Thursday, November 6, 2008


CHOKE ON IT: To paraphrase President Kennedy, we have tossed our monkey wrench into the machine of county government and we have no choice but to follow it.

The flung spanner, as we described it last month, has landed squarely in the cogs of it’s target and if the Kaua`i county government was dysfunctional before Tuesday as of yesterday it became non-functioning when the county charter amendment requiring adherence to the General Plan took effect.

The amendment, as many know, essentially puts the power to grant zoning permits for all transient accommodations like hotels, timeshares, resort condominiums, vacation rentals and the like under the control of the County Council.

But what many don’t quite realize is that we’ve removed the well worn rubber stamp from the planning commission arsenal entirely for now.

That means that the agenda for next Wednesday’s Planning Commission meeting- and all others for the foreseeable future will be considerably shorter.

Gone next week, will be any action regarding Class IV Zoning permits for the 220 unit condominium Koamalu Plantation, which was scheduled for a public hearing.

And gone will be any other tourist accommodation action in the future until the Council passes a bill not just retuning the authority to the Planning Commission but restricting them to the growth rate detailed in the General Plan- a rate that was achieved and as a matter of fact has been quadrupled since the plan was passed into law in 2002.

Which means that even if the Council put a bill to return the permitting authority to the Planning Commission on this Thursday’s Council meeting agenda- which they didn’t- it would take, as all bills do, at least a month to pass- and that’s if it were an uncomplicated, straightforward bill with no objections and deferrals.

To the dismay of developers- and to the delight of the slow and smart growth community that has fought this battle for decades- even if a bill was passed in a month there are no permits left to issue until a new General Plan (GP) is developed.

The GP is not set for a review until 2012 according to the county charter which mandates an update “every 10 years”. The last GP was passed by the Council in late 2002 after the Citizens’ Advisory Board (CAB) completed an almost two year process of review including a slew of public meetings. The new GP might not be in place until 2014 depending on the determination of when the 10 year period begins

(Correction: The last General Plan update was completed in November of 2000, not 2002. The new one should be started in 2010 at the latest and completed by 2012. We regret the error.)

But now comes the interesting part.

The General Plan is an ordnance- a law passed by the Council that becomes part of the comprehensive zoning ordinance (CZO). And, please note, that the Citizens’ Board contains the word “advisory”

That means that the Council is under no obligation to accept anything that the panel comes up with and often doesn’t.

The last time, in his last Council meeting after losing the election, councilperson Billy Swain convinced enough Council Planning Committee members to support adding an area called “Princeville Mauka” on the map that designates areas for future development.

Not only did a member of Swain’s family work for Princeville but Swain cast the deciding “aye” in a committee vote at his last meeting before two new councilmember would take their seats.

All to show that in addition to a bill that would return the power of zoning permitting for tourist accommodations to the Planning Department, a bill to change the “number”- the percent of growth of hotels and the like- would have to be introduced by the council if they don’t want to wait six years.

We can’t wait to see how the Council handles that.

It’s impossible to say what the Council will do and of course nothing will be done until the new Council takes office. But that does mean that that no bill can be introduced during the first Council meeting because there are no sworn-in councilpersons to introduce it yet. much less a chair to put it on the agenda.

And because there is a “holiday recess” every year- meaning there’s only one full Council meeting in December, the second meeting of the new Council won’t be until January.

That means that the Planning Commission is now forbidden by law from considering any tourism accommodations until at least next February.

And, if somehow two bills-one returning power to the Planning Commission with the GP cap and another changing the number in the GP- were somehow rushed and passed by say mid-February, the Planning Department and Commission would need to promulgate new administrative rules under HRS Chapter 91 in order to deal with the new law- a process that minimally takes months, complete with public hearings.

Those “ad rules” would have to set up a process by which the limited number of permits are issued. Although the Council could deal with the thorny issue of who would get any new permits and how that would be determined in the ordinance, they more likely would punt that task to the Planning Department.

In any event ad rules for the nuts and bolts would still have to be promulgated.

And oh, by the way, forget all that because the charter mandates that any bill dealing with “planning” issues be submitted to the Planning Department and Commission for review before it even gets a “first reading”- a preliminary vote- at the Council.

And that diversion has taken many months-in some cases years- in the past.

Whether the framers of the charter amendment anticipated or were cognizant of any of these issues is secondary to the de facto effect itself- Kaua`i has finally enacted a moratorium on new tourism accommodations zoning permits.

And it could be many years before anyone can or will do anything about it..

Or they could ignore the law like they always do.

1 comment:

Ace Harbinger said...

Andy, Andy, Andy. You are ignoring the zeal with which the Planning Commission and the County Council tend to overlook such pesky things as laws, ordinances and charter amendments. One should not be surprised to see these folks do whatever they want and wait to be called on it. To which they will predictably respond, "So sue me".

We'll see.