Honolulu's charter not intended for land use proposals
By David L. Callies
The Honolulu Charter Commission is considering dozens of proposed amendments to the City and County of Honolulu's charter, including land use proposals that would require urban growth boundaries and require an acre of land to be converted to preservation or agriculture whenever an acre of land is converted from either of these zoning district classifications.
Adding these proposals to a general governing document such as a county charter is clearly not the answer.
Charters have been called "bills of right ... (a)nd municipal charters are sometimes mentioned as constitutions, that is, fundamental or organic laws of municipal corporations." Charters are more generally worded basic documents designed to set the broad parameters of county powers and governance. For example, charters ordinarily indicate the form and structure of government. As described in a standard textbook on local government, charters describe the governing body, "as well as its rights, powers, privileges and limitations and the manner in which its members are to be chosen. The processes of legislation are generally defined in the charter; so, too, the subjects and procedures of municipal taxation. Charters indicate the bounds and limits of the local governmental entity and at times internal subdivisions such as wards and districts. The qualifications, duties, powers and matter of securing office of the principal officers, boards and commissions are usually set forth in the charter. The kinds of municipal courts and their jurisdictions will often be indicated. The qualifications of local government electors are customarily prescribed."
The point of a charter, then, is to set the broad parameters within which local government, through its mayor and council, acts. It is not designed for specific proposals about land use, or any other topic.
Honolulu already has mechanisms to deal with land use at the county level in the form of zoning granted by state statute; a statewide land use law in which 95 percent of the land in the state is classified as conservation and agricultural use districts; a state plan and 12 functional plans also specifically dealing with conservation lands and agriculture (both separate functional plans); and through county general and development plans provided for in our existing charter.
In particular, Honolulu's present charter requires the county General Plan to provide broad policies for the long-range development of the city and county, by means of social, economic, environmental and design objectives. New development plans for eight county planning districts implement the General Plan and balance land use with economic and social objectives.
These venues are more than adequate to provide for growth boundaries (a technique widely touted as a means for undertaking "smart growth") and agricultural land preservation. The existing charter requires developments to be consistent with these detailed development plans. We have a surfeit of specificity in our charter, dealing with such topics as zoning variances and who grants them, a subject appropriately left to local zoning ordinances in most states. We do not need more.
Moreover, charters are difficult to amend and are therefore not sufficiently flexible to adapt to changing land use conditions and goals. This is the nature of constitution-like sources of law such as charters. County development plans, by contrast, are ordinances, changeable by our elected city council. They are far more suitable for specific land use policies and proposals.
Lastly, land use ordinances such as development plans provide for more frequent and focused public participation, as well as review by the County Planning Commission charged with reviewing and recommending upon land use ordinances. Both plans and amendments to plans must be referred to the Honolulu Planning Commission for review before referral to the City Council for action. Both bodies usually schedule public hearings.
Honolulu charter amendments, on the other hand, require publication, but, according to the existing charter, no public hearing. While the amendments must be published and adopted at a general election and therefore garner a measure of popular support, this level of public participation is generally not as focused as a public hearing. There is no review of such amendments, even those affecting the use of land, by the County Planning Commission.
There are also substantive reasons to think twice about urban growth boundaries and "one for one" agricultural land exchanges. Preservation of adequate land for agriculture and conservation are in themselves laudable goals. According to Resources for the Future, more than 1,100 referenda for the conservation of open space appeared on state and local government ballots in 40 states, from 1997 to 2004. Over 75 percent passed. Attempts to rein in or criticize urban sprawl have been with us for at least 40 years. Indeed, the American Planning Association has been engaged for the past 10 years in an ambitious project to contain sprawl in its Smart Growth project.
The issue is the mechanism for such preservation. For example, the state is undergoing a rigorous process to identify important agricultural lands among those presently classified as agricultural under our landmark Land Use Law. Most agree that the roughly 50 percent of the state's total land area presently so classified is excessive, given the demise of plantation agriculture and the fact that much of the land is agriculturally useless. Also, classifying private land as "conservation" or "preservation" is unconstitutional if it leaves the owner with no economically beneficial use, unless it is necessary to prevent a nuisance. Why should a single landowner bear the burden of preservation which benefits us all? Examples of fair and successful preservation in Hono-lulu are the land trusts and public-private coalitions which came together to purchase and preserve Waimea Falls Park and the defunct Obayashi Corp. project area near Pupukea.
Establishing urban growth boundaries might not be the best way to preserve agricultural land and open space either. In at least one Mainland state famous for such a system, the result of establishing such boundaries caused a significant rise in the price of homes. Also the purpose was to preserve viable agricultural enterprises, not bank land for future agricultural use.
In sum, a charter in a home rule county like Honolulu has been described as a local constitution, bearing the same relationship to its ordinances as the constitution of the state bears to its statutes. Under these circumstances, the specific land use amendments are not appropriate for an organic document like a county charter. They are the stuff of ordinances such as the City and County's development plans, which are adequately provided for by the existing charter.