Concerns grow about the Public Land Development Corp., but the governor and others see positive potential
POSTED: 1:30 a.m. HST, Oct 28, 2012
Quiet enactment of a law that the Abercrombie administration backs to create state-and-private partnerships for development projects has now erupted in vocal questioning, adamant protests and even calls for repeal. These concerns over the Public Land Development Corp.'s powers, its intent and jurisdiction, are prompting state lawmakers to reconsider their support heading into the next Legislature.
Some who voted for the proposal are prepared to support its repeal in the 2013 session, while others contend that the opposition has resulted from misinformation about the new PLDC agency, created by the Legislature in 2011. Gov. Neil Abercrombie has rejected the criticism on that basis, but opposition persists. A repeal would require two-thirds of each legislative chamber.
The law creating PLDC says it "shall be exempt from all statutes, ordinances, charter provisions, and rules of any government agency relating to special improvement district assessments or requirements: land use, zoning, and construction standards for subdivisions, development and improvement of land; and the construction, improvement and sale of homes."
State Rep. John Mizuno, who voted for the bill, now says he will vote for the law's repeal because it "eliminates the ability of the public as well as many government environmental and building review agencies to have the objective oversight to ensure proper protections and safety for area residents and the environment, prior to a developer starting a project in our state."
The agency's five-member board, comprised of three selected by the governor and two by the Legislature, "will be allowed to exempt any project from many land use, environmental and even building permits," Mizuno says.
However, proponents maintain that such opposition is based on incorrect information. Abercrombie's website and a flow chart posted by the PLDC indicate that approval is required of the agency in present control of the area where a project is proposed (see Page F5).
State Sen. Donovan Dela Cruz (D, Kaena-Wahiawa-Pupukea), who introduced the PLDC bill and is chairman of the Senate Water, Land and Housing Committee, says the law is needed to provide development on state-owned industrial parks and boat harbors in "disrepair."
"The state owns all these kinds of assets already, and they're all dilapidated," he says.
The law's introductory mission statement calls for "optimal use of public land for the economic, environmental and social benefit of the people of Hawaii," creating "a public corporation to administer an appropriate and culturally-sensitive public land development program."
However, environmental, labor and Native Hawaiian leaders have angrily denounced the new law and demanded its appeal and abolishment of the corporation after fighting attempts in this year's Legislature to exempt some state construction projects from review. At a hearing of the PLDC's draft administrative rules in August, more than 150 community members overflowed a state building conference room in protest.
Robert Harris, the Sierra Club Hawaii director, called for assurance that the rules won't allow harmful development projects to go forward. David Kimo Frankel, an attorney for the Native Hawaiian Legal Corp., expressed concern that the PLDC "is given unfettered discretion to make decisions that affect land for decades."
Abercrombie dismissed the critics as the "usual suspects" who use public hearings to create "conspiratorial hysteria."
Another hearing on the PLDC's proposed administrative rules is scheduled for Nov. 12 at the Department of Land and Natural Resources, its parent agency.
Lloyd Haraguchi, the PLDC's executive director, points out that the new agency is required to comply with the state's environmental impact statement law and historic prevention laws to protect human health and the environment.
But Gary Hooser, who is on leave as the Abercrombie administration's director of environmental quality control to run for the Kauai County Council, responds, "An environmental impact statement is not a permit; it's just a disclosure document. The EIS will say this project is likely to have these impacts, and ‘this is what we suggest that you do to mitigate those impacts,' and it will be lost. … There is no requirement that the developer actually do that. Those requirements are put into place in the permit process, which is what PLDC is exempt from.
"It looks like protection but it's not," Hooser says.
<t-1>While proponents of the law point out that the "title agency" — the department in control of the land — must agree to the PLDC project, Hooser says, each state agency "is under the direction of the administration," so Abercrombie could order approval of a state project.
Hooser says he agrees with County Council members of the neighbor islands who, as the Hawaii State Association of Counties, called this month for the law's repeal.
"I think right now the state has the ability to develop its lands" without the changes made in the new law, Hooser says. The legislation was "fast-tracked," as "significant" amendments were approved on short notice to the public, he adds, which resulted in a law "created under a cloud, and it needs to be scrapped and go back to the drawing board."
Hooser expresses concern about the state agency moving ahead on projects in violation of county rules or desires.
"Each county develops a plan, and there's lots of community input, and every 10 years Kauai is updated," he says, "and these plans say this is where we want growth, as a community: We want growth in these areas and we don't want growth in those areas, and this is the kind of growth we want. And each county has its own zoning ordinances, and this allows the projects developed by PLDC to bypass all those."
Dela Cruz says that the PLDC "has to coordinate with county infrastructure, so you're going to have to get the approval from the county when you come to a sewer, if you need infrastructure, or whatever the case might be.
"At that point," Dela Cruz says, "the county can put conditions on the connection. If the county feels we need you to X, Y and Z if you want to hook up, if for some reason the project cannot afford to do that or they're not willing to do that, then there's no project."
Haraguchi stresses that the "title agency" will decide which lands are in need of the PLDC in going forward with a potential project. Without the county's approval of a water or sewer hook-up, he says, a project will be rejected.
PLDC MISSION AND BOARD
The Public Land Development Corporation was created by the 2011 Legislature (Act 55) to develop state lands and generate revenues for the state Department of Land and Natural Resources. The PLDC aims to use public-private partnerships to attract companies as joint partners in developments.
Signed and staunchly supported by Gov. Neil Abercrombie, the PLDC has an executive director — Lloyd Haraguchi — and is governed by a five-member board of directors:
>> Kalbert Young, PLDC chairman (the Department of Budget and Finance director or designee);
KEEPING SIGHT OF THE LAWS
According to its website, the PLDC shall comply with the following laws of the Hawaii Revised Statute (HRS):
>> HRS Chapter 343 (Environmental Impact Statement)
MUST AND MUST NOTS
Other requirements as outlined on its website:
>> PLDC will pay the Office of Hawaiian Affairs any ceded land revenues as required by statute.
Source: Public Land Development Corp. (hawaii.gov/dlnr/pldc)