Council committee hears more on eminent domain proposal for landfill expansion

After hearing impassioned pleas Tuesday from Lahaina wildfire survivors for quick action on a proposed eminent domain condemnation, Maui County Council members struggled to pin down the property owner on what it would take, or cost, for the county to acquire the nearly 20-acre quarry for final disposal of toxic ash and debris.

About a dozen testifiers, including some who lost homes in the wildfires, told members of the Council’s Government, Relations, Ethics and Transparency Committee that they are pained to see any delay in the removal of an estimated 400,000 cubic yards of fire debris from devastated Lahaina town.

“We don’t want to wait anymore,” said Paele Kiakona, president of Lahaina Strong, a grass-roots organization dedicated to supporting the recovery and resilience of Lahaina.

“My grandma is getting into her older age now,” he said. “For her whole life, she struggled to get that house and that property under her name. She finally did it months before the fire. The fire took the home away.”

Kiakona hoped his grandmother would be “able to stay in a home that belongs to her.”

If the eminent domain action doesn’t go forward, “it will only hamper and hinder the progress in Lahaina,” he said.

Also, a recent lawsuit challenging the temporary disposal of ash and debris at Olowalu could lead to an injunction, and that would stop debris storage there, Kiakona said. And, “all progress in Lahaina’s going to stop.”

Komar Maui Properties bought 19.66 acres adjacent to the Central Maui Landfill from Alexander & Baldwin for $700,000 in December 2015. The property is considered the ideal site for debris disposal because the 50-foot-deep former quarry site has already been excavated, and Maui County has a head start in obtaining permits from the state Department of Health. On Feb. 13, ACM Consultants Inc. appraised the property value at $830,000.

The latest Maui County offer for the property, known as Lot 1B, was $1 million. That came from Mayor Richard Bissen on July 21, said Department of Environmental Management Director Shayne Agawa.

The US Army Corps of Engineers has been clearing Lahaina properties of debris. Truckloads have been taking it, temporarily, to the Olowalu disposal site, despite community opposition.

Transportation costs from Olowalu to the Central Maui Landfill have been estimated at $60 million, according to Agawa. If the Federal Emergency Management Agency no longer covers 100% of transportation costs, Maui County would be “on the hook” for 10%, or $6 million, he said.

Andy Naden, executive vice president and general counsel of parent company Komar Investments, told council members that, since purchasing the property in 2015, Komar intended to develop a landfill next to the Central Maui Landfill. But he said Komar could not get a permit for the project and was unable to proceed despite working with three different county administrations and a succession of Department of Environmental Management directors.

Naden said he believed Komar was “making progress” with the county, including Mayor Bissen.

“We were surprised to get the eminent domain proceeding, but we understand that that must go forward,” he said. “It’s kind of a two train track. We will continue to negotiate to try to do this quickly and quietly, and we will also understand if it ends up going to court.”

Council Chair Alice Lee told Naden that the county faces an emergency situation.

“You haven’t been able to work out a deal with the county in decades,” she said. “So, why can’t you just step aside and let us move forward?”

“That may end up being the result,” Naden responded. “But we were not looking for a deal. We were looking for permission. We wanted the permit to move forward. We have never put profit over the community and over the environment.”

Nevertheless, Lee said, Komar has not been able to conclude an agreement with the county, and “we need to move forward as quickly as possible.”

Naden said that, for that reason, it’s important for Komar to get permission to proceed as soon as possible. Komar has designed, operated and managed over 11 landfills throughout the country.

“We are experts in this matter,” he said, but “we have been stonewalled consistently through various devices over the 10 years.”

For example, he said, the county unilaterally downzoned the property in 2020 and that resulted in the loss of a landfill permit attached to the property. Agawa responded that, when the county had no ownership or interest in the property, it therefore had no interest in keeping it permitted.

Naden maintained that Komar is the best option to develop the landfill expansion for Lahaina debris and additional municipal solid waste, even though it currently lacks a permit to do so.

“We really believe we can do it quicker, faster and safer than any governmental approach,” he told council members. “But, on the other hand, if the County of Maui, Shayne (Agawa), Mayor Bissen and your honors wish to do it, we will step back and have made a recommendation how that can happen . . . We are not getting in the way of this opportunity.”

Council Member Tasha Kama asked how much it would cost the county to obtain the property.

Naden said it would cost $1 to turnover the deed to the property to the county and then a “percentage participation” in future revenue.

“So that it would not cost the county money now, and, as the landfill was utilized, we would participate going forward,” he said. “So it would be an exchange and a public-private partnership interest.”

“We have never thought about selling it. We just wanted to participate,” he said.

Council Member Yuki Lei Sugimura said she heard about a meeting between Komar owner Kosti Shirvanian and the mayor (without naming which mayor) and wanted $60 million for the land. She asked Naden if he could confirm that.

“I will confirm that my boss and our visionary is a very grand person, and it would not surprise me that he was being very bold at a certain point,” Naden said.

He said that Komar has proposed two options to the county: First, Komar would develop the landfill at a cost of approximately $40 million and provide Maui County a “very deep discount” for depositing its waste there; or, second, the county would develop it, and Komar would get a royalty, which is a payment to an owner for use of a property or asset.

Naden said the county offered a land swap as early as 2015 for property nearby, but that deal never materialized. He said that later, in 2018, Komar was told by the county to go ahead and develop the landfill, but the zoning and permit were no longer available.

“We were blocked,” he said. “We are here (now), and it’s not because of us. It’s because of the county.”

Agawa said the land swap situation Naden was referring to stemmed from past administrations, and the deal described by Naden involved different circumstances.

“The situation is totally different,” Agawa said.

The quarry property being sought by the county is landlocked for the private owner because the county has adjoining property rights on three sides (mauka, makai and east side), and there’s a 50-foot cliff from the Pulehu Road side of the property, Agawa said. If Komar were to develop the property as a landfill, it would need to construct a road from Pulehu Road down to the bottom of the pit, he said.

Agawa reiterated that Komar also would have less solid waste disposal capacity at the adjacent property because it could not lean up material against the county landfill, although the county could do that and gain 20% more capacity in air space.

Tamara Farnsworth, former Environmental Protection & Sustainability Division manager with the county, appealed directly to Komar to sell the property to the county for the appraised amount of $830,000.

“I implore you, be the heroes of this story, and not the villains,” she said. “Do you want to look back and be seen as the folks who gave this gift to the people of Maui? Or, do you want to be remembered as the ones who stood in the way of Lahaina’s recovery and healing?”

And, if Komar refuses to sell, Farnsworth said the Council should “do the right thing” and approve the eminent domain. “It is in the best public interest,” she said.

Naden took exception to Farnsworth’s “villain” comment.

“To be framed as the villain is very painful for a company that has been committed to this county for over 25 years,” he said.

“We are not getting in the way,” Naden said. “We want to be the heroes.”

Committee Chair Nohe Uʻu-Hodgins deferred committee action. She said the proposed eminent domain resolution will return to the full Council for further consideration on March 22.

If the Council passes it on first reading, then the resolution could be taken up for second-and-final reading on April 5.

The proposed eminent domain resolution needs Council approval on two separate readings. If the Council approves seeking condemnation, then the County would initiate eminent domain proceedings in 2nd Circuit Court. The county could 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. Ultimately, a judge would decide how much the county should pay for the property.