Baskin v. Maui County Board of Variances and Appeals

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-APR-2025
09:05 AM
Dkt. 72 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MICHAEL BASKIN; and PAIA BAY PROPERTIES LLC,
Appellants-Appellants-Appellees, v. MAUI COUNTY
BOARD OF VARIANCES AND APPEALS; KATE BLYSTONE1
in her capacity as Director of the Department of Planning
for the County of Maui; and DEPARTMENT OF PLANNING,
COUNTY OF MAUI, Appellees-Appellees-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

The Maui County Board of Variances and Appeals (BVA),
the Maui County Planning Department, and the Planning
Department's Director (collectively, the County) appeal from the
July 5, 2022 Final Judgment for Michael Baskin and Paia Bay
Properties LLC (together, Baskin) entered by the Circuit Court of
the Second Circuit.2 The Final Judgment reversed a decision by
the BVA and directed the Planning Department to approve two
parking-related applications sought by Baskin. We hold that the
Director's decisions on Baskin's applications were not clearly

1
Kate Blystone, the current director of the Department of Planning
for the County of Maui, is substituted for former director Michele McLean
under Hawai#i Rules of Appellate Procedure Rule 43(c)(1).
2
The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

erroneous, affected by an error of law, arbitrary, capricious, or
an abuse of discretion. Accordingly, we reverse the Final
Judgment and affirm the BVA's decision affirming the Director's
actions.

I. BACKGROUND

Baskin owns property at 49 Hana Highway in Pā#ia, Maui,
and leases the property next door, at 65 Hana Highway. On
November 25, 2019, Baskin submitted an Off-site Parking
Application for 49 Hana Highway. The proposed 17-stall parking
lot was to be used by patrons of Baskin's restaurant at 65 Hana
Highway. A revised application was submitted on December 3,
2019. By letter dated January 23, 2020, the Director informed
Baskin that his application would not be processed because the
proposed off-site parking was not a public parking lot and did
not serve public purposes — the only permitted parking uses for
property zoned Public/Quasi-Public. Baskin appealed to the BVA
on February 24, 2020.
On January 28, 2020, Baskin submitted a Parking
Reduction Application. He sought to reduce the required number
of parking stalls for 65 Hana Highway (where his restaurant was
located) from 28 to 12, with space to park 20 bicycles. The
Director denied the application on April 17, 2020, explaining her
reasons. Baskin appealed to the BVA on May 18, 2020.
Baskin had submitted the applications because he
planned to expand his restaurant. The BVA consolidated Baskin's
appeals and held a contested case hearing. On December 10, 2020,
the BVA made findings of fact and conclusions of law and issued
its Decision denying both appeals.
Baskin appealed to the circuit court under Hawaii
Revised Statutes (HRS) § 91-14. The circuit court remanded the
case to the BVA for more fact-finding. The BVA made additional
findings of fact on July 23, 2021. On June 15, 2022, the circuit
court entered findings of fact, conclusions of law, and an order
granting Baskin's appeal and instructing the Planning Department

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

to approve Baskin's applications. The County moved for
reconsideration. The circuit court denied the motion. The Final
Judgment was entered on July 5, 2022. This appeal followed.

II. STANDARDS OF REVIEW

A. Agency Appeal

Our review of the circuit court's decision on an HRS
§ 91-14 agency appeal is a secondary appeal, in which we decide
whether the circuit court was right or wrong by applying the
standards of HRS § 91–14(g) to the BVA's decision and order.
Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d
469, 475 (2018). HRS § 91–14(g) (Supp. 2021) provides:

Upon review of the record, the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:

(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or jurisdiction
of the agency;
(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion.

We review an agency's findings of fact for clear error,
and its conclusions of law de novo. Del Monte Fresh Produce
(Hawaii), Inc. v. International Longshore & Warehouse Union,
Local 142, 128 Hawai#i 289, 302, 287 P.3d 190, 203 (2012). An
agency's determination of a mixed question of fact and law is
reviewed under the clearly erroneous standard because it depends
on the facts and circumstances of the particular case. In re
Kuamoo, 142 Hawai#i 492, 496, 421 P.3d 1262, 1266 (2018). Where

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

mixed questions of fact and law are presented, we defer to the
agency's expertise and experience in the particular field and
will not substitute our judgment for that of the agency. Dole
Hawaii Div.-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794
P.2d 1115, 1118 (1990).
The BVA's proceeding was governed by Maui County Code
(MCC) § 19.520.040 (1991):

An appeal may be granted only if the board finds one of the
following:
1. That the subject decision or order was based on
an erroneous finding of a material fact or
erroneously applied the law;

2. That the subject decision or order was arbitrary
and capricious in its application; or

3. That the subject decision or order was a
manifest abuse of discretion.

The BVA's Rules of Practice and Procedure (RPP)
similarly provide:

Unless otherwise provided by law, the board shall review the
decision or order under appeal and may affirm the decision
or order or remand the case to the hearing officer, if any,
with instructions for further proceedings; or the board may
reverse the decision or order if the substantial rights of
the petitioner may have been prejudiced because the decision
or order is:

(1) Based on a clearly erroneous finding of material
fact or erroneous application of the law; or

(2) Arbitrary or capricious in its application; or

(3) A clearly unwarranted abuse of discretion.

RPP § 12-801-81 (2005).

B. Statutory Construction

Interpretation of a statute is a question of law
reviewed de novo. Kauai Springs, Inc. v. Planning Comm'n of
Cnty. of Kaua#i, 133 Hawai#i 141, 163, 324 P.3d 951, 973 (2014).

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

III. POINTS OF ERROR

The County states five points of error, which we
rephrase according to the applicable standard of review: (1) the
circuit court erred by applying HRS § 91-13.5(c) (concerning
deadlines and deemed approval) to the BVA acting in its appellate
role; (2) the BVA correctly concluded that Baskin's proposed
private off-site parking was not allowed on land zoned
public/quasi-public because it did not serve public purposes;
(3) the Director's and BVA's findings that there was a parking
shortage in Pā#ia was not clearly erroneous; (4) the circuit
court's ruling was wrong; and (5) the circuit court erred when it
denied the County's motion for reconsideration.

IV. DISCUSSION

The parties' appellate briefs focus on the circuit
court's findings of fact, rather than those of the Director or
the BVA.3 We refer to the briefs filed in the circuit court
appeal to discern the parties' respective arguments about the
BVA's findings.

A. We need not decide whether HRS § 91-13.5(c)
applies when the BVA considers an appeal.

Baskin's notice of appeal to the circuit court argued
the BVA erred when it denied Baskin's oral motion "for an
automatic approval due to the operation of HRS §[ ]91-13.5[.]"
The County argues that HRS § 91-13.5 doesn't apply to the BVA
acting in its appellate role.4 We need not decide this issue
because even if HRS § 91-13.5(c) applied when the BVA decides an

3
A circuit court reviewing an agency decision acts as an appellate
court. It should not make its own findings of fact; it decides whether the
agency's findings of fact were clearly erroneous based on the evidence before
the agency. Sierra Club v. Bd. of Land & Nat. Res., 154 Hawai#i 264, 284, 550
P.3d 230, 250 (App. 2024), cert. granted, No. SCWC-XX-XXXXXXX, 2024 WL 3378462
(Haw. July 11, 2024).
4
The BVA also decides applications for zoning variances, hence its
name, Board of Variances and Appeals. MCC § 19.520.020 (1997).

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

appeal, the BVA's decision on Baskin's appeals was rendered
within the time required by the applicable rule, RPP § 12-801-60
(1999).
HRS § 91-13.5 (2012) provides, in relevant part:

(c) All such issuing agencies shall take action to
grant or deny any application for a business or development-
related permit, license, or approval within the established
maximum period of time, or the application shall be deemed
approved[.]

Baskin argued:

[W]ithin 120 days of the application being approved, there's
supposed to be a decision rendered. The rules aren't super
clear at least to me whether that means the original
underlying application or the application for this appeal,
but in either event, more than 120 days has expired. So,
therefore, pursuant to HRS 91-13.5, we believe that this
should be automatically approved. And we understand there
is different timelines for contested case hearings, but the
120 days was already expired before the contested case
procedure was announced and held.

. . . .

Okay. So with regard to the off site parking, the
initial application . . . was filed on November 25th, 2019,
and the amended application was filed December 3rd, 2019.
So 120 days from that application expired on April 16th,
2020. The notice of appeal was filed on February 23rd,
2020. And 120 days from that was July 2nd, 2020.

And with regard to the parking reduction, the initial
application was made January 27th, 2020. The notice of
appeal was filed May 20th, 2020. The 120 days from the day
of the initial application was June 10th, 2020, and the 120
days from the application for the appeal was September 27th,
2020. Thank you.

Baskin did not cite to the BVA any rule setting a 120-
day deadline. Baskin cited RPP § 12-801-14 to the circuit court.
That rule applies to final decisions and orders issued by the BVA
when no contested case hearing is required; it does not apply to
the Director's decisions on zoning code applications, or to the
BVA's decisions in an appeal.
At any rate, Baskin's circuit court opening brief
argued the BVA should have deemed his Off-site Parking
Application (revised on December 3, 2019) approved on

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

December 18, 2019 (15 days later), under MCC "§ 19.510C," because
"[t]here was no notification regarding completeness[.]" There is
no MCC § 19.510C. But there was an MCC § 19.510.010.C.1 (2007).5
It provided, in relevant part:

Not more than fifteen business days from the date upon which
an application is received, the planning director shall
review the application to determine if the application is
complete or incomplete. If the application is complete, the
planning director shall continue processing the application.
If the application is incomplete, the planning director
shall provide the applicant with a written statement that
identifies the portions of the application determined to be
incomplete.

Baskin misread the deadline, which was 15 business
days; it would have fallen on December 24, 2019. But even so,
there was no requirement for the Director to notify Baskin she
determined his application was complete. The Director continued
processing the application, consistent with MCC § 19.510.010.C.1.
The Off-site Parking Application was submitted under MCC
§ 19.36B.100 (2018). That section does not contain a deadline
for the Director to act on the application. Baskin made the same
arguments, citing the same MCC and RPP provisions, about the
Parking Reduction Application. That application was submitted
under MCC § 19.36B.110 (2018), which does not contain a deadline.
Baskin's argument for "deemed approval" by the Director
lacks merit. The BVA was not wrong to deny Baskin's oral motion,
albeit for the wrong reasons.6 The circuit court's conclusion
that "the Planning Department . . . missed the applicable time
deadlines, as set forth in [Baskin's] opening brief," was wrong.
Baskin's circuit court brief also argued his BVA
appeals should be deemed approved because "under MCC 19.520.030,

5
MCC § 19.510.010 was amended effective February 12, 2020, by
Ordinance No. 5047 (2020). The 2020 amendment does not apply to this case.
6
The BVA unanimously approved a member's motion for a vote "that
this filing for an appeal has been timely made and is being timely heard, in
light of the tolling of applicable deadlines, if any, due to the [COVID-19]
emergency declarations of the county and the state of Hawaii." Baskin did not
clarify the scope of his oral motion. After the vote Baskin stated, "Nothing
further, chair. Thank you very much."

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the final day for the determination of completeness of the notice
of appeal would be March 5, 2020 and one hundred and twenty days
for the BVA's written decision would fall on July 3, 2020." MCC
§ 19.520.030 (1991) contains no 120-day deadline. BVA RPP
§ 12-801-14 (1999) contains a 120-day deadline, but it doesn't
apply to "decisions rendered after a contested case proceeding,"
which is what Baskin's appeals were.
The applicable deadline is referenced in BVA RPP
§ 12-801-80.1 (2007), "Procedure concerning appeals." It
provides:

The board shall hold a contested case hearing on the appeal.
. . . Subchapters 3, 4 and 5 of these rules, relating to
intervention, contested case procedures, and post[-]hearing
procedures, respectively, shall govern the proceedings[.]

RPP § 12-801-60, part of Subchapter 5, requires that
"decisions and orders in contested cases shall be rendered within
forty-five days from the presentation of oral argument by the
parties." Here, the BVA heard oral argument on November 25,
2020. The order denying both appeals was entered on December 10,
2020, well within the 45-day deadline. The circuit court was
wrong when it concluded that the BVA "missed the applicable time
deadlines, as set forth in [Baskin's] opening brief," and that
"because the BVA failed to take action to grant or deny the
Applications within the required time frame, [Baskin's] Appeal
Applications must be approved". Baskin's argument for "deemed
approval" by the BVA lacks merit.

B. The BVA did not err by affirming the
Director's decision to close the Off-site
Parking Application.

By letter dated January 23, 2020, the Director informed
Baskin:

The proposed off-site parking lot is zoned P-1
Public/quasi-public, which allows the following standalone
parking lots: "Private parking lots or structures serving
public purposes" and "Public parking lots or structures"
(MCC § 19.31.020). Based on a review of your application,

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

your proposed off-site parking lot is not for the above
uses; therefore, we are unable to process your off-site
parking permit application and have closed this application.

Baskin's BVA appeal application argued:

[MCC] Chapter 19 does not specifically define what "public
purposes" are. . . . [Baskin] asserts 49 Hana Hwy. is a
private parking lot to be used for a public purpose by
providing the public with parking for the restaurant at
65 Hana Hwy.

Baskin's testimony to the BVA confirmed the proposed
off-site parking could only be used by customers of his
restaurant located next door. The BVA found and concluded:

16. The Board finds that 49 Hana Highway, Paia is
zoned Public/Quasi-public. The Board finds that "public
parking lots" and "private parking lots serving public
purposes" are permitted uses in Public/Quasi-public
districts.

17. The Board finds that [Baskin]'s [Off-site
Parking] application was intended to allow the expansion of
the restaurant at 65 Hana Highway, which is a private
business. The Board finds that off-site parking stalls for
the exclusive benefit of a private business does not serve a
public purpose.

. . . .

5. Based upon the exhibits, appeals, written
briefing and testimony and considering the record as a
whole, the Board concludes that the Director did not err as
a matter of law in determining that Off-site Parking stalls
for the exclusive use of a private commercial business is
not a permitted use in the Public/Quasi-Public district.
Therefore, the Director’s decision to return the application
without processing it was not clearly erroneous as to a
material fact or erroneous application of the law.

MCC § 19.04.040 (2018) does not define "public
purposes." But MCC § 19.04.015.C (2017) explains that the
purpose and intent of Maui's comprehensive zoning law is "to
provide reasonable development standards which implement the
community plans of the County." MCC § 19.31.010 (2013) explains:
"Public/quasi-public districts provide for public, nonprofit, or
quasi-public uses." "Public use" means "a use conducted by, or a
facility or structure owned or managed by, the government of the
United States, the State of Hawaii, or the County of Maui which

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

provides a governmental function, activity, or service for public
benefit." MCC § 19.04.040. "Quasi-public use" means a use
conducted by, or a facility or structure owned or operated by, a
nonprofit, religious, or eleemosynary institution which provides
educational, cultural, recreational, religious, or other similar
types of public services." Id. When these code provisions are
read together, Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439,
450, 420 P.3d 370, 381 (2018), the BVA's conclusion that Baskin's
proposed private off-site parking lot for the exclusive use of
his restaurant's customers would not serve a public purpose was
not wrong. The BVA's conclusion of law no. 5 was not wrong.
Baskin's circuit court brief argued the BVA's decision
"had no factual basis as Baskin stated on the record that he
would accept a condition that the parking be open to all members
of the public." After being questioned about whether the public
could park in the lot without patronizing Baskin's restaurant,
Baskin stated:

So from my standpoint, the answer is yes, if we are
given and granted the approval today to have our outdoor
dining, and if you felt, Raymond, that was in the best
interest of the community and of the public, we would be
happy to do so. We could put a sign up saying public
parking, and if you felt that that was the best route to go.
We're very amenable here today to try to get a resolution,
whatever you feel would be the best thing to do. In my
view, it's customers coming to Paia. So if they're coming
to my restaurant, great. And if you felt you wanted them to
go to another restaurant, that would be fine with us as
well.

The BVA was not reviewing the Director's decision on an
application for a public parking lot. It was reviewing the
Director's decision on Baskin's application for a "proposed
off-site parking lot" for the exclusive use of his restaurant's
customers. Since Baskin did not apply to the Director for a
public parking lot, the BVA would have exceeded its appellate
authority if it reversed the Director's decision on the condition
that Baskin open the proposed private lot to the public.

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Baskin's circuit court brief also argued the BVA
"erroneously credited the testimony of John Rapacz that the
'Public Parking area' definition in MCC 19.04.040 does not apply
to MCC Chapter 19.31 (Public/Quasi-public districts)" and
"erroneously adopted comments by John Rapacz that the off-site
parking is not a permitted use in the Public/Quasi-Public
district . . . [and] that the 'Public Parking area' definition in
MCC 19.04.040 does not apply anywhere except in the Historic
District." Rapacz is the Planning Department's planning program
administrator.
The BVA found:

14. John Rapacz testified that the off-site parking
is not a permitted use in the Public/Quasi-Public district.
He further testified that the "Public Parking area"
definition in MCC § 19.04.040 does not apply anywhere except
in the Historic District. He noted that the term is not
used anywhere else.

. . . .
18. The Board credits the testimony of John Rapacz
that the "Public Parking area" definition in MCC § 19.04.040
does not apply to MCC Chapter 19.31 (Public/Quasi-public
districts).

(Record citations omitted.)
MCC § 19.04.040 contains this definition:

Parking area, public. "Public parking area" means an
open area, other than a street or alley, used for the
parking of automobiles and available for public use whether
free, for compensation, or as an accommodation for clients
or customers.

The phrase "public parking area" is not used in MCC
Chapter 19.31. The only permitted parking uses in public/quasi-
public districts are "Private parking lots or structures serving
public purposes" and "Public parking lots or structures." MCC
§ 19.31.020 (2013). (Emphasis added.)
The phrase "public parking areas" appears in MCC
§ 19.52.090.B.49 (2013), which allows public parking areas in the
two Lahaina historic districts, "provided, that none shall abut

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Front Street." Baskin cites no other MCC provision using the
phrases "public parking areas" or "public parking area."
The Maui County Code differentiates between parking
lots and parking areas. When a statute specifically defines
terms and uses them in some sections, but not in others, we are
not free to interchange or substitute one for the other, even if
they share a common meaning in everyday speech. The BVA was not
wrong to conclude that "public parking area" is not a permitted
use in public/quasi-public districts. It did not err by denying
Baskin's appeal. The circuit court's ruling to the contrary was
wrong.

C. The BVA did not err by affirming the
Director's decision to deny the Parking
Reduction Application.

Baskin's MCC § 19.36B.110 Parking Reduction Application
sought to reduce the number of required parking stalls at 65 Hana
Highway from 28 to 14, and to convert two of the 14 stalls to
accommodate 20 bicycles. MCC § 19.36B.110 provides, in relevant
part:

A. For any proposed use, the director may reduce by up to
50 percent the number of the required parking spaces
. . . after making a written determination that
adequate parking will be reasonably provided. The
director shall consider the proposed use, any
structures, lot configurations, industry standards,
general plan, zoning and state land use designations,
historic character and applicable design guidelines in
considering the necessity and type of conditions.
. . . At least one of the following criteria must be
met for the director to determine that parking will be
reasonably provided:
. . . .

3. One of the following is located within two
thousand five hundred feet of the proposed use
and can provide parking for the proposed use:
a. A publicly owned off-street parking lot;
or

b. Other parking that is available to the
public and is not used to otherwise
fulfill the parking requirements of this
chapter.

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

. . . .
5. There is nearby transit, pedestrian, or bicycle
access and bicycle parking, and safe access is
provided for pedestrians.
. . . .
C. Bicycle parking. The number of parking spaces
required for non-dwelling uses may be reduced by up to
two, at a ratio of one space for each ten provided
bicycle parking spaces[.]

By letter dated April 17, 2020, the Director denied the
application. The Director explained that the application met
criteria A.3.a, A.3.b, and A5, but:

While these provisions are applicable, a determination
cannot be made that adequate parking will be reasonably
provided.
There are some businesses in Paia Town that have no
parking requirement due to grandfathering (reference MCC
19.500.110.D); even if one of those business changes hands,
if the same type of business is conducted, there is still no
parking requirement. Due to this code provision, and the
popularity of Paia in recent years, the area cannot
accommodate any further intensity in uses without the
required parking being provided. Over the years, businesses
have continued to utilize the available parking offered to
the public and unfortunately, this area is at its maximum
capacity for parking. In order to justly serve the Paia
community and visitors alike, it would be a disservice to
allow further development that would intensify parking in
this area, unless the area's parking capacity is increased,
or there are exceptional circumstances. Therefore, your
request is denied.

Baskin's BVA appeal application argued:

Despite acknowledging that the application meets the
criteria 19.36B.110.A.3a and 3b and 19.36B.110A.5, the
department states that a determination cannot be made that
adequate parking will be reasonably provided. By this
finding the department seems to be imposing some novel
criteria instead of applying the law to the facts presented
in the application.
Moreover, . . . the department ignores that [Baskin] has
offered an off-site parking located at 49 Hana Hwy. to be
used by the public. This determination has nothing to do
with safety, impacts on the adjacent properties and/or the
environment.
. . . .

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Denial Notice is an example of an arbitrary and
capricious abuse of power by issuing a decision lacking a
rational connection between the facts provided and the
decision made, as well as contrary to the applicable law.
. . .
. . . .
The department also ignores the fact ignores [sic] that
[Baskin] has offered an off-site parking located at 49 Hana
Hwy. to be used by the public. The Denial Notice is
therefore a clearly unwarranted abuse of discretion.

The BVA found and concluded:

15. Regarding [Baskin]'s application for a parking
reduction, [Baskin's project architect Kurt Magnes]
testified that Paia needs parking and a reduction was a
"no-brainer". [Baskin's landscape architect David Sereda]
testified that people "grumble that there's inadequate
parking in Paia" and that the additional stalls would be a
benefit to Paia community. Niess testified that "everybody
knows that Paia needs more parking." Rapacz agreed that
"it's generally recognized that there's a parking issue in
Pā#ia."

. . . .
19. The Board finds that the Director's denial of
the parking reduction application was directly related to
the severe shortage of parking in Paia. The Director's
reasoning is identical to that in the August 10, 2020
parking reduction denial for 151 Hana Highway, Pā#ia.

20. The Board finds that the denial of both
applications does not appear to be rooted in personal animus
against Mr. Baskin.
. . . .

6. The Board also concludes that the Department's
denial of [Baskin]'s parking reduction application was not
arbitrary or capricious in its application, and was not a
clearly unwarranted abuse of discretion. Further, as this
Board has found that the denials were not rooted in animus,
the Board concludes that [Baskin] was afforded a fair
application process.

(Record citations omitted.)
Baskin's circuit court brief first argued that the BVA
misapplied the law, was arbitrary and capricious, and abused its
discretion "for a very simple reason that [Baskin] met three
conditions for a parking reduction and only needed to show one"
under MCC § 19.36B.110.A. Baskin misreads MCC § 19.36B.110.
Meeting at least one of the ten criteria in MCC § 19.36B.110.A is

14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

a minimum requirement for consideration of the application; it is
not dispositive. The Director must still determine whether
"adequate parking will be reasonably provided" after considering
the factors listed in the code section.
Magnes testified that parking was, "you know, a major
problem in Paia." Sereda testified "that any time you talk about
parking and people grumble that there's inadequate parking in
Paia, you know[.]" Peter Niess, an architect who lives in
Ha#ikū, lived in Pā#ia for six years, and drives through Pā#ia
twice a day, testified that "[e]verybody knows that Paia needs
more parking" and conceded the Parking Reduction Application
"doesn't reduce the traffic and issues of parking in Paia in
getting to a business or even wanting to stop in Paia." Rapacz
testified that within the Planning Department, "it's generally
recognized that there's a parking issue in Paia." The BVA record
included a copy of the Director's August 10, 2020 denial of a
parking reduction application for 151 Hana Highway in Pā#ia that
contained an explanation similar to the one in Baskin's denial
letter.
Baskin's circuit court brief argued that the BVA
"ignored the fact that [Baskin was] willing to allow anybody to
park there [on 49 Hana Highway], including non-customers [of his
restaurant at 65 Hana Highway]." As we stated above, Baskin
didn't apply for a public parking lot at 49 Hana Highway, so the
BVA could not have conditioned a reversal of the parking
reduction denial on Baskin having a public parking lot on 49 Hana
Highway.
On this record, we cannot conclude that the Director's
decision to deny the Parking Reduction Application was based on a
clearly erroneous finding of material fact or erroneous
application of the law; or was arbitrary or capricious; or was an
abuse of discretion. The BVA did not err by denying Baskin's
appeal. The circuit court's ruling to the contrary was wrong.
We need not address the circuit court's denial of the
County's motion for reconsideration.

15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

V. CONCLUSION

The circuit court's July 5, 2022 Final Judgment is
reversed. The BVA's December 10, 2020, Decision denying Baskin's
appeals and affirming the Director's actions is affirmed, but for
reasons different than those articulated by the BVA.
DATED: Honolulu, Hawai#i, April 1, 2025.

On the briefs:
/s/ Keith K. Hiraoka
Thomas Kolbe, Presiding Judge
Kristin K. Tarnstrom,
Deputies Corporation Counsel, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Appellees-Appellees-
Appellants. /s/ Kimberly T. Guidry
Associate Judge
Terrance M. Revere,
Magdalena Bajon,
for Appellants-Appellants-
Appellees.

16