline assessment to be able to see what is encroaching on our public trust lands for commercial uses and ask that those things within the encroachments be cleaned up and resolved and to document everything that is within 40 feet of the state certified shoreline. and possibly bond everything that would need to be removed when it gets to within 20 feet of the state certified shoreline. If things are within the state certified shoreline, the requirement is to either remove it or get an easement. you can get an easement through the BLNR process, which would allow the public to weigh in on things that are encroaching on our public lands. And so if TVR owners want to continue to make a profit off of our public trust lands, this is what I would ask to be a condition.

Thank you, Member Palten. Can I ask planning real quick? Sorry, Chair Lee, I see your hand is up. How often is a state shoreline assessment required? When does that typically happen for the properties?

Thank you, Chair, for the question. So we typically see a state-certified shoreline come into play when applicants are coming in for a special management area shoreline setback variance or other applicable SMA regulations. So typically it's mostly associated with a special management area permit application.

Okay. Thank you.

chair yes can we have the can we have anybody making proposing any changes put it in writing because this sentence alone is pretty long you know my shorthand is not very skillful and so sure you know we don't we don't want to um misinterpret but you know when we write stuff down we don't want to misinterpret what's being proposed thank you okay thank you um

Did you guys so happen to write it down? I mean, I took the quickest notes, which was to update the shoreline assessment. And then I think she went on to explanation. Yeah, yeah.

Yes, Chair, that's what we have down is the proposed condition to be included in the committee report for the planning commission's consideration would be that the properties must get an updated state shoreline, state certified shoreline assessment.

Okay. And... remove or get an easement of things that are within the public trust lands and to document everything within 40 feet of the state shoreline assessment and to bond what may need to be removed and to remove it when it hits within 20 feet of the state certified shoreline.

Okay, thank you. Thank you.

Before we recess, can I ask Corp Council for guidance on how to think about conditions of zoning? So if I remember correctly, you had previously mentioned that conditions need to be tied to impact. Normally it's a change in zoning and that there has to be some sort of nexus to the action that's being taken. And normally that's, you know, you get a change in zoning so that you can make a development happen. But in this instance, the properties are already developed. So my question is like, when we contemplate these proposals, how do we think about that nexus and what kind of, I don't know, guidelines do we have to be working within as we make or deliberate conditions of zoning? Thank you for the question.

So generally the way it works is that the nexus is between the proposed development or the proposed use. So the impact from that either if it's undeveloped, the proposed development, or if it's a expansion of use from one use to the next, whatever the impact is that the conditions have to be within a rational nexus to that impact and have to have some sort of proportionality to the impact caused by that change in use or new development. that's generally how it's assessed.

Okay, and so in these instances in which they currently have right to utilize these for TBR purposes, we would be changing zoning from apartment to H3 or H4, sorry, I guess A1 or A2 to H3, H4, but they would be continuing to have the same use as what's currently, in practice, are the conditions that are being proposed, I don't know what the, the rational lean nexus, can you help us understand the conversion? Because in my head, this is a paper conversion and that there's no change in existing use. But I don't know if I'm approaching this correctly. and want some clarity as we deliberate on these matters.

So when it comes to how the court evaluates it, it uses this sort of as a balancing tests, so there isn't really a definitive answer across the board. But in this case, I think that since the use is being phased out.

And I guess in terms of timing, does that matter? Because the phase out wouldn't occur for several years, but the change in zoning would occur sooner.

it's hard to say how the the court would actually assess it but i think based on the standard there's generally a decent amount of deference in terms of how council determines so based on your determination, if this is an apartment use that is being rezoned and is getting additional use, um, that may be the way that the court uses to evaluate it. But it's again, it's not a, they do the same thing every time. So I can't really give you a definitive answer on this one, sorry. But that was very helpful, thank you.

Thank you, Chair.

Thank you. Go ahead, Member Palten, I see your hand is up.

Thank you. This specific reso is talking about changing the zoning due to sea level rise exposure area, which is kind of like a moving target, even though we have maps for 3.2, and the county can authorize use on private lands but not public lands and so it's my assertion that we need to the certified shoreline to know where that permitted boundary is and if they're encroaching on public lands for their commercial uses which we're deciding to allow then we need to know where that certified shoreline is for their commercial purposes to not encroach on public trust lands. And I'm glad we're sending it to the Planning Commission because this body doesn't have sole authority over the shoreline areas. Shoreline rules, SMA rules, that's all the expertise or the purview of the Planning Commission. And so I'm just... asking for them to weigh in on this, that it's a proposal based on sea level rise exposure area, which so many of the testifiers that wanted this change said is occurring to their own properties. and we don't know what is on their property and what is on public trust lands as everybody has stated that the sea level is rising and that's why they want change. So you can't, You can't say the sea level is rising and you want this change while denying that the sea level is rising. It's a little bit like nobody wanted to admit the slur XO was a thing until, oh, maybe it can help them continue their uses. If we're letting them to continue their uses, it can't be on public trust lands. and they're admitting that the sea level is rising without a certified state shoreline. So you can have your cake and eat it too if you use a fork or a chopstick, whatever, but you gotta, I mean, I'm not gonna have people just like base plan into the cake and eat it up. We're civilized here, not savages.

I appreciate the analogy and now I want cake. Okay, do you have any other conditions or criteria?

I do not, thank you.

Thank you very much. Member Rollins-Fernandez, would you like to discuss your criteria or conditions?

I have both and just for Chair Lee, I put it in writing. Thank you. You're welcome. Okay. And so I don't think it's been uploaded to Granicus yet because they just got the the drafts this morning and then signed and sent them back. And so for resolution 26-129 as I discuss at our last meeting is regarding the percentage of units that were used to house our residents. I'm not claiming that these entire complexes were only used for residents to live in. The understanding of the apartment zone was that it was a mixed use. and what's happened over time, particularly with the advancement of technology, the internet particularly, is the industry itself has overtaken residential use. So in looking at historic data that we received from the finance department, for, again, Chair Lee's research, so she can look at, and everyone, including the public, will be able to look at the data that we received. The proposal is to insert two whereas clauses, which would read, and you'll get this in writing, so you don't have to shorthand, um whereas the council further finds that to preserve potential long-term housing inventory established under ordinance 5909 council initiated change in zoning referrals to hotel districts should be limited to properties located within the sea level rise exposure area that have historically operated predominantly as visitor accommodations and whereas have owner-occupied or long-term residential uses in no more than 25% of their total units in calendar year 2008, calculated by dividing the combined number of units classified as homeowner or apartment by the property's total number of units, demonstrates that the property has historically operated predominantly as visitor accommodation. And then my... Proposed condition is the same condition that I had introduced to be included in Bill 88, and that's at the time of the zoning change, the director must execute an agreement with the property owners to remove a human-made object not part of the natural ecosystem that is affixed to the land human-made objects not part of the natural ecosystem that are affixed to the land include buildings, foundations, decks, patios, swimming pools, septic systems, roads, parking lots, retaining walls, and shoreline hardening structures, but do not include public infrastructure. address and a separate capital plan. And so, similar to what Member Poulton is explaining and what we all have seen with our own eyes, in March, in the back-to-back Kona Lo, slash flooding coming mauka. So not just sea level rise, but the water that erodes the dirt from under infrastructure built, causing sinkholes that we're seeing that devastated Kihei. Oh, okay.

You're not talking to me, right, Chair? No, I got a coffee delivered, so I was thanking Susan.

Good job, Susan. Coffee to the rescue. But it's coming from both angles, and no one can deny that, because we've witnessed it with our own eyes, and it's documented in the news, and it's still being prepared. As I asked planning and court counsel in the last meeting, what happens if there is no managed retreat plan? There needs to be a plan for removal of these structures, and that's part of the impetus of this. Mahalo, Chair.

Thank you, Mayor Fernandez. Is the last part of your condition in writing as well?

Yes. Okay.

Your thing, your ASF is uploaded. It is on grant in case number 31.

that's the criteria for the whereas clauses okay and then for the condition uh that was in an um county communication that had my asf to the um h3h4 zoning district so um i can send that separately okay

Thank you members. Do you have any quick discussion before? Um, well I guess actually I should double check if anybody else has any conditions or criteria and then we can take a recess and do some research and come back and, and vote. But before we do, I just want to make sure if anybody else has discussion, please feel free. If anybody has any criteria or conditions, please feel free. Member Palten?

I don't have any additional and I didn't write mine down. Can I hear back from staff what they wrote down for mine and then would I need to write mine down or can we just send out what they wrote down for mine?

I think they wrote it down. Why don't you reiterate what we understand Member Palten to mean and then we can send it out to the members and you can double, triple check that they've heard you correctly. Go ahead.

So Chair, so for Council Member Palten's proposed criteria, it's that for properties in Kihei to qualify.

Sorry, all the properties, not Kihei. Oh, is that the condition one?

Oh, yeah. The criteria. The criteria one.

Oh, okay. Sorry. Yeah.

Okay. Criteria. Go ahead. We'll start with criteria, then we can move on to our two conditions.

So for the criteria for properties in Kihei, the properties must be Malka of South Kihei Road to be included in the resolution. Makai. Oh, sorry. It must be Makai of South Kihei Road to be in the condition. So Malka not in the resolution. Apologies.

Yes, that was correct.

I'm glad we clarified this. Okay.

And then as for Council Member Palten's conditions, that would be if the property does not currently have public beach access from 8 a.m. to 10 p.m., they must provide it. And then the other condition would be the one relating to that the property must receive, must obtain an updated state-certified shoreline assessment. There must also be, apologies, it's, Sorry I had it written down later. Sorry, for the second condition, it's the property must receive the state certified shoreline assessment and then if there's anything encroaching then they have to resolve it or remove it and then at a certain point they need to bond for it or move it if it gets too close.

Was it to record what was in 40 feet of the shoreline and bond with it what is within 20 feet of the shoreline and have a removal plan?

First, get a state-certified shoreline assessment. Second, either remove or get an easement for what is encroaching on the public trust lands of their state-certified shoreline assessment. and document everything 40 feet mauka of the state shoreline assessment and bond what may need to be removed. When the state certified shoreline assessment reaches 20 feet, remove it.

Chair, so they must obtain a state certified shoreline assessment, remove or get an easement for what is encroaching of the state certified assessment and everything, 40 feet of the assessment, they must document everything there and bond what may need to be removed when it reaches 20 feet of the assessment line.

when the state certified shoreline reaches that 20 foot marker, remove, yeah.

Members, any other discussion or proposed criteria or conditions? Member Patongan, go ahead.

Sorry, so I have Member Rollins-Fernandez's criteria, but where do we find the conditions?

It's in County Communications, yeah, and I think she's gonna send it. Do we have that ready, James?

Apologies, Chair, we don't have it yet, but if Member Rollins-Fernandez needs assistance locating it as well, staff can work on that too.

Okay, great. It's County Communication 26-2 that was posted to the, what is this, December 30, 2025 agenda? January 7, council meeting. So to Resolution 25-230. Okay.

Okay, they're looking it up now and then they'll send it out to all of us. Do you need to send that out before we take a recess? including Member Paltin's proposed conditions and criteria?

I think that might be best.

Okay.

Go ahead, Member Sugimura. Chair. Yeah. Well, I mean, I can send the link for everyone to see what the language is. And then maybe they can...

It's going to... Huh?

Go ahead. Because it's going to be different because this was proposed subsection 19.14.055 for the Planning Commission to review, which would have been a change in zoning under county code instead of per property. And so... It just has to be revised to read as a condition for these change of zoning for the properties under sea level rise properties.

Okay, we can do that. We can also take like a four minute recess after Member Sugimura and then come back into open, distribute our materials and then take a recess to discuss. Member Sugimura. Thank you.

So on these proposals or conditions and criteria, can you then ask staff to also look at what properties are being impacted by this? Okay, thanks.

Yeah, yeah. That's what I plan to do when we take a longer recess so I can figure out how I feel. and do some research and see what we go. Members, any other discussion or proposed criteria or conditions? Okay, seeing none, we're gonna give staff like a five minute recess to kind of write that up and then we'll come back in. They'll give us the materials and then we'll take a recess to discuss. So it is 11.09 a.m. Let's take a six minute recess to come back at 11.15. Good morning and welcome back. It is 11.34 a.m. and the HLU committee is now back in session. Our staff during the recess has worked on the proposed two criteria and the proposed three conditions for MPC to have a thought exercise with it. So James and team are now going to distribute it. He's going to read it into the record. My plan is to give us our lunch recess now until about one and come back and vote on criteria and discuss potential conditions. Take another recess after that, after we vote on criteria for our staff to compile what properties reflect the proposed and voted on conditions and then we will continue to go from there. So everybody should have now either received a hard copy or an email with the conditions and now I'll give it to James so he can read aloud for us. Go ahead, James.

Chair, so from Council Member Paltin, the proposed criteria is properties in Kihei must be Makai of South Kihei Road. And the proposed conditions for inclusion in the CR would be for properties that do not already have beach access, the properties must provide public beach access from 8 a.m. to 10 p.m. and properties in the shoreline setback area as defined by the Maui Planning Commission's shoreline rules must obtain an updated state certified shoreline assessment, record structures located within 40 feet mauka of the certified shoreline, and remove structures or improvements when they are within 20 feet mauka of the certified shoreline. And from Council Member Rollins-Fernandez, the proposed condition for inclusion in the CR is the director must execute an agreement with each property owner within the Solarexa that will detail a timeline to remove any human-made object not part of the natural ecosystem that is affixed to the land, Human-made objects not part of the natural ecosystem that are affixed to the land include buildings, foundations, decks, patios, swimming pools, septic systems, roads, parking lots, retaining walls, and shoreline hardening structures, but do not include public infrastructure addressed in a separate capital plan.

Thank you, James. Just double checking that all members have received it and they have it in hand. Member Potten, you have your hand up.

Thank you, Chair. I just wanted to clarify on this County Communication 26-2. We're including the substance of it, but I don't believe that there are properties in the resos on Lanai and Molokai, so we would only need to send it to the Maui Planning Commission? Yes.

I think this was, she had it written down and just previous. Yeah. So there's some changes, but the, the meat is still the same. Okay. Got it. The tomato might be out, but the meat is still the same. Remember Rollins Fernandez. Go ahead.

Beef Domingo. I pulled out the tomato and that is what Mr. Kruger read. Yes. Yes. Thank you.

Okay, members, if it's okay with you, I would like to now take a lunch recess. It's gonna be a little bit of a working lunch for all of us. We can do our due diligence on the proposed criteria and eat and then come back at one o'clock if that works for all of you folks. Yeah, Member Rollins-Fernandez.

Mahalo, Chair. And since folks are going to take their lunch and ruminate over the proposals and do whatever research they're going to be doing, the CDC 26-2 was proposed earlier this year. So I did that research at the end of last year. And so I looked at other large populated areas that are tourism dependent, such as Miami Beach, Virginia Beach, Ocean City, Santa Cruz, Galveston. uh to see what the other municipalities are doing that are affected their you know their tourism industry and how they're um looking at managed or strategic retreat from the shoreline and These are some of the things that they're looking at. So I wanted to just share that before we go on recess just to help the members if you're going to do research. You can also look at what other places that are similarly situated to Maui and to see what they're doing because we're not...

unique uh in that way uh there are many other places that are facing this same situation um so mahalika thank you very much i appreciate that member paulton go ahead thank you and um i did want to add to um i'm not attached to each individual property doing this individually um i think the state and coastal experts um are proponents of properties along the coast doing a state-certified shoreline together. So if they wanted to hui up and defray the costs of a group-certified state shoreline survey, I am not opposed to that. And I'm also not opposed to codes of conduct for the public beach access. I'm not saying that people can just go in and make any kind. I'm not opposed on codes of conduct for everybody's sake.

Okay, thank you. We'll include that codes of conduct language in the condition as we send down to MPC for their thoughts. Any other discussion before we take lunch and do some homework? Okay, seeing none, we are gonna take a recess to return at 1 p.m. See you soon, enjoy your lunch. Welcome back, everyone. It is 1-17. Sorry we took a little bit longer. Staff is still compiling some of the information that we discussed before we went into lunch recess, but I did want to confirm with Member Paltin, sorry, one of your criteria related to the disallowing moving the Mauca properties of into, I'm sorry, disallowing the Mauca properties of South Kihei Road into H3 and H4 does not apply to the properties zone for the flood criteria. If you could please confirm. Okay. Thank you very much. That's kind of what I needed to say otherwise. And then I'll give James a minute to finish up. There's nothing for you to distribute now. Yeah, James. Okay, great. He's still finishing up. My plan members is to give James a moment. So I'm gonna stall while I tell you what we're gonna do for the rest of the day. We are going to have our information distributed and then we're going to vote on Member Poulton's criteria and then Member Rollins-Fernandez's criteria. We are going to send the conditions down to MPC so they can do a thought exercise and get back to us on how that's going to work. We did confer with Deputy Corporation Council Nahululunakawa and he will help us tighten up whatever language we would need for those conditions that we discussed before our lunch recess. But other than that, I don't think I have any more news to share. James, how long do you need? Okay, almost, pal. Member, I'm sorry, Chair Lee, go ahead.

Okay, so I'm assuming from what you just said that we're not going to be voting on those conditions?

I don't think we need to vote on the conditions now. The conditions will be set later when they come back from the Maui Planning Commission.

Yeah, well, because after reviewing these proposals, I personally don't agree with them. And I thought we were just going to put initially the conditions as possible recommendations, but to let them know that these weren't voted on and did not have a majority approval necessarily. Yes, that is the plan. It wasn't a unanimous agreement to recommend these recommendations. These are like ideas.

Yes, that is the plan, to send down the ideas for them to contemplate. Because that's how we need to do it. I think, though, it is important to note... The shoreline access language that Member Palten did include in her conditions was discussed in my original resolution because that is a requirement now for new properties. It's in the third whereas paragraph shoreline rules. So I think they'll figure out how that applies. when you do that. I think it's important to remind the Planning Commission as well, although to Member Palten's point, they are the expert body on the shoreline and the SMA, but when, on the shoreline do an SMA permit and a building permit for any type of improvement they would like to do, they are required to do the state certified shoreline assessment. That is a requirement. I do think the additional language, I'm not too sure how that works out, I don't know. But I think that's important to note. And we will, my plan is to send down the entire communication from the last, I don't know how many meetings we've had about this for MPC's review. So your thoughts will be noted just as Member Palten's thoughts on these conditions will be noted as well.

and i'm happy to transmit any um other discussion either for or against whatever condition um for their review okay that's great as long as um as long as people the members of commissioners know that there was no um uh unanimous agreement on these conditions and that some of us had very serious concerns and why. So hopefully they're all on the same page and the proposed conditions are not one place and the dissenting ideas are far away.

Sure. Thank you. I appreciate that. Yes, we will be voting on criteria today and sending down conditions for their discussion. Member Paltin, I know you have your hands up. Please go.

Thank you and I'm sure the Planning Commission knows it but if we could include a verbiage in the committee report to say including but not limited to because in any change in zoning, they can recommend their own conditions and they're more fluent in the shoreline and SMA rules than we are. So like you pointed out, there might be other things that we're not aware of. Sure.

We will note that.

Can you go over one more time the timeline, your expected timeline on this meeting?

Okay, sure. Right now, I'm stalling. James is kind of working out the last bits of our proposed criteria during over lunch. We are going to vote on Member Paltin's criteria and Member Rollins-Fernandez's criteria. Then we're going to take another short recess and so staff can compile what properties... and then we'll come back and we will vote on the resolution 129 and be power with that. And then we will move on to resolution 130, which I do think member Cook has some changes and we can go from there.

So, okay.

So you think, where will we be at three o'clock? Oh my God, I hope we're power, but I don't even know. Good question.

It's just that, as you guys know, I've been kind of under the weather, and one of my doctors thinks I have a touch of pneumonia.

Oh, no.

So, no. But I can operate. You can operate. I just have to go pick up my medication at 3 o'clock.

Okay. Please pick up your medication at 3 o'clock, because if you have a touch of pneumonia, you're going to need antibiotics, I'm assuming.

Well, whatever, I just wanna be able to run over there, come back, take the medication, that's all.

Okay, you know what, we will so you can get your medication.

Okay, thank you.

Thank you. Members, did you guys email it to our folks online? Okay, members online, you will soon be getting a, a little list here that says remaining apartment district properties in Kihei with TVR uses phasing out and it shows you Makai, Mauka and if it's flood related. And so you can take a look at what that means. And maybe James can help explain it, because it's a lot of check boxes. And so we have a category that says Makai, which I'm assuming clearly that's on the Makai side of South Kihei Road. And you have a column that says Mauka, which is on the Mauka side of South Kihei Road. And as confirmed by Member Poulton, the flood is a separate issue. So you're gonna have to figure out which one is impacted, which leaves us with which ones, James?

Apologies, Chair. Right, so for the flood column, if there's a checkbox, that means that that property, as the other criteria that the committee had before it, or if at least over 50% of the structures were in the flood, then if the checkbox means that that property qualifies for that.

Okay.

I'm sorry, is it okay to repeat that for Mr. Krueger?

Please, can we do that again?

Oh, yes, apologies. So on the distributed list, if the flood box is checked, that means that that property would qualify for the other condition of at least, sorry, I keep saying at least, over 50% of the structure's footprint on the property is in a special flood hazard area. So it qualifies under that criteria.

Sorry, over 50% of the structure's footprint.

One more time. Over 50% of the structure's footprint is in a special flood hazard area.

Thank you. So, I'm sorry, I'm gonna need a minute. So these obviously only show which is on what side of the road, including flood. Does this also show which one has the existing criteria of more than 50%? These are all more than 50%.

Apologies, Chair. No, it doesn't have a comparison with the other criteria. It was just specifically for this criteria. So some of these properties might not qualify because they don't have any other criteria. For example, I think a good chunk of them between Maui Kamaole III down to, I wanna say, like Hale Mahiolani, those properties, they don't seem to qualify under any of the other criteria, but we just, so this list is specific to this specific criteria, if that makes sense.

It does, but does it take into consideration of the other criteria that we already passed?

Not this list, but once the committee sets its criteria, we would take it in aggregate and be able to extract the final list.

Okay, question. Member Paltin's proposed criteria does not wipe out, I'm sorry, does not, I guess, undo rather the proposed criteria of the 51% or more. So this is an additional criteria, clearly, okay. So the properties that are 50% or more already qualify, yes? And then the properties, Mauka, not in a flood zone, represent which properties? Shores of Maui, Kanoi Apartments?

Yes, so for example, those properties, they could still qualify under Slorexa or Shoreline, or they would, Apologies, but if this criteria is applies then they wouldn't no matter what because they'd be Malka so so the Properties with the flood check box. They'll apply regardless of the of of this condition Right, but if this kind if this criteria is applied then any property that would be half the Malka check box They wouldn't be able to They want to be included on the resolution. That's how we'd apply the criteria. I

When you're finished with that one, I had a question about your earlier handout. Sure, go ahead. So we got this handout about... Flood. I'm not... So one side has flood hazard area and then the other says remaining apartment district properties with TBR uses phasing out in the shoreline setback area under the money planning commissions, shoreline rules. And, um, it looks like the same list, I guess. Um, can somebody just explain what,

is what we're looking at. Absolutely, James.

Chair, apologies and this is a, I guess it's a small error on the list that was distributed. Apologies, some properties are missing. So the list that we most recently distributed has all the properties in Kihei, but we identified, we went back and compared the lists once again that were distributed and the list attached to the agenda as exhibit one to ensure that we covered all the properties that could. be incorporated into the resolution and some are missing. So for example, like Waipuilani and Lena Hala, those aren't on the other lists that were distributed. Apologies for that, that was a staff oversight. But, So we're going through just to confirm. I believe those other properties weren't included because they were so far removed from the Slorexa that they didn't matter. But we're going back to verify that just to ensure that those properties wouldn't qualify under the other criteria that the committee has set.

Okay. Okay. Sorry, I'm trying to reconcile these lists in my brain, and I missed you, Member Sugimura. Please go ahead and ask your question.

So if I could ask staff. Yes. Based upon this list, one of my ASF, which is Kihei Park Shore, it's under the flood category, which I have highlighted. So then it does qualify for this 50% plus one or 50% plus list. But my other property that I'm trying to do with the ASF for is Kalealoha, and it doesn't appear anywhere.

Kalealoha.

Chair?

Yeah, go ahead.

So I think Kalealoha, I... I think might not be a... It's Lahaina. Right, it's a Lahaina property, so it's not on the list that was most recently distributed. But from our comparison to the Slarexa and Shoreline rules, Kalealoha is in both. They have structures. They meet that structure requirement for both.

Okay, you just don't have a separate list then. You're working on a separate list.

So the other lists are accurate as to what properties are on them. It's just that there's properties that aren't included that should be included just to provide the committee the fuller picture. So Kalealoha is on those other lists that were distributed and it reflects that they would meet the criteria for our Slorexa and Shoreline.

Thank you. Thank you. You're welcome.

Go ahead, Member Cook.

So Chair, are we going to vote on this or is this something that's gonna be sent to the?

Yeah, we're gonna vote on the criteria.

Okay, thank you.

You're welcome. Right now, I'm trying to understand both these lists, so I apologize that I'm not looking at you folks. I'm trying to reconcile what properties are affected. I know James probably has it on the back of his hand. I do not. Does anybody have any questions? Chair Lee, you still have your hand up, Member Palten, you have more questions.

Okay, go ahead. I don't have a really good, I just don't have a really good handle on which list, you know, to follow.

My question is similar. Like, if this earlier list is not complete, should we disregard it and... wait for a complete list on the earlier sheet or just adding which properties were missed, I guess is part of my question that seems similar to Charlie's question.

Sure, James, would you like to explain and then can I ask you a question as well? Go ahead.

Yes, sir. Apologies. So the committee doesn't necessarily need to disregard the previous lists It's just that there's there's properties that That aren't on those lists that we're going back to just verify that they weren't included because they don't qualify under any of the criteria anyway So we included those missing properties in the Kihei list just to ensure that the committee had that for this criteria, but we're going back and reviewing. So I don't, again, the committee might not need to disregard those previous lists. They're accurate as to the properties they contain. They just are missing some properties.

Sure. And then what does the blackout boxes, what is the reason for the blackout boxes on the previous sheet?

I apologize, that's just a visual helper. Since the parcel is fully covered, then automatically the structure would be covered as well. So that's just what the black box indicates.

That it's full. Okay, got it, got it. I don't know if that was more helpful or not, but thank you. No, I see it now.

Okay, can I ask you a question going back to the most recent handout? So I noticed then on the bottom few parcels, starting with Kalama Terrace, Shores of Maui, Kanaui Apartments Pacific Shores, and Maui Vista, those properties are all Mauka of Maui? the South Kihei Road and not included in a flood zone. So these are the properties that would be affected by Member Palten's proposed criteria.

That's correct. That regardless of whether those properties have that Slorexa or Shoreline requirement or meet that Shoreline or Slorexa standard of over 50%, they would not be included in the resolution under this criteria because they don't have the flood designation.

Okay. So not Kihei Park Shore, so Kalama Terrace. And James, maybe we can tell them as well that Shores of Maui, we were questioning whether or not they qualified in the concept of majority impacted by the Slorexa.

Yes, Chair. For Shores of Maui, when staff reviewed all of these properties, Shores of Maui was the only property where they would qualify under only one criteria that the committee had currently set. That's the shoreline setback area. By looking at the image, there could be a debate as to whether or not there's actually they meet the over 50% requirement for their structures being in the shoreline setback area. Our determination is that it didn't hit that requirement, that it looks like less than 50% is in the shoreline setback area. So that's why they're not included in the chair's ASF that was distributed this morning. But just flagging that for the committee that if they wanted to review that, staff could pull that image up or the members could pull that up themselves on the shoreline setback viewer online. Thank you, Chair.

Thank you.

Chair?

Yes, go ahead, Chair Lee.

So I'm wondering, the last meeting, we voted to include some properties, right?

On the list. We voted on criteria that would make properties qualify.

okay yes so so we so in essence a few more additional properties would have been included and then we had now we're voting on different criteria which would then eliminate some properties from the list that we assumed we were working on to add to is that correct yes um

I guess, yeah, we voted on criteria the last time and then we left off at voting at criteria. So these are additional proposed criteria, which would again continue to shape the properties that are included on the recommendation list to send to the planning commission.

By shape you mean could eliminate properties we already assumed would be on the list.

Kinda, sorta, yeah. But I think that's a good question, because right now I'm gonna ask James, I don't see any, did I do it about Kalama Terrace? I see Member Cook requested Shores of Maui. I don't see anybody who requested Kanoa Pacific Shores or Maui Vista, unless I'm missing it.

No, Chair, apologies. So what staff did is, basically irrespective of what...

Anybody proposed?

Exactly. We took properties on the list, on the full list and pulled out data for that.

Okay. Thank you. And so out of the potential one, two, three, four, five properties that are proposed by member Paulton's new criteria to be disqualified from H3, H4, only the shores of Maui has been proposed by member Cook, but the other four have not been proposed by any council member. Got it. Thank you.

I was trying to, I was trying to, and we're not on the list and we're not on the list before.

I don't think so.

Can I ask why was it brought up in the first place if it wasn't being considered?

To ensure consistency.

That was one of the things the lawyer said. If you're going to have criteria, make sure it's applicable and objective, not subjective and just picking properties.

Yes. Okay, so essentially we have just taken off one.

One of the proposed properties, yes, potentially, yes.

And the name of it, the name of it again? Shores of Maui. Shores of Maui.

Which arguably doesn't meet the full, doesn't meet the majority of 51% or more Slorexa anyway. Go ahead, Member Cook.

Thank you. For clarification, Shores of Maui has most of the property and probably 45% of the buildings that are within the 200-foot shoreline setback and the areas where the three-point... Anyway, from the Planning Department. It meets the criteria. I don't agree with this new criteria and the Shores of Maui meet it and I can share the information but I'm just sharing that I'm still supportive of that. I think I've received a lot of documentation that validates the fact that it is over 51% impacted and I just wanted to point that out.

Do you mind sharing that?

Yes.

Okay, that'd be really helpful. Do you have a hard copy?

Yeah.

Okay, great.

You want me to have my office to it or give it to them?

You give to them. Does it have a map?

Yep.

Great. Does anybody else have any discussion related to the proposed criteria by Member Paulton? Seeing none, okay.

Not in addition to what I said earlier, like, you know, that the county is defending those streets because of the infrastructure underneath of them.

Okay.

Thank you. If not, members, I'm gonna take a minute to look at the Shores of Maui information. It's going to be distributed to you folks by member Cook in a few minutes to help us make our decision. But otherwise... And online? Yes, yes, we'll definitely send it to you folks online. Okay. Oh, shucks. I got to wait to distribute that in open session. Yeah. So I don't want to be typing away on my computer as I look this up. I feel like singing the jeopardy things.

Chair, while we're waiting, can I ask for a two minute recess?

Yeah, let's do that. I'd appreciate it. We're let's wait one second so that we can get the distribution and open meeting and then happy to take a recess.

Okay. Thank you.

That's kind of what I was waiting for. And Jen is making copies right now. Okay. Yes.

Um, Is Deputy Council Nunokawa there?

Yeah. Do you have a question for him? He's here. He's happy to answer.

I do. Offline so that we don't have to go into executive session.

Okay.

Great.

I appreciate that. Okay. She requested a phone call from you, Nahulu. Perfect.

And then chair? Yes. I'm creating a master list of all the properties so that we don't have all kinds of Leah. I'm working on it. Yes, yes, all the lists, the lists and lists, within the list, these lists. Thank you. We just have one list. Oh, I see staff distributing. Is that what we're waiting for?

Yes, and then we'll take a quick recess. Member Batonga requested a quick recess, and then we'll come back in a few minutes. Did we send it online? We will send it online in a few minutes. Okay. Yep. And then we're going to take a super quick recess and go from there.

Okay.

I'm waiting for you folks.

Chair.

Yeah.

Obviously the last two pages are the map and the information, but the whole thing is a packet from the planning department.

Sure. Yes. Thank you so much for providing this. Did you guys send it out? OK. You're good.

What was this one for?

This is Shores of Maui. This is the only property that was proposed by a member that's affected by your criteria. There are four other properties that are affected by your criteria, but not that it was proposed by a council member. Those include Kalama Terrace, Kanoi Apartments, Pacific Shores, and Maui Vista. So this is the only property that is potentially impacted by your criteria. Mauka of South Kihei Road, regardless of flood zone. Thank you. I have a question for planning, though. As this is being sent out, so... Mr. Post, the map that shows the flood designation, same on the sea level rise viewer, it goes all the way up and there looks like a beautiful straight line all the way down as if it's cut right there. Do you mind explaining how that happens? And then, did you guys send it out to our members online? Okay. Member Patangan, we'll take a two minute recess. Greg can get his answer queued up for when we come back. It's 1.51, we'll take a two minute to come back at 1.53. Welcome back, everybody. Thank you so much for that extended break. James has helped us put together another list. Thank you. That's being distributed now. It's Granicus number 35. It was emailed to the members and the members here will be receiving a hard copy soon. What you'll see is a list of properties. whether or not they're in the Slorexa, whether or not they're in the flood zones, whether or not they're on the shoreline. It's a front and back piece of paper. And for reference, if it's easier, you can also look at the list that was previously listed. distributed that relates to whether it's Makai or Mauka and you can look at whether or not the property is situated where on the road. Flood is still consistent. As a reminder, these, for consistency's sake, all of the properties were reviewed and has a box that it correlates to, whether or not it applies to either three criteria. I do later would like to discuss with Nuhulu as it relates to any future conditions in resolutions we haven't discussed. So after, I would like to talk about that with you. Chair, I have a clarifying question.

Please. Some of the properties are checked in the shoreline, like, say, Hale Mahi Alani, Hale Ili Ili, and Hale Kai Okihe, but they are not checked in the Slorexa, which I'm not sure I understand how it can be in the shoreline but not be in the Slorexa.

Great question. I have James on standby to answer for you.

Chair. So, uh, staff used for each one. Uh, so for the slur X such staff used the, um, P A C I O O S, uh, um, sea level rise viewer for that one using the 3.2, uh, uh, basically on that map. And for the shoreline, we used the Maui Planning Commission's shoreline rules, shoreline setback viewer online. So two separate maps. Staff's understanding is that the Slorexa is a broader category. It probably incorporates a lot it likely incorporates basically the shoreline setback area, but not the reverse. The shoreline setback area is something smaller because the Slorexa also contains other components. The shoreline setback area is an erosion hazard line, which I believe is related to coastal erosion, as well as a 200 foot setback, like vegetation setback line, I believe is the way the deputy planning director described it at a previous meeting. Planning might be able to talk about it further.

And that's a 200-foot setback from the last state-certified shoreline? Or what is the 200-foot setback from?

Good question. Let's get planning to answer. And then if planning could also answer my question before we went into recess. When we look at the Slorexa viewer, you see a dramatic decrease in about a third of the property or so, a quarter of the property, and it has a beautiful straight line right down. So if they could also describe why we're seeing that as well. So planning, if you please.

Yes, thank you, Chair. In regards to your first question, when we were talking about the property in Kihei that you mentioned, I know that a lot of the Solarexa location is based upon topography, and you know that that's kind of within the Cove area, and there's a rocky topography just to the south of it. I think that's one of the reasons why the Solarexa line stops. partially, partly into that property. Um, but I do have, um, I believe either on a Lillis or collect Cardoza is, um, online here that can probably answer. And these questions a little bit better than me as they're more, uh, sufficient in, in dealing with the shoreline, um, stuff. So sure. Thank you. Thank you.

Do we have Anna? No, Colette? Hello. Thank you so much for being with us. If you could help us understand my last question and then maybe you could also answer Member Paltin's question about the shoreline as well, if you can, please. Thank you.

Yeah, absolutely. Thank you, Chair. My name is Colette Cardoza. Hi, everybody. I am the Environmental Planning Supervisor for the Department of Planning. And I believe the question was in, start with your question first, Councilmember Uhu Hodgins. For the shores of Maui, yes, Greg is correct. So the erosion hazard line, of course, doesn't consider T and K lines, right? And where this erosion hazard line stops, there is essentially no erosion here. So you have exactly what Greg said, a rocky shoreline in the Bay Area here. And so in places where there's no mapped erosion, the county takes on the 200-foot setback, which is the blue line. And then further to expand on that, if a parcel is subject to a 200-foot setback, there's also an optional lot depth-based setback the process and procedure to use that is within our shoreline rules. So a property owner does have an option to sort of negate this 200 foot setback as well. And then to answer Council Member Palten's question, I believe she asked if it's from a state certified shoreline survey. and the answer to that is that uh the vegetation line is uh where that line is considered and then mauka 200 feet so i hope that answers your your questions thank you chair thank you miss cardozo um i just wanted to clarify that that vegetation line is like a natural vegetation line it's not irrigated that is A good question. I'm not exactly sure of the answer. I could check with the folks from UHC Grant as they are the ones that assisted in creating the 200-foot setback and this model. I could get back to you on that. Thank you so much.

Thank you. Members, does anybody else have any questions for Ms. Cardoza while we have her? Okay, seeing none, thank you so much. Members, does anybody else have any questions either about this list or Member Poulton's criteria rather that I would like to entertain a motion for sooner than later? So members, does anybody have any questions on the list that was just distributed? Hi, Chair Lee, thank you so much for being with us. Okay, Member Rollins-Fernandez, followed by Member Sugimura.

Mahalo, Chair. Yes. And then for Sunshine Law disclaimer, my children came home from school. They're a minor age, so I'm not going to name them. And my husband is not minor age. His name is McKenna Fernandez. And they're now with me at our private residence. Oh, no, I said hi. He said hi. Okay. Okay. All right. So I told you I was working on a whole master spreadsheet. Yeah. So, but now I guess. Before the recess, it was Makai and Mauka of South Kihei Road. And now we have Slorexa and Shoreline. And the flood is the same flood, I'm guessing. But Shoreline is like its own thing and Slorexa is also its own thing that's different than Mauka and Makai of South Kihei Road. Yes.

OK.

All right, I'm gonna add two more columns. I know, thank you. Which is why we took a break because I had a hard time kind of rectifying what's Mauca, but still in shoreline or still in the Slorexa. And there's even one of the properties as discussed before we went into recess is Mauca of the highway, but still affected by the shoreline. So there's just like, so many layers, we all needed a minute to, I needed a minute to adjust. 100%.

Thank you. As my background photo, you can see when there's storm surges, the storm and the hurricanes, they don't care about no Sorexa lines or TMK. Nope. None of those, all those imaginary lines. Nothing.

Yes. Thank you. Thank you for asking. Member Sugimura, you have questions too. So shall we get rid of a list? Um, you can use it for reference. Um, This list that was just passed out does show what currently falls into what criteria. The list that has the difference between Malka and Mackay was specific to Member Palten's proposed criteria. So that one is for reference. I mean, they're all for reference. I think I have like five lists in front of me. They are all for reference. Each of them kind of has different things, so you can use each as you see fit. Okay, yeah.

Member Palten, go ahead. Thank you. Sorry. So I got the 20 footage from the vegetation line on the Slorexa column. I'm just clarifying that it's not, it's majority in the Slarexa is what the, it's not just that it's in the Slarexa, it's majority in the 3.2. Is that?

Yes.

Chair, yes. For all three categories, the criteria was that more than 50% of the structure's footprint was in that area. So for Slarexa, for flood and for the shoreline setback area.

Okay, thank you so much.

Okay, thank you members. Member Palten, do you wanna make a motion to include your criteria? I think you can kinda see what properties would be affected and those are in the lists that you have. I won't list them off anymore because then I'm gonna just keep talking.

Member Paltin, would you like to make your motion? Sure, I move to add a criteria that properties MOCA of South Kihei Road not be included.

Okay, I have a motion made by Member Paltin and a second by Member Johnson. Let me write this down so I don't lose track, please, one second. And then Member Johnson was my second. Okay, discussion. Member Paul, didn't you have discussion? I know you kind of did it earlier, but go ahead if you want.

Same as earlier, that South Kihei Road would be defended by the county, and so Properties Mauka of it would similarly be defended. I guess Mocha of South Key Road where the infrastructure is and so the county as we've seen is defending it.

Thank you very much. Any discussion? Member Cook, go ahead.

Thank you, Chair. I won't be supporting this because I think it's arbitrary and We need to, I feel it's important that we do things that are comprehensive and explainable. And this has been a long conversation. So anyway, I won't support it. As far as the concept of the county defending the road, there's been discussions and acknowledgement about those roads that are gonna be abandoned as part of managed retreat because we're not hardening the shoreline and we're not doing

that type of protection so anyway i won't be supportive thank you thank you remember any other any other discussion any uh charlie yeah i'm i also will not be supporting this you know i after spending so much time on the other lists you know um i i find that There is no basis for this in a study or an assessment or any kind of evaluation. I think if something was built outside of the shoreline at the time. The shoreline later moved, which eroded, thus resulting in this improvement becoming an encroachment. It would be considered lawful, not conforming. So I have issues with trying to tinker with the list even further, a list which I have a lot of, I find questionable to begin with. Okay, thank you.

Thank you, Chair Lee. Does anybody else? Member Patonga?

Chair, so I actually like the rationale for both our original criteria, meaning the 50% or more above the 3.2 foot sea level rise exposure area, flood hazard area, and the shoreline setback area, as well as what Member Poulton had brought up for South Kihei Road. And if it's only one prop, I guess, so I'll start there. I like the rationale behind both lines. Now we have one that kind of varies in terms of elevation and then one that's more or less like straight along the shoreline. And there are times when, you know, there are properties affected by either. Given that I like both, I was wondering if it would be, if there would be appetite from the body to consider adopting both and then just setting the line at whichever one's more mauka. So it would be more inclusive. We would have the properties that fall under the Slorexa line and the properties that fall under the South Kihei Road line. And then we won't be squabbling so much over one to four properties.

Wait, can you say that again?

So there's two lines, right? There's the SolarX one that kind of goes up and down. And then there's the South Kihei Road. And at least in my head, it's relatively kind of straight because it's a road. There's times when the properties affected would be in conflict with one another. And I think that if we had just adopted both the SolarX line and the South Kihei Road line and said whichever one is more mauka, then it would be inclusive of all of the properties under both criteria.

Whichever one is more mauka.

Because it's only four properties that were... There's only a four-property delta, correct?

There's only... Okay. Kind of, sort of. There's only four properties that are clearly in its delta. But... Can I explain why my position... You feel it should be one or the other? And then we'll go from there.

Thank you, Chair.

No, because I was in a similar thought process as you, which is why we took so many recesses. So thank you for giving me the time to understand it. I was trying to figure out how I could support something like this because I understand the rationale, except for... The one specific property that is being proposed by a member Cook is interestingly enough, Malka of the shoreline and still yet about halfway in the 200 foot setback. So it's like putting worst case scenario for them where they're Malka of the shoreline in this situation, but it's actually really, I mean, Malka of the road, but really close to the shoreline regardless. And then because this list is a bit more comprehensive because we're trying to be as consistent in our criteria as we need to legally be. It includes other properties, let's say for Grand Champions, for instance. of which I have explained to you that I do have another reso coming out that deals with the expensive properties. And then that's why I asked Nahulu, how does this impact any future criteria and how would that play out? So, I'm gonna be voting no, but it's not because I don't necessarily support the concept. I just don't think I'm ready for this yet until maybe we can see it in all the properties, and then I can kind of remove the properties that don't make sense for affordable and workforce housing, but I do understand why we're talking about, um, the location of the properties in relationship to the ocean. That's, that's how I feel. I think I'm happy to kind of reconsider this when it comes back from the planning commission and I'm not necessarily against it in theory. It's just for the, a few properties we're talking about right now. Um, I don't know how that would work. So to your point, yes, four properties, only one that's actually being proposed by member Cook, but I don't know how it's gonna impact the other properties that may yet to come. But obviously that's how I feel. Everybody else clearly should vote their own way. Do we need any other... Discussion? Okay. Everybody did three times. So Member Rollins-Fernandez, because your hand was up first, please go, and then Member Sugimura, and then Member Sinensi.

I'll call the chair. I support the motion and I appreciate your mana'o on this, reluctance on making decision because of the wanting more information. and i think you know to be fair to testifiers that's what they were also asking for they were asking for us to take our time to not flood um and i'm intentionally using that word flood um the npc pun absolutely intended more hurricanes to come um but um Testifiers, the community members asked us to do a thorough job in analyzing each property one by one. And in a way, we're kind of starting to do that, but we're still doing it in bulk. And then we're going to ask volunteers to do the same thing that we as council members are struggling to do in the, you know, unlimited time that we have while being paid. we're being paid to do this and then we're going to go and ask volunteers to do a responsible review of the same things that we're going to be sending to them without giving them more information and they're going to be rushed and they're going to have to make some kind of recommendation without as much information maybe the same kind of information that you would want chair you know So I'm supportive of sending the Planning Commission smaller batches of properties to analyze so that they can take their time and do a good job and feel good about the decision that they make when they send a recommendation back to us. um i don't like i don't want them to feel rushed and i know that the council members that um you know opposed and voted against bill 9 are going to say well you should have done that before you passed bill 9. legally you couldn't that's that's the process this is how it's supposed to be done mahalo chair thank you member rollins fernandez member sergi mora

So basically, we are trying to pass Tamara's result or her amendment, which is the first list, correct?

I made a motion to amend the criteria.

She made a motion to amend the criteria. Okay, so then it became the second list.

Is that what you did?

No, I just made a motion to amend the criteria to exclude properties Malka of the South Kihei Road for the reason that our infrastructure is under there and the county has shown that they will defend the infrastructure.

Okay. That's the motion on the floor. So basically that's it. So question for Corp Council. If ever there were properties, the sea level rise or the ocean and wherever it lands on the shoreline, it then determines which is for the state and which is the county, right? Kuleana. Does this affect any of that? Because we're talking about, I don't know, 10 years, 50 years, the sea level rise is gonna be impacted, but how does that impact this decision?

I did want to clarify it's not the slow steady rise of the ocean as we seen it's the singular catastrophic events that are stacked like a high tide hurricane swell that's going to be the problem it's not that. we're waiting till 2100, and we're like, oh, 3.2, that's a problem. It's the stacking of these catastrophic events, whether it's a tsunami, a king tide with a 10-foot swell, or those types of things. So there is the slow, steady rise of the ocean, which is like, you know, one foot by 2050, 3.2 feet at 2100. But that's not the big concern. It's the singular catastrophic events, whether it's a hurricane or a full moon high tide swell or those types of things. So I just wanted to clarify that for anyone who's watching, that it's not we hit the year 2100 and oh no, it's 3.2 foot of sea level rise. It's these unpredictable catastrophic events like that flood our whole highway with ocean rocks or boulders or damaged structures. That's the concern with the sea level rise exposure area. It's not the... the year that we expect, 3.2 feet. If it's 3.2 feet and flat, no big deal. But 3.2 feet and a 10-foot swell on a new moon high tide with hurricane gust winds are a different story. So it continually needs to be said, I think, because people that don't look at the ocean in all its forms every day don't seem to understand that.

Again, Corp Counsel, do you have any comments?

It's hard to say. based on hypothetical how it might happen in the future, whether there might be conflict between state and county. For the most part, the change in zoning shouldn't have an effect on that process since Effectively, once it becomes state jurisdiction, it'll automatically turn over to them. But without specific scenarios, I can only give sort of general advice on it.

So the example is that we're anticipating bad weather, sounds like, in the future, right? And we're going to be making this amendment. I cannot support it then. If you have no definitive answer for me, Corp Counsel?

Not as it relates to the distinction between state and county jurisdiction for shoreline. Sounds like the proposed condition there is related to more storm runoff, so it wouldn't have as much jurisdictional considerations. It still could. Is there a difference in jurisdiction for floodplain? I think it's mainly insurance. So when it comes to stormwater runoff, it wouldn't have the same kind of considerations for jurisdiction that mainly would be sort of where the water is on the shore.

Thank you.

Thank you. Member Senancy, Member Paltin, you have your hand up?

Yes, I can wait.

Okay. I'm going to go, Member Senancy, Member Paltin, Member Patonga. Member Senancy, go ahead, please.

Hello, Chair. And so this vote is just to consider sending Member Paltin's amendment for consideration at the Planning Commission, yeah.

Yes, this vote is to add Member Palten's criteria rather, condition and criteria not interchangeable, I need to tell myself, including Member Palten's criteria for properties who could qualify for H3, H4. So again, she's trying to disallow properties, Malka of South Kihei Road from being included in H3 and H4.

Okay, got it. Yeah, I can be supportive of a shorter list, Chair.

Thank you. Thank you. Member Paltin, followed by Member Patonga.

Just regarding state and county jurisdictions, my discussion would be that a lawful non-conforming encroachment recognized by the county is not a permission from the state to occupy public lands. it still needs an easement to be lawful with the state. So whether a property is non-conforming encroachment doesn't mean it's lawful if it's on state public lands within the wash of the high tide. So that's, to me, the difference between county and state jurisdiction. Just lawful non-conforming new state-certified shoreline would ask that they remove their encroachments or make it legal through an easement, not that there's a new state-certified shoreline and you can just occupy public lands with your structures. So to me, that's the difference between state and county jurisdiction.

Thank you, Member Powhatan. Member Patonga? and then we'll do a roll call after this if nobody else has anything else to add.

Thank you, Chair. Of course. So I had proposed earlier that we adopt both the Slorexa and the South Kihei Road lines. There doesn't seem to be appetite for that. And so I'd just like to explain why my preference would be for the Slorexa line. And it has to do with sea level rise impacts. The road itself, we'll likely defend. But I think to the extent that the impacts go above or beyond it, it's dependent on the sea. And that's why I would peg our decision or our criteria to that. But I also wanted to ask Corporation Council to clarify this process for me, because Member Palten had mentioned that it had to have been done this way, and that was not my understanding. Sorry, Member Rollins-Fernandez. Thank you. So in reviewing Council Member Calma's notes and reading the executive minutes and speaking with...

Chair, point of order. Sure, go ahead. No, no, I just... The last time you read Member Calma's notes, they were confidential and executive session notes. So I just want to make sure that you're not going to be... Understood. ...disclosing confidential information right now. Okay.

Understood.

Thank you.

Yeah. So Corporation Council, and then speaking with Corporation Council. So my understanding was that Bill 9 had to be passed clean, meaning that we couldn't do carve-outs at that time. But the companion bills didn't necessarily have to come afterwards. Can you clarify that? Am I mistaken?

No, you're not mistaken. When it came to the bill itself, because of the legal mechanism that it used, that needed to be clean within itself, but the timing of supporting legislation that wasn't as, didn't have as strict definitions, so... before or after. There would be things to keep in mind in either instance, but it could have been done.

So it would have been legally permissible for us to first create H3H4 and then identify which properties to convert before passing Bill 9, correct?

It would have still had criteria and considerations, but that would probably be a method that could have been used.

So I guess I'll share this because it does inform how I think about this process. As I've learned more about Bill 9 and its companion legislation, I think that We had a compelling reason to disallow apartment and transient uses in the same properties. And I think that is safe to have pursued. But when it came to taking away rights that were twice codified by the county. I think we should have been more judicious and the onus should have been on us to articulate why we should have converted units to housing rather than have it flipped the way that we are doing it now where we have to justify why we're taking units out of housing and allow for continued residential use. And because of that, I'm being... When I consider criteria for conversion, it's... pretty broad in what I'm asking the Planning Department and Planning Commission to evaluate. I think that's as far as I can go in open session, but I wanted that on the record because it informs how I'm approaching this and I want my colleagues and the public to understand where I'm coming from when I make these decisions. Thank you, Chair.

Of course, thank you, Member Patonga. Member Johnson, I see your hand up too.

Thank you, Chair. I know we're at the end of our discussions here, and I've been listening, and I've been counting votes and listening to folks. where they stand on the issue and customer with Tongan a even after your last comments you made I think there is shade in this VIN diagram for us to agree on this issue there is a path where we could I mean I'm I'm I second in this and customer Paul made this of amendment is there something that you could you could find a path that you would be able to support discuss after I'm counting up the votes, it's really, you're the only one I think would be malleable. Everybody else says hard no or hard yes, so it's really, the ball is in your court.

I'm actually also a soft no, which is why we took all day to get to this point.

A soft no. Okay. Well, he wasn't a soft no. And if you've got something, I'm up for it.

I don't know. That's why we are where we are. But I am happy to entertain it.

Yeah. And that's where I think, that's why I've kind of just closed my mouth, opened my ears, like Okinawa Grandma said. So let's hear from Council Member Batana.

Go ahead, please. Please, happy to figure this out.

between the Slorexa line and South Kihei Road as the delineator for where we should draw for what property should be included through this resolution. I had proposed that we adopt both and just say whichever is more mauka. If I had to choose now, it would be the Slorexa just because I'm more concerned about the impacts of sea level rise rather than where the infrastructure is. If I had to move off of that, the proposal would then be to send both to the planning commission, hear their comments, and then this body take a, make a decision based on the feedback that we get. So it would be to adopt both without, you know, Right, so you use the definition Venn diagram, and in my initial one, it would have been inclusive of everything. Just send the Venn diagram, and then they could say everything, or they could say either or, and I would just be open to hearing those comments. And I guess that's how I would try to find common ground, at least with the motion before us.

So, Council Member Palten, you made the motion to amend. What do you think of his proposal? I'm sorry, I'm not chairing your meeting. I'm sorry. I don't mean that. I'm still trying to get everybody together. Sorry.

I'm okay with it.

Council Member Batonga, she's okay with it? He's nodding his head. So how would we do that in both? I don't want to use your words. Maybe we could have these guys. Sure.

Do you mind repeating your proposed amendment?

Yeah. So, Chair, can you repeat the motion on the floor?

To disallow properties Malka of South Kihei Road from being included in H3 and H4.

So then I would just flip it. So we have everything Makai of the Slorexa line as the first one, right? So then the second one would be everything Makai of South Kihei Road. And then I think that gives enough flexibility for the department and for the commission to opine on.

Okay, heard. Nahulu, planning, thoughts? And then member Cook, did you have thoughts that you wanna add?

Okay, we'll go with planning.

Oh, I see your hand, Chair Lee, too. I'm gonna hear from Planning and Corp Council and then we can consider that amendment to the amendment.

Wait, no, is it an amendment to the amendment?

Okay, yeah. No, we did make a motion. I had Member Palten made a motion and second by Member Johnson. for amendment to the amendment. Okay, let's discuss potential amendment to the amendment.

Thank you, Chair. So the only, I think, comment, I'd like to focus on a specific property, maybe. So as an example, and we talked about the Shores of Maui property, which I guess in this example, we would then exclude because although it is Malka of South Kihei Road, it does not have more than 50% solarx line on it. That's correct. So I just wanted to make sure we're talking about the same thing.

So I don't really have- But it is in the shoreline.

It is in the shoreline, so.

So then it would be included in shoreline?

So then it would be included. I wanted to make sure that we're talking about the same thing. So Council Member Paltins doesn't exclude everything Malka. So we're just, okay. I don't think we necessarily have an opinion upon it. I think it's just trying to, I'm just trying to figure out what it is that we're moving forward so I can explain this to the Planning Commission, so. Yes. I don't think I have any opinion on that then.

Okay, thank you. Now, Hulu, do you have thoughts? And then I'll call on Chair Lee.

Not necessarily at this time. I think it's within your authority to move this forward. We just want to make sure that we're meeting the criteria before this is fully executed.

Okay and as a reminder and I'm gonna say this mainly for myself because I did forget to when I was repeating the motion that that does not include flood and I guess also I didn't ask you if it doesn't include shoreline and I just said it now but I don't think I asked you that earlier so does your does this motion I guess I won't do it myself Does this motion include, not include flood? Flood is a separate category and shoreline is a separate category?

You did ask me the flood when we came right back, but can you clarify what you meant on the second one?

the shoreline. So I think it's really only applicable to like that one Shores of Maui one where they are mauka of the highway, partially in the Slorexa and about halfway in the shoreline setback.

I did mean it to mean shoreline, but it doesn't have to.

Okay. Okay, that's also a soft no, and I appreciate that. We are working through it, okay.

Okay, Chair Lee. Hi, I'm gonna vote no on this. I didn't think a compromise is necessary. I think this whole process is pretty much arbitrary. It's based on people's different opinions, which may or may not be good. What we used to do in the old days was based a lot of our decision-making on facts and data established by professional people, not council members who have way different backgrounds and not necessarily the expertise in this particular area. And just how that turned out. yeah and i know you guys i know you guys gonna have your cheap shots but let me say my few words first if you don't if you don't mind i find that everybody has good intentions here but the fact is we have varying degrees of expertise and none of us are professional planners and analysts so my thinking is What I always try to look for is consistency, data that's reliable, and not try to pick and choose who should be on the list and off the list. It should be based on solid, solid established criteria, not feelings, but facts. So I will be voting no. Thank you very much.

Thank you, Chair. Okay, so if I could reiterate what I think the motion, even though we don't have a motion by Member Batonga and as suggested by Member Johnson, we are potentially discussing the amendment to sound something similar to the Mauka of South Kihei Road or the Slorexa Line, whichever is greater, more Mauka. Member Batonga? excluding flood zones and shoreline, uh, hazard erosion line member Paulton.

Um, I thought the shoreline was in reference to the 200 foot setback from the vegetation line.

Yes. So outside of that, separate from flood, potentially Malka of the, of the South Kihei road, um, or whichever is greater. Is that what I heard you say? Kind of.

I wasn't really looking to amend anything. I actually think it'd be cleaner if we give clear direction to the planning commission rather than submit, pick one, the South Kihei Road or the Solexa or maybe even both. If we can come up with a direction for that body, I think it would be more productive. But if members have a strong preference for one or the other, I'd be open to somebody else making a motion. Chair?

Okay, so then right now, we just have the original proposed motion, which is Mauka of South Kihei Road, excluding the flood zones. Yeah. And, and shoreline criteria if that's what you want. I'm not too sure.

Um, if we're not doing the, okay, then just the flood zone.

Okay. Um, it'll show that we discussed this again. I'm kind of a soft no, but I am going to vote no for now, but I'm happy to continue to have this discussion as we continue to have this discussion.

Yeah, this isn't over by any sense, so I got it. No, no.

All right. I'll be honest, members. Obviously, we worked on this one part, or rather two-ish particular results for nearly a month. The Planning Commission hasn't heard the first one yet. We're going to take a committee month hiatus to... participate in drip so the other one isn't coming out anytime soonish because we have that break. So I am trying my best to make it bite size pieces for the planning commission and trying to include all of this discussion so that they can see where our conversations with, I know it's a lot to ask from them and I am trying my best to make it as bite size as I can. Go ahead, Member Patong, and then I'm going to do a roll call.

Chair, so based on what you said, my understanding is that we're going to take a vote on the... On the original motion proposed by Member Palten. Okay, so the motion proposed by Member Palten. Yes. Can... Maybe it makes sense to ask this question after we take that vote then.

Okay.

Thank you.

Okay. Roll call, please.

Chair, proceeding with the roll call vote, Council Chair Lee?

No. No?

Council Member Cook?

No.

Council Member Johnson? Yes. Council Member Paltin?

Aye.

Council Member Rollins-Fernandez?

Aye.

Council Member Sinensi? Aye. Council Member Sugimura?

No.

Committee Vice Chair Betongen? No. Committee Chair Uhl-Hodgins?

No.

Chair, there are four ayes and five nos and zero excuse, the motion fails.

Thank you, Member Patonga. And then we'll move over to Member Rollins-Fernandez's proposed criteria. Go ahead.

Thank you, Chair. Since it was a close vote, can I ask that the committee report note the proposal and ask that they opine on it? Yes. I'd be curious to hear what kind of comments come back. And I just want it noted that I'm open to changing my position if the committee Planning Department or Planning Commission has a strong recommendation one way or the other, Slorexa or South Key Hay Road. Thank you, Chair.

Thank you for saying that. I was going to do that already because as you could tell how I felt, but I appreciate saying that as well and we definitely will make that noted. Thank you. Okay. I mean, we took like 10,000 recesses today, but I'm just double checking that nobody needs another recess before we move on to our next proposed criteria. Okay, great. Speak now or forever hold your shishi. Member Rollins-Fernandez, do you have anything?

I don't have to shishi. I was just checking on Chair Lee. I thought she had to go.

I think she picked up her medicine. Lucky for her, she lives in town and everything is like two and a half minutes away. Go on. Charlie, you good? You picked up your antibiotics or whatever you needed. We want you to be well.

Yes. Thank you very much. Yeah, I did. And I took my first dose. Thank you.

Okay. Even if you're not a professional planner, we still want you to be healthy and well.

I appreciate that. Thank you. Little Eve.

Okay. Okay, Member Rollins-Fernandez, would you like, I know you discussed it earlier, do you have anything else you would like to add for your proposed criteria? And then I'm happy to entertain your motion.

Nope. So for the criteria, I move to follow the ASF that I submitted that everyone should have that's uploaded to Chronicus, which would insert two errors clauses. Do you want me to read it again?

I mean, I don't need it because I have it right in front of me, but I don't know if anybody else feels the same way. But you can maybe, how about just give a super quick synopsis then for those watching along.

I'll just read it. The Council provides that to preserve potential long-term housing inventory established under Ordinance 5909, Council initiate a change in zoning referrals to hotel districts should be limited to properties located in the sea level rise exposure area that have historically operated predominantly as visitor accommodations. and whereas having owner-occupant or long-term residential use in no more than 25% of their total units in calendar year 2008, calculated by dividing the combined number of units classified as homeowner or apartment by the property's total number of units demonstrates the property has historically operated predominantly as visitor accommodations.

Thank you. That's my motion. Yes, thank you. So I have a motion. Paid by Member Rollins-Fernandez. Do I have a second? I have a second by Member Paulton. Hold on as I write my notes. Okay. Discussion. Member Rollins-Fernandez, discussion to your motion, if you have any.

Mahalo, Chair. And so staff helped me transmit a letter to the finance department and mahalo to the finance department for getting back to us so quickly with the information. And so two, four, six, eight. Eight properties had more than 25% residential use. Island Sands with 69.88% residential use. I'm going to round. Ma'alaiakai, 72%. Kihei Bay Surf, 60%. Kihei Bay Vista, 30%. loke lani 39 percent, hale onoloa 42 percent, pikake 58 percent, hale kai 1, 33 percent. So these would be the properties that would not be included on the list because it had more than 25 percent uh owner uh residential use either owner occupied or long-term rental and the goal is to reclaim housing from the tourism industry because as member balton stated and tests many testifiers and community members have stated we don't have a short-term rental shortage we have a housing shortage for our residents mahalo chair

Thank you, Member Hernandez. Member Paltin, do you want to speak to your motion too? And if not, I'm happy to entertain discussion. But otherwise, go ahead, Member Paltin.

I just would say that this was what I think people were talking about. I worked at the beach around 2008, well, from 2001, mostly at Fleming's and Canoe Beach. And it was during this time that person after person, so many people that I knew, hundreds of people that I knew, were seeing that they had to leave where they were living or look for new places to live because instead of getting $500 a month, they could get $500 a night. by converting to short-term rental. And I think these are the people that we were referring to, whether it was always meant to be short-term rental or it was always meant to be housing, it is what it is. And that was the real lived experience of myself and others and kind of created that animosity towards short-term rental because hundreds of families that we knew that made up our community were pushed out by the platforms that were created through software that was sent throughout the internet. And that's an experience that still is very real to me. just sitting at the beach watching that people don't drive and hearing another family another family and and people were saying like well do they have a permit you know like and they're like no they don't have a permit and then it's like well they must be illegal or whatever but um Back in those days, we didn't even understand all the nuances. It was just like, this is happening. Hundreds of families in my community were pushed out because more money could be made renting it out nightly than monthly. So that's why I'm supportive.

Thank you, Member Palten. Shucks. Carla just asked me something and then it completely slipped my mind about right as I turned on my mic. Sorry, Ms. Nakata. Would you mind?

Sorry for the interruption, Chair. Staff just wanted to confirm I believe when Member Rollins-Fernandez made her motion, she only referred to the addition of the two whereas clauses, but staff wants to confirm that the amendments to the two exhibits in her ASF are also part of her motion.

Mahalo, Ms. Nakata. Yes. Okay.

Thank you. Thank you, Member Rollins-Fernandez and Member Palten. Does anybody have any discussion? If not, I do have a couple of questions, but Member Patonga, please go ahead.

Thank you, Chair. Member Rollins-Fernandez, can I ask where the 25% number came from? Sorry, you're still muted.

The 25% was, I think, the average of what the units for mixed use residential.

No, no, no. So I understand how you're calculating the percentages, but you're pegging it to no more than 25% owner-occupied or long-term residential uses within the building, correct? Where is that 25% coming from?

Yeah, the average of what was the mixed use before.

Oh, so of the properties on the Minnetonka list, that 25% was the average of the number of units being utilized for TBR. Or sorry, for... No, no, the opposite. Owner-occupied or long-term rental. Okay. So I guess my initial thoughts on the proposal are that it seems odd to disqualify a property that has three-fourths of its use, to tell a property that up to three-fourths of its use was for TVR that they can no longer do in TVR. If we had pegged it to no more than 50%, that would make more sense to me, Chair. And then... This criteria is only applying to the resolution before us. So that meaning it would only apply to the properties in the shoreline, correct?

You know, I think that question is for James, because I think that's what I was wondering too about the other criteria.

Yeah, so I guess I'm a little confused about how we're, because we're taking up different resolutions with different criteria. I'm confused as to how they're all interacting with one another. You know, I think that there's criteria that should apply throughout, you know, it being, you know, there are certain ones where like, it was always meant to be in workforce housing, for example. Those kind of things should permeate throughout. But because we're taking them up reso by reso, I just want to make sure that I'm clear that what's being proposed is only applying to the shoreline properties, and that seems odd to me. Go ahead. Mr. Krueger.

How does this potential criteria or even the previous potential criteria interact with the proposed properties in the current ASFs and then the entire list in its whole?

Thank you, Chair. So what we're interpreting what the committee is doing right now is it's setting each of the criteria for properties to qualify to be included in Resolution 26-129. So what staff was thinking is once the committee sets its slate of criteria, it would apply all of it to the list of properties that are remaining, you know, that haven't been included in previous resolutions to be sent to the planning commissions. identify what properties qualify under that criteria and then provide that list for the committee to see and then agree to incorporate into the resolution 26-129. So admittedly for staff, I do think we might need some clarity as to how Council Member Rollins-Fernandez's criteria interacts with the other criteria. If it's like Council Member Paulton's where there's some sort of, you know, maybe it doesn't apply in certain situations or if, her criteria would apply to all properties regardless of the other criteria. So for example, if any property had that over 25% residential use in 2008, regardless of locations, you know, in Slorexa and Shoreline, does that mean it doesn't make the resolution?

Mr. Krueger, you're asking me beyond reso 26-129. I think so. My answer would be yes.

Okay.

Yes. I mean, that's the point. We're trying to reclaim housing that was taken away by the industry for our residents. And the argument against us using these for residential use was that it wasn't suitable for long-term housing, but they did serve as long-term housing for a lot of people.

Thank you. I think we just needed to have that clarified on our end. Yeah. Member Batongan, did you get your question answered? Okay. I was gonna ask a very similar question because from A through H, the first two are Slorexa shoreline, the middle bunk, a chunk rather, is in the flood section. And then the last one is in Slorexa. I know you said it the last time we had the meeting. I'm sorry, not the meeting, this meeting. But just for the record for today's discussion, please remind us why you chose the date 2008.

Mahalo. I remember Paulton said it because I missed it in my opening remarks.

2008 was... Oh, I think that's when I was talking to Carla while I forgot everything she said.

Oh, yeah, yeah. So that was before the online platforms exploded because once, you know, Airbnb, VRBO, and then just like all the rest of the iterations of platforms became so... user-friendly and accessible to a larger group of people that's when it became easier to capitalize on our housing inventory and i think what was shared uh during testimony in bill 9 was that that these units weren't so much um like vacationers, it was more like commuters, like traveling construction workers or nurses. So they were like apartments that served the workforce as they were working on projects but didn't live on Maui full time. So it wasn't for tourists necessarily, it was to expand our workforce to get projects done.

Thank you very much, Member Rollins-Hernandez. Does anybody have any other discussion? Do you have any discussion, Member Cook? Okay, I have a little bit of discussion. So I'm not 1000% like opposed to this in concept, which is why I wanted to add my criteria in the beginning, unless it was originally for affordable housing, then it no longer qualifies. I would support something similar to this except for the fact that I just listed like majority of them are in the flood zone, which is a big, at least red flag for me in particular. So I understand the point of this. I completely hear what you're saying. I am going to be voting no though, but I do respect the point. Is there any other discussion? Go ahead, Member Patonga, and then followed by Member Paltin. Okay, go ahead, Member Paltin, followed by Member Patonga.

Oh, I did speak too, but I'll take it. I guess my question is for Corp Council. You better go first, because I just forgot it.

That's okay, we're teammates here. Go ahead, Member Patonka.

Thank you, Chair. Thank you, Member Palten. I guess I'm a little uncomfortable with the 25%. If it was 50, I'd be more agreeable because at this point, we'd be prohibiting units that were primarily used for a purpose from continuing to utilize that purpose. I would prefer that if you're predominantly one-way, like residential, you stay residential if you primarily... you can then do TBR. So I would rather it be at 50. And then the hierarchy of our conditions does impact my thinking. You made the point about like some of these properties being on the list that you had just proposed for being in the Slarexa or flooding or whatever that might be. So I would also, be looking for those to take precedence. I don't know how we're gonna work out these different criteria that we set when they come to conflict with one another, but I want it on record and how I'm thinking about it.

I understand the 50% or more. In that case, looking at Member Rollins-Fernandez's list, that would include A, Island Sands, B, Ma'aleakai, Ma'alaikai, C, Kihei Bay Surf, and G, Pikake. Island Sands is at nearly 70%, Ma'alaikai was over 70%, Kihei Bay Surf was 60%, and Pikake was nearly 60%.

And for clarification, that's residential, so they would be ineligible for conversion, correct?

They would be ineligible for conversion if you wanted to do your 50% as proposed.

So I guess for the proposal before us, I would be voting no, but I'm sharing where my head is at just in case.

Do you want to make an amendment?

I do not, Chair.

Okay, heard you. Does anybody else have any discussion? Member Palten.

Thank you. I have a question for Corp Council. We're voting on the criteria right now that we're utilizing to choose which properties to send to the Planning Commission to be considered for conversion from A1-A2 to H3-H4. Can the Planning Commission pick and choose criteria that we have sent them or do they have to abide by the criteria that we vote on? No.

Sure, great question.

Thank you for the question. I think that based on the Planning Commission's authority in zoning ordinances and whatnot, they have some broad discretion on how they respond because they can make suggestions and recommendations when they send it back. So if there's things in the record that they feel should be reviewed further, they can make those recommendations if they like.

So potentially they could change the criteria?

Well, they can make recommendations. Of different criteria. They can't make the changes themselves, but they can recommend that council makes the changes when it comes back through.

Okay, I don't have an amendment for this, but if it doesn't pass in its current form, I have a different form for it.

Okay. Member Cook, and then why don't you tell us your proposed motion after Member Cook speaks. Thank you, Member Cook.

Thank you, Chair. I won't be supporting it. I map back to... justification, defending it, like what we're doing in the Planning Department Commission and the Planning Department, it's gonna come back to us, and what the numbers from finance, what it's based on, how it's calculated, and we're just looking at that now, this kind of like, I understand the intent. I think raising it to 50% helps balance that aspect out because the majority was. This was in 2008. The prices are substantively different. These buildings are 18 years older. This has been... You know, right or wrong, these have been used for this for all this time. I'm still an advocate of using the tax money, leaving the places, taking the tax money, and building new comprehensively for it. So that's why I'm not, I want housing, but I'm not supportive of this because the age, and I think it would be contested, et cetera, so I'm not supportive.

Thank you. Member Palten and then Member Rollins-Fernandez.

I'll yield to Member Rollins-Fernandez.

Okay. Member Rollins-Fernandez, you can go ahead.

Mahalo Chair. I hear your concern about the flood zone. I also saw the videos in March of the back to back corner lows of the temporary housing being flooded. And that being a really scary situation at Colet Yolo in Lahaina for all the fire survivors. And that was more dramatic to me of a situation than what these apartments look like during the corner lows. I have served on the council with some of the council members who advocated for building housing in flood zones, flood inundation areas, and it's a kind of wild experience to be on the flip side when when new development was being proposed. And our concern was why build in the wetlands area, the flood zone area, and put the safety of our residents at risk. And now that those arguments are being used against my proposal. I think that, Our residents wouldn't necessarily need to own any of the units. These could be units where the state or the county or even like federal assistance where the government could buy and just rent them. And then when come time, uh decommission them and do it in a way that's more responsible than the private owner would do and also keep the residents safer than the private industry would these units or complex were permitted as being residential as you'll see in the lahaina strong reports that we received and I know Member Johnson is not in his seat right now, but he's always the one that's most actively trying to work to find that common ground between us as colleagues and try to collaborate as much as possible. And I appreciate that about Member Johnson, which is kind of the opposite of what Member Batongan has done. So I'm here, I'm open to hearing what Member Poulton has to propose. but it's a little frustrating to hear opinions from my colleague without any action back in it. Mahalo chair.

Oh, and here he comes. Member Johnson.

I was thinking your praises member Johnson.

She was, she was saying how you make for a wonderful peacemaker.

I'm sorry. I had to take a call. You know, Paul is calling my name and I got to go work on what's happening on the night. Sorry, but I mean,

No worries, we are just now gonna look to you to make the motion. No, I'm just joking. Member Palten, go ahead.

Um, my compromise was going to be to, um, exclude the flood hazard areas because of, um, the whole Oklahoma whole monies. Um, can't, I don't think they allow it in the flood hazard areas. Okay. And, and that would be, I mean, like member Johnson said, people can count and stuff. So then, um, perhaps that would save us some units.

Okay. So, If this then passes, well, if you wanted to make a motion, so I understand, it would be applicable to Island Sands, Ma'alea Kai, and Hale Kai. Because those are the ones that are not in the flood zone. I use this list to kind of double check what's in the flood zone and what's not in the flood zone. So what is in the flood zone in that list, A through H, is Kihei Bay Surf, Kihei Bay Vista, Lokelani, Hale Onololoa, sorry, and Pikake.

Just trying to get more units. If you say that's what it is, I'll believe you because I didn't do that.

I'm just looking at the list and I'm saying that this is what James told us is applicable. Our 10th council member right now, James.

He said no, no, no.

He said no, no. Okay. He'll be taking a pay cut probably.

Did you want to make the amendment to the amendment?

I was gonna wait until this one fails, but if we're so sure it's gonna fail, I can do it now.

Let's take the vote to make a new motion. Okay, we can take the vote, make a new motion. Member Johnson, did you want to have any discussion? If not, we're gonna take the vote. No, I support the amendment.

Okay.

But nobody made it.

Well, I support Council Member Rollins-Fernandez's efforts to do this, and so I'm waiting for the amendment. Thank you, Chair.

I will vote no on this one, and then I'll probably, because we didn't make that motion yet, support the next one. So roll call, please.

Chair, proceeding with the roll call vote. Council Chair Lee?

No.

Council Member Cook? No. Council Member Johnson? Yes. Council Member Paltin?

Aye.

Council Member Rollins-Fernandez?

Aye.

Council Member Sinensi? Council Member Sugimura?

No.

Committee Vice Chair Betongen? No. Committee Chair Uhu Hodgins? Chair, there are four ayes.

I turned off my mic right when I was going to vote. No, but you heard me.

Chair, there are four ayes, five nos, and zero excuse. The motion fails.

Okay, Member Palten, do you wanna make the motion to include, or I guess to exclude the properties as proposed that's on the flood?

Yes, I will be using the same exact ASF, but I will be saying that it doesn't apply to properties in the flood hazard area. Is that the right words?

Flood hazard area?

Does not apply.

Yes. Do I have a second? Second by? Second. Thank you.

Member Rollins-Fernandez.

In my notes, I write you down as KRF, so I was going to say, okay, KRF, but that's not how I should say it on the floor, but that's how I write it down. Okay, so I have a motion made by Member Paltin, a second by Member Rollins-Fernandez to take that list of proposed properties. I actually scribbled down Paulton. Oh, better. Excluding the flood zone properties. I'm not gonna do discussion again, because I feel like we did that the last time. So we'll go into roll call, please.

Chair, proceeding with the roll call vote. Council Chair Lee?

No.

Council Member Cook? No. Council Member Johnson? Yes. Council Member Paulton?

Aye.

Council Member Rollins-Fernandez? Council Member Sinensi? Aye. Council Member Sugimura?

No.

Committee Vice Chair Patongan? No. Committee Chair Uhu Hodgins?

Aye.

Chair, there are five ayes and four nos and zero excuse. The motion passes.

Okay, thank you. So we now did, it is four o'clock. We now did both criterias for resolution 26-29. As a reminder, we're gonna send down the discussed conditions for Maui Planning Commission's thought exercise so they could get back to us on what we discussed. So now I will move on to adoption of resolution 26-129. Oh, wait, we didn't do 130. I moved to file 130. Okay, can we do 129 first? Sure. Okay, thank you. So I can keep it in my head. And then if we don't mind doing 129 and then discussing 130, and then we can do whatever the body wants to do. Member Rollins-Fernandez, go ahead.

Hello, Chair. At what point, or are we just sending the conditions as ideas? Yes.

including but not limited to in the committee report.

Yes, including but not limiting to and sending the two proposed, the two discussed rather conditions from Member Palten and your discussed condition as well. We're gonna send it down to the Planning Commission so that they can propose conditions as we propose criteria. Member Batangan.

Thank you, Chair. Since we're just transmitting the conditions, am I able to share my thoughts on the matter for the record?

Sure.

Okay. So since my understanding is that conditions for change in zoning need to be tied to impact and that these change in zoning are to maintain status quo, I, in my individual capacity as a member, because we have not taken formal action on this, do not feel it's appropriate to condition these. I also think that... it's worth noting that this body chose to change the allowable uses of zoning. And so the only reason that these properties need to be rezoned is because of action that the council took. So I don't feel it's fair to put conditions on the change in zoning, which is a remedy to action that the county took. So I guess I want those two points reflected in the committee report. Thank you, Chair.

Thank you, Member Batonga. I heard what you said, but I was trying to plan my next move, but they got what you said, and they will transmit it to the MPC. Chair Lee.

Yeah, I'd like to just add my comments that conditions should be based on on a rational nexus and proportionality. And this is the standard in planning and in approving changes in zoning. So this is my point of view with regard to any conditions that are being proposed, as well as criteria. Thank you.

Thank you very much. Members, any other discussion on any of the discussed criteria? Go ahead, Member Palten.

Well, my discussion would be that we all agreed in the TIG that public access was important, one. The second on the rational nexus is that sea level rise is not fair and the shoreline is moving. and there are things encroaching onto public trust lands for commercial purposes. We don't need to take the action of rezoning to H3, H4, but we are. And so I think that together, property should work on what their certified state shoreline is and remove their encroachments from public trust lands because at the state level, it's illegal.

Okay, thank you. That was just discussion on discussed criteria. Member Senanti.

Mahalo, Chair, and thank you for the discussion. I think we all seen some of the images that came out of the Lowell hurricane this last 48 hours. So to me, I think discussion is very relevant. We're seeing the sinkholes, we're seeing everything. We're seeing the actual short-term rentals move off of their footings and MOCA, like we always had planned for our communities, is to start moving MOCA. And so I know, Chair, all the different categories we spoke, we discussed in the TIG, this one is the most... you know kind of the the hardest one to to discuss so um we should i think we should take the time to really look at this category and so um i'm supportive of sending out this to the planning commissioner thanks thank you very much remember rollins fernandez hello chair um so as i said before we took

or lunch recess, that this tension between collective obligation over the public trust and individual property rights is not unique to Maui. In California, permits requiring the removal of structures when the sea reaches a certain level are not considered exactions since one, an essential nexus between removing the property and protecting the coast, and two, is rough proportionality to the potential harm. County's responsibility is to protect public trust for everyone today and for future generations. While the properties are already developed, the climate and the landscape around it has and continues to change. We've seen what just happened on Kauai. We've seen what happened earlier this year on Maui. Some other things that are going on in the Ninth Circuit in cases like those evaluated by the California Coastal Commission, courts have ruled that simple land use restrictions such as preventing use are not exactions because no land or money is being transferred to the public. They are evaluated under general regulatory taking rules rather than a heightened Nolan Dolan scrutiny. In Pacifica, California, a bluffed up apartment buildings collapsed into the ocean and then owners sued the government claiming they were entitled to compensation for loss of use. So these are the things that we would be exposing ourselves to. The hurricanes are just getting stronger and coming more frequent. Look at Polo Beach, Kiabakapu, trashed. The sand you see making it across the road, that's the natural system of developing sand dunes. The sand dunes are supposed to replenish the beaches, duh. But instead of sand, there's just dirt and it's turning the ocean brown and it's killing the coral. So without the dune systems, there soon will be no white sand and chocolate water that no one's going to want to swim in or sunbathe at. So all this revenue that you're expecting is not going to be there because we're destroying our environment. To think this will last is foolish. Even a seawall is not going to stop storm surge. We've seen videos of massive boulders being tossed like pebbles on Kauai. We've seen what happened on Lana'i at their pier. Continuing to deny the power of the ocean I don't know how much more we need to learn. We're not gonna be generating the revenue that council members here think that we're going to. And I'd like that reflected in the record. Mahalo, Chair.

Thank you. So any other discussion? Not on the conditions rather that we're sending down for? Not on 26-129. Okay, let me figure out where I was then. Okay, so members, it's getting near the end of our day. So I will entertain a motion to recommend the adoption of resolution 26-129, incorporating any non-substantive revisions.

So moved. As amended.

I'm gonna get there, yeah. I have a motion made by Member Cook, second by Member Sugimura. Okay, so now I would like a motion to amend referencing the ASFI distributed today. I will entertain a motion to amend resolution 26129 by replacing it with the proposed CD1 version attached to the ASF and the motion to incorporate the approved criteria which include 51% or more in the Slorexa, properties not originally built for affordable housing. And the, I guess, where did my list go now for a member? Rollins Fernandez. The exclusion of Island Sands, Ma'alaikai, and Haleikai as listed on her ASF, which does not include the flood zones, and it's related to these three properties. Those are the three approved conditions today. I'm sorry, criteria.

Chair, apologies. So I think staff does need clarification on that last one. During the discussion, our understanding was that the criteria would apply to broadly across the properties that could be included.

I was going with the ASF as properties A through H and Member Paltin removed the flood zone ones. So that limits it to Island Sands, Ma'alaikai and Haleikai 1.

So, okay. So stuff is clear that it just affects those three properties.

It just affects those three properties. That is it. Cause this was her ASF that we work through and we removed the flood. That is it. So as a reminder, the criteria includes the three that I just listed and you got it and we got it.

Yes, sir. Apology, oh, sorry.

No, no, no. You tell me you got it first.

Yes, sure. So just to clarify on that first one, it's also not just the Slorexa, but it's also the flood zone and the shoreline.

Yes, the flood zone and the shoreline. Thank you very much. Slorexa, 51% or more. Shoreline, flood, that was one. properties not previously constructed for affordable housing, and disallowing these three, Island, Sands, Malakai, and Halakai, one as listed on Member Rollins-Fernandez ASF to remove for the flood. Any discussion, Chair Lee?

No. Clarification. Did we take any votes on any of what you said previously? that's all we because I know some of them failed didn't some of them fail yes but the ones that I just listed passed okay that was my question yes all of the ones that you just listed passed yes it's it's been a long time coming so yes okay that's just what I needed to know okay thank you very much thank you any discussion

Member Johnson.

Just really quick. You know, I supported some of these amendments and some of these, the works that some of these council members put in. I appreciate that. At the end of the day, I don't support adding any more units to H3 and H4, so it's going to be hard for me to support. Thank you, Chair.

I appreciate you being with us the entire time though member Johnson and helping us work through the proposed criteria regardless of your support. I do appreciate you being here.

Um, I appreciate you. This has been a really tricky meeting and remember all these things. I, I'll see you after we'll have a drink or something, but this is a lot of work, man.

Why are we limiting herself included but not limiting to hello.

I'll see you at the forum tonight.

Okay, any other discussion? If not, I'm going to have a roll call. Member Cook.

After this, we're gonna have our amendments. I have an amendment that I wanna put in.

You have an amendment? This is the main motion.

Okay, so I have a motion to amend the main motion.

Okay, we're gonna take a recess because Member Paltin has been waiting to use the bathroom for the last few minutes. We're gonna take a two-minute recess then. Okay, it is 4.14. I'm gonna take a two-minute recess to come back at 4.16. Go. You know what I should have asked you is where's my ASF? Okay, members, thank you so much for that quick recess. Member Cook had a good question. Thank you. My ASF incorporated the proposed properties from Member Cook, Member Sugimura, and Chair Lee, because the staff looked at the list comprehensively and applied the criteria to the list. And so I appreciate your guys' ASF, but it did fold into mine. Okay, good. Yes.

I have a question. All four of mine?

Yes, so we folded it in. So if any property, I'm not going to do specifics, if any property meets those criteria, they are on the list. Okay, wonderful.

Thank you.

You're welcome. Members? Including my four? of any property. Your list was folded into mine. Member Cook's list was folded into mine. Member Sugimura's list was folded into mine. So I have a motion for the main motion, but I would need a motion to amend. So Member Cook, do you want a motion to amend? Member Sugimura, would you like to second the motion? Okay. We kinda had discussion. Do we need any more discussion? I feel like all we've been doing is talking stories. Shane, I'm so glad you're comfortable with us, my brother.

Could you clarify? Yes, go ahead. Chair, could you state the amendment?

The amendments, it was passed out earlier. The amendments are the criteria, I guess three criteria. The first one's a long one, as we discussed before we went into recess. And then again, all of the properties were folded into my ASF, including yours, hers, and Charlie's.

Thank you.

You're welcome. Okay, roll call, please.

Chair, proceeding with the roll call vote, Council Chair Lee.

Aye, with reservations.