West End Mansion Appeal to be Heard

By Dan Murphy

The Molokai Planning Commission (MoPC) took the first step last week to sort through the tangled mess of legal issues surrounding a proposed 21,642 square foot house on Molokai’s west end. The group decided to hear an appeal of their April 22 ruling that the house did not need to obtain a Special Management Area (SMA) permit.

The house, proposed by Pierluigi Zappacosta, would be the largest home ever built in the state of Hawaii on land zoned for agriculture. This spring, MoPC decided that despite its large size, the Zappacosta dwelling legally qualified for an exemption from the SMA permit. Maui County and MoPC laws state that all single family dwellings are exempt from SMA permits as long as they do not show any threat to the environment or neighboring lands.

Steve Morgan, a Kaluakoi resident, appealed the exemption in May on the grounds that it should not qualify as a single family dwelling. That is when the county got involved. Jane Lovell, an attorney representing the County of Maui, filed a motion to dismiss Morgan’s appeal because of several legal issues. Last week’s meeting was held to decide whether or not the appeal would be heard.

“All I am really doing now is jumping through these legal hoops, hoping that somehow we can get to the real meat of the situation,” Morgan said.

Appealing Arguments
In her presentation to the Commission, Lovell argued that the MoPC was legally incapable of ruling on the appeal or even hearing it. She said her request to dismiss the appeal was based solely on the law and had nothing to do with the details of the Zappacosta house.

“This motion is not to determine whether this is a good project or a bad project, or if the decision this Commission made on April 22 was a good decision or a not so good decision,” she said. “Instead, this motion is focused on whether this Commission has the authority to hear Mr. Morgan’s appeal – and they do not.”

Lovell said Morgan’s appeal was invalid because it was not made in the proper timeframe, by the correct person or – most importantly – to the right body. She said because MoPC made the decision to exempt the permit they could not hear an appeal to reverse their own decision.

“It makes sense when you think about it,” Lovell said. “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 refuted by explaining he was appealing a decision made by the County Planning Director, not MoPC. The law states that the planning commission is the only group that has the authority to grant an exemption, but it is the Planning Director who physically signs off on the document for exemption.

Lost in the Law
All parties agreed that a lack of clarity and vague language in Maui County and Commission laws were responsible for the confusion surrounding the appeal of Zappacosta’s house.

“The rules as written can be confusing and part of the problem is they are a little hodge-podge,” Lovell said. “But, that being said, I do think that the appeals provisions are quite clear.”

Morgan disagreed. He said that he contacted the Planning Department several times to make sure he was properly filing his appeal, but they were slow to respond with any information. When they did respond, Morgan said the information they gave him was either wrong or more confusing that the law itself.

Many members of the Commission agreed that the laws were not clear and that they were also confused by what exactly was required.

“I see my position as an advocate of the average citizen. If you take a whole team of lawyers against an ordinary person, the lawyers will win every time,” said MoPC vice-chairman Steve Chaikin.

Moving Forward
With that in mind, the Commission voted to reopen the Zappacosta case and hear Morgan’s appeal. The date for Morgan’s chance to state his case has not yet been set. Planning Program Administrator Clayton Yoshida suggested that the Commission wait a few meetings before reopening the case because they already have a large agenda for their October meetings. The Commission will have their plates full in the Oct. 14 meeting reviewing changes in the Maui County zoning laws.