Between 2000 and 2008, the Kaua‘i Planning Commission approved the construction of new tourist accommodations at a rate that was four-to-six times that contemplated in the Kaua‘i General Plan. The impacts associated with this 50 percent increase in tourist accommodations — on roads, resources, parks, beaches, affordable housing and Kaua‘i’s rural character, pace and lifestyle — have yet to be fully felt, as 3/4 of those approved units have not yet been built.
Concerned about the disregard for the General Plan, Kaua‘i voters in November 2008 approved, by a nearly 2:1 margin, a Charter Amendment to require that County government comply with the General Plan. The people of Kaua‘i sent the message that they desired balanced development, responsible government, and a meaningful, enforceable General Plan.
The Charter Amendment transferred the power to approve new transient accommodation units (TAUs) from the appointed Planning Commission to the elected County Council. The Council could approve new tourist accommodations, but only by a super-majority vote and only upon a finding of consistency with the General Plan’s growth scenario.
The Charter Amendment also allowed the Council to delegate its approval authority back to the Planning Commission, but only with constraints to ensure that the Planning Commission’s actions would also be consistent with the General Plan. Such delegation would require the enactment of a rate-of-growth ordinance that would limit the increase in the number of TAUs in the county to no more than 1.5 percent per year on a multi-year average basis or a growth rate defined in a future general plan. Bill 2410, unanimously approved by the County Council this week, is that ordinance.
Bill 2410, the product of 10 months of discussion and debate, had to address a number of difficult issues. First, between 3,000 — 4,000 TAUs have been approved but not yet built. The owners of these projects have, to varying degrees, “vested rights” that may limit the types of new conditions (for example, conditions requiring that construction be phased over the next 20 years) that can be added to their permits.
These TAUs are “horses that were let out of the barn” before the Charter Amendment was passed. And while the County might possibly be able to force some of them back into the barn by adding phasing requirements to their permits, doing so could raise threats of litigation against the County. Put simply, each of these horses has a lawyer in the saddle.
Second, the Charter Amendment requires that the rate-of-growth ordinance must ensure that growth that does not exceed 1.5 percent per year averaged over a multi-year period. “Multi-year” is not defined, but clearly the time frame for compliance must not be unreasonably long if the ordinance is to achieve its goal of regulating growth to a level consistent with the General Plan’s 20-year horizon.
Finally, the global economic downturn has created an environment in which no one knows what portion of the already-approved TAUs will actually be built, and over what time frame.
Bill 2410 deals with these issues by liberally — some would argue far too liberally — exempting approved-but-not-yet-built projects from any new requirements. It compensates for this by reducing the number of additional projects that can be approved in the future. In recognition of the fact that any-or-all of the enormous backlog of already-permitted TAUs could be built at any time, the Planning Commission would be allowed to issue permits for up to 1 percent additional annual growth, rather than 1.5 percent. And if it should turn out that the already-permitted TAUs are built so rapidly that the total number of TAUs in the County does exceed the General Plan’s 1.5 percent growth scenario, then the number of new TAUs that the Commission would be allowed to authorize would be cut in half (a 0.5 percent annual growth rate) until the total number of TAUs in the County falls back within the growth scenario range.
Under this approach, for almost all credible future growth scenarios, the number of TAUs in the county would be brought into compliance with the Charter Amendment’s requirements within the next 10-20 years. This time frame could have been reduced if Bill 2410 had adopted a less-lenient view of developers’ vested rights; but that approach would also increase the probability of litigation against the County. Such litigation would also likely seek to invalidate the entire Charter Amendment.
Is the balance embodied in Bill 2410 in the public interest? I believe that Bill 2410 is arguably consistent with the requirements of the Charter Amendment: it will meet the 1.5 percent annual growth target, albeit over a longer time frame than some would like. It minimizes the chance of legal challenges to the County and to the Charter Amendment from developers with projects in the backlog; nor does it prescribe a de facto moratorium, which could provoke other legal challenges. It puts teeth into the General Plan, as the voters demanded in 2008. In my opinion, it is a reasonable and responsible implementation of the rate-of-growth management option in the Charter Amendment.
Most importantly, Bill 2410 is a major milestone in strengthening Kaua‘i’s planning process. It clearly announces that Kaua‘i has advanced to a new planning environment: one in which the people, through the General Plan process, rather than the unregulated marketplace have the right and the ability to define Kaua‘i’s future by allowing only as much development as is desirable and sustainable over the long haul.
Bill 2410 is the product of the collective effort of the public and a number of people in our County government who deserve recognition. The latter include all of Kaua‘i’s current County Councilmembers (with special thanks to Council Planning Committee members Nakamura and Yukimura and Council Chair Furfaro), the members of the Planning Commission who supported improvements to the initial draft of the bill, and the leadership and staff of the County Planning Department, the County Attorney’s office, County Council Services, and the County Clerk’s office. All of these individuals heard and accepted the voters’ message and acted responsibly to respond to that message.
But much work lies ahead. The Planning Commission and the County Council must embrace and actively support the spirit of the Charter Amendment and the General Plan by approving only those projects whose impacts are fully mitigated, and by not opening the door to new problems through future rezonings, expansions of Visitor Destination Areas and other development policies.
And it is essential that Kaua‘i residents become involved in the process of updating the General Plan, which will begin to take shape over the next year. That process will strengthen, weaken, or completely undo all that has been accomplished.
• Carl Imparato was campaign coordinator for the Coalition for Responsible Government, which placed the 2008 Charter Amendment on the ballot.