Sen. Solomon Defends Public Land Development Corporation

September 13, 2012, 10:46 AM HST · Updated September 13, 10:48 AM
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File photo by Wendy Osher.

By Wendy Osher

Senator Malama Solomon of Hawai’i Island issued a statement today following heated debate over Act 55 and testimony surrounding the creation of the Public Land Development Corporation.

Solomon, who voted in favor of the PLDC said her hopes were for residents to benefit from the thousands of acres held in the public trust.  She issued a press release to dispel what she called “misinformation” regarding the intent of the vision of the entity.

Public hearings held across the state last month were met with testimony from opponents who called for a repeal of the PLDC. Arguments raised by opponents included criticism over what they called “vague” and “broad” language, exemptions extended to the entity, and the placement of public trust decisions in the hands of a select few.

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Sen. Solomon who represents District 1 that includes Waimea, Hamakua, North Hilo, Rural South Hilo and Hilo on Hawai’i Island issued the following statement:

“Insuring that the residents of Hawai’i directly benefit from the thousands of acres they own as public lands throughout the State – and putting in place 21st century partnership strategies to protect and appropriately steward these lands now and for future generations – these are the reasons I voted for the Public Land Development Corporation – Act 55, which was passed by the 2011 Legislature,” said Hawai’i Island Senator Malama Solomon.

But implementation of Act 55 has drawn a wave of concern during recent statewide public hearings on PLDC draft Administrative Rules.

“I am sorely disappointed that there is so much misinformation, but I also understand the concern. Our public lands are a ‘treasure’ that must be protected. Listening to the concerns raised, the Governor and the PLDC have agreed to work with the State Senate and House Committees on Water/Land and prepare a Strategic Plan that clarifies the vision, mission, goals and values of the PLDC, putting public benefits as the top priority,” said Sen. Solomon.

“Our state is very unique in the nation. The State owns and manages most of the public lands, while in other states, the federal government is the owner and manager. This legislation is patterned after the Federal National Park Mission statement, which is to conserve the scenery, the natural and historic objects and to provide for the public’s enjoyment of these features in a manner that will leave them unimpaired for the enjoyment of future generations,” said Sen. Solomon, who supported the legislation that created the PLDC as Vice Chair of the Senate Committee on Water, Land and Housing.

“Our committee and others in both the House and Senate spent a great deal of time in public hearings drafting this legislation to be sure environmental, cultural and sunshine laws and regulations were honored and that the end product really would put public interest first,” Sen. Solomon said.

“It is my hope and vision that PLDC creates a vehicle to replicate what I call “The Yosemite Model” — which incorporates the National Park Mission Statement, protecting the great beauty and environmental integrity of this national treasure, while providing recreational choices, employment and income generation to support essential health and safety services and caretaking.”

“Some of the concerns raised reflect misunderstandings. PLDC projects shall comply with EIS (HRS 343), Historic Preservation (HRS 6E), Hawai’i Sunshine Law (HRS 92), Prohibition on sale of ceded lands (HRS 171-64.7), and Wage Rate Schedule (HRS 104). There’s a laundry list of guidelines (see attached Operating Framework 2012) that delineates precautions imposed to insure that PLDC-initiated partnerships “improve our communities, create jobs, and expand public benefit.”

“For some, partnerships are a new way of doing business, but in today’s economic climate, partnerships are the only way we can effectively improve public benefit and make things happen without raising taxes or fees,” said Sen. Solomon.

Also, PLDC partnerships must have (1) value and significance to the community, (2) help preserve culture, agriculture, conservation and preservation; (3) be self-sustaining, (4) have a positive economic impact, and (5) have long-term value, according to the PLDC Operating Framework – 2012.

The agreement by the Governor and PLDC to prepare a PLDC Strategic Plan was announced in a letter Sen. Solomon wrote to Kalbert Young, Chair of the Public Land Development Corporation (PLDC), specifically in response to concerns expressed at statewide public hearings regarding the intention of the PLDC’s purpose and mission.

“Concerns raised related to Native Hawaiian land rights seriously got my attention,” said Sen. Solomon, who has been at the forefront of protection of Hawaiian lands and rights issues for nearly 30 years, beginning with serving as one of the first elected Trustees Office of Hawaiian Affairs.

“Act 55 creating PLDC says that PLDC will pay OHA any ceded land revenues as required by HRS 10-13.5. Further, to the extent that the PLDC has a role in addressing other Native Hawaiian issues, the legislature and governor have agreed to do everything in our power to ensure that the PLDC works collaboratively with the appropriate agencies.”

The state issued the following information on the PLDC to address frequently asked questions relating to the entity’s operating framework, mission, vision, values, and key elements:

Public Land Development Corporation (PLDC) Frequently Asked Questions

What is the PLDC?

Established in 2011 by the Hawai‘i State Legislature, the PLDC is a state entity whose purpose is to create and facilitate partnerships between state and county agencies, businesses, non-profits, and community groups to improve Hawaii’s communities, create jobs and expand public benefit through stewardship and responsible use of land resources. Ultimately, the PLDC seeks to make Hawaii’s lands better for Hawaii’s people.

The PLDC’s creation is based, in part, on empowering the “keep it local” vision. Currently, there are already individuals and groups with projects working toward this goal. Although still in the visioning phase, potential projects may also focus on improvements to 21st Century Schools and state parks and harbors.

Do PLDC projects need to adhere to existing environmental, historic and other federal, state or county laws?

Yes. The PLDC and project partners must adhere to federal and state environmental and historic preservation laws, wage and hour laws, and other relevant laws.

Although Section 19 of Act 55 exempts the PLDC from laws relating to land use and zoning, those activities must be coordinated with the county planning departments and the county land use plans, policies and ordinances.

Is the PLDC required to pay proceeds to OHA, as required by law?

Yes. The PLDC must pay OHA its share of proceeds as required by law. There is no exemption from that requirement within HRS chapter 171C.

What is the status of the PLDC’s administrative rules?

The PLDC is just over a year old; as such, it is still formulating its rules and completing a public review process.

The PLDC has conducted statewide public hearings on its draft administrative rules. Having heard from the community, the PLDC identified pervasive but inaccurate assumptions about the PLDC objectives and what special exemptions it may or may not enjoy.

Therefore, the PLDC will be completing an operating framework to better define its scope, dispelling myths and facilitating final review of its draft administrative rules. The PLDC is also revising its draft administrative rules based on public input and, following PLDC Board approval, will hold another public hearing to provide opportunity for public comment.

Why is requirement of competitive bidding not part of the PLDC’s draft rules?

By not requiring a full competitive bid process, the title agency has flexibility to choose projects that more comprehensively represent the values of the community and the state than may be available through a purely competitive bidding process.

Does the public have an opportunity to provide public input on PLDC projects?

Yes. The PLDC actually expands opportunity for public comment. Meetings at which the public may comment will be required before both the PLDC and any project partner. The PLDC’s draft administrative rules require a project proponent to hold a minimum of one public meeting prior to PLDC board action on the project proposal. In addition, community members are always able to testify before the PLDC board at public meetings when the board is considering a project.

What are the guidelines for PLDC projects?

PLDC project guidelines include but are not limited to the following:

  • PLDC shall comply with HRS Chapter 343 (EIS).
  • PLDC shall comply with HRS Chapter 6E (Historic Preservation).
  • PLDC shall comply with HRS Chapter 92 (Hawai‘i Sunshine Law).
  • PLDC shall comply with HRS Chapter 104 (Wage Rate Schedule).
  • PLDC shall comply with HRS Section 171-64.7 (Restriction on sale of ceded lands).
  • PLDC will pay OHA ceded land revenues as required by HRS Section 10-13.5.
  • Any undertaking by the PLDC will be with the express written consent of the landowner or landowners directly affected.
  • Management and projects shall comply with title agency conditions (“Title agency” refers to any agency that has title to or management over state or county lands).
  • Revenues for DLNR or any other title agency shall be retained or increased with any transfer of management.
  • Eighty-five% of the state’s share of generated net revenues shall go to the title holding agency or agencies.
  • Each identified state parcel must have approval from the BLNR or title holding agency prior to PLDC participation, subject to HRS Chapter 92 (Hawai‘i Sunshine Law), where applicable.
  • PLDC will not develop agricultural lands eligible for designation as Important Agricultural Lands.
  • PLDC will comply with conditions required by the County for infrastructure connection

What is PLDC’s project selection and launch process?

This PLDC Project Flowchart shows the sequential process and tasks from the first step in seeking projects and applicants to announcing the partnership and project for a typical project where the title agency has a board, e.g. the Board of Land and Natural Resources. The PLDC will have announcements for potential projects. Once this process begins, the public will have opportunities to provide comments as noted.

How is the PLDC structured?

The PLDC is governed by a five-member board of directors. Three state agencies (Department of Business, Economic Development and Tourism; the Department of Budget and Finance; and the Department of Land and Natural Resources) are represented on the board either by their director or designee. One member is appointed by the Speaker of the House of Representatives, and another member is appointed by the President of the Senate.

The Office of Hawaiian Affairs (OHA) has stated that, when OHA suggested changes to the PLDC rules, the PLDC maintained that the rule changes were “unnecessary.” Is this true?

The PLDC stated that OHA’s suggested changes were unnecessary because the PLDC was already bound by the same requirements through existing laws. The changes would have been redundant and possibly inconsistent with present or future laws regarding native Hawaiian rights.

The PLDC is already bound to follow the law regarding native Hawaiian rights and will do so as prescribed by the constitution, statutes, rules, and case law.

Does the PLDC have to abide by HRS Chapter 6E Historic Preservation?

Yes. There is no indication in Act 55 that projects undertaken by the PLDC are to be exempt from the historic preservation program under HRS chapter 6E, or any of its requirements.

Does the PLDC have to abide by HRS Chapter 343 Environmental Impact Statements?

Yes. There is no provision in Act 55 that exempts the PLDC from compliance with HRS chapter 343 or other environmental laws.

Does the PLDC have to abide by HRS Chapter 92 Sunshine Law?

Yes. The PLDC is not exempt from HRS chapter 92 Sunshine Law. Like any other board or commission created by statute, the PLDC is still subject to the Sunshine Law. All meetings of the PLDC will be held pursuant to HRS chapter 92. Under HRS chapter 92, the public is allowed to testify on all matters on the PLDC Board’s agenda. Such matters would include any land use or project decision making.

Can the PLDC sell public lands?

The initial premise is that title will remain with the respective agency and only the development rights will transfer over to the PLDC; therefore, the PLDC cannot sell the fee title to any of the lands. If the respective title agency transfers the fee title to the PLDC, the PLDC may sell title, subject to the same restrictions as other state agencies.

Can the PLDC sell ceded lands?

The PLDC has no special powers to sell ceded lands or any other lands beyond that of other state agencies. Under HRS § 171-64.7, the PLDC has the same powers and limitations on its ability to sell land as the Agribusiness Development Corporation, Aloha Tower Development Corporation, Hawai‘i Housing Finance & Development Corporation, High Technology Development Corporation, Department of Agriculture, and University of Hawai‘i. In essence, the PLDC, like these other corporations and entities, may only sell ceded or other land subject to the process and restrictions set forth in HRS § 171-64.7, which includes obtaining legislative approval in advance.

Does the PLDC have the power to condemn?

No. Act 55 does not give the PLDC the power of condemnation.

Can the PLDC force private property owners to pay for infrastructure costs if they live near a project or improvement that is under the jurisdiction of the PLDC?

No. The PLDC cannot force private property owners to pay for infrastructure costs (i.e., project facilities). HRS § 171C-7(b) provides that the assessment of costs are “subject to the express written consent of the landowners directly affected.”

What is the Public Land Optimization Plan?

One of the PLDC’s goals is to develop a Public Land Optimization Plan that includes an inventory of public lands that will help the PLDC create culturally sensitive projects and feasible strategies to allow the PLDC to prioritize potential projects. The optimization plan will guide the PLDC in project selection and evaluation.

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