Suspending laws is a recurring tactic in Hawaii to shelter homeless

Gov. Josh Green made an unusual move last week in signing an emergency proclamation while giving his first State of the State address to the Legislature, but the proclamation itself wasn’t extraordinary and the cause for action isn’t surprising or new.

The emergency order focused on homelessness allows Green to bypass more than two dozen state laws in areas that include contract procurement, land use and environmental review in order to speed efforts to shelter people living on sidewalks, in beach parks and other places not fit for human habitation.

Green’s predecessor and fellow Democrat, David Ige, issued at least two similar emergency orders, each spanning about a year, including extensions, during his eight years as governor while Green was lieutenant governor. Roughly a decade before that, Republican Gov. Linda Lingle used an emergency proclamation that stretched three years for the same purpose.

Despite good intentions to improve the health and well-being of a vulnerable population, the tactic has been criticized — previously and now — as a questionable or improper use of a governor’s statutory emergency powers.

Green’s move also follows two legislative sessions in which lawmakers introduced and debated bills to curb a governor’s emergency power amid concern over the duration and effectiveness of Ige proclamations dealing with the coronavirus pandemic.

None of those bills passed. Another one, House Bill 1400, has been introduced this year and would allow lawmakers to terminate a proclamation by resolution.

In his speech Monday, Green vowed to take bold action, especially to address Hawaii’s longstanding affordable-housing and homelessness crises, and he drew praise from most members of the Legislature.

“I’m going to do something a little untraditional,” he told lawmakers. “I’m going to take action right now.”

After holding up and then signing the emergency order, Green received sustained applause and a standing ovation from many lawmakers.

“This emergency proclamation will streamline construction and processes for housing, low-impact housing,” he said. “It removes unnecessary barriers. It’ll remove red tape. We’ve done this before together and it worked. It enables our partners, our community leaders, to tackle homelessness head-on, right-quick, affordably.”

The “Proclamation Relating to Homelessness” cites a census of Hawaii’s homeless population last year of 5,973 individuals, including 376 families and 865 children.

It declares, in part, “Hawaii’s dire homelessness crisis is an emergency that poses an imminent threat that may likely result in substantial injury or harm to the homeless population.”

Broad power

House Speaker Scott Saiki agrees that homelessness in Hawaii is an emergency, but after reading Green’s proclamation he said he was left to wonder about how broadly it would be applied.

“I wasn’t really clear on the scope of the proclamation,” said Saiki (D, Ala Moana-­Kakaako-Downtown). “It looks like it could apply to any affordable-housing project.”

Healani Sonoda-Pale, with the political action committee Ka Lahui Hawaii, took to social media to organize a rally at the state Capitol held Thursday and called for Green to rescind the proclamation that she said creates a developer’s dream to produce housing while suspending protections for sacred sites, Hawaiian burials, ceded lands and other places.

On Thursday, Green told the Honolulu Star-Advertiser that there was never any intent to use culturally or environmentally sensitive sites to shelter the homeless under his proclamation. To ensure this, he revised the proclamation to state that any use of it to shelter the homeless must be respectful of the environment, burial sites and Hawaii history.

The order contains a clause stating that the creation of more affordable housing, transitional housing and shelter space is necessary to protect not only people experiencing homelessness but all residents. Green said this was intended only to convey that everyone benefits from reducing homelessness because negative impacts on communities are reduced.

“This is not about affordable housing or large developments,” he said. “This is for the creation of kauhale, or tiny villages, to help those who are homeless. Right now people die on the street every day.”

Green said his proclamation isn’t directed at specific kauhale projects, though he would like to see a dozen clusters of tiny homes developed on sites potentially including the Hawaii State Hospital campus in Kaneohe, Hau Bush in Leeward Oahu and in Waianae.

The proclamation could speed up delivery of such projects that might otherwise take three, four or five years, Green said.

Funding such projects will still be up to the Legislature. Green is hopeful that lawmakers will support his goal and take advantage of flexibility provided by the emergency order.

Recurring emergency

In the past, similar proclamations have not always been entirely or widely embraced.

Lingle, who was governor from 2002 to 2010, issued her emergency order in 2006 to deal with homelessness in Leeward Oahu that she declared a “major disaster and catastrophe.”

Projects developed under Lingle’s order, which was extended repeatedly into 2008, included an emergency shelter in Waianae and a transitional housing project in Maili. It also helped produce the Next Step Shelter in a Kakaako warehouse far from the Leeward Coast.

Democratic leaders in the Legislature at the time criticized Lingle’s use of the emergency order as an abuse and disputed the need for so many extensions, some of which were not publicized.

After leaving office, Lingle said she knew the approach would be somewhat controversial but that she believed fewer projects to help the homeless would have been developed had she not declared an emergency.

Ige’s first homelessness emergency proclamation, according to the Hawaii Emergency Management Agency, was in 2015. He cited a survey that put the statewide homeless population at 7,620 people and said at least eight initiatives would be advanced under the order, including converting a park maintenance equipment building at Kakaako Waterfront Park into a shelter, allowing a shelter on Kauai to exceed its 19-bed limit by 20 additional beds, and quickly giving $4.6 million to Aloha United Way for distribution as rent and utility assistance.

Scott Morishige, who was the state’s homeless coordinator in 2015, said at the time, “By suspending procurement and helping to cut down on some of the red tape, it helps these projects come online quickly. We’re being very intentional in making sure it’s not a broad use of powers that can be applied under the cover of addressing homelessness.”

Still, there were questions about Ige employing such a tactic.

In response to Ige’s move at the time, Colin Moore, director of the University of Hawaii’s Public Policy Center, asked, “When does the emergency become permanent? When do you go back to the state of normal governing? With homelessness, it is not a natural disaster that has a clear beginning and end. An emergency proclamation can suspend procurement rules and parts of collective bargaining and force state agencies to do things they’re not normally involved with. There’s a point where the continuance of the emergency proclamation is no longer appropriate and we’re nearing that time.”

Ige extended his 2015 order six times, covering about a year in total. Then in 2018, citing 5,973 individuals experiencing homelessness statewide, he declared another emergency that he extended seven times to span about a year in total.

In Ige’s 2018 order, he mentioned several projects in the works that would benefit from the suspension of laws, and also said the state is “looking to sustain effective practices to address unsheltered homelessness,” including the Family Assessment Center transitional shelter in Kakaako that was converted from the park maintenance equipment building and opened in 2016.

That Kakaako facility, with a capacity to shelter 50 individuals at a time while attempting to place families in permanent housing, closed about a year ago after issues arose with continued use of the site after the city acquired the park from the state in 2019. State officials have been working to re-­establish the shelter elsewhere in urban Honolulu over the last year but have not yet succeeded.

Green’s proclamation, which lasts through March 20 but can be extended, could help with the effort.

“We’ve been under these rules quite a lot over the last several years, and we didn’t take full advantage of them to help those who are houseless,” Green said. “There are thousands of individuals who are suffering.”