Friday, January 9, 2009


HE CAN’T DREAM WELL BECAUSE OF HIS HORNS: The new Kaua`i County Council will have their hands full next Wed with a jam-packed agenda that will include one - not two as the local newspaper reported- bill up for final passage with an illegal, although really good, amendment and a new bill to direct the planning department to not enforce the law against transient vacation rentals (TVRs) on agricultural lands.

As we described Wednesday, the one that is up for passage on second reading was originally supposed to deal with signage and local contact persons for the newly-legal “grandfathered” TVRs outside of visitor destination areas according to the purpose section of the bill

But where we speculated that perhaps the bill might be illegally amended to include those “non-enforcement agreements” for the state-forbidden ag land TVRs, while it doesn’t do that it does attempt to put the important provision to make public the names of those applying for the grandfathered TVRs into the signage and contact info bill.

The Kauai County Charter states that “(n)o bill shall be so amended as to change its original purpose”.

That means that the provision needs a whole new and separate bill for it to become law.... if the council cared about legalities.

Although the public notification measure is a good one and deserves passage the question is one that we tire of asking: why must the council chair in the persons of Chair Asing- and recent "temporary" Chair Jay Furfaro- do these things illegally as a matter of routine..

But if this Minotaur “do what’s wrong as long as he can” behavior is made slightly palatable by the positive nature of the illegal amendment in Bill 2294 Draft 1, Chair Asing has done it again- no “oops" about it- with a request on the agenda to take the first discussion of the new “citizen’s charter amendment” behind closed doors for it’s first discussion among the new councilmembers

Down at the bottom of this week’s agenda is the following notice

ES-369 Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4) and (8), and Kaua`i County Charter section 3.07(E), the purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters.

Here we go again. While the State Sunshine Law strictly prohibits closed meetings in order to discuss public policy it does have a provision to allow the council to

To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities;

and one that says

To deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law, or a court order.

So in his usual vestigial paternalistic plantation mentality way Asing has used this as a guise to discuss politically sensitive public policy behind closed doors by dragging in an attorney and claiming “attorney-client privilege”.

This mockery of the law makes anything Asing wants to hide from the public a subject to discuss with the new County Attorney who, by “requesting” this executive session- presumably at Asing’s request that he request it- has let us all know it will be business as unusual unless the rest of the council stops him by refusing to meet illegally.

As we detailed both before and after the election, the “monkey-wrench” charter amendment, put on the ballot via petition, would restrict tourism-accommodation zoning permits to a number consistent with the projection in the General Plan (GP). It forces the council to process those zoning permits unless they return that function to the Planning Department with a law restricting the number of permits the to the GP’s numbers.

Currently the Planning Department is way past the numbers in the 2000 update with some estimates that they have approved as many as 500% more than what would be allowed if the GP had “teeth”..

Of course, as we mentioned previously, the Planning Department employs dozens of planners, clerks and assorted personnel to process and make recommendations to the commission on these zoning permits and the council has... well, none.

This presumably means that the charter provision requiring the processing of zoning permits be done by the council- a separate branch of government forbidden by the charter from performing or directing administrative functions- would require the establishment of a mirror mini-planning department in Council Services.

That would at least require appropriations, legislation and HRS Chapter 91 administrative rules... if not another charter amendment to allow the council to perform an administrative function.

But until the council or the Planning Department drafts a bill to properly transfer the permitting power back to the Planning Department- and it is introduced and goes through it’s public hearing committee meetings and final passage- it remains illegal according to the new charter amendment for any action on zoning permitting by the Planning Commission.

And a discussion by the council regarding what to do about that sticky wicket is what Asing seeks to hide from the public.

For their part, the Planning Department seems to be oblivious to the new law and continues to process Class IV zoning permits even after December 4 when the charter provision became law.

On the Planning commission agenda for its January 13 meeting are no less than three items dealing with Class IV zoning permits for

1) Coconut Plantation Holdings, LLC. To allow the construction of an apartment hotel complex with 192 multi-family units, 6 hotel rooms (in) Waipouli.

2) Coconut Beach Development, LLC. To allow the construction of an apartment hotel resort complex with 343 multi-family units, 6 hotel rooms (in)Waipouli.

3) Waimea Plantation Cottages,... Zoning Amendment ZA-2001-3 relating to an extension of time to complete the master planned resort-residential development of Waimea.

The lawlessness of Kaua`i government apparently knows no bounds whether it’s the legislative or administrative branch. To try to take this matter behind closed doors and deny the public their right to know what has gone into the deliberation on this public policy matter violates the spirit, intent and very letter state Sunshine Law in the most fundamental of ways.

But there is hope. There are three new council members who will have to show their card this week and let the public know if their pledges during the campaign to support open governance were just a lot of bunk or whether they will- possibly with the support councilperson Tim Bynum who has not hidden his exasperation with “Uncle Chair” Asing’s penchant for secrecy- strike a blow for the open governance by refusing to meet in secret to discuss public policy.

We’ll take a gander at last Wednesday's meeting and look closer at some of the other council agenda items over the weekend and have a pre-meeting round-up of some high and low lights on Monday.

No comments: