Suit: Hawaii governor overreaches with housing crisis proclamation

An emergency proclamation meant to address the state's housing issues violates laws protecting the environment and Native Hawaiian burials, the plaintiffs say.

by Candace Cheung, Court House News, September 1, 2023

HONOLULU (CN) — Native Hawaiian interest groups and environmental organizations joined the American Civil Liberties Union of Hawaii and the Sierra Club on Thursday in claiming that Governor Josh Green overstepped his authority when he issued an emergency proclamation to expand affordable housing opportunities in the state.

A lawsuit filed Thursday charges that Green's July 17 emergency proclamation allows the government and housing developers to skirt laws that protect the environment, Native Hawaiian burials and historic properties. The ACLU and the Sierra Club joined Nā ‘Ohana O Lele Housing Committee, E Ola Kākou Hawaii, Hawaii Advocates for Truly Affordable Housing, and Native Hawaiian cultural practitioner Kū‘ikeokalani Kamakea-‘Ōhelo as plaintiffs.

Green issued the emergency proclamation in response to the extremely high cost of living in Hawaii, often attributed to expensive housing. The proclamation makes it easier to develop new housing and established the Build Beyond Barriers Working Group, also named as a defendant in the suit, along with Nani Medieros, the group's state lead housing officer.

The groups write that Green's proclamation "attempts to circumvent the constitutionally mandated legislative process for addressing public policy issues like housing" under the guise of an emergency.

Hawaii has consistently ranked among the top states for high cost of living, even over other notoriously expensive places like California and New York. Green's proclamation cited this dubious honor, along with statistics showing that the shortage is disproportionally pushing Hawaiians off their native lands, to declare an emergency over the state of housing.

The plaintiffs, however, say that Green's determination exceeded statutory and constitutional authority.

"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," the groups said in the complaint. "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."

The plaintiffs say that the emergency proclamation will infringe on their interests in "the 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."

The proclamation references the "lengthy, cumbersome, and antiquated regulatory process" the state typically relies on for housing and infrastructure development.

The plaintiffs say that Green cannot use his emergency proclamation as justification to "impose instead an approval process of Defendant Green’s own creation."

The plaintiffs made particular note of the proclamation's suspension of a land use law restricting district boundaries that requires going through the land use commission, which Kamakea-‘Ōhelo is a part of. They say that a similar bill asking for exemptions from the boundary law failed to pass during a recent legislative session and that Green used the proclamation to "impose this failed legislative proposal because he concluded that it is too difficult to pass them legislatively."

Co-defendants the Build Beyond Barriers Working Group and its employee Medieros should never have been established, the plaintiffs say, since the proclamation itself is invalid.

According to the governor's office, the group facilitates housing development between stakeholders and oversees regulatory agencies' work.

Earthjustice's David Henkin, representing the plaintiffs, and Green and his office were unavailable for comment at press time.

PDF: COMPLAINT  

R: Critics Sue Over Hawaii's Housing Deregulation, Calling It Attempted 'Genocide' (reason.com)

SA: ACLU, other groups sue Green over emergency housing panel

CB: New Lawsuits Attack Hawaii Governor’s Broad Plan To Build More Housing