Sunday, August 17, 2008


SLY DOGS: In a spectacle one must see to believe the Kaua`i County Council went into executive session and conducted public policy behind closed doors once again at Wednesday’s meeting, where they heard terms of a “secret” lawsuit settlement that could break environmental laws and strip approval conditions from two proposed Kapa`a beachfront resorts.

The developers are reportedly suing the county to remove some “givebacks” in things like sewage, roads and/or other planning-commission-approved conditions for the projects. That is the case prospectively being “settled”.

And in a related case Nani Rogers and 1000 Friends of Kaua`i are suing both of them to get a seemingly required EIS process triggered as well as stop the conditions from being removed..

Early on at the meeting attorney David Kimo Frankel, representing Rogers, told the council of various provisions that the developer probably wanted stripped, saying the planning process generally requires open public hearings and explaining how land use decisions deserved the most deference to public input, citing laws to that effect in a few mainland and local cases..

He and local public interest attorney Greg Myers, representing 1000 Friends, said that in this case any “settlement” should go through that open process and be openly discussed as far as the exact provisions that might be frittered away by the council in any “settlement”.

That settlement they said is one through which the developers hoped to avoid any court ruling thereby getting out of the type of environmental review that state law apparently requires.

Although Frankel didn’t want to challenge the secret briefing, once he and Myers were done testifying others weren’t shy about decrying it.

Members of the pubic unanimously pleaded with the council not meet secretly to hear the “settlement” to no avail with more than a dozen people asking the council to honor the open planning process and not pull a fast one behind closed doors.

Some read HRS 343 and 205 the EIS and Special Management Area laws respectively which people feared would be ignored in any settlement.

Others, like anti-Superferry leader Rich Hoepner, compared the prospective action to the “Act 2” special legislative session exempting the Superferry from the EIS law and asked that the council not consider dong essentially the same thing to allow the projects to “get out of” having to do an environmental assessment (EA).

Although Myers had said essentially the same thing with little or no reaction, this spurred gestures of disbelief denial and derision from councilmembers, including a prosecutorial-like grilling by our next prosecutor Shaylene Iseri-Carvalho, challenging any thesis of similarity.

!000 Friends’ Dave Dinner then recounted much of the public process for the project that went on before the Planning Commission and expressed displeasure at some of the “deletions” that may be in the settlement as well as the prospect of deliberations toward a decision being conducted behind closed doors.

And, in an impassioned speech County Council candidate Ken Taylor was incredulous in recounting the flouting of the recently discovered “secret” sunshine law (HRS 92-71) that has had open meeting advocates on Kaua`i waving the Charter around to get compliance with our peculiar more stringent “claims-only” provision (Charter Sect 3.07).

But from the council’s response you’d have thought mom and apple pie was under attack.

Rather than talk about any prospective contents of the settlement- ones they were about to hear and possibly decide upon- once the attorneys were safely back in their seats, councilmembers deflected criticism by putting many “hot seat” inhabitants on the defensive, grilling them for the sources of their information about what was and what wasn’t specifically in the settlement and refusing to discuss any “prospective” specifics.

“Tell us if you know (what’s in the settlement)... because we don’t know.... What do you know?” said Mel Rapozo. “I don’t know.”.

“We don’t know...“We’re gong to find out” in executive session said attorney JoAnn Yukimura

“Where did you hear that” demanded Iseri. “We don’t even know... How could you?”

The answer was that the speakers had been informed via email as to the general contents of the briefs filed by Frankel, Myers, the developers’ lawyers and the county’s lawyers as to what the conditions the developer objected to were.

The council was flabbergasted Imagine- people coming to testify didn’t have the legal briefs!.

The briefs are of course are public information, available to anyone- even lazy or disingenuous councilmembers. Yet the council still claimed to not know anything and excoriated anyone who thought they might know and might want to discuss it with them in the open.

Councilmembers howled shrieks of derision when the question “where did you hear that was in the settlement” was answered with “in an email”. And of course no answer was sufficient unless the witness knew- not suspected- what the precise terms of the proposed settlement were and whipped out voluminous notated folder to prove it.

Having successfully turned the discussion over to the Mad Hatter, the council continued to first befuddle and then, after three minutes, shut down each member of the public.

Although councilmembers apparently had a pretty good idea what was or at least what could be in the settlement concerning roads, sewage treatment and an EIS exemption- as evidenced by their previous discussions with Frankel and Myers- any discussion of that that was now off the table.

But don’t worry, Furfaro assured the gathered. The actual decision would be made in public... as if no one had ever seen one of those perfunctory, 30 second “Call to order, all in favor- recess”. decisions that often follow three-hour closed confabs.

So rather than tell the community the next step in what has been a public process before the Planning Commission thus far the council feigned ignorance and met and heard the secret settlement.

And of course, late in the afternoon the council came out of executive session to report nothing. Although they apparently didn’t accept the settlement they spent hours discussing it with the public waiting outside in the hall.

And given the council’s history of lack of adherence to open meetings requirements and past deceitful pronouncements, there’s really no assurance they didn’t okay the settlement in closed session since all that was officially done in public was to “receive” the communication announcing the secret session.

While all this was happening new Council Chair Jay Furfaro once again used the latest new tools to stop actual public policy debate that gets politically uncomfortable..

A few times now, just when exchanges between a member of the public and a councilmember finally becomes substantive, he interrupts them saying- and we’re not making this up- “we’re not here to get into a debate” and words to that effect.

Only on Kaua`i- the leader of the legislative body declares that their meetings will be devoid of debate.

It’s hard to say why but every time we watch Kaua`i Council meetings, this old childhood ditty seems to come to mind.

Miss Lucy had a monkey
She called him Tiny Tim
She put him in the bath tub
To teach him how to swim

He drank up all the water
He ate up all the soap
The monkey died that evening
With a bubble in his throat

In walked the Doctor
In walked the Nurse
In walked the Lady
With the Alligator Purse

“Mumps!” said the Doctor
“Measles!” said the Nurse
“Nothing!” said the Lady
With the Alligator Purse

Out walked the Doctor
Out walked the Nurse
Out walked the Lady
With the monkey in her purse.

We’re not sure which of the respective county honchos such as the mayor, the council chair, the department heads or the county attorneys is playing which of the parts of Miss Lucy, the doctor, the nurse or the lady with the alligator purse.

But all we need is a mirror to figure out who the monkey is..


Anonymous said...

I don't know, Andy. Why would the Council even be entertaining a settlement unless the County had screwed up and broken some laws in their rulings? Sounds like the conditions they imposed, probably in their magnitude, were illegal; otherwise they’d just tell the developers, “So sue me! We’ll win.” I think the concept is that you can’t force someone to pay impact compensation that far exceeds the impact itself. Like you can’t force someone to build a new highway around the island if they’re just building a Pizza Hut. An obvious exaggeration, but you get my point.

I’m not surprised the Council would want to formally hear the entire settlement document read before discussing it. The devil’s in the details. And if they brought the settlement terms to the public, what the heck do we have a Council for? For better or worse, we elected them to make this sort of decision for us, as opposed to submitting every single matter to a special election.

Anonymous said...

The Council did not approve anything and only has the authority to "approve" if there are county dollars in the settlement. The Council was not a decision maker in the Koloa Market Place settlement and may not be here.

Andy, what would you have the decision be if the court has clearly indicated that it will strike down conditions if it rules and instructs the parties to negotiate? Would you stick to your guns out of principal and lose everything? Or would you approved a settlement that salvaged some benefit for the community and risk coming under attack from bloggers that don't do their home work and tell half the story?

Andy Parx said...

The court hasn’t “indicated” anything. Watch the meeting for details. This settlement is a delaying tactic to see if they could preempt the courts. Trial is still scheduled for Oct with another hearing for summery judgment by 1000F and Nani in Sept- which was supposed to be heard in April but keeps getting pushed forward with Wantanabe waiting to see if there is a settlement.

The problem is that all the developers are suing over nothing now because they saw two settlements so the county could save a few bucks by not going to court- and so the planning director doesn’t look like the idiot he is in open court.-a half a million in lawyers fees are nothing for the developers but a lot for taxpayers.

Anonymous said...

The developers aren't suing over nothing. They're suing over whether conditions imposed on them have a relationship to the impact the
building plans would have on the surrounding community and, if so, whether those conditions are roughly proportional to the impact of the development project. If not, then the conditions constitute a taking in violation of the Fifth Amendment.