Friday, June 7, 2013
REPEATING LIKE A ROTTEN EGG SALAD SANDWICH
REPEATING LIKE A ROTTEN EGG SALAD SANDWICH: Though we've been slack in discussing Transient Vacation Rentals (TVRs) in non Visitor Destination Areas (VDAs) of late, reportage has, to understate it, been more than adequately handled by award-winning reporter Joan Conrow whose "blog" posts called "The Abuse Chronicales, have busted through the wall to not just penetrate the pages of the local newspaper (Motto: Who needs news? We've got you tutu's picture on page 1) but land on the floor of the county council.
It would take more concentration than we can muster to review the events leading up to this past Wednesday's appearance before the council by Planning Director Mike Dahilig but fortunately Conrow presented the essentails yesterday. You can check out our past coverage of TVRs here.
Apparently Dahilig is planning to come up with a plan to put together a plan to deal with the mess that he's spent three years (since he took office) planning to remedy... or at least, he has said he was planning to do so.
At one point yesterday he promised to do something about something (it wasn't clear exactly what) within 90 days but upon questioning he couldn't exactly say when he would start that clock. First he has plans to assemble his team to go through all the fake paperwork (he has said he is planning on first finding it in "all those boxes in the hall") and then "galvanizing the team" so they can plan to draw up a plan to start that 90-day clock they're planning... which could take up to six months although there was some talk of 120 days of "galvanizing" to get to the 90 days, by the end of which they should have a plan to tackle at least one- count 'em one- blatantly illegal TVR.
But will his metal plated menagerie answer the question everyone is asking- is how the bleep did all this happen? After all, hundreds of "permits" have been issued without much thought to the contents of three different TVR ordinances passed since 2007.
Forgive us for our skepticism.
Presently the county could be looking at perhaps 644 individual potential lawsuits by permit holders who now, according to Dahilig, can ignore any violations related to building permits and the like and only have to fight violations cause by actual "use." That's due to a complicated bit of property law that, he says, makes sun-setting these TVRs all the more difficult than previous planning department leaders made them already by approving them willy-nilly with little or no deference to the law at the time.
Our point- and, with apologies to Ellen DeGeneres, we do have one- is that all this would have been unnecessary if the county had had the gumption to fight one- count 'em one-single case way back in the 90's... or any time up until the first ordinance was passed
Yesterday, in trying to review the "how the heck did we get here" question Councilmember Tim Bynum- the primary mover behind the TVR ordinances that "grandfathered" existing TVRs in non-VDA areas and eventually even included ones on agriculturally zones land- started his explanation by saying that these TVRs were "always legal" and pointed to the 2000 General Plan (GP) intimating that it demanded- or at least encouraged- the county to do something about it.
A misrepresentation if we ever heard one.
Here's the real true life Hollywood story of how the county could have gotten the courts to rule on one single case saving years of hassle in passing multiple ordinances and now going through potentially dozens of "contested case hearings" before either the planning commission or hired hearings officers, to be followed by lawsuits in state courts by the permit holders don't like the results of those average-$20,000 a pop hearings.
According to those who would have you think that TVRs in non-VDA areas were "always illegal" our Comprehensive Zoning Ordinance failed to make them illegal- even though state law already said the counties were not to permit them.
State law says, in effect, that the county's are instructed to restrict TVRs to VDAs- those Visitor Destination Areas where tourist accommodations are permitted. But our CZO, while saying that TVRs were permitted in VDAs, "is silent" as to banning them in residential and other non-VDAs.
(Parenthetically, specific VDAs are defined in the general plan via maps that show them. On Kaua`i at least, they are in places like Kapa`a town, Po`ipu, parts of Lihu`e and even a small spot in Waimea.)
Now anyone with a brain and a little guts would have selected one- count 'em one- TVR in a non-VDA and taken it to court saying that the "silence" is bull-dinky because the state law had already designated where TVRs were permitted and not permitted.
But the county brain-trust feared lawsuits even though many- us included- had their hair on fire pushing them to take that one- count 'em one- case all the way to the state Supreme Court to get a definitive ruling on what many though was obvious- that it didn't matter what our CZO said- or more precisely didn't say- about TVRs in non VDAs because 1) It stated where they were in fact permitted and 2) state law, which "trumps" the county CZO, clearly says they are not to be permitted in non-VDAs. More on that in a little.
Enter the General Plan Citizens' Advisory Committee (CAC) which, as required by the county charter, met for years in the 90's drawing up a new general plan which was passed, with amendments, in November of 2000... passed by a 4-3 vote at the last meeting of the "old" council where majority support for passage was there- something that, with new members, couldn't be said about the council coming in on Dec 1.
One of the most contentious issues for the CAB was this very issue. And after wrangling for months and months one of the members that had always supported the "take them to court" faction, was finally convinced by the business and tourism members to allow for "grandfathering" of existing TVRs and advising the council to quickly- remember that, quickly- pass an ordinance fixing the "omission" in the CZO.
That member said he was convinced that this would save the county from a long protracted lawsuit- one that might have cost $50,000 or more (remember that number) at the time in outside attorney fees. And besides, there weren't that many as far as anyone knew and the ordinance would make sure that non-use of any use permit would end the use entirely... and so, through attrition, they would eventually all disappear.
The TVR portion of the GP passed, as is, although enough incoming members of the new council had committed to changing that part of the GP "ordinance" and going to court rather than allow grandfathering.
So guess what- it's Kaua`i and with out "bum-bye" attitude, of course nothing happened.
Or at least nothing that anyone knew about.
Meanwhile, back at the Round Building, a deputy county attorney by the name of Kobayashi was working on an opinion, "requested"- alright they actually threatened to sue- by an attorney representing a couple of TVR owners who were friends of- and campaign contributors to- TVR supporter, then-Mayor Maryanne Kusaka.
That opinion ignores the state law calling for permitting of TVRs only in VDA areas and said that TVRs in non-VDA areas were indeed legal because the CZO didn't specifically make them illegal. He ignored the fact that land use laws generally list permitted uses, requiring all other uses to have a "special use permit." For example, just because the CZO is silent on building a rocket launching pad in your back yard that doesn't make it legal to do, at least without a special use permit with public hearings and a ruling by the planning commission.
In fact, that is the way it worked at the time for Bed and Breakfast operations- a use considered less disruptive to residential neighborhoods.
Interestingly Kobayashi has gone on to become a judge and so this opinion from a deputy county attorney- one which no one ever saw because county attorney opinions are considered attorney-client privilege- is now referred to in TVR-owner circles as "The Judge Kobayashi Ruling."
Suddenly- if that's the appropriate word for seven years later- when the county council was considering passing some kind of TVR ordinance, the whole argument that had taken place before the GP CAB almost 10 years earlier resurfaced. People asked "should the county just go to court or should they grandfather the existing TVRs in non-VDA areas and put in measures to assure attrition?".
It was then that the attorney representing TVR owners whipped out the Kobayashi opinion that had been secret all those years saying the owners "depended on it" to presume their TVRs were indeed legal.. due to the "Judge Kobayashi Ruling."
The rest of course is that the counsel knuckled under, unwilling to spend what by then might have by then been maybe $100,000 to follow that "one case" to the state Supreme Court.
But it was during a time when. although briefly. there was actually a functioning press on Kaua`i and they were making hay out of the stack of cash we were spending on fighting lawsuits using "outside counsel."
And so all three ordinances were passed, with some final watering-down of the attrition measures as well as the removal of many of the items that provided expanded access to information for the public as to the permit contents and the like.
Currently there have been 16 contested case hearings costing between $15,000 and $35,000 according to Dahilig. There are 644 "files" and no one knows how many of those will be, at least, taken to contested case hearings. Plus, if the permit holder doesn't like the outcome of the contested case hearing they can go to circuit court where if they lose they can go to the intermediate court of appeals (ICA) and again if they don't like the ICA ruling can go to the state supreme court.
And they can't really be consolidated because each has different circumstances.
We're talking potential millions if not tens of millions in attorney fees on top of the $120,000 it has cost so far if you use the $20,000 average for each contested case hearing that Dahilig referred to Wed. And of course many of those were defended internally meaning the real money hasn't even started to flow from our of county coffers to big-shot Honolulu land-use attorneys.
Watching the council in action for well over 30 years is kind of like watching a Hollywood movie. Whether you liked the first one or not, there's gonna be a plethora of sequels. But often if you want to comprehend "It Came from the CZO- VIII" it helps to watch the first seven.