Friday, June 19, 2009

FOOL ME TWICE I’LL BITE YOUR HEAD OFF

FOOL ME TWICE I’LL BITE YOUR HEAD OFF: Yesterday, in wondering what the heck the council was doing meeting behind closed doors in order to discuss the public policy regarding what we called “implementation” of the citizens’ petitioned charter amendment to enforce the general plan’s growth parameters, we noted that the notice for the June 16 meeting read:

(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.

In addition we noted that $150,000 had been appropriated and approved to hire a special outside attorney for whatever they were doing.

We stand corrected- the amount is actually $220,000 according to Councilmember Tim Bynum who had complained publicly before the executive session (ES) on Tuesday that he was dissatisfied with the “work product” so far especially for the money they were spending.

And that got us to thinking- always a dangerous proposition.

It led us to wonder why we had characterized the ES as relating to “implementation” of the amendment and presume it was to conduct public policy.

We had seen them do it so often in the past we had to assume, illegal or not, they were doing it again. And when you assume, as the saying goes, you make an ass(of)u(and)me.

So after a little searching we discovered that the term “implement” was never used in the notices for the two previous ES’s on the subject since the ballot measure passed last November.

Our bad-, although we could have sworn the previous notices contained the word it was most likely referred to that way during the meeting and/or in various interviews we conducted while trying to find out why the planning department was continuing to process permitting for visitor accommodations... even though a search of our notes turns up a blank.

The amendment plainly banned the department from doing this and requires the council to do the permitting until they pass legislation forcing the department to enforce the growth limits stated in the general plan.

The working of the amendment raises all sorts of questions as to how this all would work, as we detailed both before and after the election in describing it as a “monkey wrench” provision which we opposed at first but later endorsed fully since the council didn’t seem to be doing anything about out of control growth and this would force them to deal with it.

One thing we didn’t report yesterday was that actually the previous council had met in ES prior to the election and appropriated some of the $220,000- presumably $145,000- for special council at that time according to statements made by Bynum at Tuesday’s meeting.

The other $75,000 was appropriated on June 10 at a “special” council meeting where the appropriation and an ES regarding the matter were the only thing on the agenda other than a routine approval of a state grant.

Questions about why the planning department is still processing zoning permits for visitor accommodation aside, as complicated as it might seem, why would it take six months and $220,000 to figure out how to write the bill to return the permitting power to the Planning Department by restricting growth numbers to those in the general plan?

Councilperson Jay Furfaro, saying the amendment took effect 50 days after the election, also said during the discussion preceding the ES that “some departments are having applicants sign affidavits” when filing for permits but did not elaborate as to which departments and what they signed.

The only possible answer is that, although the agenda notices are carefully worded to avoid saying so, the council is gearing up to file suit to block implementation of the amendment.

Here the what the notice for the January 14. 2009 ES said

(T)he purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.

That should have alerted us to the what was happening but at the time many thought that the wording was just there so they could have a plausible excuse to meet in executive session and hold a discussion of public policy behind closed doors by saying there could be “potential claims” involved.

After all, that was the excuse used last summer when similar closed door discussions of the bill permitting then-illegal vacation rental in residential areas were conducted outside the public purview

Later, on the June 10 agenda it had morphed to say:

(T)he purpose of this executive session is to provide the Council a briefing on the Charter amendments adopted in the 2008 General Election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.

Although the change is subtle it makes it actually further disguises an intent to block implantation and confirm the scuttlebutt that the council was meeting in ES to discuss public policy rather than legal matters.

Misdirection accomplished, both here and among the supporters some of whom told us they were anticipating the council implementing the provision.

Of course that was fine with the council assuming they are trying to get a leg up by filing suit before anyone realizes they are meeting to stop the amendment from taking effect rather than figuring out how to make it work.

The last time they successfully tried to block a citizens' petitioned charter amendment- the so called “`Ohana” amendment to restrict property taxes- they announced their intention and the proponents were ready with a California property rights law firm at the pro bono ready.

Fool them once.....

It should be noted that we have absolutely no direct knowledge that this is the case but this would certainly explain a lot.

That said, one possibly telling statement came from Councilperson Lani Kawahara who, despite an attempt by Castillo to stop any discussion in open session said “I want to assure the public that my main goal is to enact the amendment... aligning our growth with the general plan”.

Also, Bynum in fact did use the word “implementation and other aspects” at one point in referring to the goal of hiring the outside consultant and holding the ES.

It would apparently behoove those who worked so hard to throw this monkey wrench into planning commission and department’s rubber-stamping “dumb growth” program, to gear up for a fight or perhaps file for their own injunction to block zoning permits from being issued before the council files one to block the whole shebang.

Forewarned is forearmed.

1 comment:

MauiBrad said...

Re: "...It would apparently behoove those who worked so hard to throw this monkey wrench into planning commission and department’s rubber-stamping “dumb growth” program, to gear up for a fight or perhaps file for their own injunction to block zoning permits from being issued before the council files one to block the whole shebang."

Nice reading between the lines investigative reporting, Andy. I think you're right. The Council doesn't need $220,000 worth of outside counsel as to how to implement a Charter Amendment that's already actionable.