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With “affordable housing” having been a highly discussed election campaign issue, this call for reform of Hawaii Revised Statute Section 201H-38 may seem out of kilter. Section 201H-38 grants Hawaii Housing Finance and Development Corporation (HHFDC) — and its eligible developers — exemptions “from all statutes, ordinances, charter provisions, and rules of any governmental agency relating to planning, zoning and construction standards” to develop affordable housing projects.
While well-intentioned, 201H-38 exemptions are being too broadly interpreted, enabling potential abuse by developers and landowners, inadvertently incentivizing fast-tracked developments of inappropriate scope/scale for their proposed locations (including environmentally-sensitive land) with little consideration for meaningful public participation/input.
A growing number of controversial 201H-38 development projects have sprung up in Manoa (Manoa Banyan Court), Kailua (Kawainui Street Apartments), Kahuku (Kahuku Manager’s Ridge), Waipahu (Keawalau at Waipahu), McCully-Moiliili (Kuilei Place) and Lahaina (Kahoma Village). These pit developers and land owners against long-time local residents/communities and neighborhood boards who are concerned (and often surprised) that long-standing regulations and community development/zoning plans meant to guide development and protect environmental and community well-being may be for naught.
Enough is enough. We must restore the “guardrails” that protect Hawaii from rampant overdevelopment.
The following Section 201H-38 reforms should be considered:
>> Curtail 201H-38 exemptions. All developers (201H-38 project developers notwithstanding) should abide by (rather than ignore) all statutes, ordinances, charter provisions and rules of any governmental agency relating to planning, zoning and construction standards, as well as Community Development Plans that target future development in appropriately zoned areas (e.g., transit-oriented development areas). The 201H-38 exemptions diminish the participation of local communities and elected county officials. Indeed, a 2021 Hawaii State Supreme Court ruling (Protect and Preserve Kahoma Ahupua’a Association vs. Maui Planning Commission) curtailed the limits of 201H-38 exemptions sought by the developer.
>> Extend the arbitrarily short 45-day period for county governments to review HHFDC-approved 201H-38 development projects to allow counties adequate time to discuss proposed projects. Maui County (Resolution 11-105) and Honolulu County (Resolution 21-180) had previously proposed extending the 45-day period to permit meaningful Council/community discussion of proposed projects.
>> Consider a new requirement for developers to provide timely 60-day advance public notice of proposed 201H-38 developments to affected residents/communities within a 400-foot radius of the proposed development. Mandate developers to work closely with impacted local communities, ideally during a developer’s initial concept stage. HHFDC should reach out and work with local communities to identify sustainable solutions.
>> Prioritize/incentivize housing and rental projects for local residents/families that are truly affordable in perpetuity, versus hybrid market-rate/affordable housing projects that only promise to deliver so-called “affordable” units for a limited number of years. Wailuku lawyer Lance D. Collins concludes in his essay, “Fast-Tracking the Luxury Housing Crisis in West Maui,” that “the most successful housing developments, measured in terms of the percentage of homes remaining owner-occupied, are developments where all units start as affordable and are not convertible from the affordable working family market to the luxury nonresident market.” Furthermore, Collins notes: “Fast-tracking developments that are less than 100 percent affordable produces an increased, rather than decreased, need for housing for workers.”
By coming together in a pono and community-friendly way, we can preserve our precious aina and make permanent progress on truly affordable housing solutions for local residents and families.
Brett Kurashige is a federal employee and is a fourth-generation Hawaii resident.
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