If public testimony is any indication, the Public Land Development Corporation has swayed none of its major critics by adopting a strategic plan. And recent amendments to the agency\u2019s proposed administrative rules have also quelled no concerns.<\/p>\n
Those who already support the agency — the General Contractors Association, renewable energy developers, and their consultants — testified in favor of the PLDC board\u2019s adoption of the plan, its associated flow chart, and the proposed rule amendments at the PLDC\u2019s meeting on October 11.<\/p>\n
The critics, while expressing their appreciation for the PLDC\u2019s effort to address community concerns, only stepped up their criticism.<\/p>\n
Their main beef with the strategic plan: Its components aren\u2019t reflected in the statute establishing the PLDC or in the agency\u2019s proposed administrative rules. Therefore, the plan has no legal significance.<\/p>\n
\u201cThe failure to incorporate the strategic plan into your rules renders the strategic plan an empty gesture,\u201d wrote Native Hawaiian Legal Corporation attorney David Kimo Frankel in testimony to the PLDC.<\/p>\n
As for the proposed rule amendments, Frankel and others pushed the PLDC to include provisions of some of the environmental regulations the agency is now exempt from. It was a recommendation they had raised during public hearings on the first draft of administrative rules, to no avail.<\/p>\n
\u201c[The Office of Hawaiian Affairs] and others submitted a lot of the same language to you before you went to public hearings the first time. You would have saved a lot of heartburn. If they\u2019re not incorporated a second time, you will have a lot of heartache,\u201d Frankel warned.<\/p>\n
Public Fears<\/i><\/b><\/p>\n
For months, the staff and creators of the PLDC (including the governor\u2019s office) have been trying to extinguish the public\u2019s fears about an agency that can allow developers of public lands to bypass most of the state\u2019s regulations that protect environmental and cultural resources \u2013 regulations that, according to Frankel, have protected O`ahu\u2019s Ka Iwi shoreline and `Ewa beach, Moloka`i\u2019s La`au Point, Hanalei on Kaua`i, Honoli`i on the Big Island, and many other places, from inappropriate development.<\/p>\n
Under Act 55, which established the PLDC in 2011, developers working with the PLDC would, indeed, appear to be exempt from all state and county land use laws, so long as the PLDC had \u201ccoordinated with\u201d county planning departments and county land use plans, policies, and ordinances.<\/p>\n
Such language has not appeased the public or the counties. The Kaua`i and Hawai`i county councils have recently adopted resolutions calling for the repeal of Act 55, something that state House Representative Cynthia Thielen has promised to try to do next legislative session.<\/p>\n
Frankel told the PLDC board that the public distrust stems from a lack of candor. To date, the PLDC has not said whether it will comply with statutes regarding the Conservation District, the state Land Use Commission, and the coastal zone management law.<\/p>\n
\u201cWill PLDC comply with Chapter 183, 205, 205A? Why don\u2019t you tell the public?\u201d he asked.<\/p>\n
\u201cIt\u2019s not absurd for the public to have fear\u201d about inappropriate development, Frankel added, since, even without PLDC involvement, the City and County of Honolulu is entertaining a proposal by developer Andy Anderson to build a hotel on city-owned park land in Hale`iwa, on O`ahu\u2019s North Shore.<\/p>\n
\u201cThere\u2019s litigation over it,\u201d Frankel said.<\/p>\n
Just a Conduit<\/i><\/b><\/p>\n
To clarify what the PLDC will do and how it will operate, state Senators Malama Solomon and Donovan Dela Cruz helped PLDC staff develop a strategic plan.<\/p>\n
Under the plan, the PLDC now has guiding values, such as \u201cbe fair,\u201d \u201csupport and aid,\u201d and \u201cfacilitate and connect.\u201d<\/p>\n
The plan lists nine guidelines, some of which simply restate laws that the PLDC is required to follow. Under other guidelines in the strategic plan, the PLDC promises not to sell land or develop lands eligible for designation as important agricultural lands (IAL). It will also heed conditions imposed on projects by the state or county agency holding title and county conditions on infrastructure connection.<\/p>\n
One guideline seems to go beyond what Act 55 allows. It promises to give 85 percent of the state\u2019s share of project revenues to any agency that has title to or management over the underlying state or county lands. The act, however, states that 85 percent of the state\u2019s revenue must go to either the Department of Land and Natural Resources\u2019 special land and development fund or its boating special fund.<\/p>\n
The plan lists key components of PLDC projects:<\/p>\n
At the PLDC\u2019s October meeting, executive director Lloyd Haraguchi stressed that the PLDC\u2019s work will be achieved through partnerships with state and county agencies and non-profits \u201cto create jobs for the public benefit.\u201d<\/p>\n
In all cases, he said, the title agency leasing land or transferring management to the PLDC will take the lead.<\/p>\n
\u201cThey\u2019re driving the bus, we\u2019re the conduit,\u201d he said. \u201cThe county has control over water, sewer. Without cooperation by the county … the project stops. This is an effort where the people driving the bus will be the title agency and the county.\u201d<\/p>\n
The plan\u2019s flow chart first outlines how project applications will lead to leases or memorandums of understanding between a title agency (i.e., the DLNR) and the PLDC. Once the PLDC gains control over the land, projects can follow one of three tracks — depending on what kind of development\/management partner, if any, is involved — eventually resulting in a lease and\/or partnership agreement between an applicant and the PLDC.<\/p>\n
Under the scenarios set forth in the flow chart, the public will have four to seven opportunities to comment at a public meeting, depending on which track an application takes. (The flow chart misidentifies these as public hearings.) Instances where outside agencies are proposing projects would require seven public meetings, while those where the PLDC is simply taking over management would require four.<\/p>\n
\u201cThis [addresses] one of the major concerns, that we were providing maybe just one opportunity for public input,\u201d Haraguchi said.<\/p>\n
The county and title agency would set project conditions based on an initial project proposal, and compliance with state historic preservation and environmental review laws could occur after the title agency transfers management or issues a lease to the PLDC, according to the flow chart.<\/p>\n
\u2018Not Legally Binding\u2019<\/i><\/b><\/p>\n
Frankel, and representatives of the Hawai`i chapter of the Sierra Club, the Office of Hawaiian Affairs, and Life of the Land asked the PLDC not to adopt the strategic plan until or unless its terms are incorporated into the proposed administrative rules.<\/p>\n
Former state deputy attorney general Patricia Talbert (now with Innovations Development Group), however, said she wasn\u2019t sure the plan was meant to be legally binding.<\/p>\n
\u201cThese things speak to how a board is going to function. Statutes and rules don\u2019t tell you how you\u2019re going to open the doors each day,\u201d she said.<\/p>\n
In any case, the strategic plan\u2019s terms don\u2019t quite match up with the proposed administrative rules, OHA\u2019s senior policy analyst Jocelyn Doane told the board.<\/p>\n
For example, the plan suggests that the title agency and counties will recommend project conditions based on an initial project proposal. Under the proposed administrative rules, however, such a proposal will only be done if the PLDC\u2019s executive director thinks it\u2019s required.<\/p>\n
In written testimony, OHA noted that the administrative rules were unclear how the county would provide comments on infrastructure requirements if the executive director doesn\u2019t require an initial project proposal.<\/p>\n
Another inconsistency between the plan and the rules involved the six key components of a PLDC project. The plan simply lists the components without indicating whether a project needs to meet them all or just one. The proposed rules require projects to be either self-sustaining or generate revenue. As for the rest of the key components, a project would need to meet only one of them, under the rules.<\/p>\n
Rep. Thielen noted that the proposed rules originally required a project to meet all of the components.<\/p>\n
\u201c[T]he word \u2018and\u2019 has been replaced with the disjunctive word \u2018or.\u2019 This means that in reality, only ONE of these five elements \u2013 for example, \u2018positive economic impact\u2019 \u2013 will be required\u2026 EVERY proposed project can be said to have some kind of positive economic impact, even if it ultimately fails on the other five elements,\u201d she wrote.<\/p>\n
That the flow chart appeared to allow a title agency to approve projects well before they complete the environmental process worried Frankel.<\/p>\n
\u201cThe title agency shouldn\u2019t approve a project unless Chapter 343 is done. They will be making a decision without the information it needs. And they will be sued and we will win,\u201d he said.<\/p>\n
(According to deputy attorney general Linda Chow, although the flow chart indicates Chapter 343 environmental review will accompany a final project proposal submitted after PLDC has control of the land, the review could be done any time before then. The proposed administrative rules would require that a finding of no significant impact accompany initial project proposals \u201cif applicable to the project at this stage.\u201d)<\/p>\n
The strategic plan\u2019s commitment not to develop eligible IAL lands is not mentioned in the rules at all, Doane and others noted.<\/p>\n
\u201cMembers of the public understand that the strategic plan is not legally binding. If you mean it, put [its provisions] in the rules,\u201d Frankel said. \u201cYou say you\u2019re not going to develop important agricultural lands. You don\u2019t say it in the rules. Say it!\u201d<\/p>\n
The Sierra Club and OHA argued that the PLDC\u2019s strategic plan and rules should also commit to leaving lands in the county special management area and state Conservation District alone.<\/p>\n
\u201cThese lands often contain Hawai`i\u2019s most fragile natural and cultural resources, including those that are critical not only to Native Hawaiians\u2019 immediate well being, but to the very survival of our culture and way of life,\u201d wrote OHA CEO Kamana`opono Crabbe in testimony to the PLDC.<\/p>\n
\u201cThere are certain projects I think we can agree should be off the table. We should agree to that,\u201d added Sierra Club, Hawai`i Chapter, executive director Robert Harris.<\/p>\n
With regard to Haraguchi\u2019s earlier comment on the need for the county\u2019s cooperation on water and sewer connections, Frankel argued that Haraguchi had a fundamental misunderstanding of the county\u2019s role in controlling development.<\/p>\n
The county\u2019s concern about a particular project may not be with wastewater, but with the traffic it may generate, he said. By limiting the county\u2019s input to certain infrastructure requirements, \u201cit\u2019s deceptive to say the county has this large role,\u201d Frankel said.<\/p>\n
Administrative Rules<\/i><\/b><\/p>\n
Rep. Thielen\u2019s comments on the proposed administrative rules also touched on the PLDC\u2019s apparent lack of commitment to follow county plans. She notes in her written testimony that the proposed rules only require that projects be \u201cconsistent with county community or development plan for the area, as closely as is practical.\u201d<\/p>\n
\u201c[T]he phrase \u2018as closely as is practical\u2019 renders this \u2018requirement\u2019 purely aspirational,\u201d she wrote.<\/p>\n
After the first round of public hearings, the PLDC made several amendments, including expanding the definition of culturally sensitive, requiring an initial project proposal, and deleting sections on financing, among other things.<\/p>\n
To Doane, more changes were needed before the board approved a second round of public hearings.<\/p>\n
\u201cYou\u2019d need to go back again if substantial changes are made again. We are concerned about the lack of provisions to ensure transparency, accountability, and due diligence, and the lack of provisions to ensure the PLDC is able to fulfill obligations regarding cultural sensitivity,\u201d she said.<\/p>\n
Frankel asked the board not to assume that the title agency will review PLDC projects \u201caccording to the standards it currently operates under when deciding whether to approve a project.\u201d<\/p>\n
He argued that the title agency may know nothing about the nature of a proposed project before land is transferred.<\/p>\n
\u201cSecond, and much more importantly, there are no standards that govern the agency\u2019s decision to transfer development rights to the PLDC,\u201d Frankel wrote in testimony.<\/p>\n
Doane, Harris, and Frankel also again tried to get the PLDC to forfeit some of the exemptions granted by Act 55 by incorporating some of the protective language contained in statutes regarding coastal zone management and the Conservation District, among other things. They also tried to get the board to include provisions in the rules to prevent developers with a history of violations from applying for projects.<\/p>\n
The board ignored all of their recommendations and approved the amendments to the administrative rules as submitted by Haraguchi.<\/p>\n
Teresa Dawson<\/b><\/p>\n
Volume 23, Number 5 — November 2012<\/p>\n","protected":false},"excerpt":{"rendered":"
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