Daniel Orodenker has been executive director of the state Land Use Commission for only a month or so, but the issues of land use are not new to him. For starters, he was born in Rhode Island, which as the smallest state in the union probably values land nearly as much as Hawaii does.
Of course, the 52-year-old attorney’s earlier jobs have left their mark, too. Orodenker has worked in urban planning but has held posts with the Hawaii Natural Heritage Program (part of the Nature Conservancy of Hawaii) and the Lanikai Association.
The married father of three grown children and one grown stepchild, Orodenker lived in Lanikai back in the 1980s and was part of the neighborhood’s successful campaign against ridge-top development.
The public needs to get involved early in land-use reviews, he said. Public input in LUC hearings, such as the ones leading to the recent controversial approvals of the West Oahu developments of Koa Ridge and Ho‘opili, is extremely important because it prods the commission into doing even more due-diligence work on issues raised, he said.
As chief of staff, Orodenker has no vote in LUC rulings, but he may be the most avid defender of the nine volunteer commissioners out there. Orodenker underscores in red the critical role the LUC plays in Hawaii, the hours invested by commissioners. And he admitted to bristling when he hears accusations of the members’ bias.
"Maybe that’s a mother hen thing, but I get upset," he said with a laugh.
Then, more seriously: "Their only bias is that they want to do the best job they possibly can.
"I believe that land-use planning is one of the most important aspects of society," Orodenker added. "People really don’t comprehend how much impact land use can have on their lifestyle, on how the community grows, on everything. This commission does very, very important work."
QUESTION: How do you respond to critics who say the Koa Ridge and Ho‘opili decisions show the commission has fallen short in the mission to protect agricultural land?
ANSWER: What Koa Ridge and Ho‘opili really brought to the light of day was not so much that the process was broken, but rather that the social, business and land-use environment that create the factual scenario the commission is presented with really needs to be looked at hard. There are larger government policies giving rise to the tensions between agricultural needs and the need to provide homes for our growing population.
Q: What do you mean? Are you talking about zoning laws?
A: Almost everything. When things are brought to the commission, they’re presented with what the scenario is today. Everything from where the urban growth has been determined by the city to what the agricultural needs are; whether there is an active need for more agricultural land or we’re just preserving land for the future; whether the traffic situation is sufficient to handle the development, whether the infrastructure is sufficient, whether the water is sufficient …
How we got to where we are is very much dependent on our larger policies as societal pressures, including everything from how many houses we need, what type of housing people want, how much food should be manufactured here, how much of a demand there is for that food.
One of the big issues is our tax policies with regard to agricultural land, which may not seem like it has anything to do with land use, when in fact it does. What incentives are there for a landowner to keep his land in ag, rather than converting it into housing? …
I think that a more efficient method of preserving agricultural land is to create larger policies that create a situation where people aren’t even coming to the Land Use Commission to redesignate their property, where keeping land in agriculture is something that the landowner wants to do.
Q: You mean making a social change?
A: Well, it’s a social change in the sense that, under the current system, you have to want to make the sacrifices. I think the point I was trying to make is that the most effective way of preserving land in agriculture is to give people incentives to keep it in agriculture that make sense to them.
I mean, everybody’s got to make a living, everybody’s got to make sure they get value off what they own, everybody should feel they can participate in the economy. That’s the social change that needs to take place, that would really do more for enhancing the protection of agricultural land than any statute, or any decision by the Land Use Commission. …
Q: What would you want the public to understand about the LUC?
A: When a petitioner comes to us to convert agricultural land to urban, first they would have to have gone through the county procedure. … This is where that balancing act comes in, between the need for urban growth and the need for agricultural land.
If the county feels that the land is necessary to stay in ag, regardless of its designation as IAL (important agricultural lands) or not, that carries a lot of weight. If they don’t, that carries a lot of weight as well. …
I wasn’t here for Ho‘opili. But with regard to how much agricultural land there really is, it’s complicated. … The end result is that the commission has to make its decision based upon what was presented to them. … Everybody has an opinion or has some preconceived idea about whether or not there is a lot of agricultural land. But even if a commissioner thinks he knows something about something, he can’t make his decision based on that. It’s got to be based on what’s on the record. If you don’t do that, then the decisions get overturned at the Supreme Court. …
Q: So what you’re underscoring is that decisions are evidence-based?
A: It’s based on evidence presented before the commission, the facts that are presented to the commission, and that’s the way the process is set up.
We tend to think of the judicial process as being extremely burdensome. Right now, in our society today, I can’t think of a better system of making sure that due process is served to all the parties, that all the facts are presented and that everybody gets a fair hearing, in a judicial type of process. …
What’s so good about what we do, and the process that we use, is that it’s judicial-based but we have the flexibility. Because we’re not a court, not bound by the rules of procedure that a court would be, if we have an intervenor who is representing themselves and they don’t know how to phrase a question properly, that’s OK. …
Q: Are there any changes in statute or rulemaking needed that would improve the process?
A: That is something that I am looking at very closely right now. It has been some time since our rules have been reviewed, and it’s worth a look. I really can’t pinpoint anything at the moment but it is one of my goals. It can only help to look at everything with a fresh perspective and in the light of experience.
Q: Is there a way to streamline the very lengthy process without compromising its integrity?
A: Another tough one. There are arguments on both sides as to why you would want to keep the process as it is as opposed to trying to shorten the process.
The process does appear to be lengthy, but currently our state land-use decisions are very transparent and open to the public for participation. The commission has to take the time to ensure that there is enough time for people to be prepared. Often the time in between hearings allows the public to really get a feel for what is happening and gives people time to determine whether they can, or want, to come in as intervenors.
The flip side is that landowners and developers are prejudiced by the time frames involved, and that we as a society pay the monetary cost.
It costs landowners and developers money and time to bring something to conclusion before the commission. The process is very expensive for them and often requires an adjustment of the project financials. It is definitely a factor in the cost of housing here.
There is also an issue with the process’ impact on the economy. In addition to added costs, which are passed on to eventual buyers or lessees, it slows down economic reaction time. Because of the time it takes to get a project to the construction phase, the economic benefits and jobs created by construction and development are delayed. The process can act to inadvertently slow economic recovery and impact the overall economy.
Q: What are the criteria for being a party to a case?
A: Most of the cases that we see that are worthy of public notice are district boundary amendments. Usually a petitioner is coming in asking for agricultural land to be changed from an agricultural designation to an urban designation. And those proceedings, there are some parties that are automatic, and then there’s intervenors. The automatic parties are the petitioner, of course, and the Office of Planning, which represents the state’s interest, the county government. …
Q: Who can intervene?
A: We’re very liberal in granting intervention, because it’s just generally good for the public to be heard. And if someone actually wants to become a party, we feel that it’s a good thing.
On the other hand, not just anyone can intervene. … There are some automatic interventions. If one of the agencies of the state or county wants to intervene, it’s automatic. Anybody who has a property interest in the land is automatically an intervenor, on application, assuming that they file on time. …
Q: The rules suggest that if they’re representing an interest that needs to be heard, the tendency is to let them in. Isn’t it a big commitment?
A: Yes. … Once you intervened, you have to follow all our rules. One of our jobs — myself and the staff — is to help non-land-use-aware people to get through the process. … We can’t tell them what they should write and what they shouldn’t write, what kind of evidence they could present and they couldn’t, but we tell them, “OK, look, if you’re going to present a piece of evidence, it has to be contained in your list, which you have to submit on such-and-such a day, and it should be in this format … ”
The idea with an intervenor is to give them an opportunity to bring in experts to contradict the experts that are brought in by the landowner or the petitioner; to bring in evidence that may or may not impact how the commission views the testimony of an expert witness, or views the evidence brought in by the petitioner.
Because the commission’s decisions have to be based on fact, somebody coming in and saying, “Hey, I know that if you add 20 homes here it’s going to cause this kind of a problem,” that’s just public testimony.
A good for-instance would be cultural, because very often we get cultural issues, and this is a culturally significant piece of land, just saying your grandfather told you is not good enough. You have to bring in a cultural expert who can be qualified by the commission. … That can be somewhat intimidating for an intervenor, that process.
Q: How would you say we compare to other states in land use policy?
A: Compared to other states, land is much more precious. …
Here the conservation designation is extremely important because not only does it preserve our native species, but it also protects our watersheds.
I mean, we will be out of water if we don’t protect those things. It’s really not a situation where you’re trying to do something for altruistic reasons. These are also practical reasons. …
When you talk about how much land we have to plan with, it’s very little, given what a lot of states have. Part of that is because we’re islands. If you push everything together, we’re not the smallest state, Rhode Island is smaller. But because each island is an individual land-use planning ecosystem, you have to be very careful what you do on each island.
