IT'S NEWS TO ME

IT'S NEWS TO ME: It only took a decade or so, which anywhere else might be seen as a snail's pace. But here on Kaua`i when it "only" takes a dozen to get the government follow the law your first thought is that it's miraculous that they complied at all.

When a long list of nominees for various boards and commissions were scheduled for interviews a week ago Tuesday we had little hope of seeing them on television. After all, it took over five year of complaining on our part to even get the Office of Information Practices (OIP) to tell the council to end the practice of holding the interviews in secret executive sessions and then another few years for the paternalistic then-Council Chair, Kaipo Asing, to actually comply.

But it took still a few more years before the council allowed the interviews to be video-recorded claiming they didn't have the money to do so- even though they paid to caption and televise up to an hour a week of those "grip and grin" certificates and awards that they present to auntie and uncle every time they sneeze and to every sports team that came in anywhere but last in Honolulu... especially around election time.

Now, after some dribs and drabs of individual interviews interspersed with council meetings over the last year or so, the yearly appointments- and more importantly reappointments- of a slew of board and commission members was actually televised last week.

And guess what? It actually produced news of sorts, although you wouldn't know it from perusing the local newspaper, probably because you had to actually be paying attention to both the interviews and the way government works around here to find it.

The biggest news came from outspoken Planning Commissioner Jay Kimura who has ascended to chair this year. Kimura is the one who, when you watch the planning commission meetings, is continually shaking his head in disbelief over the fact that transient vacation rentals (TVRs) can be put on agricultural lands in the first place, denouncing the way the permits for all types of TVRs are approved willy-nilly regardless of compliance with the law and generally kvetching about the lack of enforcement of TVR regulations for both existing permit holders and those for who have been rejected but continue to operate.

The news is that anyone who was wondering at the time exactly what happened in executive session when former Planning Director Ian Costa left his post under investigation by the FBI can wonder no more whether he resigned or was actually fired by the planning commission.

Mayor Bernard Carvalho Jr. was certainly circumspect about the circumstances, probably because he has since "hired" Costa- or at least told his former campaign manager Director of the Department of Parks and Recreation Lenny Rapozo to hire Costa- as a deputy director under Rapozo.

During Kimura's questioning Councilmember Tim Bynum directly asked Kimura "during your tenure the planning director changed. That was a decision of the board, correct?"

Kimura simply answered "Yes."

Bynum continued the questioning as to whether Kimura was happy with the new Director, former Deputy County Attorney Mike Dahilig, to which Kimura replied that he would "rather keep my opinion to myself," even though his disgust with Dahilig's lack of enforcement and lax attitude toward TVR permitting in general hasn't been very well disguised at planning commission meetings.

But now we do know that Costa was fired- as if there was really any doubt until now in the minds of any but the most rabid of Carvalho sycophants. Oh- that and, according to Rapozo, the "fact" that state attorney general is "going over the approved 'TVRs on ag land' permits"... whatever that means.

Another bit of major news is that Board and Commission Director John Isobe has "retired" and been replaced by former state House Representative from 1992-1993, Paula Ishii Morikami (D-12th District) who is apparently now the latest politically-connected apparatchik to join the Carvalho administration.

Isobe's "retirement" has yet to be formally announced but it came up during the interview with former District Court Judge Calvin Morishige who has been nominated to be on the Kaua`i Board of Ethics.

One bit of news of sorts that Morishige made was to say, in response to questions from Councilmember Mel Rapozo, that his opinion was that county attorneys who advise boards and commissions actually do just that and only that- advise them.

"Their opinion is only their opinion- the decision is up to the board," he told the council.

Now anywhere else in the world this would not be news. But under the Carvalho administration, County Attorney Al Castillo’s opinions are to be followed blindly by all. And if they are not, board and commission members have been threatened with the withholding of county representation should they be sued for their official actions, according to a lengthy discourse on the subject by Rapozo.

This has been especially true with the Ethics Board where commissioners have actually battled deputy county attorneys to get them to change their written opinion rather than make a ruling that would treat their advise as, well, advice as opposed to a dictum.

There was probably more news but it was really hard to stay awake through all the fawning and phoney praise for both the nominees and Carvalho for his wonderful choices... alternating with the occasional grinning through gritted teeth by both councilmembers and appointees, holding back what they really wanted to say.

It kind of makes you wonder what "news" might have come up behind closed doors for all those years where they didn't have to watch what they were saying. But then again current councilmembers are new at this "conducting the public’s' business in public" stuff, especially when it comes to having to interact with those who have seen the corruption of the Carvalho administration up close and personal and then allowing them to discuss it on TV.

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(Sorry for any flubs today- our editor's computer is down.)

MEET THE NEW BOSS

MEET THE NEW BOSS: The Charter Commission continues its work without much public oversight except when they bring their work before the county council to ask permission to do it- a very strange obsession since the council can put charter amendments on the ballot all on their lonesome.

But it hasn't escaped our attention that Mayor Bernard Carvalho has been on a crusade to use the commission to consolidate power in the mayor's office.

Using his crony Boards and Commissions chief John Isobe as a cudgel, he has sought amendments to the charter that would take away the appointing power of the few boards and commissions that appoint their respective department directors, such as the Police, Fire, Planning and Civil Service Commissions.

But we've gotta ask why he bothers because he and his predecessors been able to evade the law so successfully for decades.

Case in point? Yesterday's thus far unreported Planning Commission (PC) vote to remove the term "Interim" from the title of now permanent Planning Director (PD) Michael Dahilig.

As many may remember when former PD Ian Costa went up in flames amidst an FBI investigation, Dahilig was whisked from the county attorney's office and dispatched to the top planning spot by Carvalho amidst much hoopla over the usurping of the commission's prerogative to appoint their own director.

Of course the same thing had happened when Costa himself was installed over a decade ago when former Mayor Maryanne Kusaka installed then acting County Engineer Costa with only a pro-forma vote by the commission.

This time however many thought the opportunity to initiate a search for a real live professional with experience might be in store, maybe even one that would be a good fit for the island's controlled growth paradigm, as demanded by voters, who approved the charter amendment to put some teeth into the general plan growth numbers in 2008.

But a search of the last six months of PC agendas shows only regular executive sessions to evaluate Dahilig and nothing whatsoever dealing with any search.

So it shouldn’t have been any surprise when this week's PC meeting agenda came out and the first item of business was the "(a)ppointment of the Planning Director pursuant to Section 14.04 of the Charter of the County of Kaua'i."

And since there had been no search, no one could be surprised when Carvalho's hand picked PD Dahilig was permanently installed in the planning department’s top job.

Well, there has never, in our memory, been a planning director actually appointed by the PC without having been hand selected by the mayor, so why start now?

DIVIDING BY ZERO

DIVIDING BY ZERO: Is it possible that the pablum that passes for the product of the press on Kaua`i is actually getting less informative? It's kind of like asking whether the sound of zero hands clapping is quieter than the sound of one.

We expected to get shafted with KIUC-spun articles in the FERC vote debacle, given that the electric co-op remains one of the local newspaper's biggest advertisers... that and the fact that it was made abundantly clear to the current business editor- who covered the story- that the last business editor was fired for not toeing the Chamber of Commerce line.

Coverage of the planning commission's wholesale permitting of the new transient vacation rentals on ag land shouldn't have to fall to Joan Conrow whose KauaiEclectic blog told the sad tale Monday of how "county planner Mike Laureta prepared Bruce Fehring’s TVR application" as well as other eyebrow raising horror stories from last Tuesday's meeting.

But in reading her exclusive report we could not help but ask how the planning commission is able to get away with violating the now-not-so-new, citizen-petitioned charter amendment that was supposed to give "teeth" to the growth numbers contained in the general plan.

The amendment essentially put a hold on the processing of any new tourist accommodations by the planning commission and gave that job to the county council unless and until the council enacts an ordinance delineating the nuts and bolts of how the limitations are to work and then and only then return the power to the planning commission.

At the last full council meeting just such a proposed ordinance finally returned from the scrutiny of the planning department and commission- albeit in the form of a totally new bill- which passed first reading and is headed for a public hearing on August 3 at 1:30 p.m.

Bill 2140- which, along with all the other documents accompanying council agendas, is still not on-line even though a year has gone by since they were supposed to be made available there- is apparently still a long way from being a legitimate reflection of the intent of the amendment, with some of the "creative interpretations" of the starting point that were contained in the previous version of the bill, still being a point of contention.

The point is that the pointed disregard of the charter shown in the planning commission's approval of these TVRs is just another example of the predictable results of the lack of effective media scrutiny of county government on Kaua`i.

Rote regurgitation of press releases and unquestioned repetition of officials' political talking points does not a watchdog make.

Our local newspaper is bought and paid for, there is no local TV and there are enough shenanigans in Honolulu to keep both the Honolulu newspaper and the on-line "Civil Beat" busy over there, eight days a week, thank you very much.

That has left Kaua`i citizen's with no recourse but to file expensive lawsuits in order to put a stop to these violations of the law, especially those dealing with land use where the big money interests have sewed up just about every attorney in town.

That makes the lack of funding secondary to the availability of a lawyer to take the case- and don't think they don't know and count on that.

Because when it comes enumerating potentially effective opposition to rampant lawlessness, it doesn't take very long to count to zero.

ALOOOOO-HA

ALOOOOO-HA: A week ago yesterday few knew what or who "Preserve Kauai's Rural Character (PKRC)"‏ was. And apparently no one knows or will say today.

Last Sunday was the day we received an innocent enough yet slick professional email- produced by marketer VerticalResponse- reviving the anti-Kilauea Amphitheater movement in the wake of news of a takeover of the Kalihiwai Ridge Community Association (KRCA) in Kilauea by proponents of the project, causing KRCA to drop it's contested case for the required Special Use Permit before the planning commission.

The mass mailing- replete with one of those "click here to unsubscribe buttons" and a personalized "Dear Andy" salutation- tried to reframe the argument from one of "stay loud already" vs the "nahting for do around hea" mantra to appeal to we professional land use rabblerousers by putting the fear of commercialization of ag land in our green little hearts.

Despite numerous requests this week the originator of these emails remains unknown but not his, her or their intentions.

It didn't take but a few hours for the now ubiquitous developer-Bill-Porter-as-Hitler video to surface, again anonymously. And it didn't take us but a few seconds to identify the style of the short film to be that of a certain local filmmaker who has done a few "who did that" videos.

Not only was the mailing slick- not to mention costly, especially complete with a mailing list- but the PR effort and the knowledge of what pushes the sustainability crowds solar-generated buttons was almost impeccable.

Almost, except that some of the so-called "facts" weren't.

So it was until mid-week when KRCA busted out the big bucks and published a full page ad in the local newspaper and another email announcing it.

The ad proclaimed that approval of a special use permit would be a first-ever for commercial use "on land zoned as 'Agricultural' by the State"- a meaningless phrase that belied the author's lack of sophistication in the ways of land use in the islands.

As we find ourselves explaining way too often the state, under direction of the Land Use Commission, does "districting" while the county does "zoning." It's an important distinction and one that has caused no dearth of legal wangling over the years.

The next move, apparently from the developer, was an email going over and attempting to refute, point by point, the contentions of the ad, although most were semantic arguments as to whether the ad's depiction of an "amusement park" was appropriate, but also attempting to debunk the ad's debunking of the "Six Myths About the Kilauea Pavilion."

And yesterday, once again, the antis were at it again with a debunking of the debunking of the debunking in point by point by point, tri-color regalia.

The real issue here is the same one that's plagued this and the surrounding parcels for generations- what to do with the "light industrial" land- a remnant of the sugar cane mill days- that sits in the middle of agriculturally and districted and zoned land just north and mauka of Kilauea. It's gone through all sorts of designations over the years, reverting back and forth, as plans either fell through or the Kilauea community rose up against the plans.

While we don't have any way of verifying the "first ever commercial use permit for ag land" claim made by KRCA we seriously doubt it although that may have more to do with Preserve Kauai's Rural Character's confusion between county zoning and state districting and what the two different "agricultural" designation actually mean. And rather than stating and quoting any specific section of HRS 205, which lists the allowable- and more importantly the not allowable- uses of ag lands, KRCA just listed a hodge-podge of provisions and a contention... the point being that unless uses are specifically banned they are generally allowed with a special use permit.

What is pretty obvious is that the handful of Kalihiwai Ridge residents- who themselves live on ag subdivisions and "condos"- that were ousted from their community association posts for their opposition to the project are trying to reframe the argument to suck in- and we might say quite successfully noting the many "re-sendings" of their emails- the land use/sustainability crowd even after a buy-in to the project by the apparent majority of both Kilauea and Kalihiwai Ridge (KR) residents.

Will it set a precedent that will forever change the way special use permits are issued for commercialization of ag lands as PKRC claims? Unlikely considering the way the developer went to the community and asked what they'd like to see on the land which is the one thing that the majority of local people require as an act of "aloha."

It doesn't help that the KR folks are seen as a bunch of rich haoles whose use of ag land as "gentleman estates" is seen as far more objectionable- not to mention destructive of agriculture by cutting up and skyrocketing the price of ag land- even by those whom they are enlisting in the fight to stop the project.

Perhaps that's why the PKRC people refuse to identify themselves and answer questions from the press and have rather tried a last ditch effort to rally the usual suspects by casting the issue as a battle for the future of agriculture on Kaua`i.

Aloha has less to do with smiling as you clean toilets for the tourists as the visitor's bureau wants people to think and more to do with respect- you don't just walk up and take the fruit on someone's lawn, you ask first. Same goes with a notoriously hard to develop parcel of land slated for development.

And no matter what Bill Porter is doing, he not only asked but actually listened.

And while we have apprehensions at the commercialization of the already commercialized area, it's the North Shore residents who will have to live with what they bought into.

Tomorrow the sh*t hits the fan at the planning commission meeting where the permit has been recommended for approval by the planning department staff and director. But, depending on what side you're on, fortunately or unfortunately, the genuine of ingenuous efforts of PKRC will likely have been in vain.

WITH A BANG, NOT A WHIMPER

WITH A BANG, NOT A WHIMPER: The future begins this week on Kaua`i and it has little to do with the new council’s makeup or leadership, which will be determined today according to a “notice” that appears nowhere but on the wall at the temporary council chambers.

But it all may be just business as usual if none of the people who claim to care about land use show up and force these upcoming changes to be positive ones.

As we said Friday, with Planning Director Ian Costa being told not to let the door hit him on the ass on his way out at tomorrow’s planning commission meeting, there is a once-in-a-decade chance to convince the commission to conduct an open process- one devoid of administration interference- in their search for a new director... one who understands controlled growth principles and is attenuated to rural- as opposed to urban- planning.

Too often when we hear “smart growth” mentioned on Kaua`i these days it is linked to California-style “walking communities” as an answer to suburban sprawl and other concepts that don’t really fit the truly rural nature of Kaua`i- a character that a vast majority of island residents say they want to protect.

The term “smart growth” is really rooted in a process of true citizen directed growth where an open process first determines whether a certain type of growth is currently appropriate and then considers where that growth should go. Then, rather than let developers who have money determine which areas will be used for growth and allow them to submit plans for rubberstamping, they compete for the right to develop the pre-citizen-determined locations, also through an open process.

We need a planning director who understands this process, especially since the first thing he or she will be doing will be to start a new charter-mandated General Plan Update process, since 10 years have passed since the last one was completed in December of 2000.

Actually, that may be the second thing the new planning director will be doing because the petition created charter amendment passed in 2008- the one that links the actual number of planning commission approved visitor accommodation units to specific growth standards set in the general plan- has finally been given form and substance in a bill set for introduction at Wednesday’s lame duck council meeting.

That means it will be going to the planning commission for analysis and approval and then returned to the council for first reading, hopefully within 60 days.

Bill 2386 (scroll down to page 40) sets up a standard for “Transient Accommodation Units” and proposes a one-and-a-half percent (1½ %) per-year growth rate with a lottery each year to determine who gets those rights to build them.

It also calls for a four-year time limit for “commenc(ing) actual construction of 20%” with one year extensions available “upon a showing of good cause by the (transient accommodation unit) certificate holder”.

The commission can also use a five-year “average of growth rate” of the one-and-a-half percent if the planning commission decides to do so upon recommendation of the planning department.

One of the provisions that may raise eyebrows is that only 10% of the certificates are reserved for developments of five units or less while the other 90% are reserved for those of six or more. This give preference to large resorts and hotels rather than “mom and pop” operations including potentially single-family vacation rentals and bed-and-breakfasts in designated visitor destination areas.

There are also exemptions for existing resorts and those who started the process- or were approved- before December 5, 2008 (when the charter amendment took effect), provided they file for one within a year of the effective date of the ordinance.

And we all remember how well it worked- or more precisely, didn’t work- the last time the planning department was given a year to certify past use of transient visitor accommodations.

The bill leaves an awful lot of discretion to the planning commission and department in areas where it could make the ordinance a joke, especially a lot of those pesky “may” instead of “shall” do such-and-such phrases.

And the “five year average” could turn into just what many feared- a free for all for well connected developers who get their ducks in a row early on. Perhaps a small percentage of deviation from the one-and-a-half percent rate would be appropriate.

There is a chance for public input at Wednesday’s council meeting for the bill, as well as at Tuesday’s planning commission meeting for the opening of the planning director’s job.

It’s now or never for all those who like to kvetch and moan about unfettered growth and those who worked so hard to get the amendment on the ballot in 2008.

As usual, the spoils will go to those who show up and you can bet those who stand to make a buck off these two decisions will be there.

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Update: It only took us an hour to find the new page for the Kaua`i County Charter. If you want to “bookmark” the page you need to go to the Public Documents page and right click and then click the appropriate line for your browser (“add to Favorites” for Internet Exploder).

(PNN) COSTA FORCED OUT AS PLANNING DIRECTOR; EXPECTED TO RESIGN TUESDAY FOLLOWING ETHICS CHARGES.

COSTA FORCED OUT AS PLANNING DIRECTOR; EXPECTED TO RESIGN TUESDAY FOLLOWING ETHICS CHARGES

(PNN) -- Long time Kaua`i County Planning Director Ian Costa is expected to resign from his post at next Tuesday’s planning commission meeting after apparently being forced out following an executive session evaluation by the commission at it’s October 26 meeting.

This comes on the heels of an Board of Ethics (BOE) October 15 finding that, according to the minutes, various planning department officials’ “actions were in violation and not permitted under the (county’s) Code (of Ethics)” after they were found to have been performing outside work on projects that were then coming before the department for approval.

Although Costa was also discovered to have been moonlighting on projects under his jurisdiction he was not one of those found to have been in violation however he was thought to be the subject of an executive session at that meeting “to consider the evaluation dismissal or discipline of an employee or officer of the county relating to a complaint filed against the employee or officer”.

Following the BOE’s actions, at it’s October 26 meeting the planning commission held an executive session “to discuss matters pertaining to the Planning Director and, if necessary, to consult with the County’s legal counsel... pertain(ing) to the evaluation of the Planning Director”.

According to next Tuesday’s planning commission agenda they will first consider a “Letter (11/16/10) from Planning Director Ian K. Costa to Chairman Raco and Members of the Planning Commission offering his resignation as Director of Planning for the Commission’s acceptance”.

In addition they will consider a “Letter from Mayor Bernard P. Carvalho, Jr., ex-officio Planning Commission (11/17/10) member, to Chairman Raco and Members recommending that the Commission consider the appointment of Michael A. Dahilig as Director of Planning to serve in the interim”.

The planning commission is responsible for hiring and firing of the planning director according to the Kauai County Charter, which recently disappeared from the county’s web site.

Dahilig is currently a deputy county attorney who has a degree in urban planning although he apparently lacks the administrative experience required for the position under county charter provisions.

Dahilig has faced ethical questions of his own with a public outcry over his and other deputy county attorneys’ “beer summit” with Councilperson Dickie Chang last summer in which they visited Chang’s home one evening, “coldpack” in hand, to successfully lobby for his vote for a bill to allow transient vacation rentals on ag land.

Costa, a licensed architect, has been the planning director since Mayor Maryanne Kusaka’s administration when he came to the post after serving as the acting county engineer.

Though the planning officals’ action were found to be in violation of the charter’s code of ethics no charges will be brought because, according to the BOE minutes, they were relying on a 1991 BOE opinion which, the county charter says, excuses them.

STONED AGAIN

STONED AGAIN: One of the stupidest things we’ve ever heard of- and on Kaua`i that’s saying a lot- is the plan to try to prevent a rockslide at the waterfall on Kalalau beach by causing one.

If the local newspaper article by still-unable-to-find-the-lead reporter Leo Azambuja is to be believed:

Workers will then suspend themselves from the top of the cliff, and using crowbars they’ll hammer out rocks that appear to be less than 50 percent attached to the cliff’s face.

It’s hard to say which is more imbecilic- the Department of Land and Natural Resources (DLNR) that has come up with this harebrained scheme or the Kaua`i Planning Commission that actually issued a Special Management Area Permit to do it- an approval that was reported 1037 words into a 1137 word article.

Have these people ever spent any time there? We have- lots of it.

Yes rocks fall- very occasionally. And people generally avoid the areas where they are likely to fall, obeying the signs in the area.

But as long as you leave them alone, when they do fall they present little or no danger. The only “incidents” have come about when sh-t-for-brains tourists mess with them by climbing around on them.

As anyone who has spent any time looking at the geology of landslides on the crumbly islands’ sheer cliff faces can tell you, if you actually bring down the loose stuff- the rocks that are actually holding the whole thing together- the rock slides will continue at an advanced rate for many years until it stabilizes... leaving others rocks ready to fall in perpetuity.

If you let them fall intermittently by themselves the occurrences will be sporadic and won’t potentially allow a huge “face” to fall with the first good rainfall.

This has been shown over and over and is why, when the Department of Transportation (DOT) does any rock removal work above highways nowadays, they put chain link meshing over the disturbed area to stop the rock and landslides that inevitably occur immediately after the work is done.

And even stupider is, according to the article, the idea to try to bring down:

two massive blocks that are apparently slowly detaching from the cliff’s face.

Conservative estimates measure the blocks at approximately 230 and 1,250 cubic yards each.

(Environmental planner for AECom, the company contracted to oversee the project,
Tobias) Koehler said there are cracks so wide that it’s possible to stick an arm inside of them.

The idea is to insert air bags into those cracks, and then pump them until the blocks detach from the face of the cliff.

In talking to the old-timers as far back as the 70’s those “slowly detaching” boulders have been doing so for decades, perhaps centuries- as far back as anyone can remember. An examination of the large boulders in the area shows them to have been where they are for a long long time.

A couple of the comments on the article agree:

“If you pop off the big rocks the more numerous small ones the size of your fist will crumble off the cliffs and kill and injure more people than 1 big one. Leave Kalalau natural like it has been since it began.”

“Anyone who's spent any time down the coast knows that rocks fall - and will continue to fall. You can't stop it. Avoid the rock fall zones just like we did as kids. Anyone remember when the entire cave at the Honopu end collapsed?”

Along with the recent announcement that despite almost unanimous local opposition the DLNR is going to put up a gate in Koke`e to charge “non-residents” (for now).

It’s no wonder they use the excuse of having no money for “maintenance” of parks to justify the Koke`e fees when they spend $800,000 (reported 974 words into the article) on nonsense like this.

This kind of idiocy of allowing decisions regarding our parks to be made around a table in Honolulu has got to end with the end of this administration.

The question only seems to be how much damage they can do before December.

IT’S NOT A TURD- IT’S OUR LIVELIHOOD

IT’S NOT A TURD- IT’S OUR LIVELIHOOD: It’s been nothing short of nauseating to watch the way the western-settler, fat-cat, gentlemen-farmers have screwed any chance of an agriculturally successful future and thus rural island culture for the island by spewing their sense of false entitlement in front of the council and planning commission as they whine and snivel that they should be allowed to violate the state law banning vacation rentals on ag land.

Yet who can blame them for taking advantage of scofflaws like Councilperson Jay Furfaro who introduced the bill to somehow make the illegal legal and once-and-we-hope-not-future Councilperson JoAnn Yukimura who drew up the bill?

We still haven’t seen the cablecast of this week’s disgusting installment of “Screw the Public” (aka Furfaro’s Council Planning Committee meeting) due to the usual Ho`ike incompetence and catch-22 runaround – somehow apparently the captioning wasn’t done at the meeting and is being done now by Ho`ike although the only one who can say exactly what the heck is going on and when it might be on is the always out-of-the-office and incommunicado J Robertson... who in the middle of this mess took Friday off and is, as usual, unreachable until Monday, if then.

But thus far no one that we’ve caught at any meeting considering the bill – either at the planning commission or council- has mentioned that state law- HRS 205- specifically bans overnight accommodations for tourism related ag activities, which former Councilperson Mel Rapozo pointed out and later, at our urging, posted on his new “Straight From the Spleen- er, Heart” blog that replaces his now deleted Kaua`i Politics entry that disappeared after he lost the mayoral election in 2008.

It reads in pertinent part:

(b) Within agricultural districts, uses compatible to the activities described in section 205‑2 as determined by the commission shall be permitted; provided that accessory agricultural uses and services described in sections 205‑2 and 205‑4.5 may be further defined by each county by zoning ordinance. Each county shall adopt ordinances setting forth procedures and requirements, including provisions for enforcement, penalties, and administrative oversight, for the review and permitting of agricultural tourism uses and activities as an accessory use on a working farm, or farming operation as defined in section 165‑2; provided that agricultural tourism activities shall not be permissible in the absence of a bona fide farming operation. Ordinances shall include but not be limited to:...

(2) Requirements and restrictions for accessory facilities connected with the farming operation, including gift shops and restaurants; provided that overnight accommodations shall not be permitted;

That’s why the bill originally called for “non-enforcement agreements” even though the bill didn’t mention what was not being enforced in an hilarious-if-it-weren’t-so-asinine provision that had to be changed because the lobbyists and lawyers couldn’t ask for it without doubling over with laughter.

It’s hard to say who the worst jerkwad- or wads- in all this is/are. But when you look at the ag VCR owners who testify it’s hard not to start by blaming them for their own so-called predicament.

After flying in from LA on their magic wallets and cutting up most of the non-subdividable prime ag lots for their luxury homes driving prices for ag land beyond all farming business viability, they now are all suddenly “po' workin’ folk” who regurgitate-on-cue this “oh pity me- and in this bad economy no less- I’ll lose my land if I can’t have my illegal vacation rental- nooo oooone ever toooold meeeee” and similar drivel that just makes you want to scream.

Apparently if you have been illegally running, oh let’s say a drug ring and the cops failed to bust you then we need to let you keep up your trade because it feeds your family or some other irrelevant bullshit.

Next thing you know we’ll be grandfathering in all those who have been breaking into tourist’s cars – we have certainly not been enforcing that law either as the guy who, it was reported this week, has been arrested 74 times and is still on the loose can testify.

But worse is that we haven’t even heard a peep out of any councilperson challenging these chuckleheads as they file before them and blame everyone but themselves after they bought their land presumably with the required full disclosure so knowing full well what the rules were.

Of course the same goes for some of the requests for farm worker housing- or some who even want to put their own house on land they bought on the cheap precisely because it came without any “density” to build a house- and even the ones who, like Councilperson Tim Bynum, live on an “ag condo” so have apparently been violating the law requiring houses on ag land to be “farm dwellings” and so presumably have some nexus to a farming operation other than a mango tree in the yard.

Actually before any of these bills, as the law cited above says, what the county needs to do is to enact an ag tourism bill although even then state law specifically bans overnight accommodations in any ag tourism venture.

But instead of fulfilling that state mandate we’re the first to identify “unimportant” ag lands so we can sell of the rest of our agricultural capability to the next California cretin.

Oh and of course there’s plenty of blame left over for the local newspaper which so far has yet to quote HRS 205’s provision banning overnight tourist accommodations on ag land in the half dozen articles on the bill.

And in case anyone forgets, ALL TVRs outside the designated Visitor Destination Areas, no matter what the zoning, are and always were (since 1976) illegal no matter what Yukimura said and did in trying to make the existing ones legal by grandfathering them in rather than redoubling enforcement efforts.

But then of course the county is noted if not famously persistent for fixing what they don’t like under state law or our charter with an illegal ordinance as in the case we cited Wednesday.

Finally all this couldn’t be done without the complicity of the Planning Commission and Planning Director Ian Costa- along with his hand picked staff of sycophants- whose incompetence and out-and-out corruption has been well documented in this and other spaces.

But apparently this bill trying to make the illegal legal is sailing right along because the last person to blame- all the members of the public- have sat on their thumbs and let the stream of asshole gentleman farmers trying to cash in on the stumblebums in county government, to dominate testimony on the bill.

With once again apologies to Casey Stengle, can’t anyone here play this game?

AS LONG AS THEY CAN

AS LONG AS THEY CAN: By far the most often violated ethics provision in the document dump provided by reporter Michael Levine- whose article on the $3 million the county has spent on outside attorneys since Jan 2007 appears in today’s print version of the local newspaper and is far more extensive than his preliminary report posted on-line Tuesday night- is of course the oft-flouted section 20.02(d) of the county charter which states that “(n)o officer or employee of the county shall (a)ppear in behalf of private interests before any county board, commission or agency”

Far and away the grand prize winner in the batch with at least 14 violations is Roger M. Caires, the CEO of CLS Hawaii Land Surveying & Mapping who according to the CLS web site

is a life long resident of Kauai. He started this business after retiring from the State of Hawaii, Department of Transportation, with twenty-five (25) years of experience. Mr. Caires leads a team of land surveyors using the latest surveying technologies including the GPS (Global Positioning System), total stations, electronic data collection, and CAD equipment.

According to his disclosure statement Caires sits on the Public Access Open Space and Natural Resources Preservation Fund Commission and his “(c)lients represented before Kauai County Planning Commission during 2008 for subdivision applications” include “Perl Kato, Marilyn Planas, Robert Keown, Rodney Soares, Andrew Baik, Bruce Narramore, Daryl Kaneshiro , Rick Haupt, Kurt Bosshard, Kapaa 382 LLC, Stephen Gatchell, Seatrace Inc., Alan Packer, (and) Kevin P. Hurst.

Caires and his wife Susan C., who apparently also works for CLS, reported a combined income from the company of $31,600.

The Public Access Open Space and Natural Resources Preservation Fund Commission is administratively attached to the planning department and commission which means that, unlike other apparent violations recently exposed Caires serves in the same department as the one he has appeared before.

Is Caires a “bad guy” because he is in violation of the county charter? Probably not.

But should he be serving on a county board or commission while “(a)ppear(ing) in behalf of private interests before any county board, commission or agency”. Certainly not.

Nonetheless, in the upside down, black is white and up is down world of the county’s Board of Ethics (BOE) where the county ordinance can overrule the county charter- and that of the county attorney who can’t seem to provide simple legal advice without jumping down the rabbit hole and that of a mayor who can’t seem to find qualified people to serve among the 99% of the local people who never “(a)ppear in behalf of private interests before any county board, commission or agency”- all in hunky-dory is Lihu`e la-la land.

It is presumably the job of the BOE to review these disclosure forms for conflicts-of-interest. That’s why the charter mandates they be delivered to the BOE. But despite blatant violations such as the ones we detailed yesterday and Wednesday there has never been a conflict of interest charge filed by the BOE itself based on the information provided on any disclosure form... presuming they can even read some of them, another matter the BOE seemingly ignores.

The fact that Caires so cavalierly lists his clients before the planning commission either means he doesn’t read the newspaper or more likely has chosen to drink CA Al Castillo’s Kool-aid. And until someone files suit to force the BOE to follow the charter’s code of ethics the dysfunctional labyrinth of the minotaur will keep filling the crevices of the maze and posting Sergeant Schultz clones at the gates with those who are willing to do what’s wrong as long as they can.

FIRST THERE IS A STICK, THEN THERE IS NO STICK, THEN THERE IS

FIRST THERE IS A STICK, THEN THERE IS NO STICK, THEN THERE IS: Some are astounded, some are ambivalent, some are apathetic, some are angry.

But no one who watches the twice-monthly circus on TV should be baffled at the Kaua`i Planning Commission’s approval of an extension of the zoning permits for the Coco Palms developers.

The commission isn’t chock-full-o-nuts, it’s just choke pre-corrupted citizens who operate at the behest of revolving door planners whose only relationship with smart growth principles are that they think themselves too smart to be principled.

It’s not surprising that new commissioner Hartwell Blake most likely voted for the measure (we only know the vote was 6-1 according to this morning’s brief notice in the local paper). The former county attorney for former Mayor Maryanne Kusaka- who, along with her flunkies took a financial beating in the collapse of the project- was pre-approved for serving the interests of developers during his years aiding and abetting the crimes of Kusaka.

Blake recently was rubber-stamped by the council to fill the “environmental” slot on the commission recently when no one from the organized environmental community stepped up to object his lack of credentials or offer themselves for service despite by attempts by rookie councilperson Lani Kawahara to get them involved in the council’s decision.

And, although many thought that perhaps former progressive Democratic Party stalwart Commission Chair Jimmy Nishida might actually represent the community’s interests, once he sold his soul to upzone some of his vast Wailua ag land holdings to residential- supposedly so he could put up as yet unbuilt, promised but not required to be, “affordable” housing- he went the way of Kaipo Asing who also not so coincidentally did a 180 after being granted a personal zoning favor by the county council in the 90’s.

But the real brains behind the extension was planner Mike Lauretta- a charter member of the conflicted, revolving-door, old-boys network, having moved back and forth with ease from his position with the planning department to the employ of developers over the years.

His convoluted plea at the last commission meeting was no doubt the deciding factor for many planners, even though his spiel flew in the face of a vast movement to obtain the abandoned hotel for use as a cultural park.

Everyone from Lihu`e Business Association chief Pat Griffin, to State Senator Gary Hooser to Kanaka activist Nani Rogers and hundreds if not thousands of people- from the average working Keone to the highest mucky mucks of all stripe- have watched as the community got scammed by the current owner and waited for yesterday so the value of the property would plummet to an affordable realm so the poised-for-success project could go forward once the property was valued at an “undevelopable” price.

At the previous meeting Lauretta launched into a “where are they all with specific plans and funding?” spiel, despite the packed chamber and dozens who filed up to ask the commission to reject the extension so the long-envisioned park project could be realized.

Lauretta simply ignored the fact that land is just land but land with the rights to develop it is worth it’s weight in gold, at least doubling if not tripling it’s value in the case of Coco Palms.

He listed all the people who had not come up with the money and the plan- DLNR, Hooser, OHA and a slew of others who have in fact put forth extensive plans and commitments and are waiting for the commission to put the final nail in the developer’s coffin after the “two local guys from Princeville”- who turned out to be shopping center developers from Maryland- intentionally put the kibosh on their own permits by asking for a “spa” in a place and of a nature that they could be assured they would be rejected, after their funding disappeared in the real estate bubble-burst.

Under Planning Director Ian Costa- whose conflicts and corruption go back to the grubbing and grading cover-ups during the Kusaka administration that ended up on the Pflueger debacle- the commission has become an incompetent joke. The members are selected solely for their ability to do the bidding of Costa who actually serves at the pleasure of the commission according to the county charter... that and a seemingly pierced nose to accommodate the tethered ring Costa apparently installs upon their swearing in.

The problem is that commission rules conveniently leave out any process for removing a sitting planning director and not only have none ever been removed (the past ones have all resigned and gone on to represent developers, even before the commission and department) the ones that have served have all been “appointed” by the Mayor and rubber stamped by the commission without any inkling sometimes that they even know they have the power to do a search for a skilled competent director and hire one on their own.

The three year extension for all intent and purpose puts the cultural park on the back burner thanks to Lauretta’s threats that the property will just become more of a public nuisance and the commission’s usual “fool me a hundred times, fool me a hundred-and-one times” stupidity in believing the owners will clean up the place now when they’ve refused to do so for many years.

Expect a sale of the property to another developer soon when we’ll all issue a particularly unsatisfying “we told you so”.

GETTING THE LIES OF THE LAND

GETTING THE LIES OF THE LAND: Somewhere in the bowels of the County Attorney’s office, where the special layering of confidentiality obscure all other secrets, presumably sits a hush-hush file whose surreptitiousness is of the utmost clandestine nature.

We can only presume that an examination of that file would reveal the details of not only all the reasons why the county doles out big bucks to “special counsels” in Honolulu to litigate our lawsuits, but why they lose every time.

This year however even the $1.2 million dollars appropriated in last year’s budget wasn’t enough to satisfy the beast and apparently they have already gone though that and are asking the council for an additional $300,000 to cover the overspending.

But even that may not be enough because according to the budget submitted by Mayor Bernard Carvalho they have already spent a whopping $1,575,587 this fiscal year- $75,587 more than the total they would have in the budget if Bill #2307, appropriating the $300,000, passes.

That $300,000 is just slightly less than the $337,169 spent all last year meaning for some reason we’ve spent $1,238,418 more this year than last because none of the eight attorneys in the office are competent enough. And that’s just through March 15 with certainly more to come by the June 30 end of the fiscal year

So where is all that money going? Well, that’s the biggest secret of all. Because although the council must publicly approve each expenditure “up to” a certain amount each for specific case, the information on how much is actually spent is of course, a secret.

But there are clues and one on this week’s agenda points the finger toward a common target of lawsuits- the often absurd and unruly determinations made by our various administrative boards and commissions.

These boards and commissions are the repository, not for the best and the brightest or those who benevolently give themselves to public service but rather for the most part, for hacks and cronies of the mayor who seek to at best pad their resumes or at worst make decisions to financially benefit other cronies who sit on other boards with whom they do business every day in the community.

And they do so by flouting rules- if indeed rules exist- and making quite blatant arbitrary and capricious rulings that baffle the members of the public who have experienced their handiwork and walk away with a bad taste in their mouths for so-called due processes of Kaua`i county government.

The cases in point this week are two lawsuit listed as “Claims” on this Wednesday’s county council agenda, filed against the Liquor Commission - one of the most secretive and entrenched in the county- over the denial of a liquor permit to well known local businessman James “JJ” Jasper.

According to one of two similar suits Jasper filed, the commission made their decision without any of the due process required by law- due process that should be contained in administrative rules in accordance with HRS Chapter 91 but, typically on Kaua`i don’t even exist or don’t properly- or legally- address the conduct of adjudicatory functions of many of them.

The suit paints a picture of a commission that didn’t even notify him of the hearing or the result, denied him any of the records and in fact secretly met in violation of open hearing and meeting laws. The commission then let the long time Director of the Liquor Control Eric Homna spin his tale and also act as the commissions attorney in secret executive session, and finally made their determination based solely on Homna’s contention, refusing to allow Jasper to present and cross examine witnesses or have other rights under state laws regarding contested case hearings.

This echoes the complaints of many others when interacting with the various boards and commissions.

The case of the Board of Ethics is even worse. Not only have they been operating without rules that adhere to state law for years they have actually encoded the arbitrary and capriciousness of their decision making process in the rules they do have,

They are apparently seeking to change their rules but the new draft just gives them not just the current power to make arbitrary secret decisions but the power to not even take cases or acknowledge them if they so decide. And even if they do they can suspend due processes like the ability to call witnesses and hear from the complainant when they make their decisions.

And they are currently plotting to pass the new rules without even holding the public hearing that HRS 91 requires.

The Ethics Board, as PNN has reported in the past, has been engaged in a battle to somehow ignore the provisions in the county charter in sections 20,02(d) which prohibit members of boards and commissions from appearing before other boards and commissions on behalf of private parties.

And at their last meeting, after failing to get voters to take the provision out of the charter last November, Board Chair Mark Hubbard- a Grove Farm executive- attempted to take the 20.02(D) provisions out of the “Guide to Ethics” the county publishes for it’s employees, board members and other officers at the last meeting according to Ethics Board watchdog Horace Stoessel.

No telling how much they are costing the county in lawsuits over the years but it doesn’t appear it will get any better unless new county Attorney Al Castillo reverses another of those “secret opinions” that seemingly allow the board to ignore 20.02(d) and reins in the other lawlessness.

Another den of baffling inequity is the Board of Review (BOR) which determines cases of property tax appeals.

Quite revealing was the testimony of realtor Mike Dyer and others during a recent hearing on a bill to try to change the BOR process- a bill that the council has deferred until next September when it will probably then again procrastinate long enough to make it “too late for this year” as they did last month after discussing the bill for months earlier.

Dyer described the experience he and many other have had of getting decisions denying their appeals without any rhyme or reason usually just rubber stamping the county assessor’s determination with a process that allows the BOR to arbitrarily make rulings with no supporting documentation for their decision.

That has been the common hallmark of almost all others of the adjudicatory boards and commissions on Kaua`i- decisions are made without any explanation or justification.

That has led to some of the most costly lawsuits, especially against the all powerful planning commission which has caused to county to lose three lawsuits this year and probably will again in the future unless they start documenting their decisions.

Perhaps the most infamous was the recent decision regarding the new resort in Waipouli when all they needed to do, according to a separate suit by 1000 Friends attorney Dan Hempey, was file a “finding of fact” on the issues that went into making their determination,

But instead they just make their determination without “officially” finding the facts, causing the judge in the lawsuit that followed to say the commission’s decision was voided - that after spending oodles of cash on a “special counsel” whose bungling of the case caused the county to lose out on normally routine givebacks from the developer in addition to the lawyer’s fees.

Similar was the case of the “Monkey Pod Tree” development in Koloa and the bottled water case where the incompetence of the boards and commissions caused their decisions to be voided in the courts when the usual gaggle of less than competent lawyers the county routinely hires did their usual long, drawn-out, losing job.

And you can bet more and more of these cases will be coming up as developers learn they can get what they want in court because of the incompetence of the staff in properly arming their boards and commission with competent and adequate administrative oversight- rather than the hacks and cronies who populate the offices of the departments and Mayor’s office itself- as well as representation by competent attorneys

People thought that in passing a charter amendment in 2006 establishing an office of Boards and Commissions to administrate the various entities, some semblance of competence would be established. But instead then Mayor Bryan Baptiste appointed a crony of cronies, long time county insider John Isobe to the post who continues in the job under Carvalho.

According to members of the public who watch and bull dog the various boards, Isobe has worked tirelessly to treat the public as a nuisance that must be dealt with through secrecy. treating them like the proverbial mushrooms- kept in the dark and fed plenty of manure.

Many on Kaua`i just ignore all this and think well, it doesn’t really effect them. But money changes everything and if they knew how much this attitude was costing them through lawsuits and other payoffs and paybacks to the revolving-door, chamber-of-commerce crowd, perhaps their attitude would differ.

WORST IN SHOW

WORST IN SHOW: There are Kaua`i developers and then there are Kaua`i developers.

Though they generally run the gamut from scum-sucking bottom-feeders to land-raping robber-barons occasionally they do their dirty deeds in such a dastardly, deceitfull, teeth-gnashing manner as to leave an irremovable toxic slug trail in their aftermath.

And that’s if the project goes forward- sometimes, even as we wish “good riddance to bad rubbish”, a failed con job can cause even more havoc than having to deal with paying for the needed infrastructure these grifters have managed to avoid paying for up front.

And so it was that the developers who tried to pull a fast one at Coco Palms managed to steal the nose off the faces of some equally greedy locally-based douche-bags who thought they were gonna get rich and instead got screwed.

Yesterday one of the Coco Palms developers actually dared to show his face at the planning commission meeting and ask for an extension to develop the mess they left us with even though, through their scam, we were left still holding the same bag containing the rat infested eyesore we began with.

The true story of their misdeeds has gotten little play and when we tried to sum it up last July we sort of buried it in the middle of three short pieces that day.

At the time we were spurred to report on some of the research we had done, after an article appeared in the Honolulu Advertiser about how a new developer might be seeking to take over the project.

Since then that plan apparently has died a much-desirable death but on July 3 last year we wrote:

Also in the news today is a report of a threat by whale-artist-turned-developer Wyland to buy and re-establish Coco Palms as a hotel despite recent moves to form a partnership and turn the former royal grounds into a Hawaiian cultural park and preserve the location in perpetuity (Honolulu Advertiser: Sunday, January 13, 2008 A Boost for Hawaii land preservation- link no longer available)

Given Wyland’s past reputation for lack of sensitivity to local culture it should be no surprise that he isn’t waiting to see, or more likely isn’t even aware of- the plans which have involved talks with the Office of Hawaiian affairs, legislative leaders on Kaua`i private organizations and Hawaiian cultural practitioners and activists.

But also in the article is this bit of history revision which in this case is more like the reality of the situation that caused the property to be up for sale after a recent failed development venture.

”Coco Palms Ventures, which bought the Wailua resort in 2006 for $12.3 million and put the 18.8-acre property up for sale last September, shelved plans to restore the resort made famous in Elvis Presley's film "Blue Hawaii" in favor of other projects on the East Coast and due to a slowdown in the residential resort market.

”For those who might have forgotten the “two local guys from Princeville” who were developing the property turned out to be huge Maryland based shopping center builders and land speculators Richard Weiser and Walt Petrie of the Weiser Companies, Inc. and Petrie Ventures.

When the bottom fell out of the real estate market a couple of years back their speculative development businesses there went sour and they could no longer afford their little Kaua`i venture. So to get out of it without being sued they insisted on putting in a spa in an area where they were told and knew they couldn’t develop.

Then they apparently falsely claimed that they had to abandon the project, not because they no longer had the money but because the spa was “essential” to the resort and they couldn’t go forward without it.

This put dozens of local real estate agents and others who put time and energy into selling units there not just out of business but unpaid- in many cases for more than a year of work.

Not the least of these was real estate agent and former Mayor Marianne Kusaka who, according to a very reliable source, told the source that she had to return millions of dollars in advance money when the project went belly up.

Kusaka publicly denied she was “out there looking for a commission, or looking to sell condos”. but basically ran the sales office where the sales people worked for her without getting paid after the project “fell through”.

Yet the report of the attempt to extend the expiring permits in today’s local paper says that Petrie and Weiser were nowhere to be found- possibly because their faces would have caused the usually brain-dead and memory-challenged planning commissioners to remember how they had been bamboozled a few years back.

Instead a previously unknown and unmentioned-anywhere “partner” has apparently surfaced.

The report says:

At the county Planning Commission meeting Tuesday at the Mo‘ikeha Building, Phil Ross, one of three owners of the historic property, argued the development should receive not just the two-year extension to its permits requested in a November letter but a three-year allowance due to current and future economic conditions.“Considering the economic times that we’re under today ... the available funds to move projects forward has all but dried up. Loans are not available today,” Ross said. “I believe it’s going to get worse in 2009, so I’m going to ask you for a three-year extension to this SMA.”

There are so many things wrong here it’s hard to know where to begin. We might start with the fact that the state, OHA and private native groups have been waiting patiently for the permits to expire so they can move forward with the long dreamed of Hawaiian cultural park on the former royal estate lands.

Or it could be that in the intervening years the county council and administration have failed to move to declare the dilapidated remains a public nuisance and tear it down and present a bill to the owners.

Even though some still have visions of “renovating” the old structure and “reclaiming it’s past glory” any one who’s ventured into the place recently knows what a pipe dream that is.

But the worst in all of this may be that the planning commission may not just laugh in their faces and refuse to even consider it- something that should have happened at yesterday’s meeting instead of the reported deferral keeping the matter alive for at least another two weeks.

It’s anyone’s guess whether the all-too-ready-to-capitulate commissioners have any idea that an extension here would be to ostensibly set Kaua`i back 20 years to the bad old days when there was no time limit on permits.

For those like the planning commissioners who may be in the dark, back then permits- and more importantly the zonings itself- were given out with no requirement for “substantial construction” to begin by a specific date.

So what happened was that developers would sit on their permits for 5, 10, 20 or even 30 years.

While the we-aim-to-please commission and planning department started to approve any and all manner of new development it combined with the already approved projects that were languishing with no time limit to cause a double-whammy and plethora of post-`Iniki concurrent development.

During the last 10-15 years that’s basically what’s caused Po`ipu to experience a man-made dust and noise storm and turned Kuhio Highway in Kapa`a into a parking lot.

When it’s all done it will have provided even more of the current “way too much” in the way of tourist accommodations with way too little infrastructure- roads, sewers, housing etc.- to support it.

The public started to notice the mess- especially around re-election time- during the late 90’s and early 00’s. But the answer they got from the entrenched councilmembers was that none of this was their faults since past councils and planning commissions had never bothered to put in conditions that would sunset the permit or zoning if “substantial construction” was not begun within five years .

And though it took many years of sometimes acrimonious nudging from the public to actually move on it, the council and department/ commission finally started putting in 5 year limits on most projects’ zoning and zoning permits respectively.

If there is such a thing as smart growth- something we’re beginning to doubt these days- then there certainly must be dumb growth. And if there ever was a poster child for dumb growth it would be an extension of the right for these sleezoids to develop Coco Palms.

DOWN IN THE DARK MY BONE MILL ROLLS

DOWN IN THE DARK MY BONE MILL ROLLS: From yesterday’s Kaua`i Burial Council meeting comes news via the local newspaper that ding-dong the wicked witch has resigned the chair because “life’s too short to put up with some of the things we put up with at the burial council.”

An odd choice of words indeed from Mark “Ainokea” Hubbard, the post around which the current revolving door of cronyism in Kaua`i government revolves, as we’ve detailed.

He has given up his post saying

“I was willing to run the meetings, but it’s not good to have a haole as the chair. You need to have a Hawaiian, a kupuna, to command some respect,” Hubbard said. “People were looking at council with disrespect just because I was the chair.”

Gee, ya think?

The fact is disrespect for Hubbard goes a lot deeper than his ethnicity- a contempt he has earned though his disrespectful actions toward the Kanaka community as well as the community at large.

The veep at Grove Farm- the old land-robbing plantation outfit that has been a prime actor in the genocide of the Hawaiian people for a century- still sits at the head of the Kaua`i (Lack of any Discernable) Ethics Board where he has refused to enforce the ethics law.

He actually tried to change the charter to allow him and his cronies to openly abuse their positions on the various board commissions and the county council this year.

But the defeat of the measure guarantees... well probably nothing.

Hubbard and his gang of disingenuous dullards are so bored of ethics that they have feigned ignorance- and of course have refused to release a county attorney’s opinion- as to what the law means when it says members of boards and commissions can’t represent private interests before other boards, commissions and administrative agencies

Despite Hubbard’s contention that the law is “too broad” and would cause those who serve to not be able to get a drivers’ license he schizophrenically admitted that the clause actually did do something by proposing an amendment to remove the clause from the charter that forbids conflicts.

The board actually cleared another good old boy, attorney Jonathan Chun- the chair of the Charter Commission that approved the proposed charter change- of ethics charges for extensively representing the Board of Realtors before the county council on the vacation rental bill earlier this year.

But despite the re-iteration of the law by the populace don’t expect Hubbard to change his ways should any complaint be filed when Chun appears before the Planning Commission at next week’s meeting representing another client

The Burial Council meeting itself was apparently an affair to remember in Hubbard’s absence, according to reporter Joan Conrow who described some real shenanigans in the infamous “capping” of the Naue kupuna iwi.

Apparently Mike Dega, the head of the contracted “archeological field crew”- i.e. construction workers- took it upon themselves to put a concrete slab over the ancestral bones, saying neither he nor state Archeologist Nancy McMahon approved the measure.

The real news- perhaps the only good thing in all of this- is that the cap, which from previous descriptions of the process we concluded actually encased the bones, was rather what was described as something similar to a “sewer cover” three feet above the bones which could be removed without disturbing the actual iwi.

But the unbelievable insensitivity in the description of the “caps” aside it remains to be seen if the Planning Commission will withdraw the permits because apparently Burial Council “approval” is one of the conditions for the “house” that developer Joe Brescia is trying to build on top of the cemetery.

One thing that seems to stick out like a skeletal hand reaching out from the ground is that the Planning Commission condition gives actual power to the Burial Council while the state- which created the body- treats them as advisory.

There doesn’t seem to be any law or rule against a county agency giving a state advisory council actual power for county purposes. But, according to the newspaper article Planning Commission Chair Steve Weinstein “(e)ven a violation would not guarantee revocation, as other mitigation measures can be considered.”

Translation? “We’ll probably do what we do whenever someone does something illegal- we’ll allow them to do it anyway if it’s in our power to do so- and sometimes even if it’s not.”

Another question is, based on our analysis yesterday of the new General Plan enforcement charter provision, one the planning department hasn’t dealt with at all- is Brescia’s “house” a “tourist accommodation” that would fall under the new law taking the power of approval away from the Planning Department?

If so, the processing of anything having to do with it should cease immediately if it is to comply with the law.

Although Brescia claims it is merely a huge single family residence Brescia’s other “houses” in the area have been serving as vacation rentals for years.

of course that presumes that anyone in Kaua`i county government even cares whether their activities meet legal requirements and standards..

As our friend Ace commented yesterday

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".

Just more porridge to fill the Minotaur’s bowl.

CHOKE ON IT

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.