Wednesday, July 11, 2007

Maui County Considers 80% to 100% Affordable Housing

A recent Maui Corporation Counsel opinion, addressed the following question from Councilman Danny Mateo: May the Council adopt an ordinance that would increase the Department of Housing and Human Concern's current minimum percentage requirement of 51% affordability for proposed section 201H-38, HRS, projects to 80% or 100% affordability? Corporation Counsel answered in the affirmative.

Under § 201H-28, HRS, Projects consistent with the affordability provisions of chapter 201H, as determined by the Hawaii housing finance and development corporation (“HFDC”), are “exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction of dwelling units thereon.” Chapter 201H replaced its predecessor chapter 201G in 2006 (Act 180), but provides for the same requirements in pertinent part.

Considering the statute as codified on its face, Corporation Counsel may be wrong because the specificity of 201H's statutory requirements would preempt the proposed ordinance; i.e., HFDC is granted authority to find consistency with 201H not the county. Second, as with the previous version of the law under 201G, it appears that the county can only approve or disapprove the project, not add conditions.

But the story gets complicated. During the 2006 legislative session, Act 217 was also signed into law which allows the County to modify 201G projects. And, Act 180 replaced 201G with 201H, but the language in 201H does not allow County modifications. If you were to pick up the official codified version of 201H, it does not include the language allowing modification by counties. So what happens when two Acts pass in the same session and contradict each other? What was the legislature’s intent? Apparently the Attorney General orally stated that the codified version of 201H is amended by implication, so as it is, counties may be able to modify 201H projects.

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