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HomeMy WebLinkAboutCOM 0620.040 2002-2004 FRED C. HOLSCHUH, M.D. .•+.9_[!;.w Tel: (SOR) 961-8264 Council Memher `~S" Fax: (808) 961-8912 y6ii~i 6 ~ ~ ~i • r O.,:N'i, HAWA17 COUNTY COUNCIL Covn[v o/Hawai'i Hawai `i Counly l3uilding s 25 ~upuni Slreel ~7 ~ Flilo, Hamai'i 9(720 O n May 26, 2004 MEMORANDUM ~T~ :J TO: James Y. Arakaki, Chair, and Council Members ti FROM: Fred C. Holschuh, M.D. c SUBJECT: Bill 270, A Call for Rettection I am writing to express my deep reservations about Bill 270, a proposed charter amendment to dedicate 2% of real property tax revenue to a county preservation fund. I would like to propose an alternative measure to achieve its worthy goals and purposes. Please accept my apologies for the length of this communication. I have attempted to thoroughly examine this issue with the hope that it contributes to our Council's thoughtful deliberation on this matter. Sometimes, opposition to a particular bill does not signify opposition to its intent whatsoever, only to its means. I am a strong supporter of reliable funding to protect and enhance vital recreational and conservation lands. I believe this is true of all my Council colleagues. But I think this measure warrants reconsideration due to its inherent flaws and their consequences. I fully trust that we can adopt and fund a winning strategy to accomplish the same objectives set forth in this bill. My foremost concern is constitutional. Bill 270 proposes to make the Hawaii County Charter - essentially our county constitution -the instrument for a permanent and fixed spending measure. Embedding specific appropriations in a municipal charter is neither a classic nor prudent constitutional purpose. Traditionally, a charter like our own creates a municipal corporation and outlines its principles, functions, organization, powers and, importantly, its limitations. It is wisely constrained in its language, scope and purpose. l/awai `i County is an Equal Opportunity Providev and EmployerCOlt1YN. ~ Ref. Tos~-~~O~r~r~r~~ LUU9 Raf. Leo"= dV James Madison, who crafted much of the U.S. Constitution and brilliantly advocated for its ratification, summed up this principle in two wonderfully astute sentences: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary" [Federalist Papers, No. 47, January 1788]. Bill 270 summons us to be angels on behalf of open space and environmental protection. So far, so good. But it goes further. It sets a precedent that tramples on Madison's external and internal "controls on government." It proposes to make our charter a vessel for fixed and permanent appropriations immune from the legislative branch and its budgetary authority. This is a slippery slope. The most telling example of the dangers inherent in this course is the recent fiscal ruin of the State of California, where ballot spending initiatives have occurred since 1912. By 2003-04, according to the University of California and Initiative and Referendum Institute (November 2003), some 32% of appropriations in the California state budget were locked in by initiatives. The cumulative result of all this mandated spending was a budget deficit of $30 billion in 2003, prompting a recall of California's governor and subsequent election of actor Arnold Schwarzenegger to set things right. California's recent events made for some memorable humor on late night talk shows, but the political lesson is more sobering. Washington Post columnist David Broder ("Million Dollar Recall," July 30, 2003) provided [his analysis: "A series of popular initiatives stretching back 25 years to the famous Proposition 13, has put limits on the taxing power of the state and local communities, while other initiatives have mandated spending on schools, prisons and other projects. The net result: The governor and legislature have little room to maneuver." Historically, Hawai`i's legislature has taken a very cautionary stance toward initiatives and referenda, in part due to the lurching track record of ballot measures in western states. The State of Hawaii has no provision for citizen initiative to create laws or amend the state constitution. Hawai`i's constitution may only be amended by a State Constitutional Convention or by voters acting on proposals from the Legislature. At the county level, the charters of Maui, Kauai and the City & County of Honolulu specifically prohibit initiatives extending to capital programs or annual budgets, the authorization or repeal of the levy of taxes, the appropriation of money, the issuance of bonds, the salaries of county employees or officers, or any matter governed by collective bargaining agreements [Honolulu City Charter, Article III, Section 3-401; Kauai County Charter, Article 22, Section 22-02; Maui County Charter, Article l1, Section 11-1]. Hawaii County's charter contained a similar "Limitation to Powers" provision relating to initiative until 1982, when it was deleted from the charter pursuant to a petition by the Hawaii County Taxpayers Association. As a result, nothing presently prohibits Hawaii County voters 2 from launching and qualifying an initiative by 15 % or more of voters for any proposed ordinance that supports the acquisition of open space lands. The initiative process presents, nonetheless, a formidable challenge. It is far easier for single issue advocacy groups to lobby councils directly to enact laws or, alternately, to approve by two-third's vote various charter amendment proposals every two years. That brings us to Bill 270, as proposed by the Trust for Public Land (TLP), and its precedent- setting proposal to adopt a permanent funding mechanism through the vehicle of the Hawaii County Charter. The Trust for Public Land is a highly successful and respected national conservation organization and advocacy group. Founded in 1982, TPL's financial summary indicates that it has completed some 2,708 park and open space projects since 1973, protecting some 1.92 million acres with a total fair market value of $3.5 billion. This is a staggering and commendable record of achievement. In tandem with other leading land trusts -the Nature Conservancy, the American Farmland Trust, Land Trust Alliance, The Conservation Fund, and many other local land trusts and regional conversation groups -the Trust for Public Land has spearheaded a national movement for the acquisition and protection of parks, gardens, greenways, riverways, open space in the path of sprawl, lands for watershed protection, scenic beauty, recreation, and the preservation of historic landmarks and landscapes. The booming land trusts have their critics as well. In an article titled "Forever and Ever, Amen" (Range Magazine, Winter 2004), Tim Findley writes: "The Trust for Public Land, for example, reported in its 2000 tax form that the group spent $70 million to acquire land for public use. But TPL only conveyed $34 million of land in that year-at a net gain of more than $97,000, while cashing in more than $29 million in securities. Total assets of the nonprofit that year were listed as $231 million, only $3.2 of that in land, buildings and equipment. It should be said that in comparison to the Nature Conservancy, TPL is a small-time player." In recent years, the Trust for Public Land has become a leading advocate for ballot initiatives on behalf of long-term, dedicated public funding of open space and land conservation measures. Much of its work and focus is illustrated in its 2002 LandVote booklet encouraging supporters to "publicly endorse local ballot questions for open space funding" and to "contribute financially to ballot campaigns." In doing so, TPL is exercising its right and considerable clout -its net worth reportedly tops $200M - to influence elected officials and the voting public. This brings us to the question of the constitutional integrity of TPL's campaign on behalf of Bill 270 in Hawaii County. 3 While a handful of jurisdictions have specifically adopted charter amendments to mandate dedicated funding of land protection measures -San Francisco, Ann Arbor, and several Rhode Island townships -the vast majority of cities and counties have chosen to enact funding measures, whether via ballot issues or not, through traditional ordinances or bond measures. Interestingly, while the Trust for Public Land meticulously records electoral ballot measures in support of conservation, it does not tally the tax increases and bond floats adopted annually by legislative bodies in support of public lands. Its agenda is aimed at promoting ballot measures. "All politics takes place on a slippery slope," wrote political columnist George Will in 1984. "The most important four words in politics are `up to a point."' I wish to suggest that Bill 270 takes us to the edge of a very slippery slope. By mandating an inflexible percentage of real property tax revenues annually, Bill 270 invites an unavoidable tension in our county budget. Already, we have arbitrated salary agreements, Employee Retirement System contributions, Americans With Disabilities Act appropriations, debt service, and many other fixed, obligatory costs of government. While 2% might seem a harmless amount, its net effect may be considerable. Moreover, while it is not represented as a tax increase, it is, for all practical purposes, precisely that - a tax. It is also precedent-setting, and this is its most troubling aspect. Having once adopted a single issue mandated appropriation via charter amendment, how can future Councils refuse similar requests? There are any number of noble goals and crying needs that arguably require reliable, long-term funding -affordable housing and substance abuse treatment are just two examples. How, in good conscience, can any future Council refuse the next imploring advocate's identical wish for voter-approved, charter-mandated spending? It will be difficult and awkward, to say the least. Single issue passions tend to obliterate a balanced approach [o the public's business. Once the gates of constitutional prudence are abandoned, we should not be surprised at a multitude of populist spending initiatives clamoring for every possible mandated taxpayer dollar. This is not a reckless speculation. All we have to do is remember recent history. California. Oregon. 2003. There are other, far more prudent ways to support the objective of conservation and open space. We can focus on the objective - a funding base for protection of vital lands. In 1999, the Brookings Institution Center on Urban and Metropolitan Policy published a discussion paper that reviewed 240 referenda in 31 states that asked voters to approve a basket of finance and regulatory actions ranging from conventional park and recreation funding to the purchase of farms and coastal areas to enhance greenbelts in communities experiencing the 4 encroachment of urban sprawl. The Brookings study reported that among the measures approved "new local bonds and taxes fared better, perhaps because residents identified more closely with the projects that would be funded." This distinction is crucial with respect to Bill 270. Bill 270 would set aside 2% of real property taxes without first identifying specific lands and conservation projects. However, the majority of approved conservation measures surveyed by Brookings were very site-specific. Voters knew precisely what parkland, bikeway, brownfield conversion, protected habitat or waterfront project their tax monies were funding. According to Brookings, "Successful measures typically are quite specific about purpose, projects, funding and process -how the measures will be implemented, where, how much they will cost, and what the decision process will be." The cart was not before the horse. Many of the conservation ballot measures approved in recent years have been bond measures, not "pay as you go" plans consuming annual operating revenues as proposed by Bill 270. The advantages of funding via bonds are four-fold. First, bond measures identify the capital acquisition or improvement - e.g., the County and its citizens know what they are paying for. Second, bond floats may support the acquisition of more costly lands or projects than a fund accumulating approximately $2.SM annually. While $2.SM may seem a hefty sum, it can easily be swallowed up by costly local real estate values. Third, bonds spread out the impact to taxpayers over time, indeed over the span of generations. Fourth, as noted by Mark Glisson, a director of acquisition for the Florida Department of Environmental Protection, "bond sales are a relatively non-controversial way to generate money. It's extremely popular with the voters, it's not competing with education or child care funding" [Stateline, August 29, 2003]. In simple terms, there is more than one way to fund and support protected lands. The Council is already empowered to adopt bond measures to acquire land. The Council may also receive gifrs of property by resolution. Indeed, we should more fully explore the opportunity for private donations to a county preservation fund. We might also wish to propose that a certain proportion of state transient accommodation taxes be applied to a county preservation fund. I think it would be wise for the Council to embrace a more thoroughgoing approach to the objectives proposed by Bill 270 and the range of funding options to fulfill them. We could do this by tapping the Council's own FY 2004-05 contingency fund to convene and support the work of a County of Hawaii Public Preservation Lands Task Force, to be established by ordinance. I propose that each Council member contribute $10,000, for a total task force budget of $90,000. What can the task force do? First, it can examine and propose best practices for establishing and managing a preservation fund. It can explore a wide range of funding mechanisms, not only real property taxes. 5 It can carefully consult the State Department of Land and Natural Resources to assure that the county is not wastefully replicating state functions. Similarly, the task force can examine the purposes of a preservation fund and its harmony with the County's General Plan and development plans. It can more thoroughly understand the opportunities for partnerships with land trusts and the federal government. We should welcome and invite the active participation and guidance of the Trust for Public Land and The Nature Conservancy. It can seek legal counsel from our own Corporation Counsel and other legal advisors to assure that protocols established for land acquisition are sound, agreeable and, to the greatest extent possible, liability-proof. We need not rush headlong into acquisition of disputed lands in a manner that leaves county taxpayers vulnerable to lawsuits. A well-funded task force can conduct public meetings to gather citizen input and entertain proposals for specific land acquisitions. It can hold one or more conferences and invite experienced land trust managers and experts to advise us. It also can be a force for consensus-building and community healing. Too often, our community and taxpayers are plagued with land disputes that forge ill will and prolonged, costly litigation. We should do better. The task force should be composed of a healthy cross- sec[ion of members representing the environmental community and island landowners. It should include representatives from our Planning Department, Department of Parks and Recreation, Corporation Counsel and Finance Department. Finally, the task force can report back to the Council in one year's time with recommendations for the establishment of a preservation fund, its funding mechanism(s), and its best implementation. If we're going to buy more ground and grow government in the process, we should tackle this objective from the ground up. The time spent will be well worth it. I wish to thank Council Member Gary Safarik for his bold, visionary leadership to enhance environmental protection in Hawaii County. I extend the same thanks and appreciation to Mr. Josh S[anbro and the Trust for Public Land. Together, they have steered our Council on the path to an important and abiding commitment. Setting aside Bill 270 will not diminish that commitment. At this late hour, we should care enough to think through our goals and our options to fulfill them. Theodore Roosevelt, the forefather of America's national parks and wilderness preservation, made a memorable observation in a speech in Rhode Island in 1902. He said, "It is difficult to make our material condition better by the best law, but it is easy enough to ruin it by bad laws." With that regard for cautionary wisdom, let us proceed to craft a good law and together commit our best effort to our fellow citizens and the island we so dearly cherish. 6