DRIVING Development Out of Hawaii" was the title of a recent lecture by Hawaii's most knowledgeable teacher of private property law. Professor David L. Callies holds an endowed chair at the University of Hawaii Law School. His voice frequently is raised to remind us that under the U.S. Constitution the public must pay for private property that government takes over for public use . Excessive restrictions
on developersSure. Sure. But how far can we go to restrict the use of private property?
Hawaii has tested the boundaries by imposing a 30 percent affordable housing requirement on new developments, mandating that a private golf course reserve 40 percent of its tee times to local residents at reduced rates, extracting $200,000 for child care in a landowner-provided public park, requiring 50 percent of boat slips in a private marina be available for public use, demanding a $4 million contribution to a community trust fund -- and much, much more.
Frequently these impositions come in exchange for land use upgrades that vastly enhance the value of the private property. Developers have been willing to pay.
But they also have the option of taking their money elsewhere. Announcements of big new developments are few these days.
Between 1990 and 1997 the number of private housing developers dropped over 40 percent, Callies said. Land sale transactions dropped 80 percent. Construction jobs dropped 35 percent and would have been worse save for increased government spending.
Callies, in his talk, didn't even mention what is known as the PASH decision of the state Supreme Court regarding rights of native Hawaiians to go on private property for traditional gathering, cultural and religious purposes.
The big problem here is that these have not yet been clearly defined. A would-be developer could face years of litigation over what is or is not permitted on his property. The developer in the PASH suit quit its Big Island project after years of litigation.
I don't believe for a minute that Callies thinks we shouldn't protect Hawaii's environment and traditions or shouldn't extract from developers the fair cost of public expenses they create.
But he thinks we have too many "ad hoc" rules imposed on particular developers at particular times in particular situations and an invitation to corruption.
He suggests we need more fair-play rules spelled out in advance so developers can know what their costs will be and make informed decisions about whether to proceed.
He's approving of negotiated public-private development agreements such as one announced in March for a developer to build a $20 million highway in South Kona in connection with an approval for a 1,540-acre resort project, but only so long as it falls within the U.S. Supreme Court's guidelines that require a reasonable balancing of public and private interests.
Callies urges:
An end to the confrontational relationships between developers and government and developers and the community at large.
If we don't become more developer-friendly, he argues, government soon will have to assume the role of developing everything.
A.A. Smyser is the contributing editor
and former editor of the the Star-Bulletin
His column runs Tuesday and Thursday.