HONOLULU (CN) – Maui’s coastline is shrinking. And for years, the rules governing what can be built near the shore have been debated among developers, environmental advocates and fire survivors trying to rebuild their homes in Lahaina.
On Thursday, the Hawaii Supreme Court heard arguments on whether Maui County overstepped its authority when it revised those rules and created a series of exceptions that allow developers to bypass county review altogether.
The case pits the Maui Tomorrow Foundation, a Maui-based environmental nonprofit, against the Maui Planning Commission and the County of Maui. The foundation argues that the rules passed in 2024 illegally hand over oversight responsibilities to developers, allowing them to decide for themselves whether a project qualifies for an exemption from the permitting process.
The fight is over the Maui Special Management Area, an area that covers environmentally sensitive lands near the shoreline under state and federal coastal protection law. Development within the zone generally requires a county permit.
Maui’s revised rules created 15 categorical exceptions to that permitting process. Maui Tomorrow argues that the exemptions are so broad that they effectively eliminate the county oversight required by state law.
Maui Circuit Court Judge Kirstin Hamman agreed, ruling in November 2024 that the rules “impermissibly delegate the Commission’s obligations to SMA users.” The county appealed, and the Hawaii Supreme Court took the case last year, bypassing the Intermediate Court of Appeals to take it up.
Deputy Corporation Counsel Brian Bilberry, arguing for the county, told the justices that the issue comes down to a distinction: The difference between genuine development and routine activities that were never intended to require a permit.
“We’re really talking about managing developments versus this category of uses, activities and operations that are not developments and are not subject to review and going through the permitting process,” Bilberry said.
He argued that the county’s exemptions largely mirror exemptions already recognized in state law and provide guidance to property owners about what does and does not require a permit. He likened the exempt activities to replacing a washing machine, installing new ceilings or building a laundry room.
“The codified exemptions are guidelines for a citizen who has pre-applied to decide whether a minor or routine use, activity or function requires that citizen to complete an application, pay a $205 assessment fee and then call planning staff and city professionals to review and determine if their kitchen table requires an environmental assessment,” he said.
Lance Collins, arguing for the Maui Tomorrow Foundation, said the county’s revisions removed a critical protection built into the statute.
Under state law, Collins said, an activity can only be exempted if the county first determines it will not harm or significantly harm coastal resources. The new rules, he said, skip that step entirely, turning a conditional exemption into an exemption.
“The exemption is no longer conditioned by subsequent language at the end of that section of the definition that says: provided that whenever the authority determines that there is a significant impact or cumulative effect, the exemption does not apply,” Collins said. “That’s at the heart of the problem.”
He said the old rules required applicants to submit an assessment county officials reviewed and placed on a planning commission agenda, giving the public an opportunity to weigh in. Under the new system, he said, exempt activities can continue without any district review at all.
“There’s no notice, there’s no process, and nobody’s going to know anything if somebody decides not to comply,” Collins said, “unless they’re watching their neighbors.”
Some judges focused on who, if anyone, is actually making the determinations required by the statute.
Supervisor Lisa Ginoza noted that while the new rules require applicants to submit statements saying they do not need a permit, the rules also specify that the county does not review or respond to those filings.
“What is the proper role of the commission here?” – asked Xinoza.
Bilberry said the declarations still provide public notice and members of the public can challenge projects they believe are wrongly excluded.
Chief Justice Vladimir Devens was skeptical, suggesting the system puts the burden of catching problems on the public rather than the county.
“You have to trust the public,” Bilberry said. “You have to trust them to read the law and understand the regulations.”
Judge Todd Eddins turned to what he described as the central issue: whether the county had eliminated any mechanism to catch cases where exempt activities could cause significant environmental harm.
“Whenever the authority finds cumulative impact, an exempt use becomes a development,” Eddins said. “And yet Maui County’s amended rules essentially eliminated any mechanism for the authority to make that finding with respect to those 15 exempt activities.”
Collins agreed, calling it the strongest version of Maui Tomorrow’s argument. He also advanced a broader theory that counties can’t pass coastal regulations less protective than those already on the books.
Eddins asked if that would prevent counties from making even modest changes. Collins said Maui’s reviews were far beyond modest.
“I don’t think this is just a slight reduction,” Collins said. “This is wholesale deregulation.”
Bilberry also informed the court that Governor Josh Green had signed new legislation earlier this month that amends the state’s coastal zone management statute to clarify that certain exempt activities are not intended to require an SMA permit. Bilberry argued that the new law supports the county’s position.
The panel consisted of Chief Justice Devens, Judges Sabrina McKenna, Todd Eddins and Lisa Ginoza and District Judge Paul Wong.
The court took the case under advisement.
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