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Editor’s note: The Civil Beat Editorial Board spoke on Wednesday with Jonathan Likeke Scheuer, chair of the . He has , real estate and water management for the Office of Hawaiian Affairs, Kamehameha Schools and the National Park Service, and has previously served as a Kona Moku representative and the vice chair of the Oahu Island Burial Council. Scheuer began with an explanation of the LUC’s origins and mission. This interview has been edited for length and clarity.

It’s a statewide zoning body so unique among the 50 states. It was formed in 1961 by the state Legislature. Right around that time jet travel comes to Hawaii and tourism is growing. Actually, part of the initial push for the Land Use Commission came from the plantation sector not wanting to see incursions into ag land to make the plantations non-viable. And so that’s how there was a sort of suite of political interests that came together and took this huge step to impose a sort of statewide zoning body.

Initially there were three districts — ag, conservation and urban — and then they added the rural district about a decade later. There are nine commissioners appointed by the governor and confirmed by the state Senate. Four are island commissioners, five are at-large and one is required to also be an expert in traditional customary Native Hawaiian practices.

Those districts — talk a little bit about them.

Counties have full zoning power in the urban district. Once the Land Use Commission essentially moves land into the urban district, the counties are now in control. And so when the counties are, you know, approving subdivisions and sort of more intensive growth, that’s really where their main jurisdiction lies. In the ag district, they have some jurisdiction, but there’s supposed to be significant limits on what you can do. Conservation is controlled by the Board of Land and Natural Resources.

Statewide, about 5% of all the land in the state is in the urban district, about 45% in the ag district and 50% in the conservation districts. Something that gets thrown around a lot is saying, “See, we have too little land in that urban district.” But when you actually look at the island of Oahu, where most land is unbuildable anyway, it’s kind of understandable why a lot of it is in the conservation district. And then in the ag district — the plantations and the ranches used every square inch they could, ridge to ridge, sometimes down the edges of gulches. The more land you could plow, the more sugar you could sell or pineapple you could sell.

That’s not actually how we think about what we want from farming nowadays. But the ag district was built and zoned at the time that the plantations were agriculture in Hawaii.

And that’s a statewide set up, right?

Yes. The LUC controls these districts, sets the initial boundaries. Until recently, every five years we were supposed to review them. The Legislature never funded it. And now it’s an advisory kind of review that’s done by the Office of Planning and Sustainable Development.

You’re finishing two four-year terms, eight years total.

Technically a two-year term, a four-year term and a two-year term. I got to go through confirmation three times.

Which Senate committee makes the confirmation?

Water and Land.

And are all the appointments to the LUC from the governor?

Correct.

There’s a perception — and probably it’s not a proper one — that the LUC is making key decisions about what we are allowed to develop, what we’re allowed to preserve. And that there’s this tension here because, as you know, we rely so much on one industry, tourism, but also the military and others. But we haven’t been able to diversify, certainly not back to agriculture. Do you think the LUC’s work is understood by the average person in Hawaii?

I don’t think it’s understood by the average person, and I think it’s misunderstood significantly by a number of people. The Grassroot Institute blames affordable housing’s dearth on the existence of a Land Use Commission and loves to say, “If we just got rid of the Land Use Commission, we’d make housing in Hawaii a lot more affordable.”

How do you respond to that?

There’s I think 481 cities in the United States now with median housing prices above $1 million. And 480 of them don’t have land use commissions at the state level. So perhaps there is something else going on driving the cost of housing and other things higher.

If you had to describe in a sentence or two to the average person what the LUC does, what would you tell them it’s doing?

I would actually lead with the fact that the nine of us are all volunteers. So even though that takes about 20% of our time every month, that’s unpaid. And we are supposed to make decisions on moving land from conservation or ag into rural or urban in order to support state goals and to protect public trust, resources and interests.

There are certain natural resources that can never be sold off is the basic core idea behind the public trust doctrine.

Tell me about the public trust law in Hawaii. It’s unique, is my understanding. It’s complicated. It’s deep, but it’s absolutely critical, is it not, to how things work here?

There are certain natural resources that can never be sold off is the basic core idea behind the public trust doctrine. And in all the 50 states and other places in the world, some of that descends from Roman law, translated to English common law. Hawaii is unique because the public trust doctrine has two independent foundations. It’s specifically mentioned in the state constitution that all publicly held natural resources are held in trust by the state for the people.

But even before that, when the Legislature during the kingdom and the king made the momentous decision to create some private property interest in land, they explicitly limited that. And the two critical ways in which they limited it was water was specifically not privatized. And then also, as the Supreme Court has ruled in Hawaii, for less than fully developed, privately owned land, it’s not the same as owning land on the U.S. continent.

Specifically, you don’t have the right to exclude traditional and customary practitioners. So things like the right to enter into private property by tenants and descendants who have continued to exercise traditional customary practices, or in some cases wish to reestablish — that’s still allowed. That doesn’t exist elsewhere.

And so the Land Use Commission has that kuleana to make sure that those interests are protected while pursuing other critical state interests.

When you say a king during the kingdom, are you referring to the Mahele of 1848? And it was Kamehameha III?

Yes.

Tell us about how the doctrine applies to water rights.

The public trust doctrine is huge in water law in Hawaii specifically because water was never privatized, though it was treated like private property for a while during the plantation and territorial area. So when the courts reversed a century of bad rulings and said, “No, water is a public trust resource,” eventually at the same time of the 1978 Constitutional Convention that called for the creation of the water code and water commission were mandated by constitutional amendment.

I think the LUC’s work is misunderstood significantly by a number of people.

And so now you have a water commission which essentially acts as the trustees of this public trust resource. And the basic duty of a trustee for a public trust resource is you’re supposed to make sure you take the action to protect the resource, even in the lack of absolute scientific certainty that there’s going to be harm. As long as there’s a reasonable allegation of harm to the resource, you have to act in a precautionary manner to protect those resources.

The Commission on Water Resource Management is part of Department of Land and Natural Resources.

It is administratively housed under DLNR, and the chair of the Board of Land and Natural Resources also serves as chair of the water commission. The LUC and CWRM are the key agencies that oversee land use and water. The third would be the BLNR, which in addition to managing the 1.2 million acres that the state owns or has title to or, depending on who you are, claims title to, they also control all land use in the conservation district. Fundamentally, the dispute over Mauna Kea was a dispute over whether or not a conservation district use permit was properly issued or not.

On the recent Maui water variance issue (“The State Just Took A Huge Step Toward More Oversight Of West Maui’s Water”), is there anything, any bigger context or anything that would be helpful for folks to know?

It was a really incredible decision and I think what stands out about it for me among many things is that it’s the first time the water commission has actually proactively put higher levels of management on surface and ground water in light of climate change data. And this is really important, actually, as it relates to the Land Use Commission going into the future. The law for groundwater, which is the primary drinking water source for all of Hawaii — not the only, sometimes we use surface water — but mostly groundwater. The state sets sustainable yields, which is the maximum amount of groundwater you can withdraw without harming future withdrawals.

And even though in their documents that set sustainable yields, they acknowledge that climate change is a real thing. All to date, their sustainable yields have been set as if the future climate is going to be exactly like our historic climate. Which means that when it comes to the Land Use Commission and the developer says, “Hey, I want to build 1,500 homes in this area and I’m going to need 3 million gallons a day. But the sustainable yield is five. Everything’s good.” If you don’t happen to have a water background by sitting on the Land Use Commission, you’re like, “Oh, well, three is less than five. We’re good, right?” But then when you realize that that five is as if we’ll still get the same amount of rainfall and we’ll get in the same pattern that allows it to soak into the ground. You realize, “Oh, we could actually be approving developments that in the mid-century and end of the century might not have water available to feed them.”

So to me, the fact that CWRM reacted proactively and said we’re going to start to regulate even below maximum withdrawal, sustainable yields, because climate change is coming down, was a very forward thinking, proactive action and saying that I believe our grandchildren will thank us for.

Typically, who is coming before the LUC with business?

Large landowners or the developers who have options on large tracts of land. Recently, primarily solar. So one of the interesting things that comes out around the argument we need more urban land in the urban district in Honolulu, there’s about 20,000 proposed units that are in the urban district on Oahu that are not being built. And in many cases, those landowners have come to the LUC saying, “We want to do solar right now because we need to meet the state’s mandate.” But that also means that for the next 20, 30, sometimes even 35 years, we’re not going to put in housing.

That’s the 2045 renewable energy mandate you’re referring to. There was a New York Times article just recently on solar in Hawaii that singled us out as actually being quite ahead of the curve in terms of being able to drive down our energy prices. Of course, they are also the highest prices in the land. But there’s a desire for developers that want to put solar on land.

The solar developers usually have some option agreements for leasing over the long term, land from large landowners. But — energy, food, water — for me, there’s not a single aspect of making Hawaii a more sustainable place that doesn’t have a land use aspect to it. So in that sense I think the LUC, despite the rising importance of the water commission, the LUC is going to remain central to these public debates that animate life in Hawaii, whether it’s about housing or energy or food or fiber or other aspects.

Is there a typical average length these processes go through?

We’re actually mandated by law to have 365 days to respond to a request. Sometimes it takes longer for them to get their docket complete, to go through the process. But once it’s in front of us, we have to rule within 365 days or it’s automatically approved.

And is there an appeal process to whoever comes before the LUC?

Directly to the Supreme Court.

Does that happen often?

It has happened sometimes, and it depends on which matter, whether it goes directly to the Supreme Court or a Circuit Court. We actually have a series of cases on appeal right now.

Zoning issues, different courts, different islands. How do you master this stuff?

Listening is really good. Spending a lot of time reviewing, in some cases, thousands of pages of documents. There’s a few really good things about the LUC’s process, which is not typically used in front of the water commission – the BLNR they do sometimes — but almost all proceedings are quasi-judicial. We swear people in. People are represented by counsel. Almost always, they have the right to object. When a landowner says, I want to move this land from the ag district to the urban district there’s a period of time where people can intervene. They can become a party alongside the Office of Planning and Sustainable Development, the county that you’re in, and the petitioner, which means they can call witnesses, cross-examine, offer evidence. It’s a much more transparent process.

I think the LUC is going to remain central to these public debates that animate life in Hawaii.

I don’t know whether this fits in there or not, but for me, the greatest compliment after eight years and four years as chair has been, there’s been times when we’ve turned developers down — a number of times — with what they’ve proposed, and sometimes not the actual proponent but some of their consultants have come up to us afterwards and said, “You know what? You made the right decision.” And there’s been a number of times when community entities wanted us to stop the development or enforce against them. And we haven’t found that. And they’ve come to us and they’ve said after the hearings they’re like, you know, “I disagree with the decision, but we felt heard. Your process was fair.”

And I think so much of the distrust that drives government is that we don’t have a chance to have our voice genuinely heard. And this quasi-judicial process and the fact that we’re not elected officials — zoning decisions at the county level are ultimately made by the councils, which means you can donate to their campaigns. And no matter how fabulous you are, you will be influenced by that, right? But you can’t donate to my campaign as Land Use commissioner because I’m appointed. So there’s some level of insulation.

Where do you guys physically meet? Do you go to the different islands or offices?

There is an office downtown with a small conference room. We are required to hold hearings on the island on which the proposed action is being taken. That said, that whole transition during Covid to virtual meetings has had some really good things and also some really bad things. There was a hearing about Hokua Place, a proposed 750-home development on Kauai near the Kapaa crawl (heavy traffic area). That had huge testimony and opposition to it, despite the desperate need for affordable housing on the island. Anyway, one of the people I took testimony from was literally like a tree trimmer hanging out of a tree that he was trimming. And he’s like, “But my boss said I could take off. My boss said I couldn’t take the whole day off to go sit in the hearing room waiting to testify. But I could monitor the hearing and give my testimony.” And so in some ways, some levels of public participation have been really enhanced in a very positive way.

I got to acknowledge there’s no substitute for when somebody is staring at you in the eye and saying, “Listen, my great-great-grandfather was here, his ancestors before that. Here’s what I need you to know.” That human contact doesn’t come through the screen. That intimate sort of person speaking to person. And so I don’t know how going forward we can make the best combination of continuing to have that opportunity for the public to face decision makers directly and confront them or have them take in the facts and opinions that they want to hear, but also try to expand it as much as possible, recognizing that when you just hold hearings during the day, you privilege the people who have the opportunity to not work and spend their entire day here.

You mentioned listening is important, reading the documents. Spinning it forward a little bit more: What do you see there needs to be for a successful commissioner who might be coming on board?

I think that’s critical. And so we’ve been really blessed. So like Dan Giovanni, who’s the first vice chair, who might become the next chairperson, comes from a utility background. So many of our dockets are now dealing with proposed use of ag land for solar farms. His background is invaluable. Gary Okuda is a litigator and exhaustive legal scholar. It’s amazing. Kuikeokalani Kamakea-Ohelo, who just joined the commission, and Dawn Chang, who’s been on the commission with their background in traditional, customary Native Hawaiian rights, have been really, really critical. I have to say, for me, it’s been an almost magical time, like you couldn’t have designed it better to sort of have this sort of suite of not just geographic expertise but topical area expertise.

I know that for some people it has been a nightmare. But I will say this, that even the quality of proposals that have come to us has increased. The quality of analyses has increased.

I believe the quality of proposals that have come to us has increased. The quality of analyses has increased.

And I want to highlight one of the things that we approved. And the credit goes to the developer for this — to Waikapu Country Town. It’s going to be over 1,500 homes in central Maui targeted to the local market as part of the 600 acres that were urbanized. But he committed to doing another 900 acres permanent conservation easement. And these are not rural, steep lands. The flat agricultural lands that you drive by on your way from Kahului to Maalaea and Lahaina. The ones where sunflowers are growing and all the trees and taro — those lands are now going to be under a permanent conservation. So a future commission can’t change it. It’s going to be protected forever.

That was a condition that the landowner volunteered. After spending many years talking, starting with the community, “How can I propose a development that is good that will actually enhance our island?” The Maui Hotel and Lodging Association in favor, Sierra Club Maui Chapter in favor. The Maui Chamber of Commerce in favor. Right. Maui Tomorrow Foundation in favor. I remember an attorney who had a different docket coming to us afterwards, and he said, “Is it always like that?” Oh, no, no, no.

What do we mean when we say conservation easement?

That a permanent property interest in land — basically, you’re selling or donating some of the development rights to a parcel. Land trusts buy or acquire conservation easements to hold and protect land in perpetuity.

The LUC this year approved the Pulama Lanai affordable and market . Affordable housing is so critical here, but Lanai has its own situation in which more than 90% of it is owned by Larry Ellison. Tell us about this decision. It sounds like it’s a good one that’s going to help people be able to afford to live there.

There was a recent Bloomberg piece that actually talked about it briefly. One aspect of the decision, of the choices made by Pulama, was whether or not to not have any for-sale units or only rental units. It’s certainly their choice on whether to do it. Lanai is a really fabulous place and a fabulous community but even its most ardent supporters for how things are will admit that it can be hard to be an independent voice on that island. And owning your own home — it’s really critical when most of the jobs and most of the other activity is controlled by a single corporate entity, no matter how beneficial and benevolent they have been.

So for me that was a tough decision. Clearly, it’s a good thing that more housing is being built. They are all being built and furnished, which can be good, but also some people have pointed to this will be more for transitional and short-term residents rather than long-term Lanai families who are sometimes two or three generations in a house.

And the goal here is to construct 250 single-family homes of 8,000 to 12,000 square feet with both affordable and market rate units. Sounds like it was sort of a balancing act.

It was a balancing act. And it’s actually under construction now.

What does it mean to have important agricultural lands?

The state constitution calls for the protection of important agricultural lands. There’s two ways that lands can be designated as important agricultural lands. One is a landowner petitions the Land Use Commission to designate those lands. The benefits to the landowner are two-fold for doing so. State law specifies that if the majority of a land owner’s land has already been designated as IAL, the commission cannot designate anymore. It is a 50% rule. It’s a county process, and so all the important agricultural lands designated to date have been through that first private landowner process. And in some cases, the Land Use Commission has designated Class B and Class C and Class D lands under the sort of land classification rating and not the A and B lands that the landowner owns. The most prime of the prime are now not only not designated as important agricultural lands, but cannot be designated as important agricultural lands.

Is the purpose of this to make sure that critical land that is very good for growing things is used for growing things?

And is never developed. That’s the purpose. The law is fatally flawed. The one good thing it does is if you’re in the IAL (important agricultural land), you get certain tax breaks or subsidies, which of course then favors — because it’s only been large landowners that have gone through this process — the large landowners and the people farming on those lands, which is not necessarily bad, but it doesn’t favor smaller landowners and smaller farmers. Maui County is doing a landfill expansion, which will include some important agricultural lands. And in the course of that, we raised, well, how can you put a landfill on those lands? Well, the way the law is written, it’s not actually prohibited.

Is that the fatal flaw you’re referring to?

That is one of the fatal flaws. But ultimately, if the goal of the important ag land statute is to help ag and farming succeed in Hawaii and protect these lands permanently — it just seems like a pretty big loophole.

Is this something the Legislature could work on to strengthen the statute?

It might need more than strengthening. It might need wholesale reform if we’re going to achieve our goal. I think really the law as constituted reflects that it’s been a reasonable deal for large landowners. But I think the benefits of the law have sort of stopped there. And if we’re really trying to fulfill what the people of Hawaii approved in all the constitutional amendments in the 1978 Con Con, particularly the ones like the protection of important agricultural lands — I mean, we’ve protected vertical cliffs the way it’s implemented. We’ve protected vertical cliffs on Kauai as part of an IAL landowner’s designation. And yet because the landowner didn’t come to us — it was before my time on the Land Use Commission — it was Hoopili (housing development in West Oahu) on what was generally acknowledged as the primest of the prime, because it wasn’t designated by the county or the private landowners private lands yet, it was developed. So have we achieved what we were trying to do?

It’s really important to know what the financial interests are of the people who are making these decisions and the potential conflicts.

There have been bills in the Legislature to require people that serve on boards like the LUC to not comply with financial disclosures. The argument has been made that it will discourage high-quality applicants or appointees from serving because they have to reveal their salary range or their earnings. What do you say to that?

The only reason I’m on the LUC is because seven of the nine members resigned rather than comply with that law. And there were suddenly openings. I tried to get on the LUC before, and then, after there were all these openings, I was asked. Certainly there are some people — especially if you have a closely held family company — when I divulge what my ownership is, I now actually divulge all my family’s ownership — that I totally get. And that individual person will be discouraged.

But for the most part, I look at the Commission on Water Resource Management, the Land Use Commission, my colleagues there, on the Board of Land and Natural Resource, and I see the people who’ve been asked to do it. And I would challenge you to say that they’re not well qualified to be on that commission. Moreover, even if it was discouraging perhaps to some ideal candidate, it’s really important to know what the financial interests are of the people who are making these decisions and the potential conflicts.

When you hear the title “Land and Power in Hawaii,” the book by George Cooper and Gavan Daws, what does that mean to you?

It’s a favorite book. It’s the story of how the LUC used to be, which is a tightly documented story of how the Land Use Commission which was set up to sort of regulate development more, became the enabler of development — a lot of things we look at today with, you know, sort of cringing, “I can’t believe they approved that.”

Democratic legislators and others, they were getting favored treatment from the LUC.

Right. So the core thesis of “Land and Power in Hawaii” is that there’s no ruling class that hasn’t derived its power and maintained its continuing advantage through the control of land. And what I think you’ve seen in the last eight years on the Land Use Commission is that, a little bit more, it’s been reflective of a sort of broader set of power and interests in Hawaii. We’ve denied some huge projects and we’ve approved some huge projects. It’s certainly not perfect, but I think more truly reflective of what the intent was behind the state land use law. And I think Hawaii is a better place for it.

A very tiny example: If you remember during the pandemic, Ko Olina shut off parking, right? And then the city finally came in and enforced it. But nobody picked up on that being an LUC condition. In exchange for getting to build what was then called West Beach Estates, you were going to provide a series of public spaces at each of those lagoons so local families could enjoy those things. Scattered throughout the landscape we are living in Hawaii are these different places and ways that the LUC has touched everybody’s lives I think for the better.