by Ian Lind
Published in Honolulu Weekly, February 13-19, 2008

The Department of Hawaiian Home Lands is in the midst of an unprecedented burst of commercial development on land it controls across the state, from hundreds of time-share units on Kauai to a marina, 400 hotel rooms and over 1,000 time-shares at Honokohau in the island of Hawaii. But the agency is now facing several different challenges to its policy of expediting deals with large corporate developers as it searches for the future income it says is necessary to fund new homestead projects.

Keys to the policy are DHHL’s assertion that without large scale commercial developments it will never have enough money to seriously address the needs of its native beneficiaries, and the legal claim that its commercial projects and private development partners are exempt from state and county zoning and planning restrictions.

Native Hawaiians on DHHL’s waiting list have been told they have no alternative except to support the giveaway of lands to corporate developers, while the claimed exemption from local zoning has been used to clinch deals with Wal-Mart and others who would otherwise face environmental or political opposition that could derail their projects.

The issues are politically sensitive because of Linda Lingle’s pledge to eliminate the backlog of homestead applicants and grant leases to all qualified Native Hawaiians within five years, a key element of her successful 2002 gubernatorial campaign. But after five years under the leadership of Micah Kane, former executive director of the Hawaii Republican Party and lobbyist for the Building Industry Association of Hawaii, barely a dent has been made in the 20,000 person waiting list while the emphasis has been on speeding up large commercial developments.

DHHL now faces both legal and political challenges on several fronts. For example, a lawsuit filed year on behalf of six Hawaiians on the Big Island accuses the Hawaiian Home Commission, the Lingle administration, and the Legislature of an "unconscionable pattern of neglect" for failing to request or provide sufficient funds to fulfill “the spirit and intent” of the Hawaiian Homes Commission act without relying on commercial leases to non-beneficiaries.

The suit, filed by the Native Hawaiian Legal Corporation, points to Article XII, Section 2 of the State Constitution, passed by the 1978 Con-Con and adopted by the voters, which requires the Legislature to appropriate “sufficient sums” for development of development of home, agriculture, farm and ranch lots, loans, “rehabilitation projects” to improve “the general welfare and conditions of native Hawaiians”, and the administration and operation of DHHL.

Records of the Constitutional Convention, cited in the lawsuit, show that the intent of the amendment was to eliminate the “burden to generate revenues through the general leasing of lands” by requiring adequate legislative funding. The Con-Con’s action came after several years of protests and civil disobedience by Hawaiians angered that lands were being leased to politically connected businesses while their applications for leases languished without action, often for decades.

But funding for DHHL has remained a low priority despite its constitutionally protected status, the suit alleges. It was not until 1987, after the election of Gov. John Waihee, that the Legislature first appropriated any general funds for the operations of DHHL. General fund appropriations peaked at $4.2 million in 1992.

Last year, the Legislature appropriated less than $1.5 million in general revenue to DHHL, while the Hawaii Tourism Authority, which is not constitutionally mandated, increased its state funding to $87 million.

Meanwhile, at the Legislature, several groups are backing House Bill 3421, which clarifies that DHHL’s commercial developments must comply with state and country zoning and other controls. The bill, sponsored by the Legislative Hawaiian Caucus, was passed by the House Committee on Water, Land, Ocean Resources and Hawaiian Affairs last week, but must clear two additional committees before it gets to a full House vote.

Testimony by attorney Barry Sullivan, special counsel to the United Food & Commercial Workers Union, Local 480, cited several key examples of the Lingle administration’s “concerted effort to promote massive commercial developments on Hawaiian home lands that are not compliant with county zoning or land use laws.”

•A planned 800-unit resort time-share project at Wailua, Kauai, is to be built on 52 acres of DHHL land, most of which are within the State agricultural district and rated as prime agricultural lands.

• The Ka Makana Ali’i project in Kapolei, to include a Wal-Mart supercenter, is being built on 67 acres zoned Ag-1 Restricted Agriculture by the state.

• Wal-Mart is moving to put another supercenter on 15 acres of DHHL land in Hilo, despite county general industrial zoning that does not allow retail establishments.

Critics say that DHHL appears to have manipulated its own procedures in order to reward pre-selected development partners. In Hilo, for example, DHHL failed to notify adjoining landowners that the land was available to lease. A legal notice was published in a single Friday edition of the Star-Bulletin, which has extremely limited circulation in Hilo and, according to critics, included the wrong tax map key, a mistake that resulted in Wal-Mart being the only bidder.

An opinion issued by the Attorney General in 1972 held that county zoning exemption applies only to those lands used for homesteads under the terms of the Hawaiian Homes Commission Act, while commercial projects just follow the law. This remains the only formal opinion by the Attorney General, although DHHL points to an informal letter opinion by Attorney General Mark Bennett to support its position.

This creates the appearance, Sullivan testified, that the Lingle administration “has openly disavowed the law and has taken up legal arms on behalf of its commercial lessees and/or development partners and against the public.”

-Ian Lind (www.iLind.net)