Stewart Yerton, Honolulu Civil Beat

This story was originally published by Honolulu Civil Beat.

While the public awaits Maui County's official report on the cause of the fire, lawyers for victims and insurers say Pole 7A set off a cascade of events that led to a wall of flame.

Maui lawyer Jan Apo says he knows what caused the fire that killed at least 101 people and destroyed much of Lahaina.

It started, he says, with Pole 7A. The wooden pole, which was laden with telecommunications and electrical lines, should have been strong enough to withstand the winds buffeting the town, Apo says.

Maui lawyer Jan Apo on Tuesday testified that the Lahaina wildfires started after Utility Pole 7A, which was badly damaged by termites, fell around 2:45 a.m. on Aug. 8. He showed lawmakers a photograph of the pole’s termite damage during a hearing before the House Finance Committee. (Screenshot/Hawaii Legislature/2024)

But the pole was ridden with termite damage, Apo says, neglected by Hawaiian Electric Co., Spectrum and Hawaiian Telcom, which used the pole. So with Pole 7A’s core weakened by termite tunnels, Apo says, the pole snapped during the predawn hours of Aug. 8.

That set off a chain of events that climaxed with an unstoppable, 20-foot wall of flames marching inexorably toward Lahaina.

Apo, who has filed lawsuits for dozens of fire victims, shared the findings of his monthslong investigation last week during dramatic and at times personal testimony before the House Finance Committee. The purpose of the committee hearing was to consider a bill allowing HECO to issue special bonds to cover costs related to wildfires. But lawmakers were so intrigued by Apo’s story of Pole 7A that they called him back after his initial testimony to tell the story again.

A lawsuit brought by more than 140 insurers points to the failure of Utility Pole 7A, pictured here, as a root cause of the fires that killed 101 people and destroyed much of Lahaina. (Grotefeld Hoffmann LLP/2024)

While Apo’s account amounts merely to allegations, it also provides perhaps the most detailed description so far of the cause of the fire as the public waits for an official government report from Maui County.

It’s also the version that’s widely believed in Lahaina, says Rep. Elle Cochran, who represents Lahaina.

“His point of view is not out yet in this building,” Cochran said, referring to the Hawaii State Capitol. “But it’s out all over Lahaina. They all know. I hear it every day when I go home.”

Apo’s word carries considerable weight in Lahaina in part because of his family’s history there, Cochran said. His father, grandparents and uncles are buried next to Hawaiian royalty in Waiola Cemetery, just yards from the royal tomb, she said.

Additionally, Apo and his family share the sense of loss that pervades the community.

The fire destroyed two homes on property that’s been in Apo’s immediate family since the 1800s, Apo testified to lawmakers. His extended family lost another eight homes to the fires, he said.

“He has deep, deep, deep, beyond deep ties,” Cochran said.

HECO takes exception to Apo’s account, saying that it’s misleading to focus on the portion of the pole where termite damage is visible.

“The selective use of one zoomed-in photo doesn’t tell the whole story of the condition of the pole, including its structural integrity,” said Jim Kelly, vice president of government and community relations and corporate communications for the utility.

The company inspects some 31,000 wood poles in Maui County alone, according to an inspection schedule, Kelly said. Some poles are treated for termites, and ones that don’t meet standards are replaced. Pole 7A was inspected in 2022 and found to be sound, Kelly said.

Insurance Industry Investigators Also Point to Pole 7A

Apo’s investigation isn’t the only one to find the disaster started with Pole 7A. Insurance industry investigators have reached the same conclusion.

“Utility Pole No. 7A located near Hookahua Street, situated on the west back side of the Lahaina Intermediate School, split in two, causing the collapse of the upper section of the pole and resulting in a chain reaction,” says a lawsuit filed by more than 140 insurance companies, including global giants like Swiss Re, Mitsui Sumimoto and Lloyd’s of London, as well as local firms like Island Insurance Co.

The purported chain reaction identified by insurance industry investigators is much the same as what Apo says his team found.

Sitting in his office in Wailuku two days after his appearance at the Capitol, Apo recapped his testimony with the help of photos and a hand-drawn map.

Lawyers, fire victims and insurers point to Utility Pole 7A as a root cause of the Lahaina wildfire. Maui lawyer Jan Apo says extensive termite damage, shown in the center photo, weakened the pole, causing it to break and setting off a chain reaction. The pole is now in a warehouse where evidence is being stored. (Courtesy of Apo, Reck and Kusachi/2024)

Utlilty sensors indicate there was a disruption along the power lines carried by Pole 7A at about 2:45 a.m. on Aug. 8, he said. The data about the disruption came from Whisker Labs, a fire prevention technology firm, Apo said

That was “most likely Pole 7A going down,” he said.

A photo published in the insurance industry complaint shows the pole snapped about midway up.

The lines attached to Pole 7A started pulling on other nearby lines, Apo said, including ones attached to those running along Lahainaluna Road, attached to Pole 25 and Pole 26. A stretch of power line between those two poles eventually snapped, causing a flare of electrical arcing as the severed lines fell harmlessly to the grass and the power went out.

“Had nothing changed, everything would have been fine,” Apo said.

The problem, he said, was that HECO restored power to the area around 6:10 a.m., which allowed the exposed lines to ignite the grass and start a morning blaze. Fallen lines sparking the fire was documented by Lahaina resident Shane Treu in a video widely shared in news and social media.

Hawaiian Electric Co. acknowledged its lines started a morning fire. But the company said it was contained by firefighters, after which the company’s power lines were de-energized.

Maui lawyer Jan Apo holds a photo of Pole 7A during an interview in his office in Wailuku. (Stewart Yerton/Civil Beat/2024)

The problem, Apo says, is that the fire started up again in the afternoon after firefighters left, and eventually the strong winds that were fanning the flames sent embers into a gully, owned by Kamehameha Schools, parallel to Lahainaluna Road. The brush fire turned into something entirely different, Apo said.

“You’ve got 15- to 20-foot flames coming out of that thing,” he said.

And that wall of fire eventually engulfed Lahaina.

While Apo said his team had a sense of what had happened months ago, it took six months for his investigators to gain access to a warehouse where HECO was storing Pole 7A and other evidence. An inspection of Pole 7A found extensive termite damage, he said.

“It literally broke right at the termite damage,” Apo said.

A Hawaiian Telcom spokeswoman said the company has no ownership interest in Pole 7A. A spokesman for Spectrum also said the company does not own the pole and merely has a license to use it from HECO, which is responsible for the pole’s maintenance.

Kamehameha Schools attorney Paul Alston declined to comment.

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.

This story first appeared at Honolulu Civil Beat.

Hawaii lawmakers have tried and failed to pass legislation reining in short-term vacation rentals in the past, but this session feels different, says Sen. Jarrett Keohokalole, chairman of the Senate Commerce and Consumer Protection Committee.

Keohokalole has authored an ambitious bill that would reshape the way short-term vacation rentals are regulated in Hawaii – and give counties power to phase them out completely over time.

Keohokalole’s optimism is hardly political salesmanship. Opposition to short-term vacation rentals is more vocal than ever. And it’s coming from far beyond Keohokalole’s windward Oahu district, where residents for years have complained that a tide of Airbnbs has transformed places like Kailua into mini resorts.

Gov. Josh Green described short-term rentals as a problem in his State of the State speech. Maui residents have held high-profile protests for a moratorium on short-term rentals, which Keohokalole’s bill would essentially enable counties to impose. The Hawaii Island County Council is considering its own ban. On Oahu, the Honolulu City Council is regrouping after a court challenge striking down Oahu’s attempts to close a loophole in its land-use ordinance regulating short-term rentals.

“To hear it in the State of the State Speech is different,” Keohokalole said in an interview. “This year is different because it is a byproduct of the crisis on Maui.”

Currently, 5.5% or 30,000 of Hawaii’s 557,000 total housing units operate as short-term rentals, according to the University of Hawaii Economic Research Organization’s “Hawaii Housing Factbook,” published in June.

On some islands the percentages are much greater. On Oahu, the short-term rentals made up about 2% of the island’s housing supply; by contrast, Maui’s short-term market represented roughly 15% of the supply, UHERO reported.

UHERO estimated the presence of short-term vacation rentals in Honolulu raises housing costs by roughly 5%.

Green alluded to this situation in his State of the State speech in January. After discussing the housing crisis the August wildfires created on Maui, Green spoke about the state’s broader shortage of affordable housing.

“Our state is such a desirable destination, and such a profitable investment for many, that people from around the world have purchased property to hold as investments or rent as short-term rentals to visitors — making on average four times what they would if the property was simply rented to a local family,” Green said. “Right now, 52% of all short-term rentals in Hawaii are owned by non-state residents, and 27% of short-term rental owners own 20 or more units.”

On Friday, Keohokalole will discuss short-term housing issues in a joint committee hearing. His co-chairs are Maui Sen. Lynn Decoite, who chairs the Energy, Economic Development and Tourism Committee, and Sen. Glenn Wakai, chairman of the Public Safety and Intergovernmental and Military Affairs Committee. The only item on the agenda is the short-term rental bill.

The battle lines forming are largely the same as those of past years. On one side are companies like Airbnb, property owners who use the platforms to rent out homes and condos to tourists and an ecosystem of real estate agents and small businesses that support the owners and platforms.

One the other side are hotel industry executives and lobbyists, housing advocates and individuals and groups that want to limit tourist accommodations to places designated for tourism. Joining the push this year are groups like Lahaina Strong, which has been leading a protest called “Fishing for Housing” at West Maui’s Kaanapali Beach. The Hawaii Association of Counties has submitted testimony supporting Keohokalole’s measure.

Honolulu City Council Chairman Tommy Waters said it was critical to give the counties tools needed to manage the rentals.

“Reining in the preponderance of temporary vacation rentals statewide, investing in infrastructure, and continuing to invest in the development and refurbishment of affordable housing at the state and county levels are all critical components in solving our state’s affordable housing crisis,” he wrote in testimony submitted this week.

Keohokalole agrees. In an interview, the senator was outspoken about a recent order by U.S. District Judge Derrick Watson striking down a Honolulu ordinance designed to close off loophole in the county’s land-use ordinance. Although Honolulu’s land-use ordinance bans short-term vacation rentals in most areas outside of certain resort zones, including parts of Waikiki and Koolina, the ordinance allows renting short-term to tourists, as long as owners host no more than 12 rentals per year.

Keohokalole said Watson was wrong to say such 30-day rentals to visitors were residential and not commercial uses.

“To say a 30-day use is not a commercial use is just ridiculous,” Keohokalole said.

County Zoning Power Comes From State

Zoning law can be complicated, but it rests on a simple idea: state and local governments have the power to regulate land use to promote public interests – specifically to protect public health, safety, welfare and morals.

In Hawaii, the state grants counties broad zoning powers by statute. The counties can then pass ordinances regulating zoning and land use.

The statute generally restricts the counties from passing ordinances that would suddenly prohibit a certain land use that was legal at the time the ordinance was passed. But there’s a big exception: the statute also allows the counties to pass ordinances discontinuing particular land uses – as long as the uses are phased out “over a reasonable period of time.”

However, there’s also an exception to the exception: residential uses can’t be phased out.

Keohokalole’s bill amends the statute to explicitly allow the counties a to phase out resdential uses, and, by extension, short-term rentals.

“If we’re really going to be serious about this, then the counties should have the authority,” he said.

Airbnb Lawyer, Former Hawaii Attorney General, Opposes Bill

Already the concept is getting opposition. A similar House bill passed out of the House Housing Committee on Wednesday, despite pushback from the powerful Hawaii Association of Realtors and the Lahaina-based Rental By Owners Awareness Association.

“This Bill is not to stop illegally operating short-term rentals — this Bill goes after operators who are in full compliance of the law, operating legally within their particular location, either by their nonconforming use certificate or by being legally entitled to operate by zone,” the association’s president, Alicia Humiston, said in her testimony.

Also testifying against the House measure was Airbnb’s long-time Hawaii attorney David Louie, the state’s former attorney general. Louie declined an interview request, saying he didn’t have Airbnb’s permission. But Louie’s written testimony asserted that the measure could lead to “substantial litigation.”

“Although this may appear to be an innocuous delegation of authority, the proposed changes implanted would conflict with existing constitutional rights that have been explicitly recognized by courts in the State of Hawaii,” Louie wrote. “Such changes would potentially cause numerous unintended consequences, which could ultimately lead to a deprivation of vested rights of existing, residential homeowners.”

Others disagree.

David Callies is a retired law professor and author of “Regulating Paradise,” a treatise on Hawaii land-use law. He is also co-author of a law school textbook on national land-use law and recipient of a lifetime achievement award from an organization that assists property owners in disputes with governments.

According to Callies, governments generally have the right to phase out land uses through zoning changes – called amortization in legal parlance – and that five years is typically a reasonable time frame for doing so. Callies said the counties would need to be careful to avoid potential legal issues when drafting and passing ordinances.

But he said, “It’s pretty settled doctrine that you can amortize a non-conforming use.”

Callies also said prohibiting short-term rentals wouldn’t be considered a taking of private property, in violation of constitutional rights, because the properties still could be used for housing by the owners or rented out long term.

“You are not going to be able to argue any total taking by regulation,” he said.

While Callies acknowledged owners might be able to argue the zoning change amounted to a partial taking, he said, “Winning a partial takings case is very difficult.”

Keohokalole’s bill goes beyond allowing the counties to phase out short term rentals. It also establishes a regulatory scheme under the Business Registration Division of the Department of Commerce and Consumer Affairs. Ty Nohara, who heads the division, testified that even with additional funding, the division wasn’t equipped to handle the task of regulating thousands of rentals.

Instead, Nohara suggested such regulation would better be handled by an agency “that will have as its sole focus the responsibility to regulate and enforce short-term rentals in Hawaii.”

Kekoa McClellan, a spokesman for the American Hotel and Lodging Association, acknowledged a regulatory system would require money. But, he said, “What’s the cost of not doing this?”

“The people who are paying the price are kamaaina families who are leaving the islands in droves,” he said.