Rebuilding Lahaina: Homeowners In The Seaside Town May Get A Reprieve From Coastal Zone Rules

Lahaina homeowners trying to rebuild after the August wildfires will be able to rebuild faster than might have been previously possible thanks to state and county actions that are removing restrictive regulations and speeding up the permitting process.

First, the Coastal Zone Management Act has been suspended for Lahaina under Gov. Josh Green’s Emergency Proclamation Relating To Wildfires, said Mary Alice Evans, director of the state Office of Planning and Sustainable Development. The office administers Hawaii’s CZMA, which governs much of Lahaina’s burn zone. 

Second, Evans said, a new county Recovery Permitting Center will hasten the process for obtaining building permits, the main land use entitlement needed now that the coastal zone law is suspended.

The Recovery Permitting Center will be open only for residential properties, and the county has not unveiled an alternative plan for commercial properties. This along with other issues makes the  future of Front Street uncertain. Still, the result of the current plan could significantly speed building for residential property owners.

“Everything combined will make a huge difference,” said Mahina Martin, public affairs director for Maui County. 

The pathway for expedited residential rebuilding is opening as Lahaina moves from the immediate response phase to the recovery phase, which includes rebuilding damaged structures. 

Earlier this month, officials from the county and U.S. Army Corps of Engineers met with homeowners to discuss progress made toward clearing lots and restoring infrastructure. Lots are mostly cleared of debris, Army Col. Eric Swenson said. And, although drinking water and waste water systems aren’t fully restored, property owners will be able to obtain permits to rebuild homes before the systems are fully in place, county officials said.

Green said the decision on how fast to rebuild homes in the burn zone lies with Maui County. But he said the state wants to remove state-level impediments to rebuilding homes destroyed by the fire. 

“We’re trying to be compassionate and help people get their lives back,” he said. 

Traditional Permitting Method Could Take Years

The alternative, standard approach would mean multiple regulatory hurdles that could delay permitting projects for months or years, land use experts say.

Perhaps the biggest obstacle involves the coastal zone management law, which governs shoreline setbacks and so-called special management areas. Congress passed the Coastal Zone Management Act in 1972 to “preserve, protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zone.” 

The act delegates to the state the authority to implement the program, which Hawaii does through its state coastal zone management statute. That law sets basic requirements, but further delegates power to the counties. Central to the statute is the designation of shoreline locales as “special management areas.” 

Much of Lahaina, including the burn zone makai of Honoapiilani Highway, is designated as a special management area — which means people seeking to rebuild there would face a complicated process if not for the emergency proclamation, said Thorne Abbott, a former Maui County coastal planner who now works as a consultant. 

The law generally requires developments costing more than $500,000 to go through a lengthy SMA permitting process, including a public hearing where opponents can object to the project. Multifamily home and commercial properties would need to go through this “major permit” process, which means Maui County might have to hold hundreds of public hearings.

“If you’re first up, it might take you a year” to get a major permit, said David Callies, a retired law professor and author of “Regulating Paradise: Land Use Controls in Hawaii.” “But as you said there are hundreds. If you’re number 55, it could take three years.”

Less expensive projects need a less costly “minor permit,” but that can still take time.

Although single-family residences smaller than 7,500 square feet are exempt from the SMA permitting requirements, people wanting to build a home still must apply for a formal SMA assessment to determine that property is indeed exempt, Abbott said.

Abbott stressed that the SMA and other county permit rules do more than simply make things slower for owners. For instance, he pointed to the so-called “Miracle House” on Front Street, which survived the fire — in part because of its steel roof — while surrounding structures with shingle roofs burned. 

Abbott said he helped the owners obtain their SMA permits to renovate. As part of the process, the owners consulted guidelines for building in Lahaina’s historic district and learned a steel roof wasn’t merely fire resistant but consistent with the area’s historic architecture.

“There’s some real benefit to going through these processes,” Abbott said.

Martin said the county’s goal is to balance safety and environmental protections embodied in the coastal zone law “with the reality of a disaster and the need to rebuild.”

“The path forward is what needs to be addressed,” Martin said. 

Commercial District Rules Still Up In The Air

Numerous questions remain, particularly related to commercial rebuilding. 

There’s the potential application of historic preservation and environmental review laws to some projects, which could trigger the need for archaeological studies and environmental assessments or environmental impact statements, Abbott said.

Additional issues could complicate rebuilding along Front Street. In addition to special management areas, the coastal zone management statute governs shoreline setbacks. State law requires a setback of at least 40 feet from the shoreline and imposes restrictions, including a public hearing requirement, before most types of construction can happen in the setback zone. 

New Maui shoreline setback rules were adopted by the Maui Planning Commission in November but have not been signed by the mayor. Those establish a shoreline setback of as much as 200 feet in some instances. But it’s not clear when or if Mayor Richard Bissen will sign those into law. 

Beyond shoreline setbacks, there are other issues likely to hinder rebuilding Lahaina’s commercial area along Front Street, Abbott said. Portions are designated as flood hazard areas by FEMA, which means getting insurance for anything built there would be costly even if the county allowed it, Abbott said.

With the effects of climate change and sea level rise, even more of the burn zone is likely to be at risk over time. Still, Evans said the state wouldn’t likely impose a retreat from the coastal zone if the community didn’t want it. Other communities have rejected the idea of managed retreat, she said.

“What we’re finding in community outreach meetings is that they absolutely do not want to retreat,” she said. “And they view the discussions of such as an attack on their communities.”

Still, Callies said, given Lahaina’s proximity to the ocean, it’s conceivable someone would go to court to limit or stop rebuilding, even if property owners wanted to go back home. 

“It would not be popular,” he said of such litigation. “But that’s never stopped them before.”

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.