Access Denied

The Molokai Planning Commission (MoPC) backtracked on their backtrack last week, deciding not to hear an appeal of the 20,000 square foot farm dwelling being built by Pierluigi Zappacosta on Molokai’s west end.

Over nine months ago, the commission voted to exempt Zappacosta from obtaining a Special Management Area (SMA) permit. The commissioners voted to hear an appeal of their decision last September, but changed their minds last week, saying they were legally unable to allow an appeal. Most of the commissioners showed remorse while delivering their verdict last Wednesday, but said they hoped to use this case as a catalyst to change laws that led to the long, confusing process.

“It isn’t ideal and I’m very heavy-hearted,” Chairman Joseph Kalipi said. “Some of the language got messed up. We have to review some of the rules we have for Molokai.”

An Unappealing Process
The confusion started last May when West Molokai resident Steve Morgan submitted an appeal of MoPC’s original ruling. Morgan argued that the plans for the new compound, which call for three separate buildings with multiple kitchens and a dozen bathrooms, did not qualify for an exemption under county laws.

The County of Maui Planning Department, represented by Attorney Jane Lovell, filed a motion to dismiss Morgan’s appeal in June. Lovell asked that the appeal be thrown out because Morgan did not follow proper protocol when voicing his complaint. She cited several reasons, the most important of which was that Morgan made his appeal to the wrong person. Lovell said MoPC couldn’t hear an appeal on their decision, so the case would have to be discussed by a higher authority.

“It makes sense when you think about it,” she said during a Sept. 28 meeting. “The idea of an appeal is that when someone makes a mistake, you take it to the next highest authority to fix the mistake. Therefore, the Second Circuit Court is the right body to hear this appeal.”

Morgan disagreed. He argued that the process started with a decision made by County Planning Director Jeff Hunt and he was appealing the director’s decision to the commission. While MoPC’s rules state that the commission ultimately has the decision making power, the only actual paperwork exempting Zappacosta from an SMA permit was filed by the director.

“The Director’s letter clearly states that he had made a decision…the director ends the letter by recommending that the Commission concur with his decision,” Morgan said.

The commission initially agreed with Morgan’s argument. However, part of the legal process required Morgan to prepare a draft of the decision for the commission to sign off on. After two attempts, the commissioners were still not happy with the draft Morgan created. They decided to reverse their decision last week and not hear the appeal.

Morgan said he planned to argue against the current ruling in hopes of using the case to provide more clarity in MoPC rules. He also can attempt to appeal the commission’s decision to the Second Circuit Court.

Changing the Rules
Several commissioners admitted they now thought the building should not have been granted an exemption, but said they could not reverse the decision because their hands were tied by the legal process.

“I personally think the wrong decision was made,” Commissioner Nat Bacon said. “But I don’t think you can undo something like that.”

All parties agreed that the convoluted language in the planning department’s laws were a major obstacle. Attorney Lovell said to navigate them without a legal background is near impossible and that she would recommend to the department that they be reviewed.

“I also think that the commission was confused by its own rules and sometimes by its own attorneys,” Morgan said. “What frustrates me the most is that our community was never given an opportunity to review this project before it was approved.  That’s the whole point of SMA laws.”

The commissioners took the first step to solving these problems at the meeting by forming a subcommittee to review their own laws. The subcommittee will consist of four members and be headed by Vice-Chair Steve Chaikin.

“This case gives us an opportunity to look at the bigger issue here,” Chaikin said.

Morgan said while it was tough to find the silver lining, he was happy that his attempted appeal was able “to shed light on a process that had failed to acknowledge the importance of community input.” Instead of opening the floodgates for more development, Morgan said he thinks the Zappacosta case will help keep large scale construction at bay.

“I think you will find everyone much more reluctant to allow something like this to happen again. If something like this were to happen it would be immediately appealed to the circuit court,” he said.