Hawaii Developers Facing Tougher Requirements

Editor's Note: This article is part of a series by participants in a free, public forum on Monday Feb. 28 at the University of Hawaii, bringing together authors from The Price of Paradise books from the 1990s and The Value of Hawaii collection of essays from last year. Learn more.

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The most significant change in Hawai‘i affecting land and the environment since The Price of Paradise is the steep rise in regulatory requirements for the use and development of land, particularly at the legislative and judicial levels.

In the first category, the state legislature and county councils continue to add significant burdens to the land development process, thereby extending further the time — measured in terms of years — and expense to commence any development project, regardless of merit. For example, the State Legislature added a flawed burial law to the laundry list of time-consuming hurdles which a landowner must overcome before commencing development. Maui County added a 50 percent workforce housing requirement for all land development projects, whether commercial, industrial or residential.

At the judicial level we have the spectacular success of nongovernmental organizations like the Sierra Club, EarthJustice, and the Native Hawaiian Legal Corporation before our state supreme court. This success has been at the expense not only of private landowners, but also government officials as well. NGOS have won nearly 90 percent of their cases before the supreme court, overturning the state’s intermediate court of appeals 70 percent of the time. That’s quite a record. In setting it, the court:

  • Declared an environmental impact statement necessary for an entire residential subdivision on the ground that state land was utilized – consisting of a culvert under a roadway
  • Found that a new or supplementary environmental impact statement was necessary for a mixed-use residential-resort project because the existing 600-page statement was too old and that conditions may have changed surrounding the project, without a shred of statutory language so requiring
  • Not only accepted, but increased water allocations for minimum stream flows supporting taro production and conservation purposes despite clear statutory language and mandatory plans allocating such water first for commercial farms.

About the author: David Callies is the Kudo Professor of Law at William S. Richardson Law School, University of Hawai‘i, and an elected member of the College of Fellows, American Institute of Certified Planners;  American College of Real Estate Lawyers; and  the American Law Institute.  He holds the following degrees and honors: A.B., Depauw University;  J.D., University of Michigan; LL.M., Nottingham University; Life Member, Clare Hall, Cambridge.  He is past chair of: Academics Forum, International Bar Association; Section of State and Local Gov. Law, American Bar Association; Section of State and Local Government Law, American Association of Law Schools; and Section of Real Property and Financial Services, Hawaii State Bar Association. He is national co-editor (with Tarlock), of the Land Use and Environmental Law Review.  The author of more than 70 articles, his casebooks on property (LexisNexis) and land use (Thomson/West) are in their 3rd and 5th editions, respectively. The second edition of his Hawai‘i land use book, Regulating Paradise:  Land Use Controls in Hawaii, was published in 2010 by the University of Hawai‘i Press. He was awarded a University of Hawai‘i Regents Medal for Excellence in Teaching in 2009.

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