Breaking New Ground

Fixing Hawaii’s Land-Use Process

February, 2004

When Bruce Coppa was appointed to the state Land Use Commission (LUC) in 2000, he quickly discovered who his true friends were. Longtime associates and others he considered friends, such as staunch environmental activist Jeff Mikulina, were practically climbing over one another to testify against Coppa at his confirmation hearing in front of the state Senate. “That was hard, because I realized that, no matter how friendly me and [the people testifying against me] might be, we have our individual job responsibilities, and I can try to encourage them to come over to my side, but at the end of the day, you can’t please everyone,” says Coppa, managing director of Pacific Resource Partnership, an alliance between contractors and Carpenters Union Local 745.

It was Coppa’s first taste of public deprecation as a commissioner, but it would not be his last. Four years later, Coppa (now co-vice-chair of the commission), along with the state’s seven other commissioners (one of the nine available seats is currently unfilled), is still contending with criticism – perhaps now, more than ever. However, it isn’t so much the commissioners themselves who are under intense scrutiny. It’s the role of the commission and the state’s overall land-use planning process that are being questioned.

When it was established in 1961, with the purpose of administering statewide land zoning, the LUC served an important role in managing Hawaii’s finite amounts of land, participating in the long-term planning of Hawaii’s limited resources and ensuring that urban development did not run rampant. The commission was responsible for designating land parcels into one of four classifications: urban, rural, agricultural or conservation, while detailed permitting was left to the counties. The process dictated significant state oversight, and ample opportunities for communities to consider what was appropriate for their respective neighborhoods, so there was a lot of buy-in. It was, after all, the initial post-statehood period; the Islands were experiencing relatively large growth, and, at the time, county governments were ill equipped to make appropriate land-use decisions.

However, 43 years have passed, and times have changed drastically. Which begs the question: Is it time to take a fresh look at Hawaii’s land-use process, and reevaluate our assumptions about what constitutes appropriate land planning? The answer is a resounding, Yes. While they might not agree on much else, developers, environmentalists and government officials concur – there are serious inefficiencies in Hawaii’s land-use process, and the time for change is now.

WHY CHANGE? WHY NOW?

As with anything else, the push to revise Hawaii’s land-use planning process ultimately comes back to money. The argument has been made that many of the issues addressed at the state level are duplicated in applications to county planning departments, resulting in additional time, resources and money spent on any development project. “The entitlement process is redundant and time-consuming, and time is money,” says Peter Young, director of the Department of Land and Natural Resources. “The cost associated with the current land-use process is more money, and to assume that the developers are going to absorb all of those costs is naïve. Whether it’s a residential, commercial or resort development, those costs get passed on to consumers.”

Coppa says the commission doesn’t issue permits as the county does, therefore, there can’t be any overlapping requirements. But developers say the redundancies are in the excess of “conditions” the commission puts on projects – conditions that are often required at the county level, as well. “Having to show that there’s adequate water, sewer, roadways, the environmental impacts – those are all things we have to do twice, and I’m not sure that going through some processes two or three times does anything other than add costs,” says Harry Saunders, president of Castle & Cooke Homes Hawaii Inc.

Castle & Cooke recently fell victim to the state’s cumbersome entitlement process, when, after the LUC reclassified hundreds of acres of land from “agriculture” to “urban” for the company’s master-planned community project in Waipio, the decision was reversed by Circuit Judge Elizabeth Hifo, due to the lack of an Environmental Impact Statement (EIS). “So great, we spent two years and a million dollars, and now we have to spend that million again, and pass that cost directly to the homeowners,” laments Saunders. “I don’t blame the commission, just the process. There needs to be some clarity on the rules and role of the commission, and if there can be a minimizing of redundancy, that’s even better.”

He and others are seeking clarification of Hawaii’s land-use laws so that the LUC has clear and defined criteria with which to make decisions. The current laws are ambiguous and open to interpretation, so decisions are often contested and sometimes appealed to Circuit Court for a final ruling. Many feel that a system in which judges are ruling on land-use policies is inefficient and uncalled for.

Craig Watase, president of Mark Development Inc. and immediate past president of the Building Industry Association-Hawaii, says roughly 80 percent of the requirements at the state and county levels are the same, and they’re a detriment to Hawaii’s housing market. “The duplications mean it takes a developer an average of seven years to go through the entitlement process, greatly increasing the cost of homes in Hawaii. And people wonder why there’s an exodus of locals – it’s because people can’t afford to live here anymore.”

Gov. Linda Lingle agrees that streamlining the permitting and land-use process is an essential part of addressing Hawaii’s housing predicament. “Our duplicative, time-consuming and expensive state/county permitting and approval process is not conducive to the production of affordable housing,” she says. “Eliminating duplication and providing the state with more of a policy role, and less of a zoning role, should benefit efforts to reduce the cost of constructing new homes over the longer term.”

HEADED HOME

Public dissatisfaction with the state’s land-use process is hardly new. The process has been under scrutiny for almost as long as the laws have been around, with different groups calling for varying degrees of change. In the late ’90s, the harshest critics, led by the Economic Revitalization Task Force, suggested abolishing the LUC altogether. Today, few are calling for an elimination of the commission, but most agree, that land-use laws should be streamlined, and the roles of the LUC and county planning departments need clarification.

“What we want is to provide some certainty to the process. We don’t want an open-door policy where you can just develop on a whim. Good judgment and planning need to be exercised, and people should have the ability to raise legitimate issues,” says Dean Uchida, executive director of the Land Use Research Foundation, a lobbying group for developers and landowners. “But have the process established so that once decisions are made, we don’t keep putting barriers up, and it isn’t a repetitive process.”

Perhaps the most widely suggested solution is home rule – the theory being that lawmakers directly responsible for managing county funds, lands and resources, are in the best position to plan and manage the process. “The counties manage the results of the developments, including water, sewers and traffic, so they should be the ones to decide what’s appropriate,” says Uchida. “Also, when you look at urban planning, the counties have the state licked. The state doesn’t have urban-planning departments like the counties, so the state shouldn’t be doing it.”

Having served as both councilperson and mayor of Maui County, Lingle believes counties are capable and should have control over their own lands, and has long been a proponent of home rule. Cabinet-member Peter Young agrees, claiming that county planning departments were in their infancy when the commission was formed in 1961. “Over 40 years have passed, and, in that time, local planning departments have grown in their sophistication, capabilities, technologies and abilities to deal with their communities,” he says.

Even LUC vice chair Coppa favors home rule. “I agree, I don’t think everything should come in front of the commission. The commission meets when petitions [for land reclassifications] are requested. The counties deal with it every day – it’s where the rubber meets the road. If the counties are willing to take on the responsibility of determining where the ag and rural centers should be, then they should have that responsibility,” says Coppa. “But I think ultimately, they should come back to the LUC for an overview. And if the commission agrees, end of story.”

Most of those in favor of home rule, including Coppa, believe that the commission should play a larger role in reviewing policy, and, more importantly, looking at the big picture in terms of protecting Hawaii’s natural resources. Andrew Hashimoto, dean of the University of Hawaii’s College of Tropical Agriculture and Human Resources, says a proposal being put forth by the Agriculture Working Group (AWG) would accomplish just that. Comprised of farmers, developers, government officials and landowners, the AWG, in 2003, drafted a legislative package addressing land use, and in particular, preserving prime agriculture lands.

As of press time, the AWG hadn’t yet hammered out the specifics of the proposal, but, according to Hashimoto, the group’s proposed system for land use is as follows: First, the Legislature must be tasked with defining better standards and criteria in regard to land classification. Using those criteria, the counties would then determine what constitutes important agriculture lands and what is suitable for development. Finally, the counties’ recommendations would be sent back to the LUC, which serves as a system of checks and balances, reviewing the counties’ recommendations and ensuring that they comply with the criteria set forth by the Legislature.

Hashimoto says this does two things: clarifies the roles of both state and county planning offices, and better allows the counties to determine which of their lands is actually “prime” agriculture land. Currently, 5 percent of Hawaii’s 4 million acres of land is classified as urban and rural, 48 percent is as classified conservation and the remaining 47 percent is in agriculture. However, of the 1.9 million acres classified as agriculture land, it is estimated that less than half of the land can actually be used for agriculture. According to DLNR’s Young, various studies done between the ’70s and ’90s show that the total amount of land capable of sustaining viable agriculture is between 400,000 and 800,000 acres. The reason being, the agriculture classification has been used as the state’s catch-all – when it was unclear what a piece of land should be designated, it was thrown into the ag category by default.

Hashimoto says it is important to identify Hawaii’s “prime” agriculture lands, so that the state can sustain a successful and profitable agriculture industry in years to come. On that note, a second component to the group’s proposed package includes offering farmers incentives, so they can actually produce viable agriculture on lands designated as prime.

However, the group’s proposal, which, as of press time, was “generally supported” by Lingle, has raised concerns and suspicion among environmental groups. “There are a lot of large landowners involved with the Ag Working Group, and we really hope they stay focused on agriculture,” says Jeff Mikulina, director of the Hawaii Chapter of the Sierra Club. Some view all the renewed efforts to uphold Hawaii’s constitutional mandate to preserve and protect important ag lands as a backhanded way of opening up more lands for development.

“We agree in theory with the proposal the Ag Working Group is putting together, but we get nervous when it’s proposing to open up lands they did not designate as important and throw them to the counties for decision making,” says Mikulina. “Too often we see developers getting very cozy with the county-level decision makers, and inappropriate developments being approved.”

The Sierra Club, which was actually involved with the AWG in its infant stages, believes major changes aren’t necessary to the current land-use system, and that change will result in less transparency in the process. The environmentalists, with all their good intentions, are the obvious underdogs.

“Right now, I think most people are hoping for some change, because we can’t continue to have judges ruling on our land-use process. It just makes a mockery of, not only the land-use commission, but the counties’ responsibilities as caretakers of their own lands,” says Coppa. “Ultimately, the Legislature is going to have the responsibility of making some policy changes – whether that’s giving home rule, redefining classification criteria or making some of the laws more clear. I doubt we’re going to get all the changes everyone wants, but something does need to come out of the Legislature that starts to show that its hearing what the people are saying – they want change.”

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