White Elephants on Rampage: Take Careful Aim
Conservation District lands were set aside as an attempt to balance growth in certain areas of the state against the public’s need to protect resources. The value of those resources can be economic (timber, for example), environmental (watersheds), or aesthetic (open space), to name a few. The value in some areas may also lie simply in not developing the land: such is the case in the Limited subzone area, where the physical characteristics of the land would make any development inappropriate.
But the balance between growth and preservation seems to have been tipped in favor of development lately, especially in the General subzone of Conservation District land. How to restore that balance, then, is the question environmentalists should be asking.
In the editorial on the facing page, we suggest some changes in the law. If you belong to an environmental organization, you might suggest that it lobby on behalf of such changes at the next legislature. Even before that, you could express your concerns to your state Senator or Representative and urge him or her to support such measures first, by seeing to it that they are scheduled for a hearing and second, by seeing to it that they are passed out of committee.
Second, the editorial suggested several changes in the Administrative Rules of the Department of Land and Natural Resources. It may be that the Department will propose on its own the sort of rule changes that are needed. If that occurs, the public should be ready and willing to support these changes in testimony at the required public hearings.
But the public can also initiate rule changes, if the Department seems unwilling, by petitioning the Department. At the very least, the definition of residence should be amended by including a size limit for houses. No longer should it be possible for a building large enough to be a hotel to count as a single family residence simply because it has only one kitchen, or because the structures are linked by lattice-work or a common roof.
Other means are available – short of court action – to challenge Board policies. One method, described in the Department’s Rules (§ 13-1-27) is to petition the Board for a declaratory ruling. Perhaps the Board may be reluctant to declare its own Rules invalid (especially with respect to so pervasive a practice as the granting of conditional use permits). Nonetheless, no avenue should be overlooked.
Going beyond NIMBY
The developments discussed in this issue have fueled grass-roots opposition that has been strong, well-organized and vocal. It world be great if the opponents of specific projects would stress the need for a statewide remedy as much as they stress the need to control development in their particular area. Only in this fashion can the opposition counter accusations that it is simply a NIMBY (not-in-my-backyard) response to an isolated development and demonstrate convincingly that it is rather the expression of concern for a statewide problem that has an impact on everything from the cost of housing to protection of endangered plants to the spread of introduced species in areas where they are not now found.
Planning for a Plan
The office of State Planning has provided another venue for expression of Conservation District concerns. That office is preparing seven state functional plans, including a plan for conservation lands. Public comment is invited. For more information on how to become involved in the ongoing development of the state functional plans, call the Office of State Planning at 548-3049 (O`ahu).
The draft functional plan for conservation lands, however, steers clear of discussing the controversy over residential development. The closest it comes is in its proposal to have the legislature fund an overall plan for Conservation District land, to update the one that was approved in the early 1980s. That plan can be described basically as a map of Conservation District land, with areas indicated for a number of purposes, including wildlife sanctuary, watershed, hunting, planted forest, and scenic reserve, among others. The utility of this kind of plan for resolving disputes of the sort discussed in this issue seems doubtful, however. If the updated plan were to speak directly to the need to set aside open space or address community concerns, under those conditions it might represent a worthwhile expenditure of state money.
Boundary Review
The OSP is undertaking another project that is of paramount importance for the protection of Conservation District lands: the five-year boundary review of land use classifications, required by statute. At the moment, the preliminary work is being done. Specifically, agencies, organizations, and knowledgeable individuals are being asked whether they feel existing land use boundaries for Conservation District land provide sufficient protection to areas valuable as wildlife habitat, for recreation, and other uses compatible with the objectives of Conservation District lands. Public comments were due August 9. The OSP is then to look at the proposed boundary revisions by the end of September. The goal is to send final recommendations to the Governor by the end of October. If you want more information, call the Office of State Planning at 548-1710 (O’ahu).
Limits to Action
Some may think that the solution is simply to forbid development on Conservation District lands – period. About the only way that could happen is for the state to buy Conservation land that is now privately held. To prohibit owners from any reasonable use of their land, in other words, would probably be regarded as a “taking” and if the state does that, it has to compensate owners for the fair-market value of the property. (If someone buys land in an area where he or she knows there is a pre-existing legal ban on development, that is another matter.)
Getting a parcel of land changed from one Conservation subzone to another is one way of limiting development – but again, the argument of “taking” may apply. Furthermore, only landowners are likely to be granted standing to petition for subzone changes.
Volume 1, Number 3 September 1990