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.
Showing posts with label TVRs. Show all posts
Showing posts with label TVRs. Show all posts
Tuesday, July 19, 2011
Friday, January 7, 2011
(PNN) OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT
OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT
(PNN) -- The Office of Information Practices has ruled that Kaua`i Council Chair Jay Furfaro did not violate the Sunshine Law because, according to County Clerk Peter Nakamura, a letter to fellow councilpersons discussing and soliciting support for a draft bill was never sent.
But OIP Acting Director Cathy L. Takase said that if Furfaro’s letter “had been circulated to all members, it would constitute a discussion of the Board’s ‘official business’ in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill.”
The bill- one that would have allowed Transient Vacation Rentals (TVRs) on agricultural lands via “non-enforcement agreements”- and cover letter in question first appeared in a since-removed blog post by local real estate agent Ronnie Margolis in December of 2008.
When PNN published the letter with allegations of a Sunshine Law violation on Friday, December 19, 2008 the OIP opened a case (S INVES-P 09-5) and in January sent a letter asking Furfaro for a response.
But instead of Furfaro responding personally, in February Nakamura wrote a letter defending Furfaro claiming that the letter in question was never sent to councilmembers. The letter also included a defense saying that even if he did send the letter the contents weren’t in violation of the law.
The OIP’s “Memorandum Opinion,” addressed to PNN’s Editor/Publisher/Reporter Andy Parx, does not indicate whether the councilpersons who were listed as recipients of the letter were asked if they received it.
The opinion begins by noting the “Request for Investigation” saying
Requester asked for an investigation into whether a violation of the Sunshine Law occurred based upon the distribution of a letter dated November 28, 2008 from then Vice Chair Jay Furfaro to the remaining members of the Kauai County Council concerning a bill proposing amendments to Kauai County Ordinance No. 864.
It then states the simple “Opinion” stating that
Based upon representations made on behalf of Vice Chair Furfaro and the Council, OIP finds that no violation occurred.
The “Statement of Reasons for Opinion” goes on to say:
In response to OIP’s request, Kauai County Clerk Peter Nakamura provided a response to Requester’s complaint on behalf of Vice Chair Furfaro and the Council. Specifically, Mr. Nakamura stated that the November 28th letter was a draft letter that was never signed nor circulated to the members. Mr. Nakamura further states that, as evidenced by your complaint, this draft transmittal was somehow obtained by the public. We note that the copy you provided to OIP is unsigned, which is consistent with this statement. Accordingly, we find no substantiation for your complaint of violation.
It is interesting to note that the OIP did not address an issue raised by PNN regarding the use of the media, including on-line posting, to attempt to circumvent the prohibitions in the Sunshine Law. The representation that the “draft transmittal was somehow (emphasis added) obtained by the public” though it is consistent with the fact that Margolis never stated unequivocally from whom he obtained the bill and letter.
As to who actually did receive the letter, the opinion says that
Mr. Nakamura did state that the Council Chair alone was provided a copy of the draft “transmittal” letter and draft bill, in accordance with the Council’s standing practice, to consider approval for inclusion on the Council’s meeting agenda.
Disclosure to the Chair alone would not violate the Sunshine Law because discussion between two Council members is allowed under the two-member permitted interaction. See HRS § 92-2.5(a).
But then the memo gets to the heart of the matter.
Furfaro has stated that he has been engaged with the OIP over the past two years- and says he spent $1700 in the process- trying to establish a defense basically saying that even if it was sent it didn’t violate the law.
But the OIP disagreed setting a precedent and sending a message to Furfaro that this kind of communication is illegal.
Takase wrote:
We note, however, that given the content of the ‘transmittal” letter, we believe that if it had been circulated to all members, it would constitute a discussion of the Board’s ‘official business” in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill. It specifically discusses the content of the draft bill and reasons why it should be adopted. A member’s expression of his or her views to other members on “official business” constitutes a prohibited discussion outside of a meeting regardless of whether the other members are physically present to hear an oral communication of those views or receive those views through other means, including through written correspondence. OIP Op. Ltr. No. 04-0 1 (position statements circulated and signed by members constituted discussions and voting outside of a meeting in violation of the Sunshine Law); HRS § 92-5(b)(no electronic communication shall be used to circumvent the spirit or requirements of this part to deliberate upon board business).
The opinion concludes by describing the “Right to Bring Suit to Enforce Sunshine Law and to Void Board Action” saying:
Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. HRS § 92-12. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.
Where a final action of a board was taken in violation of the open meeting and notice requirements of the Sunshine Law, that action may be voided by the court. HRS § 92-11. A suit to void any final action must be commenced within ninety days of the action.
The original letter was addressed to the following councilmembers :
Mel Rapozo
Tim Bynum
Ronald D. Kouchi
Shaylene Iseri-Carvalho
Daryl W. Kaneshiro
Joann A. Yukimura
Thus far none have confirmed or denied receiving Furfaro’s cover letter. PNN plans no court action unless one or more of them come forward to say he or she received the letter from Furfaro.
(PNN) -- The Office of Information Practices has ruled that Kaua`i Council Chair Jay Furfaro did not violate the Sunshine Law because, according to County Clerk Peter Nakamura, a letter to fellow councilpersons discussing and soliciting support for a draft bill was never sent.
But OIP Acting Director Cathy L. Takase said that if Furfaro’s letter “had been circulated to all members, it would constitute a discussion of the Board’s ‘official business’ in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill.”
The bill- one that would have allowed Transient Vacation Rentals (TVRs) on agricultural lands via “non-enforcement agreements”- and cover letter in question first appeared in a since-removed blog post by local real estate agent Ronnie Margolis in December of 2008.
When PNN published the letter with allegations of a Sunshine Law violation on Friday, December 19, 2008 the OIP opened a case (S INVES-P 09-5) and in January sent a letter asking Furfaro for a response.
But instead of Furfaro responding personally, in February Nakamura wrote a letter defending Furfaro claiming that the letter in question was never sent to councilmembers. The letter also included a defense saying that even if he did send the letter the contents weren’t in violation of the law.
The OIP’s “Memorandum Opinion,” addressed to PNN’s Editor/Publisher/Reporter Andy Parx, does not indicate whether the councilpersons who were listed as recipients of the letter were asked if they received it.
The opinion begins by noting the “Request for Investigation” saying
Requester asked for an investigation into whether a violation of the Sunshine Law occurred based upon the distribution of a letter dated November 28, 2008 from then Vice Chair Jay Furfaro to the remaining members of the Kauai County Council concerning a bill proposing amendments to Kauai County Ordinance No. 864.
It then states the simple “Opinion” stating that
Based upon representations made on behalf of Vice Chair Furfaro and the Council, OIP finds that no violation occurred.
The “Statement of Reasons for Opinion” goes on to say:
In response to OIP’s request, Kauai County Clerk Peter Nakamura provided a response to Requester’s complaint on behalf of Vice Chair Furfaro and the Council. Specifically, Mr. Nakamura stated that the November 28th letter was a draft letter that was never signed nor circulated to the members. Mr. Nakamura further states that, as evidenced by your complaint, this draft transmittal was somehow obtained by the public. We note that the copy you provided to OIP is unsigned, which is consistent with this statement. Accordingly, we find no substantiation for your complaint of violation.
It is interesting to note that the OIP did not address an issue raised by PNN regarding the use of the media, including on-line posting, to attempt to circumvent the prohibitions in the Sunshine Law. The representation that the “draft transmittal was somehow (emphasis added) obtained by the public” though it is consistent with the fact that Margolis never stated unequivocally from whom he obtained the bill and letter.
As to who actually did receive the letter, the opinion says that
Mr. Nakamura did state that the Council Chair alone was provided a copy of the draft “transmittal” letter and draft bill, in accordance with the Council’s standing practice, to consider approval for inclusion on the Council’s meeting agenda.
Disclosure to the Chair alone would not violate the Sunshine Law because discussion between two Council members is allowed under the two-member permitted interaction. See HRS § 92-2.5(a).
But then the memo gets to the heart of the matter.
Furfaro has stated that he has been engaged with the OIP over the past two years- and says he spent $1700 in the process- trying to establish a defense basically saying that even if it was sent it didn’t violate the law.
But the OIP disagreed setting a precedent and sending a message to Furfaro that this kind of communication is illegal.
Takase wrote:
We note, however, that given the content of the ‘transmittal” letter, we believe that if it had been circulated to all members, it would constitute a discussion of the Board’s ‘official business” in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill. It specifically discusses the content of the draft bill and reasons why it should be adopted. A member’s expression of his or her views to other members on “official business” constitutes a prohibited discussion outside of a meeting regardless of whether the other members are physically present to hear an oral communication of those views or receive those views through other means, including through written correspondence. OIP Op. Ltr. No. 04-0 1 (position statements circulated and signed by members constituted discussions and voting outside of a meeting in violation of the Sunshine Law); HRS § 92-5(b)(no electronic communication shall be used to circumvent the spirit or requirements of this part to deliberate upon board business).
The opinion concludes by describing the “Right to Bring Suit to Enforce Sunshine Law and to Void Board Action” saying:
Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. HRS § 92-12. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.
Where a final action of a board was taken in violation of the open meeting and notice requirements of the Sunshine Law, that action may be voided by the court. HRS § 92-11. A suit to void any final action must be commenced within ninety days of the action.
The original letter was addressed to the following councilmembers :
Mel Rapozo
Tim Bynum
Ronald D. Kouchi
Shaylene Iseri-Carvalho
Daryl W. Kaneshiro
Joann A. Yukimura
Thus far none have confirmed or denied receiving Furfaro’s cover letter. PNN plans no court action unless one or more of them come forward to say he or she received the letter from Furfaro.
Friday, July 30, 2010
DON’T IT ALWAYS SEEM TO GO?
DON’T IT ALWAYS SEEM TO GO?: Well we might as well make a week of it.
After watching the disgusting display of lies and half truths as well as the attempts to complicate a simple matter in order to undo a previous attempt to legalize the illegal we’ll attempt to wrap it up with a “fact sheet” on the recently passed transient vacation rentals (TVRs) bill to refute many of the statements made by councilmembers on Wednesday.
First, the simple story which we’ve presented a few times regarding the legal issues.
Under state law HRS 205-6, “Special permit”:
(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.
This has always been the case even before the Kobayashi opinion and all through the years leading up to the passage of Ordinance 864 on March 7, 2008.
However no one- not anyone with a TVR on residential or ag land- has ever applied for, much less received one. Under questioning Wednesday two deputy county attorneys verified both the availability and lack of applications.
Therefore no one had a legally operating TVR previous to March 7, 2008 when the ordinance attempted to legalize existing TVRs- ones that had been operating without special use permits- in the residentially zoned land by creating a process for “grandfathering” them while banning new ones.
Wednesday’s law allowed TVR owners on agriculturally zoned land to apply for permits once again even though they had essentially been cut off on March 7, 2008 when none were legally operating with a special use permit from the planning commission.
Many councilmembers have attempted to make an issue of a case note on HRS 46-4 (all the way at the bottom).
It says:
"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.
Both county attorneys and councilmembers who cite this note on “county zoning” procedures and “grandfathering” often conflate building codes, which may not be used to amortize or phase out uses, and zoning issues which may be used to deny grandfathering.
The lack of a special use permit is a undoubtedly a zoning violation not a building code violation and this is the key point that makes the claim that this section requires the gutting of 864 and the establishment of a process for ag land TVRs, at best a mistaken notion at worst a disingenuous falsehood.
Don’t forget- it isn’t the structure that is illegal, it’s the use of the structure for a TVR without a special use permit that violates the law.
Based on this let’s look at some of Wednesday’s statements and their veracity. For our purposes half-truths and equivocal statements to convey confusion are considered false
1) This bill will not create any new TVRs
False. There are no existing TVRs because TVRs require a special use permit and, according to both planning and the county attorney’s office there are no permits. Though the structures exist the TVR status does not. Any that are approved now will therefore be “new”
2) This bill does not legalize TVRs on ag lands
False. Since there never were any legal TVRs on ag land and ordinance 864 essentially ended the possibility of obtaining new special use permits, if any permits are approved now there will be “new” TVRs on ag land. Without that permit they have always been in illegal use and should and could have been shut down by the planning department. In that they were illegal before the bill passed it does indeed “legalize” the use if the owners follow the special use permit.
3) This is about fairness
False. For years these TVRs have been operating illegally without special use permits, fouling residential neighborhoods and creating nuisances and taking agricultural lands out of farming, jacking up land values and driving legitimate farmers off their farms. In addition those who played by the rules are now shut out of being able to hold onto their farms with truly “accessory to farming” overnight accommodations under a legitimate ag tourism plan.
4) All we are doing is providing for due process
False. Due process must be “due” under law. The ag land TVR owners were provided due process until March 7 2008 and did not take advantage of it.
5) The planning department can be counted on to provide stringent oversight and the planning commission will reject most of them especially the more egregious of ag land TVRs.
False. The planning department under Director Ian Costa made a joke of Ordinance 864 approving residential TVRs willy-nilly in batches without required inspections, making the public scrutiny part of the process all but impossible to accomplish in a timely manner. The commission just approved a massive mansion as a “farm dwelling” recently and even joked about it. The true joke is the notion that the planning commission will provide tight scrutiny.
6) Passage of the bill will prevent lawsuits.
False. What they will do is prevent the “deep pocket” suits developers will file and substitute members of the public as plaintiffs. That makes the decision a purely financial one based on a knuckling under to extortion. If the county wanted to save money they should have brought this to the courts many years ago by shutting down the TVRs outside the visitor destination areas, waiting for one to sue and defending the suit. They could still do that today but rather than protect the public’s right to determine land use they have made a purely financial decision. And they still will most likely get sued when the first TVR on ag land is rejected by the planning commission, assuming the county attorneys allow the commission to do so and don’t try to similarly scare them with the possibility of a lawsuit should they reject a permit application.
There are probably others less consequential and political in nature but we’ll leave it there.
This will be our last word on this for a while- we hope... at least until the permits start being processed. But while we’ll move on to the next issue many others will not.
Perhaps worse than the result is the feeling among many who have become active and participated in the debacle of a process that they won’t ever bother getting involved in another issue because it’s simply too draining when we lose out to big money just because that money talks in county government.
Their future apathy is the real loss here.
After watching the disgusting display of lies and half truths as well as the attempts to complicate a simple matter in order to undo a previous attempt to legalize the illegal we’ll attempt to wrap it up with a “fact sheet” on the recently passed transient vacation rentals (TVRs) bill to refute many of the statements made by councilmembers on Wednesday.
First, the simple story which we’ve presented a few times regarding the legal issues.
Under state law HRS 205-6, “Special permit”:
(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.
This has always been the case even before the Kobayashi opinion and all through the years leading up to the passage of Ordinance 864 on March 7, 2008.
However no one- not anyone with a TVR on residential or ag land- has ever applied for, much less received one. Under questioning Wednesday two deputy county attorneys verified both the availability and lack of applications.
Therefore no one had a legally operating TVR previous to March 7, 2008 when the ordinance attempted to legalize existing TVRs- ones that had been operating without special use permits- in the residentially zoned land by creating a process for “grandfathering” them while banning new ones.
Wednesday’s law allowed TVR owners on agriculturally zoned land to apply for permits once again even though they had essentially been cut off on March 7, 2008 when none were legally operating with a special use permit from the planning commission.
Many councilmembers have attempted to make an issue of a case note on HRS 46-4 (all the way at the bottom).
It says:
"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.
Both county attorneys and councilmembers who cite this note on “county zoning” procedures and “grandfathering” often conflate building codes, which may not be used to amortize or phase out uses, and zoning issues which may be used to deny grandfathering.
The lack of a special use permit is a undoubtedly a zoning violation not a building code violation and this is the key point that makes the claim that this section requires the gutting of 864 and the establishment of a process for ag land TVRs, at best a mistaken notion at worst a disingenuous falsehood.
Don’t forget- it isn’t the structure that is illegal, it’s the use of the structure for a TVR without a special use permit that violates the law.
Based on this let’s look at some of Wednesday’s statements and their veracity. For our purposes half-truths and equivocal statements to convey confusion are considered false
1) This bill will not create any new TVRs
False. There are no existing TVRs because TVRs require a special use permit and, according to both planning and the county attorney’s office there are no permits. Though the structures exist the TVR status does not. Any that are approved now will therefore be “new”
2) This bill does not legalize TVRs on ag lands
False. Since there never were any legal TVRs on ag land and ordinance 864 essentially ended the possibility of obtaining new special use permits, if any permits are approved now there will be “new” TVRs on ag land. Without that permit they have always been in illegal use and should and could have been shut down by the planning department. In that they were illegal before the bill passed it does indeed “legalize” the use if the owners follow the special use permit.
3) This is about fairness
False. For years these TVRs have been operating illegally without special use permits, fouling residential neighborhoods and creating nuisances and taking agricultural lands out of farming, jacking up land values and driving legitimate farmers off their farms. In addition those who played by the rules are now shut out of being able to hold onto their farms with truly “accessory to farming” overnight accommodations under a legitimate ag tourism plan.
4) All we are doing is providing for due process
False. Due process must be “due” under law. The ag land TVR owners were provided due process until March 7 2008 and did not take advantage of it.
5) The planning department can be counted on to provide stringent oversight and the planning commission will reject most of them especially the more egregious of ag land TVRs.
False. The planning department under Director Ian Costa made a joke of Ordinance 864 approving residential TVRs willy-nilly in batches without required inspections, making the public scrutiny part of the process all but impossible to accomplish in a timely manner. The commission just approved a massive mansion as a “farm dwelling” recently and even joked about it. The true joke is the notion that the planning commission will provide tight scrutiny.
6) Passage of the bill will prevent lawsuits.
False. What they will do is prevent the “deep pocket” suits developers will file and substitute members of the public as plaintiffs. That makes the decision a purely financial one based on a knuckling under to extortion. If the county wanted to save money they should have brought this to the courts many years ago by shutting down the TVRs outside the visitor destination areas, waiting for one to sue and defending the suit. They could still do that today but rather than protect the public’s right to determine land use they have made a purely financial decision. And they still will most likely get sued when the first TVR on ag land is rejected by the planning commission, assuming the county attorneys allow the commission to do so and don’t try to similarly scare them with the possibility of a lawsuit should they reject a permit application.
There are probably others less consequential and political in nature but we’ll leave it there.
This will be our last word on this for a while- we hope... at least until the permits start being processed. But while we’ll move on to the next issue many others will not.
Perhaps worse than the result is the feeling among many who have become active and participated in the debacle of a process that they won’t ever bother getting involved in another issue because it’s simply too draining when we lose out to big money just because that money talks in county government.
Their future apathy is the real loss here.
Thursday, July 29, 2010
NOT BUT WITH A WHIMPER
NOT BUT WITH A WHIMPER: As if there was any doubt as to the outcome or the specifics the council passed an even more loophole ridden version of the TVR bill yesterday with (predictably) Dickie Chang and (disappointingly but not unpredictably) Lani Kawahara joining Jay Furfaro, Darryl Kaneshiro and bill author Tim Bynum voting “yea” and Derrick Kawakami and Chair Kaipo Asing voting in the negatory.
That information comes no thanks to the lazy dullard on the government beat at the local newspaper who apparently couldn’t stay up as late enough to file a story on the all important vote but Joan Conrow who “juggled work with time in the Council Chambers to see for myself how the vote on the transient vacation rental (TVR) bill went down,” filed her post at 11:16 last night.
The added poison to the already toxic legislation says, according to Conrow:
you don’t actually have to be engaged in bonafide farming, as evidenced by tax returns, to get approval for your TVR on agricultural land. You can still get a permit if the planning commission finds intensive agriculture is prohibited by the shape, size, topography, surrounding land uses OR — and this is today’s big giveaway — for any other reason.
And as far as “Mr. Wala`au”, also predictably Joan quoted Dickie Chang as saying “(w)hether it’s right or wrong, we need to move forward” saying that apparently “that answers the question of whether his private pau hana briefing by beer-bearing county attorneys had any effect on his decision. 'Cause he was against the bill before that little meeting.”
But the big question is whether this will really be the political game changer many are predicting.
There is palpable fury over this bill among not just the usual suspects but those who ordinarily don’t give politics a second thought except for every two years in November.
Many felt that they were sold down the river when the grandfathering bill was passed but thought that the restrictions and difficulty of the process- replete with provisions for public scrutiny- would serve to phase out the existing TVRs in residential areas.
But not only did the corrupt planning department refuse to follow the guidelines but the planning commission didn’t seem to care. And now instead of seeking to strengthen the bill the council has essentially torn it up and thrown in a plum giving the most egregious illegality- those TVRs on ag- a path to legality to boot.
Other than those who stand to gain financially it’s hard to find anyone- even among those who ordinarily support the land rape of Kaua`i- who has supported the mess.
So how will this shake out- or shake up Kaua`i politics?
The questions are first, will this be the end of the political careers of Furfaro and more importantly Bynum as many have vowed to make it and on the flip side will the animosity over Asing’s reign of terror and the disappointment over the misplaced hopes some had for Kawakami last election be negated by their somewhat meaningless votes?
Furfaro’s popularity has always been an enigma. But his vote wasn’t disappointing anyone. His unflinching support for tourism development has always been a hallmark of his tenure on the council. But his growing pomposity and ego driven bombast recently has become more and more irritating, at least for those who catch it on TV.
Is the anti incumbent feeling this year enough to push him out? Don’t count on it.
Bynum is the big question mark. Before the TVR debacle his growing popularity in supporting what was seen as Kawahara’s push for openness and free-flowing information allowed him to ride her ample coattails which many predicted would lead her near or to the top of the polling this year.
But with Kawahara out of the race after being beaten to a bloody pulp by the likes of Asing, Kawakami and Kaneshiro voters may not put as much stock in the need for Bynum’s “second” to what was perceived, rightly or wrongly, as the fight her “new blood” introduced into the council dynamic.
With “his” TVR bill, as well as other votes that are seen as hypocritical of his words on sustainability and land use in general, that may well be the defining issue upon which Bynum’s continued incumbency depends.
That leads to Chang who slipped in last time due to name recognition alone. But really his victory in ’08 was a numbers game- one that may again be the more important factor this November.
With two “vacancies” in ’08 there was a dearth of viable candidates to fill the two slots other than Kawahara. A virtual unknown, Kipukai Kuali`i even came close without any endorsements from the progressives that a social workers and organizer might have gotten if organizations like the Sierra Club- and admittedly observers like us- hadn’t put all their eggs in the Kawahara basket.
This year is quite the opposite. The two who created the vacancies- Mel Rapozo ad JoAnn Yukimura who both ran for mayor and lost- are back and are virtual shoo-ins for election.
But other than Nadine Nakamura- who despite having some good buzz is still is a question mark due to the wariness people have over her profession as a “planner”, which on Kaua`i may be a dirty word- and Rolf Bieber who has made a name for himself in taking on the administration and the corrupt ethics commission, viable candidates are few and far between.
Given Chang's negatives after two years of cluelessness Nakamura stands to take advantage and move into his slot.
But that may all be moot if Asing or Kawakami- or both- fall out of the top seven something that, although unlikely if you look at past elections, may be possible in a year when disgust with council incumbents has made dents in their usual bases of support.
The question for Furfaro and Bynum may not be their negatives as much as how effective a charge Bieber or Kuali`i can make and how far the once mighty have fallen.
We have few illusions. To quote John Lennon- and perhaps explain Kawahara’s decision that she’d had enough-
There’s room at the top they keep telling you still
But first you must learn to smile as you kill
A working class hero is something to be
That information comes no thanks to the lazy dullard on the government beat at the local newspaper who apparently couldn’t stay up as late enough to file a story on the all important vote but Joan Conrow who “juggled work with time in the Council Chambers to see for myself how the vote on the transient vacation rental (TVR) bill went down,” filed her post at 11:16 last night.
The added poison to the already toxic legislation says, according to Conrow:
you don’t actually have to be engaged in bonafide farming, as evidenced by tax returns, to get approval for your TVR on agricultural land. You can still get a permit if the planning commission finds intensive agriculture is prohibited by the shape, size, topography, surrounding land uses OR — and this is today’s big giveaway — for any other reason.
And as far as “Mr. Wala`au”, also predictably Joan quoted Dickie Chang as saying “(w)hether it’s right or wrong, we need to move forward” saying that apparently “that answers the question of whether his private pau hana briefing by beer-bearing county attorneys had any effect on his decision. 'Cause he was against the bill before that little meeting.”
But the big question is whether this will really be the political game changer many are predicting.
There is palpable fury over this bill among not just the usual suspects but those who ordinarily don’t give politics a second thought except for every two years in November.
Many felt that they were sold down the river when the grandfathering bill was passed but thought that the restrictions and difficulty of the process- replete with provisions for public scrutiny- would serve to phase out the existing TVRs in residential areas.
But not only did the corrupt planning department refuse to follow the guidelines but the planning commission didn’t seem to care. And now instead of seeking to strengthen the bill the council has essentially torn it up and thrown in a plum giving the most egregious illegality- those TVRs on ag- a path to legality to boot.
Other than those who stand to gain financially it’s hard to find anyone- even among those who ordinarily support the land rape of Kaua`i- who has supported the mess.
So how will this shake out- or shake up Kaua`i politics?
The questions are first, will this be the end of the political careers of Furfaro and more importantly Bynum as many have vowed to make it and on the flip side will the animosity over Asing’s reign of terror and the disappointment over the misplaced hopes some had for Kawakami last election be negated by their somewhat meaningless votes?
Furfaro’s popularity has always been an enigma. But his vote wasn’t disappointing anyone. His unflinching support for tourism development has always been a hallmark of his tenure on the council. But his growing pomposity and ego driven bombast recently has become more and more irritating, at least for those who catch it on TV.
Is the anti incumbent feeling this year enough to push him out? Don’t count on it.
Bynum is the big question mark. Before the TVR debacle his growing popularity in supporting what was seen as Kawahara’s push for openness and free-flowing information allowed him to ride her ample coattails which many predicted would lead her near or to the top of the polling this year.
But with Kawahara out of the race after being beaten to a bloody pulp by the likes of Asing, Kawakami and Kaneshiro voters may not put as much stock in the need for Bynum’s “second” to what was perceived, rightly or wrongly, as the fight her “new blood” introduced into the council dynamic.
With “his” TVR bill, as well as other votes that are seen as hypocritical of his words on sustainability and land use in general, that may well be the defining issue upon which Bynum’s continued incumbency depends.
That leads to Chang who slipped in last time due to name recognition alone. But really his victory in ’08 was a numbers game- one that may again be the more important factor this November.
With two “vacancies” in ’08 there was a dearth of viable candidates to fill the two slots other than Kawahara. A virtual unknown, Kipukai Kuali`i even came close without any endorsements from the progressives that a social workers and organizer might have gotten if organizations like the Sierra Club- and admittedly observers like us- hadn’t put all their eggs in the Kawahara basket.
This year is quite the opposite. The two who created the vacancies- Mel Rapozo ad JoAnn Yukimura who both ran for mayor and lost- are back and are virtual shoo-ins for election.
But other than Nadine Nakamura- who despite having some good buzz is still is a question mark due to the wariness people have over her profession as a “planner”, which on Kaua`i may be a dirty word- and Rolf Bieber who has made a name for himself in taking on the administration and the corrupt ethics commission, viable candidates are few and far between.
Given Chang's negatives after two years of cluelessness Nakamura stands to take advantage and move into his slot.
But that may all be moot if Asing or Kawakami- or both- fall out of the top seven something that, although unlikely if you look at past elections, may be possible in a year when disgust with council incumbents has made dents in their usual bases of support.
The question for Furfaro and Bynum may not be their negatives as much as how effective a charge Bieber or Kuali`i can make and how far the once mighty have fallen.
We have few illusions. To quote John Lennon- and perhaps explain Kawahara’s decision that she’d had enough-
There’s room at the top they keep telling you still
But first you must learn to smile as you kill
A working class hero is something to be
Wednesday, July 28, 2010
BUST
BUST: After Joan Conrow’ report yesterday regarding the triple-teaming full court press by County Attorney Al Castillo’s deputies, it wasn’t surprising that the recipient of the home visit, Dickie Chang, called her at a quarter to seven this morning to give what she called his side of the story.
But as usual, Dickie’s motor mouth probably only got him in deeper kim chee and, perhaps unintentionally, telegraphed his vote.
The usually clueless Chang didn’t disappoint. Right off the bat he told Joan:
“It is true that the attorneys came over, but I didn’t think it was wrong," Dickie said. "I talked to the Chair [Kaipo Asing] about it. I told Jay [Furfaro]. I told everyone. They had their concerns, but I didn’t think I did anything wrong....
“I understand the sunshine law as it pertains to Council members. I just felt it [the meeting with attorneys] was harmless. Maybe that has something to do with my inexperience, but I am entitled to ask an attorney for their opinion.”
You do understand it Dickie? Apparently not since you were even warned by Furfaro and Asing- who are usually sunshine law challenged themselves- but went ahead with the meeting anyway.
Apparently Chang suspected and sensed something was wrong but blew off concerns, not even checking with the Office of Information Practices (OIP) to find out.
But perhaps more revealing is this quote:
“People need to understand this is normal within the county. Anybody can call and within six hours ask you to meet for an appointment. And when an agenda item is up for a vote, Public Works can call to meet with us, Planning, Public Safety.
As we said yesterday many suspect that the ban on “serial” communications to avoid the sunshine law’s prohibition of three or more councilmembers from deliberating toward a decision (outside the confines of a duly agendaed item at a meeting) is flouted all the time by councilmembers without a second thought.
But Chang confirms that this is “normal within the county”, explaining why many times items come up and every councilperson is already “on the same page” having essentially discussed the item via third parties in the administration.
Another quote was quite the head-scratcher. Asked about Mel Rapozo’s request for an investigation we reported yesterday.
“I don’t believe I did anything wrong and I don’t know what an investigation would uncover,” he said. “They weren’t trying to influence me, they were not influencing me, they were not telling me how to vote."
Then what the heck were they there for? To watch American Idol?
Either Dickie is too naive to know when he’s being lobbied and “influenced” or the trio just happened to call, stop by and get into a discussion of the bill.
What is it with these people that makes them seemingly incapable of adhering to the spirit – or sometimes letter- of the sunshine law and doing intra-county business in an open meeting in full public view?
Chang by the way has once again claimed that, for purposes of the ballot this year again. his nickname- according to law the name he is commonly called- is coincidentally the name of his business, “Wala`au”,
Finally his last quote reveals how he will vote today if the matter isn’t deferred again.
"I'm pissed off about this issue [vacation rentals] and a lot of other people are, too. But there needs to be a process. We've stopped the bleeding, but now we've got to set things right. It's like BP. You cap the well, but you've still got to clean up the mess. So we'll see how it goes today at Council."
Set things right?
Well, maybe it is like the gulf spill because if the bill is passed it will be a gusher of abuse of process and law, polluting the north shore and other areas for perhaps decades to come.
But as usual, Dickie’s motor mouth probably only got him in deeper kim chee and, perhaps unintentionally, telegraphed his vote.
The usually clueless Chang didn’t disappoint. Right off the bat he told Joan:
“It is true that the attorneys came over, but I didn’t think it was wrong," Dickie said. "I talked to the Chair [Kaipo Asing] about it. I told Jay [Furfaro]. I told everyone. They had their concerns, but I didn’t think I did anything wrong....
“I understand the sunshine law as it pertains to Council members. I just felt it [the meeting with attorneys] was harmless. Maybe that has something to do with my inexperience, but I am entitled to ask an attorney for their opinion.”
You do understand it Dickie? Apparently not since you were even warned by Furfaro and Asing- who are usually sunshine law challenged themselves- but went ahead with the meeting anyway.
Apparently Chang suspected and sensed something was wrong but blew off concerns, not even checking with the Office of Information Practices (OIP) to find out.
But perhaps more revealing is this quote:
“People need to understand this is normal within the county. Anybody can call and within six hours ask you to meet for an appointment. And when an agenda item is up for a vote, Public Works can call to meet with us, Planning, Public Safety.
As we said yesterday many suspect that the ban on “serial” communications to avoid the sunshine law’s prohibition of three or more councilmembers from deliberating toward a decision (outside the confines of a duly agendaed item at a meeting) is flouted all the time by councilmembers without a second thought.
But Chang confirms that this is “normal within the county”, explaining why many times items come up and every councilperson is already “on the same page” having essentially discussed the item via third parties in the administration.
Another quote was quite the head-scratcher. Asked about Mel Rapozo’s request for an investigation we reported yesterday.
“I don’t believe I did anything wrong and I don’t know what an investigation would uncover,” he said. “They weren’t trying to influence me, they were not influencing me, they were not telling me how to vote."
Then what the heck were they there for? To watch American Idol?
Either Dickie is too naive to know when he’s being lobbied and “influenced” or the trio just happened to call, stop by and get into a discussion of the bill.
What is it with these people that makes them seemingly incapable of adhering to the spirit – or sometimes letter- of the sunshine law and doing intra-county business in an open meeting in full public view?
Chang by the way has once again claimed that, for purposes of the ballot this year again. his nickname- according to law the name he is commonly called- is coincidentally the name of his business, “Wala`au”,
Finally his last quote reveals how he will vote today if the matter isn’t deferred again.
"I'm pissed off about this issue [vacation rentals] and a lot of other people are, too. But there needs to be a process. We've stopped the bleeding, but now we've got to set things right. It's like BP. You cap the well, but you've still got to clean up the mess. So we'll see how it goes today at Council."
Set things right?
Well, maybe it is like the gulf spill because if the bill is passed it will be a gusher of abuse of process and law, polluting the north shore and other areas for perhaps decades to come.
Thursday, July 22, 2010
LOOK OUT KID, THEY KEEP IT ALL HID
LOOK OUT KID, THEY KEEP IT ALL HID: The patently illegal transient vacation rental bill passed out of the council planning committee at Wednesday’s Whine-a-Thon, as Joan Conrow so aptly put it today, our brain fut yesterday in saying it was up for final passage this week notwithstanding.
We’ll leave it to Joan’s hilarious-if-it-weren’t-so-pathetic, first-hand reporting to describe the chain of fools who paraded their self-interest before the council because for one brief shining moment we thought the council might actually discuss the blatant illegality- based on state law which they can only dream of changing- of not just ag land TVRs but all those not in proscribed visitor destination areas (VDAs).
Before the procession of TVR-owning snivelers filed up to the hot seat to ignore the law former councilperson and candidate this year Mel Rapozo’s laid out the various regulations in simple terms pointing out a new wrinkle in the Kobayashi opinion and how it applied to state land use laws.
Mel pointed out that Kobayashi essentially said that because TVRs weren’t listed in the county’s comprehensive zoning ordinance (CZO) among the unpermitted uses, they were permitted. But it also warned that it applied to only otherwise legal uses.
But, Rapozo said, HRS 205 does list permitted uses on ag land and not only don’t TVRs appear on the list one sections says that overnight accommodations are forbidden.
He went on to discuss many of the other legalities that don’t take an attorney to read and comprehend and he was so clear that councilmembers actually started to discuss them in open session for the first time rather than sweeping them under the executive session rug as County Attorney Al Castillo has insisted.
When Chair Kaipo Asing started to get into the meat of the legal issues, that was too much for Castillo who, as he is wont to do, unceremoniously interrupted him seeking to take the public policy discussion behind closed doors.
That was when Asing essentially told Castillo to fu*k off saying he was going to discuss his opinion in open session.
It was kind of astonishing especially in that Asing has duplicitously used Castillo’s through-the-looking-glass interpretation of the sunshine law for the last year and a half to halt discussion whenever it’s politically expedient.
But alas that discussion was short lived and once again the council went back to ignoring the law, with Planning Committee Chair Jay Furfaro parrying with anyone who tried to bring it up with his usual misinformation, misrepresentations and misdirections making sure that the message was clear- this is Kaua`i and we only acknowledge state and federal law when it suits us... and we’ve got the circuit court judges these days to back us up.
The bill passed out of committee by a 4-1 vote with Councilperson Derrick Kawakami in opposition and bill author Tim Bynum joining Darryl Kaneshiro and Furfaro in voting to approve it and Lani Kawahara remaining silent and so having her vote count as a “yes” due to council rules that say a silent vote is counted with the majority.
This bill will no doubt pass next Wednesday, most likely by a vote of 4-2 with Asing joining Kawakami and Dickie Chang and, yes, Lani Kawahara supporting Bynum Furfaro and Kaneshiro.
Which means of course that by rushing the measure into passage before November it will insure the two “lame ducks” on the council, Kaneshiro and Kawahara- who are likely to be replaced by two opponent former Councilmembers Rapozo and JoAnn Yukimura- will cast the deciding votes.
If that ain’t reason to sweep all the bums out this year, it’d be hard to know what is.
We’ll leave it to Joan’s hilarious-if-it-weren’t-so-pathetic, first-hand reporting to describe the chain of fools who paraded their self-interest before the council because for one brief shining moment we thought the council might actually discuss the blatant illegality- based on state law which they can only dream of changing- of not just ag land TVRs but all those not in proscribed visitor destination areas (VDAs).
Before the procession of TVR-owning snivelers filed up to the hot seat to ignore the law former councilperson and candidate this year Mel Rapozo’s laid out the various regulations in simple terms pointing out a new wrinkle in the Kobayashi opinion and how it applied to state land use laws.
Mel pointed out that Kobayashi essentially said that because TVRs weren’t listed in the county’s comprehensive zoning ordinance (CZO) among the unpermitted uses, they were permitted. But it also warned that it applied to only otherwise legal uses.
But, Rapozo said, HRS 205 does list permitted uses on ag land and not only don’t TVRs appear on the list one sections says that overnight accommodations are forbidden.
He went on to discuss many of the other legalities that don’t take an attorney to read and comprehend and he was so clear that councilmembers actually started to discuss them in open session for the first time rather than sweeping them under the executive session rug as County Attorney Al Castillo has insisted.
When Chair Kaipo Asing started to get into the meat of the legal issues, that was too much for Castillo who, as he is wont to do, unceremoniously interrupted him seeking to take the public policy discussion behind closed doors.
That was when Asing essentially told Castillo to fu*k off saying he was going to discuss his opinion in open session.
It was kind of astonishing especially in that Asing has duplicitously used Castillo’s through-the-looking-glass interpretation of the sunshine law for the last year and a half to halt discussion whenever it’s politically expedient.
But alas that discussion was short lived and once again the council went back to ignoring the law, with Planning Committee Chair Jay Furfaro parrying with anyone who tried to bring it up with his usual misinformation, misrepresentations and misdirections making sure that the message was clear- this is Kaua`i and we only acknowledge state and federal law when it suits us... and we’ve got the circuit court judges these days to back us up.
The bill passed out of committee by a 4-1 vote with Councilperson Derrick Kawakami in opposition and bill author Tim Bynum joining Darryl Kaneshiro and Furfaro in voting to approve it and Lani Kawahara remaining silent and so having her vote count as a “yes” due to council rules that say a silent vote is counted with the majority.
This bill will no doubt pass next Wednesday, most likely by a vote of 4-2 with Asing joining Kawakami and Dickie Chang and, yes, Lani Kawahara supporting Bynum Furfaro and Kaneshiro.
Which means of course that by rushing the measure into passage before November it will insure the two “lame ducks” on the council, Kaneshiro and Kawahara- who are likely to be replaced by two opponent former Councilmembers Rapozo and JoAnn Yukimura- will cast the deciding votes.
If that ain’t reason to sweep all the bums out this year, it’d be hard to know what is.
Tuesday, July 20, 2010
GRANDFATHERING, WHAT BIG TEETH YOU LACK
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?
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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