Civil Beat has updated the story to include Maui County’s response.

Three days after Maui County Council unanimously authorized Mayor Richard Bissen’s administration to acquire by eminent domain land next to the Central Maui Landfill for the final dump site of Lahaina fire ash and debris, the property owner offered to donate enough land to fulfill that mission but it was soundly rejected Monday night by the county.

Komar Maui Properties announced Monday morning that it was offering to donate a 5-acre section of the 20-acre parcel it owns adjacent to the landfill. That acreage would be big enough to handle all of the estimated 400,000 cubic yards of non-recyclable debris from the Aug. 8 fire in the West Maui town, according to Andy Naden, executive vice president and general counsel for parent company Komar Investments.

The way Komar sees the donation offer, the county would get the land for free and eliminate attorney costs for eminent domain proceedings, and the company would be able to move forward with plans to develop its own landfill on the remaining acreage.

“This is a win for the county. It’s a win for the community. And it’s a win for Komar,” Naden said. “It’s a gift to all of us.”

But that’s not the way Bissen and his administration sees it. In a news release issued Monday night, he said the county’s long-term landfill plan requires the full 20 acres and it will proceed with eminent domain because it is the best long-term plan for its residents.

Naden said while Komar has been “negotiating all along” with the county about the use of the property, it had not formally presented the offer to Bissen’s administration before Monday’s press conference at the Maui Food Bank — a site Naden said was chosen to show the company’s dedication to the local community.

In a press release Saturday, the county said the council’s decision to authorize eminent domain “marks a major step towards returning Lahaina survivors to their properties and permanently disposing of the debris from the August 2023 wildfires, along with securing additional airspace to accommodate future (municipal solid waste) generated on Maui island.”

After the vote on Friday, council member Tamara Paltin, who represents West Maui, said: “It’s a big relief off of the residents.”

Naden said Komar has the best interest of Lahaina and its survivors in mind and is asking for no money. But the company has three conditions for its charitable donation in which the county would be given a quitclaim deed to the county for the 5 acres carved out of the original parcel. The exact acreage would be jointly agreed upon by county and company engineers.

The Army Corps of Engineers estimated the debris would fill five football fields five stories high. While only about 3.8 football fields worth of space can fit into 5 acres, the debris could be piled up to about 10 stories high, Komar officials said.

“While the donation of 5 acres is welcomed, it was the County’s plan to utilize 8 to 10 acres for  Lahaina debris and ash,” said Shayne Agawa, director of the Department of Environmental Management, in a statement.  “Our plan requires more acreage to ensure that the height of the ash remains lower than the elevation of Pulehu Road. If we placed all the debris in 5 acres, it would create a mountain that would  expose the ash to the elements, and pose a potential risk to public safety.”  

Komar had said its first condition of the donation is the 5 acres can be used only for the Lahaina fire debris.

The second condition is that the remaining acreage of the parcel will receive the same zoning for waste disposal as the donated acres. The land had been previously permitted as a landfill, but in 2020 the county let lapse its special use permit, Naden said.

Before the August fires, Komar Maui Properties was working with another local company, Pulehu C&D, to develop the property as a landfill and still plans to do so with the remaining 15 acres, said Naden, adding that Komar Investments’ Aloha Waste had operated on Maui for 25 years.

Agawa also said that if Komar used the full 15 acres for a private landfill, it would need a right of access through the Central Maui Landfill that would pose considerable liability and operational issues for the county. 

The third condition is for conducting a new independent appraisal that includes potential revenue streams.

For the government to take private land in Hawaii, it must make a case for its public use and provide fair compensation.

The county resolution authorizing eminent domain proceedings cites an $830,000 appraisal of the land by ACM Consultants. The company said in a letter that it includes determination of highest and best use.

Naden said that appraisal just covers the dirt and is millions of dollars too low. He did not provide a dollar figure, but said: “If the tipping fees here are over $116 a ton, and you’ve got 400,000 tons that need to be dumped, you can do the math.” That would be $46.4 million minus the cost of operations.

Honolulu attorney Mark Murakami, who has handled many eminent domain cases but is not involved with this one, recently said if the county files in court for eminent domain that the parties could end up in a jury trial to determine just compensation and damages. 

Komar Maui Properties purchased the land in December 2015 for $700,000 from Alexander & Baldwin. Naden said three months earlier the county under former Mayor Alan Arakawa had given its blessing to the company for the purchase with the purpose of developing it as a disposal site.

Naden said soon after Komar purchased the property the county decided it wanted to do a land swap, but one never materialized and the county ultimately began to stonewall its development efforts.

Shayne Agawa, director of the county’s Department of Environmental Management, said two months ago that the county has been trying for the past few years to purchase the property. During a Lahaina community meeting he said that while there was no perfect location for the Lahaina debris, the Central Maui site was the best because it already had been quarried about 50 feet deep and was not close to residential areas.

Council member Nohelani U’u-Hodgins, chair of the Government Relations, Ethics and Transparency Committee that oversaw the discussion about eminent domain, said she was briefed by Komar Investments about the offer. She said the county would have to determine if 5 acres is big enough to accommodate the debris, but the donation might make sense if it is.

“I think we’re always trying to strive for the win-win,” she said. “I can not say it will work on paper, but we might be able to save $800-something thousand dollars, or whatever the jury determines it to be, and then we don’t have to waste that time going through the (legal) process.”

But council member Tom Cook, who on Monday morning had not heard about the offer, said while he has always advocated for a deal to be worked out between the parties he does not know enough about this donation to know if it is feasible.

“I think that the mechanics of all of that aren’t necessarily going to work that simplistically,” he said.

The County said it will be proceeding under the provisions granted by the Governor’s Emergency  Proclamation to expedite the development of the Permanent Disposal Site, in which the emergency  provisions are not transferable to private companies.  

Naden said if the case goes to court, the county would be hard-pressed to show there is a public use for taking the 15 acres that is not needed for the emergency need of providing a place for the Lahaina debris, which is now being taken temporarily to a controversial site in Olowalu.

“We’re going to keep the 15 acres. We’re going to give the 5 (acres) the easy way, or we’re going to give the 5 the hard way,” he said. “The easy way is here, you get yours and we keep ours. One will just be bloody and one we could all be holding our hands up in celebration.”

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.