{"id":14304,"date":"2022-03-01T00:48:00","date_gmt":"2022-03-01T00:48:00","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14304"},"modified":"2022-03-01T00:48:20","modified_gmt":"2022-03-01T00:48:20","slug":"luc-grills-state-planning-office-over-stealth-district-boundary-review","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14304","title":{"rendered":"LUC Grills State Planning Office Over Stealth District Boundary Review"},"content":{"rendered":"\n
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An aerial view of Olowalu, Maui, where a proposed Urban development drew widespread public opposition. In 2016, the developer asked the Land Use Commission to halt processing of its petition for redistricting. Credit: Forest and Kim Starr<\/sub><\/figcaption><\/figure>\n\n\n\n

By Patricia Tummons<\/strong><\/p>\n\n\n\n

One of the key features of the Hawai\u02bbi 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\u2019s planning office would undertake to review the classifications and propose boundary amendments as appropriate.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Last year, in a bow to reality, the Legislature amended the law mandating those reviews, Section 205-18 of Hawai\u02bbi 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.<\/p>\n\n\n\n

Should it decide to undertake a boundary review, the agency \u2013 now the Office of Planning and Sustainable Development (OPSD) \u2013 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.<\/p>\n\n\n\n

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 \u2013 titled the \u201cState Land Use Review of Districts\u201d \u2013 to the planning departments of the four counties, soliciting their comments.<\/p>\n\n\n\n

The heart of the report \u2013 areas where the conditions of the land suggest a different state land use classification might be warranted \u2013 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.<\/p>\n\n\n\n

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\u2018ahu, 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\u2018i\u2019s Conservation lands gained just 67 acres. Neither Kaua\u2018i nor Maui saw any gains to the Urban District.<\/p>\n\n\n\n

Those changes represent just over 7 percent of the 140-plus recommended land district reclassifications called for in the 1992 boundary review.<\/p>\n\n\n\n

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\u2019s report.<\/p>\n\n\n\n

What\u2019s 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 \u201ctaking.\u201d<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Outside of the LUC redistricting process, in several instances where private land was recommended for reclassification, the OSP was able to negotiate concessions \u2013 such as conservation easements \u2013 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 \u201carea of critical concern\u201d 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 \u2013 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.<\/p>\n\n\n\n

The 2021 boundary review proposes no new reclassifications. Instead, it states, \u201cthe previously proposed boundary amendment recommendations from the 1992 boundary review are retained for future reclassification actions.\u201d 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.<\/p>\n\n\n\n

Updates<\/strong><\/p>\n\n\n\n

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:<\/p>\n\n\n\n

In Hawai\u2018i County, the OPSD determined that more than 41,000 acres designated for urban expansion in the county\u2019s 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\u2018i, it\u2019s 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.<\/p>\n\n\n\n

The obverse condition \u2013 land within the Urban District but not within county urban growth areas \u2013 applies to just 22,313 acres for the entire state. More than 40 percent of this is found on O\u2018ahu (9,279 acres), with 44 percent of that, in turn, located in the Ko\u2018olaupoko District, primarily Kahalu\u2018u and He\u2018eia.<\/p>\n\n\n\n

On Maui, 1,982 acres are in the Urban District but not planned for urban growth by the county; for Kaua\u2018i, the number is 3,697; for the Big Island, 7,355.<\/p>\n\n\n\n

Section 205-2 of Hawai\u2018i Revised Statutes<\/em>, the state\u2019s planning law, requires \u201ca sufficient reserve area for foreseeable urban growth\u201d to be included in the establishment of boundaries for the Urban District. \u201cLands 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,\u201d the OPSD report states. \u201cAccordingly, 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.\u201d<\/p>\n\n\n\n

Finally, the OPSD looks at land within the Urban District that is undeveloped \u2013 or, at least, appears to be so \u2013 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\u2019s Coastal Change Analysis Program (C-CAP).<\/p>\n\n\n\n

Of all lands within the state Urban District \u2013 203,699 acres \u2013 the OPSD states that 68,654 acres, or 33.7 percent, appear to be undeveloped. But, it adds, \u201cthe 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.\u201d<\/p>\n\n\n\n

On Hawai\u2018i Island, more than half \u2013 55 percent \u2013 of Urban District land is undeveloped (30,740 acres out of 56,348). On Moloka\u2018i, that percentage is even greater \u2013 59 percent, or 1,352 undevel- oped Urban acres out of a total of 2,287 Urban-designated acres.<\/p>\n\n\n\n

The same caveat about C-CAP imagery applies to the analysis of Agricultural District lands that appear to be developed. \u201cThis analysis includes both agricultural (cane haul roads and other roads used to transport machinery, crop yields, etc.) and non-agricultural roads,\u201d OPSD notes, adding that it was not possible to sift out only the agricultural roads \u201cwithout also removing other types of roads and development associated with non-agricultural uses.\u201d In this section of the report, OPSD makes no estimate of acreage that has been developed in a manner inconsistent with permitted agricultural uses.<\/p>\n\n\n\n

\u2018Potential Approaches\u2019<\/strong><\/p>\n\n\n\n

The OPSD states in its boundary review that it is not proposing any changes in district boundaries because \u201cthere are no resources available to pursue individual district boundary amendment petitions under the existing LUC reclassification procedures.\u201d<\/p>\n\n\n\n

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 \u201coptions,\u201d \u201cpotential approaches\u201d to which \u201cconsideration could be given…,\u201d stopping short of endorsing outright any one of the many strategies suggested for amendments to the district boundaryreview process.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

\u201cTo promote consistency of the Urban District boundaries with county plans,\u201d the OPSD\u2019s November 2021 draft report states, \u201cconsideration should be given to approaches that would simplify the redistricting of lands based on county plan designations.\u201d It offers \u201cthree potential approaches\u201d to achieve this: There could be \u201cexpedited review\u201d by the LUC for boundary amendment petitions that are consistent with county plans. The report doesn\u2019t spell out exactly how this should be accomplished, however. Second, the report suggests a \u201cquasi-legislative decision-making\u201d process to approve county redistricting petitions. Finally, the Legislature could \u201cincrease counties\u2019 authority to reclassify lands … to the Urban District if the petition area lies within the county planned growth area.\u201d<\/p>\n\n\n\n

Similar approaches are proposed to address non-agricultural uses in the Agricultural and Rural land use districts.<\/p>\n\n\n\n

The LUC Weighs In<\/strong><\/p>\n\n\n\n

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 \u201cState Land Use Review of Districts.\u201d<\/p>\n\n\n\n

It was harsh.<\/p>\n\n\n\n

The report, Orodenker wrote, \u201chas serious technical flaws\u201d and fails to provide \u201cuseful guidance without significant revision.\u201d<\/p>\n\n\n\n

Orodenker criticized the process by which the report was generated, stating that it was a \u201cfatal flaw not to have engaged with the Land Use Commission at a very early stage in its development to get input.\u201d<\/p>\n\n\n\n

In addition, \u201cwhile 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.\u201d<\/p>\n\n\n\n

What\u2019s more, he wrote, the plan contains \u201cno discussion of climate change and sustainability issues or a recognition of the requirements contained\u201d within the state\u2019s 2050 Plan.<\/p>\n\n\n\n

Orodenker also criticized technical aspects of the plan, noting a lack of \u201cany nexus between the assembled data and the conclusions\u201d in the section recommending possible options. The conclusions, he stated, \u201cappear to be random and nothing more than the sentiment of the author,\u201d Rodney Funakoshi, who heads up the OPSD\u2019s Land Use Division. \u201cOf significant concern is that there is no evidence to support the proposed resolutions to problems that may or may not exist,\u201d he wrote.<\/p>\n\n\n\n

He continued: \u201ceven assuming the conclusions and recommendations are legitimately derived, there is no recognition of the Towne <\/em>case and its impact on procedural requirements for agencies.\u201d That case, Towne v. Land Use Commission<\/em>, resulted in the determination by the Hawai\u2018i Supreme Court that decisions involving ownership rights had to be made through a quasi-judicial process \u2013 a contested case \u2013 and not legislatively.<\/p>\n\n\n\n

Orodenker added, \u201cAlarmingly, 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.\u201d<\/p>\n\n\n\n

Orodenker also lit into the report\u2019s suggested simplification of the redistrict- ing process as \u201clacking in any reference to or analysis of whether or not such a process is possible under various Hawai\u2018i Supreme Court cases,\u201d including the Towne <\/em>decision.<\/p>\n\n\n\n

In particular, Orodenker described as \u201cobjectionable in its entirety\u201d 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, \u201ca one-sided capitulation to the desires of the development community.\u201d<\/p>\n\n\n\n

A Contentious Hearing<\/strong><\/p>\n\n\n\n

In response to Orodenker\u2019s comments, the OPSD appears to have added some language to the boundary review report acknowledging the Towne <\/em>decision, but still suggesting that the LUC role could shift to \u201cregional quasi-legislative decision-making with limited project-specific, quasi-judicial decision-making.\u201d<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Commissioner Arnold Wong wanted to know why the OPSD had not sought community input as it prepared the plan. \u201cWe have a lot of community input,\u201d he said, referring to the LUC process. \u201cNot only petitioners and intervenors, but also the public.\u201d Couldn\u2019t the OPSD have \u201czoomed to different islands,\u201d engaging the Sierra Club, Maui Tomorrow, and other groups? he asked.<\/p>\n\n\n\n

\u201cWe\u2019re looking forward to receiving comments from as many stakeholders as possible, now that the draft is on our website,\u201d she replied. The plan \u201cis not set in stone, it\u2019s 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\u2019. We look forward to getting comments and will make changes if they make sense.\u201d<\/p>\n\n\n\n

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: \u201cI don\u2019t think there\u2019s any conflict with the review and the native land law training that\u2019s been provided by the Richardson law school.\u201d<\/p>\n\n\n\n

Other commissioners were also troubled by the apparent lack of public outreach. Nancy Cabral said she was \u201cconcerned that this is kind of being pushed ahead\u201d without public engagement. \u201cIt\u2019s a massive report,\u201d she noted.<\/p>\n\n\n\n

Gary Okuda warned of what could happen without broader community input. \u201cIf this plan goes forward without significant community engagement, you\u2019ll see the same kind of backlash that came through\u201d when the City and County of Honolulu proposed designation of Important Agricultural Lands.<\/p>\n\n\n\n

Commission chair Jonathan Scheuer stated it was not sufficient to merely post the report on the OPSD\u2019s website. \u201cI share concerns about outreach and timeline,\u201d he said. If posting the report online \u201cis your outreach plan, you need to do better.\u201d<\/p>\n\n\n\n

Commissioners were also puzzled about the difference between the \u201coptions,\u201d contained in the report, and \u201crecommendations,\u201d which Evans insisted were not.<\/p>\n\n\n\n

As to those options, Scheuer said, \u201cdon\u2019t you think they\u2019ll be taken as recommendations?\u201d<\/p>\n\n\n\n

\u201cThat\u2019s for the Legislature to figure out if they want to,\u201d Evans replied.<\/p>\n\n\n\n

As the hearing drew to a close, the commission voted to empower Scheuer to draft a letter listing the commissioners\u2019 concerns to the OPSD.<\/p>\n\n\n\n

A Searing Critique<\/strong><\/p>\n\n\n\n

The seven-page letter from Scheuer to Evans, dated January 10, left no doubt as to the commissioners\u2019 dissatisfaction with the OPSD review. Scheuer enumerated nine categories of concerns:<\/p>\n\n\n\n

\u2022 The review\u2019s \u201coptions;\u201d<\/p>\n\n\n\n

\u2022 Public and agency participation and engagement;<\/p>\n\n\n\n

\u2022 Need, purpose, and goals for the review;<\/p>\n\n\n\n

\u2022 Lack of legal context and analysis; <\/p>\n\n\n\n

\u2022 The public trust doctrine;<\/p>\n\n\n\n

\u2022 Limitations of reliance on county general plans and community plans;<\/p>\n\n\n\n

\u2022 Climate change and sustainability mandates;<\/p>\n\n\n\n

\u2022 Undeveloped urban district land, county growth boundaries, and infra- structure;<\/p>\n\n\n\n

\u2022 Disconnect between findings and \u201coptions.\u201d<\/p>\n\n\n\n

The inclusion of recommendations \u2013 characterized as options \u2013 in the review \u201celevated all of the other concerns of the commission,\u201d 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 \u201coptions,\u201d he wrote, \u201cwas a word choice designed to propose recommended actions to the Legislature while rhetorically removing any allocation of responsibility to OPSD. \u201cSecond,\u201d he continued, \u201cthe commissioners believed that the lack of community engagement, legal analysis, and other factors led to the proposed \u2018options\u2019 to be deeply problematic for the state, our people, and our resources.\u201d<\/p>\n\n\n\n

The failure to meaningfully engage with the public meant that the community\u2019s concerns are not reflected in the review, Scheuer wrote, \u201cand hence they are not recognized as concerns or examined.\u201d In addition, the LUC \u201cdoes not feel that simply posting the document on the OPSD website will result in any meaningful input from the community.\u201d<\/p>\n\n\n\n

The fact that the document, in nearly complete form, has already been published on the OPSD website \u201cwill 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,\u201d he added.<\/p>\n\n\n\n

When LUC staff did raise concerns \u2013 as in Orodenker\u2019s October letter \u2013 they were only \u201cincorporated into the plan where they \u2018matched the counties,\u2019\u201d Scheuer noted, quoting Evans\u2019 statement to the commission. \u201cThis would appear to render LUC concerns irrelevant.\u201d<\/p>\n\n\n\n

Another puzzle was the timing. \u201cCommissioners 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,\u201d Scheuer said. The review analyzes current conditions \u201cbut 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.\u201d<\/p>\n\n\n\n

Regarding the legal context, Scheuer wrote: \u201cOf significant concern is the lack of legal analysis done on the \u2018options.\u2019 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 \u2018streamline\u2019 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.\u201d<\/p>\n\n\n\n

Similarly with respect to the public trust doctrine, Scheuer wrote, \u201cDuring the discussion there appeared to be some confusion on OPSD\u2019s 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\u2019s public trust obligations.\u201d<\/p>\n\n\n\n

He added: \u201cThe 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 \u2018options\u2019 has not been analyzed or discussed.\u201d<\/p>\n\n\n\n

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\u2019s needs and desires. However, as Scheuer pointed out, this runs against the commission\u2019s own experience in at least two redistricting cases. \u201cAny \u2018option\u2019 that relies on the general plans as including comprehensive agreements on expansion of the urban core is misguided,\u201d he wrote. Boundary reclassification petitions proposed in Olowalu, Maui, and North Kona \u2013 both rejected following wide community opposition \u2013 provided \u201cevidence of the inadequacy of reliance on the county general plans, as urban growth lines clearly conflict with public trust concerns and community wishes.\u201d<\/p>\n\n\n\n

Mandated state concerns related to sustainability and climate change were not properly addressed, Scheuer wrote. \u201cThe Hawai\u2018i 2050 Sustainability Plan should be discussed and addressed,\u201d he stated. \u201cFailing 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.\u201d Scheuer served as lead facilitator at the Office of Planning\u2019s public engagement sessions held during development of the plan.<\/p>\n\n\n\n

The existence of large tracts of Urban district land that remain undeveloped raises numerous questions not addressed in the OPSD review, Scheuer noted. \u201cRelatedly, 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,\u201d he wrote.<\/p>\n\n\n\n

Finally, \u201cthe commissioners believed there was little to no connection between the information contained in the review and the conclusions or \u2018options\u2019 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 \u2018options are adopted.\u2019 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.\u201d<\/p>\n\n\n\n

\u201cOverall,\u201d Scheuer concluded, \u201cthe LUC is concerned if any of the proposed \u2018options\u2019 contained in the report may evolve into legislation.\u201d He went on to encourage the OPSD to engage in broader community outreach to \u201cbetter scope out perceived problems.\u201d<\/p>\n\n\n\n

\u201cThe commission feels very strongly that the review should be retracted until the process has been rectified and the community engaged.\u201d<\/p>\n\n\n\n

Evans replied on February 7. In response to the criticism that the LUC had been given no opportunity for input early in the review\u2019s drafting, Evans stated that OPSD \u201chas consistently solicited LUC staff comments\u201d \u2013 a claim that Orodenker flatly denied in comments to Environment Hawai\u2018i<\/em>.<\/p>\n\n\n\n

She expanded on the difference between \u201coptions\u201d and \u201crecommendations.\u201d The former, she wrote, \u201care plausible ways to address the discrepancy between county growth boundaries and state Land Use District classifications and we cannot at this time \u2018recommend\u2019 any one option over another.\u201d<\/p>\n\n\n\n

As for public involvement, Evans said that outreach to groups and communities concerned with the land use classification process may be appropriate \u201cin 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.\u201d<\/p>\n\n\n\n

She also defended the timing: \u201cThe 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.\u201d<\/p>\n\n\n\n

Regarding the Towne <\/em>decision and the public trust doctrine, Evans wrote: \u201cOPSD 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 <\/em>[sic] decision on efficacy of certain options.\u201d<\/p>\n\n\n\n

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. \u201cAlthough not specifically stated, the review is consistent with sustainability principles,\u201d she wrote. \u201cThe 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.\u201d<\/p>\n\n\n\n

From Options to Bills<\/strong><\/p>\n\n\n\n

Although the review is still a draft and as of press time had not yet been formally presented to the Legislature, that hasn\u2019t meant that the Legislature is unaware of the \u201coptions\u201d it lays out. Already, hearings have been held on bills that would implement some of the recommendations\/options in the boundary review.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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\u2019s more, the planning directors of Maui and Hawai\u2018i counties presented their own legal analysis in an effort to refute the objections \u201cpresented by Land Use Commission staff,\u201d in particular \u201cthe concerns of the Town <\/em>[sic] v. Land Use Commission <\/em>case.\u201d (The counties argued that the quasi-judicial process required in Towne <\/em>is applicable only to LUC dockets, while the land use district boundary procedures adopted by Maui and Hawai\u2018i counties \u201care more akin to the City and County of Honolulu\u2019s special management area use permit procedures,\u201d upheld by the Hawai\u2018i Supreme Court, which are more legislative.)<\/p>\n\n\n\n

Orodenker, testifying on behalf of the LUC, laid out the opposing case. He noted that between 2000 and the present, \u201cthe LUC has approved over 40,000 homes with only a relatively small percentage actually built and\/or have begun the development process.\u201d He called this a \u201cclear indication that the state approval process is only a small factor in the housing problem facing the state.\u201d<\/p>\n\n\n\n

The proposal to exempt the redistricting process from contested-case requirements \u201cis 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.\u201d<\/p>\n\n\n\n

Phyllis Shimabukuro-Geiser, chairwoman of the state Board of Agriculture, testified that the Department of Agriculture was \u201cconcerned about the potential impact this bill may have on the state\u2019s prime agricultural land resource.\u201d 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 \u201cA\u201d or \u201cB\u201d productivity rating.<\/p>\n\n\n\n

The Hawai\u2018i Farm Bureau was far more critical of the bill. Brian Miyamoto, executive director, warned against the bill\u2019s \u201csimplistic solutions to Hawai\u2018i\u2019s housing problems.\u201d He added that the use of soil classification to determine land productivity is no longer a relevant standard. \u201cGreen- houses, hydroponics, aquaculture, and aquaponics are just a few of the many types of agriculture that can occur on all classes of land,\u201d he testified. \u201cSome of the best floriculture and hydroponic operations in Hawai\u2018i are on C, D, and E lands.\u201d<\/p>\n\n\n\n

The Sierra Club of Hawai\u2018i also strongly opposed the bill, which, it warned, \u201cmay compromise the public\u2019s environmental, cultural, agricultural, and recreational interests in our islands\u2019 lands and waters.\u201d<\/p>\n\n\n\n

With regard to the bill\u2019s intent to spur more affordable housing, the group noted, \u201c[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\u2019s 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.\u201d<\/p>\n\n\n\n

For some critics, the bill doesn\u2019t go far enough. The Hawai\u2018i 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14307,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[338,494],"tags":[7],"class_list":["post-14304","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-land-use","category-march-2022","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14304","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14304"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14304\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14307"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14304"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14304"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14304"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}