Should We Abolish the Land Use Commission?
Price of Paradise · Hawaii Public Radio · aired 1997-09-21
Guests: Allen K. Hoe (lawyer; member, State Land Use Commission); David Callies (Kudo Professor of Law, University of Hawaii)
Duration: 1:08:45
Note: music outro 379 s

[0:00:04] Randall Roth: Aloha, this is Randy Roth, host of the Price of Paradise show. We're broadcast live Sunday mornings on KHPR and KKUA and then rebroadcast Sunday evenings beginning at 8 o'clock on KIFO. Everyone who works to bring this program to you is a volunteer who believes in the importance of lively and informed public dialogue. We believe the brightness of any community's future is directly related to the level of activity in its marketplace of ideas. Our show this morning has to do with land use planning. With me in the studio are two individuals with different backgrounds and equally different views on the topic.

[0:00:42] Randall Roth: David Callies is a colleague of mine at the University of Hawaii William S. Richardson School of Law, where he holds the Kudo Chair. Among his publications is a book entitled Preserving Paradise: Why Regulation Won't Work. One of his more controversial beliefs is that the State Land Use Commission should be abolished.

[0:01:01] Randall Roth: My other guest, Allen Hoe, is a proud graduate of the University of Hawaii William S. Richardson School of Law and a practicing attorney who was a member of the Land Use Commission from 1988 until last year and who served as its chairman for two of those years. Unlike David, Allen thinks the Land Use Commission is important and needs to be retained if Paradise is to be preserved. David, Allen, good morning and welcome to our show.

[0:01:27] David Callies: Good morning.

[0:01:27] Allen K. Hoe: Good morning, Randy.

[0:01:28] Randall Roth: David, why don't you start the conversation by briefly telling us what land use planning generally is all about?

[0:01:36] David Callies: Land use planning is about getting public and governmental input into the land use process, usually in accordance with what an expert once described as a comprehensive plan. And that, in a nutshell, is land use planning.

[0:01:54] Randall Roth: Okay. Allen, you were on the Land Use Commission for a number of years, chaired it for two of those years. Number one, would you agree with that very, very quick definition of land use planning?

[0:02:06] Allen K. Hoe: I would.

[0:02:07] Randall Roth: What is the Land Use Commission? I know it as the State Land Use Commission. What in the world is that?

[0:02:14] Allen K. Hoe: I think perhaps the best way to describe the Land Use Commission is the role it performs by providing to all segments or all members of our community input to what David has described as land use planning.

[0:02:28] Randall Roth: So to let citizens not just know what's going on, but have a role in shaping the use of land in this state?

[0:02:36] Allen K. Hoe: Exactly. And in our situation, a very critical role because our Land Use Commission was structured as a quasi-judicial body. So all actions on the part of the commission is evaluated or tested if you will, under very strict code of law and ethics.

[0:02:54] Randall Roth: So quasi-judicial. It's almost like a court of law?

[0:02:57] Allen K. Hoe: Exactly.

[0:02:59] Randall Roth: David Callies, what's wrong with that? Citizen participation. Sounds good to me.

[0:03:03] David Callies: Citizen participation is a very good idea before regulatory bodies. The problem is that in a quasi-judicial setting, only those citizens with quote standing, close quote, are able to participate. And moreover, those with quote standing, close quote, get to participate a lot, cross-examine witnesses, present evidence, and so forth. In my view, the citizen's input is better presented by their elected representatives in the various county councils and in the hearings that the county councils have, letting virtually everyone with or without standing have something to say in a land use planning and a land use regulatory setting.

[0:04:22] Randall Roth: Now, you used the word standing and you put it in quotes. Why did you put it in quotes? What what does what does that mean?

[0:04:48] David Callies: Standing means that a person in a quasi-judicial proceeding needs to have a demonstrated interest in the proceeding beyond that of the general public, a particular injury or a particular interest in that particular parcel. Either a neighbor or an owner of the parcel before the commission, and I guess that's my my problem. The the part of the commission's proceedings that Allen describes as a strength could also be described as a weakness. They only proceed in a quasi-judicial manner when someone has a petition to present before them for a change. The commission doesn't have broad planning authority to plan out how land should be used and the plan that the commission does have as its structural base, the state land use plan is devoid of maps, extremely general, and filled with contradictions if if you carry out all of its goals and subjects. The counties, on the other hand, have very detailed comprehensive development plans, although they're under revision right now, detailed maps indicating just exactly how land should be used in the foreseeable future. That to me is the appropriate role of the counties.

[0:05:04] Randall Roth: Allen, as I was listening to David just now, a couple of things popped up for me. One is his suggestion that that it really doesn't allow for the kind of citizen participation that, and it's my term, citizen participation. But I I think I hear him saying, it really doesn't afford citizen participation, that it's it's not designed that way. And then he's also, I think saying that that it's focused on the state plan, which is has contradictions in it that somehow this is better done on a county level. Um, can you take one or both of those and give us your reaction?

[0:06:04] Allen K. Hoe: I think first off, the statement with regard to the state's lack of planning, or lack of planning information, I think is inaccurate. The Land Use Commission is one of its primary tasks, is the body which determines the classification of all lands within the state, and it is charged on a regular basis on a five year basis to do boundary reviews. So, the requirements of the Land Use Commission, first is to establish by input and information offered to the commission from the state administration as well as the counties to determine each parcel of land is as to whether it would fall into what category. And there's four categories of land classification.

[0:06:34] Randall Roth: And and that's what David initially, in our conversation when he's talking about land use planning in general, said that that it it affords government input and and that's the government input that he was referring to?

[0:06:44] Allen K. Hoe: That's correct.

[0:06:45] Randall Roth: Okay. What about the the citizen input?

[0:06:48] Allen K. Hoe: I think in terms of what Professor Callies has reference, is that at the county level, the public has a right to make a presentation. At the Land Use Commission, the public has an opportunity to participate as a party. Not only do they appear to provide information, but they actually possess, if you will, a driving force to make an impact on what is being proposed.

[0:07:13] Randall Roth: Okay. What about his statement, though, that that just anyone from the public can't have standing, can't come in and and be heard, that it's got to be somebody with with a direct impact or so on them? Is that a problem, or?

[0:07:28] Allen K. Hoe: Well, that that that's an accurate assessment on the part of Professor Callies, but I think one in terms of the direction that our courts have focused. There are very few instances where the public who has a unique or special interest and may, maybe a member of the general public whose interest is not that diverse from that of the of of the broader scope of the community, but has a particular or unique aspect of that interest. The courts have granted standing.

[0:08:00] Randall Roth: So they they've been pretty generous, the court has been very liberal.

[0:08:03] Allen K. Hoe: The court has been very liberal. As a practical matter, more people have input than what in theory, one might think, just looking at the rules.

[0:08:10] Randall Roth: Okay. What about the David's other comment about how maybe this is better done on a county level, that there's something deficient, if you will, in terms of the state plan with contradictions, I think was a term that he used. Your thoughts on that? And then we'll hear from him and we'll start taking some calls in a little bit.

[0:08:30] Allen K. Hoe: Okay. I I think one with regard to some of the the requirements of the state of Hawaii's planning process, it has been clearly demonstrated that the Land Use Commission has a broader role to play as opposed to what the counties and the county councils or county administrations do focus on. Primarily, they focus on project specific developments within areas under their jurisdiction, whereas the state Land Use Commission is charged with those so-called statewide interests and concerns such as conservation of natural and historic and cultural resources, providing statewide, for our statewide school system and as well as transportation and and and a variety of of these other broader issues that the counties don't address on a daily basis.

[0:09:16] Randall Roth: You know, David, sometimes one hears the expression, the paving of Hawaii. And the mental picture I have is that the Land Use Commission, among its many goals, is to is to prevent urban sprawl and and to prevent the so-called paving over of Hawaii. Any reactions to that?

[0:09:33] David Callies: I I think that the the analogy, although often used, is is vastly overdrawn. If if you look at a map of the state and look at how land is used, even Oahu, which is the most urbanized of the states, for counties, one sees huge amounts, appropriately, of green space and open space, and and pockets pretty much in a in a uniform and compact way of urban development. And and I think that it's clear that the comprehensive planning process is, is and has worked to keep sprawl at a at a minimum. Moreover, I think there's a whole lot less concern about sprawl today than there was when the Land Use Commission was created in 1961, when we were having huge percentages of population increase and and some questions to just precisely where the new housing and and and attendant commercial areas were going to go. It's not true anymore.

[0:10:24] Randall Roth: Okay. Well, the big question, before we invite calls, I've got to ask each of you, why should the average person out there, the listener to this show, why should they care about whether the Land Use Commission is continued or abolished? How are they affected by land use planning in a very real, tangible sort of way?

[0:10:44] David Callies: Well, I think for two reasons. First of all, the price of land development, whether it's for housing or for commercial centers or whatever, is very high in in this paradise of ours. And one of the major reasons is the length of the land approval process for development of any kind. Uh development is not bad per se, it's bad if it's in an inappropriate spot. And it's the counties that should be deciding what that appropriate spot is. Secondly, the Land Use Commission for all of its strengths in the past is an appointed body. It is not an elected body. Uh one can only get matters before it in a contested case fashion and it is increasingly perceived as micromanaging the the projects or the the requests for broad reclassification that come before it. Its role is to broadly decide what's in egg, what's in conservation, and what's in urban, not precisely what goes on in those places. That's the county's job. So, the the land owner goes before the Land Use Commission and and it presents a essentially a request for boundary amendment, let's go from ag to urban and the Land Use Commission wants generally to know precisely what's going on there, exactly how many people are going to be there, what the project's going to look like. Um after six months, a year, two years, the project may or may not get approved, if, or the, I should say, the reclassification may not get approved. The next thing that happens is the land owner must go before the county and the county council and do the same thing all over again. And this adds unnecessarily to the to the burden of of approvals, which is expensive.

[0:12:12] Randall Roth: So right now, something that's in vogue is is to talk about how we can improve the economy and what I'm hearing is, you're saying it would improve the economy if we would do away with this quote unnecessary step in the process, speed it up, bring down the cost of housing or the cost of whatever.

[0:12:29] David Callies: It's the fastest and cleanest stroke that I can think of in in speeding up the land approval process, land development process.

[0:12:34] Randall Roth: Allen Hoe, you believe strongly that the Land Use Commission should be retained. Um, what's your reaction to what David just said, and then I want to ask you to to start from from scratch and tell me why you think this conversation is important. But your reaction to David's thoughts.

[0:12:49] Allen K. Hoe: All right. I think uh again, in terms of the land classification land use process, um contrary to what the Professor said, it has not had the kind of impact on our economy that uh seems to be a catchphrase these days. The the length of the of the actual land use zoning process uh which takes place at the county level is, in fact, I think the greatest cause for the increase or the the greatest impact on the economy in terms of housing, uh business, and and commercial uses. It is not the land use classification process. So you would say it's it's misleading to point to the Land Use Commission as the the primary culprit for this long period of time that it takes to develop property.

[0:13:36] Allen K. Hoe: Correct. In in a nutshell, the Land Use Commission determines whether or not a piece of property is best suited under the state plan for agriculture, conservation, urban, or rural. Uh and and and those those decisions are made on a very rigid criteria set forth in law. Uh once the commission says, all right, at this point in time, the land that has traditionally or for a number of years now have has been agricultural is, at this point, contiguous to an uh an expanding urban area uh and and and is justified in terms of reclassification, then the process goes to the county. Now, the commission at the Land Use uh simply decides whether or not uh the criteria has been satisfied to convert agricultural land to urban land. Once it gets within the county's process, uh it takes forever because the county uh is where the zoning or the density. So the commission says, alright, this land can be used for residential, if you will, and then we spend an enormous amount of time trying to determine how many people can actually live there. And that's the process that takes the time and is very costly, and that is at the county level. Now, contrary to what the professor says, um these decisions, primarily are not being made by elected officials at the county level. Uh they have planning commissions and they have a whole process of uh of of review so that and in fact, it it actually diff differs from county to county, but it is its decisions that are being made in terms of zoning, not necessarily all by elected officials.

[0:15:07] Randall Roth: Okay. And and maybe you partially answered my next question, but why should listeners care about this conversation? Because I'm sure it it to some listeners, sounds a little bit abstract, a little bit, you know, out there that somebody needs to be concerned about this, but it doesn't touch them. What do you say to him?

[0:15:25] Allen K. Hoe: Well, I I I think in its most broadest sense, I think part of what democracy is all the democracy is all about is the is the citizens, the general citizen's ability to have uh input to make a difference in um how our community, I guess um develops. And in in a nutshell, it is a check and balance uh in our process of growth within our state.

[0:16:10] Randall Roth: And when I looked at at your article in this morning's advertiser, and David has one right next to it, um, something, and I don't know if you used the expression, but as I was reading your article, I got the impression that quality of life is something that the Land Use Commission is is defending. Okay. Well, if anyone tuned in late, you're listening to the Price of Paradise Radio Show. My name is Randy Roth. I'm here with Allen Hoe and David Callies talking about land use regulation in Hawaii. If you'd like to ask them a question or make a comment, our number is 955-8821. If you're on a neighbor island, the number is 1-800-955-8821.

[0:16:39] Randall Roth: Allen Hoe was born and raised in Hawaii, graduated from Hawaiian Mission Academy and the University of Hawaii. He was a member of the first graduating class of the William S. Richardson School of Law. He served for eight years on the Land Use Commission, the last two as its chairman. He also has served on and as chairman of the State Ethics Commission and as a member of the Hawaiian Sovereignty Elections Council. Allen is engaged in the private practice of law for the last 15 years and for six of those years, also served as a part-time district court judge. Prior to going into private practice, Allen was an attorney for the City and County of Honolulu.

[0:16:40] Allen K. Hoe: Exactly. Uh and and those I think those things that I referenced are are primarily grounded in our either our constitution or the statutes that the legislature has enacted.

[0:17:15] Randall Roth: David Callies is the Benjamin A. Kudo professor of law at the University of Hawaii William S. Richardson School of Law, where he has taught for nearly 20 years. His publications include Preserving Paradise: Why Regulation Won't Work, Regulating Paradise: Land Use Controls in Hawaii, The Quiet Revolution in Land Use Control, and The Taking Issue. David has lectured on land use and property law in American Samoa, Australia, China, England, Hong Kong, Japan, the Mariana's Islands, Palau, Spain, Switzerland, and Taiwan. He served as chairman of the ABA section on urban, state, and local government and is a member of the prestigious American Law Institute. Again, if you'd like to ask Allen or David a question or make a comment, our number is 955-8821.

[0:18:04] Randall Roth: Let's start with Robin from Kailua. Good morning, Robin.

[0:18:06] Caller: Good morning. I think you have a very interesting program this morning, and um as a practicing professional planner, I just like to make one simple comment. Um, and that is that there's a difference between planning and regulation. And I think that the current State land use system is mis misnamed. It's really a state zoning system, and it's really about land use regulation and case-by-case application by application, um regulation of land, whereas we've really lost sight of our opportunities to plan ahead and to come to uh some consensus as a island by island on what we want. I think I'll just leave it at that and let let uh let your panel comment.

[0:19:00] Randall Roth: stay on the line. I want to get the comments of both David and Alan, and then I want to give you the last word on this and then we'll move on. David Calleys, what what are you thinking as you listen to Robin's comment?

[0:19:09] David Callies: Well, I agree with both points. First of all, that the Land Use Commission is essentially a statewide zoning organization right now or or agency right now and and that indeed it served its primary purpose when the original classification took place, dividing the state into 90 96% conservation and and agriculture and 4% urban. And now I think that the redesignation process should be up left off to the counties. On the planning issue, I think there's no question that citizen input on the planning issue is very important. Uh for my money, that belongs at the county level. We don't have cities and villages and and so forth. We have four regional organizations called counties with island wide jurisdictions. City and County of Honolulu is right now going through the process with massive citizen participation of redoing all of its eight site specific county comprehensive development plans. And that's where the citizen input belongs. There is planning at the county level, in your opinion?

[0:20:02] Randall Roth: massive planning.

[0:20:03] Allen K. Hoe: Alan Ho.

[0:20:04] Allen K. Hoe: I I don't disagree with any of the the comments or the statements made. But I think one one of the interesting things Robin pointed out was that we have four islands, or four jurisdictions for counties. I think we need to recognize that the State of Hawaii consists of uh a multi- multitude and a multiplicity of interest concerns, Ohana's if you will, that have to function as a team. A lima, your hand, is comprised of five fingers, but in order for them to be effective, they have to work as a unit. And I think our our forefathers, if you will, in terms of our present situation under and as the State of Hawaii, uh recognizes that we are very unique. Uh we have vast differences differences in terms of urban, uh Oahu, and rural, neighbor neighbor islands. And I and I think part of the concern is to push forward in a unified manner to uh effectively uh preserve, protect, and enhance the quality of life that we all uh desire.

[0:21:02] Randall Roth: uh David Calleys a quick comment.

[0:21:03] David Callies: Yeah, one short comment. When when I go through the list of things that the states and the counties do, I have an increasingly hard time Alan identifying anything which is truly of statewide concern that isn't primarily of a county by county concern. Your analogy with the hand is is an apt one except that the four fingers don't have they're not connected to a hand. The four counties are all separated by vast bodies of water.

[0:21:28] Randall Roth: Okay. Okay. Uh Robin, you started this. I'm going to give you the last word and then we're going to move on.

[0:21:33] Caller: Well, I I uh I totally agree with David and uh I know David and David and I are both members of the American Planning Association and more and more uh at professional planners are trying to distinguish the difference between planning and regulation. I think there are tremendous opportunities at the county level to uh to plan and to think ahead and make in essence make decisions ahead of time, uh rather than getting embroiled in a case by case uh adversarial disputes at both the state and county levels over single land use application.

[0:22:03] Randall Roth: Okay. Okay. Robin, thank you for your call. I got a feeling this next call, Alan might be a little bit more uh on your side of of the coin. Astrid from Kailua. Astrid, are you there?

[0:22:12] Caller: I am.

[0:22:13] Randall Roth: Is this Astrid Monson?

[0:22:15] Caller: Yes, it is.

[0:22:16] Randall Roth: Uh and for our listeners, you're you're very active in in land use issues and considered an expert yourself. In fact, I had asked you if you'd be available to to be on the show with us uh this morning.

[0:22:27] Caller: I think you did much better with the guy you got. Well, uh at any rate, Astrid, what uh what are your thoughts this morning? uh two points on this uh business of planning versus zoning regulations. Five years ago, the people of Oahu by an overwhelming majority, changed the charter so that this duplication would no longer exist. The plans now, the development plans, are definitely limited to general concepts and general policies and principles, and the uh project by project approval of land use is now the function of zoning, so I think that problem no longer exists.

[0:23:05] Randall Roth: Okay, Astrid, let me get Alan's reaction to that, and I'll come back to you.

[0:23:09] Allen K. Hoe: I would agree, and I think perhaps one of the one of the interesting things that tends to get lost in this issue is there is a vast distinction between planning and zoning. And I do not disagree in terms of some of the concerns that need to be addressed in terms of planning. Uh the issues will continue to be raised, uh no matter what jurisdiction this combined process if you will, uh uh envelops into uh in terms of the competing interest between site specific zoning density as opposed to long-term or future planning for general broad regions.

[0:23:42] Randall Roth: Okay. Astrid, I interrupted you. Why don't you finish up?

[0:23:44] Caller: Okay, my second point is that we are constantly told the high price of land is due to the complexity and length of the planning and zoning process. Please let me point out that there are thousands and thousands and thousands of um of dwelling units which have been on land which is on land approved for development which have been held vacant ever since 1982. Our elected representatives, by the way, have made these planning and zoning decisions that have designated uh enormous quantities of land for development which has not yet been built up. It is not the process which is causing land high, uh high land prices. It is the failure of the owners and the developers to move ahead.

[0:24:31] Randall Roth: Astrid, let me get David Calley's reaction to that, and then I'm going to give you the last word on on this part.

[0:24:36] David Callies: Well, I I would certainly agree with with Astrid that there are other causes for high prices of land and housing, but I strongly disagree that the land approval process has has no uh place in it. Um the the projects that uh that are of any size and scope in Hawaii take anywhere from 5 to 10 years to be approved. I don't think that the Land Use Commission is is as free of blame for that process as as Alan suggests with respect. I think that that a number of projects take an inordinate amount of time period, and that the Land Use Commission is is a large part of it. Um my my problem is if as Alan said, the Land Use Commission confined itself once again just to the broad categories of agriculture, conservation, and urban and deciding which how much land should be in each, I think I'd have a less of a problem with what the commission does, but it gets far more specific than that in in its interrogation of of land uh developers and in its interrogation of indeed, um anyone from any part of any community. Interrogation is probably too strong a word, but seeking to to ask, you know, what what's going on the land, that's the province of the counties. They are governed by our elected representatives, not the appointed Land Use Commission.

[0:25:56] Randall Roth: Quick reaction from Alan Ho and then we'll return to Astrid.

[0:25:58] Allen K. Hoe: It is not an interrogation process. The commission does not require, if you will, promises made with regard to density issues be kept, because we recognize that is the jurisdiction of the counties. What we do in the process is to ensure that the community knows exactly what the the developer is proposing for that specific site.

[0:26:20] Randall Roth: Okay. Astrid, you get the last word here.

[0:26:22] Caller: Okay. Uh the counties can only plan and zone for development land already designated urban by the State Land Use Commission. Uh therefore, once the State Land Use Commission is through with it, it goes to the county, the county makes a plan and then zones, so that it is not I do not see how we can argue that it's the State Land Use Commission which is uh holding up the process.

[0:26:47] Randall Roth: Okay. Astrid, thank you for uh joining us this morning. Thank you. We go to Lloyd from Waikiki. Good morning, Lloyd.

[0:26:52] Caller: Aloha. Yes, uh one of the most important things here is the fact that this these are islands, especially Oahu. Let's take an example. Uh for the next couple of hundred years, what's going to happen here with the Aloha spirit? If like for instance, the Ewa side has been zoned since the sugar mill went out to these vast areas which they can't sell now at all, uh having trouble selling those homes there and they have a resort area supposedly that only has one resort on it. And then they just approved more density in Waikiki to build more hotels or additional uh hotels that are uh to the other hotels that are there. Uh what's going to happen in the next two or 300 years if we keep changing these designations? I believe this, that the land belongs to the is is prepared in righteousness, and just because let's say uh Castle and Cooke bought uh Murdoch bought all that vast area in the North Shore uh at agricultural prices, maybe even cheaper than agricultural prices when he got it in bankruptcy. Uh what's to stop him from getting in here and rezoning that like they did the Ewa side. I think we should start thinking about stopping anymore development that or anymore changes in the program, uh thinking ahead for the next couple of 100 years.

[0:29:06] Randall Roth: Okay. Well, let's get uh some reaction to that. Alan, you want to give us a quick reaction, then we'll listen to David and move on.

[0:29:12] Allen K. Hoe: Well, um not you don't there's not not anything specific. I don't uh particularly disagree with what Lloyd is saying.

[0:29:22] David Callies: Yeah, it you would see the Land Use Commission as in part um a body that's trying to to preserve what we call Paradise. Correct. And I think what he is alluded to is the practice that land owners, major land owners, and developers have um begun to engage in, and it's called land banking. Uh at a period in time when uh make perhaps the economy is not so good, let's go through this process. Let's uh request and uh a large amount of land to be reclassified that we can sit on and uh until such time as we appreciate the value as we or our stockholders uh want us to appreciate it at, then we'll we'll move forward with the project.

[0:30:24] Randall Roth: And you're skeptical of whether what's in the best interest of their shareholders would be in the best interest of the people of Hawaii.

[0:30:27] Allen K. Hoe: Exactly, and I think the Murdoch example perhaps is the classic. David Calleys.

[0:30:32] David Callies: Well, that's a whole separate issue of of whether we have uh we should be going forward with with the development of land in a particular place uh or indeed whether land should be classified out of uh agricultural uses into something else. But the question here is who decides which which agency? And once again, I have a hard time uh finding a statewide interest in the reclassification process, particularly from ag to urban. It seems to me that that's a county responsibility and a county issue. It's the county that's going to have to provide the infrastructure. It's the county that's going to have to provide for um any low and moderate income housing needs generated. It's the county that's going to have to provide for um virtually every every institutional requirement uh except schools.

[0:34:24] Randall Roth: is that life, and you don't want Hawaii to be paved over and you want citizen participation. You just feel that that is better accomplished at the county level as opposed to the state level?

[0:34:36] David Callies: Certainly better accomplished at the at the county council, county Planning Commission uh and county agency level than at the State Land Use Commission level.

[0:34:46] Randall Roth: Okay. Um, Alan.

[0:34:47] Allen K. Hoe: I think I think real quick. Um again, recognizing that the commission performs its duties as elaborated under the constitution and the statutes. Um, those provisions require that these focuses uh be made. And until such time as perhaps the legislature in their wisdom assign those specific tasks to the counties, uh the the commission has a function. If the commission if those if the commission doesn't provide that function or if the laws are not changed, then certainly the county is not going to take it upon themselves out of goodwill, if you will, to to engage in a practice uh to address these issues unless it is required by law.

[0:35:26] David Callies: Yeah, real quickly, Alan, I don't want to I want to pick a lawyerly nit if you will. There is nothing in the Constitution that designates the Land Use Commission as that body.

[0:35:34] Allen K. Hoe: Oh, exactly. Uh but the constitution speaks very clearly to the the the the will of the people and the desire of the people to focus on these uh specific areas.

[0:35:43] David Callies: I agree with you, but I'd rather see it focused in their elected representatives through the counties than through an appointed land use commission.

[0:35:48] Allen K. Hoe: And and and I think uh the statutes as they currently exist clearly have identified that the the the elected uh representatives of the people continue to speak and continue to uh demonstrate their concerns and their interest in this area on an annual basis.

[0:36:00] Randall Roth: Okay. Lloyd, you set off an interesting conversation. Thank you very much. We go to Juliet from Diamond Head. Good morning, Juliet.

[0:36:06] Caller: Good morning. Um, I was trying to get more specific again in terms of zoning and planning, and I was noticing that over in Maui, um the E aquafier of course, or Aquafier is having a tremendous problem. It's becoming depleted rapidly. And maybe it's fair to say that this situation arose with somewhat of a failure between zoning and planning in terms of, you know, pushing on different resources and putting the volume there. Well, this is a county problem with the, you know, with Water Commission overseeing it, you know, wondering whether designated etc. Don't you think this is an example of how the county or should I say home rule has failed somewhat in their charter? And in other words, um this may be an example to show that not that's not necessarily the sole place that one should put all their chips, and I want a comments on that.

[0:36:50] Randall Roth: Okay. Um, Juliet raises a a term home rule, and David Calleys, I know in in this morning's pieces in the newspaper, uh you were more or less painted I think by the headlines, well, maybe not. Uh but David, I get, or Alan in in his comments said that the home rule people are on your side of this issue, and I guess what I'm getting at is we need a quick definition of what home rule is, and then a response to Juliet's question or comment.

[0:37:19] David Callies: Home rule is a term which which uh is uh is is a designation of local government units that are guaranteed a measure of independence from a state government. Broadly speaking, in non-home rule states, a state can create, combine, abolish individual units of local government, cities, uh counties and so forth at will. In this state, that's not possible. Our four counties are home rule counties and in the Constitution they are guaranteed certain powers and authority.

[0:37:49] Randall Roth: And Juliet, in in her comment is suggesting that that because um county decisions on Maui resulted in this water table going down, being a good example of why county power needs to be looked at. indepleted that somehow that suggests that that home rule isn't working in this area over there.

[0:38:06] David Callies: Well, I I'd like to point out that that if if we assume for the sake of argument that that that's true, that that's a county problem or issue, there is nothing the Land Use Commission could do or has done that would have prevented it. The Land Use Commission has been in existence since 1961. The heavy development of Maui has taken place since 1961, arguably since the 1970s. So if if we're looking for the Land Use Commission to make a major impact on that problem, it hasn't happened and won't happen.

[0:38:37] Allen K. Hoe: I disagree. Historically, first off, home rule, perhaps in terms of his experience in Hawaii goes back to the days of the Republic, the days of the territory. So when when the citizens of these islands determined that statehood was in their best interest at that time, and the cry is really home rule, uh, representation of our concerns in a way. Now, with regard to Eao, the aquifer issues there, historically, Eao, Waeluku, Kahului has, um, been kind of like a traditional or a natural, um, urban area, a reference to the heavy development on the Maui, in Maui, with regard to during the watch of the Land Use Commission, if you will, a lot, a lot of those lands originally were classified for urban use and therefore fell outside, if you will, of the overview of the Land Use Commission, and it has been traditionally on Maui in those areas of the largest impacts have been traditionally, uh, driven by the county process. And I think that perhaps is a classic example of the failures on the part of of county planning combined with zoning. I don't disagree again with Mr. Callies with regard to the importance of home rule. I think there are a lot of issues, uh, that specifically need to be addressed by, uh, communities and and and islands and counties, if you will.

[0:39:54] Randall Roth: So you're not opposed to the counties being involved, you think it requires both their involvement and the state's involvement through the Land Use Commission. Exactly. Juliet, we'll give you the last word on this one.

[0:40:04] Caller: Well, I just I just feel a little bit dissatisfied in this in the sense that, um, you know, now Maui's, you know, stuck with a problem. And of course now it's quote the counties and now the the state may come in eventually at some point with the water commission. But it seems to me that there has been a a sort of a disjuncture or whatever you want to call it where they just don't match and things don't necessarily work out as one would envisioned, even if it was back in 1961, etc. It's lacking of visioning. Okay. Thank you.

[0:40:32] Randall Roth: Juliet, thank you for your call. We appreciate it. We have Clint from a sailboat. Good morning, Clint.

[0:40:38] Caller: Uh, good morning, Randy. Um, I'm in a sailboat on the Kolohe channel. Uh, and I'm looking at a project on the southwest coast of Molokai. Uh, this is a an ecotourism campsite that was, uh, built by uh, Molokai Ranch, uh, under uh, authority or permission from the county of Maui. The land, as I understand it, is classified agricultural for state land use purposes, and the State Land Use Commissioner is now re-examining a 2-year-old decision by county authority to allow this project to go ahead. Uh, I have a question for Mr. Howe. What is the statewide impact of this project, and why is it the business of the State Land Use Commission to exercise apparently appellate jurisdiction over the decision of the County of Maui?

[0:41:28] Allen K. Hoe: I I think that's that particular case is is raising a lot of very interesting questions. And and I think uh I had left the commission when that became an issue, but it is my understanding and you know, I I'm sorry, but I can't be that specific on it, that this issue be currently before the Land Use Commission was raised by members of the community who apparently were frustrated in their efforts at the county level to have the county planning process accurately or fairly address this issue. It's my understanding that apparently uh in violation or or perhaps not in complete compliance with the Maui County planning and zoning ordinances, the administration on Maui made a decision uh unilaterally to allow uh Molokai Ranch to engage in an activity which according to the Maui codes, if you will, as well as the state land use law, uh has not been clearly, if you uh I guess clearly determined at this point. So we're not acting as an an an appellate body. Uh, citizen group on on Molokai has asked the commission through this process to examine whether or not what the county administration did complies with the county law and in further whether or not it violates state law.

[0:42:42] David Callies: Well, you know, whether whether or not campsites uh in an agricultural zone, which does permit open air recreational uses as a matter of statute, uh is a permissible use on this portion of of Molokai. I think the more meaningful question is, what's the state Land Use Commission doing acting as an appellate body. Uh, why aren't the parties in court? Or why are why isn't there an administrative appeal of what the County of Maui did? Uh, I I fail entirely to see where the Land Use Commission has the jurisdiction to act as an appellate court in this matter, and it is exactly this kind of a micromanagement. The commission is not here deciding whether land is appropriately urban classified or rural classified or conservation classified or agricultural classified, it has got itself in the position of of second guessing the county on a precise development use of land that's in the county's jurisdiction.

[0:44:22] Randall Roth: Clint on the sailboat, you started this, we'll let you finish it.

[0:44:25] Caller: Uh, thank you, Randy. Uh, uh, Mr. Callies, Professor Callies has expressed my concerns very articulately, and I think Mr. Howe is the explanation while factually correct, uh, misses the whole point. The point being what business is this of the Land Commission? Thank you very much.

[0:45:05] Randall Roth: And going back to where we're talking about the economy of Hawaii, really, and the delay and the bureaucracy that's been set up by our political system. Like the Forbes magazine said, we only have to blame our elected officials, which means has been controlled by the Democratic Party and the Labor unions for the last 40 years. And then uh, Alan Hoe, I mean, as Alan Hoe Yes. said that uh, he talks like it the commission does it, not the elected officials. He's like the king saying he appointed the judge. Therefore, he's not responsible for any of the decisions. Conrad, stay stay on the line. I want to give Alan an opportunity to respond to what you've already said. And Alan, as I'm listening to Conrad, he made reference to the Forbes article, which I think a lot of people know was called The People's Republic of Hawaii as as though there's there's something very unique about government in Hawaii. And what I'm hearing Conrad say is that the Land Use Commission are a bunch of uh appointed members and I think he's suggesting that that maybe there's a puppeteer up there, somebody in government that's uh running the show. And Conrad, if I'm misstating what what you're suggesting, um, well why don't you correct me if I'm misstating it? No, that's right. someone like they're appointed by God and and the elected officials have no no control over what they do. All right. Well, let's give Alan Hoe an opportunity to respond to that and then I'll come back to you.

[0:46:30] Allen K. Hoe: Well, I think, unfortunately, nothing I can say this morning is going to change Conrad's perception of how government works in Hawaii. But there are a lot of people listening that are I agree, I agree listening closely, but the reference is coming back to the elected officials. Our elected officials in in all their wisdom or lack of wisdom, if you will, have established this process. Our elected officials specifically in regards to the Land Use Commission, at the Senate level anyway, have a very rigid process because uh we are appointed, we must be confirmed by the Senate. Um, granted, uh the commission is comprised of nine members, uh four of these represent districts, geographical geographical regions, and the other five are at large. Uh, the administrations, uh generally have a practice to kind of uh um uh nominating if you will, those individuals who are representative of community interest or community groups. So it is not um contrary to popular belief that the commission functions at the bequest of the king.

[0:47:28] Randall Roth: Okay. So it it really does represent the public as opposed to being puppets controlled by the governor.

[0:47:34] Allen K. Hoe: Exactly. And I and I think, uh, if you had the opportunity to participate in the process, you would see the very wide diversity of interest that's represented on the commission. Okay, Conrad, I interrupted you. Why don't you finish with your uh, your comment? Yes. And I'd say that, uh, well, you know that uh, uh Alan Hoe mentioned as though as though the people no longer have control. And that's where people think that they have no control. They they don't think that their vote counts because they can change those people in elected offices to simplify this system when they want to. And the point what I was saying is, this state, which is the only one I've noticed, in my studies of politics, the only one where the Democratic Party does not allow anybody to run on the Democratic Party unless they accept every single issue in the Democratic Party. They don't let them list themselves as a Democrat if they differ with anything that's in the Democratic platform. I think that's really undemocratic.

[0:48:38] Randall Roth: Okay. Well, Conrad, that's getting a little bit away from our topic this morning, but I I appreciate You know, I think it is a part of the what we're talking about. We're talking about who's controlling the economy of Hawaii? Is it the Labor Unions and the Democratic Party, or is it the people that vote? Okay. Well, I appreciate your call this morning. I want to remind listeners that this is the Price of Paradise radio show. My name is Randy Roth. I'm here with Alan Hoe and David Callies talking about land use regulation in Hawaii. If uh you'd like to ask a question or make a comment, give us a call at 9558821. We go to Chip from Kailua. Good morning, Chip.

[0:49:13] Caller: Uh, good morning. Yes, I'd like to ask your, uh, guests to, um, comment on, uh, land use issues on the shoreline. Um, and, uh, one example might be that, uh, it's important to have a, um, a sort of, uh, tension between the state and counties, uh, where the jurisdiction is so carefully drawn as it is on the shoreline. The, um, the certified shoreline process uh designates the county jurisdiction to the landward side and the the state jurisdiction to the seaward side on the beach, and yet, from a scientific perspective, um, that jurisdiction doesn't really, um, uh, adequately cover the comings and goings of the sand on the beaches in, in association with the different waves. It may be appropriate for sand dunes, um, which, which store a lot of sand that the beaches need, it may be appropriate for them to be designated, uh, conservation district, yet it would, uh, be very surprising if the counties were to give up that, uh, that jurisdiction. Hm. Well, let me see if I've got a reaction from anyone in the studio to that, Alan Hoe.

[0:50:21] Allen K. Hoe: No, that I I I think that what the caller is, um, reference is accurate. The, um, um, shoreline, if you will, is a conservation classification. Um, the commission does not regulate the activities within conservation districts by law. That's handled or managed by the Department of Land and Natural Resources. I would agree, those are very, that's a very key or critical, um, um, threshold, if you will, because our beaches without our beaches, what do we have? Nothing.

[0:50:50] David Callies: Well, I think Alan is right that it's the Department of Land and Natural Resources and conservation areas that that controls the land. Uh, for better or for worse, the state made a determination years ago under the, um, uh, coastal zone management legislation that the federal government passed in the 1970s to give primary authority over development in the coastal zone to the four counties. Um, and and there is an area where the counties do have, uh, almost sole control through granting shoreline management permits by the city and county of Honolulu's City Council in in in Honolulu and by the planning commissions in the in the three neighbor island counties. Um, I I don't think it works that badly, uh, under the circumstances.

[0:51:43] Randall Roth: Chip, is that what you were referring to when you talked about the tension? Uh, yes. Um. So what, what's your point? What what do you want the listeners to hear and understand? Uh, perhaps the state Land Use Commission would be needed if it is determined that sand dunes, which are under county jurisdiction, uh need to be preserved in order to, uh, conserve our beaches. Okay. So we'd be, you know, we'd be having to reset the line of jurisdiction, it would have to move somewhat malcov where it is now. And it would not be um that the counties would not be likely to do that because they'd be giving up, uh, land that's currently under their jurisdiction. So, in that case, the beach resource might not be, uh, most objectively, um, uh, conserved. So, to to oversimplify this, which I have to do occasionally to to understand what's going on, you're basically agreeing with Alan that the Land Use Commission should not be abolished.

[0:52:41] Caller: Uh, this is an example of where they could be important in the process.

[0:52:45] Randall Roth: Okay. Alan Hoe. Well, thank you, Chip, but I think, perhaps, a couple of very classic examples on the importance of this issue, issue that, um, may have been missed either in at at the Land Use Commission or at the DLNR level, is the fact on Maui and why why and over in the Kapulua experience, where, uh, the native Hawaiian or the cultural issues were the driving forces in determining that the refocus of sand dunes needs to be made.

[0:53:21] Randall Roth: Okay. Chip, thanks for your call. We appreciate it. We've got uh just the last 9 minutes or so of the show. We're going to get to the callers who have been waiting a long time. Anyone, if you if you haven't gotten through yet, uh stop trying. We go to Ken from Pahoa. Good morning, Ken.

[0:53:37] Caller: Thank you, Mr. Roth. Um, Professor Callies referred earlier to the um development plan reviews and my understanding is that the um charter amendments specifically change the development plans from being relatively detailed plans to conceptual schemes. And um that that's quite different from being site specific. As a matter of fact, my understanding is that they're deliberately getting away from being site specific. And um but my, my question is. Oh, Ken, let me let me get a quick reaction from David to that comment and then we'll hear your question.

[0:54:26] David Callies: I think there's I think there's no question that that our recent charter amendments broaden the development plans. How broad they are is is I think a matter of still some dispute and discussion. Um, they're still, as as I understand it, have maps and there's still a whole lot more specific than at Act 100 our state plan. Go ahead, Ken, your question.

[0:54:40] Caller: Okay. Thank you. The um the state Constitution states that the legislature should designate important ag lands, agricultural lands that would require a two-thirds majority of the city councils to um to change that and to urbanize those lands. Um, the legislature apparently never made that designation and and wouldn't it be the conservative position to interpret that all agricultural lands are considered important until the state makes a determination as to what might be considered unimportant and therefore protecting the agricultural lands in the in the meantime.

[0:55:15] Randall Roth: Let's get a quick answer first from Alan Hoe.

[0:55:21] Allen K. Hoe: Um, I I think right now under 205, that we in terms of the broad classification, uh, or assessment process that is in place right now, um, we have to acknowledge and recognize various qualities of agricultural ground if you will, and then that our law and our process acknowledges a wide variety of permissible uses from highs and best in terms of crop production to other, uh, uses less than, um, crop production.

[0:56:04] Randall Roth: And you'd say that that's a good idea. That's a good idea. David Callies.

[0:56:14] David Callies: I I think it's a bad idea for this reason. Um, it it's not as if we have a very small percentage of agricultural land in the state, and we have to be very, which we desperately need. And and therefore if we don't conserve all of it pending the legislature's designation, and the caller is right, that designation has not yet been made of important agricultural lands, then we stand to lose an irreplaceable resource forever. We have virtually 50% of the land area of the state designated agricultural. There is is no credible, foreseeable future in Hawaii that we need 50% of the state designated as agricultural land. Compare that to the that part of the state which is designated for urban purposes, which is somewhat over 3%. Um, it's just inconceivable to me that as a matter of policy, with all due respect to our caller, that we would lock up 50% of the state until the legislature gets around to designating important agricultural lands.

[0:57:00] Randall Roth: like what has been described as the village concept, uh greater responsibility for uh other energy uh development sources. Um perhaps one of the things we need to begin immediately to focus on is um the the the creation of new uh potable drinking resources uh to name a few.

[0:57:07] Randall Roth: Okay. I'm going to try to get to a couple more callers but but real quickly, Alan Hoe, in an earlier version of your article, something that got edited out was the following statement. We must take bold and maybe controversial steps toward achieving a better quality of life for Hawaii's future generations. I'm really curious, what might this bold, maybe controversial step be? Perhaps, uh, further limitations in terms of, uh, urban areas, uh, coming back and perhaps focusing on kind of

[0:57:17] Speaker 2: Okay. David Callis, quick reaction to that. I don't want to get too far off our topic today, but quick reaction to that.

[0:57:24] David Callies: Well, I I think that this is a good time of of renewal and reevaluation. Um, I'm I really haven't given a a lot of thought to to your comment uh Allen because again, it got edited out and and I hadn't read it to be honest with you. Um on the face of it, it sounds reasonable, except that I would not be inclined to think that we have to limit urban land um anymore. Um I appreciate that the commission has uh and again, I think um not enough, designated a certain amount of land urban, but it's got to be in the right places, and I'm not sure that that's happened.

[0:58:00] Randall Roth: Real quick, I think for me, my experience on the commission, perhaps the biggest disappointment was the fact that uh some of the most productive agricultural lands uh were brought to us at the very beginning by the large land owners to get those lands out of egg production and into urban use. And I I've always had a difficulty trying to to justify those actions uh on my part on in the commission.

[0:58:25] Speaker 2: In other words, you went along with the majority that approved it.

[0:58:29] Randall Roth: In terms of balancing uh the urban needs over the value of ag lands.

[0:58:34] Speaker 2: And as you look back on it, you This is a good question because thousands of acres that were converted have never been developed.

[0:58:41] David Callies: Real short return, Alan. It it is a shame when when vital agricultural lands are are are used for urban purposes surely. And we proved that by paving over a good part of the Manoa Valley, which which was probably our most important truck land long before the commission was was in place for for truck farming. But is it really the function of the Land Use Commission? Is it really true that each of the four counties would ignore its own best interests in having a a a supply of convenient, excellent agricultural land and would pave them over or designate them urban. And we need the Land Use Commission to protect those lands in the face of of a rapacious county that is likely to itself convert prime ag lands to to urban use. And and for me, the answer is no.

[0:59:29] Randall Roth: Uh Alan, how are you assuming the worst in terms of what the county would do on these issues?

[0:59:33] Randall Roth: Yeah, I think the reality is developers do not come or do not enter into this process until they have some reasonable assurance that their proposal is going to receive uh going to be welcome at the county level. So generally, uh the process does not begin with the Land Use Commission. The process begins when a developer land owner assesses his potential use of that land, explores that uh proposal with the county and then begins the process. Okay. Uh I want to thank our callers who who've been waiting patiently and and apologize. I mismanaged our time. We're we're running way out of time and so rather than take any more calls, each of my guests has one more minute to add what needs to be added, add or emphasize what needs to be emphasized. David Callis, actually you've got about 46 seconds.

[1:00:19] David Callies: Once again, I'm Alan makes some excellent points with respect to the Land Use Commission. He's a he's an able defender of of what they do and has had a lot of experience with it. For me, the the Land Use Commission in its present form uh is is a dinosaur. It is time to give the the full authority to decide how land is used uh in the four counties to our four home rule counties. And to to convert the Land Use Commission if anything into a planning body that has the authority to call in and review areas developments, say in areas of critical state concern or areas of or developments of true statewide importance and impact. Uh and and on the whole, I think those are few and far between and that most of the even large developments are primarily county and scope, county wide.

[1:01:08] Speaker 2: Alan, your last shot at this.

[1:01:10] Randall Roth: Well, I I I think for me it it has been a a a very, uh, um, good process for me to participate as a citizen. You have to recognize although I may be an attorney, uh, in this area I'm a layperson, and I think the value of our system in in terms of our democracy is such that lay people, members of the public, get an opportunity to make a real contribution as opposed to uh an opportunity to stand up before an elected body and make a um if you will, a public presentation. Now, don't I think one in in recognition of all the value of this process I don't want to be misunderstood in terms of uh disagreeing with some of the work uh of Professor Callis. Uh he's done an excellent job for this community in terms of helping us to focus if you will on those issues of of of great priority in and also on those areas perhaps that maybe we need to reassess, but I think that job of reassessment is ultimately a job that has to be done by the voting public and our and our in our elected officials.

[1:02:14] Speaker 2: There's a role for the professor, but there's a role for the public too.

[1:02:17] Randall Roth: Exactly.

[1:02:18] Speaker 2: Okay. Well, I want to thank my guests, David Callis and Alan Ho. Our producer is Susie Roth, our technical wizard is Ryan Campupo. Um you've been listening to the Price of Paradise radio show. I am Randy Roth, Aloha.

[1:02:26] Randall Roth: Um, you've been listening to the Price of Paradise Radio Show. I'm Randy Roth. Aloha.