Land use to test soul of Democrats
By David Kimo Frankel
The battle over Hokuli'a and the current attempt to overhaul the state's land-use law is an ongoing fight over the soul of Hawai'i's Democratic Party.
Although the enactment of the land-use law in 1961 was one of the crowning achievements of the post-statehood "Democratic Revolution," pro-development forces in the Democratic Party have attempted to undermine the party's legacy ever since.
The Legislature passed the land-use law with lofty goals. The law was intended to "protect agricultural land from urban encroachment, to prevent scattered and premature development, to limit land speculation to urban areas and to protect the unique natural assets of the state." The Legislature specifically noted that scattered development costs taxpayers more money than concentrated growth.
The agricultural district was not created simply to protect agriculture. Much of the land in the agricultural district was placed there to "stage the allocation of land for development in an orderly plan to meet actual needs and minimize costs of providing utilities and other public services."
Keeping nonagricultural uses out of the agricultural districts encouraged "completion of partially developed areas already supplied with public facilities before new lands and new public investments are demanded."
The Senate Committee on Ways and Means report concluded that "areas may not be zoned for urban uses except in those districts designated as urban by the (Land Use) Commission."
The seminal work "Land and Power in Hawaii" recounts some of the early efforts by pro-development forces within the Democratic Party to gut the land-use law. Their efforts at the Legislature failed. But they were far more successful at the county level.
Despite the clear mandate of the land-use law, developers and county officials ignored it with impunity. By 1976, committees in the House and Senate concluded that "agricultural subdivisions approved by the counties are being put to uses other than agricultural uses."
Democrat Rep. Richard Kawakami observed, "Today, we have agricultural subdivisions within agricultural districts which can only be viewed as subterfuge of the spirit and intent of our land-use laws. ... In practice, these agricultural subdivisions are not only circumventing county zoning provisions but are being offered at prices very few can afford and becoming, in fact, agricultural estates."
The legislation Kawakami championed was supposed to stop fake farms from cropping up in the agricultural district. While the bill only applied to so-called prime agricultural land, the Land Use Commission, pursuant to its statutory authority, soon expanded the provision to apply to all agricultural lands.
Few Democrats challenged the Legislature's or the Land Use Commission's action at the time. Nevertheless, Democratic county officials continued to ignore the law. Recently, Hawai'i and Kaua'i county officials acknowledged that they have ignored the law for the past three decades.
As pro-development Democrats gained power in the Legislature, the land-use law weakened. In 1985, the division among Democrats spilled over on the Senate floor in a debate over allowing golf courses in the agricultural district.
An angry Sen. Ben Cayetano exploded, "I've always wondered why the Democratic Party chose the jackass as symbol while the Republicans chose the elephant, and after listening to the debate today, I've come to the conclusion that with the jackass, it's easier to kick yourself in the ass."
Cayetano pointed out that Sen. James Aki had admitted that the legislation was for a developer in his district.
Nevertheless, the pro-development Democrats, then firmly in control, gave golf courses a green light in the agricultural district.
In recent years, the Democrat-controlled Legislature has resisted further calls to undermine the land-use law — and, in fact, has strengthened it. Three years ago, it prohibited private restrictions on agricultural activities in the agricultural district.
Such restrictions have been employed by developers of luxury residential developments to increase their speculative value. Last year, the Legislature prohibited new golf courses in the agricultural district — undoing its 1985 action.
Now, pro-development Democrats in the Legislature argue that residential subdivisions should be allowed in the agricultural district. They ignore the original goals of the land-use law.
Some argue that all the subdivisions illegally approved by the counties should be grandfathered. Such legislation, however, would also allow genuine agricultural areas to be automatically converted to nonagricultural uses. Real farmers would then be swept into the storm of real-estate speculation and skyrocketing property taxes.
Moreover, how would such action stop the counties from continuing to allow suburban sprawl on agricultural lands?
After all, Hawai'i County deemed the Hokuli'a project — a private, luxury residential resort subdivision consisting of million-dollar mansions and a golf course, clubhouse, dining facilities, beach club, spa and a hotel — an "agricultural" project.
Some Senate Democrats want to go even further. They have proposed opening up hundreds of thousands of acres of land to development. Six years ago, the Land Use Commission blocked a 600-acre luxury residential resort in the agricultural district next to Kealakekua Bay. The Keopuka project jeopardized the high-quality waters of Kealakekua Bay, two historic trails, stunning beauty and the Kealakekua Bay Archaeological and Historic District, which is on the National Register of Historic Places.
Projects like this would move forward if hundreds of thousands of acres of agricultural lands deemed "unimportant" lost protection from the land-use law.
There is much value in keeping nonagricultural uses out of the agricultural district. It ensures that natural resources and open space are protected. It ensures that taxpayers do not wind up subsidizing a development's infrastructure costs.
It ensures that growth is concentrated in urban areas. It ensures that proper planning takes place. It ensures that when development is proposed, the community is involved in the decision-making. It ensures that decisions are made by those who have not received campaign contributions from developers.
Allowing the Land Use Commission to decide case by case which existing projects should be removed from the agricultural district and which proposed projects should be authorized ensures deliberate decision-making.
The legislative proposals being considered this session undermine the land-use law. They are exacerbated by the refusal of Kaua'i and Hawai'i counties to comply with the existing law and to ensure that all projects in the agricultural district are truly agricultural.
The land-use law, one of the legacies of the Democratic Party, is in peril, and the soul of the party hangs in the balance with it.