County of Hawaii to Amend Affordable Housing Ordinance

The Hawaii County Council is considering a bill that would amend the County of Hawaii Affordable Housing Policy, which was adopted in 1998.

Bill 156, introduced by Councilmember Pete Hoffmann, would amend Chapter 11 so that affordable housing requirements are made applicable to “industrial enterprises generating more than one hundred employees on a full-time equivalent basis, whether new or an addition or reconstruction to existing facilities, and including one or more businesses at the same or adjacent sites.” As the Chapter 11 is presently written, affordable housing requirements for industrial sites are only triggered when an applicant seeks a “new rezoning.”

Bill 156 may run afoul of the law. First, a facial due process challenge to Chapter 11 might be successful, because the council has not shown that the legislation will substantially advance the legitimate governmental goal of providing affordable housing: no nexus study was prepared. Agins v. Tiburon; Lingle v. Chevron. Second, when Chapter 11 is applied, individual takings challenges may be successful, because Chapter 11 does not ensure (1) a “nexus” or link between the exaction and the provision of affordable housing for a particular project, or (2) whether the degree of the exaction demanded by the county bears the required relationship to the projected impact of a proposed development. Nollan; Dolan.