GaryHooser's Blog

In an effort to clear out my brain, I am compelled to think it through, and put down my thoughts in writing.

If you’re someone who likes to get into the weeds, you might enjoy the reading – Others maybe not so much 😉

A huge part of the problem with Act 39 is the complexity and its many moving parts. My guess is as this moves through the various County Council processes toward implementation, different lawyers will weigh in over time with different opinions.

Act 39’s primary author has stated that (the additional ADU component of) Act 39 does not impact Kauaʻi County because Kauaʻi has in place an ARU ordinance.

In Kauaʻi County, additional Rental Units (ARU’s) are permitted on residential lots in addition to the single ADU or Additional Dwelling Unit that’s also now allowed.

However Kauaʻi ARU’s by ordinance are limited in size to 800 square feet, may not be “CPR’d” and sold separately, may not be used as a short-term vacation rental, and must be for family use or rented long-term.

Why similar provisions were not placed on the proposed new density contained in Act 39 I do not know. But apparently because Kauaʻi has the ARU law in place, that’s sufficient to satisfy the requirements of Act 39 which says, “each county shall adopt or amend ordinances defining reasonable standards that allow for the construction of at least two accessory dwelling units, or the reasonable equivalent,”.

Again, I’ve been told by Act 39’s primary author that the Kauaʻi ARU ordinance (described briefly above) satisfies the requirements of Act 39 and that Kauaʻi will not be impacted by the specific requirement requiring the addition of one additional ADU.

I suppose the Kauaʻi Council could allow property owners to “opt out” of accepting ARU’s and instead “opt in” to building the second ADU that can be a larger “proper” home and not include the restrictions that control/limit ARU’s. But for the moment, according to Act 39’s main proponent, Kauaʻi residents will not be granted the additional ADU as described in Act 39.

And/or the courts could rule that ARU’s because of their restrictions are not “reasonably equivalent” to an ADU. In that case, Kauaʻi property owners could possibly receive both an additional ADU AND the ARU’s permitted by Kauaʻi ordinance. FYI that would = 6 total units on one lot (3 ADU’s and 3 ARU’s). That would certainly open still yet another can of worms.

Whew. Head spinning stuff.

So…(caveat – I am not a lawyer)…if it’s true that ARU’s as implemented in Kauaʻi County are “reasonably equivalent” then other County Councils can if they choose, comply with Act 39 by implementing a similar ARU law with similar restrictions and limitations.

Some have asked me to clarify how I came to the conclusion that the passage of Act 39 is a windfall for property owners and developers, and how it is that they make money instantly without doing anything at all.

Here it is in a nutshell:

Government, via Act 39, is giving property owners and developers the right to build an additional home on their property above and beyond what they were able to build prior to the law passing. This additional density has significant financial value, yet (unlike the ARU law cited above) there’s no assurance or requirement there will be a reciprocal public benefit in return.

NOTE: Because of the Kauai “ARU” twist and if in fact Act 39’s additional ADU provision does not apply to Kauaʻi County – then the below example does not apply in the same way to Kauaʻi County as it may in other County’s.

But here goes:

Take a fictional 1/4 acre lot valued at $400,000. That pre Act 39 lot was allowed to have two homes (primary dwelling and an additional dwelling unit). After the passage of Act 39 that same 1/4 acre lot is now allowed three homes, and consequently now automatically worth more money. It may be worth $100,000 to $200,000 more.

The owner of that property has done nothing to “earn” that extra money and it is in fact a financial windfall. The owner could immediately sell the lot and pocket the extra money, land bank it for his children, or develop the property with three homes and sell those 3 individual homes at market rates – making even more money. The owner is required to do absolutely nothing in return for the $100,000 to $200,000 in immediate profits that come with the passage of Act 39.

The legislature could have required that same lot owner to do certain things in return for the extra $100,000 to $200,000. They could have required the owner to actually build within a certain time frame, and to target a specific use or price point.

Provisions could have included for example: Only property owners who agree to build an additional dwelling unit within X years, and dedicate the use of that unit for either family occupancy or long term rental for at least X years – then and only then would that owner can gain the benefit of extra density valued at $100,000 to $200,000.

There are infinite variations of this theme including prohibitions against short-term vacation rentals, immediate “flipping” and selling the property, etc etc

However – Act 39 contains no requirements whatsoever while the property owners receive an immediate and significant financial benefit.

In my opinion, lawmakers should never give away tangible and monetary public benefits without a promise of something of tangible value being received by the public.

More clarifying thoughts on the Act 39 component that takes away the Kauaʻi Planning Commission’s authority to approve subdivisions in the urban district:

Supporters of Act 39 have attempted to emphasize the Kauaʻi Planning Commission’s apparent failure to deny subdivision applications in the past.

Whether or not this is true, I do not know. But I do know the Kauaʻi Subdivision ordinance clearly grants to the Commission the power and the legal authority to significantly influence a subdivisions character and physical design/map.

The Commission is further empowered by the Kauaʻi Subdivision Ordinance to require subdivisions to provide public access, and they have the power to influence the subdivision map and ultimate design of the subdivision relating to roadway access.

According to the Kauaʻi Subdivision ordinance, the Commission “…may deny any subdivision if a traffic problem would be created due to the inadequacy of existing public streets…”.

Further, the community process that’s required now by law helps ensure that public access to public lands mauka and makai, and to protect historical and cultural resources.

With the passage of Act 30 the Kauaʻi Planning Commission will lose its authority to approve subdivisions in the urban district (with some caveats), and the community likewise will lose its power to influence the process via public Commission meetings. They will also lose the right to file a “contested case hearing” which allows closer examination of the facts and process.

Bottom line: The Kauaʻi County Charter (unlike all other County Charters) grants the power of Subdivision to the Planning Commission and Act 39 takes away that power. While some individual commissioners may have been aware of SB3202, the Commission itself was never appropriately informed.

The Sunshine Law requires public notice and a public meeting in order for more than two members of the Commission to meet on issues pertaining to their actions and authority. No public meetings occurred, and thus unless the Sunshine law was violated, a majority of the Commission was not consulted nor informed of the pending change.

As I’ve stated in prior reviews of SB3202 – discussing and debating the plusses and minuses of the Planning Commission process is a valid and necessary conversation that should have been had. But because the Commission was not appropriately notified, that conversation was never able to occur.

Finally, if the primary motivation to enact Act 39 was the desire to speed and simplify the process for local families seeking to simply divide their existing homestead into two lots for their children or parents or grandparents to use – the proponents behind SB3202 could have limited the subdivision approval changes only to proposals of that nature. But they did not.

And…as I’ve stated over and over again during my past 20 years working in the arena of policy and politics:

Good people can look at the same facts and circumstances, and come to different conclusions.

https://www.capitol.hawaii.gov/sessions/session2024/bills/SB3202_CD1_.htm

Governor Green has signed SB3202 into law. This new law effectively circumvents the Kauaʻi County Charter by transferring the power of subdivision approval in the urban district, from the Planning Commission to a single individual, the Kauaʻi Planning Director.

The Charter says “…no land may be subdivided unless the proposed subdivision plans…have been approved by the planning commission.”

Below are just a few of the specific powers granted to the Planning Commission under the current Kauaʻi Subdivision ordinance.

“…shall approve, approve with condition or disapprove preliminary subdivision map…(and ultimately)…the final subdivision map”

“…may deny any subdivision if a traffic problem would be created due to the inadequacy of existing public streets…”

“…shall require…(dedication of) land for public access…preservation of significant historic and archaeological sites…”

“All decisions of the Planning Director…may be appealed…to the Planning Commission…”

“…may require the conveyance of a right-of-way …along the makai boundaries…(and) require lateral access…”

With the passage into law of SB3202 it’s now unclear if these specific powers (and others) will be retained by the Commission, transferred to the Director, or eliminated all-together.

SB3202, says “any administrative authority to accept, reject, and approve or deny any application for subdivision…within the state urban district…shall be vested with the director of the county agency responsible for land use or a single county officer…”.

Changes to the County Charter normally require multiple public hearings, placing the question on the ballot, and a vote by the people.

However the state legislature has via SB3202 effectively over-ridden the Kauaʻi Charter, without the people of Kauaʻi even knowing what was happening.

Another one of those “can’t make this stuff up” moments.

Clearly, the Planning Commission should have been informed of the pending proposal and formally asked for an opinion.

But they were not.

Obviously Kauaʻi Representative Luke Evslin as the primary architect of SB3202 knew about the strategy and the end-game. Recently released UIPA (freedom of information request) emails show also that Kauaʻi Planning Director Kaʻāina Hull was a strong supporter and active in conversations leading to its passage.

Yet there’s no record of any communication between the Planning Commission and Planning Department referencing SB3202, and no indication the Commission knew about its implications.

The Kauaʻi Charter also says “The Planning Director shall be appointed and may be removed by the commission.”

This begs the question – How come the boss wasn’t made aware of a pending proposal to decrease the boss’s authority and power?

The only legal way the Commission could have discussed SB3202 is via a publicly noticed meeting which did not happen.

The same UIPA obtained emails show U.S. Senator Brian Schatz was also part of these conversations along with his Senior Policy Advisor Michael Dahilig (who served under Mayor Kawakami as Managing Director, and as Kauaʻi Planning Director).

The question as to the effectiveness of the Planning Commission and the wisdom of transferring its power to approve urban subdivisions to the Planning Director is a legitimate one – but the process utilized to pass SB3202 – reeks.

SB3202 is basically an “end-around” citizen participation.

I have no doubt the individuals driving this effort believe it’s necessary to improve the process, speed development, and avoid the hours and hours of contentious public testimony that sometimes occurs at Planning Commission meetings.

But Kauaʻi residents and the Planning Commission itself should have been part of the conversation.

But they weren’t.

The impact of SB3202 on the subdivision process and County Charter is not incidental nor unintentional.The key supporters were aware the obtuse language in SB3202 would circumvent the Charter, reduce the Planning Commissions power, and increase the power and authority of the Planning Director.

Now what?

This whole bag of worms will no doubt now go to court, and to the Kauaʻi Council. What happens in the meantime is anyones guess.

Gary Hooser
First published 05/29/24 in The Garden Island

Note: Sign up for my somewhat unconventional email newsletter (though it’s not really a newsletter but I don’t know what else to call it) – Policy & Politics at https://policy-and-politics.mailchimpsites.com

Governor Green has announced that on Tuesday May 28th he will be signing SB3202 and throwing local planning, local communities, and Kauaʻi County particularly – under the bus.

He will be joined in the festivities by U.S. Senator Brian Schatz, State House Housing Committee Chair Kauaʻi Rep. Luke Evslin, and Senate Housing Chair Senator Stanley Chang.

There will be laughing and smiling, backslapping, and high-fives all around as they congratulate each other on yet another “historic bill” that increase profits for property owners and developers, make neighborhoods everywhere more crowded, creates no affordable housing whatsoever, and takes away the right of Kauaʻi County in particular to manage it’s own subdivision process.

Another one of those “can’t make this stuff up” moments.

The Kauaʻi County Charter contains language not contained in the Charter of other County’s – Section 14.09. says “…no land may be subdivided unless the proposed subdivision plans…have been approved by the planning commission.”

However, SB3202 mandates the power of subdivision approval in urban districts must reside in a single individual, the Planning Director.

Changes to a County Charter normally require multiple public hearings, placing the question on the ballot, and a vote by the people in the affirmative.

The supporters of SB3202 don’t seem to care what the County Charter says, or about the citizen-based process normally needed to make changes to it.

They want to make the decision-making “ministerial” so developers will just check-off the boxes and presto, their permits will be granted. Taking away the Planning Commission power will make things much easier and get rid of those trouble-making citizens asking pointed questions at public hearings – about traffic impacts, beach access, historical or cultural preservation etc.

The supporters of SB3202 know full well what they’re doing. The impact of SB3202 on the Kauaʻi County subdivision process is not incidental or unintentional. According to internal emails, this strategy has been discussed by its supporters since at least August of 2023.

SB3202 is basically an “end-around” citizen participation, and bypasses all of the standard procedures normally required to amend the Charter.

Yes, the powers-that-be will be celebrating on Tuesday. They pulled it off (wink wink)! They pulled it off without the Kauaʻi Planning Commission or the people of Kauaʻi even knowing what was happening – until it was already a done deal.

The question as to the effectiveness of the Planning Commission and the wisdom of transferring its power to the Planning Director is a legitimate one – but the process utilized by SB3202 reeks of impropriety and insider influence.

The public should have been properly informed and allowed appropriate opportunities to weigh-in on the matter.

The Planning Commission should have been informed of the pending proposal and formally asked for their opinion.

But they were not.

Obviously Kauaʻi Representative Luke Evslin as the primary sponsor of the bill knew about the strategy and the end-game. Recently released UIPA emails clearly show also that Kauaʻi Planning Director Kaʻāina Hull was an active participant in the conversations leading up to the measures final outcome.

In addition, it’s come to light recently that U.S. Senator Brian Schatz is also a player along with his Senior Policy Advisor Michael Dahilig and other members of his staff.

Before joining Senator Schatz, Dahilig was the Kauaʻi County Managing Director, and before that the Kauaʻi Planning Director.

Yes, all of these gentlemen were aware the somewhat obtuse language in SB3202 would circumvent the County Charter and reduce the power and authority of the Kauaʻi Planning Commission – but none of them bothered to inform the Commission, let alone inform the general public.

In another provision unique to the Kauaʻi Charter is Section 14.04. “The Planning Director shall be appointed and may be removed by the commission.”

This implies the Kauaʻi Planning Director works under the authority of the Planning Commission and begs the question – How come the boss wasn’t made aware of a pending proposal to decrease the boss’s authority and power?

Some will argue the Planning Commission serves a useful purpose and others will say it’s a waste of gas.

The residents of Kauaʻi and the Planning Commission itself should have been able to have that conversation.

But they weren’t.

Clearly the fix is in and the deal is done.

But it’s still worth a call to Governor Green (808) 586-0034. SB3202 is a bad bill. It’s bad policy, and very bad politics – and he should veto and not sign it into law.

Please – make the call. Polite and professional please. Do it now, over the weekend and you’ll likely get voice-mail anyway – so it’s easy and you will feel good having done so.

Gary Hooser
Kauaʻi resident
Former State Senator representing Kauaʻi
Former member of the Kauaʻi County council
Sign up for my somewhat unconventional email newsletter (though it’s not really a newsletter but I don’t know what else to call it) – Policy & Politics at https://policy-and-politics.mailchimpsites.com

The Pacific Missile Range Facility Barking Sands (PMRF) Environmental Impact Statement Preparation Notice (EISPN) is out, and at first read seems woefully inadequate.

See for yourself, https://pmrf-kpgo-eis.com

The U.S. Navy on Kaua‘i holds various lease’s and easements giving them control of approximately 8,000 acres of state public lands on the west side of Kaua‘i, begin expiring in 2027. The Navy wants to either buy the land or extend the leases.

The PMRF situation is similar to what’s unfolding now at Pohakuloa Training Area on Hawai‘i island, and at Kahuku, Kawailoa-Poamoho, and Makua.

The Army pays $1 per year for a 99 year lease of 30,000 acres at Pohakuloa.

Is the U,S. Navy getting the same sweet deal for the lands around PMRF?

Unfortunately, we don’t know because an actual copy of the existing lease doesn’t seem to be included in the EISPN.

The EISPN describes PMRF as: “The world’s largest instrumented multi-domain range capable of supporting surface, subsurface, air, and space operations simultaneously.”

An honest review of impacts (which this is not) would address the fundamental question, “To what degree does the presence of PMRF impact the likelihood of Kaua‘i being a military target and attacked by a foreign power?”

Of course this question is not asked, nor referred to whatsoever.

The EISPN discloses “Activities on the leased parcels at the Main Base include ordnance assembly.”

It states, “Explosives storage and munitions assembly locations have ESQD arcs for explosives safety zones based on quantities and types of ammunition stored in magazines, being transported, and staged on ordnance handling pads.”

Kamokala Ridge “provides ordnance storage for the Navy, Hawai‘i Air National Guard, Department of Energy, and other military commands.”

But nowhere is there any discussion on the type or amount of bombs, bullets, or missiles used, launched, shot, or exploded.

Are uranium tipped rounds, phosphorus bombs, nuclear, chemical, laser or other weapons stored, transported or used in the “surface, subsurface, air, and space operations” being conducted on Kaua‘i?

The purpose of an EIS is to examine direct, indirect, secondary, and cumulative impacts of the action being proposed, and how those impacts might be eliminated or mitigated.

The EISPN states, “PMRF is operated by the U.S. Navy and also provides training and testing services to U.S. Marine Corps, U.S. Air Force, U.S. Army, U.S. Coast Guard, U.S. Allied partners (Japan, Australia, Korea, Canada, etc.), the Missile Defense Agency (MDA), and the Defense Advanced Research Projects Agency (DARPA).”

Nowhere in the EISPN is the impact of training foreign armies mentioned, let alone what impact an organization such as DARPA might have.

“PMRF transports ordnance by truck from Nawiliwili Harbor to the Main Base along Highway 50.”

What’s the risk to residents living along the route? Are they notified in advance? What exactly is in those trucks?

The EISPN also says “Hazardous materials currently utilized…include cleaning agents, solvents, lubricating oils, jet fuel, diesel fuel, propane, gasoline, aqueous film forming foam2 (AFFF), chlorine, used oil, and paint.”

A glaring omission from this list are the ingredients necessary for “munitions assembly” and ordnance storage, use, and clean up.

Honestly, there are way too many glaring omissions for me and I have zero confidence the U.S. Navy will provide the genuine and honest disclosure needed for me or anyone to make an informed responsible decision.

So, I’ll be supporting the “No action alternative.”

Gary Hooser
Former State Senator representing Kauai and Niihau
First published in The Garden Island newspaper 05/23/24

Growing up, I remember my mother would sometimes say, “If they’re willing to lie, they’re also willing to cheat and steal.”

Mark Twain more famously said, “There are three kinds of lies: lies, damn lies, and statistics.

Such describes the content of the opinion poll reported on in todays newspaper. The poll by the way was conducted by SMS research “through Peters Communications”. Shane Peters is frequently cited as being the “communications adviser” for Utah owners/developers of the proposed Coco Palms Hotel.

Translation: Coco Palms Developer Reef Capital, hired Peters Communications to hire SMS Research, to conduct a poll of Kauaʻi residents that shows the proposed Coco Palms Hotel development is popular and has broad community support. So they did.

They framed just the right questions and then cherry-picked the responses of course.

“As demolition work progresses on the Coco Palms Resort, a new poll shows robust support for the restoration of the once-renowned property that was destroyed by Hurricane Iniki in 1992.” Says the newspaper article and press release.

The article quotes the Utah developer at length but unfortunately does not describe or quote for readers the actual questions in the poll upon which the conclusion of “robust support” was based.

I happened to be one of the Kauaʻi residents who received the poll in the mail. Here is the exact question that was asked in the poll from which the conclusions of “robust support” is drawn. (see page of actual poll questions copy at bottom)

14. If Coco Palms can only either be restored or left in its current condition, which of those two options would you prefer?

Restore property
Property remains in current condition
Don’t know

The Utah developers gleefully reported in the newspaper that “The SMS Research Poll found that 61 percent of the people surveyed said they support the restoration effort. A total of 24 preferred the property remain in its current condition, while 15 percent said they did not know.”

This question is obviously designed to intentionally and fraudulently create an impression of strong public support for a hotel development.

The person responding to the poll question has only two real choices, “restore the property” and “property remains in current condition” –

Duh. Most people clearly do not want the property to remain in its current condition. But people were not given any other option like “demolish the existing structures and convert the property to a community park and cultural center.” Actually “restore the property” could be interpreted as get rid of the hotel and restore the fishponds and restore the lands as they were before the hotel.

Question #14 was clearly designed to achieve what the Utah developers wanted to achieve – and it did.

Intentionally misleading is close enough to lying for me to tell you my mother would say the Utah developers are liars, cheats, and crooks.

The word fraud and fraudulent come to mind. Oh almost forgot, did I mention that one of the representatives of the Utah developer was actually convicted of fraud in a federal court?

Another question asked in the actual poll but conveniently not mentioned in the Utah developer’s press release was:

12. Turning to community issues, new owners of the Coco Palms are planning to restore the property. Do you support or oppose the rebuilding of Coco Palms?

Strongly support
Somewhat support
Somewhat oppose
Strongly oppose
Don’t know

Why wasn’t the community polling response to this question referenced or revealed? The answer of course is because the Utah developers don’t want you to know how the community really feels about their project.

#disgusting

What is also deeply troubling is the polling company SMS Research submitted a summary of the poll as testimony to the BLNR in support of the Utah Developers hotel proposal. Nowhere did they disclose in their testimony who paid for the poll. Their testimony also only referenced the response to question #14 and again ignored totally any mention of the results to question #12.

Read the SMS testimony here: https://dlnr.hawaii.gov/wp-content/uploads/2024/04/D-1T-1.pdf

My mother would be shocked, appalled, and disgusted by the actions of these Utah developers and their local enablers.

You should be too.

Gary Hooser
Private Citizen not speaking on behalf of any organization

The 2024 legislative session is over.

Thousands of bills were introduced, hundreds were passed into law.

Surprisingly, state law-makers took a meaningful step in the right direction on what I believe is the most important issue of our time.

The most important issue of our time –

During the final weeks, the legislature debated and passed SCR13, a Resolution stating Hawaiʻi’s official position on war and peace in Israel and Gaza – supporting a full and permanent ceasefire in the region.

SCR13 was introduced by State Senator Maile Shimabukuro and supported via well organized grass-roots citizen advocates. Regular folks in the community helped write the early drafts and then pushed hard, and kept pushing hard, and then pushed hard again, and again – until the Resolution was passed.

Our legislators took a rather bold step passing the Gaza ceasefire Resolution and we should thank them profusely for that.

We should say mahalo plenty, and we should ask them to now go a step further and declare their support for reducing the U.S. military footprint globally – starting here at home with closing down completely the U.S. Army Pōhakuloa Training Area on the Island of Hawaiʻi, and the lands at Kahuku, Kawailoa-Poamoho, and Mākua.

The same request must be made to our 4 member Congressional delegation.

Hawaiʻi can, should, and must say officially and out loud what most people are thinking in every corner of our world. “Thinking global and acting local” is more relevant now than ever before.

We must get off this dangerous path of mutual destruction. Our global conversation must shift to discussions of peace, diplomacy, mutual aid, and friendship.

If you’ve read this far, then it’s clear we share a common goal – to help make our community and our planet a better place.

So please join with me now in taking these next two steps:

First: Contact our 4 person Hawaiʻi Congressional delegation and ask them to support ending the military leases at Pōhakuloa, Kahuku, Kawailoa-Poamoho, and Mākua.

U.S. Senator Mazie Hirono 808-522-8970,
U.S. Senator Brian Schatz 808-523-2061
U.S. Rep. Ed Case (CD1 urban Oahu) 808-650-6688
U.S. Rep. Jill Tokuda (CD2 rural Oahu, neighbor-islands) 808-746-6220

Next: Identify your district State Representative and Senator and reach out to them with the same message. Here’s an easy tool if needed: https://www.capitol.hawaii.gov/fyl/

Remind them if necessary that there are already 14 different military bases in the islands, over 750 U.S. military bases in at least 80 countries around the world, and the U.S. spends more money on guns, bombs, missiles, ships, and soldiers, that any other country on the planet – more than China, Russia, India, Saudi Arabia, the U.K., Germany, France, South Korea, Japan, and Ukraine combined (according to globalaffairs.org).

Remind them also about the thousands of acres of once pristine Hawaiʻi lands now littered with unexploded ordinances and the discarded toys of war. Show them the recent headlines detailing the contamination of our drinking water, the travesty which defines Red Hill, and the long list of broken promises made by the U.S. Military.

Please take note of their response. Call them back a second, or third time if necessary to get one.

Every single person serving in public office will say they support affordable housing, education, and environmental protection. It’s only a rare few who will have the courage necessary to publicly support reducing the U.S. Military’s foot-print in our islands.

And those few are the ones we desperately need.

Gary Hooser

Written for and published first on May 18, 2024 in the Hawaii Filipino Chronicle

NOTE: Read, share, and take action by submitting your written testimony supporting the “No Action Alternative” for the Pōhakuloa Training Area (PTA) no later than June 7.

This is an issue relevant and critically important to all Hawaii and all islands.

Please take the time and say NO to lease extensions, NO to ongoing military training​, NO land swaps, and YES to restoration and clean up of Pōhakuloa, and YES to reparations to Hawaiians for destroying their lands.

Comment via email to: ATLR-PTA-EIS@g70.design
Read the EIS and other Army info here:
https://home.army.mil/hawaii/ptaeis/project-home

While you are at it – Offer testimony to: info@PMRF-KPGO-EIS.com and attend the public scoping meetings regarding the Environmental Impact Statement (EIS) associated with the continuing the long-term U.S. NAVY PMRF use of 8,348 acres of State lands on Kauai.

https://www.federalregister.gov/documents/2024/05/09/2024-10167/notice-of-intent-to-prepare-an-environmental-impact-statement-for-pacific-missile-range-facility-and

Public scoping meetings are planned as follows:
June 4, 2024, from 5:00-8:00 p.m. HST at Kaua’i Veterans Center
June 5, 2024, from 5:00-8:00 p.m. HST at Kekaha Neighborhood Center
June 6, 2024, from 5:00-8:00 p.m. HST at Sheraton Coconut Beach Resort

One of the most important laws on the books is HRS343 also known as the Hawaiʻi Environmental Protection Act (HEPA). Included in my now 70 years of life experience was a stint in 2012 as Director of the Office of Environmental Quality Control (OEQC), the agency responsible for administering this law.

In short, HRS343 requires under certain circumstances a thorough environmental review of a proposed project or “action” prior to its start. The highest level of review would be a requirement that the agency and/or developer prepare and have approved/accepted an Environmental Impact Statement (EIS).

During my term as OEQC Director, our office literally “wrote the book” – Guide To Implementation And Practice Of The Hawaiʻi Environmental Protection Act.

So yes, I’m somewhat familiar with Chapter 343.

On April 30, 2024 the Intermediate Court of Appeals (ICA) overruled a 5th Circuit Court decision which previously concluded the State of Hawaiʻi and Syngenta were exempt from conducting a Chapter 343 environmental review of pesticide intensive seed corn research being conducted on State owned lands.

The ICA decision basically means the State of Hawaiʻi was wrong in allowing an exemption and therefore a review of potential environmental impacts must be conducted.

It’s a huge win for health and the environment, shepherded through the complex legal process by attorneys Lance Collins and Bianca Isaki on behalf of a hui of Kauaʻi community groups including HAPA, Surfrider Foundation, Ke Kauhulu O Mānā, Koholā Leo, and Native Hawaiian cultural practitioners, including Punohu Kekaualua.

An Environmental Assessment (EA) is the appropriate next step. EA’s are meant to review and disclose environmental and health impacts likely to occur on the lands being reviewed. Should that review indicate potentially significant impacts – a full EIS would then be required.

This is the same information sought by the infamous 2013 Kauaʻi County Bill 2491 which essentially said, “Disclose the chemicals and pesticides you’re using so the impact on public health and environment can properly be determined.”

Speaking of disclosure, the author of this column Policy and Politics was a Kauaʻi Councilmember, co-author of Bill 2491, and now president of HAPA.

In 2014 the courts ruled Bill 2491 invalid because state law preempts county law.

Fast forward 10 years and voila! HRS343 is a State law and to comply requires disclosure AND a thorough evaluation of health and environmental impacts.

While Syngenta contracted its operations to Hartung Brothers in 2017, requirements of the law remain the same. Hartung utilizes the same pesticides, also conducts research and development, and is located on the same sensitive state coastal lands.

For the moment, “next steps” remain in the attorneys hands.

To better understand the beauty and power of Chapter 343, read on.

“All exemptions…are inapplicable when the cumulative impact of planned successive actions in the same place, over time, is significant, or when an action normally insignificant in its impact on the environment may be significant in a particularly sensitive environment.” Section 11‐200‐8(b)

“The agency must consider the sum of the effects on the quality of the environment…the expected direct and indirect consequences, the cumulative, short‐term and long‐term effects of the proposed action.” HEPA Guidebook

Some noteworthy court decisions:

2009 Unite Here! Local 5 v. City and County of Honolulu and Kuilima Resort – The Turtle Bay expansion project must do a supplemental EIS; it could not rely on a 20 year old EIS.

2008 ‘Ohana Pale Ke Ao v. Board of Agriculture – HEPA required the preparation of an EA for importing and growing genetically engineered algae because it involves a use of State land and was not within the scope of prior NELHA EIS’s.

2007 Sierra Club v. Department of Transportation – (Superferry 1) DOT erred in finding exempt Superferry dock improvements without considering whether environmental impacts of the whole Superferry operation, secondary, as well as primary, would be significant.

“Affordable Housing – Yes in my backyard” was the title of something I wrote 6 months ago on the topic of affordable housing. https://garyhooser.blog/2023/11/02/affordable-housing-yes-in-my-backyard/

To be absolutely clear, I support urban redevelopment and the general concept of increasing density in existing urban areas.

But this one-size-fits-all approach of SB3202 is bad, bad, bad.

For example adding density to Līhu’e on Kaua’i where the population consists of predominantly local residents will likely (likely but not guaranteed) lead to increased housing for local people.

But adding density to Kōloa, Poʻipū, Hanalei and other similar areas, will likely lead to housing for retirees from the continent, second homes for the wealthy, and more vacation-rentals.

The same is true for every Hawaiʻi island.

Some towns in existing urban districts have sufficient infrastructure, roads, bikeways, sewers, employment centers, schools, entertainment, shopping and dining venues – and many do not.

We certainly don’t need state government issuing blanket decrees requiring increased development for each of our unique and very special counties.

Better community planning via top-down state government mandates? I think not.

Yes, SB3202 gives each county some planning latitude but at the end of the day it’s still the state requiring increased growth via increasing density – whether the county and the residents want the additional growth or additional density, or not.

The way SB3202 is written the sales price or rental rates of the new homes developed on the new density will be whatever the market will bear. There are no requirements for affordability – none.

Giving increased density to land owners and developers is a huge gift that immediately increases the value of their property – and should have strings attached.

It’s incredibly naive or blatantly corrupt to give away the benefits of public policy to increase the wealth of those already wealthy – without requiring public benefits in return.

In exchange for the gift of additional density, lawmakers could and should have required property owners to abide by conditions such as:

* Develop homes intended for local residents within X years or “lose” the additional density benefit (no land-banking)
* Agree to build units targeting specific affordable wage earners such as 100% of median income and below.
* Prohibit the additional density from being used for short-term rentals
* Prohibit the resale of the homes or parcels generated by the extra density allowance, except under affordability conditions designed to keep it affordable. (no speculative “flipping”)

If the land owners and developers prefer not to abide by the conditions, then they can of course decline the gift of extra density being offered by government.

Buried in the language of SB3202 is also a provision that uniquely impacts Kaua’i. The bill actually takes away the Kaua’i Planning Commissions existing authority to approve urban district subdivisions, and transfers that power to one single individual – the Kaua’i Planning Director.

The Kaua’i County Charter Section Section 14.09. Subdivision or Consolidation of Land, “B. Approval of subdivisions. After the enactment of the ordinance governing subdivisions or consolidations of land, no land may be subdivided unless the proposed subdivision plans are in conformity with the subdivision ordinance and regulations and have been approved by the planning commission.”

SB3202 is essentially re-writing the Kaua’i County Charter.

WUWT?

The language in SB3202 is so obtuse that readers would need to be an insider or land use attorney, to understand this particular component. The loss of the Kaua’i Planning Commission process contained in SB3202 also takes away the public’s inherent right to submit testimony for or against subdivision developments proposed in the urban district, and the related right to a “contested case hearing”.

This “Kaua’i element” of the bill seems to have passed through the entire process without the Kaua’i Planning Commission being informed of the implications.

The Kaua’i Planning Director offered written testimony in support of SB3202, but apparently no testimony was submitted by the Planning Commission itself, nor from individual commissioners.

What can be done now?

Call the Governor (808) 586-0034 please and ask him to veto SB3202.

Then contact our Mayor mayor@kauai.gov and Councilmembers Councilmembers@kauai.gov AND especially our 4 state legislators- share with them your thoughts and ask them directly about theirs.

Why did each of our state legislators support basically amending (or ignoring) the County Charter and taking away the Planning Commission authority (and public participation that comes with that) and granting that power to a single individual? Why didn’t they formally consult with the Planning Commission or the general community?

senkouchi@capitol.hawaii.gov
repnakamura@capitol.hawaii.gov
repmorikawa@capitol.hawaii.gov
repevslin@capitol.hawaii.gov

Additional Notes: for those who are interested in getting into the weeds and legalese
Each county has a different subdivision process. Maui apparently has County Engineer also involved as key person in approval process.

Kauai I am told by Rep Evslin and land use attorney Kimo Frankel, is the only County that gives approval authority to the Planning Commission.

SB3202 says that “ (g) Notwithstanding any other law, county charter, county ordinance, or rule, any administrative authority to accept, reject, and approve or deny any application for subdivision, consolidation, or resubdivision of a parcel of land that has been fully zoned for residential use within the state urban district designated pursuant to section 205-2 shall be vested with the director of the county agency responsible for land use or a single county officer designated by ordinance; provided that:”

Translation:
“…authority to accept…deny any application for subdivision…Shall be vested with the director…” (and not with the planning commission is the reality but left unsaid)

It feels like the first day of a new year – in a policy and politics sense.

The Hawaiʻi legislative session is over and there’s no more “waiting to exhale”. The constant vigilance required to monitor 3,000 or more bills can be put to bed.

Well, almost put to bed. The several hundred that passed through the sausage grinder must now be reviewed closely and comments sent over to the Governor.

Measures that’ve passed include the good, the mediocre, the bad, and the very bad.

Supporting our brothers and sisters on Maui to the tune of almost $1 billion seems on the surface to be a very good thing. The devil’s in the details and implementation, but for now this looks like a win.

The most obvious very bad bill is SB3202 which takes away the Kauaʻi Planning Commission authority to approve subdivisions in urban districts and gives this power to a single person, the Kauaʻi Planning Director.

SB3202 also mandates increasing the density of every single residential community in the state of Hawaiʻi – whether that community wants that increase or not.

Probably the most significant and positive change in “pure policy” (no direct impact on the state budget) was SB2919, which has already been signed into law and is now Act 017.

Act 017 grants each County the authority to regulate and phase out certain short-term vacation rentals that might otherwise be rented long-term to local residents.

Maui Mayor Richard Bissen has already introduced a bill that now goes before the Maui County Council intending to convert more than half of Maui’s current vacation rental inventory – to long-term rentals by 2026.

If passed by Maui County, this would gradually create approximately 7,000 new long-term rentals for local residents – with virtually zero need for increased construction or infrastructure.

Advocates of SB2919 reminded law-makers in their testimony over and over again, that those short-term vacation rentals were originally approved based on plans indicating they would be homes for local residents – not as AirB&B short-term rentals located in otherwise residential areas/projects.

The obvious question for residents living on Kauaʻi, Oahu, and Hawaiʻi Island is, “Will our Council and Mayor follow Maui County and also take this bold step to increase the inventory of affordable housing?”

The next most obvious good bill (kinda good for everybody but very good as in super good for the wealthiest tax payers in the islands) is HB2404.

There’s certainly no shortage of legislators boasting about it being the largest tax cut in state history. But of course, most are neglecting to tell you the whole story.

Mahalo to Representative Amy Perruso who was brave enough to pull back the curtain and speak the truth about this much heralded “historic tax cut”. 3 members of the House were willing to go on recored expressing their concerns and we should thank them for that – “Passed Final Reading as amended in CD 1 with Representative(s) Hussey-Burdick, Kapela, Perruso voting aye with reservations”.

According to the Institute on Taxation and Economic Policy, this will cost state government $656 million in revenue with 42% of the benefits going to the top 20% of earners.

Translation: The state of Hawaiʻi will lose $656 million in revenue. This means schools, parks, affordable housing, mental health care, coastline and environmental protection, and so much more, will do without that same $656 million.

Unfortunately the legislature did not limit or target the tax cuts to middle and low income families who truly need the support. They chose instead to give high-income earners the equivalent of $275,000,000 in tax revenue that’s now no longer available for essential services.

So yes, we should be thankful the 2024 legislative session is over, and thankful for the good and positive accomplishments that did occurr.

Most of all we should be thankful there’s a new year before us The primary election of August 10th is right around the corner, and with it comes an opportunity to make the 2025 session a genuinely historic one.

Let’s do this.

*Also published on 05/08/24 in The Garden Island newspaper

Gary Hooser
https://www.garyhooser.com

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Well we lost.

SB3202 passed. The vote was very close – The House of Representatives voted 29 in support and 22 in opposition. In the Senate there were 9 Noes and 16 in the affirmative.

Vote translation: We needed only 4 additional No votes in the House or the Senate and SB3202 would have been defeated.

Here’s a SB3202 status report and here’s a list of those who agreed SB3202 was a bad bill, not ready for prime time, and who stood up against House/Senate leadership and voted in opposition. It’s an interesting mix of legislators from all walks of life and all islands – except Kaua’i.

Representative(s) Belatti, Chun, Cochran, Garrett, Hashem, Holt, Hussey-Burdick, Ichiyama, Kapela, Kobayashi, Kong, Marten, Matayoshi, Nishimoto, Onishi, Perruso, Poepoe, Quinlan, Sayama, Takayama, Takenouchi, Ward voting no (22)

Senator(s) Awa, DeCoite, Elefante, Fevella, Fukunaga, Ihara, Inouye, Kim, Rhoads voting No (9)

If you agree that a No vote was the right vote, and your Senator or Representative is on this list – please send them a note to say thank you!

Notice no Kaua’i legislator is listed.

Of course Wailua/Lihue/Puhi Rep Luke Evslin is essentially the main sponsor of SB3202’s content and is leading the charge to pass it. The other 3 from Kauai have been largely silent on the issue.

It still amazes me
. 
SB3202 significantly disempowers the Kaua’i Planning Commission, transferring power of subdivision approval in rural districts completely to one single person, the Kaua’i Planning Director – and yet apparently no one informed the Planning Commission this was happening, no one asked for their opinion, nor did any of Commissioner testify on the issue.
 
The Kaua’i Planning Director testified in support but it seems the Planning Commissioners themselves had no clue their power and authority was at risk of being significantly diminished – or if they knew they chose to be silent.

I’ll be writing more about all of this in the future but wanted to get this update and vote count to you asap.

Sincerely,
Gary Hooser
NOTE: I sent this out as a mass email last week but just realized I forgot to post it here. If you want to receive my email on a regular basis please subscribe – Policy & Politics at https://policy-and-politics.mailchimpsites.com