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Sunday, August 20, 2023
Land Grab: Use Eminent Domain to Seize all of Lahaina?
By Selected News Articles @ 4:16 AM :: 4151 Views :: Maui County, Development

The big idea and pivot

Proposing a solution for Lahaina’s recovery.

by Stan Fichtman, Politics Hawaii, August 19, 2023 (excerpts)

As with every other person that calls Hawaiʻi home, the events of the last eleven days with the burning of Lāhainā from a wildfire, it’s been hard for this humble blogger and many of us to wrap our heads around the true magnitude of this event. 

From the property toll to the human toll, from the response mode to the recovery mode, and just seeing the sheer destruction in photos and videos, Hawaiʻi is now experiencing an event it was warned about but never thought it would ever see – the absolute destruction of an entire town due to a wildfire. 

While the political, financial, and social issues play out in day-to-day news, there will be a point very soon when the initial response will be over and the long road to recovery will begin, the federal presence will reduce and we as a state will be left with answering the question of “what now?” Of course, the Governor has said emphatically that there will be rebuilding, and those in the Native Hawaiian community demand a say in that rebuilding and rebirth.

All of this will inevitably sort itself out. 

But going back to “what now?” As a Kamaʻāina and person born in Hawaiʻi (my family has been in Hawaiʻi, and birthed 2 generations of my family here) I would hope that we can now start looking at recovery with a big-picture vision and that the leaders of this State can pivot to being those once-in-a-lifetime leaders to rise to the occasion and lead that vision. 

First off there needs to be something to address the concern that has been raised with such destruction, that uncouth land investors would swoop in, cash in hand, and buy up large portions of Lāhainā for itself and drive locals out. 

It is not a theoretical concern. It is happening already with residents getting phone calls from people willing to buy their destroyed home, in cash, and play on the emotions of people who have lost everything to “churn and burn” properties and make a quick buck. 

While the Governor has sought out a moratorium, and tasked his Attorney General to figure out the details, he has already figured out that imposing such a blanket restriction upon property owners and purveyors is “tricky,” and may not fly. 

What is needed to respond to a crisis of this unimaginable magnitude is a big, bold, and outside-the-box idea to both protect Lāhainā from speculators and, in turn, protect those who call Lāhainā home and want to rebuild and return. 

SUCH A BIG IDEA, relayed to this blogger by some in the legal community, starts with the State immediately considering condemnation of the entire disaster area of Lāhainā through its power of eminent domain.  At first blush, such a scenario would immediately draw criticism as a blatant “land grab” by the State, leaving the landowner with little to no choice other than to accept “just compensation” for the property, be pau and move on. 

What makes this a bold and doable vision, though, is that the State cannot simply flex its inherent authority under the Fifth Amendment to an end, but rather to begin and most importantly, a means to protect. 

Lawyers and legislators and laymen will wrangle over the nuanced details of such a big idea but at its most basic level, such condemnation could compensate the landowners immediately, while placing the land in public trust for a specified time, with an explicit provision that allows the property owner to exercise an option to buy back their land from the State in a dollar-for-dollar buyback after the people of Lāhainā and Maui and the State and county have exhaustively explored and put forth substantive plans on how to rebuild in the devastated disaster zone without the worry or stress or strain of outsiders coming in and picking off residents piecemeal.

In the Lāhainā land trust scenario, the state would not make any money back at the end, but ensure that the lands are protected and Lāhainā’s future course can be charted.

The alternative to this plan would be to just keep to the status quo and depend on a hodgepodge of landowners with different plans and ideas, to agree to keep their properties and build based on an overarching plan that addresses a myriad of issues including protection from future wildfires, making their properties “greener” and climate-change proofing the area from sea level rise and other weather phenomena. 

If COVID and its lessons told the people of Hawaiʻi anything, is that while we all are on one canoe, we do not adhere to paddling the same way. In this situation, to recover Lāhainā, paddling the same way with all parties rowing the same way has to start now. 

TO SET UP such an unprecedented plan, Hawaiʻi leaders in elected and appointed office must step up to implement this big idea, meaning Governor Josh Green, Lt. Governor Sylvia Luke, Maui Mayor Richard Bissen, and their appointees must pivot and leverage their power of office and power of persuasion to provide clear direction, promote trust amongst our people and promise the State’s unwavering support throughout the process.

One could say that Green started that pivot on Friday the 18th of August, with his short but emphatic speech from his office.

If so, he needs to continue and get good at selling that vision. 

As for the others mentioned – Lt. Governor Luke and Maui Mayor Bissen, the same lesson applies but, in their cases, they are in the canoe rowing together, saying the same thing as the Governor, but using their unique je ne sais quoi, their unique charm that got them elected in the first place, to help promote the big idea and reassure that the state will come through on what it promised. 

Starting the land trust project and shifting leadership to embrace the public trust doctrine in the State Constitution could create a new vision for Hawaiʻi. This would set an example of how leadership evolves in both the State Capitol and Maui County and would be the first step on the long journey ahead to truly realize the power (and promise) within the “public trust” doctrine enshrined in our State Constitution and restore the trust of the public in our government and its servant leaders.

And the nice thing, is, in closing, is that it can be done right now, with very little debate, starting with the Governor making a move to sign the declaration and get the process rolling to reimburse landowners fair market value and signal to everyone that Hawaiʻi can embrace the big vision for the rehabilitation of Lāhainā, and Hawaiʻi from this wildfire disaster.

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