Birth Of The Public Land Development Corporation

Many have asked how come none of the regular environmental and public interest watch-dog groups sounded the alarm earlier? How did such a law get passed?

Among other things, Act 55 creates the Public Land Development Corporation (PLDC) and gives them the power to develop public lands with projects that are “exempt from all statutes, ordinances, charter provisions, and rules of any government agency ... ”

This could mean the construction of a hotel, a high rise condominium, a shopping center, housing developments or just about anything, that could be built on public lands and all would be “exempt from all statutes, ordinances, charter provisions, and rules of any government agency ...”

There are many very bad elements to Act 55 and the powers granted to the PLDC but to me, the exemption power is the clearest example of why this new law should be repealed. How did this happen? How did it slip through the checks and balances of our legislative process?

A better question is how did it sneak through the process? Because that is what happened. IMHO.

A cursory look at the legislative history shows clearly there were four hearings held on what started out as SB1555 and ended up as Act 55 and the creation of the PLDC. On the surface it looks like there were four opportunities for the public to testify and engage in the democratic process. On the surface that is ... but the truth is below the surface and deserves a good look. It may even deserve some sunshine.

Let’s take a look at those four opportunities for public input.

1) SB1555 was introduced on January 26, 2011 and a public hearing in the Senate Water/Land/Housing Committee was held on 2/8/11 (public notice given on 2/2/11). At this time SB1555 among other things did not contain any provisions for exempting projects from “all statutes, ordinances, charter provisions, and rules of any government agency ...” and it also provided for an 11 member Board of Directors and required neighbor island representation. Much of the language of SB1555 focused on the Ala Wai and Keehi Harbor issues. There was minimal public testimony. A SD1 version was approved by the committee containing only minor technical amendments.

2) On 3/01/11 the Senate Ways and Means Committee held a “public decision making” (public notice given on 2/25/11). While written “comments” may be offered, no public testimony is accepted at this meeting. A SD2 version was approved by the committee containing only minor technical amendments.

3) On 3/18/11 the House Water Land and Ocean affairs Committee held a public hearing (public notice given on 3/15/11) and at the end of the hearing passed out SB1555HD1 that was dramatically different from the prior version. The House version now included exemptions from County permitting and zoning requirements. The House version also stripped out the requirement for Neighbor-Island representation. Other significant changes were also made to this version, dramatically changing it from the prior SB1555SD2.

IT IS IMPORTANT TO NOTE THAT UP UNTIL THE END OF THIS COMMITTEE HEARING AND THE ACTUAL PUBLISHING OF THE AMENDMENTS, THAT THE PUBLIC IS NOT AWARE OF THE NATURE OF THE CHANGES AND THE POTENTIAL IMPACT OF SB1555HD1.

4) On 4/07/11 the House Finance Committee held a public hearing. PUBLIC NOTICE GIVEN LESS THAN 2 HOURS PRIOR TO THE HEARING – see actual hearing notice here. At the end of this hearing the House Finance Committee passed out SB1555HD2 after making further changes. The measure then went to Conference Committee where there is NO PUBLIC TESTIMONY ALLOWED and additional very significant changes were made.

Quick and dirty (very dirty) summary: THE PUBLIC HAD ONLY ONE OPPORTUNITY TO TESTIFY ON THE SUBSTANCE OF ACT 55 AS WE KNOW IT TODAY AND THAT WAS AT THE HOUSE FINANCE COMMITTEE WHICH PROVIDED LESS THAN TWO HOURS PUBLIC NOTICE.

Unless you were in the building and checking your smart phone during the two-hour period preceding this hearing you had no way of knowing it was even on the agenda. The original version did not exempt any projects from zoning or permitting. This was first added in the House and then dramatically expanded in Conference Committee. There are many other changes that happened during this process and explains why many/most environmental watchdog groups did not engage this issue early.

Disgusting is too kind a word to use to describe the process used to give birth to Act 55 and the Public Land Development Corporation. Please don’t take my word for it. It’s all here in the legislative history.

To be clear, I offer these comments purely from a personal and individual perspective and not in any official capacity whatsoever.

About the author: Gary Hooser is currently on leave as Director of the Office of Environmental Quality Control and running for election to the Kauai County Council. Hooser served in the Hawaii State Senate representing Kauai and Ni'ihau from 2002 until 2010 and was Majority Leader in the Hawaii Senate from 2006 until 2010. This column represents his personal perspective only.


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