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Home My WebLink About2023-09-13 HCDP Meeting PacketMitchell D. Roth Mayor Zendo Kem Director Lee E. Lord Managing Director Jeffrey W. Darrow Deputy Director West Hawai•i Office 74-5044 Anc Kcohokalolc Hwy Kailua-Kona, Hawai'i 96740 Phone (808) 323-4770 Fax (808) 327-3563 County of Hawai'i PLANNING DEPARTMENT East Hawai'i Office IO I Pauahi Street, Suite 3 Hilo, Hawai'i 96720 Phone (808) 961-8288 Fax (808) 961-8742 NOTICE OF PUBLIC MEETING HAMAKUA COMMUNITY DEVELOPMENT PLAN ACTION COMMITTEE NOTICE IS HEREBY GIVEN of the following matters to be considered by the Hamakua Action Committee {AC) in accordance with the provisions of Section 92-7, Hawai'i Revised Statutes. ,_, DATE: TIME: LOCATION: Wednesday, September 13, 2023 5:30 P.M. Laupahoehoe Public Library 35-2065 Old Mamalahoa Highway Laupahoehoe, Hawai'i 96764 c::::> ,_, '-JJ (.,., l°T1 --0 I \JI N This meeting will be held by Interactive Conference Technology (ICT) through Zoom. The publ1'2 may provide verbal testimony at the meeting by joining Zoom or attending in-person at the physical location listed above. To register for verbal testimony please contact staff at cdp@hawaiicounty.gov or {808) 961-8288. Zoom Registration link: https://www.zoomgov.com/meeting/register/vJlscOGhgjloGyiWyZkuusMrDmyr5jyHc6I If internet connection is lost, the public meeting will be automatically recessed to restore communication. If lost connection exceeds 30 minutes, the meeting will be terminated. AGENDA CALL TO ORDER ROLL CALL ANNOUNCEMENTS • Hamakua CDP Action Committee New Member Update PUBLIC COMMENT ON AGENDA ITEMS: The Public may provide verbal testimony at the meeting by joining the Zoom meeting or attending in-person. Please register to testify by contacting cdp@hawaiicounty.gov. Comments may be made either during the public comment portion of the agenda or just prior to the relevant business item. With discretion of the Chair of the CDP Action Committee, comments may be limited to three (3) minutes in length per agenda item. Written testimony.may,,b:e submitted via email at cdp@hawaiicounty.gov or in person at www.planning.hawaiicounty.gov Hawai 'i Cou111y is an Equal Opportunity Provider and Employer planni ng@.hawaiicounty.gov C. Page 2 the Hilo or Kona Planning Department, up to two (2) business days prior to this meeting (see the Notice Section below). APPROVAL OF THE MINUTES: The Action Committee will consider the draft minutes for the Hamakua Action Committee Meetings on March 21, 2023, April 12, 2023, and May 10, 2023. BUSINESS: 1. Hamakua Wildfire Preparedness: Hawai'i Wildfire Management Organization on Hamakua Wildfire Management Plan Presentation 2. Governor's Housing Proclamation Discussion (https://governor.hawaii.gov/wp- content/u ploads/2023/07 /2307072-1.pdf) 3. Action Committee Email Addresses on the Hamakua CDP Website 4. AC Meeting Cadence: Setting of dates, times, and venues. 5. Permitted Interaction Group Updates: o Waipi'o Wahi Pana o Housing 6. Future Agenda Item Recommendations COMMUNICATIONS: • Communication No. 2023-14 Big Island Now article, Poll results: Readers say more than one solution to best prevent wildfires on Big Island • Communication No. 2023-15 T. Keeney's letter to Governor's Chief Housing Officer (Consideration of Hamakua CDP directives when reviewing housing development plans in Hamakua) • Communication No. 2023-16 T. Keeney Email to County Council (Removal of CDP AC member email addresses from the websites_8.21.23) • Communication No. 2023-17 T. Keeney Submission 2023-09-03 Complaint for Declaratory & Quo Warranto Relief AGENDA FOR NEXT MEETING: Action Committee members will discuss potential agenda items for the next meeting including revisiting topics from meetings that did not have quorum. ADJOURNMENT This agenda and all related documents are available in the Planning Department's Hamakua Community Development Plan Action Committee folder via the County of Hawai'i Public Documents Repository: https://records.hawaiicounty.gov/Weblink/1/fol/109367 /Rowl.aspx. These documents may also be requested from the Planning Department by calling (808) 961- 8288 or emailing cdp@hawaiicounty.gov. NOTICE: The purpose of the public hearings is to afford all interested persons a reasonable opportunity to be heard on the above items. A person desiring to submit oral or written testim9ny shallli-fldicate their name and whether the testimony i~ or,,_J~tlr behalf or as a representative1of an1organization or individual. Written testimony can be submitted via email www.planning.hawaiicounty.gov Hawai'i County is an Equal Opportu11izy Pro1-ider and Employer planning(ti'hawaiicoumv.go,• Page 3 or hard copy. Hard copies should include an original and nine copies and be submitted no later than 4:30pm two days prior to the hearing date. If you need an auxiliary aid/service or other accommodation due to a disability, contact the Planning Department at (808) 961-8288 as soon as possible, and no later than five (5) working days prior to the meeting date. Requests made as early as possible have a greater likelihood of being fulfilled. Upon request, this notice may be made available in alternate/accessible formats. If you are a lobbyist, you must register with the Hawai'i County Clerk within five days of becoming a lobbyist. {Article 15, Section 2-91.3(b), Hawai'i County Code} A lobbyist means "any individual engaged for pay or other consideration who spends more than five hours in anymonth or $275 in any six-month period for the purpose of attempting to influence legislative oradministrative action by communicating or urging others to communicate with public officials." {Article 15, Section 2-91.3(a)(6), Hawai'i County Code} Registration forms and expenditure report documents are available at the Office of the County Clerk, Hawai'i County Building, 25 Aupuni Street, Room 1402, Hilo, Hawai'i 96720. HAM.A.KUA CDP ACTION COMMITTEE 11 Ii www.planning.hawaiicounty.gov Hawai 'i Coumy is an Equal Oppor111nity Prol'ider and Employer planning(ii hawaiicountv. go,· " Mitchell D. Roth Mayor Lee E. Lord Managing Director Zendo Kern Director Jeffrey W. Darrow Deputy Director County of Hawai‘i PLANNING DEPARTMENT HAMAKUA COMMUNITY DEVELOPMENT PLAN ACTION COMMITTEE Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawai‘i 96720 Phone (808) 961-8288 • Fax (808) 961-8742 Hawai‘i County is an Equal Opportunity Provider and Employer Page 1 Tuesday, March 21, 2023 1 DRAFT Meeting Minutes 2 CALL TO ORDER 3 Chair Tawn Keeney called the Hamakua Community Development Plan (HCDP) Action 4 Committee (AC) to order at 5:00 P.M. Quorum was not established at this time. At 6:17 P.M., 5 quorum was established with the arrival of a fifth member. This meeting was held online via 6 Zoom, and in-person at the Honokaʻa People’s Theatre. 7 ROLL CALL 8 AC Members Present: Tawn Keeney, Nicolette (Niki) Hubbard, Brad Kurokawa, Robert 9 Nishimoto, Desiree Cruz (arrived at 6:17 p.m.) 10 AC Members Absent-Excused: Carol Ignacio and Crystal Kua 11 County Staff: April Surprenant, Planning Program Manager 12 County Officials: Deputy Corporation Counsel, Suzanna Tiapula 13 14 ADDITIONS TO THE AGENDA: None 15 16 ANNOUNCEMENTS: 17 1. Hāmākua Action Committee Recruitment: 18 Chair Keeney made an announcement about the 2 open seats for the Hāmākua CDP AC, and 19 the applications the Mayor is reviewing. 20 APPROVAL OF MINUTES: 21 This item was taken out of order, immediately following Agenda Item #1, after quorum was 22 established. 23 Chair Keeney motioned to approve the January 10, 2023, minutes. Seconded by Vice-Chair 24 Hubbard. Motion passed unanimously with a voice vote (5-0). 25 PUBLIC COMMENT ON AGENDA ITEMS: 26 1. One member of the public provided oral testimony: 27 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 2 Community member Phaeton Keeney, representing herself, testified on Agenda Item #1. She 28 noted that she was glad to move to a renewable future and hoped that we would move away 29 from biomass and towards clean zero emission sources. 30 2. One member of the public provided written testimony: 31 Community member Tina Stiteler, provided written testimony on Agenda Item #1. 32 See Communication No. 2023-06 – Tina Stiteler Comments Regarding Hawaiian Electric here: 33 https://records.hawaiicounty.gov/WebLink/1/edoc/122699/Communication%20No.%202023-34 06%20Tina%20Stiteler%20Comments%20RE%20Hawaiian%20Electric.pdf 35 BUSINESS: 36 1. Presentation by Hawaiian Electric Company (HECO) and Hawaiʻi Energy: 37 This item was taken out of order, immediately following Announcements on the agenda. 38 Quorum was not established at the start of the presentation but was established before 39 the presentation concluded. 40 Representatives David Kurohara and Marc Asano from HECO, and Gracen Ghen from 41 Hawai'i Energy shared information about Hawai'i Powered, Integrated Grid Planning and 42 Hawai'i Energy rebates and resources. 43 See presentation slides on renewable energy sources here: 44 https://records.hawaiicounty.gov/WebLink/1/edoc/122700/Communication%20No.%20245 023-07%20HECO%20and%20Hawaii%20Energy%20Presentation.pdf 46 Community member Richard Robert Bidleman questioned if Puna Geothermal was 47 generating hydrogen to be used for buses, if hydrogen powered vehicles were being used 48 on the island, and where the hydrogen was coming from? 49 Representatives from HECO informed that Puna Geothermal was not using their energy to 50 create hydrogen; their contract with HECO is to supply power to the grid. They also 51 informed that there was a hydrogen bus on island used by the County but did not know 52 the current status of it being used at this time. They clarified that electric buses were 53 being used. Mr. Kurohara also informed that the Hawaiʻi Natural Energy Institute (HNEI) 54 does have a hydrogen station, in Kona, where they produce and that is where the 55 hydrogen bus mentioned was filled. 56 Community Member Troy Pearson questioned if HECO was looking into investments that 57 have long-term impact on toxins in our environment as the current photovoltaic solar cells 58 use a lot of plastic and when they are not in use anymore, they produce a lot of toxins. 59 For large scale solar projects, HECO doesn’t develop solar project, but they do partner 60 with developers or third parties to buy power from them. In their contracts, they make 61 sure there’s proper end-of-life treatment of the facility when it is retired. He believed 62 even at the state level, recycling programs were being looked at for those types of 63 materials. 64 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 3 Community member Richard Robert Bidleman questioned what efforts HECO were taking 65 to encourage clients to install solar and put electricity back into the grid. 66 Mr. Asano informed that there are different programs for customers and customers are 67 always able to self-consume any electricity that they generate. He noted that they work 68 with the Public Utilities Commission developing some of those programs, but ultimately 69 the commission approves them and any compensation. Mr. Asano informed that they 70 expect to release newer programs with additional customer incentives to provide services 71 to the grid in the near future. 72 Further discussion was had on the concern of affordability of electricity for residents as 73 the question of how HECO planned to address that was raised. Mr. Kurohara 74 acknowledged the increase in oil costs that impacted everyone’s bill in the past few years. 75 He informed that, in the past, the law required their company to purchase power from 76 independent power producers at the cost of oil. Some of those contracts have been 77 amended and others are to be reviewed and renewed to a fixed rate to eliminate that tie 78 to the cost of oil. Mr. Kurohara stated that as they add more renewables to the grid scale 79 projects, the cost of electricity will stabilize and start lowering over time. 80 2. Hāmākua Action Committee Meeting Schedule Discussion: 81 Members of the AC discussed creating a meeting schedule for the remainder of 2023. 82 It was noted that Council Member Kimball was not able to make meetings on the third 83 Tuesday of each month and one committee member was not able to make it on the 84 second Tuesday of each month, so the committee considered moving dates. Chair Keeney 85 also considered meeting to coincide with the Hāmākua Times submission due date before 86 the 20th of each month. 87 Chair Keeney proposed a cadence of hybrid meetings on the second Wednesday of each 88 month. Seconded by Committee Member Cruz. 89 Passed with 4 votes aye (Hubbard, Keeney, Cruz, Nishimoto), 1 abstain (Kurokawa), 0 votes 90 nay. 91 3. Subcommittee Report Back to Action Committee: 92 Designated subcommittees provided updates to the Action Committee regarding their 93 progress. 94  Waipi‘o Wahi Pana (section 4.9.6, action items 16-20): 95 Committee Member Kurokawa had nothing to report at this time 96  Housing (CDP Section 5.2 – Community Action #25): 97 Vice-Chair Hubbard informed that she would provide a report at the next meeting 98  Lehua St. Subdivision (Honokaʻa) Infrastructure SubcommiƩee (section 5.5): 99 Community Member Robert Bidleman commented that many who utilize Lehua Street 100 are driving too fast and jeopardizing the neighborhood safety. He informed that a 101 petition to the County to install speed bumps has been started as he felt that would be 102 the first step to ensure the street is safe for pedestrians. 103 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 4 4. Action Committee Project Discussion: 104 Members of the AC discussed forming more subcommittees. 105 Chair Keeney noted that they should clearly define what County policies they are 106 advocating for and whether the subcommittee is for a specific action or subject. He asked 107 what the scope was of the subcommittee on Waipiʻo Wahi Pana as the sections that 108 mention Waipiʻo also include Mauna Kea, so clearer definition is needed. Committee 109 member Kurokawa will report back at the next meeting. 110 Chair Keeney stated that there are 130 Policies that the AC could advocate towards. He 111 expressed that orienting their actions to support those would lead to more proactive and 112 more fulfilling AC work. 113 Chair Keeney proposed forming the following ten subcommittees: 114  Land Use and Development 115  Agriculture 116  Infrastructure and Transportation 117  Access Open Space Roads Trails and Coastline 118  Natural Environment 119  Health Safety and Education 120  Commerce and Econ Development 121  Wahi Pana (Waipiʻo and Mauna Kea) 122  Preservation and Revitalization 123  Community and Government Relations (Communication) 124 He acknowledged that taking issues as they come may be desired, but subcommittees 125 could form focus groups for specific problems that arise. 126 Chair Keeney motioned to create the 10 subcommittees, but not take discussion at this 127 time. No second was heard. Motion did not move forward. 128 Vice-Chair Hubbard asked the Chair to clarify on the other two items on the agenda 129 regarding the Open Space Subcommittee and Public Restroom subcommittee ideas. Chair 130 Keeney did not make motions. 131 Community member Robert Bidleman commented that the committee he was on started 132 out and then dwindled. They cannot tackle all issues, so they may not be very big but if 133 you have interest, create the committee. 134 Community member Indy Rishi Singh stated that he supports subcommittees and wants to 135 have volunteers. He hoped to find ways to make community feel involved and provided 136 ideas of offering food at meetings from local vendors. He also mentioned Regenerative 137 Civics. 138 Community member Pam Elders commented that she likes committee structures 139 coordinated with the CDP. She advised that they need to be proactive not reactive. 140 Community member Diana Cantu-Reyna informed that she was a registered nurse and 141 would like to proactively address issues, not run to catch up. She would like to discover 142 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 5 how to engage community members to stay involved. She also suggested that the AC 143 source community members who have experience in meeting facilitation, to help move 144 the meetings along 145 Community member Whitney Valez, a Hāmākua Ag Coop board member, questioned how 146 they can engage with the process. She provided an idea to send a survey to members, 54 147 farmers, to gather feedback from farmers on what is important to them. 148 5. Action Committee Community Outreach Strategy: 149 Members of the AC discussed strategies to increase meeting attendance and ways to 150 better engage with the Hāmākua community. 151 Chair Keeney briefly shared that he would try to get into the Hāmākua Times and would 152 try to explore social media. 153 Community member Robert Bidleman commented that maybe the AC needs an example 154 of an item that they could work on in order to spark interest to form a subcommittee. 155 156 COMMUNICATIONS: 157 Chair Keeney shared that AC members could review the communications at their leisure. 158 1. Communication No. 2023-03 Public Access & Coastline Preservation Flyer – Toni 159 Withington 160 2. Communication No. 2023-04 Hāmākua Agricultural Plan (2006) 161 PROPOSED AGENDA ITEMS FOR NEXT MEETING ON APRIL 12, 2023: 162 Community member Indy Rishi Singh shared that he hosted a Civic Action rally at Hakalau, 163 which centered around farming, education and health care. He noted that they came together 164 and shared they all agreed they needed to focus on community gardens and tie that into 165 health. 166 Committee Member Hubbard noted that this ties into section 6.2, strengthening local 167 agriculture and suggested discussing at the next meeting. 168 169 ADJOURNMENT: 170 Committee member Nishimoto motioned to adjourn the meeting. Seconded by Chair Keeney. 171 Motion passed unanimously (5-0). 172 The meeting was adjourned at approximately 7:15 p.m. 173 These meeting minutes and all related documents are available in the Planning Department’s 174 Hāmākua Community Development Plan Action Committee folder via the County of Hawaiʻi 175 Public Documents Repository. These documents may also be requested from the Planning 176 Department by calling (808) 961-8288 or emailing cdp@hawaiicounty.gov. 177 Mitchell D. Roth Mayor Lee E. Lord Managing Director Zendo Kern Director Jeffrey W. Darrow Deputy Director County of Hawai‘i PLANNING DEPARTMENT HĀMĀKUA COMMUNITY DEVELOPMENT PLAN ACTION COMMITTEE Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawai‘i 96720 Phone (808) 961-8288 • Fax (808) 961-8742 Hawai‘i County is an Equal Opportunity Provider and Employer Page 1 Wednesday, April 12, 2023 1 DRAFT Meeting Minutes 2 CALL TO ORDER 3 Chair Tawn Keeney started the Hāmākua Community Development Plan (HCDP) Action 4 Committee (AC) meeting at 5:09 P.M. This meeting was held online via Zoom, and in-person 5 at the Honokaʻa People’s Theatre. Quorum was not established at this meeting; thus, only 6 presentations were heard and committee business was not addressed and there were no 7 votes. 8 ROLL CALL 9 AC Members Present: Tawn Keeney, Nicolette (Niki) Hubbard, Brad Kurokawa, 10 AC Members Absent-Excused: Desiree Cruz, Carol Ignacio, Crystal Kua, and Robert Nishimoto 11 County Officials: Deputy Corporation Counsel, Suzanna Tiapula 12 ANNOUNCEMENTS: 13  Chair Keeney announced that the Planning Department is currently seeking applicants for 14 the Hāmākua Action Committee. He noted the department’s efforts to find interested 15 community members and the notice in the Hāmākua Times asking for interest in 16 membership. 17  Chair Keeney announced that the Action Committee is seeking a volunteer secretary to 18 take meeting notes and colaborate with the Planning Department accordingly. 19 APPROVAL OF MINUTES: 20 This item was derferred as quorum was not established. 21 BUSINESS: 22 1. Council Member Kimball Updates: 23  Impact of Kona Low storms on community resulted in working sessions with Hawaiian 24 Electric and Hawaiian Telcom to find ways to improve responses and response times 25 to this type of event. Council Member Kimball noted that Hawaiian Electric reinforced 26 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 2 telephone systems to resolve reporting issues. If clients need to report an issue, they 27 may now call and record a message or speak with an actual person. 28  Council Member Kimball encouraged the use of Civil Defense’s website link to report 29 property damage. If ever the threshold for FEMA funding is met, those who submitted 30 claims in advance may get reimbursed. She noted the incident where the Hāmākua 31 ditch got blocked and members of community had to pay for water. Those situations 32 would be the type to report on the Civil Defense website. 33  The Department of Environmental Management’s new Vehicle Tow Program will allow 34 property owners to request for one (1) car towed off their property, per year, to be 35 disposed at the Hilo vehicle disposal site. Currently the County pays for disposal, but 36 not towing. The program will resolve that towing barrier and is estimated to start in 6 37 months. Applications may be submitted on the Environmental Management website. 38  Animal Control is now a separate agency and no longer under the Hawaiʻi Police 39 Department. While under the police department, animal control positions were short 40 term contracts, which limited the people who wanted to apply. Now, with the new 41 agency, the animal control positions are civil service positions. Council Member 42 Kimball hoped this change would improve staffing and animal control issues. 43  For updates regarding Waipiʻo, status quo with Emergency order will remain for now. 44 Residents can go down with four-wheel drive and no pedestrians or visitors are 45 allowed to drive down in the valley. Tree trimming and rock fall work is ongoing. The 46 Steering Committee continues to meet. 47  Bills underway: 48 o Property owners in the Homeowner class get the home exemption on value, 49 homeowner rate on tax and 3%-year cap on assessed value. People in the 50 dedicated agriculture program or non-dedicated agriculture program, do not 51 have the cap protection, and home value increases affected many. Council 52 Member Kimball informed that they are trying to add the cap to primary 53 residents of farmers agriculture land. They are also working on requiring 54 documentation to get the agriculture exemption as they have seen many who 55 claim they are doing ag but are not. 56 o Council is in the process of developing Draft 4 of the Short-Term Vacation 57 Rental bill. See https://www.hawaiicountytar.com/ for a copy of the current 58 draft and FAQ page. 59 o Bill 194 was vetoed by the mayor. Council will revisit since it was vetoed. 60 o Council has put funding towards homelessness and homelessness services. 7.5 61 million budgeted for homeless services and development of housing. The 62 Office of Housing will be tasked with most of this and addressing these 63 challenges. 64 PUBLIC COMMENT ON AGENDA ITEMS: 65 Two (2) members of the public provided comments on Agenda Item #1: 66 1. Community member Cory Harden, shared that she appreciated Council Member 67 Kimball’s update on Bill 194 as she thought it was very important for members of the 68 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 3 public to have a say on how long developers have to complete their development. She 69 confirmed with Council Member Kimball that this would be revisited on April 19th and 70 encouraged everyone to contact their Council members to support this bill as it would 71 take 6 council votes out of 9 to override the mayor’s veto. 72 2. Community Member Phaeton Keeney, requested recommendations on strategies to 73 form a community group to work on PONC purchases in Hāmākua area. She would like 74 to find the best way or structure for community to interact and work with the CDP 75 Action Committee for these types of purchases. 76 Council Member Kimball shared that the AC, as a County Committee, are guided by 77 Sunshine Law. She provided several options to engage in any kind of project. The first 78 option, to form an informal working group with members of community and only two 79 members of the AC at most. Another option would be to form a Permitted Interaction 80 Group (PIG) where up to four AC members could participate. The benefit of this option 81 is that you may include more AC members. A disadvantage would be that your work is 82 not discussed by the AC as a whole until the work is done. Council Member Kimball 83 informed that Deborah Change was District 1’s representative on the PONC 84 Commission. She encouraged the AC to reach out and have Ms. Chang present on the 85 PONC application process. Nominations for PONC properties already happened for this 86 year. 87 2. Presentation from Indy Singh related to Community Healing Gardens: 88 Indy asked to acknowledge the land that we are on and those who have cultivated it 89 before us and acknowledge all the different types of people who have come to cultivate 90 the land in the past and presently. He thanked County staff, AC members, and all the 91 guests and expressed gratitude for the conversation going forward. 92 Mr. Singh started his presentation by encouraging everyone to think about which 93 community members needed support the most for the whole community to thrive. 94 Nurses, local farmers, teachers, elders, and students were mentioned. Mr. Singh noted 95 that food directly affects our health and soil health affects our food health and community 96 health. He encouraged cultivating discussions for actions to be taken soon to create 97 centralized places where healthcare, education, and food can be supported through 98 community gardens. 99 Mr. Singh shared that he hosted a civic action rally in Puna to address farming, healing, 100 different ideas and solutions, and relationship with the Hawaiian culture. He also did a 101 civic action rally at the Hakalau Farmers Market and attended a Kohala Ag Vision 102 Committee meeting. Mr. Singh shared that his takeaway from all of those meetings was 103 that it comes down to having accessible Hawaiʻi County supported community gardens 104 that are education and well-being hubs. He expressed that these should be at schools and 105 senior centers. Mr. Singh shared that he learned of seniors getting reprimanded for 106 growing food in their units and how the County issued them eviction notices. He 107 expressed that the County should be providing public money to senior housings facilities 108 that support gardening, and not reprimand seniors for gardening. 109 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 4 Mr. Singh shared his experience with the East Hawaiʻi Organics Facility in Hilo, which was 110 started by a small group and is now a full-blown operation supported by the County. They 111 create and distribute mulch throughout the island to local and new farmers. 112 Mr. Singh encouraged everyone to think about and share their ideas on how the County of 113 Hawaiʻi can support community healing gardens, where nurses, educators, and farmers 114 can be supported. 115 Mr. Singh shared a recent article, covered by KHON2 News, about the food insecurity 116 rising in Hawaiʻi for keiki and kupuna. He expressed the severity of this situation and how 117 it will not improve unless willful actions are taken. He noted the importance of finding 118 places to bring back the cultural and traditional ways of sharing and giving food. Mr. Singh 119 shared several suggestions from audience. The first, to audit vacant County owned lands 120 and see if the community can use them for gardens. Mr. Singh shared that something 121 similar to this did happen in California. Another suggestion was for the County to support 122 people providing advice on how to grow food. 123 Mr. Singh informed that he would continue to meet on farms and outside of this rigid 124 format to make progress towards this effort. He encouraged everyone to show up to his 125 meetings and to share their email with him for more information and meeting notices. 126 PUBLIC COMMENT ON AGENDA ITEMS: 127 Two (2) members of the public provided comments on Agenda Item #2: 128 1. Community Member Phaeton Keeney asked who ‘we’ in Indy’s group is, and if he was 129 in a certain community group or represented an organization. 130 Mr. Singh stated that he is just a member of the general public at the moment. He 131 understood the value of non- and for-profit organizations and noted that he also had 132 those types of relationships with different organizations, but for now they are just 133 calling in community for this initiative. He informed that they would gather again in 134 May. 135 2. Community Member Diana Cantu-Reyna shared her disappointment that Council 136 Member Kimball left this meeting early and wondered if there was a better way to 137 engage council members and hold their attention to be present. She noted other 138 meetings that Council Member Kimball had left early and felt that there was lack of 139 engagement with community members. Ms. Cantu-Reyna also shared that her 140 nonprofit, Cultivating Self, supports Indy’s initiatives and would be grateful to have the 141 County support their work. She encouraged everyone to visit their site and hoped 142 more would get involved to support these initiatives https://www.cultivatingself.org/. 143 Chair Keeney shared that he would like to support the visions presented. He noted 144 that AC would pass on their concerns to Council Member Kimball. He encouraged 145 communicating directly with Council Member Kimball as well as he knows she is very 146 receptive to communications from the community even though she is very busy. 147 3. Permitted Interaction Groups Updates to AC: 148 This item was derferred as quorum was not established. 149 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 5 4. Public Access, Open Space, & Natural Resources (PONC): 150 Community Member Phaeton Keeney shared that Tony Whitington, of North Kohala, 151 came to Honokaʻa at the end of March to present their community’s success with PONCs. 152 She explained that the presentation inspired them to do the same for the Hāmākua 153 district. She learned that there are properties that are already proposed for PONCs in 154 Hāmākua. 155 See Communication No. 2023-09 PONC Past Project List here: 156 https://records.hawaiicounty.gov/WebLink/1/edoc/122705/Communication%20No.%202157 023-09%20PONC%20Past%20Project%20List.pdf 158 Ms. Keeney informed that not much has happened since 2006-2007, other than the 159 purchase of the Rice property in Waipiʻo, which is now reserved for public open space and 160 is being stewarded by a community group in the area. She also informed that there is a 161 South Hilo community group, which is working on two areas in Pepeʻekeo near the Hu 162 Honua project site. Ms. Keeney would like to connect with them and gather more 163 community engagement on thinking about going forward to submit next year’s list in 164 January 2024. She would also like to use Ms. Whitingtonʻs advice on non-profit formation 165 for this purpose to connect and prioritize efforts. She informed that there was no formal 166 name to their group but they are looking to connect with more people, as the group 167 currently consists of those who were at the presentation in March. She noted that they 168 have also connected with Blake McNaughton, who is leading the Pepeʻekeo PONC 169 purchases, and Jackson Bauer of the Na Ala Hele trails group. 170 Chair Keeney shared that Council Member Kimball encouraged the AC to share 171 suggestions for connections to people in their areas who are interested in access and trail 172 preservation. 173 Committee Member Kurokawa advised that the first place to start with PONCs would be 174 with an owner who is willing to sell their parcel. 175 5. Action Committee Meetings: 176 This item was derferred as quorum was not established. 177 PROPOSED AGENDA ITEMS FOR NEXT MEETING: 178 1. Permitted Interaction Groups Updates to AC 179 2. Format of Future AC Meetings 180 3. Honokaʻa Business Association presentation 181 4. Presentation from Blake McNaughton on Pepeʻekeo PONCs 182 ADJOURNMENT: 183 The meeting ended at 6:20 P.M. 184 These meeting minutes and all related documents are available in the Planning Department’s 185 Hāmākua Community Development Plan Action Committee folder via the County of Hawaiʻi 186 Public Documents Repository. These documents may also be requested from the Planning 187 Department by calling (808) 961-8288 or emailing cdp@hawaiicounty.gov. 188 Mitchell D. Roth Mayor Lee E. Lord Managing Director Zendo Kern Director Jeffrey W. Darrow Deputy Director County of Hawai‘i PLANNING DEPARTMENT HĀMĀKUA COMMUNITY DEVELOPMENT PLAN ACTION COMMITTEE Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawai‘i 96720 Phone (808) 961-8288 • Fax (808) 961-8742 Hawai‘i County is an Equal Opportunity Provider and Employer Page 1 Wednesday, May 10, 2023 1 DRAFT Meeting Minutes 2 CALL TO ORDER 3 Chair Tawn Keeney started the Hāmākua Community Development Plan (HCDP) Action 4 Committee (AC) meeting at 5:04 P.M. This meeting was held online via Zoom, and in-person 5 at the Laupāhoehoe Public Library. Quorum was not established at this meeting; thus, only 6 presentations were heard, and committee business was not addressed and there were no 7 votes. 8 The YouTube video of this meeting can be found here: 9 https://www.youtube.com/watch?v=qDFa7zB5raE 10 ROLL CALL 11 AC Members Present: Tawn Keeney, Nicolette (Niki) Hubbard, Brad Kurokawa, and Robert 12 Nishimoto 13 AC Members Absent-Excused: Desiree Cruz, Carol Ignacio, and Crystal Kua 14 County Officials: Deputy Corporation Counsel, Suzanna Tiapula 15 ANNOUNCEMENTS: This item was taken out of order and announcements were given at 16 different times during the meeting 17 • Council Member Heather Kimball announced that she will be including a detailed update 18 on the Laupāhoehoe pool repairs in her next newsletter. She also shared that the first 19 hearing for Bill 48, which was created by herself and Council Member Villegas, would be 20 held next week. The Bill would create an Office of Sustainability, Climate, Equity, and 21 Resilience. Council Member Kimball encouraged all to submit testimony for the Bill if 22 interested. [SEE YOUTUBE TIMESTAMP 1:22:41] 23 • The Affordable Housing Production Administrative Rules have been finalized and are now 24 available for public access. The rules and more information on the tentative schedule and 25 fund availability can be found on the Hawaiʻi County Office of Housing & Community 26 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 2 Developmentʻs website here: www.hawaiicounty.gov/ahp [SEE YOUTUBE TIMESTAMP 27 1:33:11] 28 APPROVAL OF MINUTES: 29 This item was derferred as quorum was not established. 30 BUSINESS: 31 1. Permitted Affordable Living (PAL) Presentation: 32 Representative, Mary Blyth, shared information about the Kauaʻi based non-profit affordable 33 housing developer and their possible expansion to Pepeʻekeo. [SEE YOUTUBE TIMESTAMP 34 4:25] 35 Questions were taken from Committee members and members of the public, and further 36 discussions were had around funding, the Pepeʻekeo location, programs offered by the non-37 profit organization, determination of residents, as well as the organization’s current goals for 38 the Pepeʻekeo location. [SEE YOUTUBE TIMESTAMP 14:23] 39 For more information on PAL Big Island click here: https://www.pal-kauai.org/big-island 40 Council Member Heather Kimball informed that County Council is currently working on 41 residential preference law with regard to residents who have lived or worked in the county for 42 a certain period of time. She also informed that they were working to ensure that homes built 43 for affordable uses continue to be used as such for a longer period than ten years. [SEE 44 YOUTUBE TIMESTAMP 31:18] 45 See PAL presentation here: 46 https://records.hawaiicounty.gov/weblink/1/edoc/122861/Communication%20No.%202023-47 10%20New%20PAL%20Pepeeko%20Presentation.pdf 48 2. Public Access, Open Space, & Natural Resources (PONC) Presentation: 49 Chair Keeney informed that presentor for this agenda item, Blake McNaughton, was unable to 50 attend this meeting to share his efforts and experiences with the PONC application for 51 Pepeʻkeo. [SEE YOUTUBE TIMESTAMP - 2:45] 52 3. Honokaʻa Business Association Presentation: 53 Michelle Hartman, Head of the Honokaʻa Business Association, apologized for arriving late to 54 this meeting and informed that she would give her presentation at another time as she had 55 another meeting to attend that evening. [SEE YOUTUBE TIMESTAMP 19:55] 56 4. The Hāmākua Heritage Center’s Agricultural Festival: 57 Nicole Garcia, Director of the Honokaʻa Heritage Center, shared information on their 58 upcoming Agriculture Festival which is to be held in October 2024 to commemorate the 30th 59 anniversary of Hāmākua Sugar’s final harvest. [SEE YOUTUBE TIMESTAMP 39:05] 60 Questions and comments were taken from Committee members and members of the public. 61 [SEE YOUTUBE TIMESTAMP 46:24] 62 Dwight Takamine, member of the Honokaʻa Historical Committee, shared his appreciation of 63 the opportunity to work together and acknowledged the CDP process allowing community 64 and grassroots participation. He also shared some background information to emphasize the 65 www.planning.hawaiicounty.gov/ CDP@hawaiicounty.gov Page 3 importance of the history of what life was like during the sugar plantation era along the 66 Hāmākua coast and how this event would provide more opportunity to strengthen the 67 foundation of the community, by not only learning about the history, but also the continuity 68 of agriculture in Hāmākua. [SEE YOUTUBE TIMESTAMP 47:09] 69 Ms. Garcia requested assistance from the AC in acquiring County level support for this event. 70 Mr. Takamine also suggested and encouraged members to communicate and participate as 71 resources so they could work together to bring more effectiveness to the overall effort. [SEE 72 YOUTUBE TIMESTAMP 1:00:36] 73 Additional comments and questions were taken from Committee members and members of 74 the public. [SEE YOUTUBE TIMESTAMP 1:03:23] 75 5. Permitted Interaction Groups Updates to AC: 76 Richard Biddleman shared updates on his work and efforts related to Lehua Street 77 Infrastructure in Honokaʻa [SEE YOUTUBE TIMESTAMP 1:27:30] 78 6. Action Committee Meeting Format: 79 This item was derferred as quorum was not established. 80 PROPOSED AGENDA ITEMS FOR NEXT MEETING: 81 1. Permitted Interaction Groups Updates to AC 82 2. Action Committee Meeting Format 83 3. Honokaʻa Business Association Presentation 84 4. Community Gardens Update Presentation by Indy Singh 85 ADJOURNMENT: 86 The meeting ended at 6:43 P.M. 87 These meeting minutes and all related documents are available in the Planning Department’s 88 Hāmākua Community Development Plan Action Committee folder via the County of Hawaiʻi 89 Public Documents Repository. These documents may also be requested from the Planning 90 Department by calling (808) 961-8288 or emailing cdp@hawaiicounty.gov. 91 Poll results: Readers say more than one solution to best prevent wildfires on Big Island Big Island Polls By Nathan Christophel August 20, 2023 · 2:30 AM HST A commenter on Big Island Now’s most recent poll — which asked what readers think is the best way to prevent wildfires on the island — said the answer is never as simple as one right answer. He’s correct. Especially this week. Com. No. 2023-14 Just a portion of the devastation in Lāhainā on Aug. 12. (Tiffany DeMasters/Big Island Now) Nearly two weeks ago, wildfires — some still not 100% contained — swept across Maui leaving a path of destruction and death in their wake. The Lāhainā Fire has been described as the deadliest wildfire in the past century in the United States. The climbing death toll is now at 114. Brush fires also scorched about 1,500 acres in North and South Kohala last week. Fortunately, there was no loss of life or injuries and only minimal property damage reported in those blazes. In light of the tragedy on Maui and the recent brush fires on the Big Island, Hawai‘i County Mayor Mitch Roth and Hawai‘i Fire Department Chief Kazuo Todd last week urged the community to be fire aware and prepared. Fire safety is a collective responsibility — everyone has a kuleana (responsibility) to take measures to mitigate the risks of wildfires to their residences and neighborhoods. “The recent events weigh heavy on our hearts and serve as poignant reminders of the profound impact that wildfires can have on our communities,” Roth said. “We have seen how quickly the fires devastated Maui and truly believe that a unified community effort can yield meaningful results in safeguarding homes, families and our ‘āina.” Com. No. 2023-14 That means it’s all hands on deck and all solutions are valid when it comes to preventing wildfires. It’s not just one answer. However, readers who voted in last week’s poll thought some solutions might have larger impacts. The top pick was creating fuel breaks near more communities, which got 220 of the total 954 votes in the poll, or 23%. A fuel break is a strip of land specifically changed from one type of vegetation to another to bolster the ability of firefighters to safely control a blaze burning around it. With help from the Hawai‘i Wildfire Management Organization, the Big Island has several fuel breaks protecting communities, including in Puakō and Waikōloa, and upslope endangered dryland. Coming in at No. 2 was reducing/controlling invasive species that increase the risk of wildfires. That choice received 177 votes, or 18%. When invasive species outcompete native plants, they contribute to the escalation of wildfires. Especially when they are dried out by drought, providing more fuel for fires. Reader Bett Bidleman shared that there is invasive cane grass growing on three sides of her home and said more laws need to be passed by the Hawai‘i Legislature to require removal of these invasive grasses, including hefty fines and time limits for removal. She also thinks anyone whose home or business is threatened by brush fires should be able to file a complaint to force prompt removal of invasive grasses if the owner of neighboring land fails to remove them. “Removal does not mean using harmful pesticides,” Bidleman said, “but bulldozing, mowing and replacing with native plants where feasible. And continued maintenance.” Com. No. 2023-14 Brush fire at Lalamilo Farm Lots in Waimea on Aug. 8. (Photo courtesy of Hawaiʻi state Sen. Tim Richards) Rounding out the top five results in last weeks poll were doing more prescribed burning with 129 votes, or 13%; enhancing response capabilities with 125 votes, also 13%; and creating more fuel reduction programs was fifth with 104 votes, or 10%. Here are the full results: Creating fuel breaks near more communities: 220 (23%). Reducing/controlling invasive species that increase risk: 177 (18%). Doing more prescribed burning: 129 (13%). Enhancing response capabilities: 125 (13%). Creating more fuel reduction programs: 104 (10%). Providing assistance to homeowners, businesses and others to identify and reduce fuels: 62 (6%). Conducting more risk and prevention education campaigns: 57 (5%). Increasing opportunities for collaboration to implement mitigation projects: 40 (4%). Implementing a fire danger rating system: 21 (2%). Com. No. 2023-14 Providing better wildfire mapping technology: 19 (1%). Total votes: 954. Janene Lasswell offered her own top 6 solutions in a comment on last week’s poll: 1. Map fire management zones the same way lava zones are mapped. 2. County fire department oversees fuel reduction. County removes hazardous growth to within 100 feet of high density areas if landowners refuse. Liens placed on property. 3. Hawaiian Electric institutes power outages during red flag alerts in high fire zones. Yes, critical power needs will need alternate power sources. 4. Require all new construction permits to incorporate fire-resistant materials and methods. All new subdivision permits to include 100 feet of maintained green space or bare mineral earth boundaries in high fire danger zones. 5. Satellite communications equipment for first responders and county and state agencies involved. 6. Civil Defense needs an upgrade. “All good points,” another reader commented in reply, adding that power poles should be made to easily withstand hurricane-force winds. While they weren’t from a hurricane, the winds that fanned the Maui wildfire flames blustered up to 80 mph. “Fifty years ago, third-world Vietnam was using concrete power poles. I think Hawai‘i should too,” the reader said. Nathan Christophel Nathan Christophel is a full-time reporter with Pacific Media Group. He has more than 25 years of experience in journalism as a reporter, copy editor and page designer. He previously worked at the Hawaii Tribune- Herald in Hilo. Nathan can be reached at nathan@bigislandnow.com READ FULL BIO Health Headlines |Sponsored MDs Agree: If you have low energy or digestion problems? (Take one daily) Com. No. 2023-14 Alaskan Cruise Deals|Sponsored Gundry MD |Sponsored Honokaa: Empty Alaska Cruise Cabins Cost Next To Nothing (See Prices) Top Doctor: If You Drink Diet Soda Every Day, This Is What Happens In this free video, Dr. Gundry reveals what to avoid to stimulate a healthy digestion. 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No. 2023-14 Every Wednesday · 6:00 pm - 7:00 pm Weekly Hula Every Thursday · 11:00 am - 12:00 pm Small Business Startup Meeting Copyright © 2023 Pacific Media Group. All Rights Reserved. Privacy Policy | About Our Ads Com. No. 2023-14 I would request that this letter be forwarded to the office of the Governor’s Chief Housing Officer. This letter was written in the several days after the Governor’s Housing Emergency Proclamation. The concerns described below have been reiterated, and largely satisﬁed, within an interview with Nani Medeiros and Scott Glen published in Civil Beat yesterday. In spite of my renewed conﬁdence, I feel this letter should be sent. My concern, and subject of this request, is that the Hamakua CDP Action Committee, of which I am the chairman, should have access for comment on any proposed housing developments in our communities and its rural and agricultural areas. The responsibility of the HCDP Action Committee is implementation of the Hamakua Community Development Plan and the directives and visions which are incorporated into that plan. As such, I would like to have notiﬁcation of any application for proposed housing developments within the Hamakua District of the Big Island. I would like to be assured that there would be opportunity for comment on any such development proposals from our 9 member, mayoral appointed, board. I would also request assurance that opportunity for public comment would be available. I am writing this note as an individual Hamakua citizen, but will bring the matter of this request before the Committee for consideration at our August meeting. The Hamakua Community Development Plan, which was developed over a 5 year process involving countless hours of community outreach and discussion in order to create a uniﬁed vision of a desired future for the Hamakua District, has a strong emphasis on maintaining and cultivating its rural character and agricultural heritage. The Plan repeatedly emphasizes resistance to suburban sprawl, and the containment of development to within the urban boundaries. We have seen the Land Use and Planning and Zoning Codes as being an integral element in maintaining this character. We have seen judicious consideration by the County Council of applications for development within this heritage zone as important for maintaining this character of environment, which is at the core of living in Hamakua. Without these processes, I am fearful for the future of our beautiful Hamakua. These protections for the integrity of our Hamakua district have now been superseded by the Governor's proclamation regarding Housing Development. We understand the reasons for that proclamation. We see families in our communities whose sons and daughters are victims of the Housing Crisis. We are empathetic and understand the critical need for solution to this problem. I therefore am asking that the Office of the Hawaii Chief Housing Officer would give notice to the Hamakua Community Development Plan Action Committee upon receipt of a housing development proposal within the Hamakua District of the Big Island. I am requesting that the Chief Housing Officer would accept and consider comments from our Committee on any such proposal which is under its scrutiny. I would request that the Chief Housing Officer would allow that the Committee would take such proposal to the public of the affected Community prior to a decision by the Officer or Governor or Group considering the proposal. I feel that these steps would be a necessary part of the relationship between government and its citizens in light of the Proclamation’s abridgment of the societal and legal structures that have been developed to ensure the welfare of our communities and citizens. It is understood that the Proclamation was an effort to expedite a solution. It is hoped that you will not see communication with the community as an impediment to those proposed solutions. It is hoped that you will see it as an opportunity which will give rise to constructive exchange between your office and the community and the developing entity. Enabling this communication should be the ideal of your office. Please allow that we would explore this possibility together. Mahalo for your consideration. Tawn Keeney MD Com. No. 2023-15 Submitted Electronically to Governor's Chief Housing Office by T. Keeney From:tawn@honokaapeople.com To:Kimball, Heather; Kagiwada, Jennifer; Lee Loy, Sue; Kierkiewicz, Ashley; Kanealii-Kleinfelder, Matt; Galimba,Michelle M.; Villegas, Rebecca; Inaba, Holeka; Evans, Cynthia F.W. Cc:Planning CDP; Surprenant, April; Roth, Mitch D Subject:Removal of CDP Action Committee member email addresses from the District CDP websites Date:Monday, August 21, 2023 2:14:24 PM Dear County Council members, The following communication is a revision of the note which I sent to you on Friday, August 18. It differs only in the addition of item 8) below: 8.Standard IT response to ensuring privacy of personal email addresses of group members is to set up an email forwarding domain which encompasses each group member and forwards mail addressed to the names on that domain to the personal email address of the member. For instance, mail sent to the CDP website listed email address of < tawn.keeney@cdp.actioncommittee.com > would automatically be forwarded to my personal email address. An estimate of cost to the County of domain forwarding service might be $15 per month. The fact that Planning neglected this option raises the question that the motive for the address removal might actually be less apparent than the stated 'privacy'. It is of little interest to me what those motives might be so long as the Public access to communicate directly with me and my Action Committee colleagues is restored. The only other change is that note is taken that the Planning Department has also removed the identification of the current Chair of the Action Committees on their website in addition to removal of the member email addresses. The completed communication is as follows: Council member Heather KimballCouncil member Jennifer Kagiwada Council member Sue Lee LoyCouncil member Ashley Kierkiewicz Council member Kanealii-KleinfelderCouncil member Michelle Galimba Council member Rebecca VillegasCouncil member Dr. Holeka Inaba Council member Cindy Evans Dear trusted representatives of the Citizens of Hawaii County, I am writing this note in response to two events which have disturbed me deeply as Chair of the Hamakua Community Development Plan Action Committee. I believe these eventsreflect a broken relationship between the Planning Department and the five district Community Development Plan Action Committees which the department is tasked toadminister. Event #1: The Planning Department has removed the email addresses of the ActionCommittee members from each of the five District Community Development Plan websites. Identification of the chairperson of the committee was also removed. The reason given by Com. No. 2023-16 Planning to my inquiry why this action had been taken is the following: "We are looking for ways to better protect AC member’s privacy and avoid unsolicited communications (bold print mine). Individuals looking to reach out to CDP AC members can fill out the green contact form at the bottom of the CDP websites and we can forward the inquiry to the respective Action Committee.” I respond with the following comments: 1. Communication access between the Action Committee members and the Community is at the center of the process that was envisioned in the six District Community Development Plans. This removal of email addresses of committee members, addresses which have been present for the 4 years of existence of theHamakua CDP AC, and probably throughout the more than 10 year history of CDP Action Committees of other districts, significantly cripples that communication channel, and the ‘heart’ of the CDP process. 2. When someone applies for Action Committee membership they understand that they are being asked to be an intermediary between the communities and the county government. They should, and do, understand that some element of their 'privacy' is being relinquished. They should, and do, understand that accepting 'unsolicitedcommunications' is part of what service in this regard is about. 3. We, the Action Committee members have never been asked in my 4 years of AC membership or as Hamakua chair over the past year, whether we wished, for thereasons expressed, “privacy” or “avoidance of unsolicited communication”, to have our email addresses removed. I am confident that, if asked, we would desire our emails to be available to the public. 4. County Council members have email addresses available to the public. Action Committee members serve a similar function, liaison with the public, but on a district level. 5. The other County with district level public representation is Honolulu with its Neighborhood Boards. The email addresses of these many hundreds of Neighborhood Board members, almost without exception, are available on the Neighborhood Board website. 6. The Planning Dept. points to a messaging mechanism, directed to their department, (the ‘green contact form’ mentioned above) available to the public on the District CDP website. Over my four years of service, during which time the abovecontact form has been present, I have never had Planning forward a ‘comment or question’ from that form to me, or heard from other Hamakua AC members of receipt of such ‘comments’. On the other hand I have had multiple ‘comments, requests or questions’ presented by the public to me via email. It is unknown if these were subsequent to discovery of my email address from the CDP website. I do not wish to have the public’s communication with me ‘curated’ by the Planning Department. I would be hesitant to trust that a communication such as this one would reach each of the Committee members. Com. No. 2023-16 7. These email addresses have been removed at a time of the greatest need of the public's access to representatives in the County governmental process. The Governor’s Housing Proclamation has just been announced, the impacts of which will be felt deeply within our communities and will elicit vigorous response, whether supportive or resistant. The Hawaii County General Plan revision is to be released to the public for comment this summer. The Zoning and Subdivision Plan revision will be released shortly after that. This timing of removal of the Action Committee emailaddresses raises questions of subversion of the Action Committee’s role. This coincidence in timing arouses questioning of the Planning Department’s motives, though their stated intent was protection of our ‘privacy’ and shielding us from ‘unsolicited communication’. 8. Standard IT response to ensuring privacy of personal email addresses of group members is to set up an email forwarding domain which encompasses each group member and forwards mail addressed to the names on that domain to the personalemail address of the member. For instance, mail sent to the CDP website listed email address of < tawn.keeney@cdp.actioncommittee.com > would automatically be forwarded to my personal email address. An estimate of cost to the County of domain forwarding service might be $15 per month. The fact that Planning neglected this option raises the question that the motive for the address removal might actually be less apparent than the stated 'privacy'. It is of little interest to me what those motives might be so long as the Public access to communicate directly with me and my Action Committee colleagues is restored. 9. I have requested Heather Kimball, Council representative from Hamakua District, my home, on two occasions over three weeks to introduce a bill or resolution into Council to require the Planning Department to restore the email addresses of AC members to the CDP website, and have had no response. I therefore take this request to each member of the Council as this removal of addresses has occurred to each District’s websites. Please introduce a measure into Council, a Bill or Resolution, to require the Planning Department to restore email addresses of ActionCommittee members to the District CDP websites. Event #2: The Planning Department has refused to inform me, following my request as Chair of the Hamakua CDP Action Committee, of the email addresses of the three new Hamakua Action Committee members installed through Council ratification two weeks ago. Previously, the Action Committee member phone numbers and emailaddresses were presented in the Resource Guide given with installation. It has been my duty, over the year of my chairmanship, to arrange and adjust as necessary, the meeting schedule. It is my duty to request agenda items from other members and set the agenda. Fulfillment of these duties requires at least monthly communication withthe AC members. The reason cited for denial of my request for the new members’s email addresses was “in order to help committee members stay in accordance with Sunshine Law.” (See brief email exchange below.) Over my four years of AC membership I have heard occasional reference to, and Com. No. 2023-16 experienced directly, what was termed ‘weaponization of Sunshine Law’. The above cited reason for denial of my request appears to me to be a most blatant example of that. The Planning Department knows very well that board or commission member communication enabling scheduling and setting of agenda is exempt from Sunshine Law restrictions. It has been a requirement of my chairmanship over this year. TheHamakua AC has had its past three meetings cancelled due to lack of quorum. The congestion of potential agenda items and new request from Sierra Club for presentation regarding the Governor’s Housing Proclamation (in conjunction with my effort to find a co-presenter representing the Governors Housing Office) suggestsneed of a reschedule of the cancelled August meeting, for which I need the email addresses and have been denied. A later communication will describe in detail what I refer to as a ‘brokenrelationship’ between Planning and the CDP Action Committees, a fracture going far beyond Planning’s acknowledged and understood lack of personnel resources for comprehensive CDP AC administration. The intent of this letter is introduction of a resolution or motion into County Council which results in restoration of the emailaddresses of the members of the district Action Committees on their respective CDP websites. Reasons 1) through 8) above should be sufficient to justify this request. Thank you for consideration of introduction of this measure, Tawn Keeney MD Chair, Hamakua Community Development Plan Action Committee Email exchange with Planner (Aug. 14): TK: Hi Maryam. I understand that the Orientation of new members to the Hamakua CDP AC will be on August 22. I would like to send email to the complete group inquiring about scheduling an August meeting for a date early after the 22nd. Couldyou give to me the email addresses of the new members. Thanks, Tawn MP: Mahalo for the reminder, Tawn! I will reach out to the committee regarding the next scheduled meeting in order to help committee members stay in accordance withSunshine Law. According to the established cadence, the next meeting is September 13. Mahalo nui, Maryam TK: Maryam, I need the email addresses of the three new members for scheduling. Iam not relinquishing that responsibility to you. Thank you for your help with this. Tawn —- No further reply forthcoming. Com. No. 2023-16 DAVID 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 Com. No. 2023-17 2 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 Com. No. 2023-17 3 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. Com. No. 2023-17 4 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 Com. No. 2023-17 5 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 Com. No. 2023-17 6 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 Com. No. 2023-17 7 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 Com. No. 2023-17 8 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 Com. No. 2023-17 9 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. Com. No. 2023-17 10 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 Com. No. 2023-17 11 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 Com. No. 2023-17 12 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- Com. No. 2023-17 13 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 Com. No. 2023-17 14 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. Com. No. 2023-17 15 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.” Com. No. 2023-17 16 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. Com. No. 2023-17 17 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”). Com. No. 2023-17 18 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 3 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 5 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 6 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. 7 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. 8 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 2 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; 4 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 5 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: 6 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. 8 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. 9 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 10 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, 11 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 12 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. 13 Com. No. 2023-17 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) <RX DUH KHUHE\ VXPPRQHG DQG UHTXLUHG WR ¿OH ZLWK WKH FRXUW DQG VHUYH XSRQ SODLQWLII¶V DWWRUQH\ ZKRVH DGGUHVV LV VWDWHG DERYH DQ DQVZHU WR WKH FRPSODLQW ZKLFK LV KHUHZLWK VHUYHG XSRQ \RX ZLWKLQ GD\V DIWHU VHUYLFH RI WKLV VXPPRQV XSRQ \RX H[FOXVLYH RI WKH GDWH RI VHUYLFH ,I \RX IDLO WR GR VR MXGJPHQW E\ GHIDXOW ZLOO EH WDNHQ DJDLQVW \RX IRU WKH UHOLHI GHPDQGHG LQ WKH FRPSODLQW THIS SUMMONS SHALL NOT BE PERSONALLY DELIVERED BETWEEN 10:00 P.M. AND 6:00 A.M. ON 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. ,Q DFFRUGDQFH ZLWK WKH $PHULFDQV ZLWK 'LVDELOLWLHV $FW DQG RWKHU DSSOLFDEOH VWDWH DQG IHGHUDO ODZV LI \RX UHTXLUH D UHDVRQDEOH DFFRPPRGDWLRQ IRU D GLVDELOLW\ SOHDVH FRQWDFW WKH $'$ &RRUGLQDWRU DW WKH &LUFXLW &RXUW $GPLQLVWUDWLRQ 2I¿FH RQ 2$+8 3KRQH 1R 77< )$; DW OHDVW WHQ ZRUNLQJ GD\V SULRU WR \RXU KHDULQJ RU DSSRLQWPHQW GDWH 7KH RULJLQDO GRFXPHQW LV ¿OHG LQ WKH -XGLFLDU\¶V HOHFWURQLF FDVH PDQDJHPHQW V\VWHP ZKLFK LV DFFHVVLEOH YLD H&RXUW .RNXD DW KWWSZZZFRXUWVVWDWHKLXV 3/$,17,))¶6 1$0( $''5(66 7(/ 12 Effective Date of 28-Oct-2019 Signed by: /s/ Patsy Nakamoto Clerk, 1st Circuit, State of Hawai‘i Form 1C-P-787 (1CCT) (10/19) Summons to Complaint 5*$& 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 1 Sept. 13 , 2023 Housing SubcommiƩee Report– regarding CDP Item: 5.2 Expand Affordable Housing OpƟons The North Hilo Community Council met in July and invited representaƟves from the County of Hawaii Housing office to aƩend. Harry Yada and Neil Erickson from County Housing Presented on the future Ookala Housing Development Housing is one of the Mayor’s focuses, we need 10k homes in the next 3 years, we had 1200 in the works when he started and now there are about 6k in the works. The challenge is to build the pipeline up so when funding is available the projects can proceed. This area, behind Kukui Camp is a 50 ac parcel the county already owns and is already zoned residenƟal. It will be easy to prepare it for future funding. There are designs for 30 lots of about 10k sq Ō. They will be for affordable homes. Engineering has designs complete for road ways. They can bid out construcƟon for roads but unƟl road is done, they will not be able to bid out for development. The road esƟmated cost is 3.2 mil and that is not yet budgeted either. There is no date for when these would be built. It is subject to funding. They are not sure if lots would be sold or if houses built then sold or if it will be self help. Housing subcommiƩee will conƟnue to check in on this for updates in the future. Thanks, Niki