By Patricia Tummons
One of the key features of the Hawaiʻi planning law is the placement of all land in the state into one of four land use districts: Conservation, Agricultural, Rural, or Urban. And another key feature, until last year when the law was changed, was the requirement that every five years, the state’s planning office would undertake to review the classifications and propose boundary amendments as appropriate.
But at the time the law was changed, it had been nearly three decades since the previous five-year district boundary review had occurred. The 1992 review by the Office of State Planning was possibly the most comprehensive inventory and assessment of lands in the state ever undertaken, yet resulted in only a handful of boundary amendments.
Last year, in a bow to reality, the Legislature amended the law mandating those reviews, Section 205-18 of Hawaiʻi Revised Statutes, so that now the state planning agency is not required to carry out periodic analyses of the appropriateness of existing land classifications. Instead, it may choose to conduct a boundary review at its leisure.
Should it decide to undertake a boundary review, the agency – now the Office of Planning and Sustainable Development (OPSD) – is to submit its report to the Land Use Commission, governor, Legislature, and appropriate state and county agencies. There is, however, no requirement that the public at large, or even the private landowners whose property may be proposed for redistricting, be given notice or an opportunity to comment on the recommended changes.
So eager, apparently, was the Office of Planning to exercise this new freedom that on April 19, more than a week before House Bill 1149 (the one amending Section 205-18, among other things) received final passage in the Legislature, and more than two months before the bill was signed into law by Governor David Ige, its director, Mary Alice Evans, sent a draft boundary review – titled the “State Land Use Review of Districts” – to the planning departments of the four counties, soliciting their comments.
The heart of the report – areas where the conditions of the land suggest a different state land use classification might be warranted – is very much a restatement of the 1992 recommendations. Those recommendations, published in several volumes and with detailed rationales, had taken years to prepare. Consultants were hired to work with the state planning office, known then as the Office of State Planning and headed up by Harold S. Masumoto. That report resulted in 10 district boundary changes that were approved, reclassifying around 21,000 acres statewide.
Of that acreage, the vast majority was on the Big Island. There, about 13,400 acres were placed into the Conservation District, and about 3,300 were shifted into the Urban District. Most of the land that was recategorized had previously been in the Agricultural District. On O‘ahu, more than 1,600 acres were placed into Conservation, while just 67 were transferred into Urban. Maui saw 1,205 acres added to its Conservation District, while Kaua‘i’s Conservation lands gained just 67 acres. Neither Kaua‘i nor Maui saw any gains to the Urban District.
Those changes represent just over 7 percent of the 140-plus recommended land district reclassifications called for in the 1992 boundary review.
So few were actually approved because each recommendation would have required the preparation of a boundary-review docket for presentation to the Land Use Commission. The LUC, in turn, would need to have a hearing on each one of these. Neither the Office of State Planning nor the LUC had the staff or the funds to consider each recommended land use district change included in the OSP’s report.
What’s more, gaining the support of landowners who might see the value of their land diminished if it were reclassified to Conservation was a tall order. Many of them claimed that existing uses, such as ranching, farming, or even residential uses, would no longer be possible. That ignored the fact that existing uses would be grandfathered. Several sought to subdivide parcels proposed for redistricting, thereby bolstering the argument that redistricting would amount to an unconstitutional “taking.”
As a result, only the proposed reclassifications that were deemed most likely to succeed were formally pursued. For the most part, these were limited to areas where the state itself was the landowner.
Outside of the LUC redistricting process, in several instances where private land was recommended for reclassification, the OSP was able to negotiate concessions – such as conservation easements – that, although falling short of having all the protections that reclassification into the Conservation District would provide, still achieved much the same result. For example, on the Kona side of the Big Island, where water resources are limited, the OSP identified more than 113,000 acres as an “area of critical concern” suitable for inclusion in the Conservation District. Not one acre was redistricted, yet the boundary review recommendation resulted in the creation of the Kona Watershed Roundtable. From that effort, involving nearly all of the landowners in the area, grew a keen awareness of the importance of protecting the upland forests of the region – leading eventually to the establishment of the Three Mountain Alliance. That organization, involving around a dozen different public and private agencies, works to protect and increase the forests on the slopes of Kilauea, Mauna Loa, and Hualalai, or roughly half the entire area of the Big Island.
The 2021 boundary review proposes no new reclassifications. Instead, it states, “the previously proposed boundary amendment recommendations from the 1992 boundary review are retained for future reclassification actions.” There is no analysis of the reasons why so many were not acted upon nor is there any review of whether the rationale for the 1992 recommendations continues to exist.
Updates
While the more recent review leaves intact the 1992 boundary amendment recommendations, it also provides a comparison of county urban growth maps with state land use district maps:
In Hawai‘i County, the OPSD determined that more than 41,000 acres designated for urban expansion in the county’s Land Use Pattern Allocation Guide (LUPAG) map are not within the Urban land use district. For the City and County of Honolulu, urban growth boundaries include 9,725 acres not in the Urban district; for Maui the number is 7,787; and for Kaua‘i, it’s 4,701. Altogether, 65,792 acres statewide lie within county areas where urban expansion has been planned but are not within the state Urban district.
The obverse condition – land within the Urban District but not within county urban growth areas – applies to just 22,313 acres for the entire state. More than 40 percent of this is found on O‘ahu (9,279 acres), with 44 percent of that, in turn, located in the Ko‘olaupoko District, primarily Kahalu‘u and He‘eia.
On Maui, 1,982 acres are in the Urban District but not planned for urban growth by the county; for Kaua‘i, the number is 3,697; for the Big Island, 7,355.
Section 205-2 of Hawai‘i Revised Statutes, the state’s planning law, requires “a sufficient reserve area for foreseeable urban growth” to be included in the establishment of boundaries for the Urban District. “Lands that are in the Urban District but not included within the county growth boundaries would indicate that the counties are not considering urban growth and development of these lands in the foreseeable future,” the OPSD report states. “Accordingly, subject to further inspection, these lands … could be candidates for downzoning to the Agricultural, Rural, or Conservation districts, as they are not needed by the counties for urban expansion.”
Finally, the OPSD looks at land within the Urban District that is undeveloped – or, at least, appears to be so – and land within the Agricultural District that appears to be developed in non-agricultural uses. For this, the OPSD relies on maps based on the National Oceanic and Atmospheric Administration’s Coastal Change Analysis Program (C-CAP).
Of all lands within the state Urban District – 203,699 acres – the OPSD states that 68,654 acres, or 33.7 percent, appear to be undeveloped. But, it adds, “the C-CAP aerial imagery analysis has limitations, but closer inspection can discern the large tracts which are planned but not yet developed by the private and public owners or reveal potential areas for infill development opportunities.”
On Hawai‘i Island, more than half – 55 percent – of Urban District land is undeveloped (30,740 acres out of 56,348). On Moloka‘i, that percentage is even greater – 59 percent, or 1,352 undevel- oped Urban acres out of a total of 2,287 Urban-designated acres.
The same caveat about C-CAP imagery applies to the analysis of Agricultural District lands that appear to be developed. “This analysis includes both agricultural (cane haul roads and other roads used to transport machinery, crop yields, etc.) and non-agricultural roads,” OPSD notes, adding that it was not possible to sift out only the agricultural roads “without also removing other types of roads and development associated with non-agricultural uses.” In this section of the report, OPSD makes no estimate of acreage that has been developed in a manner inconsistent with permitted agricultural uses.
‘Potential Approaches’
The OPSD states in its boundary review that it is not proposing any changes in district boundaries because “there are no resources available to pursue individual district boundary amendment petitions under the existing LUC reclassification procedures.”
Instead, OPSD recommended changes to state law that would make it easier for counties and landowners to shift lands from one district to another. The document describes these variously as “options,” “potential approaches” to which “consideration could be given…,” stopping short of endorsing outright any one of the many strategies suggested for amendments to the district boundaryreview process.
County planning agencies have the authority to approve boundary amendments under 15 acres for land in the Urban, Rural, or Agricultural districts. Amendments involving the Conserva- tion District land of any acreage and land in all other districts for parcels of 15 acres or more must be approved by the state Land Use Commission.
“To promote consistency of the Urban District boundaries with county plans,” the OPSD’s November 2021 draft report states, “consideration should be given to approaches that would simplify the redistricting of lands based on county plan designations.” It offers “three potential approaches” to achieve this: There could be “expedited review” by the LUC for boundary amendment petitions that are consistent with county plans. The report doesn’t spell out exactly how this should be accomplished, however. Second, the report suggests a “quasi-legislative decision-making” process to approve county redistricting petitions. Finally, the Legislature could “increase counties’ authority to reclassify lands … to the Urban District if the petition area lies within the county planned growth area.”
Similar approaches are proposed to address non-agricultural uses in the Agricultural and Rural land use districts.
The LUC Weighs In
On October 28, LUC executive officer Dan Orodenker sent a memo to OPSD director Evans, responding to her request to brief the full commission on the September draft of the “State Land Use Review of Districts.”
It was harsh.
The report, Orodenker wrote, “has serious technical flaws” and fails to provide “useful guidance without significant revision.”
Orodenker criticized the process by which the report was generated, stating that it was a “fatal flaw not to have engaged with the Land Use Commission at a very early stage in its development to get input.”
In addition, “while the data analysis underscores that there is a significant amount of urbanized vacant land that remains vacant or undeveloped, there is no discussion as to why that is occurring, how it can be rectified, and the impact development of that land would have on the economy or housing inventory. Absent such analysis, any proposed changes to the process that would expedite the urbanization of additional lands would only serve to enhance sprawl, reduce agricultural lands needed for food sustainability, and significantly alter the infrastructure requirements for a designated area leading to long-term viability problems for water, sewer, and roadway infrastructure.”
What’s more, he wrote, the plan contains “no discussion of climate change and sustainability issues or a recognition of the requirements contained” within the state’s 2050 Plan.
Orodenker also criticized technical aspects of the plan, noting a lack of “any nexus between the assembled data and the conclusions” in the section recommending possible options. The conclusions, he stated, “appear to be random and nothing more than the sentiment of the author,” Rodney Funakoshi, who heads up the OPSD’s Land Use Division. “Of significant concern is that there is no evidence to support the proposed resolutions to problems that may or may not exist,” he wrote.
He continued: “even assuming the conclusions and recommendations are legitimately derived, there is no recognition of the Towne case and its impact on procedural requirements for agencies.” That case, Towne v. Land Use Commission, resulted in the determination by the Hawai‘i Supreme Court that decisions involving ownership rights had to be made through a quasi-judicial process – a contested case – and not legislatively.
Orodenker added, “Alarmingly, given the legal mandates of the LUC and the OPSD, there is no discussion of the duties imposed on government by the Public Trust Doctrine…. [F]ailure to address how these issues could and should be addressed is a sig-nificant flaw and impacts the usefulness of the document.”
Orodenker also lit into the report’s suggested simplification of the redistrict- ing process as “lacking in any reference to or analysis of whether or not such a process is possible under various Hawai‘i Supreme Court cases,” including the Towne decision.
In particular, Orodenker described as “objectionable in its entirety” the recommendation that counties be authorized to reclassify land into the Urban district if the area proposed for redistricting lies within the county planned growth area. It is, he wrote, “a one-sided capitulation to the desires of the development community.”
A Contentious Hearing
In response to Orodenker’s comments, the OPSD appears to have added some language to the boundary review report acknowledging the Towne decision, but still suggesting that the LUC role could shift to “regional quasi-legislative decision-making with limited project-specific, quasi-judicial decision-making.”
But on November 23, when Evans was given the opportunity to present the OPSD report to the full Land Use Commission, she was confronted with even more withering criticisms.
Commissioner Arnold Wong wanted to know why the OPSD had not sought community input as it prepared the plan. “We have a lot of community input,” he said, referring to the LUC process. “Not only petitioners and intervenors, but also the public.” Couldn’t the OPSD have “zoomed to different islands,” engaging the Sierra Club, Maui Tomorrow, and other groups? he asked.
“We’re looking forward to receiving comments from as many stakeholders as possible, now that the draft is on our website,” she replied. The plan “is not set in stone, it’s still a draft. We made changes based on all four counties comments, and also made changes from LUC staff when they were similar to the counties’. We look forward to getting comments and will make changes if they make sense.”
Wong asked if the OPSD had included public-trust considerations in the report, noting that he had taken some classes about the public trust doctrine and found them helpful. Evans replied that she and staff had also taken training: “I don’t think there’s any conflict with the review and the native land law training that’s been provided by the Richardson law school.”
Other commissioners were also troubled by the apparent lack of public outreach. Nancy Cabral said she was “concerned that this is kind of being pushed ahead” without public engagement. “It’s a massive report,” she noted.
Gary Okuda warned of what could happen without broader community input. “If this plan goes forward without significant community engagement, you’ll see the same kind of backlash that came through” when the City and County of Honolulu proposed designation of Important Agricultural Lands.
Commission chair Jonathan Scheuer stated it was not sufficient to merely post the report on the OPSD’s website. “I share concerns about outreach and timeline,” he said. If posting the report online “is your outreach plan, you need to do better.”
Commissioners were also puzzled about the difference between the “options,” contained in the report, and “recommendations,” which Evans insisted were not.
As to those options, Scheuer said, “don’t you think they’ll be taken as recommendations?”
“That’s for the Legislature to figure out if they want to,” Evans replied.
As the hearing drew to a close, the commission voted to empower Scheuer to draft a letter listing the commissioners’ concerns to the OPSD.
A Searing Critique
The seven-page letter from Scheuer to Evans, dated January 10, left no doubt as to the commissioners’ dissatisfaction with the OPSD review. Scheuer enumerated nine categories of concerns:
• The review’s “options;”
• Public and agency participation and engagement;
• Need, purpose, and goals for the review;
• Lack of legal context and analysis;
• The public trust doctrine;
• Limitations of reliance on county general plans and community plans;
• Climate change and sustainability mandates;
• Undeveloped urban district land, county growth boundaries, and infra- structure;
• Disconnect between findings and “options.”
The inclusion of recommendations – characterized as options – in the review “elevated all of the other concerns of the commission,” Scheuer wrote. Had they not been included, other concerns would still have existed, but would be less consequential, he continued. The very use of the term “options,” he wrote, “was a word choice designed to propose recommended actions to the Legislature while rhetorically removing any allocation of responsibility to OPSD. “Second,” he continued, “the commissioners believed that the lack of community engagement, legal analysis, and other factors led to the proposed ‘options’ to be deeply problematic for the state, our people, and our resources.”
The failure to meaningfully engage with the public meant that the community’s concerns are not reflected in the review, Scheuer wrote, “and hence they are not recognized as concerns or examined.” In addition, the LUC “does not feel that simply posting the document on the OPSD website will result in any meaningful input from the community.”
The fact that the document, in nearly complete form, has already been published on the OPSD website “will additionally make meaningful engagement extremely difficult. Many stakeholders may believe, as the LUC was inclined to conclude, that their input would never be meaningfully considered,” he added.
When LUC staff did raise concerns – as in Orodenker’s October letter – they were only “incorporated into the plan where they ‘matched the counties,’” Scheuer noted, quoting Evans’ statement to the commission. “This would appear to render LUC concerns irrelevant.”
Another puzzle was the timing. “Commissioners repeatedly requested clarification on why the review was done … and why there appears to be a rush to submit the report before the start of the next legislative session,” Scheuer said. The review analyzes current conditions “but does not state its purpose in doing so, what the review is intended to accomplish, why the report has been developed, nor the issues that need to be examined. … Since the report is no longer mandated, commissioners wanted OPSD to more clearly articulate why it feels compelled to move forward at this time.”
Regarding the legal context, Scheuer wrote: “Of significant concern is the lack of legal analysis done on the ‘options.’ Commissioners expressed concern that the report does not recognize constitutional and case law constraints placed on reclassification of land. … The Legislature cannot simply change the process to ‘streamline’ the system. The commission is extremely concerned with regard to statements by OPSD that the Legislature can pass laws of questionable constitutionality or legality and then leave it to the Supreme Court to decide.”
Similarly with respect to the public trust doctrine, Scheuer wrote, “During the discussion there appeared to be some confusion on OPSD’s part as to the training provided by OHA [Office of Hawaiian Affairs] on Native Hawaiian issues and the public trust doctrine. Native Hawaiian issues … are only one component of any government agency’s public trust obligations.”
He added: “The public trust doctrine is much more complex and includes water, environmental and other issues not recognized in the OPSD Review. How those obligations can be met under the ‘options’ has not been analyzed or discussed.”
The OPSD review was extremely deferential to county general plans, praising them as having wide public involvement and being closely in touch with the community’s needs and desires. However, as Scheuer pointed out, this runs against the commission’s own experience in at least two redistricting cases. “Any ‘option’ that relies on the general plans as including comprehensive agreements on expansion of the urban core is misguided,” he wrote. Boundary reclassification petitions proposed in Olowalu, Maui, and North Kona – both rejected following wide community opposition – provided “evidence of the inadequacy of reliance on the county general plans, as urban growth lines clearly conflict with public trust concerns and community wishes.”
Mandated state concerns related to sustainability and climate change were not properly addressed, Scheuer wrote. “The Hawai‘i 2050 Sustainability Plan should be discussed and addressed,” he stated. “Failing to do so is a significant omission. While not specifically identified in HRS Section 205-18 as one of the documents to focus on, it is one of the most significant current policy documents that will impact land use decisions now and into the future.” Scheuer served as lead facilitator at the Office of Planning’s public engagement sessions held during development of the plan.
The existence of large tracts of Urban district land that remain undeveloped raises numerous questions not addressed in the OPSD review, Scheuer noted. “Relatedly, there was no analysis of the reasons why housing promised on those lands has not been developed and a related blind faith that additional urbanization of lands would result in housing,” he wrote.
Finally, “the commissioners believed there was little to no connection between the information contained in the review and the conclusions or ‘options’ then presented. The review recommends making it easier for the counties to reclassify more lands, even though the review does not show additional Urban District lands are needed or the problems that will be resolved if the ‘options are adopted.’ There is no useful information or discussion of infrastructure adequacy. … [T]he commission is concerned that the proposed options are not grounded in any factual analysis but seem to reflect the policy of the private sector developer community revolving around a position that the fewer protections for the public associated with the development process, the more housing will be built.”
“Overall,” Scheuer concluded, “the LUC is concerned if any of the proposed ‘options’ contained in the report may evolve into legislation.” He went on to encourage the OPSD to engage in broader community outreach to “better scope out perceived problems.”
“The commission feels very strongly that the review should be retracted until the process has been rectified and the community engaged.”
Evans replied on February 7. In response to the criticism that the LUC had been given no opportunity for input early in the review’s drafting, Evans stated that OPSD “has consistently solicited LUC staff comments” – a claim that Orodenker flatly denied in comments to Environment Hawai‘i.
She expanded on the difference between “options” and “recommendations.” The former, she wrote, “are plausible ways to address the discrepancy between county growth boundaries and state Land Use District classifications and we cannot at this time ‘recommend’ any one option over another.”
As for public involvement, Evans said that outreach to groups and communities concerned with the land use classification process may be appropriate “in the development of county general plans. … But to apply this approach in the development of the boundary review that does not affect individual property rights or interests would be unwieldy and unnecessary.”
She also defended the timing: “The GIS analysis [on which much of the review was based] was mainly completed in 2016 and legislators during recent sessions have asked about the review, therefore it is appropriate that OPSD to release [sic] the review while the Legislature is in session.”
Regarding the Towne decision and the public trust doctrine, Evans wrote: “OPSD recognizes and expects that any of the possible approaches suggested … will require detailed refinement… However, discussion of possible alternatives should not prevented [sic] because of the potential impact of the Town [sic] decision on efficacy of certain options.”
And as to the 2050 Sustainability Plan, Evans noted, as did Scheuer, that a discussion of this was not a requirement in the law authorizing boundary reviews. “Although not specifically stated, the review is consistent with sustainability principles,” she wrote. “The suggested approaches toward consistence between state district boundaries and county growth areas is consistent with the sustainable practice of concentrating developments in areas with existing or planned infrastructure.”
From Options to Bills
Although the review is still a draft and as of press time had not yet been formally presented to the Legislature, that hasn’t meant that the Legislature is unaware of the “options” it lays out. Already, hearings have been held on bills that would implement some of the recommendations/options in the boundary review.
Take, for example, House Bill 1840. This measure, with 10 co-sponsors, would give to counties authority to approve redistricting of areas of up to 50 acres, under certain conditions, without holding a contested-case hearing and without requiring the approval of the Land Use Commission.
At a hearing on HB 1840 House Draft 1, on February 11, the OPSD submitted testimony favorable to the bill, as did the counties. What’s more, the planning directors of Maui and Hawai‘i counties presented their own legal analysis in an effort to refute the objections “presented by Land Use Commission staff,” in particular “the concerns of the Town [sic] v. Land Use Commission case.” (The counties argued that the quasi-judicial process required in Towne is applicable only to LUC dockets, while the land use district boundary procedures adopted by Maui and Hawai‘i counties “are more akin to the City and County of Honolulu’s special management area use permit procedures,” upheld by the Hawai‘i Supreme Court, which are more legislative.)
Orodenker, testifying on behalf of the LUC, laid out the opposing case. He noted that between 2000 and the present, “the LUC has approved over 40,000 homes with only a relatively small percentage actually built and/or have begun the development process.” He called this a “clear indication that the state approval process is only a small factor in the housing problem facing the state.”
The proposal to exempt the redistricting process from contested-case requirements “is likely a violation of due process property rights embedded in the Constitution … and a direct violation of due process rights embodied in law. As such, the section is likely [to be] rendered invalid and contested case hearings will still have to be held before any district boundary amendment can be approved.”
Phyllis Shimabukuro-Geiser, chairwoman of the state Board of Agriculture, testified that the Department of Agriculture was “concerned about the potential impact this bill may have on the state’s prime agricultural land resource.” While the bill leaves intact language that still requires the LUC to approve any redistricting involving designated Important Agricultural Lands, as of now, there are few such IALs in the state, so at this point, the requirement has little effect. Shimabukuro-Geiser suggested that the measure also exclude from the countyredistricting process lands with an “A” or “B” productivity rating.
The Hawai‘i Farm Bureau was far more critical of the bill. Brian Miyamoto, executive director, warned against the bill’s “simplistic solutions to Hawai‘i’s housing problems.” He added that the use of soil classification to determine land productivity is no longer a relevant standard. “Green- houses, hydroponics, aquaculture, and aquaponics are just a few of the many types of agriculture that can occur on all classes of land,” he testified. “Some of the best floriculture and hydroponic operations in Hawai‘i are on C, D, and E lands.”
The Sierra Club of Hawai‘i also strongly opposed the bill, which, it warned, “may compromise the public’s environmental, cultural, agricultural, and recreational interests in our islands’ lands and waters.”
With regard to the bill’s intent to spur more affordable housing, the group noted, “[T]he LUC is not the apparent barrier to affordable housing production it is often purported to be. … If affordable housing development is a concern, Sierra Club encourages the committee to explore the potential expansion of the LUC’s enforcement authority. Since 1980, more than 25 percent of all the housing authorized by the LUC has not yet been built, much of which was proposed to be affordable and workforce housing.”
For some critics, the bill doesn’t go far enough. The Hawai‘i Association of Realtors generally supported the bill, but argued that the 50-acre limit was too stingy, suggesting instead that it be increased to 100 acres.
Leave a Reply