Tuesday, December 16, 2008


TO LIVE INSIDE THE LAW YOU MUST BE DISHONEST: There will be changes to the Kaua`i County Council committee memberships proposed at Wednesday’s council meeting.

If passed, Tim Bynum will replace Lani Kawahara on the new Economic Development/Housing Committee and Kawahara will replace Dickie Chang on the Planning Committee.

The change will give the three supporters of Jay Furfaro a voting majority on the all important planning panels after complaints that they were shut out of a majority on any of the seven committees by the four members who supported Chair Kaipo Asing.

Although all council members are technically members of all committees, voting members are limited to five each according to council rules. The other two sit ex-officio.

And while there are five bills on the council’s agenda tomorrow, despite reports to the contrary, there is no bill to allow vacation rentals on agricultural lands.

The blogs are all a twitter after a post at Realtor Ronnie Margolis’ blog, saying that

In a letter from Nov. 28th, Councilman Jay Furfaro introduced legislation that was drafted by Joanne Yukimura, former council person who lost her bid for Kauai mayor. The legislation provides for the continuing of vacation rentals in ag land.

That set off a chain of postings and phone calls beginning with a pointer-post by property rights lawyer Charley Foster to ballyhooing the claim on his Planet Kaua`i blog, That spurred Joan Conrow to send out an Eclectic alarm which seems to have caused Councilpersons Lani Kawahara and Tim Bynum to contact “farmer Jerry” of KauaiEclectic fame (who in real life is Wailua farmer Jerry Ornalles) to ask his mana`o about the various ag bills that are “floating around”.

But despite all the panty-bunching there is in fact no such bill on the agenda nor was one “introduced” by the previous council on November 28, when a special council meeting was held with only two executive sessions regarding two different lawsuits on the agenda.

Margolis does his best to make believe there is one though and claims to have a letter from Council Vice Chair Jay Furfaro

Margolis wrote

In the letter Furfaro notes,"since Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008, the financial system of our country has been thrown into major upheaval, with far reaching consequences for our hard-hit visitor industry in Hawai`i. In a recent briefing of the County Council, Kaua`i Visitor Bureau Executive Director Sue Kanoho said that the Kaua`i Visitors Bureau and the Hawai`i Tourism Authority are now focusing on visitors who CAN come to Kaua`i, as opposed to those who WANT to come."

Whether there is such a “letter” is anyone’s guess but Margolis actually posted the make-believe bill which contains almost identical language the purported letter from Furfaro.

The “Findings and Purpose” in the official looking but undated and unnumbered ” bill”- which lacks both the county seal and the required tabulation of votes for “first reading” that would indicate legitimacy- as posted by Margolis says:

The Council of the County of Kaua‘i hereby finds that recent unprecedented events have caused major upheaval in the national and world economy, producing a significant eduction (sic) in visitor arrivals to Kaua‘i and a negative impact on Kaua‘i’s economy, small businesses and families. These events include volatile oil prices and the financial disaster caused by the subprime mortgage crisis and failure of long standing financial institutions. In a briefing of the County Council on October 1, 2008, Kaua‘i Visitor Bureau Executive Director Sue Kanoho reported that Kaua‘i Visitors Bureau and the Hawai‘i Tourism Authority are now focusing on visitors who CAN come to Kaua‘i, as opposed to those who WANT to come. Some of the visitors who can come to Kaua‘i want to stay in single family transient vacation rentals in rural settings.

Margolis ends by saying what you’d expect to hear from a realtor seeking to do some kind- anykine- business these days, what with the non-existent market:

This legislation is also meant to help farmers who need to provide housing to their farm workers by renting the housing that is on the land they are working. Hopefully, this will relieve some stress for those who work the land and provide local-grown food, and help their cash flow in these recessionary times.

The fact is that vacation rentals on ag land are specifically banned by state law (HRS Section 205) and there’s not thing-one Kaua`i can legally do about that despite the search for loopholes by real estate lobbyist attorney Jonathan Chun during the discussion of the recently passed Transient Vacation Rentals (TVR) bill that grandfathered existing TVR’s in non-Visitor Destination areas as designated in the General Plan.

So what does this “bill” seek to do? Ah those devilish details.

It actually calls for existing owners of TVR’s on ag land to come to “non-enforcement agreements” with the planning director.

That right folks. In the proud Kaua`i tradition of “if you don’t like the law just ignore it” they want to go one step further and actually pass a bill instructing the planning department to ignore the law.

Preambles (purposes and findings) aside, the actual language the Margolis’ “law” would change with this monstrosity is:

(e) In cases in which a single-family transient vacation rental located on land designated “Agricultural” by State law does not qualify for a nonconforming use certificate under Sec. 8-17.10(d), the following shall apply: upon a finding by the Planning Director that the applicant has met the requirements of Sec. 8-17.10(c), except for the requirement of a “farm dwelling” under HRS, Chapter 205-4.5, the Planning Department may enter into an enforcement agreement with applicant agreeing not to enforce this ordinance’s prohibition against single-family transient vacation rentals without nonconforming use certificates in non-VDA areas, provided that the enforcement agreement contains, at a minimum, provisions to which all parties agree that:

(1) no rights existing at time of enactment of this ordinance will be extinguished or diminished during the non-enforcement period, nor shall new rights be created during this non-enforcement period, and neither the applicant nor the County shall be deemed to have waived existing rights or made any admissions as to existing rights by entering into said enforcement agreement; and

(2) the enforcement agreement shall terminate upon identification of Kaua‘i’s agricultural lands of importance to the State pursuant to HRS Chapter 205 or identification of agricultural lands of importance to the County and adoption of ordinance(s) regulating said lands, or the owner has D:2008-1427A/lki obtained a special permit under HRS Section 205-6 or March 15, 2011, whichever comes first; and

(3) upon expiration of the enforcement agreement, if the subject dwelling unit is located on lands designated “Agricultural” by State or county law, the applicant, owner, successor, or permitted assigns shall abide by the laws that apply to said lands, or if the subject dwelling unit is located on lands designated other than “Agricultural” by State and County law, or has received a special permit under HRS 205-6, a nonconforming use certificate shall be issued therefor by the Planning Department.

What is really going on of course is that this is happening with a background of the developer’s best friend- the “identification of important agricultural lands” study now being conducted on Kaua`i at the state’s behest.

And, although it was originally passed to identify “important” lands, in a developer’s and realtor’s wet dream the study has morphed into identifying unimportant ag lands so they can be taken out of ag and developed.

But despite the fact that it’s been 30 years since the original mandate to “identify important ag lands” and that no one knows what will happen when and if they are ever identified, this would allow what the state law doesn’t allow by telling our planning director to just ignore their illegality until such time.

Anyone can write a “bill” and given the right software can make it appear official. We suspect that IF this bill is “floating around at the council” (where any expressed commitment to support it by council members would be illegal according to the Sunshine Law) and is being considered at the behest of Yukimura, the odds are that Chun’s fingerprints are all over it.

Chun’s testimony was constantly greeted with breathlessness acquiesced by Yukimura who, during the debacle. sought his counsel. It was instrumental in formulating a bill that resulted in allowing the “grandfathering” of illegal TVR’s in non VDA areas, instead of enforcing the state law against them

Incidentally Chun did all this lobbying by breaking the law himself by not consistently identifying himself before the council as a paid lobbyist for the Board of Realtors, as provided for in HRS Chapter 97 and Council Resolution 2007-2 on council rules.

Another bill (#2294) is up for a 1:30 p.m. public hearing (and has passed first reading) on the agenda tomorrow and does deal with TVR’s. It is one that tightens up and defines some permitting requirements for those seeking to have their illegal yet somehow grandfathered TVR’s in non-VDA areas.

It deals with signs and inspections and comes after the planning department failed to even start the process to create HRS Chapter 91 administrative rules for permitting since the bill passed.

Also on the public hearing agenda is a bill (#2292) that a lot of home owners will greet with enthusiasm and is probably long over due. It would make it so that those appealing their assessments for property tax purposes would only need to show the assessor was off by 10% instead of the current 20% in order to appeal the assessment amount.

There are also bills for first reading,

-one extending the deadline to apply for the new Kuleana Land Exemption from Dec. 31 to Feb. 13,

-one to rezone some residential (R-1) land in Po`ipu to Neighborhood Commercial (the land is adjacent to other Neighborhood Commercial land) and

-one to appropriate $85,000 hire a professional recruitment firm for $65,000 and pay $20,000 for advertising to recruit new police officers.

The meeting starts at 9 a.m. in the council chambers at the Historic county Building on Rice St. in Lihu`e.


Unknown said...

Wow. Someone forwarded this to me this morning and I am amazed. I thought i might be helping my readers to stay abreast of proposed bill which another colleague had sent my way. I had no idea or intention of any controversy. I am sure that Councilman Furfaro and Joanne Yukimura, if contacted directly (both are available by phone and email, correct) could clarify the situation.

As a realtor, i do my best to stay abreast of the current Kauai county climate and directions regarding vacation rentals as it is a topic that many 2nd home purchasers want to understand and do not. The ordinance regarding TVRs which was enacted in March of 2008 has generated much confusion amongst both current property owners and purchasers.

With aloha, Ron Margolis

charley foster said...
This comment has been removed by the author.
charley foster said...

I feel lucky, Ron. When I'm mentioned on Andy's blog I usually get by with a mere mischaracterization of my occupation or a puzzling assertion concerning some philosophy or ideology I supposedly suscribe to.

(I said "ascribe to" originally. Embarrassing).

Andy Parx said...

Well Ronnie it just shows to go ya you need to be careful what you report in a blog. I’m sure you at least know what “introduced” means as far as legislation and could have checked whether it indeed was.

You failed to say it was a letter to other council members or even reproduce the letter in full so the wording you used made it presumable that it was a letter to you.

As far the controversial nature of it- don’t BS me. This was extremely contentious matter and I’m sure you know it if you “keep abreact” of these things. The Board of Realtors testified extensively on the matter and it was rejected because it violates state law.

Nowhere did you say it would be effected by disregarding the law through “non-compliance agreements” either- your use of selective amnesia and claiming “confusion” in feigning dismay at my words is a sad at best.

If you want to use your blog to lobby for legislation that illegally slaps farmers in the face and expands your potential listings, don’t expect it to go without rebuttal.

This “proposed bill” is a disgusting piece of crap that I pledge to fight tooth and nail.

And since I now have a copy of the real letter- which was not to you as your blog implied but to other councilmembers- I will be forwarding it to the Office of Information Practices because any communication between more than two councilmembers regarding council business is a violation of the state sunshine law. I am grateful for this evidence which, if actually sent to all councilmember, should by all rights result in the jailing of Mr. Furfaro.