LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: During the decade or so we regularly attended council meetings there were generally three sets of attendees.

First were governmental apparatchiks who slept in the back, if possible under the air conditioner, until called on by the council.

Then there were the great unwashed- the clueless who wandered in because they heard something was up or they took a wrong turn at the elections office.

Finally there were the regulars- aka nitpickers- and the reporters who generally sat around acting like the unruly kids in the back or the classroom kibitzing, whispering, giggling, passing notes, chewing gum and generally making a mockery of the whole thing.

But they always had something that the others two groups lacked- a copy of the agenda.

The administration people didn’t really need one. They know what they’d been summoned for.

But for the great uninitiated novices sometime we’d grab a stack and walk amongst them calling “Program- getcha program heah. Can’t tell your bill without a program- program heah.”

The truth is that even with a “program” many were often left shaking their heads, unable to follow the meeting and find their issue before it whisked by, by which time it was too late and they were left asking “wha-wha-wha just happened?”

For those who try to follow the proceedings on TV it’s even worse. As “Esatiene” wrote today in the comment section of a totally unrelated article in the local newspaper:

Watching the HOIKE Channel a few days ago i was saddened to see our elected officals skim over financial "bills" and passing them as fast as possible w/ no mention how the money will be earmaked. Sewage and Wailua (county workers' private) Golf Course, was a combined $300,000 of taxpayors money. The county council looked like a table of thieves in a den distributing stolen loot (all sic).

And it’s no wonder. Rather than actually having to read many measures the council rules state:

RULE NO. 3-OFFICERS AND THEIR DUTIES

(c) County Clerk. It shall be the duty of the County Clerk or an authorized representative, in addition to those duties prescribed by law:

(1) To read bills, resolutions, and other matters to the Council, if so required (emphasis added);

And for bills and resolutions the rules say

RULE NO. 10-GENERAL PROVISIONS REGARDING BILLS, RESOLUTIONS, MOTIONS AND AMENDMENTS

(h) Full oral readings of bills and resolutions are hereby waived and may be by title and/or number only unless a full reading is requested by any of the members present (empasis added).

As Esatiene noted many bills go through their four required appearances- going through the first reading, the public hearing, the committee meeting and the final reading- and are passed with nary a word other than the perfunctory reading by the clerk of the minimalist information already on the agenda.

Many times those notices seem to be intentionally sketchy so as not to peak anyone’s interest.

And it’s worse for “communications” especially those that don’t require approval. They aren’t even read but rather listed, by communication number, and “received” for the record, never to be heard- or heard from- again.

Not only aren’t they discussed, anyone watching the proceedings doesn’t even know they exist.

And while some are fairly innocuous, many contain vital information that is being communicated to the council- and presumably the public- including all sorts of administration reports, audits and other information.

It was only through people questioning the “reports” from the personnel department- ones listed for receipt by number only with a bunch of other communications- that the practice of downgrading budgeted positions so as to allow administration-favored applicants to get a skilled job (and to be taught “on the job”) came to light a couple of years ago... although it has seemingly died for lack of interest by the council since then.

It’s all too convenient for councilmembers who are seeking political cover to controversial subjects.

Even when the subject isn’t contentious it gives the impression that something is being hidden. Councilmembers who wonder why the public doesn’t trust them and is always calling them “secretive” and even “corrupt” need look no further that this practice to figure out at least one thing they can do about it.

As for bills and resolutions most of the times the actual “meat” of the bill or reason for the reso are short and sweet. But most of the time, unless a councilmember or a member of the public says something they fly on by under the radar unexplained and many times undebated.

So why do we mention it?

Because when the new council sub-committee recently designated to look at the council rules meets, one of the only things suggested so far is to hide things further.

Not only is there no plan to change the rules to require that they at least give a public explanation as to what each measure is about, they have proposed that those communication designated for “receipt” and even some routine “approvals” be moved to what is being called a “consense calendar” where, in one fell swoop, without even acknowledgment of each communication number as is now the practice, they will be dispatched at the beginning of the meeting.

For those attending the meetings now it’s hard enough if they want to speak on one of these “matters for receipt.”

They must listen carefully to the clerk mumble the number and jump up and frantically wave their hand so the chair sees them and then, to the dirty looks from councilmembers angry that they must endure three extra minutes at the meeting, sheepishly apologize for interrupting the “zoom agenda” with their testimony.

We’ll be looking at some other rules over the next few weeks as the sub-committee meetings get underway. But we can only hope that the review of the rules isn’t used as an excuse to pare down the public’s participation in the process- a matter that seems to get plenty of lip service but is thrown under the bus when the rubber meets the road.


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UPDATE/CORRECTION: In our January 6 post regarding President Obama’s Kailua vacation rental and a story in the on-line newspaper “Civil Beat” about how the agreement with the owner apparently violated the City and County of Honolulu’s ban on rentals for less than 30 days, we suggested that it might also violate the state ban on vacation rentals in the state conservation district.

While, as this map (pdf) of Kaua`i state districting shows, much of the coastal area on Kaua`i is in the state “conservation” district, that is not so in Honolulu where, as this map (pdf) shows, much of the coast is districted “urban.

This screen shot of a google map along side the relevant section of the state district boundary map- with point “A” on the google map indicating the 57-A Kailuana Place address where the president stayed- shows that the house in question is in the urban, not the conservation district.

Thanks to Civil Beat’s Mike Levine for setting us straight and providing the screen shot and map links.

We regret any confusion resulting from our incorrect presumption.

AND THE WALLS CAME TUMBLIN’ DOWN

AND THE WALLS CAME TUMBLIN’ DOWN: It was a good news/really bad news moment when the Honolulu-based, on-line news venture Civil Beat launched a while back.

Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.

Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.

But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”

No telling what “occasional readers” means but we were able to read stories yesterday and again today.

We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.

Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.

But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”

According to her story:

Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.

Although the owner claims he got around the law by leaving a 30-day window between rentals, the

explanation is one that's commonly offered, but that still represents an illegal renting practice...

"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."

It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.

But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.

According to an April 2007 article in the local Kaua`i newspaper

The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.

Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.

A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.

In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.

At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.

It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.

So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.

And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.

A FINAL WORD

A FINAL WORD: Kaua`i has never been much of a place for the “October surprise”. While whispering campaigns have been few and far between we can’t even remember a last minute revelation about a candidate in print.

But last week’s excoriation of Tim Bynum by our friend Joan Conrow contained not just her reasons for not voting for Tim- many of which we agreed with- but reported one tidbit about Bynum that we had been trying to find out more about for the last month or so.

Joan starts out by saying

When Tim finally did get elected, in 2006, I was hearing a lot of talk about how we — as in mainland haoles — needed to elect a haole to represent our interests on the Council and fight the “old boy” system. They saw Tim as "the great white hope."

Of course, Tim is actually a product of that very same system, seeing as how he was appointed by the late Mayor Baptiste to run the totally worthless, do-nothing county “outreach” program known as Ka Leo O Kauai — a position Tim lists as Community Response Specialist on his resume.

Though we never saw Tim as such, for just that reason- in addition to his involvement with the bike path as Joan also cites- it’s hard to see how being a crony of Baptiste’s is compatible with being “the great white hope”, as Joan says.

And more than fair criticism was the fact that Bynum extensively talks about the horrors of how our ag land has been subdivided and condominiumized (CPRs) into gentlemen’s estates but built his house on CPRed ag land.

Then of course there’s his transient vacation rental (TVR) bill which weakened the 2008 bill that banned new TVRs on residentially zoned lands and opened up ag lands to TVRs, which were banned under the original bill.

We aren’t the only ones for whom that was the tipping point on whether to give Tim our support tomorrow so no disagreement there.

But then comes the story that we’ve been chasing since Ken Taylor raised it during a council meeting a while back.

What Tim fails to mention is that he himself bought a lot in one of those pretend farm developments, built a house and let someone graze a horse in the yard to further the pretense.
What's more, he is the subject of a formal complaint alleging that he’s been operating an illegal dwelling unit within his single-family residence. However, when a county inspector went to check it out, Tim refused to give him access to the house — even though he had signed a use permit agreeing to periodic inspections. Tim also failed to respond to numerous susequent (sic) written requests for access. As a result, Tim was issued a zoning compliance notice and the county will seek a search warrant to conduct the inspection.

Wow. No wonder Tim wouldn’t answer our emails asking him for clarification. We asked Conrow if she had a copy of what should be a publicly available complaint, especially in light of one comments which said,

The rumor is that Tim was set up by a trespassing planning inspector who was probably there at the request of one of the mean three (K.A., M.R. and S.I.C) and who tried to accuse him of having an illegal kitchen for having a coffee maker plugged in a bedroom or something ridiculous like that. If that is true (I'd like to know before the election) it would seem like a political dirty trick aimed at getting an uninformed media to ruin his election chances.

We certainly would like to know the source of the complaint but haven’t as yet heard back from Joan. We certainly trust Joan’s reporting and would like to hear Bynum’s side of the story. Our question is in the timing of the report and the wisdom of publishing it in the middle of a piece with such obvious animus.

But then Joan says something that baffled us.

This sort of refusal has happened only once before, by a man who had 20 unpermitted houses on his property, and it's certainly surprising to such behavior in someone sworn to uphold the law. Normally, people want to give an inspector access to show they're in compliance. Unless, of course, they're not. Perhaps that's why Tim never replied when I asked him for a comment.

Only once before? Hasn’t Joan followed the stories about people like Jimmy Pflueger and Tom McCloskey as well as other “Friends of Maryanne” Kusaka who refused entry to Department of Public Works (DPW) and Planning inspectors until Kusaka allegedly told them to back off?

This has been a huge issue for both DPW and the Planning Department with both County Engineer Donald Fujimoto (and his predecessors) and Planning Director Ian Costa who have bitterly complained over and over on specific cases- on the record at planning and council meetings- that they have been denied entry to people’s properties and have begged for a law which allows them to gain entry administratively.

But then comes the criticism that makes us think that if Joan had watched the council in action she might have gotten a different impression.

In further supposed support for farming, Tim recently introduced three bills related to agricultural lands. But because he has failed so miserably at consensus-building (another one of his campaign pledges), the Council nixed them immediately. However, his oft-stated quest to reduce density on ag land — which would hit family farms hardest — instilled sufficient fear in some large ag land owners that they moved to lock in their density, including CPRs, while they could. As a result, speculator/developer Tom McCloskey now has 1,000 units all lined up and ready to go in Kealia.

Actually those bills were first introduced by Mayor Bryan Baptiste years ago and McCloskey has had his units “all lined up” for years.

But to blame the obstructionism of those who are letting some personal revenge factor on the target of their ire is pretty tea-partyish. And, as a matter of fact, talking to more than one other councilperson about a bill before it is introduced is highly illegal.

After justifiably criticizing the thousand dollars in campaign funds from the Transient Vacation Rental Association Conrow then says something that we can’t fathom, especially from a journalist who deals in documents and should know how important access to them as well as transparency and accountability in government is.

All in all, it's pretty hypocritical for someone who wrote, in his response to the previously mentioned questionnaire:

I believe that public participation in government is essential, and helps us make better decisions. For that reason I have tried to improve the public process, specifically by advocating for easy access to public documents, release of county attorney opinions of Law, and public broadcast of all council proceedings — including budget hearings. Frankly, I am dismayed that this has been contentious and difficult.

Perhaps it was contentious and difficult because Tim, who was later joined by Lani, never sat down with the Council Chair or sought support from other Councilmembers to work out such a change. Instead, they turned it into a self-serving and very public crusade of “us against them,” making a mockery of his campaign pledge to “strive for consensus.”

If Joan had actually viewed all the meetings on the topic rather than relying on the notoriously inept reporting in the local newspaper, she would have known that Bynum repeatedly tried to meet with Chair Kaipo Asing’s despite Asing denial- that is until Tim produced the document requesting a meeting and that it was Lani, relying on Tim who was introducing the needed changes- who didn’t meet with Asing.

While we have many reasons to withhold support for Bynum this year- and it was not an easy decision for just this reason- his fight for access to the agenda for councilmembers and the posting of public documents on-line as well as many other instances of abuse of the rules and process by Asing (as we’ve detailed over and over) was the one high points of this council term.

To blame those who fight for positive change in the face of paternalistic intransigence for “not striving for consensus” is the reason why Asing and the three D’s- Derek, Dickie and Darryl- got away with their obstructionism.

And guess what- the subject documents are still not posted on-line.

But the reason why it sticks in our craw is because it’s not just Joan who seems to take this attitude.

Way too often we hear from candidates- and from voters- that we need to “all get along” and “stop all the fighting.”

But those blaming people who fight hindrances and impediments to change thrown up by the forces of the broken status quo seem to have very little understanding of what open governance really means.

Is that what you want?.. politicians “seeking consensus” in back rooms rather than before the public at a meeting, as provided in the sunshine law?

Bynum’s and Kawahara’s crusade for accountability and transparency and access to documents should not be the subject of closed door meetings- the antithesis of the spirit- and letter- of the law.

This type of criticism assures that nothing will ever change except for assuring that, when those who challenge corruption and the old boys’ control over the process are turned out of office, the next politician won’t fail to get the “sit down and shut up” message.

And as long as politically astute progressives buy into this Kumbaya form of governance the Minotaurs and their minions will continue to control access to “our” government.

DOLLARS AND NONSENSE

DOLLARS AND NONSENSE: Another day another attempt at journalism by our favorite punching bag Leo Azambuja, purported government beat reporter at the ever-downward-spiraling local newspaper.

But strangely enough his attempt included an effort at some context in describing some of the “legal issues” behind how, as Joan Conrow wrote today “Councilmen Tim Bynum and Jay Furfaro are giving the public the royal shaft with their support of a wholesale legalization of vacation rentals on ag land”.

The problem is that he failed to make any connection between what those who are actually serving the public interest- as opposed to the parade of self-interested, money hungry ag land transient vacation rental (TVR) owners and their shills- were trying to say.

What makes Azambuja’s lack of understanding even more unfathomable is that he actually quoted Caren Diamond saying what anyone watching the public hearing on Bill 2364 knew went to the crux of the absurd legal claims being made by Bynum, Furfaro and the ag land TVR owners’ string of shysters.

“To anyone who’s saying ‘we’ve been legal all along,’ where is the use permit?” she said. “There’s a procedure available, I don’t see why this council acts as if their hands are tied.”

As anyone who has followed the issue for the past decade knows the legislature many years ago set out the land use scheme for TVRs saying that the counties, which do the actual planning and zoning, were supposed to keep single family TVRs in designated “visitor destination areas (VDAs)”.

Since the state law said it, the law was written on Kaua`i to say that yes, TVRs were permitted in VDAs. Although there was no real enforcement it seemed clear enough until some wise guy in the county attorney’s office wrote an absurd opinion that said that although the law said where the TVRs were allowed, they didn’t say where they weren’t allowed- therefore they were allowed everywhere.

This bit of warped logic known as that “Kobayashi opinion” seemed just some off the wall idiocy from the office of Mayor Maryanne Kusaka’s County Attorney Hartwell Blake’s office- one known to write any-kine opinions requested by Kusaka who had been notoriously sucking up to ag land subdividers for contributions to her campaign and pet self-serving “charity”.

Years later the opinion began to be cited by illegal TVR owners to say they “depended” on the opinion to run their TVRs in non VDAs, state law notwithstanding.

But rather than just enforcing the law and letting the TVR owners sue if they wanted to- something that would have settled a matter hugely important to the future of the island a decade ago at minimal cost- the administration and councils refused to do so letting the matter get way out of hand.

When former Mayor and Councilperson JoAnn Yukimura returned to the council people expected her to continue in the “slow growth” bent she had been famous for. But instead of working to enforce the law she set up a “stakeholders committee” that not only delayed the matter for many more years but allowed the TVR owners to get a nose under the tent.

Finally, as the whole camel emerged, the council finally grandfathered existing TVRs in non VDAs in a supposed attempt to stop it there.

And, quite rightly they stated in the bill that no matter what, ag land TVRs were always fully illegal, as a recent attorney general’s opinion reiterates and as many opinions from various and sundry Department of Land and Natural Resources mucky mucks had said over the years.

But now of course after many attempts to somehow legalize the illegal ag land TVRs- including the infamous “non enforcement” bill which would have actually instructed the planning department to not enforce the law- they came up with a way to allow them under a section of law that allows for ag land owners to apply for “special use permits” under extremely restrictive rules- rules that actually were amended a few years back to state explicitly in so many words that, notwithstanding anything else, no overnight accommodations were permitted, in case there was any doubt about the matter.

So let’s go back to the claims that they relied on the Kobayashi opinion- also being claimed in the ag land cases- and so they paid they taxes and ran they TVRs over the years legally.

But if they really relied on Kobayashi and thought therefore they were legal- and legally relied upon that opinion- why didn’t they apply for special use permits which are and always have been available for ag land uses not defined by law?

They can’t have it both ways. If they claim they didn’t apply because they thought they were illegal, well, that takes care of that. If they claim they thought they were legal then they should have applied for a permit before they started using the dwellings for TVRs.

One way or another there’s something fraudulent about the claim that they relied on Kobayashi yet operated without a special use permit.

But don’t expect Bynum and Furfaro to give up. With Chair Kaipo Asing a definite “no” vote there are still four more votes out there and it may behoove the electorate to remind them all that November is just around the corner and for many this and the bill to gut the TVR in non VDAs ordinance is the last straw for “anything goes on land use” councilmembers who kow-tow to the invading money-grubbing-developer hoards.