Attorney Scott Settle, Managing Principal of Settle & Meyer, joins producer/host Coralie Chun Matayoshi to discuss challenges to Governor Green’s Emergency Proclamations on affordable housing.
Q. On July 17, 2023, Governor Josh Green signed a Proclamation Relating to Housing which was met with widespread criticism and lawsuits. Gov. Green subsequently issued two more Proclamations Relating to Affordable Housing on September 15 and October 24, 2023. What did critics have to say about the first Proclamation?
- Constitutionality – in a lawsuit filed by Earthjustice on behalf of the ACLU, Sierra Club and others, plaintiffs allege that Gov. Green exceeded his statutory and constitutional authority because the legislative, not executive, is the branch of government that should decide how housing is developed, and that Hawaii’s longstanding affordable housing shortage is not a disaster or emergency resulting from natural or human-caused hazards that allow for emergency proclamations under state law.
- Sunshine law – the Build Beyond Barriers panel was exempt from the open meetings Sunshine Law that requires notices of hearings and an opportunity to be heard.
- Alternate relaxed regulations and procedures – allows theBuild Beyond Barriers panel to let certain projects follow relaxed environmental, historical preservation, land use, and other state and county regulations. It also allows the Chief Housing Officer to decide whether state or county projects can use alternate relaxed regulations.
One alternate procedure allows a county council to change agricultural and rural state land-use designations to permit urban development on parcels between 15-100 acres instead of the state Land Use Commission. A county planning director (instead of the county council) could approve county zoning exemptions for affordable housing projects. All of this is an effort to produce more housing at lower prices without a significant negative impact.
- Ongoing Affordability – critics argue that the proclamation will not keep housing truly local and truly affordable in perpetuity.
Q. The Governor’s first emergency Proclamation prompted not only lawsuits, but death threats against Chief Housing Officer Nani Medeiros and her family. This led to Medeiros’ resignation and a second Proclamation – how did this Proclamation address the ongoing concerns?
- Adds “affordable” housing to the title. This change reiterates the focus of the Build Beyond Barriers Working Group on pushing forward affordable housing development in Hawaii.
- Excludes the area affected by the Lahaina wildfires, whose boundaries are marked by the state’s Lahaina wildfire map (See page 12 of executed EP). This change clarifies that the EP does not apply to the region of Lahaina. The rebuilding of Lahaina will begin only when the residents of Lahaina are ready and according to the timeline they choose.
- Reinstates the state Sunshine Law for Build Beyond Barriers Working Group meetings. Meetings will be conducted in accordance with Sunshine Law and will be virtual, with testifiers to speak only on agenda items with a strict two-minute time limit to summarize their written or verbal testimony.
- Restores HRS Chapter 6E relating to the Historic Preservation Law.
- Restores HRS Chapter 343 relating to Environmental Impact Statements.
- Rescinds the exemption for projects larger than 15 acres and less than 100 acres from going before the state Land Use Commission for zoning and other approvals. After careful analysis, it was found that less than a handful of private real estate projects will benefit from this section of the EP.
- Prioritizes the many state and county affordable housing projects, which aim to create thousands of new low-income and workforce housing units throughout the state.
Q. On October 24, 2023, Governor Green issued a third emergency Proclamation which led to Earthjustice withdrawing its lawsuit, without prejudice, which means they can refile another lawsuit if they aren’t satisfied with what happens. How did the third Proclamation address the concerns raised?
The third emergency proclamation reinstates County Council oversight over most affordable housing projects and no longer suspends Hawaii’s Sunshine Law, burial protections and environmental review requirements.
Q. Does the third Proclamation still suspend some state laws and regulations?
IV. Suspension of Laws Section 127A-13(a)(3), HRS, Additional Powers in an Emergency Period, to the extent necessary to expedite the construction, repair, renovation, and occupancy of housing and infrastructure projects intended to provide emergency relief under this Proclamation:
- Section 26-35(a)(4), HRS, Administrative supervision of boards and commissions.
- Section 37-41, HRS, Appropriations to Revert to State Treasury; Exceptions.
- Section 37-74(d), HRS, Program Execution, except for sections 37-74(d)(2) and 37-74(d)(3), and any such transfers or changes considered to be authorized transfers or changes for purposes of section 34-74(d)(1 ) for legislative reporting requirements.
- Section 40-66, HRS, Appropriations Lapse.
- Chapter 46, HRS, County Organization and Administration, to the extent necessary to allow for the construction, repair, renovation, and occupancy of housing and infrastructure projects certified under this Proclamation which suspension shall not include the minimum requirements and standards necessary for health and safety, including applicable floodplain management powers and duties necessary for National Flood Insurance Program participation, for projects certified under this Proclamation. Notwithstanding this Proclamation, counties may establish their own process or rules for ensuring that a certified project meets building safety standards.
- Chapter 76, HRS, Civil Service Law, to the extent necessary to allow for qualified personnel or contractors to be hired that would be directly involved in the construction, development, or redevelopment of housing, the filling of public housing vacancies, the processing of housing vouchers, or the processing of development related permits, licenses, or approvals, pursuant to the attached emergency rules.
- Chapter 89, HRS, Collective Bargaining in Public Employment, to the extent necessary to allow for personnel or contractors to be hired that would be directly involved in the construction, development, or redevelopment of housing, the filling of public housing vacancies, the processing of housing vouchers, or the processing of development related permits, licenses, or approvals.
- Chapter 89C, HRS, Public Officers and Employees Excluded from Collective Bargaining, to the extent necessary to allow for personnel or contractors to be hired that would be directly involved in the construction, development, or redevelopment of housing, the filling of public housing vacancies, the processing of housing vouchers, or the processing of development related permits, licenses, or approvals.
- Section 103-2, HRS, General Fund.
- Chapter 103D, HRS, Hawaii Public Procurement Code, to the extent that the department or agency has determined that it is not practicable or advantageous to procure the services required via traditional procurement methods and the procurement promotes the construction, development, redevelopment, repair, renovation, and occupancy of housing. The suspension is for the solicitation process only and is subject to the attached emergency rules.
- Section 104-2(i)(3), HRS, Applicability; wages, hours, and other requirements.
- Section 107-24(c), HRS, Authority and duties of the council, to the extent necessary to suspend the ability of the State Building Code Council to amend or update the Hawai’i state building codes to allow for consistency and stability in the construction of housing. Counties may still update county building codes as authorized by law.
- Section 127A-30, HRS, Rental or sale of essential commodities during a state of emergency; prohibition against price increases, because the automatic, statewide invocation of this provision is not needed for this emergency. The invocation and suspension of section 127A-30, HRS, contained in my September 8, 2023 Seventh Proclamation Relating to Wildfires is not affected by this Proclamation.
- Section 201H-36(a)(5)(A), HRS, Exemption from general excise taxes.
- Section 201 H-38(a)(3), HRS, Housing development; Exemption from statutes, ordinances, charter provisions, and rules, that require approval of the legislative body of the county in which the housing project is situated. This exemption shall be applicable to only State affordable housing projects that have already received approval of the Hawaii Housing Finance and Development Corporation.
- Section 206E-5.6, HRS, Hawaii Community Development Authority, and section 15-217-80, Hawaii Administrative Rules (“HAR”), to the extent necessary to allow for the timely development of additional residential units.
- Sections 302A-1601 to 1612, HRS, School Impact Fees.
- Sections 601 -1 .5, 708-81 7, 708-81 8, 708-820(1 )(c), 708-830.5(1 )(d), 708- 840(1 )(c) and (d), HRS, to the extent these sections contain provisions for the suspension, tolling, extension, or granting of relief from deadlines, time schedules, or filing requirements in civil, criminal, or administrative matters before the courts of the state or to the extent that these sections contain provisions for criminal penalties that are automatically heightened by reasons of any declared disaster or emergency.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.