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Zappacosta Appeal Shut Down
Molokai resident moving to a higher authority.
The Zappacosta development has moved beyond whether to build the 20,000 square-foot farm dwelling, but has shined a light on the rules and the procedures of the Molokai Planning Commission (MPC).
Steve Morgan’s last appeal to revoke Zappacosta’s Special Management Area (SMA) permit, made to the MPC, was denied on the basis that the entire process was presented to the wrong body.
“Ultimately it’s our decision – and there’s no ambiguity in that,” said vice-chairperson Steve Chaikin.
Morgan disagrees. Nearly a year ago, he began the appeal process against the decision to exempt the Zappacosta dwelling from an SMA permit. He made his appeal as a community member, on the basis that the application did not fulfill permit exemption requirements.
He made his appeals against the director of the County of Maui Department of Planning because he saw two decisions were made – the director’s and the commission’s, who concurred with the director.
‘Protest Vote’
The commission, however, said that a concurrence is not a separate decision. Chaikin explained that the planning department looks at the assessment materials – which include survey maps of the area and cultural, historical and environmental evaluations – and writes a report for the commission. The commission can then request additional materials if unsatisfied, but did not in the Zappacosta case.
Both Morgan and the director presented their case in ‘Findings of Fact’ documents, and the commission agreed with the director’s findings. However, not all members agreed: five of the six members present during the Feb. 10 meeting voted to deny Morgan’s findings, with Nathaniel Bacon dissented.
“It was a protest vote,” Bacon said. He was not a member of the MPC when the original exemption decision was made in April 2009, and felt it was the wrong decision.
“I can understand why [Morgan] was rejected in the end” based off legal rules. “I just don’t think the initial decision was right,” he added.
Continuing the Fight
However, Morgan is not done with the Zappacosta case.
“This lays the legal ground work to continue,” he said. Morgan is preparing to file a personal lawsuit against the planning department on the basis that his due process rights were violated, because of the lengthy and often confusing steps within the department’s appeal process. His lawsuit will also address if the project itself violate SMA laws – bringing attention back to revoking the exemption.
“If I got nothing out of this, it’s still a positive step by going to evaluate the rules,” he said.
The commission has set up a subcommittee to review their rules.
“This is not a rewrite of the rules,” said chairperson Joseph Kalipi, but will establish “language that makes better sense.”
Steve Morgan vs. MPC
April 16, 2009 – the Director of the Planning Department recommended to Molokai Planning Commission (MPC), the Zappacosta Farm Villa receive a Special Management Area (SMA) exemption.
April 22, 2009 – MPC considered the director’s recommendation and voted to accept the exemption
May 24, 2009 – Steve Morgan appealed to SMA exemption to the MPC
August 25, 2009 – Director filed a motion to dismiss Morgan’s appeal
Sept 28, 2009 – MPC denied director’s motion, and instructed Morgan to prepare findings of fact, conclusions of law and a decision and order – i.e. why the MPC should appeal the exemption
Dec 2, 2009 – Morgan filed his proposed findings
Dec 4, 2009 – Director filed objections to Morgan’s proposed findings
Dec 9, 2009 – MPC heard Morgan’s argument on his proposed findings and director’s objections, and rejected Morgan’s arguments, asking him to revise and resubmit his findings
Dec 23, 2009 – Morgan filed revised proposed findings
Jan 5, 2010 – Director objected to Morgan’s revised proposed findings
Jan 13, 2010 – MPC held hearing on Morgan’s revised findings and director’s objections, and voted to reject Morgan’s findings
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Justice?
To the writer of “New Homes bring Jobs”- I have no desire to eliminate jobs on Molokai or encourage long term welfare. While welfare can at times serve as a needed assistance to families that need help, the continuous reliance of welfare is no doubt destructive to our people. The ultimate form of charity is assisting in such a way that gives those who are in need, the ability to take care of themselves, whether it be in the way of training or helping to provide funds for those are clearly qualified but simply need the financial assistance to move ahead.
As far as clean energy, I have been in full support of these efforts and I believe that moving ahead with “Clean energy” is essential for the future of our island. Our dependency of imported fuel is no doubt expensive and makes us vulnerable. I also believe that clean energy has the potential to create a new economic base for our island.
As far as corn goes, that issue will most likely resolve itself. The water consumption itself will sometime in the future cause folks to question the validity of that sector of industry on our island. This will probably never be truly evaluated unless the job quotient can be replaced through an alternative method. I do believe that that time will come, with or without my opinion on the matter.
The Zappacosta issue has nothing to do with these issues. The Zappacosta issue comes down to one essential item “Justice”. In modern law, “Fair and Equal application of the Law” is the essence of “Justice”. Regardless of how much money you have and regardless of the color of your skin, justice insists that everyone is treated equally and fairly in regard to application of the law. This is the issue that continues to concern me with the Zappacosta project.
At the Dec 9th Molokai Planning Commission meeting, Vice Chair Steve Chaikin went on record stating that “the inconsistent manner in which SMA rules are enforced is so apparent in the Zappacosta case” Commissioner Chaikin noted that one month prior to the Zappacosta hearing, a small East End house was denied SMA exemption because it could not be determined whether the garage was a one or two car garage. At the Commission meeting which followed the Zappacosta hearing, the Kaneshiro family stood before the Commission as they were lectured about the importance of SMA rules. What was the Kaneshiro family doing that was worthy of such a lecture? Conducting a small honey bee operation that had little or no environmental significance. The example of this inconsistency is even more blatant when we look at non profits such as the Veterans Administration and the hurdles that were required by our Vets in order to get their project through.
In the case of the Zappacosta home, approximately 15 times the size of the average Molokai home, within four hours after the plot plan and dimensions of the Zappacosta project were submitted, the Maui Planning Director stated that he had completed his assessment and recommended that the project receive SMA exemption, meaning that no SMA would be required. Six days later our own commission rubber stamped this project. Because the State Shoreline certification had expired, a last minute plot plan was submitted by the builder, thus moving the house a hundred feet back, out of the State shoreline area. As a result of the new plot plan being approved within hours after submission, the Planning Director never caught hold that the house in its new location was approximately six feet over the legal height limit.
Adding to the list of application failures, illegal grading had taken place prior to the SMA application being submitted. The response by the Planning Director in regard to cultural, and archeological impacts, stated that these items were excused by the Planning Department. The reason given was that grading had already taken place and there was no way to determine these impacts. Of course if you haven’t already caught on, it was the illegal grading by the applicant himself that interfered with the ability to conduct an environmental or historical evaluation.
In another statement, Commissioner Chaikin also went on record stating that in speaking the with the County Planners for both Kauai and the Big Island, that in either one of those county’s, this project would have never been given an SMA exemption.
SMA laws are laws created by the State and enforced by the County. Personally, I believe they are good laws as the intent is to protect our coastal shoreline resources for the better good of the public. The SMA process also allows community input, something that is very important to our island.
Do I think it should take an excessive amount of time to complete this process? No I don’t. On the other hand, a project that received SMA exemption within a few hours after the application was completed, is irresponsible. When one project is singled out and given favoritism, every other person who goes though the process in a legitimate manner, is victimized.
Mahalo,
Steve Morgan
New homes bring jobs
Mr. Morgan and associates want to Molokai remain a Welfare, move off to work Island. I am sure the clean energy and corn are next on the hit list. My children would love to stay on Island but the current economic policy are sending our children away.