Hawaii has intrusive, overlapping land-use regulations that increase the costs of owning and developing properties, imposing severe risks to the economy of the islands.
Or, Hawaii has inadequate land-use regulations with uncoordinated enforcement by multiple agencies that jeopardize land, coastal and ocean environments, imposing severe risks to the economy of the islands.
Two University of Hawai'i Press books suggest both are true. The conflict arises from differing perspectives, one focused on laws regulating political realities while the other focuses on natural law - the realities of physics, chemistry and geology.
Together, the disparate perspectives make clear that legal standards on use of land in Maui County - such as attempts to establish limits in a Maui County General Plan and Maui Island plan - will do little to protect the islands' geological systems. U.S. laws give priority to property rights over environmental impacts. At best, government can attempt to mitigate environmental impacts that property owners cause.
In "Regulating Paradise," UH law professor David Callies cites U.S. Supreme Court decisions on the authority of government to impose conditions on use of land: that conditions must "promote a legitimate state interest," that there must be a "rational or essential nexus" between a condition and property use, and that a condition "must be proportional to the need or problem that the land development project is expected to cause."
The last standard of proportionality is a major obstacle when dealing with development within regional ecosystems, the traditional Hawaiian ahupua'a in which elements of land and sea are integrated into an ecosystem.
In "Living on the Shores of Hawai'i," the team headed by UH geology/geophysics professor Charles "Chip" Fletcher suggests ahupua'a principles provide a basis for land-use regulations that consider ecosystem impacts of development. Governance of an ahupua'a would require a land-use plan "take into account the ecological characteristics of its specific location."
Conversely, "Regulating Paradise" says case law establishes that government cannot impose a requirement "disproportionate" to the problem caused by a project. If, for example, all lots within a region/ahupua'a contribute muddy runoff into the ocean, one project in the region can't be required to resolve the problem caused by all.
That limitation applies in the Coastal Zone Management program intended to protect "important ecological values." A Hawaii CZM policy mandates that new structures cause "minimum adverse effect" in altering land forms and resources. But it doesn't bar the structures, even when considering "cumulative impact of individual developments."
In a discussion on beach erosion, "Shores of Hawai'i" explains the importance of coastal sand dunes to protecting beaches, and past failures to prevent landowners from cutting them down. Thus, a Honolulu law "did not specify that preserving coastal dunes was a critical aspect of 'protecting and preserving the natural shoreline,' and management personnel apparently have not historically recognized that flattening dunes causes damage to the beach."
A similar lapse occurred along Maui's south coastline where homes, hotels and condominiums were built along what were once sandy beaches. By law, property rights were not balanced with geological realities.
"Shores of Hawai'i" suggests that failure to protect Hawaii's coastal resources involves lack of common vision among government agencies, weak enforcement of existing laws and "rules and regulations that do not fit the personality of the environment." One result is, "regulations enacted to protect our environments, in practice, provide guidelines for how to legally damage them."
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* "Living on the Shores of Hawai'i: Natural Hazards, the Environment and Our Communities," 2010, University of Hawaii Press; Charles Fletcher, Robyne Boyd, William J. Neal, Virginia Tice; a Latitude 20 Book.
* "Regulating Paradise: Land Use Controls in Hawai'i, second edition" 2010, University of Hawai'i Press; David L. Callies.
* Edwin Tanji is a former city editor of The Maui News. He can be reached at hakumoolelo@earthlink.net. "Haku Mo'olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.
