Council gives initial approval to bill to rebuild disaster-impacted properties as they were

Maui County Council members voted 9-0 Friday morning for first-reading passage of Bill 105, which would allow disaster-impacted property owners to rebuild their homes and other structures to their original condition, even if they were decades old and didn’t meet current building codes. The measure advances to second-and-final reading.

The Council action follows last month’s unanimous approval by the Disaster Recovery, International Affairs, and Planning Committee, chaired by West Maui Council Member Tamara Paltin. It paves the way for Lahaina and Upcountry property owners, including churches, to rebuild after losing their homes in the August 2023 wildfires.

“Bill 105 provides property owners an opportunity to rebuild in Lahaina, while preserving community character,” she said. “This will help a number of people who already have their applications in at the Planning Department that are waiting for this bill to pass second reading, and it will help homeowners that have not yet got together with their design professionals, because they don’t want to move forward until it’s for sure.”

Project design changes are costly, she pointed out.

The Department of Fire and Public Safety raised public safety concerns about illegal or nonconforming development and the need for building separation, maintenance of setbacks, roadway improvements and other fire-protection measures.

Paltin said that committee agreed to amend the bill to allow the fire chief to require residential structures to exceed current building code standards as necessary to improve public safety, which could include requiring relocation of a structure.

The bill does not allow nonconforming transient vacation rentals to rebuild if they’ve been discontinued for more than 12 consecutive months.

Council members heard testimony from Lahaina transient vacation rental owner Sondra Haley, daughter of surfing legend Jack Haley, who with his wife, Jeanette, purchased the 375 Front Street property in 1988, with the intent to operate a short-term vacation rental “from day one.”

She told council members that as soon as her father “saw the home within steps of Shark Pit, it was love at first sight. He found great joy in talking story and surfing at Shark Pit.”

When the property was purchased 37 years ago, Maui County had no transient vacation rental regulations, Haley said. “However, when guidelines were established, we submitted historical documentation to the Maui County Planning Department through a Wailuku-based law firm supporting the property qualified as an existing non-conforming use… The Planning Department reviewed our submittal and concluded that the property was grandfathered, given the TVR use existed prior to (the ordinance) which was effective in September of 1991.”

The Planning Department provided Haley family members with a letter stating they were able to continue TVR use as an existing, non-conforming use, she said.

Then, the August 2023 fire destroyed the Front Street home, she said.

The provision of the bill that excludes vacation rentals from rebuilding only affects the Haley property, she said, pointing out that it has been legally operating as a vacation rental since the late 1980s.

“Our home is contaminated, unsafe, uninhabitable,” Haley said. “As a fire victim, we should not be penalized for circumstances beyond our control.”

Paltin said the prohibition against short-term rentals from rebuilding does not apply to non-conforming transient vacation accommodations that are owner-occupied, which would include bed-and-breakfast operations where owners need to live on-site.

She said she feels for the plight of the Haley family, but “the priority for me is our residents of Lahaina, and they may not compete with short-term rental uses on the rebuild. It’s a policy decision. It’s not something that the Council took away. It’s something that the Council is not giving back. We received over 200 pieces of testimony asking that the residents be prioritized over short-term rental uses.”

Council Vice Chair Yuki Lei Sugimura asked corporation counsel if the bill was “almost singling out this one family unintentionally.”

First Deputy Corporation Counsel Mimi DesJardins said she didn’t believe the legislation singled out one family. She said a more in-depth legal discussion about the consequences of the bill for anyone negatively impacted would need to be in a closed executive session, but she didn’t think that was necessary.

Carpenter Andrew Gibbs testified that he didn’t have a position on Bill 105 itself, but he expressed concern about an impending mass shortage of skilled labor needed to rebuild Lahaina.

Maui will face competition for building material and labor resources with Los Angeles, which also has sustained massive property losses from wildfires, he said.

“We have to plan accordingly,” Gibbs said. “We are coming upon some tough times, but this Council has already proven in the past year you are capable of providing the leadership that we need.”

Gibbs said labor resources should not go toward building luxury homes in South Maui. “We need to be allocating our resources for the Lahaina rebuilding effort,” he said.

The bill applies to a nonconforming building on Maui or Lānaʻi that has been damaged or destroyed more than 50% of its replacement cost due to a disaster. The measures allow such structures to be rebuilt as they were, to their former non-conforming condition, although property owners meet certain conditions.

For example, the rebuilt structure cannot be repaired, expanded, renovated or altered in a way that increases its nonconformity. Also, property owners have the burden of proof to show that the nonconforming part of the structure existed before the emergency or disaster. Evidence showing this is subject to review and approval by the County.

Property owners would have until April 1, 2029, to rebuild, although the County may grant two-year extensions for properties in historic districts or shoreline areas.

Officials, including Planning Department representatives, are working to expedite permit reviews, and Gov. Josh Green has signed an emergency proclamation to further streamline the rebuilding process, particularly for properties inland of Front Street within the burn zone and special management area.