Corp Counsel: South Maui plan meets legal minimum on costs—but Council can demand more

Maui County Council members spent all Monday and half of Tuesday working through the South Maui Community Plan update, getting a legal opinion on the plan’s fiscal estimates, hearing more public testimony and moving to strengthen the plan’s emergency evacuation provisions.

Deputy Corporation Counsel Michael Hopper told the Disaster Recovery, International Affairs and Planning Committee that, in his reading, the plan’s implementation schedule likely meets the minimum requirement under Maui County Code 2.80B.070 for a “fiscally sound financial program.” But he made a distinction between legally sufficient and satisfying: whether the plan’s cost estimates are precise enough, he said, is a matter of Council discretion, not legal compliance.

“I cannot say that the current proposal would violate the code,” he told members. “But I think, again, this is sort of up to the Council—what precise items you want to see in here, and if this is lacking, what additional information you would want put in the plan.”

He also surfaced a detail that speaks directly to who ultimately pays for the infrastructure the plan calls for: an early draft policy, 2.1.3, would have supported funding mechanisms—traffic impact fees, special improvement districts, higher park-rental charges for visitors—explicitly for “new projects pay their fair share” of transportation costs. The Community Plan Advisory Committee deleted it during its review. It is not in the version currently before the Council.

Committee Chair Tamara Paltin had asked for the legal guidance Friday, after members expressed unease with roughly $500 million in listed but largely underestimated plan costs—a concern first raised in testimony last week by community advocate Dick Mayer, who said only 80 of the plan’s 145 capital-project line items carry cost estimates.

Mayer returned Monday to give the committee a cumulative-impacts presentation he’d promised the previous week, using traffic modeling based only on residential growth. He told members he excluded visitor and tourism traffic entirely, meaning his projections likely understate future traffic congestion.

He also broadened his fiscal critique beyond South Maui specifically: as far as he’s aware, he said, no community plan in Maui County has ever had the “fiscally sound financial program” required under county code actually developed, which he argued is why community plans across all nine districts “never get implemented.”

Testimony continues to press cost and housing questions

Albert Perez, executive director of the Maui Tomorrow Foundation, returned Monday with a more specific legal argument, telling the committee that Maui County Code 2.80B.070’s requirements—including a “fiscally sound” financial element—are mandatory, not permissive.

“The Council is required to ensure that the community plans meet those criteria,” he said.

The Council also has investigatory powers, “so it need not just accept the draft but could look into potential impacts of proposed community plan provisions, as well as modify those provisions,” Perez said.

He also argued the cost of the infrastructure itself is only part of the burden: operating and maintenance costs typically go along with the size of the system built to serve new development.

Testifier Kay Anderson cited minutes from a March 4, 2025, Maui Planning Commission meeting showing a staff population forecast of 3,700 to 6,100 new South Maui residents over the plan’s timeframe, requiring an estimated 800 to 1,700 new homes—while the draft plan provides for roughly 8,000 units.

“Right now, we only have infrastructure available for our current people that are here, not the additional 400 to 500 homes. We cannot even sustain the additional [units] that have not been approved,” Anderson told the committee, urging members to cap entitlements at already-approved projects and push any additional growth areas to the plan’s next update cycle.

Keola Whitaker, an attorney who represents developers in workforce-housing negotiations, including for the Honuaʻula (former Wailea 670) project, testified on draft policies in the draft plan that would mandate where required workforce housing must be located.

He argued that requiring compliance with the community plan risks conflicting with Maui County Code Chapter 2.96, the county’s separate workforce-housing ordinance—potentially forcing developers to renegotiate recorded housing agreements mid-project. He asked the committee to soften “required” to “encourage” in the disputed policies and move the substance into Chapter 2.96 instead.

Council Member Keani Rawlins-Fernandez pushed back on his framing directly, telling him that instead of providing community workforce housing, his client, specifically Wailea 670, “is trying to profit over the ʻāina by building luxury housing.”

“I’m all for workforce housing,” Whitaker said. “It should be a requirement for developers.”

Noting that he drafts workforce housing agreements for multiple clients, he said he’s not making a policy argument about whether such housing should be required. Instead, he said he was asking to have the requirement in the correct place in law to avoid legal entanglements. “My job is to help the developers comply,” he said.

Lahaina wildfire survivor Greg Rylsky said evacuation infrastructure and fire-mitigation measures should be required and verified before large residential projects are allowed to proceed.

Not all testimony echoed those concerns. Johann Lall told the committee a community plan isn’t meant to function as a fixed budget, but as a tool for prioritizing future funding requests as they arise. He cautioned against assuming new housing units translate directly into proportional population growth, pointing to vacancy rates and populations coming and going as complicating factors. He argued that recycled-water expansion and housing built closer to jobs represent opportunities—not just costs—for easing South Maui’s water shortfalls and traffic congestion.

A plan, not a permit

For all the alarm over entitlements and unfunded infrastructure, the community plan itself doesn’t authorize a single unit to be built. It designates where growth could occur and sets policy direction—the kind of document Planning Director Jacky Takakura described, in written comments to Maui Now last week, as “not an approval for individual development projects.” Every project still has to clear its own sequence of reviews: zoning changes, special management area permits where applicable, subdivision approval and building permits. Each is a separate point for project reviews.

Water availability looms as brake on development. The Department of Water Supply told Maui Now the Central Maui system supplying South Maui is running at 98% to 100% of its maximum reliable capacity, with “no additional source capacity” available for new or expanded service. Absent a new source—desalination, expanded recycled-water use, water conservation or something else—much of what the plan designates for future growth has nowhere to draw water from. In that sense, the plan is aspirational by necessity: it lays out where the county would allow growth if the resources existed to support it, not a guarantee that they will.

That constraint buys time, but it doesn’t resolve the funding question raised earlier. If water capacity does eventually open up, the plan currently has no impact-fee or concurrency mechanism to ensure that growth pays its own way, since the Community Plan Advisory Committee deleted policy impact fees in the plan before this draft ever reached the County Council.

Committee acts on evacuation-route concerns

By Monday afternoon, testimony on wildfire evacuation had translated directly into committee action. Members amended a draft policy calling for the county to map old plantation, kingdom, government and military-era roads for possible emergency evacuation use, expanding it to explicitly include private roads, raising its priority from medium to high, and adding the Maui Emergency Management Agency and the county’s Department of Management as lead agencies responsible for carrying it out.

Discussion named two specific roads as candidates: old Mākena Road, which historically ran from near Tedeschi Winery in ʻUlupalakua down to Mākena Landing, and a separate road members referred to as “Oprah’s Road”—a ranch road on ʻUlupalakua/Haleakalā Ranch land where talk-show host and Maui landowner Oprah Winfrey holds an easement. Members recalled the road being used informally as an evacuation route, with Winfrey signing an indemnification agreement with the ranch to allow public use at the time.

In other action

The committee also took up a proposed Homelessness Strategic Plan for South Maui, a high-priority item estimated at roughly $100,000 that would draw on the county’s 2022 Cost of Government Commission report as a starting point.

Discussion turned to language: some members wanted to describe a related low-barrier shelter concept using “puʻuhonua,” the Hawaiian term for a traditional place of refuge, arguing it would reclaim cultural space in a community where much of it has been paved over. Others cautioned the term carries specific cultural and spiritual weight that could divide the community if attached to a homeless shelter without broader buy-in first. The committee settled on describing the shelter as a “safe space, culturally infused” instead, checking the language with Department of ʻŌiwi Resources Director Kaponoʻai Molitau.

A counterpoint on enforceability

Not every disputed word in the plan was moved toward softer language. On a coastal-resilience policy addressing managed relocation in North Kīhei, a committee member proposed changing “the plan may address” to “the plan must address.” The Planning Department asked for flexibility, citing the complexity and unpredictability of future coastal conditions. The committee sided with the stronger wording anyway.

What’s next

One question is likely to resurface before this process ends: whether the Council itself has more room to amend the plan after adoption than an ordinary applicant would. A council member asked Corporation Counsel Tuesday whether the code’s one-year restriction on community plan amendments—which by its own terms applies only to applications “from a person”—actually binds the Council or the planning director, since county code excludes both from that definition. Corp Counsel’s preliminary answer was that the reading appeared correct, though he wanted to confirm it further. A closed executive session on legal questions is expected later.

On Monday, Paltin told members the committee was running behind its internal schedule—it had hoped to reach Section 3, the plan’s growth-boundary framework by today, but won’t. She said the committee’s review will likely continue past an Oct. 8 target and “into next term.”

Today’s separately posted Disaster Recovery, International Affairs and Planning Committee meeting has been canceled, but the committee will continue under the same recessed meeting at 9 a.m. today at the same Teams link and in Council Chambers. No further oral testimony is scheduled, though written testimony continues to be accepted.