Here's an excellent report on a situation we've been following, the Hawaii governor's proclamation of a housing emergency. In "To Tackle Highest Housing Costs in the Country, Hawaii's Governor Declares YIMBY Martial Law," Christian Britschgi at Reason writes:
Developers with a [Beyond Barriers] working group [what we cheekily referred to as the "Privy Council"]–certified project wouldn't have to comply with normal zoning restrictions. They wouldn't have to go through Hawaii's cumbersome environmental review process (which can add months or years to a project's approval). They could avoid historic preservation regulations, and get relief from normal impact fees and taxes. They could also skip the need to get approval from the state's Land Use Commission—a duplicative zoning body.
The story is an excellent summary of the substance of the emergency proclamation, the support and objections it has received, and some prognostication (including ours):
Thomas says that Hawaii courts have generally been unwilling to second-guess the governor's use of emergency powers. Numerous lawsuits challenging emergency proclamations during the pandemic all failed. "COVID taught us that [the state's emergency statute] is extremely robust," he tells Reason. "It is essentially a political question is how the Hawaii Supreme Court has treated it."At the same time, Thomas does suggest that a court might look differently on the use of emergency powers to address something like Hawaii's housing shortage. "Maybe it's an emergency but it's one that's been festering for 50 years. It's been on the longest fuse one can imagine," he says.
A legal colleague of ours has a less sanguine view (or maybe we should say "a rather blunt assessment"):
Lawsuits challenging the order are almost inevitable, said one Maui land use attorney to Civil Beat. "There's no disagreement that we need more affordable housing. But using the state constitution as toilet paper isn't the right approach," he told the publication.
Strong letter to follow.
The Governor issued this emergency proclamation before the big wildfire on Maui. The Governor subsequently announced that for the next 60 days, the housing emergency proclamation efforts will be directed at Maui disaster recovery.
The big picture question we have is whether the Governor's declare-an-emergency-and- bypass-the-laws approach to Hawaii's housing shortage will spread to other jurisdictions. Co-19 taught a whole lot of government officials that emergency orders are the shortcut to getting what they want done.
Stay tuned.