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.
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2 comments:
Offshore absentee owners screamed loud and long and the Maui County Council allowed these.
Now our shorelines are blocked off (where it used to be that the owner would let us walk through to the beach)
Hotels are required to provide shoreline access but TVRs are not.
Don't give in and become like Maui where prices are through the roof and TVR absentee owners are buying up our houses. No way our kids will ever be able to compete with these prices and buy their own home.
How do they get away with not requiring TVRs to provide access- is it specifically in the Maui law? It would seem to violate state law
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