HOOSER: Circumventing the charter

Governor Josh Green has signed Senate Bill 3202 into law. This new law effectively circumvents the Kaua‘i County Charter by transferring the power of subdivision approval in the urban district, from the Planning Commission to a single individual, the Kaua‘i planning director.

The Charter says “no land may be subdivided unless the proposed subdivision plans … have been approved by the planning commission.” Below are just a few of the specific powers granted to the Planning Commission under the current Kaua‘i subdivision ordinance.

“(S)hall approve, approve with condition or disapprove preliminary subdivision map … (and ultimately) … the final subdivision map.”

“(M)ay deny any subdivision if a traffic problem would be created due to the inadequacy of existing public streets.”

“(S)hall require … (dedication of) land for public access…preservation of significant historic and archaeological sites.”

“All decisions of the Planning Director … may be appealed … to the Planning Commission.”

“(M)ay require the conveyance of a right-of-way … along the makai boundaries … (and) require lateral access.”

With the passage into law of SB 3202 it’s now unclear if these specific powers (and others) will be retained by the Commission, transferred to the Director, or eliminated all-together.

SB3202, says “any administrative authority to accept, reject, and approve or deny any application for subdivision…within the state urban district … shall be vested with the director of the county agency responsible for land use or a single county officer.”

Changes to the County Charter normally require multiple public hearings, placing the question on the ballot, and a vote by the people.

However the state legislature has via SB3202 effectively over-ridden the Kaua‘i Charter, without the people of Kaua‘i even knowing what was happening.

Another one of those “can’t make this stuff up” moments.

Clearly, the Planning Commission should have been informed of the pending proposal and formally asked for an opinion.

But they were not. Obviously Kaua‘i Representative Luke Evslin as the primary architect of SB3202 knew about the strategy and the end-game. Recently released UIPA (freedom of information request) emails show also that Kaua‘i Planning Director Ka‘aina Hull was a strong supporter and active in conversations leading to its passage.

Yet, there’s no record of any communication between the Planning Commission and Planning Department referencing SB3202, and no indication the Commission knew about its implications.

The Kaua‘i Charter also says “The Planning Director shall be appointed and may be removed by the commission.” This begs the question: How come the boss wasn’t made aware of a pending proposal to decrease the boss’s authority and power?

The only legal way the commission could have discussed SB3202 is via a publicly noticed meeting which did not happen.

The same UIPA obtained emails show U.S. Senator Brian Schatz was also part of these conversations along with his Senior Policy Advisor Michael Dahilig (who served under Mayor Derek S.K. Kawakami as Managing director and as Kaua‘i planning director).

The question as to the effectiveness of the Planning Commission and the wisdom of transferring its power to approve urban subdivisions to the Planning Director is a legitimate one, but the process utilized to pass SB3202 reeks. SB3202 is basically an “end-around” citizen participation.

I have no doubt the individuals driving this effort believe it’s necessary to improve the process, speed development, and avoid the hours and hours of contentious public testimony that sometimes occurs at Planning Commission meetings.

But Kaua‘i residents and the Planning Commission itself should have been part of the conversation. But they weren’t.

The impact of SB3202 on the subdivision process and County Charter is not incidental nor unintentional. The key supporters were aware the obtuse language in SB3202 would circumvent the Charter, reduce the Planning Commissions power, and increase the power and authority of the Planning Director.

Now what? This whole bag of worms will no doubt now go to court, and to the Kaua‘i Council. What happens in the meantime is anyones guess.

•••

Gary Hooser served eight years in the state Senate, where he was majority leader. He also served for eight years on the Kaua‘i County Council. He presently writes on Hawai‘i Policy and Politics at www.garyhooser.blog.