Maui rewrote coastal development rules, and advocates say it handed developers the keys

An environmental group says Maui's new coastal development rules let developers decide whether they need a permit. Hawaii's Supreme Court is now weighing whether that's legal.

by Jeremy Yurow, Court House News, June 18, 2026

HONOLULU (CN) — Maui’s coastline is shrinking. And for years, the rules governing what can be built near the shore have been debated among developers, environmental advocates and fire survivors trying to rebuild their homes in Lahaina.

On Thursday, the Hawaii Supreme Court heard arguments over whether Maui County exceeded its authority when it overhauled those rules and created a series of exemptions that allow developers to bypass county review altogether.

The case pits Maui Tomorrow Foundation, a Maui-based environmental nonprofit, against the Maui Planning Commission and the County of Maui. The foundation argues that rules adopted in 2024 unlawfully handed oversight responsibilities to developers, allowing them to decide for themselves whether a project qualifies for an exemption from the permitting process.

The fight is over Maui’s Special Management Area, a zone that covers environmentally sensitive lands near the shoreline under state and federal coastal protection law. Development within the area generally requires a county permit.

Maui’s revised rules created 15 categorical exemptions from that permitting process. Maui Tomorrow argues the exemptions are so broad they effectively eliminate the county oversight required by state law.

Maui Circuit Court Judge Kirstin Hamman agreed, deciding in November 2024 the rules “impermissibly delegate Commission obligations to SMA users.” The county appealed, and the Hawaii Supreme Court accepted the case last year, bypassing the Intermediate Court of Appeals to take it up.

Deputy Corporation Counsel Brian Bilberry, arguing for the county, told justices the case turns on a distinction: The difference between genuine development and routine activities that were never meant to require permits.

“We are really talking about managing developments versus this category of uses, activities, and operations that are not developments and not subject to being reviewed and going through the permitting process,” Bilberry said.

He argued the county’s exemptions largely mirror exemptions already recognized in state law and provide guidance to property owners about what does and doesn’t require a permit. He compared the exempted activities to replacing a washing machine, installing new countertops or building a laundry room.

“The codified exemptions are guidelines to a pre-applicant citizen to make determinations as to whether a minor or routine use, activity, or operation requires that citizen to fill out an application, pay a $205 assessment fee, and then call upon municipal planning staff and professionals to review and determine whether their kitchen countertop requires an environmental assessment,” he said.

Lance Collins, arguing for Maui Tomorrow Foundation, said the county’s revisions removed a critical safeguard built into the statute.

Under state law, Collins said, an activity may only be exempt if the county first determines it will not significantly harm or cumulatively damage coastal resources. The new rules, he said, skip that step entirely, turning a conditional exemption into an automatic one.

“The exemption is no longer contingent on the subsequent language at the end of that section of the definition that says: provided that whenever the authority determines there is a significant impact or cumulative effect, the exemption does not apply,” Collins said. “That is at the core of the problem.”

He said the old rules required applicants to submit an assessment county officials reviewed and placed on a planning commission agenda, giving the public an opportunity to weigh in. Under the new system, he said, exempted activities can proceed without any county review at all.

“There is no notice, there is no process, and nobody will know anything if somebody decides not to comply,” Collins said, “unless they are watching their neighbors.”

Several justices focused on who, if anyone, is actually making the determinations the statute requires.

Justice Lisa Ginoza noted that while the new rules require applicants to file declarations stating they do not need a permit, the rules also specify the county does not review or respond to those filings.

“What is the proper role of the commission here?” Ginoza asked.

Bilberry said the declarations still provide public notice and members of the public can challenge projects they believe are improperly exempted.

Chief Justice Vladimir Devens appeared skeptical, suggesting the system puts the burden of catching problems on the public rather than the county.

“You have to trust the public,” Bilberry said. “You have to trust them to read the law and understand the regulations.”

Justice Todd Eddins returned to what he described as the central issue: whether the county had eliminated any mechanism for catching cases where exempted activities might add up to significant environmental harm.

“Whenever the authority finds cumulative impact, an excluded use becomes a development,” Eddins said. “And yet the amended rules of Maui County basically eliminated any mechanism for the authority to make that finding with respect to those 15 exempted activities.”

Collins agreed, calling that the strongest version of Maui Tomorrow’s argument. He also advanced a broader theory that counties cannot adopt coastal rules less protective than the ones already on the books.

Eddins questioned whether that would prevent counties from making even modest changes. Collins said Maui’s revisions were far beyond modest.

“I don’t think this is just a slight reduction,” Collins said. “This is a wholesale deregulation.”

Bilberry also informed the court that Governor Josh Green had signed new legislation earlier this month amending the state’s coastal zone management statute to clarify that certain excluded activities are not intended to require SMA permits. Bilberry argued the new law supports the county’s position.

The panel consisted of Chief Justice Devens, Justices Sabrina McKenna, Todd Eddins and Lisa Ginoza and Circuit Judge Paul Wong.

The court took the matter under advisement.