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

Yesterday kicked off the beginning of Hawaii’s 28^th 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.

There is No "Wizard of Oz" Pulling Levers Behind the Curtain

My interest was piqued by a recent Hawaii Public Radio piece entitled, Planning Neighborhoods: What? When? Where?  It is part of the larger, ongoing discourse in Hawaii that is now reaching a fevered pitch as Hawaii's economy improves and land use projects move from conception to construction.

I was interviewed by Noe Tanigawa and briefly quoted in the piece.  In our longer interview, I got the sense that Noe was trying to put her finger on who makes the ultimate decision on how we grow as a state.  My response to her was that there is no "Wizard of Oz" pulling levers behind the curtain.

How the state grows is everybody's responsibility.  People look to blame government or project proponents, but those efforts are project specific and ephemeral.  It will not significantly impact the future of Hawaii.

The Hawaii land use and planning system has some very basic goals that stand the test of time:

• To “preserve, protect and encourage the development of the lands in the State for those uses to which they are best suited for the public welfare.” See L. 1961, c 187, § 1.
• "To improve the planning process in this State, to increase the effectiveness of government and private actions, to improve coordination among different agencies and levels of government, to provide for wise use of Hawaii’s resources and to guide the future development of the State.”  See HRS §226-1.
• To “provide for the effective management, beneficial use, protection, and development of the coastal zone.”  See L. 1977, c 188, § 1.

How we deliver, as a society, on these promises is everyone's responsibility.  There is no one person or institution to blame, because we are all to blame.  Instead of pointing fingers, let's figure out what "we", our generation, want our future to be and set up mechanisms and strategies to obtain our preferred future.

But let us remember as we move forward that it's not just about land use, it is about basic concepts of a healthy society--unalienable rights, such as life, liberty and the pursuit of happiness.  This challenge requires complex solutions to multidimensional and multidisciplinary problems that confront our modern society.

Like with so many challenges confronting our society, we know the problem.  In many cases, we have known for decades.  The question is, who is up to this task for making real change divorced from politics and self-interest for the benefit of current and future generations as a whole?  We need a critical mass of those kinds of leaders posthaste.

Basic Checklist for Crafting Policy

When confronted with complex processes, like environmental and land use policies and related regulations, a common reaction is out with the old, in with the new. Change can be good, but a measured, comprehensive approach is usually best.


Regulatory systems do not start off complex. Systems become more complex over time as it adapts to real-life situations. These small changes overtime can lead to system-wide inefficiencies. Ultimately, a regulatory system can depart completely from the original intent of the policy.

The first set of questions to consider:

• Is the problem with current implementation or policies?
• Is the current policy still applicable?
• Are resources sufficiently allocated to carry out policy implementation?
• Over time, have competing policies or amended polices created additional, unmet implementation requirements?

If it is not an implementation problem, here are some questions to consider when amending the original policy or developing a new policy: 

• Is the policy legally feasible?
• Does it meet constitutional standards?
• Does it impact other statutes, ordinances, or rules that will need to be amended?
• Is there a "rational basis" for the policy?
• Is there data or evidence to support the policy?
• Is there a connection between the goals of the policy and the problem?
• Is implementation clear and feasible?
• What are the barriers to implementation?
• Is the implementation process clear to the public, regulators, and the regulated?
• Have affected stakeholders participated in developing the policy and implementation framework?
• Is this policy financially sustainable?
• Is there existing money?
• Could the policy generate revenue?
• Will implementation require a reallocation of current public resources? If so, how will those other public services be impacted?
• Is the policy part of a larger plan?
• What is the larger plan?
• How does this policy fit in?

These are basic questions, but a good starting point.

Legislative Priorities: Selected Quotes from Today's Opening Day Speeches

Today was the opening day of the State of Hawaii, Twenty-Seventh Legislature 2013-2014.

There are probably better ways to gauge the priorities of a legislative body, but below is a bullet-point list of quotes from the new Senate President and Speaker of the House.

If I could summarize their speeches in a few words, the Senate President is focusing on fiscal constraint and small government and House Speaker is focusing on rebuilding government and public sector projects.  Both leaders support less Oahu-centric decision making and similar social programs.

The following text was pulled word-for-word from their entire speeches posted at the respective URLs below.  If text was added, it's in brackets.

Senate President Donna Mercado Kim (http://mauitvnews.com/blog/2013/01/16/new-senate-president-opens-27th-legislative-session)

• The last recession may have weakened our foundation, so now is the time for reassessment and reinforcement
• After several years of belt-tightening, we’re greeting this session with a rosier economic outlook
• Tourism deserves a special mention
• establishment of a museum/center of Hawaiian music and dance
• We should proceed with caution
• possible cutbacks in federal funding
• backlog of repair and maintenance needs for schools, parks, public housing, state buildings, and our infrastructure
• state-run early education program, a new prison, and more affordable housing, as well as proposals for more grants-in-aid and other public support
• NO new tax burdens thrust upon our citizens
• Reevaluating and reassessing what we have in place . . . to achieve our purposes more efficiently and effectively than we have been
• eliminate salary overpayments to state workers and abuses in overtime and sick leave
• accelerate fixing our schools, funding kupuna care, reducing the unfunded liability of the state pension system, and repairing our roads and aging infrastructure
• we mustn’t create or reinstitute public programs without a thorough examination of their long-term obligations
• do better in acting on the Auditor’s recommendations
• [address issues with the] HI-5 recycling program, the Public Land Development Corporation, airport procurement contracts, Charter Schools, certain tax credits
• those appointed as stewards of the public’s trust are responsible for the performance of the organizations they oversee and therefore must be held accountable
• food security, farmers need our assistance and commitment to preserve prime agricultural lands
• I am an advocate for county home-rule . . . making government less Oahu-centric

House Speaker Joseph Souki (http://www.mauinews.com/page/content.detail/id/568957/Speaker-Souki-s-prepared-remarks.html)

• rebuild what the recession took away
• Investment in projects and programs throughout the state
• strengthen economic development and job growth, to restore public services
• restore the safety net, put people back to work, and provide the best education, including early childhood education
• take care of people's health, take care of our kupuna, and make sure the state's health care system transitions into the new era of health care smoothly and without undue delay
• improve our roads, bridges, and transportation infrastructure
• clean energy that uses the best renewable energy resources, including our ocean and solar resources
• responsible stewards of Hawaii's natural resources and our native plants and animals
• increase farming opportunities on agricultural land and the market for locally-grown products
• support the tourism industry and promote the Hawaii product to the world
• enhance our revenue stream—a mix of strategies that will generate more state revenues
• rethink tax credits—film industry claims a tax credit
• look at rolling back the personal tax burden for people with lower incomes and the middle class

Our Love Affair with Streamlining

According to Merriam-Webster’s online dictionary, “streamline” is defined as “to make simpler or more efficient.”  When the economy gets tough, it’s no wonder that decision-makers look to streamline land use regulatory processes as a way to move large development projects forward to create jobs and stimulate the economy.

You must know what strings to pull, lest it unravels.

However, regulatory processes are complex, based on years of agency interpretation, permit applicant practice, legislative tweaks, and the occasional court made rule.  Changing any one part of one regulatory process can have systemic implications that roil other regulations that make up the tapestry of land use entitlements.  In their frustration, decision-makers propose wholesale exemptions.

Exemptions have consequences all their own.  The regulatory system and the area of administrative law came about to relieve the pressure on courts from dealing with myriad controversies that became more and more complex as our society advanced.  The regulatory process creates a rational, procedural based framework within which issues such as impacts from proposed developments, can be evaluated and mitigated based on the best available science.  In permitting, agencies review these facts and weigh them against criteria established by a legislative body.  The record the agency creates and the decision it makes is the basis for any challenge taken up at the judiciary by parties with standing.  Courts happily rely on agency expertise on factual issues.  A judge is learned in the law but cannot be expected to know engineering methodology or complex scientific analysis.

What would the world look like without administrative law and the regulatory process?  The courts would have no record from the agency to work from.  All facts would need to be reestablished on the record before the judge or a jury.  There would be no third party agency standing between the persistent permit applicant and the angry plaintiff.  The judge would not have the framework of a reasonable process to evaluate the facts; there would be no standards or criteria to apply to the facts.  In essence, the judge would have to rely on general principles of land use law.  For example, without a permitting process for the coastal zone, a judge in Hawaii might rely on general principles of Hawaii constitutional law and public trust doctrine.  The grey area and uncertainly in this scenario should have lawyers salivating as thoughts of billable hours dance through their heads.

Instead of wholesale exemptions to environmental laws, which are not streamlining, let’s actually think about rational, reasonable processes that are agnostic about outcomes and provide decision-makers with the information they need to make sustainable decisions that balance economic, environmental, and socio-cultural issues.

Can Housing Alone Pull Us Out of the Recession?

Article: Penelope Lemov, The Trouble with Housing, Governing, Sept. 15, 2011, available at http://www.governing.com/topics/finance/trouble-with-housing.html.

Summary: The author of the article interviewed Doug Duncan, the chief economist for Fannie Mae; David Merriman, an economics professor and associate director of the Institute of Government Public Affairs at the University of Illinois at Chicago; and Tracy Turner, economics professor at Kansas State University.

Here is the gist of their responses:

• Economists have long held that housing is the industry that typically leads the nation out of recession 
• Industry forecasts still predict housing will continue, for the foreseeable future, to be a drag on the economy 
• In the U.S., there are only 60,000 completed new homes available for sale -- the lowest number since World War II 
• The housing market is particularly hard on laid off (or in the case of Hawaii, payroll reduced) government employees who work in public schools, fire departments and police  
• Because housing values are low, people and businesses are conservative about spending and reluctant to invest or expand 
• This is the largest housing bust since the Great Depression 
• For every $1 decline in house value, a homeowner spends 6 cents less in the community, which takes a toll on the sales tax and on general economic activity 
• Mr. Merriman says, "a recovery in housing is key to an economic recovery," but Ms. Turner concludes, "I wouldn't rely on housing to lead us out of this recession."

National Coastal and Marine Spatial Planning Workshop

Last year, I wrote about the Final Recommendations of the Interagency Ocean Policy Task Force that President Obama adopted by Executive Order on July 19, 2010.

The Final Recommendations included the creation of a Policy Coordination Framework and Implementation Strategy.  Under the Framework, the United States is subdivided into nine regional planning areas.  Hawaii is part of the Pacific Islands Region, which includes Guam, the Commonwealth of the Northern Mariana
Islands, and American Samoa.  The Implementation Strategy identifies priority objectives that our Nation will pursue to address pressing challenges facing the ocean, our coasts, and the Great Lakes.  One of those nine strategies is Coastal and Marine Spatial Planning (CMSP) to implement comprehensive, integrated, ecosystem based coastal and marine spatial planning and management in the United States.  Each regional planning area is tasked with developing a CMSP for its region.

The National Ocean Council (NOC) will hold a National CMSP Workshop in Washington, DC, on June 21-23.  The first day of the Workshop will be a dedicated public and stakeholder session.  This public session will take place on Tuesday, June 21, 2011, from 9:00 am to 5:30 pm, in the Yates Auditorium at the U.S. Department of the Interior, located at 1849 C Street, NW Washington, DC.  For those who cannot attend the session in person or if interest exceeds capacity, it will also be available to the public through a live webcast on June 21, 2011 at www.doi.gov/live.

For more about this initiative, visit the NOC website at www.whitehouse.gov/administration/eop/oceans.

County of Kauai Important Agricultural Lands Study

In 2008, the University of Hawaii Department of Urban and Regional Planning (DURP) completed a pilot study for the State Land Use Commission on the designation of Important Agricultural Lands (IAL) using the framework from Act 183, SLH 2005.

Fulfilling the legislative mandate in Act 183, the County of Kauai subsequently approved funding to contract with DURP to identify IAL county‐wide. That study can be found here at County of Kauai Important Agricultural Lands Study.

The policy supporting Act 183 is codified at HRS § 205-41, as follows:

Declaration of policy. It is declared that the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State. There is a compelling state interest in conserving the State's agricultural land resource base and assuring the long-term availability of agricultural lands for agricultural use to achieve the purposes of:(1) Conserving and protecting agricultural lands;(2) Promoting diversified agriculture;(3) Increasing agricultural self-sufficiency; and(4) Assuring the availability of agriculturally suitable lands,pursuant to article XI, section 3, of the Hawaii state constitution.

Under HRS § 205-47, each county is directed by the legislature to identify and map potential important agricultural lands within its jurisdiction based on the standards and criteria laid out in Act 183, which is also codified at HRS § 205-41, et seq.

Homeless in Hawaii

Many speculate about the cause and effect of homelessness in Hawaii, but to this date, there has not been (1) a comprehensive study to figure out who the homeless are, or (2) a program based on that analysis to develop targeted, strategic interventions.  So it's no wonder that the many and varied "solutions" cobbled together by well intended decision-makers have not ameliorated the problem.

Ala Moana Park

But 100,000 Homes Campaign's practical, common sense approach could make some inroads.  The two aforementioned steps are part of 100,000 Homes process to ensure that public monies are better focused on providing housing for individuals who need them most. Read more in, Registering the Homeless, from this month's edition of Governing.

For more on housing issues in Hawaii, view the Affordable Housing archive.

The Results are In: Follow Up on "Words Have Meaning"

The Readers' Poll has ended. The poll asked readers to rank certain definitions associated with "sustainability." These definitions were borrowed from a recent study by Eric Zeemering in the "Urban Affairs Review," which investigated what "sustainability" means to local officials throughout the San Francisco Bay Area.

Here is how our readers ranked those definitions in order of importance:

1. Mixed use near transit hubs
2. Green building standards
3. Pedestrian and bike routes
4. Neighborhood revitalization
5. Human capital development
6. Retaining current businesses
7. Resident participation

I received a few E-mail from readers who said that the list of definitions did not capture the meaning of sustainability. These E-mail emphasized the problem with using catchphrases and rhetoric in popular discourse. In this case, Mr. Zeemering observed, "the term sustainability lacks conceptual clarity."

One conclusion that could be drawn is that before decision-makers are tasked with crafting effective policy, they and the public should first define the goal and objectives. Seems like commonsense, and yet, here we are. 

Words Have Meaning

I read an article the other day about the meaning of words.

The gist was that policy makers and stakeholders casually use words to invoke meanings in public discourse. However, when policy is crafted around those words, the outcome misses the intended objective. The problem is that words like sustainability, green economy, and food security, to name a few, mean different things to different people.

The article inspired the above Readers' Poll regarding the meaning of the oft-used word: sustainability. What does it mean to you?

Obama Administration Establishes National Ocean Council

On July 19, 2010, President Obama signed an Executive Order entitled, National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes ("National Policy"). The Order sets forth the first of its kind National Policy and creates a National Ocean Council ("NOC") to strengthen ocean governance and coordination.

The Order is based on final recommendations of the Ocean Policy Task Force ("Final Recommendations"). The Final Recommendations prioritize actions for the NOC to pursue, and it calls for a flexible framework for coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, coasts, and the Great Lakes.

Section 1 of the Order lays out its purpose as follows:

• establish a national policy to ensure the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources,
• enhance the sustainability of ocean and coastal economies,
• preserve our maritime heritage,
• support sustainable uses and access,
• provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification,
• coordinate with our national security and foreign policy interests, and
• provide for the development of coastal and marine spatial plans that build upon and improve existing Federal, State, tribal, local, and regional decisionmaking and planning processes.

Under Section 2 of the Order, ten policy objectives are identified as follows:

1. protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources;
2. improve the resiliency of ocean, coastal, and Great Lakes ecosystems, communities, and economies;
3. bolster the conservation and sustainable uses of land in ways that will improve the health of ocean, coastal, and Great Lakes ecosystems;
4. use the best available science and knowledge to inform decisions affecting the ocean, our coasts, and the Great Lakes, and enhance humanity's capacity to understand, respond, and adapt to a changing global environment;
5. support sustainable, safe, secure, and productive access to, and uses of the ocean, our coasts, and the Great Lakes;
6. respect and preserve our Nation's maritime heritage, including our social, cultural, recreational, and historical values;
7. exercise rights and jurisdiction and perform duties in accordance with applicable international law, including respect for and preservation of navigational rights and freedoms, which are essential for the global economy and international peace and security;
8. increase scientific understanding of ocean, coastal, and Great Lakes ecosystems as part of the global interconnected systems of air, land, ice, and water, including their relationships to humans and their activities;
9. improve our understanding and awareness of changing environmental conditions, trends, and their causes, and of human activities taking place in ocean, coastal, and Great Lakes waters; and
10. foster a public understanding of the value of the ocean, our coasts, and the Great Lakes to build a foundation for improved stewardship.

The Order directs all executive departments, agencies, and offices that are members of the NOC to implement the policies set forth in section 2 of the Order, to participate in the process for coastal and marine spatial planning, and to comply with NOC certified coastal and marine spatial plans.

The NOC plans to hold its first meeting later this summer to begin implementing the National Policy.