When Charmaine Tavares, then chairing the County Council Planning Committee, prepared a revision of the county's general plan law, she envisioned processes that "clearly identify provisions that are meant to be policy guidelines and provisions that are intended to have the force and effect of law" (Maui County Code 2.80B.010).
It isn't working out that way. But that's the norm with efforts to regulate land use, where public participation reflects a spectrum of interests in managing growth.
University of Hawaii law professor David Callies cites that factor when he describes the complexity of Hawaii land-use regulation - and how that adds costs to land development and the high price of housing in the isles.
"Couple this regulatory scheme with increasingly large numbers of so-called public-interest groups that lay claim both to stakeholder status in the land-use process and a veto power over the ultimate decision, and we have an unhealthy brew that threatens the economic future of the Fiftieth State," Callies says in "Regulating Paradise" (UH Press, 2010).
As noted in a prior column, regulatory efforts still fall short of protecting the quality of Hawaii's natural environment that renders value to Hawaii's land. A factor in the enigma is the point raised in the County Code: distinguishing policy and legal mandate in implementing layers of the land-use law.
That is the issue raised by county Planning Director Will Spence when he said details proposed for the Maui Island Plan were excessive and would be difficult to enforce ("lsle's growth, development plan 'has too much detail'," The Maui News, March 2, 2012). Like the Countywide Policy Plan that is the first regulatory layer required by the general plan law, the Maui Island Plan is primarily a policy plan intended to establish "vision, principles, goals and policies."
The Maui Island Plan provides an Action Plan that specifies "programs, projects and regulations that will need to be developed over the 20-year planning period" as well as designating urban boundaries. But the Action Plan is a directive to government agencies to assure that infrastructure is in place as growth occurs. It's not a directive to property owners who might be planning a development, although it is informative on what needs to be in place for development to proceed - such as schools, roads, waste handling, water and drainage systems.
In addition to confusing policy with legal mandate, there appears to be a failure to appreciate the difference between administrative and discretionary functions of government agencies - the Planning Department, planning commissions and County Council. County planners have administrative authority to assure that a proposed project complies with policies.
It's when a proposed project seeks permitting that discretionary authority comes into play, whether the request involves plan amendments, zoning, coastal zone or planned development permits or variances. That's when public interest groups - the community at large - have a role.
But when details in layers of policy plans conflict or create ambiguity, the effectiveness of both administrative and discretionary functions can be negated.
Excessive detail can also be counterproductive. A study by the National Center for Smart Growth noted the point in a review of a Maryland growth-control program. In the program, urban growth areas designated priority funding areas (PFA) were expected to promote development by reducing uncertainty.
Instead, the study found that developers avoided PFAs "not from spatial differences in regulations but in how they are applied." Among other points, the study said, "Citizen opposition, for example, can be more severe within PFAs because higher density of development implies satisfying a larger number of constituencies" ("Barriers to development inside Maryland's priority funding areas," www.smartgrowth.umd.edu).
Development is market based. Costs and potential profits, not plans, determine where developers will seek to build. On Maui, regulations intended to favor growth in urban districts but adding costs without increasing earnings would promote investment where it isn't wanted.
* Edwin Tanji is a former city editor of The Maui News. He can be reached at hakumoolelo@earthlink.net. "Haku Mo'olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.
