Last April we publicly called the so-called "Consent Decree" which was being worked out by the Corporation Counsel to persuade several major East Honolulu developers to drop six or seven lawsuits against the City, "blackmail". At least three City Council members agreed with us.
On October 11, over our objections and those of the vast majority of those testifying, the City Council, by 5 to 4, approved the settlement procedure and draft decree. The first step in the proposed procedure is preparation, by the developers, of an "Environmental Impact Report". This is similar to an Environmental Impact Statement but allegedly does not need to comply with the usual requirements in State law governing such statements.
On February 19 we received the "Preparation Notice for the Hawaii Kai E.I.R.," which includes much of the basic data describing the developments desired by Bishop, Kaiser et al., and lists the studies and analyses proposed to be covered in the E.I.R. Like a number of other community organizations, neighborhood boards, etc., League was asked to comment.
The following excerpts are taken from our letter dated March 20, 1996 responding to this request:
At this stage we are less concerned with the specifics of the Preparation Notice than with the premises o which it is based. We are dismayed at the intrusion of the Court system into legally determined State and City planning and zoning procedures and decisions.
We note that the "proposing agency" is the City's Department of the Corporation Counsel, which is not charged by the City Charter to work for sound planning of growth and development or determine future land uses, but rather to protect the City's legal interests. In this case it is proposed to give developers "entitlements" to something approaching a billion dollars worth of development, and to provide them, at public cost, with several hundred million dollars worth of infrastructure needed to support it. This is to be in exchange for their dropping six pending lawsuits challenging down-zoning legally enacted some years ago to implement the City's adopted General Plan and Development Plans.
It is worth noting that the most important of these cases, Queen's Beach, was confirmed by the Courts, even including the U. S. Supreme Court, which let the State Court decision stand. Of the remaining cases, only "Golf Course 5 and 6" can claim any vested rights, in our opinion, but it has been suggested that the City purchase it. This would be far less than the cost to the City of providing the infrastructure involved in development according to the proposed settlement. The question may well be asked, whose interests are being protected?
The proposed settlement was considered and approved by the Council's Policy Committee on 9/27/95 in Executive Session as a litigation matter, with no public input. The Court Order man dates an abbreviated and condensed consideration of twelve separate development proposals, with the proviso that at each stage of the procedure the Court can reverse the decision of the relevant body and that if the proposed land use changes are not approved, litigation can recommence. We are told that whatever the Court mandates replaces all State and City planning and zoning requirements.
On p.1 of the Report it stated that the Court settlement procedure is intended "to resolve land use disputes". We must ask, since when are objections to democratically and legally determined decisions made by properly elected public officials, "disputes"? If a driver wants to do 80 miles an hour in a 40-mile zone, is this a dispute under law? Is a land use determination made under accepted legal provisions a dispute just because a developer wants to use the land otherwise? Are threats of litigation to replace sound planning and zoning made in the public interest?
The Preparation Notice's appendices contain numerous provisions setting aside existing laws and requirements. They exempt the developers involved from having to provide any off-site infrastructure and therefore throw the burden for providing the water, sewage, streets, schools, and other public facilities needed to support the developments proposed, on the island's tax-payers. No otherwise required community benefits -park dedication, affordable housing, etc. need to be contributed. A 20 year guarantee of vested rights is provided. Far from "restricting twelve parcels to certain levels of development", the proposals involve greatly increased density of development over that now planned or zoned. With the exception of Queen's Beach, every one of the proposed designations [to commercial, industrial, apartment, residential, or resort use] involves an increase in the intensity of land use from the present D. P., the present zoning, or both. Nine of the proposed sites about 520 acres are presently zoned entirely or partially P-2 (preservation). The other two 27 acres are proposed for apartments though now zoned Ag-2, R-5 or B-1.
The danger of setting a precedent which could undermine the planning and zoning process needs to be seriously considered. Should any developer displeased with a planning or zoning decision be encouraged to threaten to sue the City, and will the City thus be blackmailed into destroying its plans and ignoring the principles upon which they are based? Shall the Courts order the City to comply with the developer's desires?
We are awaiting receiving the draft Environmental Impact Statement. Stay tuned.