Maui County is trying to get authorization to acquire a nearly 20-acre property next to the Central Maui Landfill by eminent domain for the final dump site of the Lahaina fire debris, but the company that owns the land said it wants to develop the disposal site and has been trying to do so since it bought the property in 2015.

“What we’re asking for is reasonable,” Mayor Richard Bissen said Wednesday at a community fire recovery update meeting in Lahaina. “We’re not taking somebody’s prime land somewhere on the island just to take it. We have a very good reason. We have a public need. It’s been available. It is available.”

But Andy Naden, executive vice president and general counsel of Komar Investments, the umbrella company of the property owner Komar Maui Properties, said the county under former Mayor Alan Arakawa gave its blessing to the company in September 2015 to purchase the property and develop its own disposal site.

However, soon after Komar Maui Properties purchased the land later that year for $700,000 from Alexander & Baldwin, Naden said the county wanted to do a land swap that never materialized and ultimately began to stonewall its development efforts that have continued to this day.

“We don’t want to be perceived as some outsider that’s coming in to take advantage of Maui County, because we’re not,” said Naden, noting that Komar’s Aloha Waste Systems had operated on Maui for 25 years before selling its assets last year to Waste Pro Hawaii. “I really hope cool heads prevail and we work out a deal. … You can look at our experience. We know how to build landfills. We do this for a living.”

The council will discuss the administration’s proposed resolution that would provide authorization to start eminent domain proceedings for the second time on Tuesday during its Government Relations, Ethics and Transparency Committee meeting, chaired by Nohelani U‘u-Hodgins.

The first time it was discussed, during last Friday’s regular meeting, no action was taken following three hours of passionate debate. Members were split between the importance of moving quickly to acquire the land and get the debris removed from the controversial temporary site in Olowalu for the healing of Lahaina versus making sure that such a big step of taking private property by government gets the scrutiny it deserves.

Naden said Komar Maui Properties has partnered with Pulehu C&D, which registered as a business on Aug. 17, and is managed by Ken Ota, who also is a representative of Waste Pro Hawaii.

During testimony before the council, Keone Gomes, who also is with Pulehu C&D, said the company discussed developing the parcel as a commercial and demolition debris landfill with the county beginning in May and had secured financing, got a development planner and a legal team to assist with entitlements all before the Aug. 8 fires.

“We also got a landfill consultant and a potential design engineer,” he said. “We were ready to move swiftly.”

In a letter sent to the county in August, Gomes said their local team “will keep our community’s needs at the forefront of our effort.”

All parties can agree on one thing: the property is a perfect site for the fire debris dump site because it had been quarried for rock for a cement company, leaving a hole about 50 feet deep that can be filled with debris. It’s also the location that won out after the results of a public survey were taken into consideration and after public protests led the county to reject its first choice in Olowalu.

Naden said the company would privately fund the construction cost — which the county said would be about $40 million and be its responsibility to fund — and then provide a 20% discount for tipping fees to the county in perpetuity. Or the company would develop the site and turn over the deed to the county in return for 20% of the tipping fees royalties in perpetuity.

Council member Tom Cook said in an interview that although he is not a decision-maker on this aspect, having the land developed by somebody else for the fire debris is not on the “top of my list.”

Under state law, the county cannot start condemnation proceedings without approval of the Maui County Council.

Cook said he did not want to vote right away to pass the resolution in the hopes that the county could work out a last-minute deal with the property owners, possibly a land swap that “works for everybody.”

Naden said representatives of the property owners met Friday via Zoom with the county’s Department of Environmental Management and legal counsel, and are scheduled to meet with Bissen on Monday. The county declined to comment for this story citing ongoing negotiations for the property.

Council member Tamara Paltin, who represents West Maui, was the staunchest advocate for passing the first reading of the resolution. The council must still pass the resolution on second reading. But she and others were unable to convince a majority to pass it even on first reading as other members wanted to have another discussion to gather all the facts.

“I got a little testy, but it didn’t work,” Paltin said at the Wednesday community meeting. “So I’m calling for backup, whether it’s written testimony, oral testimony.

“I said something like: ‘If you want to waste time, we can waste time, and you can hear from everyone from Lahaina. And I didn’t mean it as a threat. Hopefully, I meant it as a promise.”

If the council were to authorize the county to move ahead with condemnation of the land, the corporation counsel would file a lawsuit in Circuit Court. For government to take private land in Hawaii, it must make a case for its public use and provide fair compensation.

Honolulu attorney Mark M. Murakami, who has handled many eminent domain cases but is not involved with this one, said he doesn’t expect condemnation of the land for a county landfill would be a “very hotly litigated aspect.”

But he said the parties could end up in a jury trial to determine just compensation and damages. While most trials take up to two years in the queue, the county can get possession of the property within days if they deposit a good faith estimate of just compensation with the court.

The county could then develop the dump site, which is expected to take a year, despite not owning the land if compensation is not agreed upon.

“That appraisal process and determination of just compensation is a jury question, and it is not based on the actual use of the property as it sits today,” Murakami said. “It’s not even based on a planned use, but it’s the highest and best use.”

The county’s proposed resolution 24-57 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.

But Naden said that appraisal just covers the dirt and not potential “income streams.”  

“In the United States, you can’t deprive somebody of life, liberty or property without compensation,” he said. “So if we need to determine what the value is in a court of law, which is a shame, we’ll do that. But I think it’s better if we work together because we would do the same thing.”

Naden said the value of the land should include the money a landfill would make from tipping fees of about $126 per ton for a more regulated solid municipal waste site or $90 per ton for commercial and demolition debris.

The estimated 400,000 cubic yards of fire debris would take up about a quarter to a third of the property, he said. Even after paying the $40 million to build the site, it would leave the potential of tens of millions of dollars more to be made in tipping fees before the lot is at capacity.

The value in this property is the income that streams in until filled up over 1.3 million tons.

“Hypothetically, if the jury comes back and finds that just compensation would be $10 million and not $1 million, the county then has two years to decide whether it wants the property and will fund it,” Murakami said. “If they don’t, they can back out of it and abandon the eminent domain proceeding. The landowner is entitled to attorneys’ fees and damages in that scenario.”

Naden said Komar Investments’ interest in this property dates to 2012, when it applied for the county’s Integrated Waste Conversion and Energy Project.

On April 25, 2013, Arakawa announced the selection of Anaergia Services for the project out of 20 proposals received. Naden said his company’s proposal came in second.

In the services agreement signed on Jan. 8, 2014, Anaergia Services’ Maui Resource Recovery Facility “intended to be located on privately owned real property in the vicinity of the landfill.” But Anaergia Services had difficulty getting the project off the ground.

Emails provided to Civil Beat show that in September 2015, the county under Arakawa appeared to give its blessing to Komar Investments to purchase the parcel from Alexander & Baldwin.

An email dated Sept. 24, 2015 from the county’s then director of environmental management, Kyle Ginoza, to Clint Knox of Komar Investments said: “A&B has decided that they are willing to sell the 20-acre parcel just mountainside of our Central Maui Landfill. I just got off the phone with Randy (Randal H. Endo, vice president of development for A&B Properties) and he said you or Kosti (Komar Investments managing member Kosti Shirvanian) can just call him directly if you are still interested.”

Ginoza also provided Komar Investments with an email two days earlier from A&B’s Endo that said: “We are open to selling the parcel to whomever wants to purchase it.”

Since then, Naden said they have been negotiating “in earnest” with Arakawa and his successor, Mayor Michael Victorino, along with several of the county’s directors of environmental management. He rattled off their names: Ginoza, Stewart Stant, who is now serving 10 years in federal prison for taking bribes, Eric Nakagawa and now Shayne Agawa.

Naden said the reason Komar did not get started on a C&D or MSW facility is the inability to get permits: “We didn’t even have ingress and egress over the county property in order to get in and out.”

He said it wasn’t for lack of expertise. Komar also owns Pacific Waste on the Big Island and Aloha Waste on Oahu. His company did the first lined landfill in California, El Sobrante.

“Our experience is wide and deep in traditional waste collection, management and disposal,” he said.

Last week, Maui residents Eddy Garcia and Manoa Kaio Martin filed a lawsuit to halt the use of the temporary disposal site in Olowalu for the Lahaina fire debris due to environmental and cultural ramifications. If this lawsuit moves forward, it could add to the urgency to complete a permanent site.

“The tragedy that happened in Lahaina accelerates the county’s need to negotiate,” Naden said. “And we kind of wish this had happened a while ago, because then we’d be ready.”

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.