Lingle's Change of Guard at Planning Office Expands Authority of DLNR Administrator

posted in: January 2004 | 0

“Ultimately, the governor’s directive spoke to me. Ultimately, I have the authority.” So stated Peter Young, administrator of the state Department of Land and Natural Resources, referring to an order issued last May by Governor Linda Lingle. The order required the state Office of Planning, by law administered by the Department of Business, Economic Development, and Tourism, to “report to and consult with” Young.

Young continued: “I have a working relationship with the director of DBEDT [Ted Liu] and an understanding with him that I will sign off on matters [while] he will ultimately sign the paper work, contract, or correspondence. Based on the governor’s directive, OP staff is to consult with and report to me. That frees Ted up to do DBEDT. He still signs all the paperwork. I don’t sign, I review.”

OP’s planning program administrator Mary Lou Kobayashi confirms Young’s take on the effect of the order. Since May, she said, “Policy positions of OP are reviewed and approved by Peter Young to assure that they are consistent with the administration’s policies before they are issued by OP. This includes positions that OP takes before the State Land Use Commission.”

According to Young, since May, those positions “have typically been home-rule centered…I believe we’ve come forward with positions consistent with the county position. That’s been my involvement.”

Lingle’s order came after the Legislature last year failed to pass an administration-backed bill that would have transferred the OP and the Land Use Commission from DBEDT to DLNR. Unable to get its way through legislative channels, the administration chose to accomplish many of the same goals through administrative fiat. Although the maneuver is somewhat unusual, University of Hawai’i law professor and former Land Use Commissioner Casey Jarman says it is perfectly legal. Since state law doesn’t specify where the OP must be placed, the governor can tell the OP to report to whomever she wants, Jarman told Environment Hawai’i.

Although some critics say that Young’s participation in OP decisions since the order exceeds what’s allowable under current law, no one has openly challenged the new regime.

Also, Lingle has never officially appointed someone to replace David Blane, OP director under the Cayetano administration. For now, and perhaps indefinitely, Young’s hand will be guiding the office.

A Proper Home?

While Lingle’s order suggested that OP and DLNR will make a perfect “land team” because they overlap on certain coastal and land issues, not everyone agrees that DLNR and OP are a perfect fit.

During the 2003 Legislature, the administration claimed that the LUC and OP were distracting DBEDT from its main purpose of economic development. Placing OP under the DLNR, which oversees state lands and natural resources, would be more appropriate, it argued.

Among other things, the administration’s bills proposed to eliminate Chapter 225M, which establishes the responsibilities of the OP, and would have removed the Office of Planning’s presence from the state Natural Area Reserves System Commission (which is under DLNR), the Kane’ohe Bay Regional Council, and the Statewide Transportation Council. In addition, the bill would have made the DLNR director, who chairs the state Board of Land and Natural Resources, chair of the LUC as well. This last measure, many complained, would set up a conflict of interest between the DLNR and the LUC and would concentrate too much power in one person. (Under current law, the DLNR has no representation on the LUC, which is responsible for approving all petitions for changes in land use districts – Urban, Rural, and Agriculture – of 15 acres or more, and all petitions to remove land from the Conservation District, regardless of acreage.)

At the time, Dan Davidson, then-executive director of the Land Use Research Foundation, a group that lobbies on behalf of developers, testified in support of the bill: “Essentially, DLNR will become the encompassing land related agency,” he stated in written testimony. “This may actually improve the coordination of the state’s land management and land use policies.”

Young himself testified in support of the bill: “The core activities of DBEDT have become diluted by the sometimes divergent functions of the administratively attached LUC and OP… DLNR already regulates the Conservation District, one of the land use classifications, and has other programs that are complementary to the functions of the LUC and OP.”

But opponents of the measure, including the environmental group Hawai’i’s Thousand Friends, suggested that the broader issues the OP deals with, such as transportation, agriculture, tourism, and education, may not fall within DLNR ‘s narrow scope “to manage, administer, and exercise control over public and conservation lands.”

Legislators deleted parts of a House bill that would have repealed Chapter 225 and made the DLNR director and LUC chair the same person, and also proposed delays in the effective date of the transfer of the OP to the DLNR . Even so, the bill did not pass.

After the Legislature’s close, Lingle issued her order in the form of a letter on May 14 to OP’s Mary Lou Kobayashi.

It read, “the proposed reassignment of OP to DLNR would result in state land-use policies that are more enlightened, better coordinated, and clearly focused on the sustainability of Hawai’i’s precious natural resources.” Since her bills did not pass, she continued, “the Attorney General has determined that I can accomplish most of the goals mentioned above administratively by instructing you and your staff to consult with and report to Peter Young, the Chairperson of the Board of Land and Natural Resources, and so that is what I am doing with this letter.

“Other than the expected positive impact of better coordination and significant efficiencies, I am not with this letter attempting to change any agency’s budget, position count, organization, or mission… A primary goal of this order is to improve communication and coordination, not restrict or hamper them.”

Shortly after the letter was issued, the Sierra Club, Hawai’i Chapter voiced its objection, not because of incongruities between the OP and the DLNR , but because of the background of Davidson, who had since been appointed as Young’s deputy for land matters. The group issued a press release criticizing a move that it said was tantamount to handing authority of OP over to Davidson, who, as LURF’s director, had argued against recognizing Hawaiian rights and the public trust doctrine, and had lobbied for years on behalf of developers. Having DLNR in control of the OP (which has an influential presence on the Land Use Commission) was like appointing Dracula to guard the blood bank, the group stated.

Although Davidson says “both Peter Young and I have been very pleased with what we’ve been able to work” in their weekly meetings with Kobayashi, Young rejects any suggestion that Davidson is making decisions for the OP. “I have the final say,” he says, not Davidson. He adds that the Lingle administration’s detractors always bring up Davidson’s LURF past as a poisonous specter. (According to Kobayashi, DLNR ‘s deputy director for water, Ernie Lau, does not attend the weekly OP meetings.)

Perhaps the strongest argument against the new relationship between the OP and DLNR comes from those who feel that the OP, if it is to be effective, must be housed in the governor’s office, as it was in the past, most recently in the Waihe’e administration.

Jarman says the purpose of the Office of Planning is to look at land use planning statewide and gather input from different agencies. She feels the only way it can properly do that is if the OP is administratively separate from those agencies.

Likewise, former Office of State Planning director Harold Masumoto (now head of the Research Corporation of the University of Hawai’i) also feels OP should have independence from other departments, especially regarding land use decisions.

“The DLNR ends up being an advocate sometimes. I’ve always said the DLNR had a conflict because they were the judge for Conservation District use permits. They were keepers of Conservation District lands and decided what to do with it,” he says. The OP used to have a lot of problems with DBEDT, he said, because it didn’t always go along with what the department wanted. OP’s relationship with DLNR may be less controversial than it was with DBEDT, but it’s still not ideal, he says, “because they control lands.”

A November 2000 OP study by Anthony James Catanese and John DeGrove of Florida Atlantic University and Tom Dinell of the University of Hawai’i found that if the state wanted to encourage “smart growth” (characterized by a mix of land uses; a range of housing opportunities and transportation choices; preserved open space, natural areas, rural character and agricultural land; and coordinated state and county infrastructure planning and implementation), there must be “a revitalized Office of State Planning with enough muscle to coordinate key state agency spending and other actions in a way that supports county efforts to grow smarter, not continue to sprawl out into Hawai’i’s unique natural systems and its most important agricultural lands.” That office, they wrote, should work “directly under and with the governor.”

And Jarman agrees. “I liked it best when it was in the governor’s office. But if the governor doesn’t want it, it doesn’t do any good.”

Coastal Zone Conflicts

Many of the same arguments regarding a loss of independence and conflicts of interest with DLNR also apply to the Coastal Zone Management Program, which OP administers.

The state CZM program carries out the objectives and policies within the CZM Act by working with the DLNR, the Department of Health on non-point source pollution, Civil Defense on coastal hazards and other agencies. Among other things, the state CZM program allocates federal funds to county CZM planners and community initiatives, and is supposed to ensure that any development in the coastal zone complies with federal laws.

Back when Lingle’s OP/LUC transfer bill was being heard, University of Hawai’i Sea Grant extension agent Chris Woolaway, testifying as an individual, stated that the state’s Coastal Zone Management Program is supposed to help state and county agencies “address coastal management objectives and policies independently of their resource-specific initiatives.” Since the DLNR has property interests and trust duties in coastal zone areas, if CZM responsibility is placed in the DLNR, Woolaway argued, it “sets up definite conflict-of-interest issues.”

While the bill didn’t pass, Lingle’s order piqued the attention of the National Oceanic and Atmospheric Administration (NOAA provides millions of dollars in matching funds to the state CZM Program). In mid-2003, Bill Millhouser, CZM team leader with the Pacific region, and his boss Eldon Hout, director of NOAA’s Office of Coastal Resources, met with Young and Kobayashi to discuss how the reorganization would affect decisions made by the CZM program.

“It was really more of a ‘Let’s get to know each other face-to-face meeting,'” Kobayashi says.

While Young says little on concerns surrounding the new DLNR-CZM relationship, he admits, “NOAA was a little concerned.” He adds that in no way was Lingle’s order an attempt to get rid of the coastal zone management program.

“If anything, it will assist it,” he said. “We have more passionate people that deal with coastal issues at the DLNR than at CZM.” That comment, he says, is not meant to disparage the people at CZM. “It’s just that there are more people here [at DLNR ] dealing with those types of issues.” (The DLNR has three people dealing with coastal issues in its Office of Conservation and Coastal Lands. In addition, DLNR Divisions of Aquatic Resources and Boating and Ocean Recreation have jurisdiction over some activities in coastal areas.)

To those who assert that CZM needs to maintain some type of independence from DLNR , Young says, “CZM is a delegated function to the state. To suggest it’s independent of the administration, that’s not what they are. CZM-Hawai’i is the state’s interest and actions in the coastal zone areas. It never was nor is it now an independent group.”

He notes that Lingle had him replace the head of the OP as Hawai’i’s representative to the Coastal States Organization, a non-governmental membership group that met in New Hampshire late last year.

“I’ll be going as the director of DLNR where other states have a director of CZM,” he told Environment Hawai’i. Young says his appointment raises the visibility of coastal issues and sends a message that they are being addressed “at an administrative level directly.”

Masumoto says that although “everybody’s worried about the CZM program… I’m not sure CZM needs as much independence. The Na Ala Hele trails program (now under the DLNR’s Division of Forestry and Wildlife) used to be in the OSP. It didn’t fit. The coastal zone management program is more operational than planning. The coastal zone program and [the DLNR’s Conservation District Use Application] process should go together.”

DLNR’s effect on the CZM program to date, Kobayashi says, has been the addition of more DLNR representatives to a couple of OP’s Marine and Coastal Zone Advisory Committee subcommittees, “and we’ve been asked to comment on coastal erosion and determining shoreline setbacks.”

Home Rule

Whether or not it’s a good idea to have the head of DLNR looking over OP’s shoulder, the situation is not likely to change any time soon.

“It is a very good working relationship from my perspective …and I’m not sure about formalizing it with legislation,” Young says. “It’s a responsible transfer. It makes sense. It puts operations in a home more reflective of those types of issues,” he says.

In talking to Young, one gets a strong sense that county home rule may play a big part in OP’s future decisions.

“I’ve had individual meetings with mayors, planning directors and water directors of all counties. I ask, ‘Are state laws, policies, et cetera, interfering with their opportunities to fulfill their general plans?’ Number two, ‘Are there areas where they would be interested in having more control? … ‘Are there better ways we can work better together and make sure we don’t step on each other’s toes?’ ”

Masumoto also supports more home rule, saying that most counties today have more expertise, often superior technology, and are better able to handle their own planning.

How Young will incorporate his home rule philosophy into his work with the OP remains to be seen.

“We do have discussions on policy issues and we get guidance and direction from Peter Young on that,” Kobayashi says. “I would say the majority of it would be for land use petitions.”

So far, there have been no “test cases” before the LUC where the state and county might disagree, but Young assures that he will not make OP start automatically deferring to the will of the counties.

Hawai’i’s Thousand Friends stated in its legislative testimony last year, “The counties do not adequately examine biological resource issues, impacts on state libraries, schools and highways, etc. The counties’ purview is the urban district and since they receive most of their funding from property taxes they have a vested interest in development to increase the tax base so they can provide urban services.”

Although he supports home rule, Masumoto says delegating powers to the counties may not be any more efficient than the current system.

“Do you think [county councils] are going to let the county administrators and the planning departments make all the decisions? They’re going to change the rules of zoning so county councils will have more of a decision,” Masumoto says. “With more home rule, the political process of the counties may change, and it may not be more expeditious.”

Finally, Jarman warns that the OP may lose its credibility with the LUC if it starts to bow to the county.

— Teresa Dawson

Volume 14, Number 7 January 2004

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