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Governor asks PLDC to consider all concerns before adopting rules

GovAbercrombieBug

MEDIA RELEASE

Gov. Neil Abercrombie has asked the Public Land Development Corporation (PLDC) Board of Directors to temporarily defer action on pending rules while public concerns about the agency are fully considered and addressed.

Additionally, the governor directed the state Department of Land and Natural Resources (DLNR), to which the PLDC is administratively attached, to facilitate meetings with stakeholders.

“I have asked the PLDC board to postpone any meeting dates and adoptive actions until those concerns are fully taken into consideration,” Abercrombie said. “I do not want the potential for the PLDC to accomplish public good to be lost because of a failure to account for reservations about either the process or the outcome. I have asked DLNR Chairperson William Aila to meet with stakeholders to address the PLDC’s administrative rules and the rule-making process before moving forward.”

The meetings conducted by Aila will be done with full accountability and transparency, and with the understanding that if public concerns cannot be adequately addressed, then a legislative process may be appropriate.

“We will do our best to alleviate public concerns; however, the PLDC is the creation of the Legislature and lawmakers will ultimately be the ones to decide its future,” Abercrombie said.

Established in 2011 by the Hawaii State Legislature, the PLDC’s purpose is to create and facilitate partnerships between state and county agencies, businesses, non-profits, and community groups to improve Hawaii’s communities, create jobs and expand public benefit through stewardship and responsible use of land resources.

Currently, the PLDC is completing a public review process, mandated by law, to formulate its administrative rules. Last summer, the PLDC conducted statewide public hearings on draft rules and encountered concerns from the public and community groups that followed the initial passage of the law.

The PLDC staff worked with legislative proponents to complete a strategic plan to better define its scope, dispel myths and facilitate continued review of its draft rules.

The PLDC has also proposed amendments to its draft rules based on public input and held an additional public hearing Nov. 13 to provide further opportunity for public comment.

“It is the responsibility of PLDC staff to follow through with the public commentary process, and personal attacks which have characterized some of the testimony are, in my opinion, misdirected and unproductive,” Abercrombie said. “We’ve heard the concerns and now need to focus on productive dialogue with stakeholders before proceeding.

“The PLDC has the potential to support new schools, recreational facilities and operations by using public lands for public purposes that otherwise may not have had sufficient funding. We will continue to work closely with the Legislature and all interested parties involved to do what is best for the people of Hawaii.”

PUBLIC LAND DEVELOPMENT CORPORATION

What is the PLDC?

Established in 2011 by the Hawaii State Legislature, the PLDC is a state entity whose purpose is to create and facilitate partnerships between state and county agencies, businesses, non-profits, and community groups to improve Hawaii’s communities, create jobs and expand public benefit through stewardship and responsible use of land resources. Ultimately, the PLDC seeks to make Hawaii’s lands better for Hawaii’s people.

The PLDC’s creation is based, in part, on empowering the “keep it local” vision. Currently, there are already individuals and groups with projects working toward this goal. Although still in the visioning phase, potential projects may also focus on improvements to 21st Century Schools and state parks and harbors.

Do PLDC projects need to adhere to existing environmental, historic and other federal, state or county laws?

Yes. The PLDC and project partners must adhere to federal and state historic preservation laws, wage and hour laws, and other relevant laws. The PLDC must also comply with environmental laws that are intended to protect human health and the environment such as the Environmental Impact Statement law (Chapter 343), Water and Air Pollution laws (Chapters 342D and 342B) and Hazardous Waste laws (Chapter 342J).

Although Section 19 of Act 55 exempts the PLDC from laws relating to land use and zoning, those activities must be coordinated with the county planning departments and the county land use plans, policies and ordinances.

Is the PLDC required to pay proceeds to OHA, as required by law?

Yes. The PLDC must pay OHA its share of proceeds as required by law. There is no exemption from that requirement within HRS chapter 171C.

What is the status of the PLDC’s administrative rules?

The PLDC is just over a year old; as such, it is still formulating its administrative rules. Currently, the PLDC is in the process of completed a public review process, mandated by law, to formulate its administrative rules. Last summer, the PLDC conducted statewide public hearings on draft rules and encountered concerns from the public and community groups. In a good-faith effort to complete the public comment process, PLDC staff worked with legislative proponents to complete a strategic plan to better define its scope, dispel myths and facilitate continued review of its draft rules. The PLDC has also proposed amendments to its draft rules based on public input and held an additional public hearing on Nov. 13 to provide further opportunity for public comment.

Why is requirement of competitive bidding not part of the PLDC’s draft rules?

By not requiring a full competitive bid process, the title agency has flexibility to choose projects that more comprehensively represent the values of the community and the state than may be available through a purely competitive bidding process.

What is PLDC’s project selection and launch process?

This PLDC Project Flowchart shows the sequential process and tasks from the first step in seeking projects and applicants to announcing the partnership and project for a typical project where the title agency has a board, e.g. the Board of Land and Natural Resources. The PLDC will have announcements for potential projects. Once this process begins, the public will have opportunities to provide comments as noted.

Does the public have an opportunity to provide public input on PLDC projects?

Yes. The PLDC actually expands opportunity for public comment. Meetings at which the public may comment will be required before both the title agency and the PLDC Board. See PLDC Project Flowchart.

What are the guidelines for PLDC projects?

PLDC project guidelines include but are not limited to the following:

PLDC shall comply with HRS Chapter 343 (EIS).
PLDC shall comply with HRS Chapter 6E (Historic Preservation).
PLDC shall comply with HRS Chapter 92 (Hawai‘i Sunshine Law).
PLDC shall comply with HRS Chapter 104 (Wage Rate Schedule).
PLDC shall comply with HRS Section 171-64.7 (Restriction on sale of ceded lands).
PLDC will pay OHA ceded land revenues as required by HRS Section 10-13.5.
Any undertaking by the PLDC will be with the express written consent of the landowner or landowners directly affected.
Management and projects shall comply with title agency conditions (“Title agency” refers to any agency that has title to or management over state or county lands).
Revenues for DLNR or any other title agency shall be retained or increased with any transfer of management.
Eighty-five percent of the state’s share of generated net revenues shall go to the title holding agency or agencies.
Each identified state parcel must have approval from the BLNR or title holding agency prior to PLDC participation, subject to HRS Chapter 92 (Hawaii Sunshine Law), where applicable.
PLDC will not develop agricultural lands eligible for designation as Important Agricultural Lands (IAL).
PLDC will comply with conditions required by the County for infrastructure connection.
How is the PLDC structured?

The PLDC is governed by a five-member board of directors. Three state agencies (Department of Business, Economic Development and Tourism; the Department of Budget and Finance; and the Department of Land and Natural Resources) are represented on the board either by their director or designee. One member is appointed by the Speaker of the House of Representatives, and another member is appointed by the President of the Senate.

The Office of Hawaiian Affairs (OHA) has stated that, when OHA suggested changes to the PLDC rules, the PLDC maintained that the rule changes were “unnecessary.” Is this true?

The PLDC stated that OHA’s suggested changes were unnecessary because the PLDC was already bound by the same requirements through existing laws. The changes would have been redundant and possibly inconsistent with present or future laws regarding native Hawaiian rights. The PLDC is already bound to follow the law regarding native Hawaiian rights and will do so as prescribed by the constitution, statutes, rules, and case law.

Does the PLDC have to abide by HRS Chapter 6E Historic Preservation?

Yes. There is no indication in Act 55 that projects undertaken by the PLDC are to be exempt from the historic preservation program under HRS chapter 6E, or any of its requirements.

Does the PLDC have to abide by HRS Chapter 343 Environmental Impact Statements?

Yes. There is no provision in Act 55 that exempts the PLDC from compliance with HRS chapter 343 or other environmental laws.

Does the PLDC have to abide by HRS Chapter 92 Sunshine Law?

Yes. The PLDC is not exempt from HRS chapter 92 Sunshine Law. Like any other board or commission created by statute, the PLDC is still subject to the Sunshine Law. All meetings of the PLDC will be held pursuant to HRS chapter 92. Under HRS chapter 92, the public is allowed to testify on all matters on the PLDC Board’s agenda. Such matters would include any land use or project decision making.

Can the PLDC sell public lands?

The initial premise is that title will remain with the respective agency and only the management rights will transfer over to the PLDC; therefore, the PLDC cannot sell the fee title to any of the lands. If the respective title agency transfers the fee title to the PLDC, the PLDC may sell title, subject to the same restrictions as other state agencies. Additionally, the PLDC would need to abide by title agency restrictions.

Can the PLDC sell ceded lands?

The PLDC has no special powers to sell ceded lands or any other lands beyond that of other state agencies. Under HRS § 171-64.7, the PLDC has the same powers and limitations on its ability to sell land as the Agribusiness Development Corporation, Aloha Tower Development Corporation, Hawaii Housing Finance & Development Corporation, High Technology Development Corporation, Department of Agriculture, and University of Hawaii. In essence, the PLDC, like these other corporations and entities, may only sell ceded or other land subject to the process and restrictions set forth in HRS § 171-64.7, which includes obtaining legislative approval in advance.

Does the PLDC have the power to condemn?

No. Act 55 does not give the PLDC the power of condemnation.

Can the PLDC force private property owners to pay for infrastructure costs if they live near a project or improvement that is under the jurisdiction of the PLDC?

No. The PLDC cannot force private property owners to pay for infrastructure costs (i.e., project facilities). HRS § 171C-7(b) provides that the assessment of costs are “subject to the express written consent of the landowners directly affected.”

What is the Public Land Optimization Plan?

One of the PLDC’s goals is to develop a Public Land Optimization Plan that includes an inventory of public lands that will help the PLDC create culturally sensitive projects and feasible strategies to allow the PLDC to prioritize potential projects. The optimization plan will guide the PLDC in project selection and evaluation.

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Oct 31, 2014 / 5:15 pm

 

 

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