Thursday, January 22, 2015

Land Use Policy Priorities: Opening Day of the 28th Hawaii State Legislature, 2015

Yesterday kicked off the beginning of Hawaii’s 28th legislative session.  Barring a special session, it will end on May 7, 2015, Sine Die (the length of a regular NFLseason).

The legislature prides itself on the number of bills it introduces and passes each year.  Aside from the many substantive bills introduced by each legislator, many bills are marked “introduced by request,” which ostensibly means the legislator introducing the bill does not necessarily support the bill.  Other bills are labeled “short form,” which means that any substantive matter can be inserted in the bill at some point in the legislative process so long as it has some relationship to the bill’s title.  This can amount to thousands of proposed bills and resolutions.

Many of these bills drop out of the process, are merged with other bills, or are significantly amended or completely replaced.  Things begin to gel as we get closer to May and around crossover in mid-February.  However, if you are tracking a certain bill and want to be sure it is crafted in a way that makes sense to your business; you will want to be involved throughout the process.

Yesterday’s Opening Day remarks by the Senate President and House Speaker give some insight on the priorities for each chamber.  The following is a summary of their land use related priorities.

Senate President Donna Mercado Kim opened her remarks on a nostalgic note and played Peter, Paul and Mary’s song, “Where have all the flowers gone?”  She also referenced the popular “Hawaii Calls” radio program that ran from 1935 through 1975.  She noted the issue of sea-level rise impacts on Hawaii’s beaches and the decline of “Hawaiian entertainment in Waikiki,” Koa, Ohia-Lehua, fish, and opii.  To address these issues, she noted the following actions:
  • Providing “dedicated funding using existing TAT revenues for the maintenance and restoration of beaches across the state[.]”
  • “Giving the counties more local control over land use classifications by eliminating the Land Use Commission and overlapping operations to make the permitting process more efficient[.]”
  • The Senate expects “the Hawaii Public Housing Authority, the counties, and private sector to come up with viable solutions” to “the shortage of affordable housing[.]”
Over in the House, House Speaker Joseph Souki opened his remarks emphasizing the need for hard work and collaboration to address issues facing the people of Hawaii.  He noted Governor Ige’s call to work together and “bring as many people and ideas to the table as possible.”  The Speaker’s focus in the area of land use was as follows:
  • Transit Oriented Development  should be used to “direct growth along our rail stations, encouraging commercial development around them and building affordable neighborhoods on nearby state lands.  Directing growth in this way will also protect open space and agriculture, as well as minimize times when we are forced to choose between growth and the environment.”
Opening day remarks can be found in full at http://www.capitol.hawaii.gov/speeches/2015opening.aspx, including remarks by Senate Minority Floor Leader Sam Slom and House Majority Leader Scott Saiki.

Friday, January 16, 2015

Same Blog, Different Web Address

The Hawaii Land Use Law and Policy blog has a new Web address.

You can find us at www.hilanduselaw.com.

Our old Web address will redirect you automatically.

Wednesday, January 14, 2015

Slides for 2015 Hawaii Land Use Law Conference

I will reference the following slides for my panel at the 2015 Hawaii Land Use Law Conference.  

Our panel will also be discussing the recent Hawaii Supreme Court holding in DW Aina Le‘a Development, LLC v. Bridge Aina Le‘a, LLC and what it means for regulators and the regulated.


Guest speakers include Prof. Richard Epstein (Keynote Speaker), Laurence A. Tisch Professor of Law, New York University School of Law, and Prof. Patricia E. Salkin (Guest Ethics Speaker), Dean and Professor of Law at Touro Law Center in Central Islip, New York.

If you haven't already, signup at the Hawaii State Bar Association Web site.  

Tuesday, December 30, 2014

Things I Learned Managing a Public Agency

Tomorrow marks the end of a significant chapter in my life, serving the public in the executive branch of Hawaii state government.  

In 2011, I was honored to be appointed by Governor Abercrombie and confirmed by the senate to serve as the Director of the State of Hawaii Office of Planning.  More recently, I served as the first deputy to the chair of the Department of Land and Natural Resources

With the hardworking civil servants of these agencies, community and business partnerships, and the support of elected officials, we accomplished many great things.  To name just a few, the State of Hawaii adopted a statewide climate change adaptation policy that is integrated into the statewide planning system; we moved state agencies forward on transit-oriented development as it relates to state properties along the planned 20-mile, 21-station Honolulu rail transit project; we developed a statewide food security strategy; we completed the 2014 Hawaii Ocean Resources Management Plan; we laid the groundwork for Hawaii's hosting of the 2016 IUCN World Conservation Congress; and we addressed all matter of issues related to the management and planning of the sustainable use of Hawaii's public trust resources.

During this time, I applied some key concepts from the great leaders and examples around me, which have worked well:
  • "Everybody needs beauty as well as bread, places to play in and pray in, where nature may heal and give strength to body and soul alike."  -John Muir
  • Integrate environment, economy, and culture in all decisions.
  • Your audience is current and future generations.
  • Trust the people you lead.
  • Listen and learn from the interested public--empathize.
  • Have the courage to remain logical and rational in the face of emotional decision-making.
  • Look up, walk around, talk to people.
  • People may disagree on how to accomplish something, but they all care about Hawaii, its people, and its natural resources--creative solutions are often found in the latter sentiment.
Finally, Hawaii is a wonderful place because of the people who choose a career in public service, members of the business community who choose to invest in building communities, and residents with a stake in Hawaii's future who contribute to finding solutions to meet our collective challenges.

Mahalo and Aloha!

Monday, December 8, 2014

Transit-Oriented Development Resources

As signs of the Honolulu Rail Transit Project appear on Oahu's landscape, TOD and Honolulu Rail are sure to be topics of discussion in 2015 and beyond.

Rail columns in West Oahu
work their way East.
Here are some resources for your reading pleasure:
For more, visit the archives at TOD and Honolulu Rail.

Tuesday, December 2, 2014

Can the State Land Use Commission Downzone Property that a Developer does not Develop in a Timely Manner?

The short answer is yes--but it depends.

In DW Aina Le‘a Development, LLC v. Bridge Aina Le‘a, LLC, the Hawaii Supreme Court considered whether the State Land Use Commission properly downzoned 1,060 acres of land slated for a residential project. 

Background.  In 1989, 1,060 acres of land on the Island of Hawaii was reclassified from agricultural to urban to allow for the development of a residential community.  The reclassification was made subject to numerous conditions, including a condition that at least 60 percent of the residential units be affordable.  The Commission granted requests to amend the affordable housing condition for the Aina Le'a project.  (Note: During this period of the Commission's history, it was not uncommon for the Commission to require a 60 percent affordable set-aside for residential developments.  Anecdotally, the Commission reduced the affordable housing requirements for these projects to a more economically feasible set-aside, upon request.)

By 2005, the condition required the landowner, Bridge Aina Le‘a, LLC (Bridge), to set aside 20 percent of the units as affordable.  Because of Bridge's perceived failure to comply with certain conditions, in December 2008, the Commission issued an order to show cause (OSC) why the land should not revert to its former agricultural land use classification.  Soon thereafter, Bridge informed the Commission that it intended to assign its interest in the land to DW Aina Le‘a Development, LLC (DW) through an installment sale. DW subsequently invested more than $20 million in developing the site.  Nevertheless, after proceedings over the course of several years, the Commission issued an order reverting the land to the agricultural use district.

Conceptual Plan
Source: http://www.ainaleaasia.com/our-current-project.html
Boundary Amendment Process and Enforcement.  Under HRS § 205-2, there are four major land use districts in which all lands in the state are placed: urban, rural, agricultural, and conservation.  The counties may further zone lands in the state urban district.  Counties have limited authority to zone in the other districts, except for conservation, where the state regulates exclusively.

Since 95 percent of lands in the state are in the conservation or agricultural district, landowners frequently desire a land use district boundary amendment to allow residential, commercial, and other uses.  HRS § 205-4 generally sets forth the procedures the Commission must follow in amending a district boundary.   The Commission is required to find by a clear preponderance of the evidence that the reclassification is reasonable, not violative of HRS § 205-2 (district classification standards), and consistent with the policies of HRS § 205-16 (compliance with the Hawaii state plan) and HRS § 205-17 (decision-making criteria).

HRS § 205-4(g) gives the Commission broad authority to impose conditions on boundary amendment petitions.  While the Commission can determine whether a condition it imposes is being violated, in general, enforcement of these conditions are left to the counties under HRS § 205-12.  However, a 1990 legislative amendment to HRS § 205-4(g) empowered the Commission "to void a boundary amendment, after giving the landowner the opportunity for a hearing, if the landowner failed to substantially commence use of the land in accordance with its representations."  In other words, under certain circumstances, the Commission may revert or downzone a property to its former state land use boundary classification (e.g., as in this case, from urban back to agricultural).

Holding.  The Court set-forth the following principles for the Commission when it considers reverting a boundary designation to its former classification:

  • First, the Commission must issue an Order to Show Cause, which is set-forth in the Commission's rules at HAR § 15-15-93.
  • Second, the Commission must determine "whether the petitioner has substantially commenced use of the land in accordance with its representations." 
  • Finally, if the answer to the above question is yes, the Commission is required to follow the procedures set forth in HRS § 205-4.  If no, the Commission may revert the land without following the procedures set forth in HRS § 205-4.
Applying the aforementioned principles to the facts of this case, the Court held that the circuit court correctly concluded that the Commission erred in reverting the property to agricultural use without complying with the requirements of HRS § 205-4, because by the time the Commission reverted the property, DW and Bridge had substantially commenced use of the land in accordance with their representations.

The Court reasoned that although there is no definition for "substantially commenced" in the statutes, the intent of the legislature was to "deter speculators who obtained favorable land-use rulings and then sat on the land for speculative purposes."  The Court relied on the circuit court's analysis of this finding, noting that the petitioner had, among other things, continued to actively proceed with preparation of plans and studies, including building plans and studies for the environmental impact statement.  In addition, sixteen townhouses were completed on the property.

Other Holdings.  Although the Court did agree with the circuit court on the substantive portion of the case, it disagreed on three other items worth noting.

First, specific documents that were not before the Commission should have been struck from the record on appeal.  HRS § 91-14 specifically confines an agency appeal to the administrative record.

Second, the Commission did not violate DW and Bridge's constitutional rights to due process and equal protection.  Both Bridge and DW had notice and a meaningful opportunity to be heard before the Commission reverted the property. And, given the circumstances, the Commission's conduct was not “arbitrary and unreasonable.”

Third, Bridge’s and DW’s equal protection rights were not violated because the record does not establish that the LUC lacked a rational basis for its decisions.

Tuesday, October 14, 2014

Three Charts Tell the Story of Hawaii's Energy Scorecard

Residential cost of energy in Hawaii is nearly 200 percent over the national average--over 200 percent for natural gas.


An overwhelming majority of energy in Hawaii is produced from imported fossil fuels (e.g., petroleum and coal).


Hawaii's transportation sector consumes more energy than three sectors combined.


Hawaii needs to focus all its effort on (1) reducing the cost of energy, (2) increasing locally produced electricity from locally renewable energy sources (e.g., wind, water, sun, and geothermal), (3) reducing fuel consumption by increasing multi-modal options for transportation (e.g., public transit, biking, walking), changing government vehicle fleets to renewable fuels, and planning communities that are designed for public transit, walking, and biking to and from work, play, markets, and home.