Last week, Gov. Josh Green signed a broad-ranging emergency proclamation to address the state’s chronic and long-standing housing crisis. The goal is ambitious: to help produce 50,000 new housing units in five years by streamlining the building/development permitting process. The proclamation deserves our support.
First, the proclamation. It is “emergency” in nature, which gives the governor broad powers to override many existing laws — but only in an emergency. The proclamation lays out in clause after clause the dire state of our housing supply and its astronomical expense, particularly as applied to our Native Hawaiian population. It reiterates the need to streamline the regulatory process, as recommended by 15 previous state and county studies going back 20 years, noting that said process adds nearly 25% to the cost of a housing unit. It notes that the state suffers under the most lengthy, cumbersome, antiquated regulatory process in the United States, resulting in a review time for housing developments equivalent to three times the national average. Sounds like an emergency, no?
Second, the proclamation provides for the elimination or overriding of many laws, county as well as state, especially when a builder proposes a housing project on a low-risk site. The proclamation particularly targets historic, burial and environmental protection and reviews, expediting approvals particularly where the risk of adversely affecting protections is very low. It does not, however, eliminate them. It also makes crystal clear that laws relating to health and safety — such as the protection of flood-prone sites — are not targeted for either elimination or override. Moreover, the proclamation in every instance substitutes another review and permitting process — though an expedited one — in virtually every instance of elimination or override. In sum, the effect on environmentally and historically sensitive areas, together with burials, should predicably be very low to nonexistent. Sensitive areas will still be subject to extensive review. Nonsensitive areas will not.
Third, the proclamation establishes a new process for certifying and approving expedited housing projects. First, it provides for the appointment of a state lead housing officer. This officer is tasked not only with coordinating and convening all stakeholders in the building and development process for housing, but also with approving projects on sites with minimal impact on sensitive, critical land. Second, and perhaps most important, this officer also assembles and chairs a Build Beyond Barriers Working Group. The proclamation charges this group with overall facilitating the review and development of housing projects with the overall goal of streamlining the building and development of housing. Specifically, the group is charged with inventory and tracking housing projects, and, most importantly, certifying and tracking housing projects fast-tracked under the proclamation. If the group decides that a builder/developer has the necessary resources — including financial — to construct and operate a housing project in 36 months, then the group approves the project and signs a development agreement with the developer. One and done.
As in all comprehensive, innovative solutions to a housing crisis, there are a few caveats. How public and transparent will the lead housing officer and working group be? Particularly in the expedited project designation and approval process, the public needs to see the basis for such decisions. Due process requires no less. Also, given the elimination or suspension of various laws normally applicable to the land development process, the housing officer and working group must scrupulously observe and follow the replacement regulations in the proclamation, which substitute for the otherwise-applicable regulatory framework. Historic preservation, the environment, and Native Hawaiian burials are all entitled to the protection afforded by the laws suspended and revoked in order to expeditiously produce 50,000 new homes in five years — the goal of the proclamation.
But the bottom line remains that the state has an existential housing crisis, which leaves thousands of our citizens without affordable housing options. It needs just the sort of out-of-the-box, ambitious and comprehensive solution the Emergency Proclamation represents. It deserves our support, and an opportunity to succeed.
David Callies, FAICP, is emeritus professor of law at the University of Hawaii, and author of “Regulating Paradise, Land Use Control in Hawaii.”
