Email Message Sept. 11, 2012 from NHLC Lawyer David Frankel to Abercrombie Administration Spokesperson Donalyn Dela Cruz, who is the sister of State Senator Donovan Dela Cruz, the Senate’s leading proponent of PLDC. This message was sent by Frankel in response to the Administration’s posting of a “Public Lands Development Corporation Frequently Asked Questions” page, which is appended below.
From: David Kimo Frankel
Date: Wed, Sep 12, 2012 at 1:58 PM (Note: Apparently David Frankel's clock is off by 24 hours. This was sent midday September 11.)
Subject: Your Dishonest Statements about the PLDC
To: Donalyn.DelaCruz@hawaii.gov
Clearly, you and the administration do not understand environmental law.
* According to no less authority than the Hawai`i Supreme Court, HRS chapter 205, the State Land Use Law is a “law relating to environmental quality.” County of Hawai’i v. Ala Loop Homeowners, 123 Hawai`i 391, 410, 235 P.3d 1102, 1122 (2010). HRS § 171C-19 provides that PLDC projects “shall be exempt from all statutes . . . relating to . . . land use.” Are you disputing that (a) the Land Use Law is an environmental preservation law, or (b) that HRS § 171C-19 does not exempt the PLDC from its requirements. Who is being dishonest?
By the way, the State Land Use Law has protected Pohue Bay, O`oma, Kealakekua and Waianae from inappropriate development.
* According to no less authority than the Hawai`i Supreme Court, HRS chapter 205A, the State’s coastal zone management act, “is a comprehensive State regulatory scheme to protect the environment and resources of our shoreline areas.” Morgan v. Planning Dep’t, 104 Hawai`i 173, 181, 86 P.3d 982, 990 (2004). It also regulates land use. See HRS 205A-28. Are you disputing that (a) HRS 205A is an environmental law, or (b) that HRS § 171C-19 does not exempt the PLDC from its requirements. Who is being dishonest?
By the way, HRS 205A protected Pauoa Bay, Nā`ālehu and many other special places from inappropriate development.
* I’m not sure who in their right mind would question whether our conservation district law, HRS 183C is an environmental law. It has protected Wa`ahila Ridge, Pao`o, Honoli`i, ‘Ewa beach and many other special places. Are you saying that the PLDC is not exempt from this law? Why then has the PLDC refused to put such a provision in its draft rules even after such language was suggested to it?
* The PLDC is also exempt from all zoning requirements. The purpose of the City’s planning and zoning ordinances are “to prevent the deterioration of our environment.” Dalton v. City and County of Honolulu, 51 Haw. 400, 416, 462 P.2d 199, 208 (1969). But neither the law nor the proposed rules require compliance with county zoning laws.
* The PLDC is exempt from all subdivision ordinances and rules. Subdivision requirements also protect our environment. See e.g., Kaua`i County Code § 9-2.1 (“Subdivision shall be planned, designed and constructed to preserve the natural environment and science beauty of the County”), Honolulu Subdivision Rules and Regulations § 1-102(d) (“the purpose of these rules is to . . . preserve, enhance, and improve the anural amenities, qualities and environment of the community.”) and Hawai`i County Code § 23-26 (“Outstanding natural or cultural features such as scenic spots, water courses, fine groves of trees, heiaus, historical sites and structures shall be preserved as provided by the director.”)
Stop lying to the public!
(And by the way, any decent lawyer can tell you that the PLDC law is not equivalent to the HCDA’s – nor are the proposed rules.)
And please, feel free to forward this to your brother.
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Public Land Development Corporation (PLDC) Frequently Asked Questions
Posted on Abercrombie Administration Website September 11, 2012
What is the PLDC?
Established in 2011 by the Hawai‘i State Legislature, the PLDC is a state entity whose purpose is to create and facilitate partnerships between state and county agencies, businesses, non-profits, and community groups to improve Hawai‘i’s communities, create jobs and expand public benefit through stewardship and responsible use of land resources. Ultimately, the PLDC seeks to make Hawai‘i’s lands better for Hawai‘i’s people.
The PLDC’s creation is based, in part, on empowering the “keep it local” vision. Currently, there are already individuals and groups with projects working toward this goal. Although still in the visioning phase, potential projects may also focus on improvements to 21st Century Schools and state parks and harbors.
Do PLDC projects need to adhere to existing environmental, historic and other federal, state or county laws?
Yes. The PLDC and project partners must adhere to federal and state environmental and historic preservation laws, wage and hour laws, and other relevant laws.
Although Section 19 of Act 55 exempts the PLDC from laws relating to land use and zoning, those activities must be coordinated with the county planning departments and the county land use plans, policies and ordinances.
Is the PLDC required to pay proceeds to OHA, as required by law?
Yes. The PLDC must pay OHA its share of proceeds as required by law. There is no exemption from that requirement within HRS chapter 171C.
What is the status of the PLDC’s administrative rules?
The PLDC is just over a year old; as such, it is still formulating its rules and completing a public review process.
The PLDC has conducted statewide public hearings on its draft administrative rules. Having heard from the community, the PLDC identified pervasive but inaccurate assumptions about the PLDC objectives and what special exemptions it may or may not enjoy.
Therefore, the PLDC will be completing a strategic plan to better define its scope, dispelling myths and facilitating final review of its draft administrative rules. The PLDC is also revising its draft administrative rules based on public input and, following PLDC Board approval, will hold another public hearing to provide opportunity for public comment.
Why is requirement of competitive bidding not part of the PLDC’s draft rules?
By not requiring a full competitive bid process, the title agency has flexibility to choose projects that more comprehensively represent the values of the community and the state than may be available through a purely competitive bidding process.
What is PLDC’s project selection and launch process?
This PLDC Project Flowchart shows the sequential process and tasks from the first step in seeking projects and applicants to announcing the partnership and project for a typical project where the title agency has a board, e.g. the Board of Land and Natural Resources. The PLDC will have announcements for potential projects. Once this process begins, the public will have opportunities to provide comments as noted.
Does the public have an opportunity to provide public input on PLDC projects?
Yes. The PLDC actually expands opportunity for public comment. Meetings at which the public may comment will be required before both the title agency and the PLDC Board. See PLDC Project Flowchart.
What are the guidelines for PLDC projects?
PLDC project guidelines include but are not limited to the following:
- PLDC shall comply with HRS Chapter 343 (EIS).
- PLDC shall comply with HRS Chapter 6E (Historic Preservation).
- PLDC shall comply with HRS Chapter 92 (Hawai‘i Sunshine Law).
- PLDC shall comply with HRS Chapter 104 (Wage Rate Schedule).
- PLDC shall comply with HRS Section 171-64.7 (Restriction on sale of ceded lands).
- PLDC will pay OHA ceded land revenues as required by HRS Section 10-13.5.
- Any undertaking by the PLDC will be with the express written consent of the landowner or landowners directly affected.
- Management and projects shall comply with title agency conditions (“Title agency” refers to any agency that has title to or management over state or county lands).
- Revenues for DLNR or any other title agency shall be retained or increased with any transfer of management.
- Eighty-five percent of the state’s share of generated net revenues shall go to the title holding agency or agencies.
- Each identified state parcel must have approval from the BLNR or title holding agency prior to PLDC participation, subject to HRS Chapter 92 (Hawai‘i Sunshine Law), where applicable.
- PLDC will not develop agricultural lands eligible for designation as Important Agricultural Lands (IAL).
- PLDC will comply with conditions required by the County for infrastructure connection.
How is the PLDC structured?
The PLDC is governed by a five-member board of directors. Three state agencies (Department of Business, Economic Development and Tourism; the Department of Budget and Finance; and the Department of Land and Natural Resources) are represented on the board either by their director or designee. One member is appointed by the Speaker of the House of Representatives, and another member is appointed by the President of the Senate.
The Office of Hawaiian Affairs (OHA) has stated that, when OHA suggested changes to the PLDC rules, the PLDC maintained that the rule changes were “unnecessary.” Is this true?
The PLDC stated that OHA’s suggested changes were unnecessary because the PLDC was already bound by the same requirements through existing laws. The changes would have been redundant and possibly inconsistent with present or future laws regarding native Hawaiian rights. The PLDC is already bound to follow the law regarding native Hawaiian rights and will do so as prescribed by the constitution, statutes, rules, and case law.
Does the PLDC have to abide by HRS Chapter 6E Historic Preservation?
Yes. There is no indication in Act 55 that projects undertaken by the PLDC are to be exempt from the historic preservation program under HRS chapter 6E, or any of its requirements.
Does the PLDC have to abide by HRS Chapter 343 Environmental Impact Statements?
Yes. There is no provision in Act 55 that exempts the PLDC from compliance with HRS chapter 343 or other environmental laws.
Does the PLDC have to abide by HRS Chapter 92 Sunshine Law?
Yes. The PLDC is not exempt from HRS chapter 92 Sunshine Law. Like any other board or commission created by statute, the PLDC is still subject to the Sunshine Law. All meetings of the PLDC will be held pursuant to HRS chapter 92. Under HRS chapter 92, the public is allowed to testify on all matters on the PLDC Board's agenda. Such matters would include any land use or project decision making.
Can the PLDC sell public lands?
The initial premise is that title will remain with the respective agency and only the development rights will transfer over to the PLDC; therefore, the PLDC cannot sell the fee title to any of the lands. If the respective title agency transfers the fee title to the PLDC, the PLDC may sell title, subject to the same restrictions as other state agencies.
Can the PLDC sell ceded lands?
The PLDC has no special powers to sell ceded lands or any other lands beyond that of other state agencies. Under HRS § 171-64.7, the PLDC has the same powers and limitations on its ability to sell land as the Agribusiness Development Corporation, Aloha Tower Development Corporation, Hawai‘i Housing Finance & Development Corporation, High Technology Development Corporation, Department of Agriculture, and University of Hawai‘i. In essence, the PLDC, like these other corporations and entities, may only sell ceded or other land subject to the process and restrictions set forth in HRS § 171-64.7, which includes obtaining legislative approval in advance.
Does the PLDC have the power to condemn?
No. Act 55 does not give the PLDC the power of condemnation.
Can the PLDC force private property owners to pay for infrastructure costs if they live near a project or improvement that is under the jurisdiction of the PLDC?
No. The PLDC cannot force private property owners to pay for infrastructure costs (i.e., project facilities). HRS § 171C-7(b) provides that the assessment of costs are “subject to the express written consent of the landowners directly affected.”
What is the Public Land Optimization Plan?
One of the PLDC’s goals is to develop a Public Land Optimization Plan that includes an inventory of public lands that will help the PLDC create culturally sensitive projects and feasible strategies to allow the PLDC to prioritize potential projects. The optimization plan will guide the PLDC in project selection and evaluation.
MN: Sen. Solomon Defends Public Land Development Corporation (Full Text)