Gov. Josh Green’s emergency proclamation on housing faces numerous obstacles before it can accomplish its goal of solving Hawaii’s housing crisis. The plan’s contours are simple: eliminate regulations to make way for an abundance of lower-priced homes for residents. The implementation will be far more complex.

Environmental and neighborhood groups are mounting opposition. Lawsuits seem certain. And developers still must step up and prove a point they have asserted for years: that much of Hawaii’s high cost of housing is the result of red tape.

So will the proclamation result in lots of new, cheaper homes?

“There’s no definitive answer,” said Harry Saunders, president of Castle & Cooke Hawaii, a major home builder. Castle & Cooke engineers, architects and lawyers are studying the document to understand what it means for builders. “We do know that what’s been done over the last 20 years doesn’t work.”

Hawaii Sen. Stanley Chang agrees.

“For those who support deregulation and think land use is too heavily regulated in Hawaii, this is a significant victory,” said Chang, who chairs the Senate Housing Committee.

Whether it will lead to more less expensive homes is unclear.

“That’s the million dollar question,” Chang said. “And we’ll see.”

Guardrails Still In Place

With the stroke of a pen, Green earlier this month suspended numerous land-use laws, including whole chapters of the Hawaii Revised Statutes – a bold move for a governor whose political rise was funded by the construction industry. 

Still, the document is far from a free pass for builders. Emergency rules create guardrails so that developers cannot simply build freely at will. For example, a developer must submit an application documenting things like site plans, infrastructure needs, cultural and environmental impacts and a list of approvals the project would need if the laws were still in place.

Projects also must undergo modified versions of Hawaii’s environmental review law, as well as the state historic preservation law covering Native Hawaiian burials discovered during construction.

“We do know that what’s been done over the last 20 years doesn’t work.”

Harry Saunders, president of Castle & Cooke Hawaii

Deciding which projects can proceed under the halo of suspended laws is a panel of state and local government officials and nongovernmental organizations. The Building Beyond Barriers Working Group has the sole power to examine and certify projects pursued by private builders. The group can block projects deemed to go too far outside the guardrails that would have been in place but for the proclamation. 

Nani Medeiros, Hawaii’s chief housing officer, stressed the emergency proclamation must be renewed every two months and “is not set in stone.”

“If there are things that as we implement this and roll out we recognize aren’t working, can be improved, aren’t necessary, we will change the EP accordingly,” she said during a recent 45-minute interview with Civil Beat’s editorial board.

Public Input

The public also will have at least two chances to weigh in on projects submitted to the working group for approval.

Project developers must hold at last one public meeting to accept and document comments at a neighborhood board or independent town hall. Separately, the developer also must publish a public notice and accept written comments.

Rich Turbin, a Honolulu lawyer and president of the Waialae-Kahala Neighborhood Board, said these opportunities for public input are meaningful. 

“Right off the bat, that’s better than what’s been going on,” Turbin said. “Josh’s plan is potentially better for public input than what’s been going on.”

Not all projects hold public meetings, Turbin said, even when they’re supposed to.

But much will depend on how the working group uses the public input. Under the rules, the comments serve a function similar to neighborhood board resolutions: They are mere recommendations that government officials can ignore.

Medeiros said the working group will take a hard look at the comments and decide how much weight to give them case by case. In some instances, developers might be required to modify projects in response to public concerns, but such changes would not be automatic, she said.

“Now, I would want to understand those reasons for community opposition and kind of look at it from a very balanced perspective,” she said. “I’d want to know, first of all, what’s the project providing?

“I mean, if it’s 100% affordable plus low-income housing in there, and there’s no other affordable housing project in that area and there’s data that shows there is a demand and nothing else in the pipeline, I would want to really sit and understand and talk with those who have the concerns, see if there’s some kind of a way that the concerns could be addressed,” she said.

Environmentalist Concerns

Among those not convinced is Donna Wong, executive director of Hawaii’s Thousand Friends, one of the state’s oldest environmental organizations. Wong is especially concerned that the proclamation suspends Chapter 46, which establishes the right of counties to operate as governmental bodies.

That includes basic things, like the right to establish a mayor, city council and water system. It also includes the right of counties to enact local land-use regimes, namely zoning systems that must be set up according to comprehensive general plans.

Wong said the suspension of Chapter 46 means developers will be able to “build to 700 feet in the middle of a residentially zoned neighborhood.”

For reference, a 700-foot high-rise would be twice as tall as Honolulu’s monolithic, 350-foot Century Center, which towers above an area of low-rise buildings near Ala Moana. Wong quickly conceded it’s unlikely anyone would try to build a 700-foot tower in a residential neighborhood. But she said, “they’ll push the envelope.”

Medeiros said Wong’s interpretation is wrong. Under the proclamation, Medeiros said, the Chapter 46 suspension relates only to building and construction of homes and infrastructure.

Read alongside the rules, the suspension focuses on adapting commercial buildings to residences, she said. The proclamation allows that to be done if county planning departments adopt “reasonable standards.” Beyond that, Medeiros said, to exceed height limits or other aspects of county zoning laws, developers would still would need approval of the working group.

Possible Legal Challenges

The rules say the suspension of laws “apply only to those projects which are confirmed by the Lead Housing Officer (‘LHO’) as certified by the Working Group as having met the requirements for eligibility set forth in these rules.”

Exemption from county zoning ordinances or any other provision of Chapter 46 isn’t automatic, Medeiros said. 

Wong isn’t the only skeptic. Lance Collins is a Maui lawyer who frequently works on land-use and environmental cases. His assessment of Green’s proclamation is blunt. 

“It’s unlawful,” said Collins, who recently participated on a Zoom call with about 150 people concerned about the proclamation. 

Hawaii’s housing issues don’t constitute the sort of emergency that allows a governor to suspend laws, Collins said. The purpose of the state’s emergency management statute is to address “disasters or emergencies of unprecedented size and destructiveness resulting from natural or human-caused hazards” and to “ensure that the preparations of this State will be adequate to deal with such disasters or emergencies.”

That includes being able to administer “state and federal programs providing disaster relief to individuals” and “generally to protect the public health, safety, and welfare, and to preserve the lives, property, and environment of the State.”

Allowing Green to invoke this law to address a housing shortage would open the door to taking similar action to address just about any issue, Collins said. He pointed out that Hawaii’s housing problems have been around for nearly a century, and policymakers passed the first housing law as far back as 1935.

“There’s no disagreement that we need more affordable housing,” Collins said. “But using the state constitution as toilet paper isn’t the right approach.”

Asked if he expected lawsuits challenging the proclamation, Collins said, “Absolutely.”

Anticipating such arguments, Green’s proclamation begins with nearly four pages of statements on why Hawaii’s housing situation is an emergency.

Those include home prices that have risen far faster than incomes for 45 years, policies excluding people who earn too much to qualify for affordable housing programs but too little to afford market rate housing and an outmigration blamed on the situation.

“But using the state constitution as toilet paper isn’t the right approach.”

Maui lawyer Lance Collins

The document devotes almost a page to stating how the housing crisis hurts Native Hawaiians; for instance, it points out nearly 30,000 kanaka maoli remain stuck on a waitlist administered by the Department of Hawaiian Home Lands, which simply can’t build infrastructure and homes fast enough.

Medeiros pointed out that some people on DHHL’s waitlist die before they can get homes.

“If Mr. Collins doesn’t think that losing 20 local people a day to the mainland and people dying on the waitlist is an emergency, then we have very different value systems,” Medeiros said.

Green and Medeiros aren’t the only people arguing Hawaii’s housing crisis is an emergency tantamount to a natural disaster. Turbin, the Kahala lawyer, agrees.

So does Kuhio Lewis, chief executive of the Council for Native Hawaiian Advancement. One of the state’s most prominent Native Hawaiian organizations, CNHA held its annual convention in Las Vegas in June — a sobering recognition of the fact that more Native Hawaiians live on the mainland than in Hawaii.

“We are absolutely in a crisis,” he said. “Looking at it through the lens of a Hawaiian organization, we have to do something.”

The order also creates new procedures for historic, cultural and environmental reviews required for projects. The goal isn’t to eliminate but rather to streamline the EIS process, Medeiros said.

Scott Glenn, who previously administered the state environmental review law as director of the Hawaii Office of Environmental Quality Control, said the new rules will allow developers to start and finish the process more quickly. A lengthy environmental impact statement still could be required for some projects, he said.

Cultural Protections

The proclamation also creates an alternative process for approving projects that could impact culturally sensitive locales. In some cases, the proclamation still requires archaeological surveys and approvals by the state historic preservation division of the Department of Land and Natural Resources. 

Likewise, island burial councils still will have a chance to weigh in on the plan for protecting Native Hawaiian remains found at construction sites. But the burial councils will only have 60 days to make a decision, a relatively short time given the challenges of finding quorums and notifying descendants or others seeking to establish themselves as descendants.

Lewis said CNHA will be monitoring the process.

“Many of us will be watching closely to make sure no one’s going to be taking advantage, but are trying to address a crisis,” he said.

One category of projects could get close to a free pass under the proclamation: housing developed by state and local governments, including developments built in partnership with private developers.

Such projects don’t have to be certified by the working group. Medeiros can simply approve them. These include DHHL homes, as well as rentals built by the Hawaii Public Housing Authority and affordable housing developed by the Hawaii Housing Finance and Development Corp.

Medeiros said the state agencies still must follow their own statutes and rules regarding development. What that means in practice requires a deep analysis of the statutes, rules and case law governing such agencies. But on first glance it seems even DHHL, which the Hawaii Supreme Court has said is largely exempt from zoning laws, would have to follow the environmental review provision.

‘It’s Not A Panacea’

Many developers are cautiously optimistic. 

Christine Camp, president and chief executive of the Avalon Group, said the proclamation could help address a market imbalance by delivering more homes over the next four years.

“All I can say is this was bold,” she said. “It could be a game changer.”

Still, Camp said, developers face numerous challenges, including high costs for goods and labor. High interest rates mean it costs more to borrow money. And the failure of banks like Silicon Valley and First Republic has made lenders more conservative.

The real benefit is that the proclamation could speed up an approval process, producing the same outcome in less time, which she said means less cost.

“It’s not a panacea,” she said. “But it’s helpful.”

Saunders agreed. The Castle & Cooke president said the proclamation’s most obvious benefit is that it could speed up state approvals, which could generate significant cost savings. But Saunders said county governments still play a major role in approving projects, and he said one question is what the suspension of Chapter 46 means in practice.

“Quite frankly, we’re going through it with a fine-toothed comb right now to determine where it does help,” he said.

Those benefiting most, he said, will be developers with projects already underway. 

Putting a proposal together from scratch, with adequate detail to meet the requirements of the application under the proclamation, will likely take six months to a year, he said. Developers must show the project’s footprint, infrastructure and roads and water requirements, for instance.

“You have to have all that,” he said. “And you have to be able to take it out to the public. You have to know how much it’s going to cost.”

All of those are complex questions.

“I can’t just Google it,” he said. “It won’t just come up, not even with AI.” 

“Hawaii’s Changing Economy” is supported by a grant from the Hawaii Community Foundation as part of its CHANGE Framework project.