Request to County Council

We propose that Maui’s County Council launch their own investigation. Here’s How:

THE MAUI COUNTY COUNCIL REQUEST FOR TEMPORARY INVESTIGATIVE GROUP

SUBJECT: A Request for the establishment of a Temporary Investigative Group (“TIG”) to investigate the revenues owed from thousands of private developer roadway infrastructure subdivision agreements that have been unaccounted for and uncollected upon since the adoption of the 1974 Bill #18, resulting in Ordinance #18.20.040.

25 Grandfathered Deferral Agreements w/ No Means To Collect.

The “3 Lot or Less” “One Time” deferrals of Developer’s Subdivision Roadway Infrastructure Financial Obligations was terminated by the County Council in 2007. As we now know, the Administration was not keeping records of the thousands of agreements and developers debts owned to the County of Maui. JUST DISCOVERED; The Department of Public Works continues to Grandfather Developer’s Deferrals while ignoring that there still is no system in place to ever collect on them. The newly discovered records indicate that on many of the Grandfathered subdivisions, the “one time” deferrals are being applied to overlapping subdivisions of the the same underlying parent parcel. Under the current system, or lack of system of collection, the citizens of Maui County will continue to incur these developers financial obligations.

SECTION I. PURPOSE & INTENT OF THE INVESTIGATION:

A Temporary Investigative Group shall be established to address the unaccounted for and uncollected developer subdivision agreements approved as to legality and form, and thereafter recorded by the Department of Corporation Counsel with the State of Hawaii Bureau of Conveyance as a senior encumbrance on each individual property title of the resulting subdivision parcels.

The contractual agreements, which the Director of Public Works has estimated to be recorded upon somewhere between 1700 to 1800 subdivisions, provide both potential current and future revenues to offset expenditures of public funds on roadway infrastructure Capital Improvement Projects.

SECTION II. SCOPE OF THE INVESTIGATION:

1) As its first order of business, the temporary investigative group will obtain from the Director of Public Works and the Department of Corporation Counsel a complete list or ledger of all developer agreements which provide for the future assessment and collection of a pro rata share of the cost of Capital Improvement Projects as already adopted by the Maui County Council.

The investigative group shall insure that all agreements which have been approved as to their legality and form by the Department of Corporation Counsel, and record by the Department of Corporation Counsel with State of Hawaii Bureau of Conveyances, have been accounted for and cataloged in a well-thought-out and organized manner. 2
2) As a second order of business, the temporary investigative group shall identify a limited number recorded developer agreements along a few existing roadways for which the County of Maui has already completed a Capital Improvement Project, and to determine an estimate of the amount of collectability which may be revenue available for the 2018 budget.

3) As a third order of business, the temporary investigative group shall review and investigate the following;

A. Insure that all developer and private agreements that provide for current and future revenues are incorporated into pubic record to insure that the County budget is a “Complete Financial Plan” in accordance with the Maui County Charter.
B. Investigate legislative options for collection and assessment of developer’s financial obligations set forth in the existing recorded agreements.
C. Investigate and determine whether each and every developer agreement approved as to legality and form by the Department of Corporation Counsel was executed in accordance with the spirit and adopted language of the Maui County Code.
D. Investigate options for future subdivisions of vacant land adjacent to future County of Maui Capital Improvement Projects (CIP) to assess and collect upon their pro rata share of roadway infrastructure improvements.
E. Make findings and recommendations on any other appropriate action relating the authoring, execution, and recordation of developer agreements which were permitted to to defer “one time” private developers expense of roadway infrastructure improvements along the frontages of “3 Lot or Less” subdivisions.
F. In accordance with the Maui County Charter, insure that every director, elected public official, or County of Maui employee who makes andy vote, recommendation, conclusion and , or finding pertaining to the above mentioned developer agreements, disclose any financial or personal interest, direct or indirect, which may impair their judgement or independence in the group investigation.

4) During its investigation, the temporary investigative group may:

a. Conduct interviews and discussions with County personnel and departments; and;

b. Conduct interviews and discussions with professional and private entities for the purpose of identifying solutions; and 3
5) At the conclusion of its investigation, the temporary investigative group shall:

a. Prioritize and rank in order of importance the strategies and opportunities for the assessment and collection of the developer agreements;

b. Identify which of the strategies and conclusions require legislative proposals and action by the Council; and

c. Identify which of the strategies and conclusions require further actions investigation.

Membership: Authority:

________________________, TIG Chair Call, convene, and facilitate TIG discussions; request staff assistance from the Council Chair and the Administration; report findings and recommendations, if any, to the Committee; establish and enforce parliamentary procedure.

________________________, TIG Vice-Chair In the absence of the Chair, the Vice-Chair shall assume the duties of the Chair.

_________________________TIG member Voting member 4
REFERENCES

THE MAUI COUNTY CHARTER – ARTICLE 9 – Section 9-3.

The budget shall present a “complete financial plan” for the operation of the County and its Departments for ensuing fiscal year showing all County funds on hand whether encumbered our unencumbered and estimated reserves and revenues.

THE MAUI COUNTY CHARTER

In the recent 2016 general election, the citizens and taxpayers of Maui County have adopted an amendment to the Maui County Charter to provide the legislative branch of Maui County government the power to seek independent legal advice from the attorneys employed by Counsel Services.

As the findings and conclusions of this investigation shall result in the adoption of legislation of assessments and the most effective expenditure of public funds, the TIG shall engage the legal advice of the attorneys employed by Council Services. In the alternative, to insure the branches of County government act independent in their duties of checks and balances, the TIG may employ the services of outside legal counsel.

THE MAUI COUNTY CODE – TITLE 18.04.020.G.

“Notices of Intent to Collect” shall be sent to property owners with outstanding obligations at the commencement of project funding, followed by collection notices to property owners at the time of right-of-way acquisition of County initiated or co-sponsored roadway projects. 5
LEGISLATIVE HISTORY

On May 3, 1974, Goro Hokama, the Chair of the Maui County Council, presented Public Works Committee recommendation to pass Bill No. 18 – An ordinance amending the subdivision ordinance, Article I of the Chapter II of the Permanent Ordinances of the County of Maui, to allow for subdivisions of 3 lots or less to defer the cost of road improvements upon the existing streets abutting the 3 lots or less subdivisions.

On April 20, 1990, Goro Hokama, the Chair of the Maui County Council, presented for final reading of Ordinance No. 1907, Bill No 34, amending Section 18.20.040 of the Maui County Code, pertaining to existing streets, wherein the sub divider, owner, heirs, or assigns agree to pay their pro-rata share of the cost of road improvements upon the existing streets abutting the 3 lots or less subdivisions.

On December 7, 2007, Riki Hokama, the Chair of the Maui County Council, through the Public Works Facilities Committee of the Maui County Council, presented Bill No. 77, a Bill to amend Chapter 18.20.040 of the Maui County Code, eliminating the ability for sub dividers to “defer” the pro rata share roadway improvements upon the existing streets abutting the 3 lots or less subdivisions. The developer agreements were not being tracked or accounted for by the County Administration.

On February 13, 2010, Bill Medeiros, the Chair of the Maui County Council, through the Public Works Facilities Committee of the Maui County Council, presented Bill No.15, a Bill to amend Chapter 18.20.040(H) of the Maui County Code, to insure “Notices of Intent to Collect” shall be sent to property owners with outstanding obligations at the commencement of Capital Improvement Project funding, followed by collection notices to property owners at the time of right-of-way acquisition of County initiated or co-sponsored roadway projects.

On October 12, 2015, Danny Mateo, the Chair of the Maui County Council, transmitted to Donald Couch, the Chair Planning Committee of the Maui County Council. PC-17, a proposed bill to adopt a bill for an ordinance amending Title 18 of the Maui County Code relating to 6
subdivision roadway improvements. Under Rule 6(A) the proposed bill pertained to matters previously referred to the Planning Committee. The bill provided for a method and adoption of a system of assessment and collection of developer deferral agreements previously unaccounted for and uncollected upon. The bill was not forwarded to the Planning Committee Chair Couch.

On September 2, 2015, Gladys Baisa, Chair of the Water Resources Committee for the Maui County Council, presented County Communication #15-174, relating to amending Section 14.13.060 of the Maui County Code relating to the Upcountry water meter installation. The communication included correspondence dated August 26, 2015 from the Department of Corporation Counsel transmitting a revised proposed bill amending Section 14.13 and 18.40.040 to provide that applicants on the Upcountry priority list shall not be required to make further infrastructure mainline improvements for fire protection or improvements to existing streets under certain conditions. As adopted, the bill eliminated sub-dividers obligations to install roadway improvements upon the existing streets abutting 2 subdivisions throughout Maui County. 7