[ OUR OPINION ]
Court should reject
judicial activism
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District Judge Susan Mollway found in 2002 that the rental caps authorized by the state law did not "substantially advance a legitimate state interest" because the caps would result in higher gasoline prices. In arriving at that conclusion, Mollway agreed with Chevron U.S.A. Inc.'s expert, John R. Umbeck, chairman of Purdue University's economics department, that Chevron "would try to raise the wholesale price (of gasoline) to recoup as much of the lost rent as they could," causing prices at the pump to rise.
Chevron challenged the rental caps as a violation of the Fifth Amendment, which provides that private property shall not be "taken for public use without just compensation." In 1980, the high court ruled that a regulation can amount to a "taking" of property if it "does not substantially advance legitimate state interests."
The high court has never explained what that means, but a logical reading is that such a law that is intended to advance state interests should pass constitutional scrutiny. Otherwise, judges are invited to examine such laws not only to decide the legislative intent but to predict whether they will work. That is the job of legislators, not judges.
"This case raises questions of profound importance concerning the proper relationship between the courts and institutions of democratic governance," says state Attorney General Mark Bennett. Judges, he says, should not "freely second-guess the wisdom of state economic legislation."
The issues are much the same as those raised about the constitutionality of gas price caps enacted by the 2002 Legislature. A California petroleum consulting company that studied the measure's potential effects concluded that, if implemented, it "would bring volatility, market distortions and opportunities for profiteers to game the market."
Governor Lingle agrees with that assessment. However, those are questions that are properly brought before legislators. Judges should not meddle in issues of effectiveness in considering whether a regulation is intended to advance the state's interest.
Waterfront project
holds hope for harbor
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Nonetheless, Dallas-based UC Urban's proposal for condominiums, stores and parks squares well with the state's desire to enhance and capitalize on a prime piece of harborside real estate that has been stymied by bankruptcy and disputes since a retail segment was opened 10 years ago.
Redevelopment will be challenging.
Among the "bunch of things" to which Liu referred are removing Hawaiian Electric Co's generating plant that lends the area an industrial atmosphere. This will be no easy task. Although HECO isn't opposed to the relocation, the plant produces 110 megawatts of electricity crucial for downtown and would have to be replaced immediately. The company has faced strong community opposition to its plans for expansion in recent years and questions will surely be raised about who will bear the cost of a new facility and where it will be built.
UC Urban's plans sensibly includes a new structure for additional parking, a problem that has plagued the Aloha Tower Marketplace since it opened in 1994 and has resulted in lawsuits and clashes between the state and marketplace's owners.
The plans also include a trolley system to connect the development to the downtown area, but the bigger traffic hurdle is Nimitz Highway, a busy, divided thoroughfare that cuts off pedestrians and does not entice motorists. UC Urban's idea for an underground bypass road sounds workable, but like the HECO relocation, it is an expensive proposition.
Liu suggests that the state Legislature approve financing through bonds for improvements that the project require. While taxpayers may look askance at such funding, redevelopment of the state-owned property will be beneficial for Hawaii in the long run.
