HomeMy WebLinkAboutCommunication No. 2023-17 T. Keeney Submission 2023-09-03 Complaint for Declaratory & Quo Warranto ReliefDAVID L. HENKIN #6876
ELENA L. BRYANT #9548
EARTHJUSTICE
850 Richards Street, Suite 400
Honolulu, Hawai‘i 96813
Telephone No.: (808) 599-2436
Email: dhenkin@earthjustice.org
ebryant@earthjustice.org
Attorneys for Plaintiffs
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
NĀ ‘OHANA O LELE HOUSING
COMMITTEE; AMERICAN CIVIL
LIBERTIES UNION OF HAWAI‘I; E OLA
KĀKOU HAWAI‘I; HAWAI‘I
ADVOCATES FOR TRULY
AFFORDABLE HOUSING; SIERRA
CLUB; and KŪ‘IKEOKALANI
KAMAKEA-‘ŌHELO,
Plaintiffs,
v.
JOSH GREEN, GOVERNOR OF THE
STATE OF HAWAI‘I; NANI MEDEIROS;
and BUILD BEYOND BARRIERS
WORKING GROUP,
Defendants.
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CIVIL NO.
(Other Civil Action)
COMPLAINT FOR DECLARATORY
AND QUO WARRANTO RELIEF;
ATTACHMENT “A;” SUMMONS
COMPLAINT FOR DECLARATORY AND QUO WARRANTO RELIEF
INTRODUCTION
1.Plaintiffs Nā ‘Ohana o Lele Housing Committee, American Civil Liberties Union
of Hawai‘i, E Ola Kākou Hawai‘i, Hawai‘i Advocates for Truly Affordable Housing, Sierra
Club, and Kū‘ikeokalani Kamakea-‘Ōhelo (collectively “Plaintiffs”), by and through their
Electronically Filed
FIRST CIRCUIT
1CCV-23-0001140
31-AUG-2023
12:36 PM
Dkt. 1 CMPS
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counsel, Earthjustice, hereby seek a judicial declaration that (1) Defendant Governor Josh Green
acted ultra vires when he issued the July 17, 2023, Proclamation Related to Housing
(“Proclamation”), which is Attachment “A” hereto. Specifically, Plaintiffs seek a judicial
declaration that the longstanding shortage of affordable housing in Hawai‘i is not a “disaster[] or
emergenc[y] … resulting from natural or human-caused hazards” within the meaning of Hawai‘i
Revised Statutes (“HRS”) Chapter 127A. 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. Plaintiffs
further seek a judicial declaration that Defendant Green unlawfully and unconstitutionally
usurped legislative powers when he adopted in the Proclamation “Rules Relating to Project
Certification Pursuant to the Governor’s Emergency Proclamation Relating to Housing”
(“Certification Rules”) that purport to modify statutory procedures governing housing and
infrastructure development that the Hawai‘i State Legislature enacted. In sum, Plaintiffs seek a
judicial declaration that the Proclamation is entirely void, unlawful, and unconstitutional.
2.Because the Proclamation is unlawful and unconstitutional, Plaintiffs further seek
quo warranto relief to inquire into and challenge the authority of Defendant Nani Medeiros to
hold and exercise the powers of State Lead Housing Officer, an office that Defendant Green
purported to establish in the Proclamation. Plaintiffs also seek quo warranto relief to inquire into
and challenge the authority of the Build Beyond Barriers Working Group (“Working Group”), a
deliberative body that Defendant Green purported to establish in the Proclamation and to
empower to, among other things, certify housing and infrastructure development, exempting it
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from certain state and county laws. Plaintiffs respectfully ask the Court to enter judgment that
Defendant Medeiros lacks authority to hold the office of State Lead Housing Office or exercise
its powers, as the office is void and unlawful, and that the Working Group likewise has no
authority to exist or exercise powers because it is void and unlawful.
3.Plaintiffs also ask the Court to invalidate any exemptions, certifications,
approvals, or other decisions made by the State Lead Housing Officer or the Working Group
pursuant to the unlawful and unconstitutional Proclamation and Certification Rules.
JURISDICTION AND VENUE
4.This Court has subject matter jurisdiction over the claims for relief in this action
pursuant to HRS §§ 603-2, 603-21.5, 603-21.7, and 632-1.
5.Venue lies in this judicial circuit under HRS § 603-36(4) and (5) because the
conduct giving rise to this action occurred in this circuit and Defendants Green and Medeiros are
domiciled in this circuit.
PARTIES
6.Plaintiff NĀ ‘OHANA O LELE HOUSING COMMITTEE (“Nā ‘Ohana”) is a
community organization established by Kanaka Maoli (Native Hawaiian) residents of Maui
advocating for the protection of traditional and customary practices, natural and cultural
resources, and the environment, as well as truly affordable housing for local residents. Nā
‘Ohana’s members reside, work, recreate, and practice their culture in the State of Hawai‘i, and
most notably in the region known as Maui Komohana (West Maui). Nā ‘Ohana’s members are
tax-paying residents of the State of Hawai‘i and are registered to vote in the state.
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7. Nā ‘Ohana’s membership includes descendants of Chief Pi‘ilani, who united the
island of Maui under one lineage in the late 1500’s, as well as holders of kuleana land titles. As
kupa‘āina (native born) of Maui Komohana, Nā ‘Ohana’s members continue the traditional and
customary practices of their Native Hawaiian ancestors, including gathering of traditional foods
and medicines and traditional agriculture, such as kalo (taro) cultivation. By exempting projects
from laws intended to ensure responsible stewardship of these important cultural and natural
resources and to guarantee meaningful opportunities for public input in decision-making, the
Proclamation threatens Nā ‘Ohana members’ continued ability to engage in traditional and
cultural practices and to pass these practices on to future generations.
8.The protection and caring for iwi kupuna (burials) is a traditional and customary
practice of Native Hawaiians passed down from one generation to the next. This practice is of
critical importance to Native Hawaiians, including Nā ‘Ohana members, because of the deeply
held belief that iwi carry the mana (divine power) of ancestors and connect one to the land of
their birth. The Proclamation’s suspension of laws that protect historic properties, and the power
the Proclamation purports to grant the State Lead Housing Officer and Working Group to exempt
projects from even a truncated historic review process, has and will continue to adversely affect
Nā ‘Ohana members’ ability to continue their work protecting and preserving cultural
repositories and iwi kupuna and threatens their continued ability to practice their culture.
9. Nā ‘Ohana and its members have been actively engaged in recovery efforts in
Lahaina following the tragic wildfires that occurred on August 8, 2023. Nā ‘Ohana and its
members are advocating for rebuilding efforts to center the Lahaina community and ensure that
Lahaina families are not displaced. Nā ‘Ohana and its members are committed to ensuring that
truly affordable housing for local families is constructed in a well-thought out and culturally
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appropriate manner, with full public participation, which requires strict compliance with the
environmental review, historic preservation, and open government laws the Proclamation
purports to suspend.
10.The interests of Nā ‘Ohana and its members in securing water justice,
environmental protection, the protection and preservation of iwi kupuna, and sustainable,
affordable housing for Maui Komohana residents have been, and will continue to be, adversely
affected by the Proclamation, which purports to suspend Hawai‘i state statutes that protect the
environment and historic and cultural resources and that mandate open government and
meaningful opportunities for community engagement and participation in decision-making.
11.Plaintiff AMERICAN CIVIL LIBERTIES UNION OF HAWAI‘I (“ACLU of
Hawai‘i”) is a private, non-partisan, non-profit 501(c)(4) organization that has been protecting
the civil rights and civil liberties of the residents of the Hawaiian Islands, Guam, and American
Samoa since its inception in 1965. The ACLU of Hawai‘i has over 2,600 active memberships in
Hawai‘i, including both individual and joint memberships. ACLU of Hawai‘i members include
tax-paying residents of the State of Hawai‘i, who are registered to vote in the state.
12.The mission of the ACLU of Hawai‘i is to ensure that the government does not
violate fundamental constitutional rights, and it furthers this mission through lobbying, litigation,
and public education. ACLU of Hawai‘i frequently files and participates in lawsuits to protect
and advance rights that are protected by the U.S Constitution and Bill of Rights, Hawai‘i State
Constitution and Bill of Rights, as well as other civil rights and civil liberties statutes. These
rights include many of the provisions that the Proclamation purports to suspend.
13.ACLU of Hawai‘i members’ fundamental right to a constitutional form of
government, which requires three co-equal branches and a separation of powers, has been, and
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will continue to be, adversely affected by the Proclamation’s suspension of democratically
adopted laws and fundamental government accountability protections. Additionally, the rights of
private citizens, including ACLU of Hawai‘i and its members, to enforce these government
accountability protections have been, and will continue to be, adversely affected by the
Proclamation’s unilateral executive suspension of land use, environmental, cultural, and good
governance laws, including the state Sunshine law. The normal democratic, legislative process
that the ACLU of Hawai‘i and its members have tirelessly fought to uphold has considered and
then declined to pass several of the specific policies reflected in the Proclamation. The
Proclamation’s attempted end-run around the democratic process harms, and will continue to
harm, the interests of ACLU of Hawai‘i and its members in good, constitutional governance.
14. Plaintiff E OLA KĀKOU HAWAI‘I is a non-profit community-based
organization established by kānaka (citizens) of Hawai‘i and Kanaka Maoli cultural practitioners,
mahi‘ai (farmers), lawai‘a (fishermen), mea ho‘olako (providers), hahai holoholona (hunters),
lā‘au lapa‘au (traditional medicine practitioners), and grassroots community organizers to protect
and preserve Kanaka Maoli traditions, customs, and sacred spaces, as well as Hawai‘i’s unique
waiwai (cultural and natural resources). E Ola Kākou Hawai‘i members live, work, recreate, and
practice their culture in the State of Hawai‘i. E Ola Kākou Hawai‘i members include tax-paying
residents who noho aō (reside) within the State of Hawai‘i and are registered to vote in the state.
15. E Ola Kākou Hawai‘i’s membership includes iwi kupuna kia‘i (protectors) who
are actively engaged in the protection, repatriation, and reinterment of iwi kupuna and cultural
artifacts in the State of Hawai‘i. For Kanaka Maoli, including E Ola Kākou Hawai‘i’s members,
the protection of iwi kupuna maintains the mo‘okuauhau (genealogical connection) to one’s
ancestors and kulāiwi (homeland). Iwi possesses the mana of one’s ancestors and caring for iwi
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kupuna is an important responsibility handed down from generation to generation. The continued
ability of E Ola Kākou Hawai‘i’s members to conduct cultural and spiritual protocol is
dependent on the ability to protect and preserve iwi kupuna and sacred cultural sites, such as
heiau (place of worship), piko, and wai (water), from development that threatens to unearth,
destroy, desecrate, pollute, divert, and deplete them.
16. E Ola Kākou Hawai‘i and its members spend tremendous time and resources
challenging development projects that threaten to displace iwi kupuna, desecrate cultural sites,
and imperil Hawai‘i’s threatened and endangered species. Consistent with the Kanaka Maoli
kuleana (responsibility) of mālama ‘āina (caring for the land and its resources), E Ola Kākou
Hawai‘i members have testified in agency hearings and filed lawsuits to protect iwi kupuna,
sacred cultural spaces, endangered species, and finite freshwater resources. The continued ability
of E Ola Kākou Hawai‘i and its members to engage in cultural practice and the kuleana of
mālama ‘āina is dependent on the robust protections under Hawai‘i state law that allow for
community engagement and participation in public decision-making, including statutory
provisions that the Proclamation purports to suspend.
17. The cultural and spiritual interests of E Ola Kākou Hawai‘i and its members in
advocating for the protection of important waiwai, such as endangered species, historical
artifacts, and iwi kupuna, have been, and will continue to be, adversely affected by the
Proclamation’s suspension of key environmental review, historic preservation, and open
government laws. By exempting projects from laws intended to protect these important resources
and cultural heritage and to guarantee meaningful opportunities for public input in decision-
making, the Proclamation also threatens E Ola Kākou Hawai‘i members’ continued ability to
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engage in kuleana, cultural and spiritual practices related to the protection of iwi kupuna and
cultural artifacts, and the preservation of these waiwai for future generations.
18. Plaintiff HAWAI‘I ADVOCATES FOR TRULY AFFORDABLE HOUSING
(“HATAH”) is a community-based organization that advocates for effective, long-term,
sustainable solutions to Hawai‘i’s shortage of affordable housing that do not undermine
transparent and inclusive decision-making. HATAH’s members are tax-paying residents of the
State of Hawai‘i and are registered to vote in the state.
19. HATAH’s membership reflects the experiences of working people struggling to
survive in Hawai‘i today. HATAH members include both people whose families have lived in
Hawai‘i for multiple generations and relative newcomers. HATAH members are employed in a
wide range of jobs including, but not limited to, education and counseling, restaurant service,
hospitality, and landscaping. Some HATAH members work multiple jobs just to keep a roof over
their families’ heads.
20. HATAH and its members advocate for affordable housing by testifying in support
of programs that provide housing assistance, such as the Na Hale O Maui housing program. They
also testify against public policies and proposed housing construction projects that serve only to
exacerbate housing costs and fail to ensure housing that is affordable in perpetuity.
21. While the Proclamation invokes the need for affordable housing to justify
stripping away vital checks and balances on government decision-making, the Proclamation
neither requires that any affordable housing actually be built nor provides any guarantees that
any housing that the Proclamation authorizes will remain affordable for the working people of
Hawai‘i, including HATAH’s members, in the long term. By suspending basic legal procedures
for public engagement, transparency, and government oversight, the Proclamation threatens to
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promote backroom deals, more luxury housing developments, and profits for developers, rather
than address the real needs of working people in Hawai‘i for affordable housing. The
Proclamation is harming, and will continue to harm, the interests of HATAH and its members in
promoting long-term, sustainable solutions to Hawai‘i’s shortage of affordable housing.
22. Plaintiff SIERRA CLUB is a nationwide, non-profit, membership organization
registered to do business in Hawai‘i. The Sierra Club has nearly 3 million members and
champions nationwide and more than 4,000 members living throughout the State of Hawai‘i,
making it the largest environmental membership organization in the state. Many of Sierra Club’s
members are tax-paying residents of the State of Hawai‘i and are registered to vote in the state.
23. Sierra Club and its members have long opposed many of the policies that the
Proclamation embodies. Sierra Club has specifically and successfully opposed attempts to limit
or eliminate the Hawai‘i Land Use Commission’s oversight of major land use changes, and to
broaden exemptions to Hawai‘i’s environmental review law. Sierra Club and its members have
also opposed proposals to amend state historic preservation laws in ways that would jeopardize
Native Hawaiian historic properties including iwi kupuna and moepū (burial artifacts). Sierra
Club and its members regularly rely on the public transparency and input processes embodied in
Hawai‘i’s Sunshine Law, HRS chapter 92. Sierra Club has also engaged in community education
initiatives to ensure that the public understands how these processes and other mechanisms
protect the public’s long-term interests, including meeting with community groups,
neighborhood boards, and other organizations to educate the broader public about the wide-
ranging concerns and threats to constitutional democracy embodied in the Proclamation.
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24. Prior to the Proclamation’s issuance, the Sierra Club raised concerns with
Defendant Green’s administration regarding policies that were ultimately included in the
Emergency Proclamation, with Sierra Club’s input largely ignored.
25. The Proclamation gives the Sierra Club’s executive director a seat on the Build
Beyond Barriers Working Group, which the Proclamation tasks with reviewing and certifying
certain projects for exemptions. Sierra Club must divert resources from its other, critical work on
behalf of its members to try to minimize the damage inflicted by the Working Group pursuant to
an illegal process.
26. The interests of Sierra Club and its members have been, and will continue to be,
adversely affected by the Proclamation’s suspension of key environmental, cultural, and public
participation laws and processes. The Proclamation harms Sierra Club and its members’ rights to
a constitutional form of government. It further harms Sierra Club and its members’ rights to a
clean and healthful environment, by suspending key environmental review laws enacted to
protect human health and the environment.
27. Plaintiff KŪ‘IKEOKALANI KAMAKEA-‘ŌHELO is a taxpayer, resident, and
registered voter of the State of Hawai‘i. He is also a cultural practitioner, farmer, and community
organizer to promote aloha ‘āina.
28. Mr. Kamakea-‘Ōhelo currently serves as a Commissioner on the State Land Use
Commission (“LUC”), which oversees important land use issues in Hawai‘i. Because of his
substantial expertise in traditional Hawaiian land usage and knowledge of cultural land practices,
he occupies the LUC’s Cultural Practitioner At-Large Seat.
29. Mr. Kamaka-‘Ōhelo has taken on this kuleana because he is passionate about
ensuring that land use decisions are made in a pono and culturally appropriate manner, while also
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prioritizing the consideration and protection of cultural, historical, and natural resources for our
next generations. As an LUC Commissioner, Mr. Kamakea-‘Ōhelo is tasked with, among other
things, considering petitions for district boundary amendments involving land areas greater than
fifteen acres but less than 100 acres in agricultural, rural, and urban districts, and determining
whether these petitions should be approved, approved with conditions, or denied. His review
involves the consideration of multiple criteria under Hawai‘i’s land use laws including, but not
limited to, the petition’s conformity to the Hawai‘i State Plan, County General Plan, applicable
district standards, and impacts on natural systems or habitats, valued cultural, historical, or
natural resources, and agricultural resources. Mr. Kamakea-‘Ōhelo’s interests in ensuring
responsible land use planning are harmed by the Emergency Proclamation’s suspension of LUC
approvals of redesignation of land up to 100 acres.
30. As a farmer and community organizer with experience in traditional Hawaiian
land use management practices, Mr. Kamakea-‘Ōhelo has been actively involved in grassroots
advocacy to protect iwi kupuna and ‘āina (land) from inappropriate development that threatens
cultural and natural resources and sacred spaces.
31. Mr. Kamakea-‘Ōhelo is actively engaged in the protection, repatriation, and
reinterment of cultural repositories and iwi kupuna, which cultural expert Mary Kawena Pūku‘i
refers to as our most cherished possession. Mr. Kamakea-‘Ōhelo regularly engages in cultural
and spiritual protocol and practices related to the protection of iwi kupuna. The Proclamation’s
suspension of historic properties laws, and the power it purports to grant the State Lead Housing
Officer and Working Group to exempt projects from even a truncated historic review process,
has and will continue to adversely affect Mr. Kamakea-‘Ōhelo’s ability to continue his work
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protecting and preserving cultural repositories and iwi kupuna and threatens his continued ability
to practice his culture.
32. Defendant JOSH GREEN is the Governor of the State of Hawai‘i. Defendant
Green issued the Proclamation that is at issue in this litigation.
33. Defendant NANI MEDEIROS acts as the State Lead Housing Officer, an office
that Defendant Green purported to establish in the Proclamation.
34. Defendant BUILD BEYOND BARRIERS WORKING GROUP is a deliberative
body that Defendant Green purported to establish in the Proclamation.
LEGAL FRAMEWORK
HRS Chapter 127A, Emergency Management
35. In 2014, the Hawai‘i State Legislature enacted Act 111, which added Chapter
127A (“Emergency Management”) to the Hawai‘i Revised Statutes. The Legislature enacted
Chapter 127A because “the State is vulnerable to a wide range of natural and man-made hazards
which may result in emergencies or disasters that threaten the life, health, and safety of its
people; damage and destroy property; disrupt everyday services, business, and recreational
activities; and impede economic development.” 2014 Haw. Sess. Laws Act 111, § 1, at 287-88.
The Legislature sought to “bring Hawaii’s emergency management laws into conformity with
nationwide practices in emergency management by establishing a Hawaii emergency
management agency within the state department of defense and updating and recodifying the
authorizing statutes.” Id., § 1, at 288.
36. HRS section 127A-1, which states the chapter’s policy and purpose, reiterates the
Legislature’s awareness of “the existing and increasing possibility of the occurrence of disasters
or emergencies of unprecedented size and destructiveness resulting from natural or human-
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caused hazards.” HRS § 127A-1(a) (emphasis added). In enacting HRS Chapter 127A, the
Legislature sought, among other things, to “confer upon the governor … the emergency powers
necessary to prepare for and respond to [such] emergencies or disasters.” Id. § 127A-1(a)(2).
37. As the title of the chapter, “Emergency Management,” indicates, the Legislature
intended for the governor to exercise the emergency powers that Chapter 127A confers to
respond to specific events that constitute an “emergency” or “disaster” in the commonly
understood meaning of those terms, such as fires, floods, and hurricanes.
38. In HRS § 127A-2, the Legislature defined “emergency” to mean an “occurrence,
or imminent threat thereof, which results or may likely result in substantial injury or harm to the
population or substantial damage to or loss of property or substantial damage to or loss of the
environment.” (Emphasis added).
39. The Legislature similarly defined “disaster” to mean an “emergency, or imminent
threat thereof, which results or may likely result in loss of life, property, or environment and
requires, or may require, assistance from other counties, states, the federal government, or from
private agencies.” HRS § 127A-2.
40. HRS § 127A-2 defines “hazard” to mean “an event or condition of the physical
environment that results or may likely result in damage to property, injuries or death to
individuals, or damage to the environment that may result in an emergency or disaster.”
(Emphasis added).
41. HRS § 127A-2 defines “state of emergency” to mean “an occurrence in any part
of the State that requires efforts by state government to save lives and protect property,
environment, public health, welfare, or safety in the event of an emergency or disaster, or to
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reduce the threat of an emergency or disaster, or to supplement the local efforts of the county.”
(Emphasis added).
42. HRS § 127A-12(b) authorizes the governor to exercise enumerated “powers
pertaining to emergency management.” The Legislature defined “emergency management” to
mean “a comprehensive integrated system at all levels of government, and also in the private
sector, which develops and maintains an effective capability to prevent, prepare for, respond to,
mitigate, and recover from emergencies or disasters.” Id. § 127A-2 (emphasis added).
43. The governor’s “powers pertaining to emergency management” include the power
to “[p]rovide for the appointment, employment, training, equipping, and maintaining … of such
agencies, officers, and other persons as the governor deems necessary to carry out the purposes
of this chapter.” Id. § 127A-13(b)(9). The Legislature further authorized the governor to “[t]ake
any and all steps necessary or appropriate to carry out the purposes of this chapter
notwithstanding that those powers in section 127A-13(a) may only be exercised during an
emergency period.” Id. § 127A-12(b)(19).
44. HRS § 127A-14(a) provides that “[t]he governor may declare the existence of a
state of emergency in the State by proclamation if the governor finds that an emergency or
disaster has occurred or that there is imminent danger or threat of an emergency or disaster in
any portion of the State.” (Emphasis added).
45. The Legislature provided that, during a declared state of emergency, the governor
may wield specified “powers pertaining to emergency management,” HRS § 127A-13(a),
including the power to “[s]uspend any law that impedes or tends to impede or be detrimental to
the expeditious and efficient execution of, or to conflict with, emergency functions,” id. § 127A-
13(a)(3). HRS § 127A-13(a) does not authorize the governor to amend or modify any law.
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46. The Legislature did not authorize the governor to exercise the extraordinary
powers that HRS section 127A-13 confers to address longstanding issues of public policy.
Rather, the Legislature expressly limited the governor’s exercise of those extraordinary powers
to respond to an “emergency” or “disaster” as defined in the statue and further provided that the
governor may exercise those powers only “during an emergency period.” HRS § 127A-
12(b)(19); see also id. § 127A-13(a).
47. HRS § 127A-25(a) authorizes the governor to “adopt rules for the State,”
including rules that “have the force and effect of law.” The Legislature expressly limited the
governor’s rule-making authority to the adoption of only rules that are “[f]or the purpose of
carrying out any provision of [Chapter 127A].” Id.
The Hawai‘i Constitution
48. Article III, section 1 of the Hawai‘i Constitution provides, in relevant part: “The
legislative power of the State shall be vested in a legislature, which shall consist of two houses, a
senate and a house of representatives.”
49. Article V, section 5 of the Hawai‘i Constitution provides, in relevant part: “The
governor shall be responsible for the faithful execution of the laws.”
50. Article I, section 15 of the Hawai‘i Constitution provides, in relevant part: “The
power of suspending … the laws or the execution thereof, shall never be exercised except by the
legislature, or by authority derived from it to be exercised in such particular cases only as the
legislature shall expressly prescribe.”
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BACKGROUND
Defendant Green Unlawfully and Unconstitutionally Issued the Proclamation In the
Absence of an “Emergency” or “Disaster” within the Meaning of HRS Chapter 127A
51. On July 17, 2023, Defendant Green issued a Proclamation Related to Housing,
invoking emergency powers that HRS Chapter 127A confers on the Governor of the State of
Hawai‘i.
52. In the Proclamation, the sole basis that Defendant Green identified for invoking
Chapter 127A’s emergency powers is that, allegedly, “the current threat to the health, safety, and
welfare of the people of the State of Hawai‘i caused by the lack of affordable housing constitutes
an emergency under section 127A-14, HRS.”
53. The shortage of affordable housing in Hawai‘i, while an important public policy
issue, is neither a “disaster” nor “emergency” as defined in HRS § 127A-2.
54. For purposes of HRS Chapter 127A, to constitute a “disaster” or an “emergency,”
there must be an “occurrence, or imminent threat thereof.” HRS § 127A-2.
55. In issuing the Proclamation, Defendant Green did not identify anything related to
the housing shortage that has occurred, or threatens to occur imminently, justifying the exercise
of extraordinary powers. On the contrary, the Proclamation expressly states that the housing
shortage is a longstanding situation, with “the severe shortfall of affordable housing …
recognized as early as 1935,” nearly a century ago.
56. Moreover, in enacting Chapter 127A, the Legislature expressly limited the
exercise of emergency powers to responses to “disasters or emergencies … resulting from
natural or human-caused hazards.” HRS § 127A-1(a) (emphasis added). For purposes of
Chapter 127A, “hazards” are limited to events or conditions of the physical environment. Id. §
127A-2.
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57. In issuing the Proclamation, Defendant Green did not identify any event or
condition of the physical environment that allegedly constitutes a “hazard.”
58. In sum, there is no “emergency” or “disaster” within the meaning of Chapter
127A that authorizes Defendant Green’s issuance of the Proclamation and exercise of emergency
powers.
59. Defendant Green and others in his administration worked on the Proclamation for
at least six months prior to the Proclamation’s issuance and, during that time, met with over 200
groups and individuals to receive input on the policies to be implemented in the Proclamation.
These months of advance policy work are hallmarks of the formulation and adoption of
legislation, which the Hawai‘i Constitution reserves to the Legislature, not of a response to the
sudden occurrence or threat of “disasters or emergencies of unprecedented size and
destructiveness resulting from natural or human-caused hazards,” the proper province of the
exercise of emergency powers under HRS Chapter 127A. HRS § 127A-1(a).
The Proclamation Unlawfully and Unconstitutionally Suspends and Modifies Statutes That
the Hawai‘i State Legislature Enacted
60. In the Proclamation, Defendant Green invoked the emergency powers conferred
by HRS § 127A-13(a)(3) to purport to suspend a host of laws enacted by the Hawai‘i State
Legislature, including laws enacted to ensure protection of Native Hawaiian burials, historic
properties, the environmental, and open government. Laws that the Proclamation purports to
suspend, in whole or in part, include, but are not limited to, HRS Chapter 6E (“Historic
Preservation”), Chapter 92 (“Public Agency Meetings and Records,” also known as the
“Sunshine Law”), Chapter 205 (“Land Use Commission”), and Chapter 343 (“Environmental
Impact Statements”).
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61. Among other things, the Proclamation purports to suspend HRS sections 205-
3.1(a) and 205-4(a) “to the extent district boundary amendments involving land areas that are
greater than fifteen acres but less than one hundred acres in the agricultural, rural, and urban
districts are required to be processed by the land use commission.” In the legislative session that
ended on May 4, 2023, the Legislature considered and then declined to enact a nearly identical
exemption from LUC approval of district boundary amendments. Defendant Green used the
Proclamation to impose this failed legislative proposal because he concluded that it is too
difficult to pass them legislatively.
62. In the Proclamation, Defendant Green purported to suspend laws “to the extent
necessary to expedite the construction, repair, renovation, and occupancy of housing and
infrastructure projects certified under this emergency Proclamation.” Those are not “emergency
functions” within the meaning of HRS § 127A-13(a)(3).
63. The laws that Defendant Green purported to suspend in the Proclamation do not
“impede[] or tend[] to impede or be detrimental to the expeditious and efficient execution of, or
to conflict with” any “emergency function” within the meaning of HRS § 127A-13(a)(3).
64. In the Proclamation, Defendant Green invoked the emergency powers conferred
by HRS § 127A-25 to adopt “Rules Relating to Project Certification Pursuant to the Governor’s
Emergency Proclamation Relating to Housing,” which purport to modify statutory procedures
governing housing and infrastructure development that the Hawai‘i State Legislature enacted and
to impose instead procedures of Defendant Green’s creation.
65. In the Proclamation, Defendant Green did not identify any provision of Chapter
127A that the Certification Rules purportedly have the purpose of carrying out.
Com. No. 2023-17
19
66. The Certification Rules do not carry out any provision of Chapter 127A, which
relates to “emergency management,” not to approval of long-term housing and infrastructure
projects.
67. While Defendant Green invoked “the lack of affordable housing” as justification
for the Proclamation’s issuance, the Proclamation and the Certification Rules do not require the
construction, repair, renovation, or occupancy of any affordable housing. To be certified and
approved pursuant to the Proclamation and the Certification Rules, projects do not need to create
a single additional unit of affordable housing.
Defendant Green Unlawfully Established the Office of State Lead Housing Office and the
Build Beyond Barriers Working Group
68. In the Proclamation, Defendant Green invoked the “emergency management”
powers conferred by HRS § 127A-12(b)(9) and (b)(19) to establish the office of State Lead
Housing Officer, who, among other things, “shall take appropriate action to support and carry
out the intent and purposes” of the Proclamation.
69. In the Proclamation, Defendant Green invoked the same “emergency
management” powers to establish the Working Group “[t]o accomplish the expedient
development of housing.” The Proclamation provides that the State Lead Housing Officer will
assemble and chair the Working Group, which among other things, certifies housing and
infrastructure development that may be exempted from certain state and county laws and instead
“utilize alternate processes” set forth in the Certification Rules.
70. The Proclamation authorizes the State Lead Housing Officer to “determine that
certain state or county projects may proceed under this Proclamation without first being certified
by the Build Beyond Barriers Working Group.” The Proclamation broadly defines “[s]tate or
Com. No. 2023-17
20
county housing projects” as “housing projects that: 1) utilize state or county land; 2) involve
state or county funds; 3) utilize state or county financing; or 4) utilize state or county exemptions
or waivers from fees, taxes, zoning, or other restrictions.”
71. Neither the State Lead Housing Officer nor the Working Group serve any
function related to “emergency management” within the meaning of Chapter 127A or carry out
any purpose of the chapter. Defendant Green therefore lacked authority under HRS § 127A-12(b)
to establish the office of State Lead Housing Officer or the Working Group and further lacked
the authority to appoint anyone to fill those positions.
FIRST CLAIM FOR RELIEF
(DECLARATORY JUDGMENT – AGAINST DEFENDANT GREEN)
72. Plaintiffs reallege and incorporate by reference the allegations in the preceding
paragraphs.
73. Because there is no “emergency” or “disaster” within the meaning of Chapter
127A that authorized Defendant Green’s exercise of the chapter’s emergency powers, Defendant
Green acted ultra vires when he (1) declared a state of emergency, (2) issued the Proclamation,
(3) suspended laws, (4) established and made appointments to the office of State Lead Housing
Officer and the Build Beyond Barriers Working Group, and (5) adopted the Certification Rules.
74. Because there is no “emergency” or “disaster” within the meaning of Chapter
127A that authorized Defendant Green’s exercise of the emergency powers conferred by HRS §
127A-13(a)(3), Defendant Green’s suspension of laws enacted by the Hawai‘i State Legislature
violates Article I, section 15 of the Hawai‘i Constitution.
75. Because the laws that the Proclamation purport to suspend do not “impede[] or
tend[] to impede or be detrimental to the expeditious and efficient execution of, or to conflict
Com. No. 2023-17
21
with” any “emergency function” within the meaning of HRS § 127A-13(a)(3), Defendant
Green’s suspension of those laws was ultra vires and in violation of Article I, section 15 of the
Hawai‘i Constitution.
76. Because the Certification Rules do not carry out any provision of Chapter 127A,
which relates to “emergency management,” Defendant Green’s adoption of those rules was ultra
vires and violated Article III, section 1 of the Hawai‘i Constitution, which vests the “legislative
power of the State” in the Hawai‘i State Legislature.
77. Because neither the State Lead Housing Officer nor the Working Group serve any
function related to “emergency management” within the meaning of Chapter 127A or carry out
any purpose of the chapter, the governor lacked authority under HRS § 127A-12(b) to establish
the office of State Lead Housing Officer or the Working Group and further lacked the authority
to appoint anyone to fill those positions.
78. An actual controversy exists between Plaintiffs and Defendant Green concerning
the lawfulness of Defendant Green’s (1) declaration of a state of emergency, (2) issuance of the
Proclamation, (3) suspension of laws, (4) establishment of, and appointments to, the office of
State Lead Housing Officer and the Build Beyond Barriers Working Group, and (5) adoption of
the Certification Rules.
79. Plaintiffs’ interests in protection of iwi kupuna, historic artifacts and properties,
the environment, open government, and a constitutional form of government and in promoting
sustainable, responsible housing development are adversely affected by Defendant Green’s
unlawful and unconstitutional issuance of the Proclamation, which attempts to circumvent the
constitutionally mandated legislative process for addressing public policy issues like housing.
Com. No. 2023-17
22
80. There are antagonistic claims between Plaintiffs and Defendant Green regarding
whether Defendant Green acted in excess of statutory authorization and unconstitutionally when
he (1) declared a state of emergency, (2) issued the Proclamation, (3) suspended laws, (4)
established and made appointments to the office of State Lead Housing Officer and the Build
Beyond Barriers Working Group, and (5) adopted the Certification Rules. These disputes require
a judicial determination.
81. The issuance of a declaratory judgment by this Court will terminate the existing
controversy between Plaintiffs and Defendant Green regarding these issues.
82. Plaintiffs are therefore entitled under HRS § 632-1 to a judicial declaration that
Defendant Green acted in excess of statutory authorization and unconstitutionally when he (1)
declared a state of emergency, (2) issued the Proclamation, (3) suspended laws, (4) established
and made appointments to the office of State Lead Housing Officer and the Build Beyond
Barriers Working Group, and (5) adopted the Certification Rules.
SECOND CLAIM FOR RELIEF
(DECLARATORY JUDGMENT – AGAINST DEFENDANTS MEDEIROS AND BUILD
BEYOND BARRIERS WORKING GROUP)
83. Plaintiffs reallege and incorporate by reference the allegations in the preceding
paragraphs.
84. Because Defendant Green acted unlawfully and unconstitutionally in issuing the
Proclamation and in establishing the office of State Lead Housing Officer and the Build Beyond
Barriers Working Group, the office of State Lead Housing Officer and the Build Beyond Barriers
Working Group are unlawful.
85. Because Defendant Green acted unlawfully and unconstitutionally in issuing the
Proclamation and in establishing the office of State Lead Housing Officer, the appointment of
Com. No. 2023-17
23
Defendant Medeiros to that office is unlawful, and Defendant Medeiros has no legal right to
perform the duties of that office or exercise its purported authorities.
86. Because Defendant Green acted unlawfully and unconstitutionally in issuing the
Proclamation and in establishing the Build Beyond Barriers Working Group, the Working Group
has no legal right to perform its duties or exercise its purported authorities.
87. An actual controversy exists between Plaintiffs and Defendants Medeiros and
Build Beyond Barriers Working Group concerning (1) the lawfulness of the office of State Lead
Housing Officer and the Working Group, (2) whether Defendant Medeiros has the legal right to
perform the duties of the State Lead Housing Officer or exercise its purported authorities, and (3)
whether the Working Group has the legal right to perform its duties or exercise its purported
authorities.
88. Plaintiffs’ interests in protection of iwi kupuna, historic artifacts and properties,
the environment, open government, and a constitutional form of government and in promoting
sustainable, responsible housing development are adversely affected by Defendant Medeiros’
and Defendant Build Beyond Barriers Working Group’s assertions of authority to perform the
duties of the State Lead Housing Officer and Working Group and to approve housing and
infrastructure development pursuant to the Proclamation and Certification Rules.
89. There are antagonistic claims between Plaintiffs and Defendants Medeiros and
Build Beyond Barriers Working Group regarding whether (1) the office of State Lead Housing
Officer and the Build Beyond Barriers Working Group are unlawful, (2) the appointment of
Defendant Medeiros to the office of State Lead Housing Officer is unlawful, (3) Defendant
Medeiros has no legal right to perform the duties of the office of State Lead Housing Officer or
Com. No. 2023-17
24
exercise its purported authorities, and (4) the Working Group has no legal right to perform its
duties or exercise its purported authorities. These disputes require a judicial determination.
90. The issuance of a declaratory judgment by this Court will terminate the existing
controversy between Plaintiffs and Defendants Medeiros and Build Beyond Barriers Working
Group regarding these issues.
91. Plaintiffs are therefore entitled under HRS § 632-1 to a judicial declaration that
(1) the office of State Lead Housing Officer and the Build Beyond Barriers Working Group are
unlawful, (2) the appointment of Defendant Medeiros to the office of State Lead Housing Officer
is unlawful, (3) Defendant Medeiros has no legal right to perform the duties of the office of State
Lead Housing Officer or exercise its purported authorities, and (4) the Working Group has no
legal right to perform its duties or exercise its purported authorities.
THIRD CLAIM FOR RELIEF
(QUO WARRANTO RELIEF – AGAINST DEFENDANTS MEDEIROS AND BUILD
BEYOND BARRIERS WORKING GROUP)
92. Plaintiffs reallege and incorporate by reference the allegations in the preceding
paragraphs.
93. Because the office of State Lead Housing Officer and the appointment of
Defendant Medeiros to that office are unlawful, a writ of quo warranto and judgment upon such
writ should issue declaring that Defendant Medeiros cannot fill the office of State Lead Housing
Officer Commissioner and forbidding Defendant Medeiros to perform the duties of that office or
to exercise its purported authorities.
94. Because the Build Beyond Barriers Working Group is unlawful, a writ of quo
warranto and judgment upon such writ should issue forbidding Defendant Build Beyond Barriers
Working Group to perform its duties or to exercise its purported authorities.
Com. No. 2023-17
25
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully ask this Court:
A. For a declaratory judgment entered in favor of Plaintiffs that Defendant Green
acted in excess of statutory authorization and unconstitutionally when he (1) declared a state of
emergency, (2) issued the Proclamation, (3) suspended laws, (4) established and made
appointments to the office of State Lead Housing Officer and the Build Beyond Barriers
Working Group, and (5) adopted the Certification Rules;
B. For a declaratory judgment entered in favor of Plaintiffs that (1) the office of State
Lead Housing Officer and the Build Beyond Barriers Working Group are unlawful, (2) the
appointment of Defendant Medeiros to the office of State Lead Housing Officer is unlawful, (3)
Defendant Medeiros has no legal right to perform the duties of the office of State Lead Housing
Officer or exercise its purported authorities, and (4) the Working Group has no legal right to
perform its duties or exercise its purported authorities;
C. For a writ of quo warranto and judgment upon such writ declaring that Defendant
Medeiros cannot fill the office of State Lead Housing Officer Commissioner and forbidding
Defendant Medeiros to perform the duties of that office or to exercise its purported authorities.
D. For a writ of quo warranto and judgment upon such writ forbidding Defendant
Build Beyond Barriers Working Group to perform its duties or to exercise its purported
authorities.
E. To void and set aside any exemptions, certifications, approvals, or other decisions
made by the State Lead Housing Officer or the Build Beyond Barriers Working Group.
Com. No. 2023-17
26
F. For such additional judicial determinations, orders, and relief as may be necessary
to implement and effectuate the legislative purpose and intent of HRS Chapter 127A and to
implement and effectuate the purpose and intent of the Hawai‘i State Constitution;
G. For an award of the costs of suit herein, including an award of reasonable
attorneys’ fees; and
H. For such further relief as the Court may deem just and proper to effectuate a
complete resolution of the legal disputes between Plaintiffs and Defendants.
DATED: Honolulu, Hawaiʻi, August 31, 2023 .
EARTHJUSTICE
850 Richards Street, Suite 400
Honolulu, Hawai‘i 96813
/s/ David L. Henkin
DAVID L. HENKIN
ELENA L. BRYANT
Attorneys for Plaintiffs
Com. No. 2023-17
OFFICE OF THE GOVERNOR
STATE OF HAWAl'I
PROCLAMATION RELATING TO HOUSING
By the authority vested in me by the Constitution and laws of the State of Hawai'i.
in order to provide relief for disaster damages, losses, and suffering, and to protect the
health, safety, and welfare of the people, I, JOSH GREEN, M.D., Governor of the State
of Hawai'i, hereby determine, designate and proclaim as follows:
WHEREAS, pursuant to Chapter 127A, Hawaii Revised Statutes (HRS),
emergency powers are conferred on the Governor of the State of Hawai' i to respond to disasters or emergencies, to maintain the strength, resources, and economic life of the
community, and to protect the public health, safety, and welfare; and
WHEREAS, housing is the single biggest household expense in Hawai\ making
up 38% of household spending for our local people and cementing Hawaii's place as
the state with the highest cost of living; and
WHEREAS, access to housing for all is essential to the security, health,
wellbeing and prosperity of our communities; and
WHEREAS, the severe shortfall of affordable housing had been recognized as early as 1935, when the Territory of Hawai'i passed Act 190, Session Laws of Hawaii
1935, creating the Hawaii Housing Authority; and
WHEREAS, this shortfall has never been adequately addressed, contributing to a
1,200% increase in home prices over the last 45 years, which is double the 600%
growth in income over the same period; and
WHEREAS, there is a large segment of the population that earns too much to qualify for traditional affordable housing programs, yet too little to afford to buy or rent market rate housing; and
WHEREAS, this gap is not being addressed by existing housing policy, rendering
the need for an increase in a// housing for our local people all the more visible; and
WHEREAS, the gap population unable to afford housing in Hawai'i includes
essential workers, such as healthcare, construction, and educational professionals, who
are forced either to move away from the state or to turn down opportunities to work in Hawai'i in the first place; and
WHEREAS, the housing crisis is causing our state to lose talented local people
to the lower cost of living on the mainland, and we price ourselves out of the market to
attract skilled workers; and
WHEREAS, high housing costs are leading to an increase in emigration from our
state, with 20 people leaving the state every day in 2022; and
ATTACHMENT A
Com. No. 2023-17
WHEREAS, this population decline also includes a great loss in our native
Hawaiian population, more of whom, according to the U.S. Census Bureau, now live 1n
the continental United States than in Hawai'i for the first time in the state's history; and
WHEREAS, the decrease in our Native Hawaiian population presents a serious danger to the preservation of traditional culture, customs and history; and
WHEREAS, Native Hawaiians represent approximately 21 % of Hawaii's
population. However, they represent nearly 40% of the state's homeless population. The
poverty rate among Native Hawaiians is also significantly higher than the poverty rate
for all Hawai'i residents, 12% compared to 9%, or 25% higher than the poverty rate for the entire population (ALICE Report, Aloha United Way, 2022); and
WHEREAS, Native Hawaiians report the highest unemployment rates, lowest
median household incomes, and lowest homeownership rates as compared to all other
Hawai'i households (American Community Survey, 2019); and
WHEREAS, the Department of Hawaiian Home Lands is responsible tor the
management of 203,500 acres of trust lands, 9,978 homestead leases statewide, and 46,560 lease applications; however, over 29,124 applicants are on the waiting list,
where many have languished for decades waiting for residential, agricultural, or pastoral
leases and many have died while so waiting; and
WHEREAS, in a recent analysis of the Department of Hawaiian Home Lands
waitlist, 46% of waitlist households were cost burdened paying more than 30% of their monthly income toward housing (HUD, 2017). In addition, 40% of native Hawaiians on
the waitlist reported being overcrowded; and
WHEREAS, on May 5, 2022, the Thirty-First State Legislature passed HB 2511
HD2 S02 CD1, relating to the Department of Hawaiian Home Lands, and which
Governor David Y. lge signed into law as ACT 279 on July 11, 2022; and
WHEREAS, the purpose of Act 279 is to provide the Department of Hawaiian
Home Lands a multi-pronged approach to eliminate the long-standing waiting list crisis;
and
WHEREAS, Act 279 appropriated a historic $600,000,000 to the Department of
Hawaiian Home Lands to address the needs of native Hawaiians on the Department's waiting list; and
WHEREAS, a 2023 Demographia report placed the median multiple, which is the
median house price to median household income multiple, for Honolulu at 11 .8, making
it the most unaffordable market in the country; and
WHEREAS, Native Hawaiian median household income was $10,037 less than the median for all Hawai'i households in 2019, leaving them with fewer financial
resources to mortgage, qualify or pay for ever-increasing rents (American Community
Survey, 2019); and
2
Com. No. 2023-17
WHEREAS, living in unattordable housing is associated with a higher risk of
chronic health conditions such as elevated levels of cholesterol, respiratory infections, coronary heart disease, cardiovascular disease, arthritis, stroke and cancer; and
WHEREAS, living in unaffordable housing is also associated with mental health challenges, including chronic stress, anxiety and depression; and
WHEREAS, keiki are especially adversely affected by inadequate housing, which
in many cases results in an increased likelihood of child lifetime hospitalizations, cancer,
diabetes, obesity, anl<iety, depression, and antisocial behaviors; and
WHEREAS, the increasing cost of housing places our communities at greater risk of poverty, with one-quarter of our residents at risk of becoming homeless; and
WHEREAS, kupuna must often pay rapidly increasing rental or mortgage
payments out of fixed incomes, contributing to approximately 22 1000 living in poverty
compared against only 8, 135 affordable rental units reserved for the elderly; and
WHEREAS, affordable housing is associated with better health, childhood
development, and educational achievement by freeing up more of a family's budget for
more nutritious food, access to medical care, and stability where family members can thrive; and
WHEREAS, the responsibility for the development of infrastructure to support
housing, which historically had fallen on government, has in recent decades been
placed on developers, passing the costs of infrastructure development onto
homebuyers and increasing the costs of homes; and
WHEREAS, some of the barriers to developing housing is the lengthy and cumbersome planning, zoning and permitting processes, lack of infrastructure, outdated
development plans, the high cost of land and building materials, and the need for new
and affordable financing sources for both developers and buyers; and
WHEREAS, the statewide government job vacancy rate is estimated to be about
30% and nearly every department or agency involved in the housing development
process is suffering from chronic underemployment, making it nearly impossible for housing to be built in a timely manner; and
WHEREAS, the urgency of the housing shortage in Hawai'i requires that the
State, in addition to developing long range plans, develop solutions that can be
implemented in the near future to help ease Hawaii's housing shortage; and
WHEREAS, a 2019 report by HHFDC identified that the State needs
approximately 10,000 new housing units per year to begin addressing the historical housing shortfall, compared to approximately 4,000 new units currently constructed on average per year; and
WHEREAS, a critical barrier to the speedy development of housing is the
lengthy, cumbersome, and antiquated regulatory process, which leads to Hawai'i having
the highest level of regulatory restrictions to development in the United States; and
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Com. No. 2023-17
WHEREAS, this process amounts to an average review time for housing
development applications equivalent to three times the national average; and
WHEREAS, out of the fifteen housing studies commissioned by the state and
counties between 1991 and 2019, all fifteen recommended streamlining the regulatory process; and
WHEREAS, according to a 2021 National Association of Home Builders report,
housing regulations, on average across the U.S., add 23.8% to the sales price of any
new home, which in Hawai'i equates to a conservative estimate of adding $233,000 to
the cost of a new home; and
WHEREAS, streamlining and supporting the regulatory systems through the provision of additional dedicated review staff and alternative processes among other
changes, is necessary to reduce the cost and timeline associated with providing new
quality housing for residents of the State; and
WHEREAS, a dedicated working group is required to oversee and rnonitor
progress of housing projects currently in, and coming into, the pipeline, potentially delivering upwards of 40,000 housing units: and
WHEREAS, the need for an immediate and profound solution to Hawaii's
housing shortage necessitates the advancement of housing projects in a way that will
ensure the production of housing units immediately and going forward; and
WHEREAS, urgent action is needed to combat the ongoing decline in our population, adverse health outcomes for residents of unaffordable homes, and
increasing strain on household finances which jeopardize the social and economic
fabric of the State; and
WHEREAS, the current threat to the health, safety I and welfare of the people of
the State of Hawai'i caused by the lack of affordable housing constitutes an emergency under section 127A-14, HRS, and warrants preemptive and protective actions; and
NOW, THEREFORE, I, JOSH GREEN, M.D., Governor of the State of Hawai'i,
hereby determine and proclaim that an emergency or disaster contemplated by section
127A-14, HRS, has occurred in the State of Hawai'i, and in order to promote and protect the public health, safety, and welfare of the people of the State of Hawai'i, and to prepare for and maintain the flexibility to take proactive, preventative, and mitigative
measures to minimize the adverse impact that the present emergency may cause on
the State and to promote the speedy and safe construction of housing and infrastructure
which will minimize the adverse impact that the present emergency may cause on the
State, and to work cooperatively and in conjunction with federal and county agencies, do hereby invoke the following measures under the Hawaii Revised Statutes:
I.State Lead Housing Officer
Pursuant to sections 127A-12(b}{9) and 127A(b)(19), HRS, in order to provide
emergency relief consistent with the intent of this Proclamation, I hereby direct the appointment of a State Lead Housing Officer who shall take appropriate action to
4
Com. No. 2023-17
support and carry out the intent and purposes of this Proclamation. Without limiting the
generality of the foregoing, the State Lead Housing Officer shall coordinate with and
convene stakeholders, including but not limited to applicable state and county agencies, legislators, non-profit and for profit developers, non-profit housing advocates, the labor
and trade industries, and community members, boards, and commissions in order to accelerate permitting processesi eliminate duplication; explore innovative approaches to
increase the development of housing, including affordable housing, while maintaining
health and safety; share best practices; create working groups to advise on the
development of affordable housing; coordinate priority housing projects: regularly review
applicable accountability; encourage housing development; and encourage transit
oriented development ('TOD"), among other things.
II.Approved Housing Projects
State and county affordable housing projects and private sector mixed
use/mixed-income projects, intended to provide desperately needed housing units, have
experienced ongoing delays related to planning1 permitting, infrastructure, and
financing,
These delays directly contribute to the shortage and increased cost of housing in
Hawai'i.
What is needed is a process to promote the expedient development of housing.
Housing, for purposes of this Proclamation 1 shall be defined as the development
of new owner-occupied residential units offered for sale or rental to Hawai'i residents.
The development of new residential units shall include multi-unit development or redevelopment projects that replace existing residential units or creates additional residential units; 2) state or county housing projects; 3) infrastructure that will primarily
provide services to housing; or 4) Brownfields sites that are developed primarily to
provide housing.
State or county housing projects are further defined as housing projects that: 1)
utilize state or county land; 2) involve state or county funds; 3) utilize state or county financing; or 4) utilize state or county exemptions or waivers from fees, taxes, zoning, or
other restrictions.
A.Build Beyond Barriers Working Group
To accomplish the expedient development of housing the Lead Housing Officer
will assemble and chair the Build Beyond Barriers Working Group that will steward
housing projects through the development process.
The Build Beyond Barriers Working Group will work to facilitate the review and
development of housing projects through a coordinated stakeholder effort and engage entities with key roles in project permitting and site development to increase
transparency, coordination, collaboration, and urgency to timely facilitate, coordinate,
and align project development and reviews to help prevent further delay of critical
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Com. No. 2023-17
projects. The working group will not be a policy making body and will not pursue statutory or administrative rule changes.
The Build Beyond Barriers Working Group will have three main functions:
1.Inventory, track and coordinate the progress of projects approved by,
and project applications to, the State and counties under HRS chapter201 H, non-201 H projects with affordable housing units via inclusionary
zoning, county affordable housing projects, infrastructure projects
related to housing development, and Brownfields sites that are
developed primarily to provide housing; and
2.Review, certify, prioritize, inventory, track and coordinate the progressof projects under the Governor's Emergency Proclamation for Housing;and
3.Review and track all other housing projects to assess the workload of
housing regulatory agencies.
The Build Beyond Barriers Working Group will be chaired by the Lead Housing Officer.
The Build Beyond Barriers Working Group will be established pursuant to the
attached Governor's emergency rules. Housing projects shall be certified based on
applications submitted to the Build Beyond Barriers Working Group subject to the
attached Governor's emergency rules.
The Build Beyond Barriers Working Group certified projects may be used for the
construction of infrastructure projects such as roads, wells, sewer and other utility
installations that will serve housing projects. Certified projects may also include
Brownfields sites that are developed primarily to provide housing. These projects may
service or contain elements other than housing.
Any housing project certified under this Proclamation will be required to pay all
mechanics and laborers employed on the project minimum prevailing wages for the
corresponding work classifications as determined by the Director of Labor and Industrial
Relations pursuant to Chapter 104, HRS, subject to the project labor agreement in
place, for the duration of the project until it is completed.
B.Determination of Project Eligibility
The housing projects will be selected based on a combination of factors
including, but not limited to, location, total number of units, median income levels for all
affordable units, projected construction commencement date, status of entitlements,
and financing status.
C.Project Agreements
If the Build Beyond Barriers Working Group finds that { 1) the developer has the
necessary skill and experience to develop and manage a project of the intended size
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Com. No. 2023-17
and scope; (2) the developer has the necessary resources, including financial resources, to construct and operate the project; and (3) the project is likely to result in
the commencement of construction of additional new residential units within 36 months
from the execution of the development agreement, the Build Beyond Barriers Working
Group may accept the project under the Proclamation. Upon acceptance, the Build
Beyond Barriers Working Group shall enter into a development agreement with the developer to set forth the terms of the certification of the project under this Proclamation
and the accompanying rules.
The development agreement will be recorded as a deed restriction or as a
restriction on the leasehold interest on the property.
Once the development agreement is executed and filed, a project is "certified"
under the Proclamation. An annual review by the Governor's office or the Lead Housing
Officer of every project is required to verify compliance with the conditions under the development agreement.
The Lead Housing Officer may also determine that certain state or county
projects may proceed under this Proclamation without first being certified by the Build
Beyond Barriers Working Group.
Ill. Path Forward
Pursuant to sections 127A-12{b)(1) and (4), HRS, I call on the state and county agencies to cooperate and to forge paths forward to address the affordable housing crisis. The State and the counties should be engaging in discussions regarding mutual
aid agreements and what assistance can be provided to speed up the processes that
impede the creation of housing across the state.
Pursuant to sections 127A-12(b)(4), (9), (11), (16), and (19), HRS, I direct all
state agencies to mal<e the review, planning, approval and processing of permits related to housing a priority.
IV.Suspension of Laws
Section 127A-13(3) HRS, Additional Powers in an Emergency Period, to the
extent necessary to expedite the construction, repair, renovation, and occupancy of
housing and infrastructure projects certified under this emergency Proclamation, I
hereby suspend the following statutes and regulations:
Chapter 6E, HRS, Historic Preservation, to the extent necessary to expedite the provision of certified housing projects, subject to the attached Governor's
emergency rules.
Section 26-35(a)(4), HRS, Administrative supervision of boards and
commissions.
Section 37-41 1 HRS, Appropriations to Revert to State Treasurvi
Exceptions.
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Com. No. 2023-17
Section 37-74(d), HRS, Program Execution, except for sections 37-74(d)(2)
and 37-74(d)(3), and any such transfers or changes considered to be authorized
transfers or changes for purposes of section 34-74( d)( 1) for legislative reporting
requirements.
Section 40-66, HRS, Appropriations Lapse.
Chapter 46, HRS, County Organization and Administration, to the extent
necessary to allow for the construction, repair, renovation, and occupancy of housing
and infrastructure projects certified under this Proclamation which suspension shall not
inolude the minimum requirements and standards necessary for health and safety, including applicable floodplain management powers and duties necessary for National
Flood Insurance Program participation, for projects certified under this Proclamation.
Notwithstanding this Proclamation, counties may establish their own process or rules for
ensuring that a Certified Project meets building safety standards.
Chapter 76, HRS, Civil Service Law, to the extent necessary to allow for qualified personnel to be hired that would be directly involved in the construction,
development or redevelopment of housing, the filling of public housing vacancies, the
processing of housing vouchers, or the processing of development related permits,
licenses, or approvals, pursuant to the attached Governor's emergency rules.
Chapter 89, HRS, Collective Bargaining in Public Employment, to the extent
necessary to allow for personnel to be hired that would be directly involved in the
construction, development or redevelopment of housing, the filling of public housing
vacancies, the processing of housing vouchers, or the processing of development
related permits, licenses, or approvals.
Chapter 89C, HRS, Public Officers and Employees Excluded fromCollective Bargaining, to the extent necessary to allow for personnel to be hired
that would be directly involved in the construction, development or redevelopment of
housing, the filling of public housing vacancies, the processing of housing vouchers,
or the processing of development related permits, licenses, or approvals.
Chapter 92, HRS, Public Agency Meetings and Records, to the extent that any notice requirements or any other provisions of Chapter 92 may delay the expeditious
action, decision, or approval of any board or agency.
Section 103-2, HRS, General Fund.
Chapter 103D, HRS, Hawaii Public Procurement Code, to the extent that the department has determined that it is not practicable or advantageous to procure the services required via traditional procurement methods and the procurement promotes
the construction, repair, renovation, and occupancy of housing. The suspension is for
the solicitation process only and is subject to the attached Governor's emergency rules.
Section 104-2(i)(3), HRS, Applicability; wages; hours, and other
requirements.
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Com. No. 2023-17
Section 107-24(c), HRS, Authority and duties of the council, to the extent
necessary to suspend the ability of the state building code council to amend or update the Hawai'i state building codes to allow for consistency and stability in the construction
of housing.
Section 201 H-36(a)(5)(A), HRS, Exemption from general excise taxes.
Section 201 H-38{a)(3), HRS, Housing development; Exemption from
statutes, ordinances, charter provisions, and rules, that requires approval of the
legislative body of the county in which the housing project is situated.
Sections 205-3.1 (a) and 205-4(a), HRS, Land Use Commission, to the extent
district boundary amendments involving land areas that are greater than fifteen acres
but less than one hundred acres in the agricultural, rural, and urban districts are
required to be processed by the land use commission. Petitions for changes in district
boundaries of lands greater than fifteen acres but less than one hundred acres in the
agricultural, rural, and urban districts shall be subject to the attached Governor's
emergency rules.
Section 206E-5.6, HRS, Hawaii Community Development Authority, and
section 15-218-80, Hawaii Administrative Rules ("HAR"), to the extent necessary to
allow for the timely development of additional residential units.
Sections 302-1601 to 16121 HRS, School Impact Fees.
Chapter 343, HRS, Environmental Impact Statements, to the extent necessary
to expedite the provision of approved housing projects, subject to the attached Governor1s emergency rules.
Sections 601-1.51 708-817, 708-8181 708-820(1)(c), 708-830.S{i)(d), 708-
840(1 )(c) and (d), HRS, to the extent these sections contain provisions for u,e
suspension, tolling, extension, or granting of relief from deadlines, time schedules, or
filing requirements in civil, criminal, or administrative matters before the courts of the state or to the extent that these sections contain provisions for criminal penalties that are automatically heightened by reasons of any declared disaster or emergency.
Section 127 A-25(c), HRS, rules and orders, to the extent the requirement to
publish rules adopted pursuant to chapter 127 A, HRS, in a newspaper of general
circulation in the State shall be suspended inasmuch as the posting of such rules on the
applicable state or county government website or by other means of official
announcement as provided by this section brings the rules' content to the attention of
the general public.
Pursuant to section 127A-25, HRS, I hereby adopt the Rules Relating to Project
Certification Pursuant to the Governor's Emergency Proclamation Relating to Housing
attached hereto. These rules shall have the force and effect of law.
v.State Cooperation
Section 127 A-12(b), HRS. I hereby direct all state agencies and officers to
9
Com. No. 2023-17
cooperate with and extend services, materials, and facilities as may be required to
assist in all efforts to address the objectives of this Proclamation.
VI.Sever ability
If any provision of this Proclamation is rendered or declared illegal for anyreason, or shall be invalid or unenforceable, such provision shall be modified or deleted,
and the remainder of this Proclamation and the application of such provision to other
persons or circumstances shall not be affected thereby but shall be enforced to the
greatest extent permitted by applicable law.
VII.Enforcement
No provision of this Proclamation, or any rule or regulation hereunder, shall be
construed as authorizing any private right of action to enforce any requirement of this
Proclamation, or of any rule or regulation. Unless the Governor, Director of Emergency
Management, or their designee issues an express order to a non-judicial public officer,
no provision of this Proclamation, or any rule or regulation hereunder, shall be construed as imposing any ministerial duty upon any non-judicial public officer and shall not bind the officer to any specific course of action or planning in response to the
emergency or interfere with the officer's authority to utilize his or her discretion.
I FURTHER DECLARE that this Proclamation is not intended to create, and does
not create, any rights or benefits, whether substantive or procedural, or enforceable at law or in equity, against the State of Hawai'i, the counties of this State, or any State or
County agencies, departments, entities, officers, employees, or any other person,
I FURTHER DECLARE that the disaster emergency relief period shall
commence immediately and continue through September 15, 2023, unless terminated
or superseded by separate proclamation, whichever shall occur first.
APPROVED:
Anne E. Lopez
Attorney General
State of Hawai'i
Done at the State Capitol, this 17th day of July, 2023 9 L/::f ,,-..,u-..-,,..,;:,
Josh Green, M.D. Governor of Hawai'i
10
Com. No. 2023-17
§ ,
§2
§3
§4
§5
§6
§7
§8
§9
Rules Relating to Proiect Certification
Pursuant to the Governor's Emergency Proclamation Relating to Housing
Purpose and Authority
Definitions
Applicability of Proclamation and Rules
Build Beyond Barriers Working Group
Certification Application
Project Eligibility
Development Agreements
Prioritization of Certified Projects
Application of Suspended Laws
A Chapter 6E, HRS, Historic preservation program
B.Section 46-4, HRS, County Organization and Administration
C.Chapter 76, HRS, Officers and Employees
0.Chapter 1030, HAS, Hawaii Public Procurement Code
E.Section 20 I H-38(a)(3), Housing development; exemption from statutes,
ordinances, charter provisions, and rules.
F Sections 205-3.1 (a) and 205-4, HRS, Land Use Commission
G.Chapter 343, HRS, Environmental Impact Statements
§ 1 Purpose and Authority
These rules are intended to expedite the construction, development, and
redevelopment of housing under the Governor's Emergency Proclamation Relating to
Housing ("Proclamation") tlirough the certification of projects that will be allowed to
proceed under the Proclamation. Only projects certified by the Build Beyond Barriers
Working Group ("Working Group") are eligible for coverage under the Proclamation and
these rules. These rules are intended to clarify the application of the Proclamation to
certified projects.
Com. No. 2023-17
These rules are adopted pursuant to sections 127 A-11, 12, 13, and 25, Hawaii
Revised Statutes (HRS), to respond to the housing emergency declared by the
Governor and have the force and effect of law.
§ 2 Definitions
"Agency'' means any department, office, board, or commission of the state or
county government that is part of the executive branch of that government.
''Housing" means:
a.Owner-occupied residential units offered for sale to Hawai'i residents;
b.Residential units offered under rental agreements with terms of one year
or more to Hawai'i residents;
c.Infrastructure that will primarily provide services to housing;
d.Brownfields sites that are developed primarily to provide housing; or e.State or county housing projects that:
1.Utilize state or county land;
2.Involve state or county funds;
3.Utilize state or county financing; or4.Utilize state or county exemptions and waivers."Owner-occupant" means any individual in whose name sole or joint legal title is
held in a residential unit that, simultaneous to such ownership, serves as the individual's
principal residence, as defined by the state of Hawai'i department of taxation, for a
period of not less than five years: provided that the individual shall retain complete possessory control of the premises of the residential unit during this period unless the possessory control is broken as a result of (1) serious illness of any of the owner
occupants; (2) unforeseeable job or military transfer; (3) unforeseeable change in
marital status, or change in parental status; or (4) any other unforeseeable occurrence.
An individual shall not be deemed to have complete possessory control of the premises if the individual rents, leases, or assigns the premises for any period of time to any other
person in whose name legal title is not held; except that an individual shall be deemed
to have complete possessory control even when the individual conveys or transfers the
unit into a trust for estate planning purposes and continues in the use of the premises
as the individual's principal residence during this period.
"Project proponent" means the person or entity applying to have a project
certified. This person or entity may be referred to as the developer of the project.
"Significant historic property'' means historic property that is significant under
Hawaii Administrative Rules (11HAR") sections 13-275-6(b) or 13-284-6(b).
§ 3 Applicability of Proclamation and Rules
The suspension of laws set forth in the Proclamation shall apply only to those projects which are confirmed by the Lead Housing Officer ("LHO") as certified by the
Working Group as having met the requirements for eligibility set forth in these rules
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Com. No. 2023-17
("Certified Projects''). The LHO may also determine that certain state or county projects
are suitable to proceed without first going through certification.
Certified Projects will not be subject to the state or county regulations suspended
under the Proclamation while still ensuring that Certified Projects meet minimum requirements for health and safety, including applicable floodplain management powers
and duties necessary for National Flood Insurance Program participation. Certified
Projects may utilize alternative processes as set forth in these rules.
§ 4 Build Beyond Barriers Working GroLJp
A.Membership of the Working Group shall consist of representatives of state
agencies and representatives of non-state agencies and entities. The members shall be as follows:
1.Representatives from the following state agencies:
a.Office of Planning and Sustainable Development;
b.Department of Business Economic Development and Tourism;
c.Hawaii Housing Finance Development Corporation:
d.Department of Land and Natural Resources;
e.State Historic Preservation Division;
f.Commission on Water Resource Management;
g.Land Use Commission;
h, Department of Health;
1.Department of Transportation;
). Hawaii Public Housing Authority;
k.Department of Budget and Finance; and
I.The Island Burial Council of the island where the project is
located,
2.Representatives of the following non-state entities:
a.The chairs of legislative subject matter committees relating to
housing (non-voting members only);
b.County mayors of the island where the project is located;
c.County permitting and regulatory agency representatives of the
island where the project is located;
d.County department of water supply representatives of the island
where the project is located;
Com. No. 2023-17
e.Hawaiian Electric Co. or Kauai Island Utility Cooperative, asapplicable, for the island where the project is located;
f.Honua Consulting, LLC;
g.The Executive Director of Housing Hawaii's Future;
h.Economic Research Organization at the University of Hawai'i("UH ERO");
i.The Executive Director of the Sierra Club of Hawai'i;
j.The Executive Director of the Land Use Research Foundation;
and
8.The membership of the Working Group shall meet in a time and manner
prescribed by the LHO.
C.Any action taken by the Working Group shall be by a simple majority ofthe members present at a meeting.
D.The duties of the Working Group will include certification of projects under
the Proclamation; evaluation of the progress of certified projects and, where necessary,
assist in moving projects through regulatory or review processes; and provide advice to certified projects based on the expertise of members of the Working Group.
E.The LHO shall have the authority to invite participation by subject matter
experts to attend any meeting of the Working Group as deemed appropriate and
necessary to provide information and support the activities of the Working Group.
F.Members of the Working Group shall have the authority to raisecompliance concerns regarding any certified project. The LHO shall investigate and
resolve any concerns raised by the Working Group members regarding certified
projects. Where the LHO finds that a certified project is in violation of its applicable
development agreement, the LHO has the authority to take appropriate corrective action, including, but not limited to, decertification in accordance with the terms of the development agreement.
§ 5 Certification Application
Project proponents seeking to have the terms of the Proclamation apply to their
project shall submit to the Working Group the following documentation:
1.Name, address, email address and telephone number of the projectproponent and each member of the project team. If the project proponentis a corporation or other legal entity, evidence of the project proponent's
status and registration with the Department of Commerce and Consumer
Affairs, and the names, address, email address and telephone number ofeach officer and director of the entity. The name, address, email address,and telephone number of the main point of contact should be identified;
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Com. No. 2023-17
2.Proof that the project proponent has site control such as a deed,
agreement of sale, long term lease, option to lease, or other disposition;
3.A description of the project proponent's experience or involvement in the
development of housing or projects of similar scope, size, and complexity;
4.A description of the project proponent's past or current experience or
involvement in any programs or its provision of services, including other
than housing, that would give evidence of the project proponent's ability to
manage a project of this type and scope;
5 A conceptual site plan showing the general development of the project site
including the locations and descriptions of proposed and existingbuildings, parking areas, unusual site features, proposed and existing
major drainage facilities, and any proposed and existing ground
disturbance;
6 A development plan including the number of units, maximum occupancy,
construction method, infrastructure capacity and needs, and an
anticipated schedule of construction. The infrastructure needs should
include a description of methods of sewage and solid waste disposal andsources of water and other utilities;
7.The proposed financing for the project, including the manner in which theproject wlll be financed during the development and construction of the
project, and upon completion of the project and sources of repayment of
such financing. This should include any proposed grants, donations,loans, bonds, tax credits, or other sources of financial resources; and
8.The project proponent's plan for obtaining public input, which shall include,
but not be limited to, at least one public meeting (e.g., via Neighborhood
Board meeting, public hearing, or town hall) during which public input shall
be accepted and documented, at least one public notice of wide circulation
regarding the project which shall offer the public a period for review and
submission of written comments of at least thirty days from the date ofpublication, and a plan to consult with appropriate stakeholder groups
regarding any impacts to environmental or cultural resources, if such
impacts are reasonably anticipated;
9.A full list of agency approvals that the project would be required to obtain
absent certification, including any waivers, variances, and/or exemptions
being sought from said agencies;
10.A summary description of the affected environment. including, but notlimited to, suitable and adequate regional, location, and site maps such asFlood Insurance Rate Maps, Floodway Boundary Maps, United States
Geological Survey topographic maps, United States Department of
Agriculture soil maps, state sea level rise exposure area maps, and any
technical reports on the project area, including but not limited to geological
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Com. No. 2023-17
surveys, hydrological surveys, biological surveys, historic building or other cultural surveys, and traffic studies;
11 . Identification and analysis of impacts, including but not limited to
environmental and cultural impacts, including impacts to traditional or
customary practices, and alternatives considered; and
12.Proposed avoidance, minimization, or mitigation measures to beimplemented for the purpose of limiting any potential environmental or
cultural impacts, if appropriate.
§ 6 Project Eligibility
A.A project is eligible for certification it the Working Group finds that:
1.the project proponent has the necessary skill and experience to
develop and manage a project of the intended size and scope;
2.the project proponent has the necessary resources, including
financial resources or a viable plan to secure financial resources, to
construct and operate the project;
3.the project is likely to result in the commencement of constructionof additional new residential units within 36 months from the
issuance of the Proclamation; and
4.the project is unlikely to result in the irreversible and irretrievable
commitments of significant environmental or cultural resources,
including impacts to traditional or customary practices, that cannot
be mitigated.
B.A project may also be allowed to proceed under the Proclamation if it is a
state or county project for Which a developer has been retained that has
the necessary skill and experience to develop a project of the intendedsize and scope, the project is likely to result in the commencement ofconstruction of additional new residential units within 36 months from the
issuance of the Proclamation, and the project has the necessary
resources, including financial resources or a viable plan to secure financial
resources, to construct and operate the project. The LHO may approvefor the state or county project to proceed under the Proclamation withoutcertification.
§7 Development Agreements
Upon acceptance of a project by the Working Group, the project proponent shall
enter into a development agreement to set the terms of the certification of the project
under the Proclamation.
A.A development agreement shall:
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Com. No. 2023-17
1 . Describe the land subject to the development agreement;
2.Specify the permitted uses of the property, the density or intensity of
use, and the maximum height and size of proposed buildings;
3.Provide, where appropriate. for reservation or dedication of land for
public purposes as may be required or permitted pursuant to laws,
ordinances, resolutions, rules, or policies in effect at the time ofentering into 1he agreement; and
4.Provide a termination date: provided that the parties shall not be
precluded from extending the termination date by mutual agreement or
from entering subsequent development agreements.
B.The terms and conditions of the development agreement shall include:
�. The purpose of the agreement, which shall include the development of
housing units and/or infrastructure;
2.A description of the role and responsibilities of the project proponent
and other parties to the agreement:
3.A construction commencement deadline set 36 months after
certification of the project;
4.Time required to complete construction of the project:
5.The period of mandatory affordability for applicable residential units:
6.The penalty for sale of residential units with affordability requirements
during the mandatory affordability period; and
7.Standard clauses that the Working Group will determine to be required,
including but not limited to, the following:
a.Indemnity
b.Severability
c.Termination;
d.Penalties for noncompliance, including, but not limited to,
decertification; and
e.Assignability.
§ 8 Prioritization of Certified Projects
The Working Group shall prioritize the processing or review of certified projects
by applicable state and county agencies. The certified projects may be prioritized based on, but not limited to:
7
Com. No. 2023-17
1 . The inclusion of affordable housing as a component of the certified
project. Affordable housing shall refer to housing that is restricted to buyers
earning 140% AMI or below. The amount of affordable housing included in the
project may affect the priority given to the project.
2.The status of the financing for the project.
3.The status of entitlements required for the project.
4.The projected commencement and completion dates for the project.
§ 9 Appl\cation of Suspended Laws
A.Chapter 6E, HRS, Historic preservation program
Prior to utilizing the suspension of Chapter 6E, HRS, the LHO, in
consultation with members of the Working Group, shall make a
determination for each certified project as to the effect of the certified
project on historic properties, aviation artifacts, or burial sites, especiallythose listed on the Hawaii register of historic places. The determination of
effect shall be made in accordance with the following rules:
1.Projects in Highly Sensitive Areas. Projects located in highly sensitive
areas or within a historic district, are presumed to require an
archaeological inventory survey ("AIS") unless such survey(s) have
already been previously reviewed and accepted by the State HistoricPreservation Division ("SHPD'') for the same or substantially similar
project located in the same project area. The terms under which an
AIS must be prepared shall be set forth in the project's development
agreement and shall be binding upon the project proponent. Highlysensitive areas are defined as areas known to include a high density ofhistoric, cultural, or archaeological resources, or which have a high
propensity to contain a high density of historic, cultural, or
archaeological resources.
2.Projects in Moderately Sensitive Areas. Projects located in moderatelysensitive areas in which no significant historic properties have been
previously identified within the project area, may proceed without
further review under this part under an archaeological monitoring
program to be implemented by a qualified archaeological firm actively
permitted under HAR chapter 13-281. The terms under which thearchaeological monitoring program will be implemented shall be set
forth in the project's development agreement and shall be binding upon
the project proponent. Moderately sensitive areas are defined as
areas known to include a medium density of historic, cultural, or
archaeological resources.
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Com. No. 2023-17
3.Proiects in Nominally Sensitive Areas. Projects located in nominally
sensitive areas or where the project area has been substantially
disturbed by previous excavation or other ground disturbing work andno significant historic properties have been previously identified, may
proceed without further review under this part. Nominally sensitiveareas are defined as locations known to include a low density of
historic. cultural, or archaeological resources.
4.If human remains are identified during archaeological monitoring
and/or project construction, SHPD, the County Coroner's Office and
the County Police Department will be immediately notified in
accordance with HAR section 13-300-40. The State of Hawai'iDepartment of Land and Natural Resources SHPD Inadvertent
Discovery of Human Skeletal Remains Checklist will be filled out and
submitted to SHPD. A state inventory of historic places ("SIHP")
request will be completed and submitted to SHPD. All construction
work within the vicinity of the finding of a human burial will be stopped,
although work in other areas of the project may continue.
5.Physical examination of human skeletal remains may be conducted by
a qualified professional to help evaluate ethnicity as deemed
necessary. Physical examination shall be conducted in a respectful
manner, with a recognition of the sensitivities associated With
deceased human beings. Physical examination methods of human
remains shall consist only of the observation of metric, non-metric, orother relevant traits needed to suggest ethnicity, or a combination
thereof, if necessary. Any intrusive or destructive examination method
including, but not limited to, x-ray, radiocarbon dating, and
mitochondrial DNA analysis, is prohibited. Photography of human
skeletal remains subject to examination pursuant to this subsectionshall be prohibited. Failure to comply with this subsection shallconstitute a violation of the development agreement.
6.Skeletal remains shall remain in place to the extent feasible until a
determination of whether to relocate or preserve the remains in place
is made.
7.In the event that human skeletal remains are identified during an
archaeological monitoring program for identification purposes orproject construction on a certified project in which an inventory surveywas not completed, the project proponent shall be responsible for
having a qualified professional respectfully examine the remains and
make a determination as to: 1) the number of individuals represented,
2)the relevant context in which the remains were found, and 3) the
suggested ethnicity of each individual or a finding that ethnicity couldnot be suggested by reasonable belief.
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Com. No. 2023-17
8.If a qualified professional determines that the remains are likely of
Native Hawaiian descent, the project proponent shall publish notice of
the find in a newspaper of general circulation in the state within seven
days of the discovery. The LHO shall also place the notice on the
Office of the Governor website. The notice shall include the following:
a.Location of the discovery, including project address and tax map
key number (TMK)
b.A brief summary of any relevant historic information known about
the property
c.Contact information for descendants seeking additional information
or who may want to request descendancy recognition pursuant to
HAR section 13-300-35.
9.The project proponent shall be responsible for assisting any
respondents to the public notices in completing timely descendancyclaim applications, should such assistance be requested.
; 0. Within fourteen days of the discovery, the project proponent shall
provide a proposed burial treatment plan to the LHO, SHPD, and the
island burial council of jurisdiction, which shall include the following:
a.A description of proposed treatment of all burial sites including astatement of preservation in place or relocation: (A) In the eventpreservation in place is proposed, statements describing: (i) Short
term measures to immediately protect all burial sites including, but
not limited to, fencing, buffers, and site restoration; and (ii) Long
term measures to properly manage and protect all burial sitesincluding, but not limited to, buffers, landscaping, and access byknown lineal or cultural descendantsi (B) In the event relocation is
proposed, statements describing: (i) Reasons that warrant
relocation; (ii) The methods to be utilized to conduct disinterment;
(iii)The location and manner by which Native Hawaiian skeletalremains and any burial goods will be curated where reburial will not
occur immediately following disinterment; (iv) The proposed reburial
site location mutually agreed upon by the landowner and any
recognized lineal descendants; (v) The manner in which the
reburial site will be prepared; (vi) Short term measures toimmediately protect the reburial site, including but not limited to
fencing and buffers; and (vii) Long term measures to properly
manage and protect the reburial site including, but not limited, to
buffers, landscaping, and access by known lineal or culturaldescendants;
b.Maps clearly indicating the location of all identified Native Hawaiian
burial sites located at the property, including where applicable, the
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Com. No. 2023-17
spatial relationship between Native Hawaiian burial sites and any
proposed construction actiVities, drawn to scale;
c. Names of any known lineal or cultural descendants recommended
by the department and recognized by the council and all
respondents to the public notices, and their respective positions
regarding burial site treatment;
d.Any descendancy claim applications associated with the burial(s).
11.Where it is reasonably determined that the remains are of NativeHawaiian descent, the appropriate island burial council shall have sixty
days from the date of submission of a proposed burial treatment plan
to the LHO1 SHPD, and island burial council to determine whether
preservation in place or relocation of the remains is warranted.
a.The project proponent shall be responsible for notifying all
descendants and other interested parties by electronic mail of anycouncil meeting during which treatment of the remains will be taken
up.
b.If the appropriate island burial council fails to render a decision
within sixty days of submittal, the project proponent's proposed
treatment shall be considered approved. The project proponent
rnay implement the plan with SHPD's concurrence.
12.If a qualified professional determines that the remains are likely not of
Native Hawaiian descent or that an ethnicity could not be suggested by
reasonable belief, the project proponent shall have fourteen days from
the date of discovery to provide a proposed burial treatment plan to the
LHO and SHPD. SHPD shall make a determination as to the
disposition of the remains within seven days. If within seven daysSHPD fails to render a decision thereon, the treatment plan shall beconsidered approved and the project proponent may implement the
plan as proposed,
13.Any certified project that has any historic property within the project
area is required to fully identify and inventory all historic properties that
may be adversely affected by a project, regardless of integrity orsignificance. Projects are required to confirm or obtain SIHP numbersfor all historic properties located within the project area prior to the start
of construction.
14.Any certified project that may adversely affect a significant historic
property is required to make a reasonable and good faith effort to avoid
or minimize any effect to significant historic properties. If an adverse
effect cannot reasonably be avoided, the project shall mitigate theadverse effect. Mitigation may take different forms, including, but not
limited to, preservation, archaeological data recovery, reburial,
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Com. No. 2023-17
ethnographic documentation, historic data recovery, and architectural
recordation. The terms under which mitigation will be implemented will
be reviewed and accepted by the LHO in consultation with SHPD and
shall be set forth in the project's development agreement and be
binding upon the project proponent.
8.Section 46-4, HRS, County Organization and Administration
Notwithstanding any law to the contrary, each county may adopt
reasonable standards to allow the construction of multi-family residential
dwelling units on any lot where business activities are permitted as
follows:
1.For the County of Hawaii this includes the following: NeighborhoodCommercial, General Commercial, Village Commercial, Industrial -
Commercial Mixed
2, For the County of Maui these include the following: All BusinessDistricts
3.For City and County of Honolulu these include the following: AllBusiness Districts
4.For the County of Kauai these include the following: All Commercial
Districts.
C.Chapter 76, HRS, Officers and Employees
1.Recruitment and hiring of employees under the Proclamation shall
follow, to the extent possible, the principles set forth in section 76-1,
HRS. To the degree possible, the following shall be followed in the
recruitment and hiring of employees:
a.Equal opportunity for all in compliance with all laws prohibiting
discrimination. No person shall be discriminated against in
examination, appointment, reinstatement, reemployment,
promotion, transfer, demotion, or removal, with respect to any
position when the work may be efficiently performed by the
person without hazard or danger to the health and safety of the
person or others;
b.Impartial selection of individuals for public service by
competitive means which are fair, objective, and practical; and
c.Equal pay for equal work shall apply between classes for those
classes determined to be equal based on objective criteria and
adequate job evaluation unless it has been agreed in
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Com. No. 2023-17
accordance with chapter 89 to negotiate the repricing of
classes.
2.All employees hired under the Proclamation shall be exempt from
civil service and shall be deemed to have been hired as employees
engaged in a special or demonstration project approved by the
governor. The term of these employees shall be for a period not to
exceed one year.
3.Prior to hiring any employee under the Proclamation, the appointing
agency shall determine that the employee:
a.would be directly involved in the construction, development or
redevelopment of housing, the filling of public housing
vacancies, the processing of housing vouchers, or in the
processing of development related permits, licenses, or
approvals; and
b.it would be impractical or untimely to hire the employee under
the civil service system under chapter 76, HRS.
4.The appointing agency shall ensure that all employees hired under
1he Proclamation meet the following:
a.Persons seeking employment meet the physical and mental
requirements necessary for the safe and efficient performance
of the duties of the position for which they are being hired and
can be expected to continue to meet physical and mental
requirements for continued employment.
b.Each employee is able to perform their duties satisfactorily and
without undue hazard to the employee or others or without
undue hardship on the operation of the program.
c.Each employee is qualified to perform the duties and functions
of the position that they are being hired into.
D.Chapter 1030, HRS, Hawaii Public Procurement Code
Prior to utilizing the suspension of chapter 103D1 HRS, the department
has determined that it is not practicable or advantageous to procure the services
required via traditional procurement methods. This suspension is for the solicitation
process only. Pursuant to HRS section 1030-31 O(c) and HAR section 3-122-112, the
procuring officer shall verify compliance (i.e. vendor is required to provide proof of compliance and may use the Hawaii Compliance Express) for all contracts awarded. Copies of the compliance and the award posting are required to be documented in the
procurement/contract file.
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The award is required to be posted on the Hawaii Awards and Notices
Data System (HANDS) pursuant to Procurement Circular PC2019-05 within seven days
after award.
E.Section 201 H-38(a)(3), Housing development; exemption from statutes,
ordinances, charter provisions, and rules.
Section 201 H-38(a)(3) is suspended to allow the counties in which the
housing project is to be situated to approve the project, with or without modifications,
without requiring the county councils to approve, approve with modification, or
disapprove the project by resolution. Instead, the counties may approve, approve with
modification, or disapprove the project through action of the planning director of the
respective county.
F.Sections 205-3.1 (a) and 205-4, HRS, Land Use Commission
1.Section 205-3.1 (a), HRS is suspended to the extent that district
boundary amendments involving land areas that are greater than
fifteen acres but less than one hundred acres in the agricultural,rural, and urban districts, excluding lands delineated as important
agricultural lands, are required to be processed by the land use
commission. Any such amendments shall be determined by the
appropriate county within sixty (60) days from the date of petition.
Should the county fail to render a decision thereon, the petitionshall be considered approved, and the project proponent may
proceed with the plan subject to the terms and conditions provided
in the petition. This suspension does not apply to lands in the
conservation district.
2.Section 205-4, HRS is suspended to the extent that it applies to
petitions for changes in d1strict boundaries of lands greater than
fifteen acres but less than one hundred acres in the agricultural,
rural, and urban districts, excluding lands delineated as important
agricultural lands. This suspension does not apply to lands in theconservation district.
G.Chapter 343, HRS, Environmental Impact Statements
Prior to approving the suspension of Chapter 343, HRS, the proposing orapproving agency or LHO shall make a determination for each certified
project whether the project is likely to cause the irreversible and
irretrievable commitment of resources that cannot be mitigated should it
be implemented or whether the cumulative impact of planned successive
actions in the same place, over titne, is likely to be significant, or whetheran action that is normally insignificant in its impact to the environment
may be significant in a particularly sensitive environment.
14
Com. No. 2023-17
The determination of ettect shall be made as follows:
1.The proposing or approving agency or LHO, in making the project
determination, shall review all documentation provided by the
project proponent under Section 5 of these rules and undertake an
analysis to determine whether the action qualified under this partmerits suspension of chapter 343. In addition, the project
proponent shall provide for consideration:
a.All comments and responses to the comments received and
made pursuant to the project proponent's plan for public input,
and
b.Any additional documents or information requested by the
proposing or approving agency or LHO in consideration of this
determination.
2.For projects found to likely not be significant in its impact, project
proponents will be allowed to proceed after first electronically
publishing the determination on the Office of the Governor websiteand submitting the determination to the Office of Planning andSustainable Development Environmental Review Program for
publication in the environmental notice bulletin.
3.For projects found likely to cause the irreversible and irretrievable
commitment of resources that cannot be mitigated or which may
be significant in its impact either cumulatively or because it is
being proposed in a particularly sensitive environment, project
proponents will be required to go through the HawaiiEnvironmental Review Process under chapter 343, HRS.
4.Any terms under which a determination has been made shall beset forth in the project's development agreement and shall be
binding upon the project proponent.
15
Com. No. 2023-17
_______________________________________________________________________________________________ ,
STATE OF HAWAI‘I CIRCUIT COURT OF THE FIRST CIRCUIT
SUMMONS
TO ANSWER CIVIL COMPLAINT
CASE NUMBER
PLAINTIFF VS. DEFENDANT(S)
TO THE ABOVE-NAMED DEFENDANT(S)
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PREMISES NOT OPEN TO THE GENERAL PUBLIC, UNLESS A JUDGE OF THE ABOVE-ENTITLED
COURT PERMITS, IN WRITING ON THIS SUMMONS, PERSONAL DELIVERY DURING THOSE HOURS.
A FAILURE TO OBEY THIS SUMMONS MAY RESULT IN AN ENTRY OF DEFAULT AND DEFAULT
JUDGMENT AGAINST THE DISOBEYING PERSON OR PARTY.
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Effective Date of 28-Oct-2019
Signed by: /s/ Patsy Nakamoto
Clerk, 1st Circuit, State of Hawai‘i
Form 1C-P-787 (1CCT) (10/19) Summons to Complaint 5*$&
NƖ ‘OHANA O LELE HOUSING COMMITTEE; AMERICAN
CIVIL LIBERTIES UNION OF HAWAI‘I; E OLA KƖKOU
HAWAI‘I; HAWAI‘I ADVOCATES FOR TRULY
AFFORDABLE HOUSING; SIERRA CLUB; and
KNj‘IKEOKALANI KAMAKEA-‘ƿHELO
JOSH GREEN, GOVERNOR OF THE STATE OF HAWAI‘I;
NANI MEDEIROS; and BUILD BEYOND BARRIERS
WORKING GROUP
David L. Henkin
Elena L. Bryant
EARTHJUSTICE
850 Richards Street, Suite 400
Honolulu, HI 96813
(808) 599-2436
David L. Henkin and Elena L. Bryant
EARTHJUSTICE
Com. No. 2023-17