Laura Thielen
Laura Thielen

By Senator Laura H. Thielen –  I’ve made clear from the start of session that I do not support granting developments broad exemptions from our laws.  I opposed the Public Lands Development Corporation because it contained two broad exemptions.

The first: a broad exemption from all land use and zoning laws.

The second: a broad exemption from the laws requiring long-term leases of public lands to be negotiated and awarded in an open, transparent and fair manner.

Happily, SB 237 does not contain any exemptions from state or county land use or zoning laws.  I thank the Chair of the Senate Education Committee for ensuring that any redevelopment of school lands will comply with these laws.

However, SB 237 still contains the exemptions that I have repeatedly pointed out which leave the negotiation of these public lands ungoverned by specific laws or administrative rules to ensure fairness and transparency in the disposition of public lands.

Specifically, the language in the Bill that exempts these long term leases from HRS 171-13, and 302A-1151.  Those sections of the law combined require the Department of Education to follow HRS Chapter 171 when entering into any long term leases for the development of public school lands.

Chapter 171 was adopted to ensure that the disposition of state trust lands are made in the best interest of the general public – and not to the benefit of private interests or the interests of a few.  HRS Chapter 171 strictly governs the process for putting public lands out to bid for long term leases.  Specific steps include public auction, means of public bidding and length of public notice.

Despite repeatedly recommending that this bill include some process or guidelines for the disposition of these public lands to govern the DOE, it appears this Bill has left the process completely unregulated.  Accordingly, the department is free to negotiate the long term leases of these public lands in private.

One of my colleagues pointed out that, at least for the school lands owned by the County, there would need to be some Memorandum of Agreement approved by the County Council before they could be developed.  Such agreements must be made through the Council public process.  That is true. But it overlooks two important points.

First, that Council public process would not apply to the redevelopment of school lands owned by the state.  That list of state-owned lands, by the way, includes Jefferson Elementary School in Waikiki.

Second, the MOA may simply address the agreement between the city and state regarding the development of the land.  It may not address or preclude private negotiations with a private developer.

Another colleague stated that the department will still be governed by the Procurement Code, which requires public bidding.  That’s great, except for the fact that the Procurement Code does not apply to leasing of land.  HRS 103D-104 specifically excludes land, permanent interests in land and leases of real property.  So the Procurement Code will not preclude the department engaging in private negotiations for the leasing of public lands.

My hope is that we will return next year and establish some minimum parameters for these negotiations and dispositions of land to ensure the public trust and public process is honored in these dispositions.  These lands are far too valuable, and the public trust is far too important, to leave these discussions unregulated.
Senator Laura H. Thielen, D-Kailua, Waimanalo, Hawaii Kai, made these remarks on the Senate floor on April 30, 2013. Reach her at senthielen@capitol.hawaii.gov

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