Affordable housing developers would be allowed to sidestep a process designed to protect Hawaii’s lands if a bill backed by Hawaii’s top political leaders becomes law. 

Developers argue bypassing the Land Use Commission for projects covering 25 acres and less will allow them to build desperately needed affordable housing more quickly.

But the legislation is alarming some community members.  

Opponents warn the bill will make it easier to pave over open spaces. It would also eliminate opportunities for public input at a time when the citizens – from Mauna Kea to Kahuku – are demanding more of a voice in land use decisions.

Plus, they say, the Land Use Commission is not the cause of slowdowns for affordable housing projects. The commission is already required to act on those cases within 45 days. According to testimony from LUC Executive Officer Daniel Orodenker, the group has consistently met this time frame.

“After all these protests, it is unbelievable that legislative leaders want to reduce public participation in decision making,” said David Frankel, an attorney who has worked extensively on environmental and land use issues. “It’s incredibly frustrating and disappointing.” 

The original form of the bill, Senate Bill 3104, would allow developers to petition the county instead of the commission for projects up to 25 acres, increased from the current 15 acres, if the majority of the development is for affordable housing. The bill provides no definition for “affordable.” 

What is Fault Lines?
“Fault Lines” is a special project that throughout the coming year will explore discord in Hawaii and what we as a community can do to bridge some of the social and political gaps that are developing. Read more here.

As it is now, going before both the county and the LUC is duplicative, according to David Arakawa, executive director of the Land Use Research Foundation, a group that advocates for major landowners and developers.

“The Land Use Commission serves a purpose, but in this particular situation, we believe that all the land use protections, all the concerns could be addressed in the county process,” he said. “And people will still have the right to sue if they don’t think the process was followed.”

An amended version of the bill was approved last week by the Senate Housing Committee and Senate Water and Land Committee. 

It accepts the threshold of 25 acres but says developers can only skip the LUC for projects that are contiguous with an urban district and don’t involve conservation land or important agricultural lands. Instead of requiring such projects to be “affordable,” it requires the majority of the square footage of the development to be for Hawaii residents who are owner-occupants and who own no other property. It also grants the LUC power to impose fines up to $50,000 per day to enforce developers’ commitments.

“We’ve tried to include a lot of safeguards to address those concerns,” said Senate Housing Committee Chair Stanley Chang. 

Whether it strikes the right balance between supporting affordable housing projects and allowing for public review and input, Chang said: “I don’t know.” 

A State Perspective On Land Protection

Hawaii created the Land Use Commission in 1961. At the time, lawmakers determined the status quo had allowed a small group of wealthy landowners to develop the state’s limited and valuable land “for short-term gain,” according to the LUC’s website

“Development of scattered subdivisions, creating problems of expensive yet reduced public services, and the conversion of prime agricultural land to residential use, were key reasons for establishing the state-wide land use system,” the agency’s history says. 

Ever since the LUC’s creation, the development community has been trying to weaken it, Frankel said. In 2015, then Senate President Donna Mercado Kim even unsuccessfully advocated to eliminate the Land Use Commission altogether. Subsequent proposals to limit the LUC’s reach in 2017 and 2019 also went nowhere.

Governor David Ige speaks during joint House Senate press conference held at Capitol room 445.

Gov. David Ige and top leaders at the Hawaii Capitol kicked off the 2020 legislative session with a message of unity. Limiting the Land Use Commission’s reach is part of their agenda.

Cory Lum/Civil Beat

This year’s proposal should be taken seriously, Frankel said. It’s baked into the joint legislative package the House and Senate leadership, along with Gov. David Ige, unveiled in a rare display of apparent consensus last month.

In other words, Hawaii’s most powerful politicians appear to agree that this is a good move. Another measure, Senate Bill 2620, addresses the Land Use Commission independently from the rest of the joint housing package.  

The Chamber of Commerce Hawaii and the Building Industry Association are both in support of the bill. The Chamber referred questions to the BIA, which did not agree to an interview in time for publication. Civil Beat reached out to Senate President Ron Kouchi and House Speaker Scott Saiki for comment. Neither responded. 

Contact Key Lawmakers

Ige’s office said he was unavailable for an interview last week. In a statement, he said the legislation is still being “ironed out” and he looks forward to public testimony. 

“We are looking for consensus on ways to identify and accelerate projects that clearly benefit the community and have overwhelming community support,” he said. “At the same time, we will leave in place checks and balances for projects that may have less support.” 

From a developer’s point of view, the county permitting process is extensive enough, Arakawa said. But critics of the bill argue that the LUC is needed to address concerns beyond the county’s purview. 

Marti Townsend, executive director of the Sierra Club of Hawaii, said counties don’t necessarily consider statewide land use interests like food security, transportation, schools and water as well as natural and cultural resources.

“These are concerns the Land Use Commission addresses when they make their decisions and they will impose conditions on developers to ensure these basic needs are met,” she said. 

Marti Townsend Dir. Sierra Club of Hawaii. 12 april 2016.

Sierra Club Director Marti Townsend strongly opposes reducing the Land Use Commission’s reach.

Cory Lum/Civil Beat

The Land Use Commission also offers a quasi-judicial process that allows developers to be cross-examined and forbids commissioners from having conversations behind closed doors with petitioners, Frankel said. As appointed volunteers, the commissioners also can’t accept campaign contributions, Frankel noted. County council members can. 

Counties as a whole have a property tax interest in increasing residential development, Townsend said. 

“They have a perverse incentive to develop as much as possible because they make more off of homes than they do off of farmland,” she said. “The development pressure is so intense in Hawaii that without the Land Use Commission, the risk of developing the entire island in each county is real because there is just so much money at stake.” 

The Land Use Commission has thwarted many development plans that Frankel said were not the right fit for communities.

In 2007, Molokai Ranch withdrew plans to build multimillion-dollar estates on Laau Point after the Land Use Commission rejected the company’s environmental impact statement for inadequately addressing water treatment. 

David Arakawa testifies at the Honolulu City Council.

David Arakawa of the Land Use Research Foundation wants to speed up the housing development process.

Cory Lum/Civil Beat

The commission nixed a proposal in 2010 that would have converted conservation land at Ooma on Hawaii island to urban land to build oceanfront properties. The county later bought the land to protect the parcel. 

Plans for a 96-acre industrial park in Nanakuli dissolved in 2011 when LUC members voted against changing the land designation from agricultural to rural, Townsend noted. The site is now owned by MA‘O Organic Farms.  

Arakawa emphasized that the bill being considered is aimed at meeting a community need. 

“This bill is not about hotels. This bill is not about shopping centers,” he said. “This bill is about affordable housing.”

From Townsend’s perspective, people who live in affordable housing deserve to live in thoughtfully planned communities that boost their quality of life.

“We want to make sure we have truly affordable housing built and that it’s built well,” she said.

Reducing Public Input

In the first legislative session after a wave of successful civil disobedience campaigns that prevented developments at Mauna Kea, Waimanalo, Kahuku and Ala Moana, many groups are finding the idea of eliminating a public vetting process unacceptable.  

The Office of Hawaiian Affairs is one such organization. In written testimony, the office forcefully objected to raising the LUC’s acreage threshold.

TMT demonstrators chant as State Sheriffs stand on Mauna Kea Access Road. Demonstrators were angry about a gate installed along Mauna Kea Access Road.

Mauna Kea kiai chant before state sheriffs’ deputies on the Mauna Kea access road in July 2019.

Cory Lum/Civil Beat

“In many cases, such LUC review may also be the only opportunity for Native Hawaiians to assert their constitutionally-protected traditional and customary rights with respect to development proposals, in a government forum intended and designed to meaningfully address their concerns,” the office stated. 

While the public can testify at Honolulu City Council meetings, a time limit is often enforced. 

OHA noted that the state wouldn’t be getting much in return for “the loss of the LUC’s careful and comprehensive consideration of the needs of and impacts to both Native Hawaiians and the State.” OHA spokesman Sterling Wong declined an interview request. 

“No data or other factual information suggests that the LUC review process contributes to delays in housing development timelines,” the office testified. 

The Land Use Commission’s meeting room was packed when it voted to approve D.R. Horton’s Hoopili development in 2012.

Sophie Cocke/Civil Beat

A 2015 review by the Hawaii Office of Planning concluded the LUC shouldn’t be blamed for project delays. Holdups are generally due to factors outside the LUC process including county approvals, failure to secure infrastructure improvements, changes in the economy, problems with project financing or changes in ownership, the report states. Public interventions in the LUC process are infrequent and when they happen, only extend the process by a few months, the report says. 

The report says that streamlining the LUC process by increasing the acreage threshold might appear to shorten the development timetable, but “by itself, will not necessarily result in increased efficiency in the land use system overall.” 

Orodenker, the LUC executive officer, did not respond to a request for comment.

Jeff Gilbreath, director of lending and development at Hawaii Community Lending, said the focus should be on finding the sources of backlogs at the county level.  

“We have to have the right solutions for the right things,” he said. 

Hawaii’s policymakers should recognize that “public opinion matters,” Townsend said. 

Members of the public attend Land Use Commission meetings, sometimes in numbers that fill the room, forcing them to sit on the floor and line the hallways, according to Townsend. Taking that opportunity away for certain projects is helpful to no one, she said.  

“People feel so disregarded and ignored to the point that they no longer consent to whatever the arrangement is,” she said. 

“When we have good public engagement, an opportunity for the public to provide their unique perspective and knowledge, when they feel engaged and heard and a part of the decision-making process, we come out with better decisions and we have a stronger society as a result of that.”

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