Bill 9 Implementation Maui Update: Maui Planning Commission Recommends 5 of 48 Properties for H-3/H-4 Rezoning as 32 More Head to Planning Commission

Maui County’s Bill 9 rezoning process took two major steps in the final days of September.

On September 22, the Maui Planning Commission completed its review of 48 properties under Resolutions 26-110 and 26-111, recommending H-3/H-4 rezoning for just five.

One week later, the Maui County Council voted 5-4 to send another 32 properties to the Maui Planning Commission for potential H-3 or H-4 Hotel District rezoning under Resolution 26-129, CD1.

Neither action represents final rezoning. But together, they provide a clearer picture of how Maui County is evaluating which apartment-zoned properties may be allowed to continue transient vacation rental use after Bill 9 takes effect.

Planning Commission Recommends H-3/H-4 Rezoning for 5 of 48 Properties

The Maui Planning Commission completed its review on September 22 and recommended H-3/H-4 rezoning for 5 of the 48 properties under Resolutions 26-110 and 26-111.

We previously covered the full list of properties included in Resolutions 26-110 and 26-111 and how they reached the Planning Commission in our Council Advances First Maui Vacation Rental Rezoning Resolutions Update Here.

Its formal recommendations must now be transmitted back to the County Council before the resolutions can move forward:

• Maui Schooner: 100% timeshare
• Hono Koa: 100% timeshare
• Maui Kaanapali Villas: existing variance
• Kuʻau Plaza: existing variance
• Hana Kai Maui: recommended for approval through the rezoning process

The first four properties were already exempt from the Bill 9 vacation rental phaseout because of their timeshare status or existing variances.

That makes Hana Kai Maui the only property not already exempt from Bill 9 to receive a recommendation for H-3/H-4 rezoning from the Planning Commission.

For the other properties, commissioners raised concerns that included potential residential use, insufficient property-specific information and the need for more objective standards for determining which properties should qualify as hotel-like operations.

The Planning Commission’s recommendations will now be formally sent back to the County Council, with further review expected by the Housing and Land Use Committee before returning to the full Council for a final decision. For properties the Planning Commission recommended against rezoning, at least six of the nine Council members would have to vote in favor for the rezoning to move forward.

Another 32 Properties Are Being Sent to the Maui Planning Commission

On September 29, the Maui County Council voted 5-4 to send another 32 properties to the Maui Planning Commission for potential H-3 or H-4 Hotel District rezoning under Resolution 26-129, CD1. Voting in favor were Council Chair Alice Lee, Vice Chair Yuki Lei Sugimura, and Council Members Kauanoe Batangan, Tom Cook, and Nohelani Uʻu-Hodgins. Voting against were Council Members Keani Rawlins-Fernandez, Gabe Johnson, Shane Sinenci, and Tamara Paltin.

Of those properties, 19 are currently zoned A-1 and proposed for H-3 Hotel District zoning, while 13 are A-2 properties proposed for H-4.

The 32 properties have not been rezoned. Resolution 26-129 will now go to the Maui Planning Commission for review and recommendations. A hearing date has not yet been announced, although MVRA anticipates the Commission will take up the resolution within the next couple of months.

How Were Properties Selected for Resolution 26-129?

Resolution 26-129 focuses on apartment-zoned properties affected by coastal hazards.

Under the criteria advanced by Council, more than 50% of a building’s footprint must fall within a Sea Level Rise Exposure Area, Special Flood Hazard Area or Shoreline Setback Area. Properties originally intended for affordable or workforce housing are excluded.

The resolution also includes a historical-use test. Properties where at least 25% of units were determined to have been in long-term residential use in 2008 were excluded.

That historical-use criterion became one of the most significant points of debate during the September 29 meeting.

Affected Owners Raise Potential Legal Challenges to the Selection Criteria

One of the more significant issues raised was whether the criteria Council is using to decide which properties are included in the rezoning process, and which are excluded, could create legal vulnerabilities for the County. During the September 29 meeting, an attorney representing nine affected properties argued that some of the criteria lack a clear enough connection to the purpose of the rezoning effort and may result in similarly situated properties being treated differently.

One example is the 2008 historical-use test. Properties where at least 25% of units were determined to have been in long-term residential use in 2008 were excluded from Resolution 26-129. The attorney questioned using 2008 Real Property Tax classifications to make that determination, arguing that an “apartment” classification did not necessarily mean a unit was being used as a long-term residence. It could, for example, have been a second home.

She argued that the tax classification should, at most, create a rebuttable presumption, allowing owners to provide records showing how their properties were actually being used.

She also questioned why properties qualifying through different coastal-hazard categories could be treated differently. According to her testimony, properties within a Special Flood Hazard Area were exempt from the 2008 historical-use criterion, while properties qualifying through the Sea Level Rise Exposure Area or Shoreline Setback Area remained subject to it. She asked what objective planning rationale justified that distinction.

The attorney raised a similar concern about the more-than-50% building-footprint threshold. She argued that determining whether a property is 49% or 51% within a designated hazard area could require individual surveys and lead to disputes over properties that otherwise face similar coastal risks. She proposed using a simpler test based on whether the hazard area intersects a building or parcel. That was her proposal during testimony and was not adopted by Council.

Importantly, the attorney did not argue that Council could not establish eligibility criteria. Her argument was that those criteria should be objective, consistently applied and rationally connected to the purpose Council is trying to accomplish. She warned that criteria that treat similarly situated properties differently could create potential grounds for legal challenges.

Those concerns are particularly relevant as Resolution 26-129 moves forward. Some properties that owners argue meet the resolution’s underlying coastal-hazard purpose remain outside the 32-property list, while others will now receive Planning Commission consideration. 

This testimony highlights a potential legal issue as Bill 9 implementation continues: if the County cannot clearly justify why similarly situated properties are treated differently, affected owners could challenge how those eligibility lines were drawn and applied, potentially creating more legal battles for the County.

REALTORS Association of Maui Questions What Sales Data Shows

The Council also heard questions about whether post-Bill 9 sales records alone can establish that affected vacation rental units are becoming local housing.

A REALTORS Association of Maui representative noted that properties purchased through LLCs and trusts can make it difficult to determine from deed records whether a buyer is a Maui resident or how the property will ultimately be used.

That matters because different organizations have cited different sales analyses when evaluating Bill 9’s early impact.

OHA cited County Finance data showing 101 affected properties had sold as of July, with 25 purchased by local buyers. MVRA presented a separate analysis identifying 162 sales through August 14, with 12 confirmed owner-occupants and another nine considered likely Maui resident owner-occupants. The analyses use different methodologies and should not be treated as directly comparable.

Some Properties Were Not Added Back to Resolution 26-129

Council also considered adding properties back into Resolution 26-129 before sending it to the Planning Commission.

An amendment to add Nohonani and Hoyochi Nikko failed 4-5.

A separate effort involving Maʻalaea Kai and Island Sands, which had been excluded based on the 2008 historical-use criterion, could not be considered because those properties were not identified on the published September 29 agenda.

The final CD1 resolution therefore moves forward with 32 properties.

Why the 5-4 Vote Matters

The Maui Planning Commission will now conduct its own review of the 32 properties included in Resolution 26-129.

That review takes on added significance following the Commission’s recommendations for Resolutions 26-110 and 26-111: only 5 of those 48 properties received recommendations for H-3/H-4 rezoning.

If the Planning Commission recommends against proposed zoning changes under Resolution 26-129, moving forward contrary to that recommendation would require six Council votes.

Only five Council members supported the September 29 referral. That does not determine how Council members will vote when the proposals return, but it makes the Planning Commission review an important next step.

Where the Bill 9 Rezoning Process Stands

Bill 9, now Ordinance 5909, allows affected transient vacation rental uses to continue through December 31, 2028 in West Maui and through December 31, 2030 elsewhere in Maui County, after which those uses must cease.

Bill 88, now Ordinance 6008, subsequently created the H-3 and H-4 Hotel Districts as a potential rezoning pathway for some properties affected by Bill 9.

As of the end of September 2026:

Resolutions 26-110 and 26-111: Planning Commission review is complete. 5 out of 48 properties received recommendations for H-3/H-4 rezoning, while the remaining properties received recommendations for denial. The Planning Commission has until November 24 to formally transmit its recommendations to the County Council, after which further HLU Committee review is expected before a final Council decision.

Resolution 26-129, CD1: Council has referred 32 properties to the Maui Planning Commission for H-3/H-4 rezoning review. A Planning Commission hearing date has not yet been announced.

Resolution 26-130: This separate rezoning proposal, which addresses 10 Walaka Street in Kihei and the Makai Sunset Inn properties in Lahaina, was not advanced at the September 9 Housing and Land Use Committee meeting and remains under committee review. No hearing date has been announced.

Affordability Resolutions: Additional resolutions addressing properties being considered under affordability criteria have not yet been introduced, so the proposed property lists and criteria are not yet available.

For owners, the most important takeaway is that none of these actions by themselves change a property’s zoning. An individual property’s status depends on which resolution includes it and where that measure currently stands in the County process.

Maui Real Estate Advisors will continue monitoring these proceedings as Resolution 26-129 moves through the Planning Commission and Resolutions 26-110 and 26-111 return to the County Council.

If you own a Maui property affected by Bill 9, or are considering buying or selling one, contact Maui Real Estate Advisors to discuss your property’s current status and how the evolving regulations may affect your real estate decisions.

Follow Our Maui Bill 9 Coverage
Maui Real Estate Advisors has been following Bill 9 from its initial passage through the creation of the H-3/H-4 Hotel Districts and the current property-specific rezoning process. View all of our latest Maui Bill 9 updates.

With Aloha,

This Bill 9 Maui Real Estate update represents our opinion based on available information and should not be considered financial or legal advice.