Topa Financial Center Harn~y J. Lung Gr,rnl F.

Allison
700 Bishop Street. Suite 900 Cr;stal K. Rche Georgia A.nton
Honolulu. Hawaii 96813 Karin L Holma Andrew D. Chianese
Bruce D. Vos~ Lianne T. Chung
P.O. Bo.\ 1760 Craig P. \Vagnild John D. Feny III
Honolulu. Hawaii %806 Ryan H_ Engle Sharon E. Har
Michael C Canoll Da\ id A. lmanaJ..a
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Fa\: (808) 533-413-l Sarah 1vL Love Jai Keep-Barnes
E-mail: mail@legalha\\aii.com i\latthcw C Shannon Michael R. Kirgan
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Katherine E. \!c;-,:.;cb
A Pai tnt..:r~hip o/
Lm Corporcltiun') or C'oun;,cl:
A. Berna1d Bajs
Jean K. Camphdl

October 18, 2019 Jason N. Baba

( 1957-2001)

Via Email - mlindon@lindonlaw.net

Mark Lindon
Lindon Law Corporation
4010 Prada Del Trigo
Calabasas, CA 91302

Re: 47-640 and 47-600 Hana Highway, Hana, Hawaii 96713 [TMK Nos.
(2) 1-5-003-006 & -0221

Dear Mark:

This letter is in response to your questions for Lloyd Eric Cotsen ("Eric")
regarding his ability to construct, renovate, and rebuild dwellings on the two properties identified
as TMK No. (2) 1-5-003-006 ("First Lot") and TMK No. (2) 1-5-003-022 ("Second Lot" and
collectively with the First Lot, "Lots") after his acquisition. Given our discussion and your
request, we have started In Section II by providing short, direct answers to the questions you
presented. This letter then goes on in Section III to provide more detailed information and
explanation regarding potential future development of the property.

Please note that the Lots are located in the Special Management Area ("SMA") of
the State of Hawaii. This means that any construction on the Lots is subject to the review and
approval of the Maui Planning Commission ("MPC"). As explained below, the MPC has
significant discretion in making determinations and granting approvals for any construction in
the SMA.

I. QUESTIONS PRESENTED

1. Can Eric tear down the existing house and build another (potentially larger) house
on the First Lot?

2. If he can build a new home on the First Lot, are there any size or height
limitations?

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October 18, 2019
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3. If he cannot build a new home on the First Lot, can he "renovate" the existing
house where he tears it down to studs or foundation, but keeps the same house
shape and square footage (and builds a similarly-sized house)?

4. In addition to the activity he undertakes on the main house (completely new house
or a "renovation" of the existing house), can he build a moderateI y-sized guest
house (800 - 1,500 sq feet?) on the First Lot?

5. Can he build a normal-sized house or a guest house on the Second Lot?

IL SHORT ANSWERS

1. Yes, subject to permitting and approval processes.

2. Yes, while there is no floor area size limitation, the house is subject to the height
and setback requirements shown in the table below. Also, if the floor area of the
house is 7 ,500 square feet or greater, the construction of the house is classified as
a "Development" (as defined in HRS § 205A-22) and is subject to a more
comprehensive approval process by the MPC, which may include an
environmental impact statement/review and a public hearing.

3. See previous answer.

4. According to the county zoning and state land use regulations, Eric can build up
to three dwelling units on the First Lot. These dwelling units can be comprised of
one single-family dwelling and two accessory dwellings; two single-family
dwellings and one accessory dwelling, or three single-family dwellings.
According to Maui County Code ("MCC") 19-35-020, the maximum floor area of
any accessory dwelling is 960 square feet.

5. In speaking with a planner from the Maui County Zoning Department, we have
been informed that there is a note in the MPC system dated August 16, 2002 that
states not to issue any building permits for the Second Lot without Board of
Water Supply approval. The assumption here is that there may be an issue related
to providing water to or discharging water from the Second Lot. We would need
to perform more research to confirm the nature of this issue.

III. ANALYSIS

Construction of dwelling units on the Lots requires compliance with both the
county and state requirements. First, the MCC zoning regulations contain guidelines for

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Mark Lindon
October 18, 2019
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permissible uses of the Lots. For county zoning purposes, the Lots are located in the Maui
County Interim District. Second, the Hawaii Revised Statutes ("HRS") and Hawaii
Administrative Rules ("HAR") contain additional state-level regulations for the construction on
the Lots. For state regulatory purposes, the Lots are located in the Rural District and also part of
the SMA.

A. MCC Zoning Regulations

Pursuant to MCC 19.02A.030, the Interim District provides for one single-family
dwelling per 6,000 square feet of land constructed according to the following Development
Standards:

DEVELOPMENT STANDARDS
Minimum lot area 6,000 square feet
Minimum lot width 60 feet
Maximum height 30 feet
Minimum yard setback (Up to and including 15 feet in height):
Front: 15 feet
Side: 6 feet
Rear: 6 feet
(More than 15 feet in height):
Front: 15 feet
Side: 10 feet
Rear: 10 feet

In addition to the preceding requirements, any construction must comply with the
more restrictive state land use guidelines, which limits the number of dwelling units to one per
one-half acre (discussed below).

Additionally, up to two accessory dwelling units may be constructed on the Lots.

MCC 19.35.050. For lots 43,560 to 87,119 square feet in area, the maximum gross covered floor
area of each accessory dwelling may not exceed 960 square feet. MCC 19.35.020.

B. State Of Hawaii Regulations

1. State land use regulation. Pursuant to HAR§ 15-15-27, permissible uses

within the Rural District include the construction of one dwelling unit per one-half acre of land.
This limitation would apply to either a regular single-family dwelling or an accessory dwelling.
Therefore, up to a maximum of three dwelling units may be built on the First Lot.

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October 18, 2019
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2. Special management area. Pursuant to HRS Chapter 205A, the State of

Hawaii has set forth special controls on Development within the SMA. The legislature has
empowered the MPC to develop a procedure governing construction in the SMA. The MPC has
set forth the procedure for any construction in the SMA in Chapter 202 of the MPC Rules 1
("MPC Rules"). Any proposed construction in the SMA is subject to an assessment and
determination by the Director of the MPC. MPC Rules§ 12-202-12. Generally, a landowner
will submit an assessment application to the MPC and, subject to environmental preservation and
other factors, the Director of the MPC will determine if the proposed construction: ( 1) is exempt
because the actions are not considered a Development (discussed below); (2) requires a minor
permit; (3) requires a major permit; (4) requires an emergency permit; or (5) cannot be processed
due to inconsistencies with the countywide plan 2, applicable island plan 3 , community plan4 , and
zonmg.

Pursuant to HRS § 205A-22, a Development does not include construction or

reconstruction of a single-family residence that is less than 7 ,500 square feet of floor area and is
not part of a larger development.

IV. CONCLUSION

If Eric is considering the construction or reconstruction of a single-family

dwelling unit that is less than 7 ,500 square feet of floor area on the First Lot, the MPC will likely
find that such construction or reconstruction is exempt and not considered a Development.
Receiving an exempt finding by the MPC should simplify the permitting and approval process.
Constructing or reconstructing additional dwelling units or a single dwelling unit on the First Lot
that is 7 ,500 square feet or greater of floor area will be subject to additional requirements
according to the MPC Rules.

Additional research would be required to determine if construction on the Second

Lot is possible. The first step in that research would be to contact the Board of Water Supply
and request additional information on the issue that existed in 2002 that caused the flag in the
MPC system. This should be followed by working with a planner familiar with the development
on the Island of Maui to determine if there are additional barriers to development on the Second
Lot.

1
http://www.co.maui.hi.us/DocumentView.aspx?DID=8413
2
https://www.mauicounty.gov/420/Countywide-Policy-Plan
3
https://www.mauicounty.gov/1503/Maui-Island-Plan
4
https://www.mauicounty.gov/DocumentView.asp?DID=l 710

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If you have any questions or would like us to perform further research, please do
not hesitate to contact me.

Sincerely,

BAYS LUNG ROSE & HOLMA

By:~~
Attorney at Law, A Law Corporation
Its General Partner

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