Over the last year, the members of the state Land Use Commission have not held back when it comes to expressing their interest in becoming more involved in the legislative process. They have objected to testimony given by their executive officer, Dan Orodenker, when that testimony did not comport with the opinions of some of them.
To address their concerns, the LUC met on February 11 to consider bills relating to the commission specifically and land use issues in general and to discuss whether to adopt a position on them.
Several of the bills they discussed were unlikely to be resurrected from legislative limbo, with no hearings held or scheduled as of the date of the LUC meeting. Yet, irrespective of the viability of the bills, the comments of several of the LUC members shed light on the views they hold about their commission and the powers it has ((but maybe should cede to the counties) or lacks (but maybe should seize from another commission, specifically, the Commission on Water Resource Management).
LUC vs. CWRM
Senate Bill 2240, SB 3006, and House Bill 1848: All these measures would require anyone petitioning the LUC to obtain either a certification from the Commission on Water Resource Management that water is available for the projects in a proposed district boundary amendment (SB 3006 and HB 1848) or a certified statement from CWRM as to the availability of water in the hydrologic unit where the project is proposed (SB 2240).
Of the three bills, as of press time, only SB 2240 was still under consideration by the Legislature, amended by the Senate to require the petitioner seeking a boundary amendment to provide to the LUC in advance of the filing “a written statement from the Commission on Water Resources [sic] Management on current water availability in the hydrologic unit or unit where the parcel is located.” At press time, SB 2240 was in the House, awaiting hearings from the committees on Water and Land and Judiciary and Hawaiian Affairs.
Orodenker provided the commissioners with a history of the genesis of the bills. Representatives Kyle Yamashita (Maui) and Mark Hashem (Honolulu) “called me in some time last summer and expressed consternation over the Pulelehua project because the [Maui] County had denied them permits because they didn’t have any water.
“They expressed to me that they wanted to make sure that this didn’t happen again. And I told them that was the Legislature’s prerogative. I explained to them what had already occurred at the Land Use Commission. And they decided to go ahead with the measure anyway on their own”
On February 3, the House Committee on Water and Land heard testimony on HB 1848, during which, Orodenker said, David Arakawa of the Land Use Research Foundation in his testimony opposing the measure had suggested that commission staff had had a hand in lobbying for the measure. Orodenker called this out as a misrepresentation and denied any involvement of staff in the genesis of the bill. Instead, he said, Hashem and Yamashita asked whether LUC staff supported the measure – “and all we said was that we supported it.”
He added that he did not believe the measure is necessary, “given the changes at the Land Use Commission and the discussions that we have had with the Commission on Water Resource Management…. My position remains that this is a policy call on the part of the Legislature and that the only thing that we really should be testifying on is whether or not the measure itself poses any technical difficulties.”
LUC chair Brian Lee reminded commissioners that they had “already addressed this twice and rejected it unanimously,” referring to the shelving of rules in 2024 that would have called for CWRM input and the commission’s rejection of a proposed memorandum of understanding between the LUC and CWRM that would have encouraged greater coordination between the agencies.
“CWRM already has the ability to provide testimony,” Lee continued “They’re given that option. Maybe this bill should be targeted at CWRM – that they need to provide and respond to our open requests for comment.”
Other commissioners then piled on.
Myles Miyasato, an at-large member held over since his term expired last June 30, questioned whether CWRM’s calculation of the sustainable yield of an aquifer is “an exact science or a speculative assumption.”
Orodenker noted that CWRM is required to set sustainable yields statewide and that “they are the arbiters. They have to set a sustainable yield.”
Miyasato: “I just have a problem with that because from what I see their sustainable yield method is one-dimensional. Right? Two barriers, basically – salt water, fresh water barrier and the salt rock and what’s contained in between on a profile. When they pump water, GPMs [gallons per minute], test the salt salinity – once the salinity increases theoretically that’s your GPM sustainable yield kind of in a nutshell.
“If you had a three-dimensional – a satellite with X-ray vision – and you could show me that aquifer three-dimensional I would say you can certify your water ability. But you know, even the Ota well [proposed for the Keauhou aquifer in Kona] – they can’t even schedule the meeting because they need more research. They cannot determine if a new well will impact sustainable yield in another well nearby if the aquifer is even connected.
“So, yeah, I just have a problem with this bill being – that the methodology is one-dimensional and clear – in my mind kind of theoretical. You can drill a well 50 feet away, hit a pond, and have all the water you want.
“I mean, I’ve seen it in the mainland. They have agricultural subdivisions, ten acres, in Madera, California, about a half hour north of Fresno. Ten-acre lots. Every lot is only provided with electricity. You do your own leach field, drill your own well on every single lot. I have a friend with a lot right in the middle. His neighbor built up on the hill. Beautiful view. Other neighbor, same thing up on the ridge. They’re hauling water during drought seasons. He has water…. In three lots it varies, you know, sustainable yield. So, you know, I just have a problem with them certifying before us and condemning something.”
Chair Lee noted his agreement with Miyasato. “It’s up to this commission to decide who they want to believe,” he added.
Big Island Commissioner Nancy Carr Smith, a holdover appointment, chimed in: “I too don’t think that CWRM is the proper agency to certify whether there’s water or not. I think that the counties control their water sources and provide water to their customers. I understand CWRM’s role in it and with well permits and all that. But I just – this just doesn’t seem appropriate to me.”
Carr Smith made a motion to have Chair Lee work with staff on testimony to oppose the measures and Maui commissioner Bruce Uʻu seconded it. When it came to voting, they were the only two votes in favor of the measure. Despite having criticized CWRM methodology so strongly, Miyasato abstained, saying that he would be “waiting to see if the companion bill’s got legs.” Other members also abstained. When it came time for Lee to cast a vote, he declined to do so, saying that since the motion is moot, “I am not going to vote on this as is proper with Robert’s Rules of Procedure.” The final vote: two in favor of the LUC opposing the measures, and five abstentions.
“But I think now we have informed the executive officer,” Lee said. “And he can give more flavor in any testimony.”
On February 27, the Senate Committee on Judiciary heard SB 2240, Senate Draft 1. Orodenker submitted testimony, noting that the LUC “did not take a position on this measure.”
His testimony continued: “The LUC staff supports measures that will ensure that proposed and approved projects will actually be able to be constructed in a timely manner, particularly those that could provide affordable workforce housing. Provision of timely, authoritative, and accurate information is critical for informed decision-making. Knowing whether or not water is available for projects will prevent costly expenditures by developers on projects that will, ultimately, be denied permits for lack of water.”
SB 2240, Senate draft 2, passed the Senate but the House had not acted on the measure as of press time.
SB 2537 and HB 2103: These measures would require at least one member of the LUC to have “substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural land practices,” with future appointments to fill this seat be made from a list of nominees given to the governor by the Office of Hawaiian Affairs. It would also require at least one member to have “substantial experience in the area of water resource management.”
Orodenker pointed out that the law already requires one member to have expertise in Hawaiian culture and land use – a position currently filled by at-large member Kūʻikeokalani Kamakea-ʻŌhelo. “This just changes the way in which that commissioner would be selected” in the future, he said.
Commissioner Miyasato objected to the measure. “I don’t feel a board, another state board, should be dictating who comes on another board. I think it’s the governor’s privilege to be able to appoint people in certain positions to follow what he promised he’d be trying to achieve. Yeah, for another board to shove something down another board’s throat, I don’t think that’s right.”
Commissions, he continued, “are designed to give citizens a voice in their government and provide a means of influencing decisions that shape the quality of life for residents of our state. It’s meant to have a cross-section of Hawaiʻi’s residents to offer vital testimony.
“Yeah, other than that, OHA can come testify. Any water expert can come testify and we will duly note their testimony. So that’s where I stand on this.”
Carr Smith agreed. “We have the cultural specialist already required,” she said. “And I think that’s important. The water specialist I don’t think is important because of the fact that they can come and provide testimony.”
Carr Smith then made a motion “to instruct and authorize the chair to work with the executive officer on this bill to not support it basically and to give the reasons why as stated in our discussion.” The motion did not receive a second.
The Senate bill did not survive crossover. The House bill was amended to require not one but two experts in Hawaiian culture on the commission as well as one member with expertise in water resource management.
At the March 24 hearing on HB 2103 before the Senate committees on Hawaiian Affairs and Water, Land, Culture, and the Arts, the LUC submitted testimony. It noted that the commission met to discuss this and other bills in February, but “at that time, the LUC did not take a position on this measure.”
It went on to say that “The Land Use Commission staff notes, however, that additional expertise that would assist the commission in rendering a decision and balancing its public trust responsibilities with economic development is helpful.”
At the same hearing, commissioner Miyasato testified in opposition.
“I come before you today as a retired union representative and currently tending to horses and cattle,” he said. “I’m speaking in opposition of HB 2103 The current process already allows OHA to send a water expert representative to attend and share concerns and support with the Land Use Commission or correspond prior with CWRM or OPSD [the Office of Planning and Sustainable Development]. It’s actually OPSD that has the responsibility for environmental review of petitions before the Land Use Commission. OPSD has an open public comment period.
“So again, there’s already an established avenue. This measure strips away the core reason for having boards and commissions. Boards and commissions were created to provide an opportunity for citizens to have a voice in their government and provide a means of influencing decisions that shape the quality of life for the residents of Hawaii. Thank you for your time.”
(Editor’s note: In collating the positions of government agencies to present to the LUC as it considers boundary amendment petitions, the OPSD has no public comment period.)
At the conclusion of the Senate hearing, Senator Chris Lee deferred the measure, but added, “We will be returning to that another day.”
Miyasato was the only person out of dozens who testified on the measure to oppose it.
One of those testifying in favor was Jonathan Likeke Scheuer, a former LUC member himself and chair of the commission for several years.
“The lack of any required water management expertise on the Land Use Commission has meant that the LUC must often make land use decisions without the ability to properly assess developer’s assertions regarding the availability of water. Many thousands of approved housing units languish, in some cases because the LUC approved of them but now, as it turns out, water is not available.
“During my eight years serving on the LUC, I often heard blithe reassurances from project proponents and their consultants that there was sufficient water available, even when readily available public information, to those who were aware of it, revealed that these statements were questionable at best….
“This bill is an absolutely common sense proposal.”
When Three is a Majority
House Bill 1845: This measure would allow district boundary amendment petitions to be approved by a simple majority of members present at a meeting. The quorum for the nine-member commission is five, which means that, if this measure were to pass, a boundary amendment could be approved by as few as three members – or just one-third of the authorized commission membership.
The only concern that LUC members seemed to have in discussing this and two other bills (no longer alive in this session) was that petitions concerning Important Agricultural Lands are required by the state Constitution to have the approval of a two-thirds majority of the members. With the caveat that the Legislature should carve out an exception for IAL, the commissioners were happy to endorse this legislation on a vote of seven to one, with one abstention.
At press time, the measure had passed to the Senate but no hearing had been scheduled.
Ceding to the Counties
HB 1844, SB 36, SB 2185, and SB 2218: All these would amend the state land use law, Chapter 205, by requiring the commission to reclassify lands into the state Urban District whenever a county requests this, so long as those lands have been designated by the county for urban growth. The purpose sections of the bill say the measures are “to support the development of affordable housing by requiring the [commission], at the request of a county, to reclassify lands designated for urban growth under a county general or development plan as being in the urban state land use district.”
Orodenker told the commissioners that he and the LUC staff have “a lot of technical concerns on this.” If enacted, the LUC would have no discretion, he noted, and, “from a technical standpoint, this violates constitutional due process. And we have serious concerns about whether the Supreme Court would validate it.”
LUC staff planner Scott Derrickson said that the three Senate bills were pretty much dead for the session. The House bill had been heard on February 10 before the House Committee on Water and Land, but the proposed amendments had not yet been published.
LUC chair Lee commented that historically, the LUC “was enacted in the early ‘60s because of all the unchecked growth, such as, you know, subdivisions on volcano land… And so there needed to be some oversight. Some people feel that the counties have developed a better process after 40 years.”
Vice chair Carr Smith, spoke in favor of the measure. “I support the concept of this. I think the counties – they have done their own planning. And that should carry weight over the state’s plan in my opinion,” she said. “And the bill also speaks to expediting development of affordable housing. I know certainly for my county that I support those concepts.”
Commissioner Uʻu generally agreed with Carr Smith: “I’ve been hearing for a while that the county wants some of the powers back to a degree for their lands. And, you know, the process is long enough… I’m just looking for balance myself, really. And my balance is protecting our environment along with creating homes. And we’re at a deficit of balance currently. So I think this would bring balance…”
Commissioner Dan Giovanni of Kauaʻi expressed his concerns about due process and asked Orodenker to expand on his earlier comments.
“When you impact the value of property under both the United States and the State constitutions you’re entitled to due process so that there isn’t a taking,” Orodenker said. “There are situations where landowners do not want their land urbanized … in a lot of cases because of the tax implications. And that can be a problem for some legacy lands that are held by families that have held them for generations but don’t have any intention of developing them. I think that the underlying problem is that right to due process for the change in classification, which can impact value.”
Derrickson then referred to the opening section of the bills, where the purpose is described. “If you read these bills, they’re talking about the long time it takes to – and the added cost for affordable housing development.
“I’ve worked here for almost 40 years now, so I have a little bit of a track record. And I do have some experience.
“The Land Use commission, you guys, are required by law to make decisions within 365 days. I’ve looked back at the Land Use Commission’s decision-making process for district boundary amendments over the last 30 years. There’s only been one instance where it took 365 days. The general trend is six months or sooner. And for affordable housing projects that are under the 201H law, it’s 45 days. So when there’s a discussion about long delays for affordable housing development, I can tell you that it’s not at the Land Use Commission level.”
Uʻu made a motion, seconded by Carr Smith, that the LUC submit favorable testimony on the bill. The motion failed, having received just two votes in favor – those of the movants.
On March 19, the Senate committees on Energy and Intergovernmental Affairs and on Water, Land, Culture, and the Arts deferred action on HB 1844.
Senate Bill 1157 would achieve much the same thing as the bills just discussed, although by a slightly different method. Under this measure, counties could amend district boundaries for lands in excess of 15 acres if those lands are proposed for urbanization in the county general plan or development plan. The LUC took no position on this. It did not pass out of the Senate.
No Interest in Enforcement
SB 2986: Ever since the Supreme Court’s decision in the ʻAina Leʻa case limited the commission’s ability to revert land if the conditions attached to redistricting decisions were not carried out, the commission has been powerless to enforce conditions if “substantial commencement” of use of the land had occurred. This bill would change that by allowing the LUC to “amend, revise, or modify a decision and order … or fine a petitioner, upon finding that a petitioner or its successors or assigns have not adhered to the conditions… regardless of whether there has been substantial commencement of use of the land.” The bill also defines substantial commencement as “completion of all public improvements and infrastructure required by [the LUC] … within and outside the project area, and completed construction of twenty percent of the physical private improvements so that they are usable or habitable.”
In commenting on the bill, Orodenker pointed out that neither he nor his staff had anything to do with the genesis of this bill. That said, he added: “Ten years ago we supported a similar measure. But we have not dipped our toes into this issue since.”
There seemed to be little interest on the part of the commissioners in this bill. No vote in support or opposition was made. The bill passed the Senate and is now in the House. No hearing had been scheduled by press time.
– Patricia Tummons
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