LETTER: Former Senator Explains Legislative Subterfuge of PLDC

Editor’s note: Gary Hooser served in the state Senate representing Kaua‘i and Ni‘ihau from 2002 to 2010, holding the post of majority leader during his final four-year term. He is currently on leave from his governor-appointed post as director of the Office of Environmental Control and is a candidate for the Kauai County Council, on which he served from 2002 to 2006.

By Gary Hooser

Former state senator and majority leader Gary Hooser. Courtesy photo.

Many have asked how come none of the regular environmental and public interest watch-dog groups sounded the alarm on Act 55 earlier? How did such a law get passed?

Among other things, Act 55 creates the Public Land Development Corporation (PLDC) and gives it the power to develop public lands with projects that are “exempt from all statutes, ordinances, charter provisions, and rules of any government agency…”

This could mean the construction of a hotel, a high-rise condominium, a shopping center, housing developments or just about anything that could be built on public lands and all would be “exempt from all statutes, ordinances, charter provisions, and rules of any government agency….”

There are many very bad elements to Act 55 and the powers granted to the PLDC but to me, the exemption power is the clearest example of why this new law should be repealed.

How did this happen. How did it slip through the checks and balances of our legislative process?

A better question is how did it sneak through the process because that is what happened. In my honest opinion.

A cursory look at the legislative history show clearly there were four hearings held on what started out as SB1555 and ended up as Act 55 and the creation of the PLDC. On the surface it looks like there were four opportunities for the public to testify and engage in the democratic process. On the surface that is – but the truth is below the surface and deserves a good look. It may even deserve some sunshine.

Let’s take a look at those four opportunities for public input.

1) Senate Bill 1555 was introduced on Jan. 26, 2011 and a public hearing in the Senate Water/Land/Housing Committee was held on 2/8/11 (public notice given on 2/2/11). At this time SB1555, among other things, did not contain any provisions for exempting projects from “all statutes, ordinances, charter provisions, and rules of any government agency…” and it also provided for an 11-member Board of Directors and required neighbor island representation. Much of the language of SB1555 focused on the Ala Wai and Keehi Harbor issues. There was minimal public testimony. A Senate Draft 1 (SD1) version was approved by the committee containing only minor technical amendments.

2) On 3/01/11, the Senate Ways and Means Committee held a “public decision making” (public notice given on 2/25/11). While written “comments” may be offered, no public testimony was accepted at this meeting. A SD2 version was approved by the committee containing only minor technical amendments.

3) On 3/18/11, the House Water/Land/Ocean affairs Committee held a public hearing (public notice given on 3/15/11) and at the end of the hearing passed out SB1555-House Draft 1 that was dramatically different from the prior version. The House version now included exemptions from county permitting and zoning requirements. The House version also stripped out the requirement for neighbor-island representation. Other significant changes were also made to this version, dramatically changing it from the prior SB1555-SD2.

It is important to note that up until the end of this committee hearing and the actual publishing of the amendments, the public is not aware of the nature of the changes and the potential impact of SB1555-HD1.

4) On 4/07/11, the House Finance Committee held a public hearing (public notice given less than two hours prior to the hearing – see actual hearing notice here. At the end of this hearing, the House Finance Committee passed out SB1555-HD2 after making further changes.

The measure then went to Conference Committee – where there is no public testimony allowed – and additional, very significant changes were made.

Quick and dirty (very dirty) summary: The public had only one opportunity to testify on the substance of Act 55 as we know it today and that was at the House Finance Committee which provided less than two hours public notice.

Unless you were in the building and checking your smart phone during the two-hour period preceding this hearing you had no way of knowing it was even on the agenda. The original version did not exempt any projects from zoning or permitting. This was first added in the House and then dramatically expanded in Conference Committee. There are many other changes that happened during this process which explains why many/most environmental watchdog groups did not engage this issue early.

Disgusting is too kind a word to use to describe the process used to give birth to Act 55 and the Public Land Development Corporation.

Please don’t take my word for it. It’s all here in the legislative history that is available at: http://www.capitol.hawaii.gov/Archives/measure_indiv_Archives.aspx?billtype=SB&billnumber=1555&year=2011

To be clear, I offer these comments purely from a personal and individual perspective and not in any official capacity whatsoever.

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