A bold, unorthodox move by Gov. Josh Green in July to suspend a raft of state laws to speed up development of housing in Hawaii as a state emergency has come under more legal fire.
The American Civil Liberties Union of Hawai‘i, the
Sierra Club, three local
community organizations and one state Land Use Commission member sued Green on Thursday in state Circuit Court on Oahu, alleging that the governor exceeded his legal authority in establishing an ad hoc “working group” to make
alternate regulatory decisions on housing development projects.
The lawsuit also
challenges the authority of the 36-member Build Beyond Barriers Working Group and its manager, Nani Medeiros, whom Green made chief housing officer in his Cabinet in December and became state lead housing officer under the emergency housing proclamation that the governor signed July 17.
Plaintiffs in the case, which was filed by the law firm Earthjustice, also allege that Hawaii’s long-standing shortage of affordable housing is not a disaster or
emergency resulting from natural or human-caused hazards that allow for emergency proclamations under state law.
“Defendant Green consequently exceeded his statutory and constitutional authority when he circumvented the constitutionally mandated legislative process for addressing public policy issues and issued the Proclamation, which purports to suspend democratically adopted laws governing the approval of housing and infrastructure projects and to impose instead an approval process of Defendant Green’s own creation,” the complaint states.
The lawsuit is the second legal challenge to Green’s emergency housing
proclamation.
The first complaint was filed Monday in the state’s 2nd Circuit on Maui by local attorney Lance Collins and three other Hawaii lawyers on behalf of nine people who are contesting the authority of Medeiros and the working group.
“The proclamation usurps all government power into the hands of one unelected former lobbyist,” Tom Coffman, one of the plaintiffs in the Maui case, said in a statement. “It is a direct threat to our democracy.”
In the case filed Thursday, the three community organization plaintiffs are Na ‘Ohana o Lele Housing Committee, E Ola Kakou Hawai‘i and Hawai‘i Advocates for Truly Affordable Housing. The sixth plaintiff is Ku‘ikeokalani Kamakea-
‘Ohelo, the cultural practitioner representative on the Land Use Commission.
State Attorney General Anne Lopez contested the complaints’ validity.
“The Emergency Proclamation on Housing is a
lawful exercise of the Governor’s emergency powers as defined by law, and the emergency rules concerning the Build Beyond Barriers Working Group are valid,” she said in a statement. “The Department of the Attorney General will vigorously defend against these lawsuits in court.”
Green’s emergency housing development rules largely waive or modify parts of several state and county regulatory procedures, including Land Use Commission rules, in an effort to produce more housing at lower prices without significant negative impact.
The working group, whose members include officials in Green’s administration along with representatives of county offices and the private sector, is accepting project applications and can determine by simple majority vote whether a project can use one or more alternate approval procedures governing zoning, environmental review, historic preservation, Hawaiian burial protections and other matters.
For projects initiated by the state or counties, Medeiros can allow such projects to use the alternate regulations instead of the panel and make some but not all approval decisions.
Green aims to provide “measured flexibility” to produce 50,000 new homes in five years, with most being affordable to low- and
moderate-income
households.
In announcing the emergency proclamation, Green and Medeiros said Hawaii has the highest housing costs in the nation in part because it has the highest level of regulation, which adds $233,000 to $335,000 to the cost of a home.
Leonard “Junya” Nakoa, another plaintiff in the Maui case, said in a statement, “Protections put in place for our iwi kupuna (bones of ancestors) over the last 30 years is not a reason why Hawaii has had a shortage of affordable housing for the last hundred.”
The lawsuit filed Thursday contends that the emergency housing proclamation strips away “vital checks and balances on government decision-making” but doesn’t require that any affordable housing actually be built or guarantee that any affordable housing produced will remain affordable for the working people of Hawaii.
At the panel’s first working meeting Tuesday, six applications from two state agencies were presented, but five were withdrawn during the meeting and the sixth is to be decided by Medeiros.
The application to be
decided by Medeiros would allow the Hawaii Public Housing Authority to sidestep hiring and procurement regulations so it can fill some of its roughly 80 vacant positions and more quickly fix up more than 300 vacant public housing units and process paperwork for tenant applicants.
The panel’s next meeting is scheduled for Sept. 26.