Kuau Bayview, Lot 25, and the Paia Community Center

This is an open appeal to Mayor Richard Bissen; Councilmember Nohelani U'U-Hodgins; the Director of Public Works, Jordan Molina; DPW Engineering Department, Chico Rabara; Director of Parks, Patrick McCall; Assistant Director of Parks, Shane Dudoit; and Corp Counsel, Victoria Takayesu: [ emailed to County on 2023/11/19 ]

I am the President of the Kuau Bayview at Paia Homeowners' Association and a Systems Analyst by profession. I always look at the big picture view of problems and try to devise permanent solutions that are in the best interest of all parties; therefore, this is not a complaint or an attempt to assign blame. It is a sincere effort to present the facts in a rational manner in the hope that the County decision-makers will recognize that my proposal is fair, just, and the only possible solution to a problem that puts children's lives at risk.

Reference Documents pertaining to Kuau Bayview's Lot 25 and the Retention Basin:

Definitions:

  • "Makana Subdivision" was the original name for Kuau Bayview at Paia subdivision #2.1933
  • "Paia Halelani Subdivision" is the old neighborhood immediately west of Kuau Bayview
  • "The County Park Parcel" is what Corporation Counsel calls Lot 25; we'll refer to it herein as Lot 25 for brevity.
  • "County" or "COM" means the County of Maui of the State of Hawaii.
  • "Parks and playgrounds" means "areas used for active or passive recreational pursuits." HRS 18.16.320
  • "Retention Basin" [RB] is a 1.633 acre sedimentation basin owned by Kuau Bayview HOA designed to capture the nonpoint-source storm water from KB's 92 lots
  • "MOU" stands for Memorandum of Understanding
  • "MS4" stands for Municipal Separate Storm Sewer System
  • "NPDES" stands for National Pollutant Discharge Elimination System

History of Lot 25:

In 1997 Lot 25 was conveyed to the County as a condition and requirement of the granting of approval to A&B for development of the Makana Subdivision (ie. Kuau Bayview at Paia), pursuant to and in accordance with Section 18.16.320 of the Maui County Code. Lot 25 was "dedicated for Parks and playground purposes." A&B excavated the 1.633 acre basin in 1995 and installed a 6' chain link security fence around the perimeter. The fence was at the top of the hill on all sides approximately two ft inside the property line. As Lot 25 sloped down toward Hana Hwy, the County brought in large amounts of fill and graded Lot 25 to make it level. The south half became part of the park area while the north half became a parking lot for the community center. It appears that sometime around 2010, the parking lot began being used as a "baseyard" for Public Works.

Map of Lot 25 and Kuau Bayview Retention Basin

The Current Problem: An Insecure & Unfixable Security Fence between the KB Retention Basin and Lot 25

There is no question that Lot 25 is now owned by the County and that the Retention Basin and its fence are owned by Kuau Bayview HOA. The problem is that the County raised the ground level of Lot 25 above the original top of the Retention Basin. The RB fence is no longer at the top of the hill. Every time they graded Lot 25, dirt was pushed toward the fence and fell down into the basin. The base of each fence post along that perimeter became buried and the wet dirt held against the posts over the years caused them to corrode. We examined every fence post around the entire basin and there is not one post on the other three sides that is at all corroded. At first we suspected the corrosion was from Parks workers spraying RoundUp along the base of the fence to kill weeds, but after comparing posts at Makana Park, we concluded it was because of the dirt falling down the slope and burying the fence post bases. When it rains, the water runs down too and holds the moisture against the metal even after the rain has stopped. This rusts away the metal at the base of the posts.

After finding three young children inside the Retention Basin last year, I became very concerned about child safety. That slope is treacherous and there are many ways that a child could be injured or killed. I've fallen down the slope myself it is so steep. The basin fills with water after storms; a child could drown. While I was installing black mesh screen to hide the basin from curious eyes, I discovered that the chain link was falling apart and there were holes I could climb through easily. At the time, there was only one post that had broken off. I hired Pat Brown & Karl Amoral through Valley Isle Fencing to replace 111' of chain link fabric and one post. The job was scheduled for Dec 23, 2022; however, on Dec 19th a major storm snapped off two more posts that were not even within the 111' to be repaired! That's when we closely examined every post and discovered that every post on the west side was corroded except two in the front corner. There is no point in installing new chain link on posts that could snap in the next storm. Plan B was to replace 16 posts closer to the property line so that the old fence would still be in place during the work. But when Karl came to assess the job for the first time, he said that it could not be done without a flat place to stand on the downhill side of the fence. I had created a terrace on the uphill side of the fence but it was not possible to terrace the downhill side because the slope was too steep and the fence was in the way. Karl would have to carry 300 lb rolls of fencing on that steep slope. It is simply not humanly possible. So I met with Angus Peters III in Dec 2022 and he said he would ask Parks if the HOA could install the fence at the top of the hill on Lot 25, but Parks said NO. So then I had the new Parks Assistant Director, Shane Dudoit, meet with me and Pat at the site so Pat could explain to him why the fence had to be at the top of the hill. Shane said Corporation Counsel would never allow it (even though Parks did not hesitate to install their fence over 14 inches into HOA property - see slideshow). So I called Corp Counsel but they didn't return my call and Shane told me he had to be the one to contact them, but he did not. In a nutshell, it was actions by County workers that raised the Lot 25 ground level, destroyed our RB fence posts, and created a situation whereby the HOA is unable to fulfill our "duty of care" to protect children from falling down that steep slope or drowning when rain fills the basin.

Images in the slideshow above include evidence of Lot 25 being used as a baseyard with orange trash bins piled up, bulldozers in Jan & Oct 2016 pushing dirt toward the RB fence and the dirt falling down into the basin, the RB fence damage, and the broken fence posts.

The HOA's security fence continues to degrade as time passes. Anyone can easily get through or under the fence. It no longer serves to protect the many children who come daily to play on the PCC playground apparatus that is less than 70 feet from the broken fence. All of Lot 25 was donated to the County for "parks and playground purposes." Half of it has been turned into a baseyard for the County Public Works Department. Is this not a violation of the intended purpose of the grant? A central depot for trash bin collection and heavy equipment parking does not fall under the definition of "areas used for active or passive recreational pursuits - HRS 18.16.320." Is this grounds for rescinding the grant of Lot 25? Perhaps, but this is not what we are asking.

What We Are Requesting of Maui County:

  1. County parks with playground equipment are required to have playground fencing to protect children. We ask that the County please stop using the KB HOA Retention Basin security fence to serve as their playground and baseyard fence. The County needs to install their own fence.
  2. We ask that the County please build a short retaining wall along the east edge of the Lot 25 parking lot to properly redirect the stormwater toward the storm drain in the parking lot thereby stopping runoff from further eroding our Retention Basin hillside. The considerable soil erosion (see slideshow below) combined with the fill falling down has destabilized our hillside. I intend to plant Agaves and groundcover to hold the soil and beautify the area but cannot do it until the source of the problem is remedied.
  3. We ask that the County please erect a 6' chain link fence at the top of the hill to protect children and adults from falling down the steep slope. This would also prevent vehicles from accidentally rolling over the edge and ending up on the floor of the basin. This fence would henceforth be owned and maintained by Parks. Bonus: With the fence at the top of the hill, Parks would be relieved of the expense and the difficult job of weedwacking on the slope. The HOA would maintain that slope instead.

Why Maui County Should Assume Some Responsibility in Resolving this Problem: Stormwater Drainage

Diagrams showing how the PCC water drains into the Kuau Bayview Retention Basin

Aerial map showing 30 2023/01/30 email from Joe Krueger confirming PCC water drains into KB Retention Basin
  1. Joe Krueger of Hawaii State Highways informed me that ALL of the storm water from the Paia Community Center is channeled into the Kuau Bayview Retention Basin through two drainage grates. One is beside the PCC main building; one is in the parking lot close to the sewage substation. Both are shown in the slideshow below. The storm water flows from the PCC drainage grates into a 30" pipe under Hana Hwy and from there into a 30" pipe that branches off into Kuau Bayview and flows out of a 30" culvert at the floor of the KB Retention Basin (see diagrams above obtained from State Highways Department).
  2. Joe Krueger of Hawaii State Highways informed me that ALL of the storm water from the Halelani subdivision all the way to Kupono St likewise is channeled into the 30" pipe under Hana Hwy and thence into the 30" pipe that discharges out of the 30" culvert at the floor of the KB Retention Basin.
  3. In the slideshow to the right, you can see the Retention Basin full of water after the Dec 19/22 storm, the two PCC drainage grates, the two RB outflow culverts, and how runoff from the parking lot carves channels into the slope as the PCC water makes its way down the wall of the basin. The RB was designed to accept water only from the two culverts on the floor of the basin in order to prevent precisely this type of erosion.
  4. Did the County ask the KB HOA for permission to discharge their stormwater onto HOA property? NO! Did A&B or the County even inform the HOA that they had done this? NO! It wasn't until 2012 that we even knew there were two culverts in the basin. We had thought there was only a drain somewhere. A Retention Basin Committee member, Tom Atkins, searched through the 9-foot-tall grass in the basin probing with a 20 foot pole and discovered that there was no drain. Instead he found two culverts, a 24" one for KB water, and a 30" culvert that was a mystery until State Highways cleared up the mystery on 1/30/2023.
  5. It was only on Jan 30/23 that I discovered that there is an MOU between State Highways and the County signed 2022/06/08. The stated purpose is "to control illicit discharges and nonpoint sources of pollution in their respective MS4s in the regulated Kahului-Paia Urbanized Area." Neither the County nor the State DOT would have any way of knowing if someone in the Paia Halelani subdivision, or someone visiting the Paia Community Center, had dumped a pollutant into a storm drain. If someone had, it would not damage the storm drains or the DOT pipes under Hana Hwy, but the pollutant would end up on the floor of the KB Retention Basin and the HOA would be responsible for removing the toxic substance. This would involve heavy equipment and cost thousands of dollars! Why was the HOA not included in the MOU that protects the interests of the State and the County but omits the party that would be most affected by the introduction of a pollutant?
  6. Every owner in Kuau Bayview has to pay annual maintenance fees to cover expenses for the common property, ie. the Retention Basin. While we can control to some extent the behavior of KB owners, we have zero control over the people in Paia Halelani or those visiting the PCC. The County contributes nothing toward the upkeep of the Retention Basin yet they discharge ALL their [possibly polluted] stormwater into our Retention Basin. The PCC drainage grate closest to the sewer substation is in a parking spot. It would be very convenient for a trucker to remove his oil plug and drain his oil directly into the grate.
  7. In the Retention Basin Deed on page 1 it explicitly states that "said Property is free and clear of and from all liens and encumbrances..." and there is no mention, reference and/or stated condition or encumbrance in either the body of the Deed or in Exhibit A indicating that Kuau Bayview will be forever responsible for any and all repercussions resulting from point-source discharge of stormwater from the Paia Community Center, Lot 25, Paia Halelani subdivision, the Hawaiian Protestant Church, and adjacent properties. This seems to me to be a rather large encumbrance and shocking omission. There is also no mention of such encumbrance in any of the individual deeds for the 92 Kuau Bayview Lots. In the 2004-04-13 letter from Corp Counsel to the Association on page 2, Corp Counsel points out that "Each subdivider shall convey the land to the County by warranty deed free and clear of all liens and encumbrances." Lot 25 was indeed conveyed free of encumbrances to the County, but did the County in return build an unwritten and undisclosed encumbrance into the deeding of the Retention Basin Parcel to Kuau Bayview?
  8. The KB DCCRs 3(a) require the Association to "periodically pump and clean the retention basin... to prevent overflows, remove silt therefrom, inspect and maintain the basin, and keep it free of debris." In addition we are obligated to pay liability insurance, "operate and maintain, irrigate, fertilize, landscape, plant, and replant" the basin. Close to half of the stormwater and sediment that could cause basin overflows comes from outside Kuau Bayview via County storm drains and DOT pipes. Does anyone consider it fair that the HOA bears 100% of the liability and 100% of the considerable costs to maintain a Retention Basin that is equally used by the County and another subdivision for free?
  9. At the very least, the County should show some appreciation for the free services they have been receiving since 1996 (and will continue to receive in perpetuity) by helping the KB HOA ensure that no children will suffer injury or death in the Retention Basin by erecting their own proper fencing along the east side of the Lot 25 parking lot. The HOA in good faith tried to repair the RB security fence, and already paid for the materials, but the repair turned out to be impossible. Due to their actions, only the County has the ability to remedy this critical situation that poses extreme danger to the neighborhood children. We pray the County will act responsibly and fairly by installing this fence. Our community looks forward to a prompt resolution to this matter. Please contact me at 808-579-8077 with any questions or to discuss. Mahalo for your time and consideration.

Sincerely, Darlene Aaron Brothers
Board President of Kuau Bayview at Paia HOA

Safety is our first priority quote by Mayor Bissen

Responses to My Letter

Nohe U'u-Hodgins has been wonderful in attempting to facilitate between the HOA and Parks, but Parks didn't change their position one bit from where they were over a year ago...

On 12/13/23 10:44 AM, Laura L. McDowell wrote:

Aloha Darlene,
On behalf of Councilmember U’u-Hodgins, mahalo for your patience while we research into this situation. I would like to express appreciation for your diligence in identifying issues within our community and striving towards solutions. In meeting with the Parks Dept, they shared information noting the County property line and fencing that is desired from the Kuau HOA. As the legislative branch of government, we cannot direct the department, only kindly ask. I hear your safety concerns, however there are some concerns that will need further consideration from the Mayor's administration.

Please see some answers to your comments below-

  1. County parks with playground equipment are required to have playground fencing to protect children. We ask that the County please stop using the KB HOA Retention Basin security fence to serve as their playground and baseyard fence. The County needs to install their own fence.
    A. Funding and structural engineering to ensure the longevity of the fence will need to be secured along with any permits in the SMA zone.
  2. We ask that the County please build a short retaining wall along the east edge of the Lot 25 parking lot to properly redirect the stormwater toward the storm drain in the parking lot thereby stopping runoff from further eroding our Retention Basin hillside. The considerable soil erosion (see slideshow below) combined with the fill falling down has destabilized our hillside. I intend to plant Agaves and groundcover to hold the soil and beautify the area but cannot do it until the source of the problem is remedied.
    A. Thank you for this proposed solution. This would require further conversation with the Parks Dept and funding allocation for this project.
  3. We ask that the County please erect a 6' chain link fence at the top of the hill to protect children and adults from falling down the steep slope. This would also prevent vehicles from accidentally rolling over the edge and ending up on the floor of the basin. This fence would henceforth be owned and maintained by Parks. Bonus: With the fence at the top of the hill, Parks would be relieved of the expense and the difficult job of weedwacking on the slope. The HOA would maintain that slope instead.
    A. This can be explored however, installing a fence would require permitting and additional funds which will need to be allocated from the County Council. There are no funds for the fiscal year 23 or 24 for this project. Paia Community Center/surrounding park area has a capital improvement project in FY 24 but fencing in this area was not anticipated in their budget and will need to work with the Parks Dept if they can revise their design. The thought of donating County land to the HOA (as previously discussed with the Dept) would require Corporation Counsel, Mayor and County Council's sign off.

I do have the following questions for the HOA. Please let me know how you would like to proceed.

  1. Wondering if the HOA gathered an engineering opinion on how to mitigate erosion on the basin slopes?
  2. Are these ideas amendable and is the HOA willing to reach any compromise with safety in mind?
  3. Would the HOA be willing to donate materials towards any potential construction between the neighboring lots?
  4. Any community/beautification workdays that the HOA can commit to?

To keep this process moving forward, Councilmember U’u-Hodgins is willing to facilitate meetings between HOA and other necessary departments to hopefully reach a resolution regarding this situation.

Mahalo, Laura McDowell, Executive Assistant, Office of Councilmember Nohe U'u-Hodgins, Makawao, Haiku, Paia Residency Seat

On 12/14/23 5:42 AM, Kuau Bayview HOA wrote:

Dear Laura & Nohe:

Thank you for your email and for looking into solutions to this serious problem at PCC. Following are our responses to your points and questions...

  • We understand that the legislative branch cannot direct the departments, but your requests have much more sway than ours. Also you can request that the executive branch enforce the laws that you have enacted.
  • We understand that funding, permits, and structural engineering would be required by Parks to build a proper retaining wall to fulfill their responsibility to prevent stormwater from the PCC parking lot from causing damage to the adjacent basin. This should have been done back in 1996 when Parks originally brought in fill to build the parking lot. If they had, this problem would not currently exist.
  • We understand that funding, permits, and structural engineering would be required by Parks to build a proper playground fence to fulfill their duty of care to protect children and other park visitors. This should have been done when the playground was originally constructed. Actually, it's just a fence.
  • During the Parks' budget hearings for 2024, I submitted a request for allocation of funds by Parks for the 6' fence. They ignored my request.
  • In Dec 2022, when the HOA was open to having the County donate a few feet of the land we had given them so we could build the fence at the top of the hill, we were not aware that close to half of the water entering the Retention Basin comes from the PCC side of the fence. Considering the HOA has been paying all basin expenses since 1996 (and in perpetuity), it is only fair that Parks erect their own fence, especially as they destroyed ours. We no longer consider it a viable option for the County to move the property line because Parks would simply draw a line placing all their problems on our side of the line. Why should the HOA pay to build a retaining wall to re-route PCC stormwater? This has to be done from the parking lot.
  • Public Works could build the wall and fence themselves for relatively little money. Their salaries are paid with taxpayer money. Kuau Bayview owners pay plenty of taxes.
  • We don't need an engineering opinion on how to mitigate erosion on the slope. We have successfully eliminated erosion on all the slopes except the area where PCC stormwater flows from the PCC parking lot because that is the only slope where we no longer have land at the top of the hill due to Parks raising the ground level. We have no control over the PCC parking lot and, therefore, cannot reroute the water to the PCC drainage grate. That is not our land. Perhaps if Public Works could grade that area of the parking lot to create a bit of a berm so that the land sloped slightly toward PCC, that would solve the nonpoint-source discharge issue without having to build a short retaining wall. There is only that one area where water from the parking lot erodes the slope to any great degree. Then the fence could be built at the top of the hill and the safety & erosion problems would both be solved permanently, as long as the County stops pushing dirt toward the top of the slope.
  • Yes, we are willing to discuss a solution in the interests of safety, but that was tried with both Angus Peters III and Shane Dudoit and it was Parks who refused to consider anything at all. In particular Shane stated that Corp Council would never consider moving the property line and I can see how changing maps and deeds would be extremely expensive. It would be much cheaper for Parks to just build their own fence on their own land. I was rather surprised at how vehemently Shane rejected the mention of us building our fence on their land considering Parks thought nothing of erecting the park fence 14" into HOA property without our permission. I was the one willing to bend over backwards to solve the problem and the County just said NO and did absolutely nothing.
  • The fencing materials which we purchased last December to repair the PCC fence have been re-purposed to repair sections of the fence behind lots 28 & 29 because they have been sitting in Pat's backyard for a year and they need to be moved. We had planned to transfer the top rail from the old fence to the new fence... Parks is welcome to utilize any materials from the old fence. I could get Pat to do a quote for a fence at the top of the hill. Pat & Karl do excellent work. I think it is more fitting that Parks allocate taxpayer funds to build their own fence on their own land. We need a permanent solution.
  • Not sure exactly what you mean by community/beautification workdays but I and other owners would certainly be willing to commit to help wherever needed. We encourage owners to volunteer and Tom and I do work pretty much every day for the good of the community. I have done a lot of work already weeding and cleaning up the PCC side of the fence. I planted the Agaves along Hana Hwy and I literally spend every day beautifying the front entrance and the basin working to eliminate Haole Koa. I am available to assist in any way that would ameliorate this situation.

We really appreciate your willingness to facilitate in this regard. Please let me know how we can move forward.

Mahalo, Darlene Brothers

On 1/8/24 11:00 AM, Laura L. McDowell wrote:

Aloha Darlene,

Mahalo for your comments. We had a conversation with the Parks Dept.

Part of the renovations of Paia Community Center will include improvements to the parking lot. Post and rail will be installed on the Hookipa side of the park. The installation of the fence as requested cannot be completed at this time. One of the reasons mentioned in our conversation with Parks Dept is that there would be no justification to purchase the fence with taxpayer funds. The fence's only purpose would be to keep individuals out of the basin, however, that kuleana would fall on the HOA, as the association maintains the basin. The Dept notes the retaining wall will also be the kuleana of the HOA.

I spoke to a fencing company and they shared they install fences along slopes often. It may be in the HOA's best interest to gather a second opinion on a fence replacement. As the renovations with the parking lot at Paia Community Center start, please stay in conversation with the Parks Dept.

Mahalo, Laura McDowell, Executive Assistant, Office of Councilmember Nohe U'u-Hodgins, Makawao, Haiku, Paia Residency Seat

The HOA response to the above email is this letter sent 2024-01-25. The following RFS was filed on 2024-01-28...

Parks at Paia Community Center committed a grading violation of Ordinance 20.08.210 by depositing 3 feet of fill which spilled onto Kuau Bayview HOA property along our Retention Basin. The bottom of the fill slope was required to be 2 feet from the property line but in fact extended over the property line. Our fence was erected 2 to 4 feet inside the property line. This grading violation buried the bases of our fence posts causing them to corrode & snap off. Valley Isle Fencing (who installed the original fence) has determined that they cannot repair the fence until the fill is removed so that new fence posts can be installed along the property line giving them a safe place to stand on the inside of the fence line. It is critical that this fence be repaired asap before a child is injured or drowned as it is only 50 feet from the PCC play apparatus.