What if the answer to our land use problems is to cut back on government intervention in the private sector? What if we get rid of zoning regulations altogether?
We’ve devoted space here at Civil Beat to the dialog about the enforcement of existing land use regulations and the creation of new rules.
We covered the Hawaii Supreme Court‘s ruling in the Turtle Bay Environmental Impact Statement case, the state’s ad hoc approach to preserving farmland and how the lack of farmable land hurts the state’s quest for food and energy independence.
But the conservative point of view is often ignored in Hawaii politics due to the overwhelming dominance of the Democratic Party at all levels of government. A Tuesday gathering to discuss the failings of the state’s land use policy was covered only by Civil Beat and the , an event sponsor.
Speaking were David Callies, a University of Hawaii law professor; Tom Dinell, founder of the urban and regional planning program at UH; and Randal O’Toole, a senior fellow with the . They drew a crowd of about 20, including conservative leaders.
Republican State Sen. Sam Slom and Rep. Lynn Finnegan, as well as U.S. Senate hopeful Cam Cavasso and 2nd Congressional District candidate John Willoughby were among the attendees at the luncheon in a downtown Honolulu office building. On the welcome table sat copies of the July edition of “Small Business News” — with photos of Republican gubernatorial candidate James R. “Duke” Aiona on Pages 1 and 3 — and a small pamphlet on government spending with the words “pork report” across the front.
Each speaker took 15 minutes to air what they feel are the shortcomings in Hawaii’s land use policies. The format, moderated by Richard Rowland of the Grassroot Institute of Hawaii, didn’t allow for much interaction between the panelists or with the audience until a Q&A at the end of the event, but some common threads and rifts became apparent early on.
Dinell, the UH planner, said the counties should be in total control of zoning, with the state Land Use Commission serving as a state planning agency and staying out of the day-to-day, parcel-by-parcel land management game. He said the agricultural district — now with nearly 2 million acres — should be restricted to those lands that are deemed Important Agricultural Lands — between 400,000 and 800,000 acres. The remainder should be put into the rural district, where development can happen more easily.
Dinell also lamented what he called excessive litigation caused by ambiguity in law and the lack of public participation in broad development plans. The public tends to hone in on individual projects, a piecemeal approach that frustrates developers.
But Dinell’s background as a planner in support of some state zoning and planning regulations put him at odds with panelist O’Toole, the Cato fellow. O’Toole, who calls himself the “anti-planner,” says the solution is repealing federal, state and local planning laws. The state’s land use problems are an “inevitable result of letting government plan what people can do with private property,” he said.
Presenting a policy analysis paper he authored last year — “How Urban Planners Caused the Housing Bubble” — O’Toole said Hawaii was the first state in the nation to implement growth management planning in 1961, and as a result quickly became one of the costliest places to live. Zoning leads to a lack of easily developable land, which drives up land prices, while delays in permitting drive up the cost of housing, O’Toole said. A four-bedroom, 2,200-square-foot home that costs $150,000 in Houston, which has no zoning laws, could cost nearly five times that much in Honolulu, he said, due largely to Hawaii’s land use policies.
“Planning changes the way people talk about private property,” O’Toole said. Landowners are now constrained by what neighbors or even drivers-by think should be done with their property, and what was once a right has been reduced in the public’s mind to a privilege.
Callies, who teaches land use, state and local government and real property law at UH, said too much regulation has made land here unreasonably difficult to develop. “There’s no such thing as free money,” he said, criticizing the various county governments for going out on “shaky legal ground” and attaching disproportionate conditions to permit approvals. He thinks that it’s “outrageous” that private landowners have been coerced into providing access to public beaches across their properties for free — rather than forcing the government to condemn an easement and compensate them.
He said conservatives need to take a more active role in shaping the Hawaii Supreme Court, which is where the most contentious land disputes are ultimately decided. In the 15 years since Ronald Moon became the court’s chief justice, Callies said, the usual suspects in anti-development lawsuits — Hawaii Sierra Club, Earthjustice, Office of Hawaiian Affairs and Native Hawaiian Legal Corporation — have won 76 percent of cases they’ve been party to. The first two environmental advocacy groups have been victorious in 90 percent of their cases, Callies said, and 89 percent of those were overturned lower court decisions.
“Is that a level playing field?” he asked. “You be the judge.”
Pressed by audience member Roger Epstein, a tax attorney, on whether open space has value and on whether the state should ensure a balance between private property rights and the public good, the panelists said regulations go further than necessary because there is more than enough land in Hawaii. Rather than being concerned about the legacy of maintaining the land for his children, Epstein should be worried about telling them why they can’t afford to live in Hawaii, Callies said.
The focus should shift to providing jobs and affordable housing, says O’Toole. It’s not just about “cute little animals and open space,” he said.
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