Sunday, April 13, 2008

BARKING UP THE WRONG TREE

BARKING UP THE WRONG TREE: Rube Goldberg would be proud of the way some are reportedly going about capping tourism development with a proposed Charter Amendment to put visitor accommodations permits back before the Council for final approval and linking the General Plan guidelines to a trigger that would return the permitting to the Planning Commission where permitting is done now based on Council-passed zoning ordinances.

But at least Goldberg’s cartoon devices, though intentionally convoluted to achieve a simple task (the board game Mouse Trap was based on his early 20th century humorous depictions) were mechanically-viable and science-based and depended on the integrity of the parts- assuming they all worked to perfection.

Given the flood of new hotels, resorts and other monstrosities that have gone up recently few if any would disagree that our rate of growth in the tourism sector is out of control and something needs to be done.

But the road paved with good intentions alone doesn’t even make for a workable table for old Rube’s constructions..

So, speak of the devil, let’s look at some details.

This past Wednesday we discussed the overview of tri-branch government that made the proposal unworkable conceptually and discussed some of the incredible burdens that would inadvisably if not illegally shift from the administrative to the legislative branch including causing there to be a duplicate planning department in Council Services.
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Let’s look at the actual words that we’re stuck with now that the proposal has signatories and under which we will be semi-permanently living if the amendment were to pass.

It says:

“The power to process and to issue any zoning, use, subdivision, or variance permit for more than one transient accommodation unit shall be vested in and exercisable exclusively by the council”

The definitions aren’t exactly air-tight but even if they are it sounds okay until you read the current Charter which says"

Section 3.18. Restrictions on County Council and Council members.
The council and its members shall not interfere with the administrative processes delegated to the mayor.

Except for the purpose of investigative inquiries under Section 3.17, the council or its members, in dealing with county employees, or with county officers who are subjected to the direction and supervision of the mayor, shall deal solely through the mayor. and neither the council nor its members shall give orders to any such employee or officer either publicly or privately.

The proposal doesn’t even mention this conflicting provision. The only answer would necessitate the duplicate planning department because to demand anything from the real Planning Department would violate this standard provision.

Article V regarding the “County Clerk” delineates the record to be kept by the Clerk, who is essentially the administrator of the legislative branch- aka the Council. Looking through Section 5.01. “Powers, Duties and Functions”, the Clerk is not empowered to even keep records of permitting, just “ordinances, resolutions and regulations and cumulative indices of the same” [5.01(B)2]. It does say the Clerk shall “(p)erform other functions as required by this charter, by law or assigned by the council” but the proposed amendment doesn’t call for that specifically so attempting to record, much less administer the derival of administrative permits by the Council-going back to 3.18- would violate the charter.

The amendment would certainly cause HRS Chapter 91 Administrative Rules to have to be propagated, something that the Planning Department has been “meaning to do” for a dozen other purposes over the past five years. Since there is no effective date on the proposal it would go into effect upon passage causing the current Planning administrative rules to be useless in these areas for as long as it takes to propagate new ones, which requires a long drawn out process complete with public hearings.

Perhaps that’s the sly reason for the proposal- to throw the County into such a crisis that it wouldn’t be able to process any visitor accommodation zoning permits.

There are numerous other provisions of charter that would be violated by the proposed amendment and dozens of provisions in laws and many many more rules and regulations that would have to be changed but for now we’ll move onto the linkage to the General Plan

Although people are enamored of saying “The General Plan is ordinance”- meaning it’s a law- the fact is it’s a plan... a general guideline. It does not vest any zoning nor does it deny it and can be amended at will- as a matter of fact most new zoning ordinances are accompanied by a separate General Plan amendment bill.

Charter section 14.06, “General Plan”, says (t)he general plan shall serve as a guide to all future council action concerning land use and development regulations, urban renewal programs and expenditures for capital improvements.” It “set(s) forth in graphic and textual form policies to govern the future physical development of the county.”

Note that the General Plan is a guide. It is not a blueprint. The last General Plan advisory committee battled over what the projected visitor count should be and the positions were all over the place. But the number that was set was just essentially a number pulled out of the air – and pulled out by the representatives of the business and tourism industry who inflated the number over the objections of many community members.

But the proposed amendment has a list of “Whereas’”- a very strange and questionable thing to have in a charter- including this statement

“In the November 2000 Kauai County General Plan, the Planning Department’s estimate for the average daily visitor count for the year 2020 is between 24,000 and 28,000 average daily visitors (compared to 17,200 in 1998). The high-end estimate of 28,000 would, using a conservative occupancy rate, correspond to an increase in the demand for transient overnight accommodation units of approximately 1.5% (or approximately 125) transient overnight accommodation units per year; “

So based on a questionable fuzzy guess made in 2000 for the year 2020 we establish a cap whatever that means. The proposed amendment says.

The council may by ordinance authorize the planning commission to process and issue such permits, or certain of them, on terms and conditions as the council may deem advisable, only upon the council’s enactment of a rate of growth ordinance that limits the rate of increase in the number of transient accommodation units in the county to no greater than one-and-one-half percent (1.5%) per annum on a multi-year average basis, or such growth rate that is within the planning growth range of a future general plan adopted pursuant to Section 14.08.

So we take a guess, by an advisory committee- and one that could be changed at the pleasure of the Council- and plug it in, not just as an ordinance but in the Charter.

If one really wants to pick it apart the amendment doesn’t even say how the actual permits would be spread out when they are issued, only how to figure out the amount “no greater than one-and-one-half percent (1.5%) per annum on a multi-year average basis” defeating the yearly cap by defining it as part of a multi-year average”. It does not say what the period is within which the limit would apply so the limit for 20 years could all be issued the first month.

That kind of interpretational minutia is exactly why it’s a bad idea to try to put this on the ballot as a Charter amendment. The proposal is already essentially set in stone because the people who signed it so far signed THIS amendment, not another.

There are many conflicts with the current charter, some major, some minor, some easy to deal with, some impossible. That’s why it takes an expert on the Charter and the County structure based on it to actually write a Charter Amendment- if it effects another part of the Charter, that section has to be identified and changed in order for it to be effectual. Otherwise, if passed, you wind up with a constitutional crisis where conflicting provisions make for a judicial mess... or, on the other side, a useless amendment.

But somehow- thanks to Walter Lewis and the “Ohana” which proposed and passed the property tax cap law that was struck down by the Hawai`i Supreme Court- what should have been an initiative to create an ordinance was instead proposed as a Charter Amendment.

As a matter of fact, in hindsight, they might have gotten away with it if they had put it in an initiative instead of in the Charter which was the Council’s main legal point in filing for an overturn, even though the Supreme Court chose it’s own somewhat bizarre basis for the striking it down.

That caused all those who haven’t figured out how County government works or what the laws are to say “oh- yeah- a Charter Amendment – that’s what we need,” instead of looking at what they want to do, seeing if it needs to have something changed in the Charter to accommodate the goals and objectives and, if not, proposing an ordinance in an initiative or changing a current ordinance as a referendum.
Your homework- and ours- is to read and commit to memory the charter, all ordinances and administrative rules... meanwhile- go Rangers.

3 comments:

charley foster said...

As for the Ohana property tax amendment, if you mean by "initiative" a "ballot initiative," I don't think one would have fared any better than the amendment since the state supremes rules that Art. VIII Sect. 3 of the state constitution, when it says that "all functions, powers and duties relating to the taxation of real property shall be exercised exclusively by the counties" actually meant to say "county councils."

If you mean instead an initiative to get the county council and mayor to go along with a supermajority of county voters and pass the contents of the amendment as a county ordinance - well, the county government made it clear they would do no such thing. That was the whole point of the amendment.

Andy Parx said...

I’m talking about Initiative as in Initiative and Referendum as defined in the Charter.(and state law - I’m not fully informed as to the what’s in the State enabling measures or where they are)

What I was saying is that the Council- or the County Attorney- opposed and challenged it originally on the basis that the Charter was not the place for a tax initiative- eventually the suit evolved. But it was overturned because the Council, not the people, supposedly have the right to set taxes so in an ordinance the Council would be able to have control- at least partial control. But with a Charter Amendment they were fully shut out... it’s possible that that circumstance would have made a difference and played out differently in an Initiative (capital I) but that’s all speculation...

Anonymous said...

We need a CON CON!