County bill advances to allow nonconforming structures in Lahaina to be rebuilt as they were before the wildfires

A committee of the Maui County Council has advanced a bill that would allow people to rebuild the homes and businesses to the way they were before they burned in the August 2023 wildfires, even if they don’t meet the current code. 

Bill 105, which passed unanimously out of the Disaster Recovery, International Affairs and Planning Committee on Tuesday, will likely go to the full council for review in March, said Council Member Tamara Paltin, who chairs the committee and holds the West Maui seat. 

Paltin said she was “relieved,” given that multiple applications are awaiting approval by the Planning Department and will have a way forward if the bill is passed. 

The latest version of the bill says that if a nonconforming building on Maui or Lāna‘i has been damaged or destroyed to an extent of more than 50 percent of its replacement cost due to a disaster, it can be rebuilt the way it was, as long as property owners meet certain conditions. That includes providing evidence of the nonconforming parts of the structure that existed prior to the disaster.

Owners would have four years from the initial date of the mayor’s or governor’s emergency proclamation to rebuild the structure or resume the use. For the Maui wildfires, they would have until April 1, 2029. The county planning director would be allowed to grant a two-year extension for properties within the historic district or special management area along the shoreline. 

All three Maui County planning commissions backed the bill, though Moloka‘i Planning Commission members asked that their island be excluded. 

Planning Department officials say the current code doesn’t account for large disasters like the Aug. 8, 2023 wildfires that destroyed more than 2,200 buildings in Lahaina and 26 structures Upcountry. Many of the destroyed buildings were decades old and nonconforming. 

Nonconforming structures aren’t illegal, according to the department. It simply means that the way they were built or what they were used for is no longer consistent with the current code. For example, a business could be operating in a building that has since changed to residential zoning, which prohibits retail uses. 

“So many of the things that made Lahaina special were nonconforming,” Planning Director Kate Blystone said last week during the committee’s first hearing on the bill. “They were established well before zoning, and we want to be able to allow some of those things to come back.” 

One thing that made Lahaina special was how closely packed and walkable the community was, Blystone said. She added that the Planning Department is in talks with the Fire Department about how to bring back the density in a safe way, part of which will come down to the building materials used.

Under Bill 105, the fire chief could require homes to follow stricter standards than required under the residential building code if necessary to improve public safety. The chief could also require property owners to move nonconforming sections to another area of the lot or structure. 

Multiple residents and business owners have backed the bill in hopes that Lahaina will retain its former character in the recovery. 

Theo Morrison, executive director of the Lahaina Restoration Foundation, told council members during a Housing and Land Use Committee meeting in October that a lot of Lahaina was nonconforming.

“That’s just part of its charm … and that’s also true for other small towns, like Makawao and Pā‘ia,” Morrison said.

The foundation manages 13 historic structures, of which 11 were destroyed in the fire. She said some of the historic structures may not conform to current standards — the Old Lahaina Prison, for example, didn’t have parking prior to the fire, and neither did most of the closely packed properties on Front Street. 

Christine Camp owns property on Front Street and Lahainaluna Road that housed 11 small businesses before the fire. Many of the employees have since moved out of Lahaina because they can’t find housing and jobs. Some have been calling her each month to ask when she might rebuild their store or the cart where they sold coffee. She said the properties may have nonconformities that involve shoreline setbacks and parking. 

“This is not the panacea,” Camp said during the October meeting. “There’s a lot of other things that we have to do to rebuild. But I believe the bold action that you’re taking is one of the most positive things I’ve seen coming out.” 

The Grassroot Institute of Hawai‘i, a nonprofit policy research organization, has pointed out that the Kaua‘i County Council enacted a similar amnesty program for nonconforming structures and uses after Hurricane Iniki devastated the island in 1992. The institute said that some properties, including affordable housing complexes in Lahaina, could be forced to rebuild with smaller or fewer units simply because they don’t meet the current regulations on minimum lot size or floor area ratio.

“Enacting Bill 105 (2024) wouldn’t guarantee that post-fire Lahaina would have the same look or feel as pre-fire Lahaina, but it would help restore more of it than otherwise would be allowed under current regulations,” the institute said in a July policy brief on ways to speed up rebuilding in Lahaina.

Maui County’s bill also does not allow nonconforming transient vacation rentals to resume if they’ve been discontinued for a year or more, but it makes an exception for owner-occupied or resident-owned properties like bed and breakfast operations where owners are required to live on site. 

That sparked debate in both committees, with some residents supporting the move over worries that the rebuilding of short-term vacation rentals might compete with the rebuilding of homes for residents. But others have said this would hurt property owners who converted their short-term rentals into long-term housing for displaced Lahaina residents and need to start making income again. 

Jordan Molina, director of the county Public Works Department, said the bill wouldn’t affect how the department does its building code reviews, but “the hardship is going to be more on the property owner to figure out what makes sense for them within the confines of these regulations.”

Greg Pfost, administrative planning officer with the county, said the Planning Department has the capacity to help homeowners whose rebuilding process might be more complicated. Pfost said applications have been coming in at a steady pace, so the department has been able to review those along with 4LEAF, the firm contracted by the county to help expedite building permit applications. 

“We do have some property owners that are awaiting this bill, hopefully to see it pass, so that they can move forward,” Pfost said. “We’ve been working with them already. So our goal is always with the disaster recovery to move these permits through as quick as we can.” 

Government agencies have been trying to expedite the permitting process and make rebuilding efforts easier. Last week, Hawaiʻi Gov. Josh Green signed an updated emergency proclamation for the fires that allowed Maui County to move forward with plans to temporarily suspend special management area rules for properties inland of Front Street within the burn zone.

Property owners now will be able to apply for building permits and avoid the lengthy special management area process that applies to certain properties along the coastline, as long as they’re within their pre-fire footprint and follow other state and county reviews.