Eminent domain proposal for Central Maui Landfill expansion sent to Council committee

Maui County Council members were sharply divided Friday over a proposal to use Maui County’s condemnation power of eminent domain to obtain a nearly 20-acre former quarry next to the Central Maui Landfill for the final disposal of toxic Lahaina fire ash and debris.

Council Chair Alice Lee and Council Members Tamara Paltin, Keani Rawlins-Fernandez and Gabe Johnson advocated acting quickly; approving the action on first reading Friday on the Council floor, sending it to committee for review and then passing it on second-and-final reading March 22.

Most council members, however, balked at immediate first-reading action. Instead, the eminent domain resolution will be reviewed March 19 by the Government, Relations, Ethics and Transparency Committee. Then, it will return to the full Council for first reading on March 22 and possibly second-and-final reading on April 5.

Since at least 2017, the county has tried to acquire 19.66 acres, known as Lot 1B, for landfill expansion from Komar Maui Properties, which bought the property in December 2015 from Alexander & Baldwin for $700,000.

Department of Environmental Management Director Shayne Agawa told council members Friday that the property is a “big hole in the ground,” perfect for a landfill. The former quarry site is approximately 50 feet deep, unlike other property in the area that’s at grade.

At Friday’s meeting, council members heard from Pulehu C&D LLC partners Ken Ota and Keoni Gomes. They testified against the proposed eminent domain action, saying they’re working with Komar to develop a construction and demolition landfill on the property.

Ota, the manager of Pulehu C&D, said the private facility would offer a lower tipping fee than at the county landfill and create an opportunity to dispose of Lahaina fire debris directly at the Central Maui facility, at a transportation cost savings estimated at $7 million.

Agawa pressed for Council approval of the eminent domain proposal because the clock is ticking on the County continuing to receive disaster-related funding and reimbursements from the Federal Emergency Management Agency.

“FEMA, they’re not going to be around forever,” he said. “At some point, they’re going end this 100% reimbursement phase. And then we’re going to go into this 90-10% phase where the county’s going to be on the hook for 10% of disaster-related costs.”

The US Army Corps of Engineers has been clearing Lahaina properties of debris, and trucks have been hauling it, temporarily, to the Olowalu disposal site. The amount of debris has been estimated at 400,000 cubic yards, enough to fill five football fields five stories high.

Agawa said the Army Corps estimates transportation costs of debris from Olowalu to Central Maui at $60 million, with FEMA covering 90% and Maui County 10%, or $6 million.

Maui County can use the adjacent 20 acres more efficiently, he said, and it has a head start in obtaining permits from the state Department of Health for a combined municipal solid waste and debris disposal site, Agawa said.

Lot 1B is landlocked, and Agawa said having a private facility there would require access through the county landfill. “There are going to be some issues with cross traffic that affects the safety of our workers,” he said.

Council Member Yuki Lei Sugimura said she felt “very badly” that the county’s need to expand to the Komar property is coming into conflict with plans for the private construction and demolition facility. She said she would like to see the matter resolved without going to court.

“I’ve known Ken Ota and Keoni Gomes for a long time,” she said. “These guys are good guys in the community. I always see them at functions, and trying to help everybody. And I see them sitting here today trying to help everybody.”

Sugimura maintained that a thorough committee review of the eminent domain proposal was needed first, preferably with a committee report.

“Whenever you take something to that extreme, it gets delayed,” she said. “It gets expensive. And who makes the most money are attorneys, I’m told.”

First Deputy Corporation Counsel Mimi DesJardins said the proposed eminent domain resolution would need Council approval on two separate readings, although a supermajority of six votes isn’t necessary.

If Council approves seeking condemnation, then the County would initiate eminent domain proceedings in 2nd Circuit Court, she said. The property owners, as defendants, would have 10 days to respond, and the county has the option to file a motion for immediate possession of the property.

The County would deposit a sum of money, estimated as just compensation for the landowner’s damages, DesJardins said. Ultimately, a judge would decide how much the county should pay for the property.

“There are opportunities in court for both the plaintiff, which would be the county as well as the defendants to receive due process,” she said. “We would ask for an expedited hearing so we could move this along as quickly as possible.”

Paltin suggested approving the eminent domain resolution on first reading Friday, taking it up committee on March 19 and pass it on second-and-final reading soon thereafter.

“I personally don’t believe that private industry that hasn’t done this before will be faster than the county,” she said. “I don’t think we have time to monkey around here. You know, it’s been seven months (since the wildfire). We took a detour to Olowalu, and now it’s time to move forward.

Council Member Nohe Uʻu-Hodgins, chair of the GREAT committee, said that a matter as substantive as eminent domain should not be a first option, and it should be carefully considered in committee.

“We have had a long terrible history with eminent domain as it relates to large landowners and small landowners,” she said.

Lee said it appeared more than likely that the County will need to proceed with condemnation.

“We’re in a crisis situation,” she said. “So, if it goes to committee, it’s prolonging the inevitable.”

Paltin said the County needs to show the federal government it’s taking action.

“There’s no guarantees of reimbursement to the level that we’ve been seeing so far,” she said. “Each step that we take forward to show the federal government, to show the Army Corps of Engineers, that we’re serious after we work to separate the temporary disposal site from the permanent disposal site, is critical in showing that we’re moving forward not only to our community but to our federal partners.”

Rawlins-Fernandez suggested the private landowner has something other than the community’s best interests at heart.

“They undercut the county, which is the community, in purchasing the land from under us from A&B,” she said. “A&B and Komar they’re capitalists. They’re in it to profit and make money. The county is nonprofit. The government represents the interests of the people.”

Johnson said he also wanted to move quickly.

“A daylong delay I’m not OK with,” he said. “The time is now and the action is go. We have to put ourselves in the shoes of those folks who lost everything.”

Rawlins-Fernandez said she wanted the community put first.

“I want our community to feel confident in us that we are putting their interest at the forefront of our decision-making,” she said. Old-school politics put relationships first in decision making, “even if it meant at the expense of the public interest.”

Lee said she could see from council members’ comments that there were not enough votes to waive committee referral, a procedural move that requires six votes. So, she suggested laying the eminent domain resolution on the clerk’s desk, having a discussion in the GREAT committee, and then bringing it back for first- and second-reading votes by the full Council.

Lee also alluded to another “potential solution,” without providing details.

Ultimately, Lee’s plan was accepted by council members, but not without a bit more resistance from the minority insisting on quick action.

Rawlins-Fernandez said there was no risk in voting for first-reading approval on Friday because council members could ultimately change their mind and reject the public condemnation of the property at second reading.

Having first-reading approval completed by Council would give the county leverage in negotiations with the landowner, she said. “When there’s pressure, people get creative.”