Wednesday, April 9, 2008


MEMO FROM PEABODY TO SHERMAN: There’s a “Coalition for Responsible Government” that is meeting tonight to discuss their proposal to put a(nother) Charter amendment on the ballot this November to “move the responsibility for tourist accommodation building permits from an appointed Planning Commission to the elected County Council where it belongs”.

But we just plain don’t get the proposal or for that matter the proposers.

The Council already does “approve” all projects when a zoning ordinance is passed. A zoning permit reflects those ordinances. The Council can put on all the requirements and give backs they want in the zoning ordinance in as much detail as is their pleasure.

Right now there’s a bill in the Council’s Planning Committee to finally put a limit on how long a zoning ordinance and even permit is good for. Five years is the proposal although many developers’ lawyers are clamoring for a little longer and community people want it shorter.

The problem has been that a lot of zoning ordinances were passed with no time limits for “substantial construction” and many are still valid after 30 years. Neither the Planning Commission nor the Council can really change those (without an application by the developer for changes, as happened for example with Running Waters and Kukui`ula) because they were entitlements granted already and to take them away would almost certainly be a “taking” even without stretching the law or credulity.

The Planning Commission just approves zoning permits- not zoning ordinances- and does so based on the entitlement granted by the Council. They can add restrictions, give backs and infrastrutural improvements and the like to those in the ordinance but they must include whatever is in the ordinance that was already passed by the Council.

They work under the rubric of the Planning Department which goes to all the other departments and passes the permit application around for comments regarding things like infrastrutural necessities and other factors that need to be addressed in the permit.

Are we going to have all those presentations and plans and planners’ reports with minutia of what type of plant goes where go back before the Council now? The Council doesn’t have the staff to do all that administrative preparatory work- that’s why there are all those administrative departments with hundreds of employees that must sign off on a project as well as planners who track those check-off and make recommendations for “conditions” contained in the permit.

As the Charter stands now, the Council can’t even compel administrative personnel to appear before them but must request their testimony. The Mayor can’t tell the council what laws to pass and the Council can’t tell the Mayor’s people how to enforce the laws they pass- as long as they enforce them. It’s called separation of powers and most agree this is a good thing conceptually

For the uniformed, governments generally work by having the legislative branch legislate and the administrative branch administrate. That’s why they call them that.

The Council already has the ability to put any conditions they want on any project. And with the “five year use or lose it” provisions the Council can add conditions as times change and the question of those changes being a “taking” disappears.

Nothing in any Charter amendment would change those old entitlements that exist without time limits. The third branch- the judiciary- ensures that. As long as they comply with the original zoning ordinance even the Council can’t change it.

And even if this were something that is needed, desirable or possible, where is the “tourist accommodation” line drawn? What does that mean? Is a true for-sale condo a tourist accommodation? What about a plain old house in an official Visitor Destination Area where it can be converted to a vacation renal (VR) any time through a permitting application and process that was unveiled today which is based on the recently passed ordinance on VR’s... an, ahem, administrative permit as defined by ordinance.

Even if you could define it well enough to be a bright line in concept, in practice there would almost certainly be more of these kinds of discoverable loopholes and all of a sudden you wind up with situations as happened with the vacation rental and ag condos laws and the like- and, then you’ll have the provisions that aren’t working- or even made things worse- enshrined in the Charter where change is very slow and cumbersome.

The Council has the power to do everything the proposed Charter amendment would do- even with the no-time-limit ordinances if the developer has an entitlement and wants to change it they have to go before the Council.

And all tourist accommodation projects that have received zoning ordinances passed in the last decade- of which there have been very few - have “use it or lose it” provisions and that time-limit will presumably soon be law- law decided by the Council. And all zoning permits in recent times have them too. The law will simply standardize the times limits and make them law rather than current Planning Department policy.

Joan Conrow says of the proposal today, “It’s an interesting concept, and just might have some merit — if you have a Council that is responsive to the public and doesn’t put development before infrastructure. However, we’re still waiting for such a panel to be elected”

But even if we had these mythical-ethicals, to be frank it appears the proposers of this Charter amendment don’t know a zoning ordinance from a zoning permit. It begs the question of those who propose these things as to whether they even attempted to buy a clue as to the actual laws they are seeking to change before going off half-cocked with cockamamie ideas that have no basis in Charter, ordinance and/or permitting.

Not only is it a waste of their time and energy but everyone else’s when we have to sit them down like children and inform them of the realities that they could have found out if they’d spent a tenth of the time they put into planning public meetings on their “great ideas” to actually bone up on how to accomplish their goals.

Instead of turning governance on it’s head by putting previously legislatively-decided administrative matters back on the legislative agenda for minutia-checking all because the legislators are elected and the Planning Commissioners are appointed, how about a Charter amendment to elect the Planning Commissioners. But that- which we’ve suggested every time this and other groups propose unresearched half-baked planning ideas in the form of Charter amendments- would be too straightforward a no-brainer in terms of drafting and implementation.

It’s nice to see activist get involved in their local government but it takes a little homework to make sure your activism isn’t just spittin’ into the wind.

Class dismissed.


Anonymous said...

Wouldn't that be pissing in the wind? Doggy style!

Anonymous said...

I agree with almost everything you said today! Good primer.

Anonymous said...

email chatter****************************Aloha Andy,

I am too caught up in other matters right now to respond in detail to your thoughts. But in short, as you might expect, I disagree with your analysis. I think that our basic point of departure is that you seem to have accepted the land developer premise that zoning creates an "entitlement." It doesn't.

Zoning establishes the maximum that a property owner can build (without a variance or zoning amendment), provided that the property owner can meet other conditions - such as the many findings that must be made in order to receive an SMA Use Permit, a Project Development Use permit, a Class IV permit, or other types of permits. Unless and until those findings can be made, the developer has no right or "entitlement" to build.

And even if there were no findings required, until a project is truly vested (there are many definitions, but they generally entail having made substantial expenditures on a proposed project), there is no "entitlement." Government can downzone property simply because it is in the public interest, without taking away an "entitlement" and without triggering a "taking."

Finally, a rate-of-growth cap that is enacted for reasonable purposes (such as the public welfare or compliance with a General Plan's policies) does not necessarily constitute the taking of an "entitlement," and such caps have been implemented in other states.

The constitutionality of government's right to downzone, to re-zone, to deny permits for projects that cannot pass the public interest standards associated with certain types of permits, to require compliance with general plans, and to impose rate-of-growth caps is undeniable, although it is also true that there are reasonable bounds in each of these cases. The proposed charter amendment stands on solid legal ground.

I have insufficient time to go into the other details of your thoughts, so I'll just jump ahead to the bottom line. The purpose of the proposed charter amendment is to enable the County Council to ensure compliance with the County's General Plan. There is nothing radical about that.

And for those who would argue that the proposed charter amendment is less than perfect (which I will certainly acknowledge) or might have complexities that will need to be ironed out during its implementation (as is envisioned in the charter amendment itself), I ask: do you prefer the status quo, in which the Planning Commission and Planning Department have chosen to completely ignore the General Plan by approving tourist accommodations at a rate that exceeds four times that envisioned in the General Plan, with all of the concomitant negative impacts for the island? Because that's the choice that this charter amendment places before us.

Take care,


Andy Parx said...

The entitlement of an ordinance is what it says- only that nothing less. Then if all conditions imposed by the Commission and Department are followed, there is an entitlement to that if it is fully complied with. And they can't just make up things like saying "oh, and they have to set foot on the moon before they start".

You of course are right on point in your premises but they don't yield the proposed solution. To say that "complexities that will need to be ironed out during its implementation" are not the "devil in the details" makes it apparent you haven't actually thought though it as I detailed. The "details" are where the solution often falls apart.

The cap is an interesting concept- it might have merit. Personally I'd have to think how it could be done and what the implications are and again what the devil of details yield. But to tie it to some scheme to send certain nebulous projects back to the council is antithetical to the basic form of tri-branch government that you would have to change while you're at it.... not to mention the lack of essential tools and ability for a legislative body to do administrative permitting..

As I said, it makes a lot more sense to do what people have been talking about for the last 30 years- elect the Planning Commission... and maybe even consider a cap on development in the charter.

Anonymous said...

the next question is how to mount that campaign to get the charter to spell out the elections of the planning commission? isn't the cap the amendmant proposal?

Anonymous said...

An elected planning commission. Might be better than one staffed with people with little to no planning knowledge, but when you look at the goofs on the Council, we might end up worse off. The inmates already run this asylum.

I can understand why people against development want the County Council to make the final decisions. Since it takes them 6 months to fight over a couple of pavilions over picnic tables, this system is the equivalent of stopping all development. Not to mention an excellent opportunity for grandstanding. The greatest danger of global warming on Kauai is Rapozo vs. Yukimura on development.

It's interesting Carl focuses on the "rate" of development. Is the proposal to dole out permits on a time schedule? Would fallow years build up rights for the fat times ? That's basically what we've had. 10 dead years after the hurricane, followed by 4-5 wild ones with a crash about to come as little of this development sells.

Andy Parx said...

A cap on the rate of growth of what, specifically? You have to define what you want to cap and even if you do they’ll change the word so you’re stuck with a Charter amendment that doesn’t work and could even cause people to say it’s “unconstitutionally vague” if you don’t make it specific enough.

That’s why this kind of thing needs to have the unintended consequences examined before they’re instituted. Andy why it may be something for initiative, not a charter amendment. An initiative can pass an ordinance that can be amended. -if there turn out to be problems it can be fixed in a jiffy- yes there’s a catch- if there’s political will to do it But then it would be passed now.

We might have won if we had done the tax charter amendment as an initiative- and a lot of people know I said something at the time.

What is a tourist accommodation? If we use the word we’re struck with it in the charter. And who’s doing all the research to make something like this is airtight- if it can even be made such.

If there were a specific proposed ordinance with well set goals and definitions maybe a cap could be implemented.

I don’t think that anyone has even approached council members with the idea of an ordinance like that. That at least would show there’s no political will to do it and that might show more in November than a big-gesture yet essentially meaningless charter amendment

Anonymous said...

making the process more "responsive to the public" only works to limit development in times of full employment. The balance of political sentiment isn't always against growth.