Challenging the Housing Czar

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This week we look at Governor Green‘s Emergency Proclamation Relating to Housing, and his use of the emergency statutes to suspend many of the laws that account for delays upon delays in housing starts. 

The proclamation has been on the books for a couple of months.  It came after much effort was expended in developing the temporary rules that would be used under the emergency proclamation.  As expected, some organizations unhappy with the proclamation and its consequences sued to invalidate it.  (Which, by the way, is the legitimate way to challenge its validity.  Threats of violence or worse against the housing administrator, causing her to resign for the safety of her and her family, deserve nothing but contempt.)

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Some of the proclamation’s detractors point out that housing crisis is not what’s normally contemplated in a state of emergency.  With hurricanes, tsunami, and wildfires, for example, the event hits, it goes away, and leaves death and destruction in its wake.  The housing crisis certainly doesn’t fit this mold; but, then again, neither does COVID-19, which was used under Governor Ige to justify chained 60-day emergency proclamations spanning multiple years.  The Legislature was in session multiple times within the duration of the pandemic, and it implicitly approved the use of emergency authority then; some bills were introduced that would have modified or limited the Governor’s authority for emergencies of long duration, but they did not pass.

The opponents also focused on the intricate, detailed rules attached to the proclamation, which were the product of many weeks of considered thought, outreach to and input from dozens of stakeholders.  That doesn’t happen in the case of a real emergency, argue the opposition, therefore the housing crisis can’t be a real emergency.  To them I have two things to say.  First, I would much rather be governed by rules put together after much thought, deliberation, and stakeholder involvement than by ones hastily assembled while staring down a crisis.  If a government agency is doing its job right, the rules it puts out should always be the former rather than the latter. Second, if properly vetted rules were drafted by an agency to be used in a possible emergency that didn’t happen to be at our doorstep, I would call it prudent planning rather than a waste of taxpayer resources.  Does our response to a real emergency have to be thrown together at the last minute to be valid?

Next, the opposition seems to be saying that the housing crisis was long years or decades in the making, so it lacks the suddenness required of an emergency.  As our statutes define an emergency or disaster, however, suddenness is not required.  What is required is an occurrence, or threat of one, that results in injury, harm, or loss of life, property, or the environment.  If astronomers found an asteroid that they predicted would slam into Oahu in three months and bring half of the island undersea, for example, would that not qualify as an emergency?  And we certainly have been losing people — fortunately they haven’t been sickened or killed, but have been boarding one-way flights to Anywhere But Hawaii. 

Will any good come of the emergency housing proclamation?  It’s probably too early to tell yet.  But it does represent a fundamental change from past administrations who considered themselves boxed in by the myriad of state and county rules and processes that have grown up over multiple generations.  Sometimes you just have to break the current system before you can see if something else works better or more efficiently.  If there are better solutions discovered in the process, our legislators can take steps to adopt them.  If there are none, then the noble experiment validates the status quo.  But, given the dismal state of our housing supply and the near-constant reports in recent years of steady population decline, my bet is on the success of the experiment.  I look forward to the likely upcoming struggle to implement its findings.

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