Tuesday, July 20, 2010


GRANDFATHERING, WHAT BIG TEETH YOU LACK: Tomorrow could well be a black-letter day in the history of land use on Kaua`i and that’s saying a lot.

The stripping of the guts of the Transient Vacation Rentals (TVR) ordinance passed in 2008 and moreover the lifting of the total ban on TVRs on agriculturally zoned land is poised for passage once again.

But the so called “facts” that have led to the current bill are apparently the result of a council that’s incapable of independent legislative thought and rather rely on County Attorney Al Castillo’s inept legal constructions to write legislation.

That construction relies on the infamous “Kobayashi opinion” which supposedly caused those who were operating TVRs to “rely” on that opinion saying TVRs in non visitor destination areas (VDA) were not illegal. But, as we, along with Caren Diamond and Barbara Robeson have asked more than a few times of councilmembers if these people honestly relied on that opinion, why didn’t any of them file for a required “use permit” with the planning department.

Recently a state attorney general’s opinion from August of 2009 has come to light which says that allowing TVRs on ag land are at least not something the county can deal with and that the decision rests with the state land use commission. And it says that even if the land use commission said yes it they would have to be part of a “ag tourism plan” for a “working farm”.

So which is correct? Well a recent post on attorney Charley Foster’s “Planet Kauai” blog from Professor Carl Christensen- who, according to Foster teaches Federal Indian Law, Historic Preservation Law, and Legal Practice at William R. Richardson School of Law- sheds some light on the subject.

First Christensen says that:

The problem with the "reliance" argument you offer is that no county official has the authority to issue a definitive interpretation of Chapter 205 that would be binding on the State or on members of the public, and under Brescia a landowner can't "reasonably rely" on assurances from an official who lacked the authority to make those assurances. The whole purpose of Chapter 205 was to CONSTRAIN the ability of county officials to approve land uses forbidden by the Legislature.

That agrees with the attorney general opinion but the next comment by Professor Christensen blows the Kobayashi opinion out of the water.

Primary responsibility for the interpretation of the statute lies with the LUC, not the counties. To oversimplify a bit: "Construction of a general statute by officials of a particular locality carries little weight since the construction must be general and uniform to be binding on all those affected by the law. So, where state laws are administered by separate local agencies in different communities, interpretation by such agencies carries little weight." 2B Sutherland Statutory Construction s. 49:5 (footnotes omitted). If the LUC says TVRs are legal on Ag District lands, that would carry weight with a reviewing court; a county official's opinion, not so much. And the case is even weaker where a landowner seeks not just to obtain judicial deference for a local official's interpretation of a statewide statute, but instead actually to estop enforcement of the statute by the government or the public (and today's decision by the Hawaii Supreme Court in the Ala Loop case emphatically refutes any claim that the public lacks the power to enforce Chapter 205). The counties have never liked Chapter 205 because its very purpose was to prevent them from allowing locally favored land uses that the Legislature has chosen to prohibit; giving preclusive effect to a county official's interpretation of Chapter 205 would allow the counties to ignore state law with impunity.

But the council has been relying on a section of Hawai`i Revised Statutes (HRS) that deals specifically with grandfathering and “amortization or phasing out of nonconforming uses”.

Although HRS 46-4 itself isn’t a lot of help, the case notes state that:

Grandfather protections afforded a property owner under this section and land use ordinance intended to prohibit new zoning ordinances from interfering with an owner's lawful uses of a building or premises under an existing zoning ordinance. 86 H. 343 (App.), 949 P.2d 183.

"Lawful use" and "previously lawful", as used in this section and land use ordinance, respectively, refer to compliance with previous zoning laws, not the building codes or other legal requirements that may be applicable to the construction or operation of a structure. 86 H. 343 (App.), 949 P.2d 183.

Now while the current TVR ordinance does include a section calling for TVRs to comply with building codes in order to have been lawfully operating and that section is apparently inoperable, the case note also states specifically that “(l)awful use... refer(s) to compliance with previous zoning laws”.

Since there is no record of anyone even filing for much less receiving a special use permit for a TVR, there aren’t any that were ever in “compliance with previous zoning laws”.

That means that when the current TVR ordinance banned all “new” TVRs, there actually were no “old” ones since none were legally existing at the time

Therefore there are none that are or were ever eligible for grandfathering, 46-4 being irrelevant to zoning violations.

And one more note- there is really no need to remove the “building violations” section from the ordinance since the standard “severability clause”- which says that if one section of the law is found to be illegal the others still apply- is part of the ordinance.

What is most galling about this simple analysis is that the public has been prevented from discussing any legalities on any matters before the council due to Castillo’s insistence that whenever pubic policy intersects with whatever Castillo decides are “legal issues” they be discussed behind closed doors- especially this issue which has had at least a dozen executive sessions since the first bill- now the ordinance- was introduced.

It’s become a theater of the absurd where the council refers to vague legalities and in fact are unceremoniously cut off by Castillo when anything like a rational discussion of the meat of the claimed “legal issues” comes up. And likewise the public has been forbidden from mentioning them under Castillo’s warped use of the sunshine law to stop discussion of public policy in open session.

The council under Castillo- because in essence he has appointed himself chair, interrupting anyone, including councilmembers, for any reason without recognition from the chair- has become a “Star Chamber” where we are not entitled to know the issues that have gone into the deliberations of the council and are not only not allowed to bring them up but the council is forbidden to answer them for fear of violating the secrecy of the executive sessions where the issues were actually aired.

The irony is that this very process of deliberating in executive session during the formulation of the original TVR bill is what led to the council-perceived need to revisit the issues because the legal issues were never aired in public where the people might have been able to know what the council was being told and raise the very issues that led to the supposedly flawed ordinance.

We gotta ask again- can’t anyone here play this game?

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