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Orlando and Rowena Baraoidan thought it would be faster to rebuild on a different lot in Central Maui after their home burned down in Lahaina in August 2023. Instead, they’re stuck in bureaucratic limbo with a vacant residential property that they can’t build on.

The issue: a completed archaeological study – the final step needed to get a county building permit – has been sitting with the State Historic Preservation Division for months.

“We just don’t know what to do,” Rowena Baraoidan said in an interview. “Our hands are tied.”

Planners, consultants and property owners say SHPD’s review process is the slowest they’ve seen it in years. At a time when the need for homes on Maui is critical, the state agency in charge of protecting Native Hawaiian burial sites and other historic resources faces criticism from a wide range of people trying to get building permits. Several individual property owners, builders and consultants described a limbo that can last for years.

One Honolulu lawyer had five homeowners stuck in the process until last week, when one finally got a building permit after conducting multiple archaeological studies over three years.

“SHPD’s had a long history of delaying projects. That’s nothing new,” says Thorne Abbott, a former Maui County coastal planner who now works as a consultant. “But this is the worst I’ve seen it in years.”

The scope of the backlog of archaeology reviews before SHPD on Maui isn’t clear. SHPD and its parent agency, the Department of Land and Natural Resources, declined to be interviewed for this story.

But the problem is significant enough that Gov. Josh Green’s office is working on it as part of broader housing issues on Maui, according to DLNR’s communications director, Dan Dennison.

“SHPD has been working with a task force established by the Governor’s office to get housing projects approved as quickly as possible,” Dennison said in a statement. “The division continues working with Maui County on how it can help streamline individual private property owners getting their projects through the permitting process. Due to the complexity of the continuing work, we’re not in a position to provide further comment at this time.”

The challenge comes because SHPD can require multiple archaeological studies of the same property. Property owners generally must conduct an archaeological survey of the property performed by a state-certified archaeologist and submit a report to SHPD for review. In some instances, SHPD may ask for multiple draft reports and surveys, each a potential subject of delay, before the agency signs off.

Nico Fuentes of Atlas Archaeology in Wailuku said people aren’t trying to circumvent historic preservation laws. They simply want the state and Maui County to act according to the laws.

“We just need the state to perform under the law as it is written,” said Fuentes, who performed an archaeological inventory survey indicating there were no burials or other historic sites on the Baraoidans’ property. That report was submitted to SHPD in June, conducted according to methods approved by SHPD. The Baraoidans are still waiting for SHPD to say whether it’s adequate.

SHPD’s administrative rules allow county governments to step in if SHPD delays more than 45 days in making such determinations, says attorney Sharon Paris. She has asked the county to do just that for Baraoidan and four others.

“The governing rules clearly contemplate a path forward when the SHPD fails to timely respond, to prevent this exact scenario in which Atlas and the permit applicant are now stuck — waiting in indefinite limbo for permits to be issued because of SHPD’s inaction while their costs and the impacts of the delay continue to accrue,” Paris wrote in an August letter to Jordan Molina, director of Maui’s Department of Public Works. “Based on the foregoing, the SHPD/historic review portion of this permit application must be deemed complete.” 

In an interview, Molina said the county assesses each such request case by case but defers to SHPD.

“In the past, we’ve gotten mixed feedback from SHPD for using that provision,” Molina said. “Generally we’re not inclined to just plow ahead on Maui.”

At the center of the dispute is Hawaii’s historic preservation law, which specifically protects . The statute establishes advisory  to help implement the law. And it details requirements on dealing with graves  during construction. 

Most important for people like the Baraoidans, a county can’t issue a building permit for a proposed project until the county has given  the possible effect of the project on “historic properties, aviation artifacts, or burial sites.”

But getting SHPD to move forward on the reviews once surveys have been completed is a challenge. By all accounts SHPD is simply overworked and understaffed to conduct the massive amount of work, which includes evaluating survey methods and the final reviews. 

SHPD reviews have “always been a hindrance for anybody moving forward,” says Rep. Elle Cochran of Lahaina.

But she said the situation has only gotten worse since the August 2023 wildfire that destroyed much of Lahaina. That has triggered the need for SHPD to conduct reviews for a deluge of proposed projects, including major county works and individual homeowners. 

The lack of a SHPD official located on Maui underscores the inadequate agency resources dedicated to the island, Cochran said. 

Molina echoed Cochran, saying the county is now competing with individual property owners for SHPD’s limited bandwidth.

“They’re extremely understaffed at this point, which doesn’t help at all,” he said.

‘Unfair, And Frankly Against The Law’

The result for individuals is delay. Paris, the lawyer for Atlas Archaeology, has written a half dozen letters to SHPD and Maui County on behalf of Atlas Archaeology and its clients. They show similar patterns. Some people have been stuck in SHPD’s regulatory process for years, starting before the Maui wildfires; Paris this year stepped in to urge the state and county to act.

In some cases, the letters and supporting documents show, SHPD not only has delayed review of studies, but had also tacked on additional review requirements each time the homeowner submitted a study, essentially moving the goal line each time the property owner seemed to get close to crossing it.

“The Owners understand that SHPD is overwhelmed, understaffed, and has multiple competing priorities,” Paris wrote in an October letter to Kate Blystone, director of Maui’s Department of Planning. “However, it is unfair, and frankly against the law, to place the burden and negative impacts of these systemic problems upon individual Maui citizens to bear.”

But whether Maui County’s failure to act when SHPD doesn’t is a matter of dispute, said Molina, the county’s public works director. 

The administrative rule in question says, “The SHPD shall inform the agency within forty five days of SHPD receipt of the report, if the information contained in the report or archaeological assessment is adequate or inadequate.”

Maui County in the past has viewed this to mean the county can act on its own by accepting the final reports when SHPD missed the deadline, but that’s caused blowback from SHPD, he said.

“The way we read the admin rule is not the way they read it,” he said. 

Heightening tensions is the risk that archaeological surveys might be imperfect, even ones approved by SHPD. Archaeological surveys can significantly reduce — but not eliminate — the likelihood of inadvertently turning up a burial site during construction. Nobody wants to be responsible for approving a survey given even a remote chance of disturbing a burial, Fuentes said.

The public outcry when that happens can be intense, especially on Maui, Molina said. 

“We have strong advocates here that will be all over it,” Molina said. “It blows up pretty regularly when it does happen.”

Molina said the county is aware of SHPD’s problems and is taking steps to be better equipped to step in if necessary. The county has hired , he said. In July, the county established the to help manage cultural sites, including burials.

But neither of those things has helped the Baraoidans. When the couple bought their property in March, the permit process was already underway, started by the previous owner, a friend who sold the parcel to them for what he had paid for it years before.

The property came with blueprints, and Fuentes had already started the archaeological survey work. To the Baraoidans, the SHPD work seemed a formality, given that the parcel is in a development surrounded by homes on three sides and the  in back. 

The couple has two sons and seven grandchildren who also lost their homes in the Lahaina fires. And the couple was hoping to have a new home some of the family could move into at least temporarily. The outlook for rebuilding in Lahaina looked questionable, so it seemed a safer bet to go to Wailuku.

Orlando Baraoidan works as a golf course superintendent and Rowena works in financial services, plus their insurance covers their housing costs for now. But the insurance money will run out next year, they said. So they’ll soon be stuck paying for housing out of their pockets along with a mortgage on a property that might not even have a building permit.

It’s a lot for the fire victims to endure.

“It’s so stressful,” Orlando Baradoidan said. “It’s just a lot. We were wishing just one thing could go as planned.”

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.