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HomeMy WebLinkAbout 10/23/2013 Council Meeting Minutes COUNCIL MEETING OCTOBER 23, 2013 The Council Meeting of the Council of the County of Kaua`i was called to order by the Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street, Room 201, Lihu'e, Kaua`i, on Wednesday, October 23, 2013 at 8:43 a.m., after which the following members answered the call of the roll: Honorable Gary L. Hooser Honorable Ross Kagawa Honorable Nadine K. Nakamura Honorable Mel Rapozo (excused 1:57 p.m. to 2:02 p.m.) Honorable JoAnn A. Yukimura (present at 8:51 a.m.) Honorable Jay Furfaro (present 8:43 a.m. to 9:14 a.m. and 2:13 p.m. to 3:00 p.m.) Excused: Honorable Tim Bynum APPROVAL OF AGENDA. Mr. Rapozo moved for approval of the agenda as circulated, seconded by Ms. Nakamura, and was carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). PUBLIC COMMENT. Pursuant to Council Rule 13(e), members of the public shall be allowed a total of eighteen (18) minutes on a first come, first served basis to speak on any agenda item. Each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss the agenda item and shall not be allowed additional time to speak during the meeting. This rule is designed to accommodate those who cannot be present throughout the meeting to speak when the agenda items are heard. After the conclusion of the eighteen (18) minutes, other members of the public shall be allowed to speak pursuant to Council Rule 12(e). Chair Furfaro: Thank you. Mr. Clerk, may I ask Mr. Topenio, is it possible that you could see that we have six (6) people that are willing to speak? RICKY WATANABE, County Clerk: We have some who have signed up, Chair. Chair Furfaro: We have some that have signed up? Mr. Watanabe: Yes. Chair Furfaro: Thank you. Mr. Watanabe: We have four (4) that have signed up. COUNCIL MEETING 2 OCTOBER 23, 2013 Chair Furfaro: We have four (4) that have signed up. Before we go any further, I would like a personal privilege to ask the Clerk, if you could please introduce our new staff member that is joining us today? Mr. Watanabe: Yes, we have Lori Marugame. She is our new Council Services Assistant I. Chair Furfaro: Welcome, Lori. We are delighted to have you. Thank you. On that note, this is an opportunity for anyone to speak on any item on today's agenda. I will take the first speaker. Mr. Watanabe: The first speaker that is signed up is Glenn Mickens, followed by Ken Taylor. There being no objections, the rules were suspended to take public comment. GLENN MICKENS: Good morning, Councilmembers. For the record, Glenn Mickens. Thank you, Jay and thank you, B.C. I have not given you a copy of my testimony yet. I did not have the chance to get the girl to copy it, but I will give it to you later. The biggest question that I have for any of you Councilmembers who want our Auditor Ernie Pasion dismissed is a very simple one. What exactly are the charges for dismissal or as Joe Rosa asked, "What are the just causes for having him fired?" We have an honest, qualified, unanimously hired by seven (7) Councilmembers, dedicated person who did six (6) outstanding audits in his four (4) years of service. He and his staff did them so well that an independent group, the local Association of Local Government Auditors in their report covered the Auditor's written policies and procedures, internal monitoring, staff training and development said, "The Office exceled with implementing charges to comply with standards that Audit staff excelled, emphasis added, at professional growth and certification." Thus, for no factual reason to dismiss Mr. Pasion except that his audits done according and pursuant to the "yellow book" and to the provisions of the Charter conforming to government auditing standards uncovered incompetence and irregularities in the way our government is being run and pointed the finger at those responsible. So, a conspiracy plot or whatever terminology you want to call it, is now underway to get rid of Ernie. We, the citizens desperately need people like him who will represent us and not those who operate for selfish and political reasons. This is extremely distressing to watch these stealth operation these environmental studies (ES), play out to get rid of our Auditor who has more than done his job and has the unanimous support of the constituents he represents; the public. Nobody has come forward to thwart our unified efforts to keep his office and him do what the Charter has been set to do. Remember, that if those who want Ernie gone succeed, it will only put the message out to any honest person or whistleblower that they too will lose their jobs if they tell the truth. This whole issue is about more than our Auditor. It is about moving this system to a higher, more efficient level and we cannot afford to lose this fight. Should the wrong side of this issue win, Mr. Pasion will undoubtedly prevail in judicial actions that will cost taxpayers huge amount of money so that citizens will again get the short end of the stick. Please manage our taxpayers' money wisely. The saying goes, "It is easier to spend others money as along as it does not affect one one's own pocket book." I would like to thank all the people here for supporting Ernie. I wish to thank the members of the Council who also support Ernie and the motivation he represents to make Kaua`i a better place for us to live. Thank you, Jay. COUNCIL MEETING 3 OCTOBER 23, 2013 Chair Furfaro: Glenn, I do want to say this again. The Garden Island is not always correct in their terminology of the reports. The audit rating that was received by Kaua`i County was a level that was "acceptable." There is no other grade beyond that. So, when we say they reported an "exceptional" or... Mr. Mickens: Excel... Chair Furfaro: The correct terminology, and I would like to just stay with it, he did receive an "acceptable" level. Mr. Mickens: I got this from the government report, Jay. I did not get this from the Garden Island. I got it from the government report itself. I presume that you got the same thing and the word "excel" was used twice in that report, not the Garden Island. I know the Garden Island reported getting it from them... Chair Furfaro: Excuse me. Excuse me, there was a grading and I want you to know that myself and other Councilmembers met with the Audit Team as an exit interview and the final rating was "acceptable." I do not want to argue with you. Mr. Mickens: No. Chair Furfaro: I just wanted to correct the narrative that was in the Garden Island. Mr. Mickens: But what is the purpose of anyone wanting to diminish what they said? Chair Furfaro: I am not going to go any farther with you. There is no discussion during this time of the agenda. I just wanted to get it corrected for the last time. Mr. Mickens: Well, you discussed it with me. I just thought I would answer that. Thank you. Chair Furfaro: I just wanted to correct it with you, not discuss it with you. But I am willing to discuss with you. Mr. Mickens: But your correction was wrong, for the record. Thank you. Chair Furfaro: Thank you for pointing out that you believe that I am wrong. Mr. Watanabe: Ken Taylor, followed by Joe Rosa. KEN TAYLOR: Members of the Council, my name is Ken Taylor. I am very concerned about these two (2) Executive Session (ES) on the agenda today and have been concerned about the way that they have been brought forth in the last two (2) meetings. I would like to remind each and every one of you that one of the attributes of being an elected official is having your moral and ethical compass in good working order. I find that when agenda items do not clearly notify the public as to what is being discussed, that raises some concerns as COUNCIL MEETING 4 OCTOBER 23, 2013 to why it is being listed in that fashion. Today, we see it not only listed as it has been the last couple of meetings but then again as I believe it should be identifying the Auditor's Office for a discussion item. The other issue that I have trouble with is whether or not one of the Councilmembers may have a perceived conflict of interest. I think under the circumstances Nadine, now being appointed to be part of the executive team under the Mayor, that there is or could be a perceived conflict of interest. I think under those circumstances that it is imperative that she step down on this issue before any further discussion takes place. I hope that each and every one of you will identify with that. Again, I say it is "perceived" and it is very important. Generally, when you talk about conflicts of interests, if there is a perceived conflict, which I believe Nadine has now, that it is imperative that she step down and it is imperative that each of you follow up on that and see that it happens. Thank you for your time this morning and I hope you move forward in an ethical moral manner. Thank you. Mr. Watanabe: Next we have Joe Rosa, followed by Alfred Laureta. JOE ROSA: Good morning members of the Council. For the record, Joe Rosa. Well, I am here this morning to say my say for Ernie Pasion. It is been going on for quite some time now regarding the questionable decision that the County has to make. From the outside looking in, and from what I know and read the reports of the audits that Mr. Ernie Pasion has done, I say that he has done an excellent job and like I always mention to you people, he did it with a lot of enthusiasm knowing that he had a job to do. He needed a lot of guts, which he showed by those audits that he has put out already and which has been already and two (2) of them were already published in the Garden Island and made known of those two (2) audits. The other four (4) is sort of hush-hush. If you read the audits, you know about it. So, like I mention and I have always have been mentioning, what is the just cause that you people have against the Auditor's Office and Mr. Pasion? He has done an excellent job and you people cannot let personalities of other people being involved in a decision that you people have to make. It has to be an honest decision from each and every one of you Council people to make a decision that is based, like I said, just cause and has to be with the performance of his office and the work he has done. Like a couple weeks back when Judge Laureta mentioned the same thing, you cannot bring personalities into something for dismissal. It has to be just cause related to the job and position of Mr. Pasion's Auditor's Office of the as to which he is doing a wonderful job. I wonder if you have taken the time to look at those audits and read it yourself and based the decision on whether it is wrong or right. Why correct a right when there is no wrong? Look at it and read it. Is that the kind of government that you want that is going on right now? Think about it. You are taxpayers, we taxpayers. If you found a wrong, correct it, not let it ride. We are taxpayers. We have being paying our taxes faithfully and whatever you assessed onto to the taxpayers of Kaua`i, we are paying it. Chair Furfaro: That is your three (2) minutes, Joe. Mr. Rosa: But spend it wisely and hopefully you will base your decision on his work, and not personalities that are hearsay. Thank you. Chair Furfaro: Thank you, Joe. Next speaker. Mr. Watanabe: Judge Alfred Laureta. COUNCIL MEETING 5 OCTOBER 23, 2013 Chair Furfaro: Judge. ALFRED LAURETA: Good morning Mr. Chairman and members of the Council. Chair Furfaro: Good morning. Mr. Laureta: My name is Alfred Laureta. Except for what I read in the Garden Island I am completely uninformed of the activities of the County Auditor's Office. I am acquainted personally with Auditor Ernie Pasion and am very familiar with his many personal voluntary involvements in community organizations and their projects. I have read many good things about the work of the Auditor's Office and frankly, I have not seen or read anything critical about their operations or work product, so I am surprised to hear that your agenda calls for the consideration of the removal of the County Auditor from office. Ernie was appointed by the Council for a term of six (6) years after finding him qualified for the position of Auditor. I know that many of you were personally acquainted with his work habits and personality when he served as Deputy Clerk of the Council. Likewise, the Charter grants you the power to remove him from office and I quote "at any time for cause." Now that phrase, "at any time for cause" often times includes a reminder, which makes it "a just cause." I hope that the Council will insert the word "just" to make sure that the Charter language will not be interpreted to mean any time for any cause. The Council, you have the discretion, if justifiable in the light of the offense that has been committed. Unfortunately, we do not know what that is. You have the discretion to either dismiss the charges, to impose a lighter "sentence" in the form of a reprimand, suspension, leave with pay, leave without pay, or some other appropriate remedy. Mr. Watanabe: Three (3) minutes. Mr. Laureta: Proposed removal tells us that the offense that you are looking at, the offense that has been committed is of such magnitude that the death sentence is justifiable. Chair Furfaro: Judge, I have to point out to you at this time your three (3) minutes did expire. Mr. Laureta: One more sentence. Chair Furfaro: Go right ahead, sir. Mr. Laureta: If and when the cause of your decision is published, hopefully your judgment will be in Ernie's favor and that he will still remain in office. Thank you very much. Chair Furfaro: Thank you. We are able to take two (2) more people to testify. Do we have anybody else that is signed up to testify on any item on today's agenda? Mr. Watanabe: We have one more, Chair. Lonnie Sykos. Chair Furfaro: Lonnie. COUNCIL MEETING 6 OCTOBER 23, 2013 LONNIE SYKOS: Good morning. Thank you, Council Chair and Councilmembers. For the record, my name is Lonnie Sykos. There is a lot of items on the agenda today, but I will start with my support for the Auditor. I am here, like many of these people are. I believe the Auditor has done a great job for the County and I am not happy that this is dragging on with no resolution as to whatever the problem is that has to do about the Auditor. For myself, I want this to get done so that we can start working on restoring funds to the Auditor's Office and continue on with the good work that he has done so far. I would also like to support that the Council approve all of the funding for the Special Counsels. We have all of these lawsuits that are ongoing and it is time that we bring them to a conclusion. Also, the public is quite interested in the details of all of this. Certainly right now there is privacy issues, but when these cases are resolved, the public wants to know why are we endlessly embroiled in lawsuits and what are the lawsuits about? In regards to the Auditor, part of the issue it appears, has to do with Human Resources. Human Resources is a problem all through the County, the management of it, and it is nowhere more glaring than in the State of Hawai`i Organization of Police Officers (SHOPO) Arbitration that we paid people to go represent us and according to testimony, they did not represent us. So, we have a SHOPO contract in which the process was flawed because the County's position about our economic state was not properly represented. I do not have an issue with paying the Police Officers and the members of the Police Department an appropriate salary. What I have a problem with was the gross failure in the public's position being represented at the SHOPO negotiations. I do not want to see this policy or whatever it is of doing nothing occur with the other Union contracts that are coming up, that we want to be fairly represented with the public workers and the rest of the Union contracts. Thank you for your time. That is basically what I came here for today, was to support the Auditor and to encourage the Council to find a resolution to our Human Resources problems. Thank you very much. Chair Furfaro: Thank you, Lonnie. Is there anyone? We have one (1) spot left. There being no further testimony, the meeting was called back to order, and proceeded as follows: Chair Furfaro: I would like to finish our business on the first page before I call up the County Attorney. MINUTES of the following meetings of the Council: July 31, 2013 Public Hearing re: Bill No. 2491 August 28, 2013 Public Hearing re: Bill No. 2496 September 25, 2013 Public Hearing re: Bill No. 2497 Mr. Rapozo moved to approve the Minutes as circulated, seconded by Ms. Yukimura, and carried by a vote of 6:0:1 (Mr. Bynum was excused). COUNCIL MEETING 7 OCTOBER 23, 2013 CONSENT CALENDAR: C 2013-343 Communication (09/26/2013) from the Mayor, transmitting for Council consideration and confirmation, Mayoral appointee Dorothy R. Bekeart to the Board of Review for the County of Kaua`i (Designation — At-large) — Term ending 12/31/2015: Mr. Kagawa moved to receive C 2013-343 for the record, seconded by Mr. Rapozo, and carried by a vote of 6:0:1 (Mr. Bynum was excused). C 2013-344 Communication (10/04/2013) from the Director of Finance, transmitting for Council consideration, proposed amendments to Ordinance No. B-2013-754, as amended, relating to the Fiscal Year 2013-2014 Capital Improvements Projects (CIP) Budget, by Revising the Amounts Estimated in the General Fund. (Kaneiolouma Heiau - $805,000, Complete Streets Koloa/Po`ipu - $333,528, Po ipu Beach Park - $333,527): Mr. Kagawa moved to receive C 2013-344 for the record, seconded by Mr. Rapozo, and carried by a vote of 6:0:1 (Mr. Bynum was excused). C 2013-345 Communication (10/04/2013) from the Director of Finance, transmitting for Council consideration, proposed amendments to Ordinance No. B-2013-754, as amended, relating to the Fiscal Year 2013-2014 Capital Improvements Projects (CIP) Budget, by Revising the Amounts Estimated in the Bond Fund. (Kaneiolouma Heiau - $350,000, Heiau Contingency - $63,407): Mr. Kagawa moved to receive C 2013-345 for the record, seconded by Mr. Rapozo, and carried by a vote of 6:0:1 (Mr. Bynum was excused). C 2013-346 Communication (10/04/2013) from the Director of Finance, transmitting for Council consideration, proposed amendments to Ordinance No. B-2013-753, as amended, relating to the Fiscal Year 2013-2014 Operating Budget, by Revising the Amounts Estimated in the General Fund, Solid Waste Fund, and Sewer Fund: Mr. Kagawa moved to receive C 2013-346 for the record, seconded by Mr. Rapozo, and carried by a vote of 6:0:1 (Mr. Bynum was excused). C 2013-347 Communication (10/04/2013) from the Director of Finance, transmitting for Council consideration, proposed amendments to Ordinance No. B-2013-753, as amended, relating to the Fiscal Year 2013-2014 Operating Budget, by Revising the Amounts Estimated in the General Fund. (Licenses & Permits/Dog (Street-Use - General Fund) - $110,000, Kaua`i Humane Society (Special Projects) - $110,000): Mr. Kagawa moved to receive C 2013-347 for the record, seconded by Mr. Rapozo, and carried by a vote of 6:0:1 (Mr. Bynum was excused). Chair Furfaro: I am just going to have a moment on two (2) items and then call up the County Attorney, please. I just want to say again, the way the bargaining unit agreements work in the State of Hawai`i, they require a maximum of five (5) votes. So that everyone re-familiarizes yourself, and this is for Lonnie, the Governor in fact has four (4) of those votes, each of the Counties have one (1) vote. It takes a simple majority on Statewide contracts. The County of Kaua`i is not in the strongest position with our allocation of votes when it comes to settling bargaining unit agreements. I just wanted to highlight that again. I do believe many of my colleagues at the table here do an excellent job in holding their composure; taking the moral high road, studying, reviewing, and reporting items to their own interpretations, and I think they do a very good job of keeping personalities out of the pictures in our decision-making process. This is one the most objective Councils that I have worked with. Unfortunately, we went to a COUNCIL MEETING 8 OCTOBER 23, 2013 Statewide conference of Counties yesterday in Honolulu and a report that was reported wrong by the local media insisting that the County Council of Kaua`i wanted to double our share of the TAT tax was erroneous, it is not something that we voted for, and unfortunately that was picked up on the associated press and reported in Honolulu and we found ourselves clarifying that piece and we will be releasing a press release to acknowledge how we actually voted on that. Thank you for the personal privilege. On that note, can I have the County Attorney up? There being no objections, the rules were suspended. JENNIFER S. WINN, Deputy County Attorney: Good morning Chair and Councilmembers. Chair, just for clarification, we are going into Executive Session for ES-682 and ES-683 only? Chair Furfaro: ES-682 and ES-683 only, yes. Ms. Winn: Thank you. There being no objections, ES-682, ES-683, and ES-685, ES-678, were taken out of order. EXECUTIVE SESSIONS: ES-682 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing as it relates to Defendant Shaylene Iseri-Carvalho in Tim Bynum vs. County of Kaua`i, et al., Civil No. CV12-00523 RLP (United States District Court) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-683 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kauai County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing as it relates to Defendant County of Kaua`i in Tim Bynum vs. County of Kaua`i, et al., Civil No. CV12-00523 RLP (United States District Court) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Chair Furfaro: I am sorry. We are also going in on ES-685. I would like you to read those as well. ES-685 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and 92-5(a)(2) & (4) and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney, on behalf of the Council, requests an Executive Session with the Council, to consider the evaluation, dismissal, or discipline of the County Auditor or of charges brought against the County Auditor, where consideration of matters affecting privacy will be involved, provided that if the individual concerned requests an open meeting, an open meeting shall be held; and to consult with the Council's attorney regarding questions and issues pertaining to the Council's and County's powers, duties, privileges, immunities, and liabilities as it relates to this agenda item, and to deliberate and take such action as deemed appropriate. COUNCIL MEETING 9 OCTOBER 23, 2013 Chair Furfaro: And ES-678. ES-678 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and 92-5(a)(2) & (4) and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney, on behalf of the Council, requests an Executive Session with the Council, to consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved, provided that if the individual concerned requests an open meeting, an open meeting shall be held; and to consult with the Council's attorney regarding questions and issues pertaining to the Council's and County's powers, duties, privileges, immunities, and liabilities as it relates to this agenda item, and to deliberate and take such action as deemed appropriate. Chair Furfaro: Thank you. I am sorry on the confusion of the numbers on my part this morning. Ms. Winn: Sure. Chair Furfaro: Thank you very much. Ms. Winn: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Members, on that note, I would like to, as it has been my practice to call a roll call for going into Executive Session. Also, for those of you in the audience that have come, I believe it will be somewhere between 10:45 a.m. and 11:00 a.m. before we come back for our regular agenda today. Mr. Kagawa moved to convene into Executive Session for ES-678 and ES-685, seconded by Mr. Rapozo, and carried by the following vote: FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST EXECUTIVE SESSION: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum TOTAL — 1, RECUSED & NOT VOTING: None TOTAL— 0. Mr. Kagawa moved to convene into Executive Session for ES-682, ES-683, seconded by Mr. Rapozo, and carried by the following vote: FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST EXECUTIVE SESSION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: Bynum TOTAL — 1. Chair Furfaro: On that note, we are going to go into Executive Session. I do not suspect that we will be back until the times that I quoted, and members, we will meet in the Chambers at 9:20 a.m. Thank you. There being no objections, the Council recessed at 9:14 a.m. COUNCIL MEETING 10 OCTOBER 23, 2013 There being no objections, the Council was called back to order at 1:57 p.m., and proceeded as follows: (Council Chair Furfaro and Mr. Rapozo were excused.) COMMUNICATIONS: EDR 2013-03 Communication (07/24/2013) from Councilmember Yukimura, requesting agenda time to discuss and approve a proposed amendment to Senate Bill (S.B.) 16, Senate Draft (S.D.) 2 amending Chapter 196, Hawai`i Revised Statutes (HRS), (Solar Water Heating Law for New Single-Family and Duplex Construction) by requiring variance applications and requirements to be handled by the Counties, for inclusion in the 2014 County of Kaua`i and Hawai`i State Association of Counties (HSAC) Legislative Packages. Ms. Yukimura: As a person who has asked to have this matter on the agenda, I am going to ask that it be received. I had an extensive meeting with the Mayor and his Administration and the Mayor cannot support the Bill. He is putting something in writing, but knowing that, I do not think it would be worthwhile to pursue this effort because lobbying last year, I was told, that if the County is not together on this, the legislature is not really interested. Ms. Nakamura: Is that a motion to receive then? Ms. Yukimura moved to receive EDR 2013-03 for the record, seconded by Mr. Kagawa, and carried by a vote of 4:0:3 (Mr. Furfaro, Mr. Bynum, and Mr. Rapozo were excused). C 2013-334 Communication (09/19/2013) from the Salary Commission, transmitting for Council information, the Salary Commission's Resolution No. 2013-01, Relating to the Salaries of Certain Officers and Employees of the County of Kaua`i. Ms. Nakamura: Just before we go on to this item, is there anybody here who wanted to testify on the previous item that was read, on the solar water heating Bill? There being no one to provide testimony on this matter, the meeting proceeded as follows: Ms. Nakamura: Thank you so much. Is there a motion? Mr. Kagawa moved to receive C 2013-334 for the record, seconded by Ms. Yukimura, and carried by a vote of 4:0:3 (Mr. Furfaro, Mr. Bynum, and Mr. Rapozo were excused). Ms. Nakamura: Next item. Oh, I am sorry. Any public testimony? There being no one to provide testimony on this matter, the meeting proceeded as follows: COUNCIL MEETING 11 OCTOBER 23, 2013 C 2013-348 Communication (10/02/2013) from the Life's Choices Kaua`i Coordinator, requesting agenda time for Sarah C. W. Yuan, PhD, Associate Specialist from the University of Hawai`i at Manoa Center on the Family to present the results of the Strategic Prevention Framework State Incentive Grant (SPF-SIG). Ms. Nakamura: I think they are on their way so can we move to the next item? C 2013-349 Communication (10/11/2013) from the County Attorney, requesting Council approval to expend additional funds up to $14,000 for Special Counsel's continued services provided for Defendant Shaylene Iseri-Carvalho in Tim Bynum vs. County of Kaua`i, et al., Civil No. CV12-00523 RLP (United States District Court), and related matters. Ms. Nakamura: We are going to need five (5) votes for this? Do we need four (4) or five (5) votes? Ms. Yukimura: Five (5). Ms. Nakamura: Thank you very much. Mr. Kagawa moved to approve C 2013-349, seconded by Mr. Hooser. Ms. Nakamura: Any discussion? Would anyone like to testify on this matter? There being no one to provide testimony on this matter, the meeting proceeded as follows: The motion to approve C 2013-349 was then put, and carried by a vote of 4:0:3 (Mr. Furfaro and Mr. Rapozo were excused) (Mr. Bynum was recused). C 2013-350 Communication (10/11/2013) from the County Attorney, requesting Council approval to expend additional funds up to $35,000 for Special Counsel's continued services provided for Defendant County of Kaua`i in Tim Bynum vs. County of Kaua`i, et al., Civil No. CV12-00523 RLP (United States District Court), and related matters: Mr. Kagawa moved to approve C 2013-350 for the record, seconded by Ms. Yukimura. Ms. Nakamura: Any discussion? Is there anyone who would like to testify on this matter? There being no one to provide testimony on this matter, the meeting proceeded as follows: The motion to approve C 2013-350 was then put, and carried by a vote of 4:0:3 (Mr. Furfaro and Mr. Rapozo were excused) (Mr. Bynum was recused). Ms. Nakamura: Next item. Ms. Fountain-Tanigawa: Vice Chair, C 2013-351, we need to enter into Executive Session first. So, if you want to put that to the side. COUNCIL MEETING 12 OCTOBER 23, 2013 Ms. Nakamura: Let us do that. COMMITTEE REPORTS: ECONOMIC DEVELOPMENT (SUSTAINABILITY / AGRICULTURE / FOOD / ENERGY) & INTERGOVERNMENTAL RELATIONS COMMITTEE: A report (No. CR-EDR 2013-10) submitted by the Economic Development (Sustainability / Agriculture / Food / Energy) & Intergovernmental Relations Committee, recommending that the following be Received for the Record: "EDR 2013-06 Communication (09/17/2013) from Mel Rapozo, Hawai`i State Association of Counties (HSAC) President, transmitting for Council consideration the following proposals to be included in the 2014 HSAC Legislative Package: 9. A BILL FOR AN ACT RELATING TO HELMETS (City & County of Honolulu)," Ms. Yukimura moved for approval of the report, seconded by Mr. Hooser, and carried by a vote of 4:0:3 (Mr. Furfaro, Mr. Bynum, and Mr. Rapozo were excused). A report (No. CR-EDR 2013-11) submitted by the Economic Development (Sustainability / Agriculture / Food / Energy) & Intergovernmental Relations Committee, recommending that the following be Received for the Record: "EDR 2013-09 Communication (10/09/2013) from Committee Chair Hooser, requesting agenda time for a presentation from Allen Hershkowitz, Ph.D., Senior Scientist, Urban Program, Natural Resources Defense Council on how to maximize waste diversion to extend the life of the existing landfill," Mr. Hooser moved for approval of the report, seconded by Ms. Yukimura, and carried by a vote of 4:0:3 (Mr. Furfaro, Mr. Bynum, and Mr. Rapozo were excused). (Mr. Rapozo was noted present at 2:02 p.m.) FINANCE & ECONOMIC DEVELOPMENT (TOURISM / VISITOR INDUSTRY / SMALL BUSINESS DEVELOPMENT / SPORTS & RECREATION DEVELOPMENT / OTHER ECONOMIC DEVELOPMENT AREAS) COMMITTEE: A report (No. CR-FED 2013-16) submitted by the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, recommending that the following be approved on second and final reading: COUNCIL MEETING 13 OCTOBER 23, 2013 "Bill No. 2500 A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (SHOPO Arbitration)," Mr. Kagawa moved for approval of the report, seconded by Ms. Yukimura, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused). A report (No. CR-FED 2013-17) submitted by the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, recommending that the following be approved on second and final reading: "Bill No. 2501 A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE BUDGET PROVISO IN SECTION 2(E) RELATING TO THE COMMITTED RESERVE FUND BALANCE," Mr. Kagawa moved for approval of the report, seconded by Ms. Yukimura, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused). A report (No. CR-FED 2013-18) submitted by the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, recommending that the following be Received for the Record: "FED 2013-04 Communication (10/10/2013) from Council Vice Chair Nakamura, requesting agenda time to brief the Council on information relating to Kaua`i's Visitor Industry Priorities and Visitor Related Expenses," Mr. Kagawa moved for approval of the report, seconded by Ms. Yukimura, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused). COMMITTEE OF THE WHOLE: A report (No. CR-COW 2013-19) submitted by the Committee of the Whole, recommending that the following be approved on second and final reading: "Bill No. 2499 A BILL FOR AN ORDINANCE AMENDING CHAPTER 6, KAUAI COUNTY CODE 1987, AS AMENDED, BY ESTABLISHING A NEW ARTICLE RELATING TO CHARGES AND FEES," Mr. Kagawa moved for approval of the report, seconded by Ms. Yukimura, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused). COUNCIL MEETING 14 OCTOBER 23, 2013 RESOLUTIONS: Resolution No. 2013-55, Draft 1 — RESOLUTION ESTABLISHING A COUNCIL INVESTIGATING COMMITTEE TO INVESTIGATE THE MANAGEMENT AND IMPLEMENTATION OF THE TRANSIENT VACATION RENTAL AND FLOOD/BUILDING PERMIT ORDINANCES WITHIN THE COUNTY OF KAUAI: Mr. Rapozo moved for adoption of Resolution No. 2013-55, Draft 1 seconded by Mr. Hooser. Ms. Nakamura: Do we have someone from Planning Department here? I do not see anyone. Yes? Mr. Rapozo: We deferred this the last time because Mr. Bynum and Mr. Furfaro were absent and we did not want Mr. Dahilig to have to repeat his presentation. I am not going to defer this again. Mr. Dahilig should be here. Somebody should call him. Ms. Nakamura: He is on his way. Mr. Rapozo: We should have the presentation because we cannot continue to defer over and over. What I want to do is have the presentation, have the discussion, have the public testimony, and then take a vote. I will have more later. Ms. Nakamura: Sure. Mr. Rapozo: I do not want to see this deferred anymore. Ms. Nakamura: Thank you. Mr. Hooser: Chair. Ms. Nakamura: Yes? Mr. Hooser: Just really briefly. Councilmember Bynum did speak with me earlier and he is not feeling well. He has got some health issues and so he is not able to be here, but if it was an urgent matter we might be able to call him in. Ms. Nakamura: I do not think our Council rules will allow a call-in. Mr. Hooser: I mean to have him get in a car and drive. Ms. Nakamura: Oh, call him to come in. Okay, thank you for sharing that. Mr. Hooser: He regrets not being able to be here. Ms. Nakamura: That is fine. Thank you. I see Mr. Dahilig here, so why do not we start with that presentation? I think we just move on. Thank you. Let us suspend the rules and we will get an update on the TVR progress and then we will open it up for public comment. Thank you. We thought COUNCIL MEETING 15 OCTOBER 23, 2013 that we would be having a presentation before you from the Life's Choices, Kaua`i, but they are not here. So, we are moving on to this item. There being no objections, the rules were suspended. MICHAEL A. DAHILIG, Director of Planning: Good afternoon, Councilmembers. Mike Dahilig with the Planning Department here to present the latest update on where we are with the TVR enforcement efforts and I have provided a PowerPoint slide for discussion. Just to go over four (4) points in terms of what we have been doing. I will be discussing where we are with fixing our files, I will go into where we are on follow-up with our inspections, and I have talked about how we have created an inspection team to facilitate the more complex inspections requirements of the Department, as well as you remember from the last meeting that I had with the Council, I talked about essentially findings of weakness that our Department did have within its operations to actually look at as a means for corrective action, and then kind of going into a discussion about where we are with the actual enforcement over in the Department. As you remember, two (2) steps towards corrective action we were taking were essentially hand audits to determine what files were in the folders and what we were doing was taking renewal notices to inform holders of what is present in the files and then the need for them to submit that additional documentation. This specifically, was the requirements out of Ordinance 864, that as I presented to the Council at the last meeting, did have a number of missing documents. So, that was how we tried to back-fill the information requirements that we need in order to do successful enforcement. Just to give you some statistical information, and I put the statistics in the last meeting that we had on August 26th and then added where we are right now on October 7th. You will notice that in terms of how many cease and desist letters we have sent since the last time I briefed the Council, we have actually issued one hundred thirteen (113) cease and desist letters to-date and then on top of that, we have increased the amount of renewals and that is a consequence of how much — we have our bubble, as well as other renewals that are off cycle of that bubble, so as of the day we have processed three hundred twenty-seven (327) renewals. Then moving forward, we have been able to reduce the amount of files that are active without issues. But you will notice that our appeals have dropped and the reason they have dropped we have been able to settle out some of those appeals. But if you look at the bottom number in terms of contested-case hearing to-date we have handled seventy-six (76) contested-case hearings. I think that is a direct reflection in the increase of cease and desist orders that you have seen as well as other enforcement efforts our Department has been doing. In terms of corrective action, each of these findings I had brought before the Council as issues for us to address, and what you see in red are the steps that we have taken once understanding the problem we had to try to again remediate the problem. We have added more staff. We have reassigned the Clerk and temporarily a Planner I, we have created temporary supervisory position for I guess, an Enforcement Division. We have created a contested-case hearings set up. We have increased training with the Prosecutor's Office. We have done hand audits, we have done two (2) and we are actually going through the third one right now. We have, from the opening slide, we have gone and taken an itemization of each file and said, what are the missing documents and we have contacted the landowners to say please provide us these documents. We have actually been able to start the beginnings of our digital database. We have actually put up a listing of every single TVR file that we have, their Tax Map Key (TMK) number, their TVR number, their status, and their COUNCIL MEETING 16 OCTOBER 23, 2013 renewal date; all of that is online now. The only difficulty that we have right now is apparently the County servers will not allow us to upload excel files and so right now it is in pdf form, but we are trying to get some sort of file wall released by the Information Technology (IT) Department to actually allow uploading of searchable excel files. We have passed rules again, to assist with the issue of multi-family versus single-family dwellings. Then, in terms of interagency discussions, we have created a multi-agency team, and we did that. We went through case studies, and we have begun working with the Tax Office to actually cross-reference our TVR files with self-declarations in the annual tax assessments. We think that by communicating with Real Property Assessment we can get a better handle who is publicly declaring themselves as a TVR and who is not and those who are in our system, but not declaring themselves to the Tax Office, we need to make sure that they are captured for tax purposes. Kim Hester has been very cooperative with us and we have been working together on being able to streamline that sharing of information. One of the discussion points and one of the desires of this body when we started this conversation a few months ago was actually moving forward on some of the complex cases and we use these cases to essentially galvanize and establish the lines of communication that were not presently there before. We had initially at the outset, wanted to try one (1) case. We ended up trying four (4) cases using this communication method and just to go over briefly what generically — these are open cases so I cannot really discuss the specifics of it. If there is a desire by the Council, I have the documents that can be reviewed privately. Ms. Nakamura: I think we have a posting for an Executive Session and it been based on feedback that we receive from this body about whether we want to go into Executive Session. Mr. Dahilig: The first case we did we took a look at allegations of the non-compliance with the Floor Ordinance and this was a case that was actually in the chronicles. We conducted a joint inspections between three (3) Divisions on August 6th. We did look at the lower level that was asserted to be non-compliant and the Engineering Department did not find violations with that particular non-habitable space, but did find violations regarding the air conditioning units, the gas tank, and the spa. Our Department and the Building Division did not find any violations and so the County Attorney took the lead and issued flood violation notices on behalf of the Engineering Department for this particular case that we did. The second one was again, an unpermitted improvements. We conducted a joint inspection between the three (3) Divisions. Unfortunately, the structures were pre-firma and there was verification of those substantial improvements for that particular case. Again, the Building Division issued something essentially a violation and they also suggested that the applicant contact the gas company to better anchor the gas source at the ground level. So, that was the outcome of that case. Ms. Nakamura: Can you just clarify "pre-firm." Mr. Dahilig: Pre-firm means that if something was a structure that can be proven to have been established before the adoption of the Countywide Flood Ordinance, that the structure is grandfathered from the application of the Flood Ordinance. So, the requirements as set forth by the Engineering Division do not apply necessarily to that structure. Only in cases where there is an expansion of the structure or alteration beyond a threshold do you see that change. The third case we did was actually a complaint about TVR operating without a certificate. Our Department did a site inspection and we COUNCIL MEETING 17 OCTOBER 23, 2013 forwarded two (2) other agencies and through that communication we realized that there was no other violations from other Divisions. We issued a cease and desist order at the end of August and we have already been appealed on that particular cease and desist notice and right now pending referral to the Planning Commission, but we have already opened the file for contested-case hearing for this particular complaint. Then the fourth one that we did was something that was cited in the chronicles and that was where you had four (4) units on one (1) parcel. One of the units was post-firm and it is a unique case where we actually had a non-enforcement agreement on the property which did provide us some, I guess, some obstacles. But what we ended up doing was doing an inspection of the property and found there was actually non-compliance with Special Management Area (SMA) conditions and also evidence that possibly what was built on the property did not match what was the as-built. We levied a four thousand dollars ($4,000) fine on the property and that fine has already been appealed to the Planning Commission and that will be heard by the Planning Commission at its next meeting in November. I think one of the things that we are trying to resolve is how do we handle withholding situation. As the Council is aware, we do have withholding authority. This may give us some basis because of the pending SMA violations to, once the renewal date does come along again. We have flagged the file and we can actually use the withholding authority to try to suspend the TVR use. Those are four (4) cases that we tried to utilize our new method of interagency cooperation and discussion to better communicate and coordinate enforcement efforts so we are not duplicating efforts and also being able, at the same time, bolster our ability to provide better evidence for the potential for contested-case hearing. As you see in case 3 and case 4, the susceptibility of these cease and desist orders for contested-case hearing is very high and so it is something that we have to make sure that our evidence and our work can withstand a review external to our Department. Just in summary, we have been auditing the files for the timely renewals and as I mentioned before, we had seventy-six (76) contested-case hearings requested. So far, the Departments, through approved settlements through the Planning Commission has brought in thirteen thousand dollars ($13,000) in fines. In November, we have a pending settle of another eight thousand dollars ($8,000) in fines that are coming before the Planning Commission. In total right now in terms of twenty-three (23) cases we have levied enforcement-related actions, we have approximately twenty-five thousand dollars ($25,000) in fines on table and hopefully this will be essentially the seed money to use to more permanently augment our enforcement strategies and initiatives. As I we issued mentioned, we also issues one hundred thirteen (113) cease and desist orders and notices of violations. We have another two (2) cases pending referral to the Planning Commission, and as the previous slide showed, we did resolve thirteen (13) contested-case hearing at the last Planning Commission meeting which yield about thirteen thousand dollars ($13,000) in fines. I think there are results that I am happy with and we have a lot of work to do still. We do have, I think, the beginnings of a framework of what I think can be a sustainable enforcement model for us to employ in the future. I think certainly this initiative has given our Department cause to kind of reevaluate where we are in enforcement efforts and certainly where we are lacking. I think it was very healthy for us to go through this self-searching initiative to really kind of understand what is going on, where our problems are, and what we need to address them. So, that is all that I have to present. COUNCIL MEETING 18 OCTOBER 23, 2013 Ms. Nakamura: Questions for Mr. Dahilig? (Chair Furfaro was noted present at 2:13 p.m.) Mr. Rapozo: I have a question. Mike on page 8, and thank you for the presentation. On page 8, the second to the last slide it says, "Department verified lack of compliant renewal and issued cease and desist letters for those untimely?" How many were the total? Mr. Dahilig: In terms of cease and desist letters sent... Mr. Rapozo: Well, how many lack of compliance — I do not know if I understand how it is written. Department verified lack of compliant renewal and issued cease and desist orders for those untimely. Mr. Dahilig: I guess, Councilmember, what we did is we took a look at the full gamete of our files, looked at which came in before their renewal date; many of these were July 31st of the year. If they had come in for renewal after that July 31st date or for a date set either by the Commission or by another approval in the past, we flagged those as being non-compliant and because they did not meet the deadline, we issued them a cease and desist notice immediately to say that their past renewal was not timely. In terms of how many of them, I believe it was the second part of your question, it would be essentially one hundred thirteen (113) minus four (4) because we have the four (4) test cases that resulted in cease and desist orders. So, you are looking over one hundred (100) of these untimely renewal situation that we had to rectify. Mr. Rapozo: Of those one hundred plus (100+), you are saying seventy-six (76) of those requested contested-case hearings? Mr. Dahilig: Of those, it would have been seventy-four (74) because we have two (2) pending related to the test case 3 and test case 4 as I mentioned. So, those that are specifically related to renewal-based cease and desist orders it would be seventy-six (76) minus two (2) so it would be seventy-four (74). Mr. Rapozo: And thirteen (13) of them, you approved settlements. I am assuming that is what I saw on television last night on the Planning Commission meeting, but what is an approved settlement? Mr. Dahilig: After we issued a cease and desist order, because that cease and desist order was essentially appealed to the Planning Commission, we initiated a contested-case hearing before the Planning Commission. Upon which time there were factual, I guess, discussions between my Department and the Attorneys representing these individuals regarding the circumstances of why they should not be cease and desisted. We argued against it and we came to a particular agreement before the Planning Commission at the last meeting where they were charged a fine. They had to provide back documentation to support their continuing use and then they were reinstated as long as they had to pay the renewal fees. Mr. Rapozo: I guess from what I gather and it kind of validated it here, thirteen thousand dollars ($13,000), so each one paid a one thousand dollars ($1,000) fine? COUNCIL MEETING 19 OCTOBER 23, 2013 Mr. Dahilig: Yes. Mr. Rapozo: And in essence were allowed to continue and I think one (1) of them that I saw last night that was being discussed on the Planning Commission floor was, and I know one (1) of the Commissioners asked the question, what happened to that year because in some cases they were operating without a permit for a year or so? Mr. Dahilig: Yes. Mr. Rapozo: And the settlement washed that away. Mr. Dahilig: There was one circumstance, and I believe it was one that Ms. Nishimitsu had.... Mr. Rapozo: I honestly do not remember which one because there was a lot. Chair Furfaro: It was Lorna. Mr. Dahilig: Yes. Chair Furfaro: I was watching that. Mr. Rapozo: You were watching it too? Mr. Dahilig: Yes. Mr. Rapozo: I picked up on it right away and one of the Commissioners did and said, "What happened to the year?" It is like they went for a whole year and then they get rewarded where they should not be able to operate because they were in violation. They operated without a permit or a certificate. Mr. Dahilig: And factually... Mr. Rapozo: I do not know to whose defense, but the Attorney, maybe it was Lorna said, "Well, my client is not that sophisticated to understand," and I am thinking you have got to be kidding, not sophisticated to run a TVR operation, to do all the necessary paperwork, and the Commission asked the right question but they all just supported it. The way I look at it is we rewarded them. Yes, they have to pay one thousand dollars ($1,000) fine, which is not that much, but now they are allowed to continue. If we had enforced it and stopped the operation, and I think some of the members here — I know the Chair can appreciate this because that was part of this law, was to start the attrition. So, as people stopped the use or started or the use of that property stopped or for whatever reason was taken away, then there would be no more. What we did was we took this person that should have been not operating, but they operated anyway, we made them pay one thousand dollars ($1,000), but now we perpetuated that use forever potentially, which is disturbing and I think that goes against the Council —I was not on the Council at that time, but I was at that table testifying. From what I heard anyway, that was the reason that the Council supported this. It was to eventually get to the point that the properties would be — what is the past tense? Attritioned. But that is not happening. We are prolonging the uses, and it is totally, I think against the legislative intent I was curious as to the rationale? COUNCIL MEETING 20 OCTOBER 23, 2013 Mr. Dahilig: Councilmember, the criticism is well-taken. I mean, I think what the difficult situation given by the issues that we have outlaid to the Council the past few months has yielded, especially when we enter into a contested-case type of situation is that our facts matter, organization matters, defensibility matters, and every time there are situation where our Department has either not sent a letter when it was supposed to or not followed up with a phone call like we were supposed to in the past, that matters, small things matters in these situations. I think part of the discipline we have been trying to instill with the program is that every time you do not do what you are supposed to do and it is not filed correctly or it is not memorialized correctly, that can come down the line and bite us in the end. I think when you look at this particular case you are referring to, our ability to put on a strong case before the Planning Commission was inhibited by a number of administrative errors that happened previously and that we are, as I mentioned in past meetings, trying to rectify systemically. Our ability to memorialize the record, put together a case, defend it well, defend the law well, is strictly incumbent on our ability to do the basics which is filing evidence and return phone calls. I think by our test cases, we have been able to instill that discipline with our staff in saying here is why this matters, because we have to fight before the Planning Commission and if we do not have the facts to fight, we are not going to win these cases and that was the message that we kept on trying to instill with our staff. Mr. Rapozo: Just one last question. Ms. Nakamura: Yes. Mr. Rapozo: This investigation is really to look back and find out how did all of this happen? I mean you have presented a wonderful roadmap of where we are going to go forward, but did your Department or has your Department looked at where the breakdowns occurred? I mean, have you done that? Have you identified and what was the ramifications? What happened? Mr. Dahilig: So each of the corrective action points that we have presented to the Council has its roots in that back-looking evaluation. Where we have gone forth and said, let us look at the files, and let us talk to our staff. Here is where we know that we are exposed based off of input that is coming in from Attorneys that are representing these TVR individuals. Why can we not counter this? That was always kind of question that we asked is well, so and so is saying that they did not get a letter. A letter...yes? Ms. Nakamura: I think...not to disturb you. But I think that is the presentation you made last month was what your findings were as management that was presented to the Council. I am not sure if you were here at that meeting, where the problems that... Mr. Rapozo: I was here. Ms. Nakamura: You were here for that one? Mr. Rapozo: Yes. Ms. Nakamura: The findings? COUNCIL MEETING 21 OCTOBER 23, 2013 Mr. Rapozo: Yes. Where we had problems filing and I understand that part, there are obvious problems. But I guess let me simplify the question. In football if you fumble the ball, coach makes you carry a rock the whole next day at school you carry the rock. You do not put the rock down. Has anybody been ordered to carry the rock? I know you understand football and that is why I used that analogy. I thought my question was clear and I know what you were trying to say, but I am just saying, has anybody been held accountable because some of these neighborhoods, and I am sure you will hear about it, they were destroyed and we had an opportunity to try to fix some of that, but we have not. Now we have perpetuated that destruction going forward. I understand, this all tells me, yes, we have problems. But have we determine why those things occurred and if we have, what was the sanctions? What has the Department done other than having a huddled speech in the morning saying that we need to you work? What has the Department done to ensure this does not happen again? I think that is my question? Mr. Dahilig: I guess I can answer it in two (2) ways. The first way is I have been meeting with my staff almost on a daily basis. So, from a coaching standpoint, they are running extra miles after practice. I will put it that way in terms of understanding what their role is, what they need to do, and that constant double-checking and triple-checking of what their work needs to entail. But I think going forward, what one of the biggest issues and I know that the Chair has mentioned this to me on occasions many times is help was not taken when it was offered. I think it is indicative of our overall Enforcement Division because I am using the word "Division," but there is really not a division per se. What we needed to do was bring somebody that focuses strictly on enforcement activities alone, coordinates the efforts among all of the inspectors, and then takes the lead in terms of ensuring that things are processed timely, things are evaluated timely, and that you have the high-level planning ability interjected into these decisions because what we found is that a lot of evaluations and a lot of the work was being done by personnel that was not supposed to be doing it in the first place. You had inspectors that were evaluating for non-conforming use and as you know, in many discussions with our Attorneys, non-conforming use is a technical legal issue that our inspectors are not normally trained in. So, what we did to try to fix this remedy, we brought in a high-level Planner to oversee enforcement activities and coordinate between the different inspectors. We brought in an additional low-level Planner to help with the processing. That is what our biggest issue, Councilmember Rapozo, in understanding why did this happen and it was because we were understaffed with the wrong staff for what was supposed to be a very technical evaluation back then. Mr. Rapozo: Thank you. Ms. Nakamura: I would like to do a follow-up question to Councilmember Rapozo. I am on page 3, the second slide. Your additional staff resources moved to enforcement and is that a long-term fix or is that a short-term fix? Mr. Dahilig: All of the Human Resource elements that we have put into place to try to at least stand up the framework of an Enforcement Division have been temporary. It has come at a cost to our Department's ability to focus on other areas. For instance, in Long-Range Planning our Planner I has had to move to this Enforcement Division. We have also had to do some juggling of COUNCIL MEETING 22 OCTOBER 23, 2013 resources where we have not been able to hire a Coastal Zone Management (CZM) Planner. Ms. Nakamura: So moving forward, what is long-term fix? What is the long-term solution to ensure that this is not just from now to the end of the year fix, but this is an ongoing function? We have not even begun to look at other types of TVR abuses that have been put on hold because of the need to really delve into it. What is the long-term solution-staff wise? Mr. Dahilig: I think the long-term solution is to make permanent the positions that we have created temporarily in this effort. I think a high-level planner, Supervisory Planner, that would essentially act as a Division Chief within our Department and create an actual Enforcement Division that is not there right now. That is, I think, what is needed as I have been learning from these efforts. As well as a Point Planner to actually take care of the renewal process. It is a pretty robust process. The Planning Commission is going to be looking at rules in November that actually try to fold back in a lot of the requirements that were under Ordinance 864, back into the renewal process. There is a mechanism that we are able to use in the Charter that allows the Commission to make those rules. I think what this low-level planner would have to be doing is evaluating the documentation beyond just the TAT and General Excise Tax (GET) certificate, but also looking at if somebody has a GET certificate for four (4) different properties, how does it prove actual sustained use? I think those are the questions that the low-level planner will be asking. Ms. Nakamura: Thank you. (Ms. Nakamura returned Chairmanship to Chair Furfaro.) Chair Furfaro: Mike, I am sorry, I am getting ready to go to the Statewide Water Conference so I am going to be leaving. Let me say first of all, as I know it, the past tense for the word "attrition" is "pau." We are pau with this. I want to be on your next agenda with the Planning Commissioners because I want to tell them, advise the Administration what kind of staffing needs you need. A letter is coming over from me, I am going to speak to the Commissioners. This kind of narrative that I am watching the television, my gosh. The whole thing we did was we said we are going to close this through a system of attrition on the applications for the annual review and so forth. People quite frankly were asleep at the switch and now I know a little bit about it. I need to get them serious about where do we go from here. I think that is a big part of this. I also know from the standpoint of this forty-six thousand dollars ($46,000) in fines and so forth, this does not just go in the General Fund account. I hope you are sharing the information, this goes to your resource needs now. Mr. Dahilig: Yes, we are. Chair Furfaro: I would like to know as we get ready for these early discussions about budget, I would like to know what you really need. Mr. Dahilig: Okay. Chair Furfaro: I do not want to hear it after you go through the Administration and then the Administration tells us. For two (2) years I am COUNCIL MEETING 23 OCTOBER 23, 2013 saying, what do you need in the way of resources? Oh, Chair, we are fine. Oh, Chair, we are fine. We are not fine. Mr. Dahilig: Right. Chair Furfaro: We have got to really focus on the criteria for people who have earned that certificate, because they met all of the standards. We need your staff and I want to thank them. I see five (5) of them here, I want to thank them for their work on this, but this is just the beginning. This is going to be an ongoing process. The other thing that I have to tell you, these are now Attorneys on our island that are testifying in front of the Planning Commission. I tell you what, quite frankly, I get a bit turned off when I see them now making the suggestions for their clients. The tail is wagging the dog in the instance sometimes here, not acceptable. Now Mike, I want to also say, my disappointment is with the Managers that did not follow the detail of the applications prior to your tenure. I think it is very obvious, but we need to send a really strong message going forward that we are on top of this every day, we get revenues for, we changed the tax categories now for it, and so that should be generating some funds for us to keep the parameters of the controls in place. But I want to get on your next agenda at the earliest convenience. You will be getting correspondence to speak to the Commissioners on this and we still have a long way to go. But I think we have to focus on getting everything right going forward. We could beat the horse blue finding out all of these other problems that exist, but how are we fixing them? How are we fixing it? We have a different Planning Director, we have a different Deputy Planning Director, but we also need a little bit of an attitude towards some of the Council that is speaking in front of their client to let them know, it is our County, it is our jurisdiction, and they can certainly represent their client's challenges, but the outcomes has to be ours and that is Mr. Jung and Mr. Castillo, that message. Thank you. I am back and forth out of meetings, so I am going to give you the meeting back. Ms. Nakamura: That is fine. (Chair Furfaro, the presiding officer, relinquished Chairmanship to Ms. Nakamura.) Chair Furfaro: Can we have some personal privilege here? Ms. Nakamura: Councilmember Yukimura. Ms. Yukimura: Thank you. The Chair has to leave at 3:30 p.m. and I would like to do a brief personal privilege please? Ms. Nakamura: Sure. Chair Furfaro: Can we just recess for a second from this meeting? Ms. Yukimura: Could we interrupt? Ms. Nakamura: Yes. We are going to interrupt this session and give Councilmember Yukimura personal privilege. COUNCIL MEETING 24 OCTOBER 23, 2013 (Ms. Yukimura took a moment of personal privilege to present a certificate to Ms. Nakamura.) There being no objections, the Council recessed at 2:41 p.m. There being no objections, the Council was called back to order at 2:55 p.m., and proceeded as follows: Ms. Nakamura: We are going to continue with Mike Dahilig. Thank you. We will ask Mike Dahilig to come back up. Sorry for the little delay. Why do not we just continue on? Questions for Mr. Dahilig? Councilmember Kagawa. There being no objections, the rules were suspended. Mr. Kagawa: Thank you, Mike. I know I was one of the Councilmembers who decided to not support 3.17 and give you some time. One of the steps that we wanted was what you have done here which is to use these cases brought forth by Kaua`i Ecletic, Barbara and Caren. It looks like of these four (4) test cases I see you cited case 1 and case 4 as being two (2) of the cases that were cited in the abuse chronicles. Mr. Dahilig: Yes. Mr. Kagawa: Or is case 2 and case 3 coming also from that list? Mr. Dahilig: Case 1, case 2, and case 4 actually involved the chronicles. Case 2 also stood for that. Mr. Kagawa: Three (3) out of the four (4) were from the abuse chronicles? Mr. Dahilig: Yes. Mr. Kagawa: The first one, we found that there are some flood violation-types? Mr. Dahilig: Right. Mr. Kagawa: Where are we on that? Mr. Dahilig: Part of the discussion between the agencies was what agency is best suited to enforce on a particular provision of law? Where we are in case 1 and 2 is that we felt through consultation with the County Attorney's Office, that the most appropriate agency to move forward on the flood violation issues was the Engineering Division so they issued, I guess, rectification actions based off of their authority. Mr. Kagawa: Is that similar to how I think that is one of the problems with the violation that we find and ask for corrective action. It is like if you do not want to comply with the law, then just go build it and the County will tell you how you can comply. It is almost like we actually do not want people to build it without getting the permits first, right? COUNCIL MEETING 25 OCTOBER 23, 2013 Mr. Dahilig: Right. Mr. Kagawa: But is that a similar way, like we are trying to get them in compliance now? Mr. Dahilig: In this particular case, I believe that was the effort of the Engineering Division is to get these guys into compliance. Unlike Engineering, our Department has the fining authority and as the Council passed a few months ago the ability to actually place punitive measure an after the factor permit has been more a deterrent in terms of what our over-the-counter questions have been. It is certainly the situation that you are referring to that we want to have people ask first and then build, not build first and then ask. Mr. Kagawa: Councilmember, I think they are all here. Do you want me to stop and we can continue. Thank you. Ms. Nakamura: Sorry, Mr. Dahilig, but we are going to have to interrupt yet again. Mr. Dahilig: No problem. Ms. Nakamura: But we do have a scheduled certificate presentation to make. There being no objections, the Council recessed at 3:00 p.m. There being no objections, the Council was called back to order at 3:37 p.m., and proceeded as follows: (Council Furfaro was noted as excused.) Ms. Nakamura: Councilmember Kagawa has the floor. There being no objections, the rules were suspended. Mr. Kagawa: Thank you. Mike, so case 1, Engineering is looking at the flood violation notices? Mr. Dahilig: Yes. Mr. Kagawa: And that was because they did not submit permits prior? Mr. Dahilig: There is allegations that the lower level was converted to a habitable space and then being used for Transient Vacation Rental use. So, that is why the case was selected because it was a classic cross jurisdictional issue where you had essentially a multi-family dwelling situation, that is why we were involved, Buildings was following-up whether or not as-builts that they have matched the floor, and then Engineering had to verify whether the walls constructed on the bottom floors are essentially up to Flood Code is and whether there is actual usage of the bottom in the manner that is not allowed under the Flood Code. That is what the August 6th inspection was, was to essentially verify those elements. COUNCIL MEETING 26 OCTOBER 23, 2013 Mr. Kagawa: Test case no. 2. Mr. Rapozo: Can I ask a follow-up on number one? Ms. Nakamura: Councilmember Rapozo. Mr. Rapozo: The flood violation notice that were mentioned, what are those? Because you talk about — pretty much your bullet points says that nothing was wrong except for air conditioning units, gas tank, and the spa. Mr. Dahilig: Yes. Mr. Rapozo: Are those the flood zone violations? Mr. Dahilig: Those are the flood zone violations. Mr. Rapozo; Because what? Mr. Dahilig: For instance, the air condition unit, the gas tank, and the spa have to be either anchored a certain way pursuant to the Flood Code or they need to be removed because it is an impediment to the free flow of the water, as far as I understand. Mr. Rapozo: So, Engineering sent out notices? Mr. Dahilig: Yes. Mr. Rapozo: This was based on an inspection done on August 6th. Mr. Dahilig: Yes. Mr. Rapozo: But the chronicles talk about a much earlier time. Did we look at whether or not when the chronicles are referencing these violations did we check that or just go from an inspection that was done on August 6th? Mr. Dahilig: We have to do an actual, physical inspection to initiate an order to show cause. In this particular instance, we took what was outlined in the chronicles as a groundwork for complaint and then we used that as a basis to then do the research in the file, tee up an inspection, and then the physical inspection was to verify the compliant or not. Mr. Rapozo: The allegation or whatever the chronicles referenced these violations may have been occurring was much earlier. Mr. Dahilig: Right, and so as the chronicles, we can only treat as a complaint because unfortunately, and I mentioned this to Barbara and Caren at some point. I wish we could have somebody who was deputized that could actually create this evidence for us. But the best we can do with the information that came through the chronicles is treat it as a complaint, use it as a basis for research, and then conduct our own investigation. COUNCIL MEETING 27 OCTOBER 23, 2013 Mr. Rapozo: Thank you. Ms. Nakamura: Councilmember Yukimura has a follow-up and then we will go back to Councilmember Kagawa. Ms. Yukimura: I am not sure that I heard Councilmember Rapozo correctly. But was there advertising related to this unit? Mr. Dahilig: This one, I am not one hundred percent (100%) certain whether or not there was or was not. Let me check. Ms. Yukimura: So, there is no certificate on this unit? Mr. Dahilig: No, there is a certificate on this unit. Three (3) of the four (4) that we did had certificates. Ms. Yukimura: They are using the second level as a TVR? Mr. Dahilig: That is correct. Ms. Yukimura: There might have been advertising that they were also using the bottom unit as a TVR? Mr. Dahilig: If I remember chronicle correctly, there was, I guess, they did have information that said that the bottom floor was being used as another rental. So, there certainly was that, the need to verify whether or not that activity in fact, was what happening or not happening? Ms. Yukimura: What was the time between the allegation and the investigation? Like, would it have given them time to remove the rental? Mr. Dahilig: I guess we treated the allegation when the chronicles were coming out in the spring and then the inspection was actually in August. It was that time period between the spring and August that may have, I guess, that period, that lag, if you are alluding to it. I think one thing to note we cannot conduct inspections of a property without rights of entry unless we have a warrant or if we are in a situation where we have probable cause, we can go to the courts and conduct some type of... Ms. Yukimura: Was there not language in one version of the Bill that advertising was prima fascia evidence of a vacation rental? Mr. Dahilig: That was in one version of the Bill. Ms. Yukimura: But it is not there anymore? Mr. Dahilig: No. Ms. Yukimura: Do you need that? Would that help you? Mr. Dahilig: I think it helps, but at the same time, just on advertising alone, what we found is situations where people have put advertisements about a certain unit online and then you call the number that they have. My inspectors can actually attest to this. What they will say is "Oh, that unit COUNCIL MEETING 28 OCTOBER 23, 2013 is not available. Why do you not try this other unit?" In one case, we have actually had an online posting that was lifted by somebody that had actually stopped operating their TVR. So, having the lift of pages and the copying of pages and information from page to page and we made suggestion to the Realtor's Association that they may want to follow-up with certain realtors about copying a webpage, publishing it as their own to try to attract somebody, and then saying that is not available, but the information is antiquated. Ms. Yukimura: So, your answer to my question is "no," it would not be helpful? Mr. Dahilig: It does not provide the sufficiency of evidence that would be needed if we were challenged to assert that there was any legal use going on. Ms. Yukimura: Well, prima fascia means, do you not assert it as evidence and they have the right to refute? Mr. Dahilig: Right, they do. But in those circumstances when the host of the web page is not even the owner of the actual TVR unit, we ran into problems trying to package a contested-case hearing by saying here is the prima fascia evidence of the web page and they come back to us and immediately say, "That web page is not hosted by us, somebody copied our web page." I know it is very nuance, Councilmember, but it weakens our ability to use the websites as a strong indicator of illegal usage of the property because of the games that the realtors do play. Ms. Nakamura: Thank you. Back to Councilmember Kagawa. Mr. Kagawa: I just kind of want to summarize. I think we would be here all day, if not. Test case 2, allegations of unpermitted improvements to property in violation of Flood Ordinance. So, it is another case where people are not getting their permits and then doing improvements or what have you and I say that is a way to actually take advantage of the County because we do not really penalize people for not following the laws. Let us say, "take it down, the building is no good." We actually work with them and say, "Well, this is the way we can help you comply." It just does not really make sense. It does not serve as a deterrent. Mr. Dahilig: I think and part of the frustration, I hear you saying Councilmember, those come from organic laws that these zoning codes come from through State Code and in certain circumstances and I am just making generalized statement here, but in particular, when you look at our civil fine authority, the State law encourages education and compliance first before punitive means. I agree, it is maybe not the right framework for wanting to instill a message of compliance right off the bat with these particular cases, but it is what tools we have. Mr. Kagawa: Then in test case 3, I am kind of happy this is out. Is that abuse chronicle one too? Mr. Dahilig: It is a complaint. COUNCIL MEETING 29 OCTOBER 23, 2013 Mr. Kagawa: It looks like we issued a cease-and-desist order? Mr. Dahilig: Yes. Mr. Kagawa: But they are hiring an Attorney to challenge our TVR Ordinance? Mr. Dahilig: Yes. Mr. Kagawa: Their basis of doing that is what, saying that well we allowed a lot of people to have TVRs without really checking? Mr. Dahilig: Not being able to do too in-depth, but the legal principles that they asserting as counter to our cease and desist orders are along the lines again, of grandfathering and those types of legal principles that are pretty well established in case law. Mr. Kagawa: Test case 4 says that is another positive one. This is from the abuse chronicles. It says we levied four thousand dollars ($4,000) in fines. Mr. Dahilig: Yes. Mr. Kagawa: Other agencies tied up in non-enforcement agreement TVR certificate to be withheld. So, we have not withheld it already? We are thinking about withholding it. Mr. Dahilig: Yes. The next renewal cycle, the certificate will be withheld. It has been flagged. But this is one that, as you see from the bullet point above that, their Attorneys have appealed the fine and are in fact, appealing the cease-and-desist order. What they are saying is that it is an illegal cease-and-desist order and they do not agree with the findings of the Department, so we are having to defend against that. Mr. Kagawa: At least we are moving in the right direction. We are finding some wrong doings that are actually being provided a lot by Joan and company. At least we are trying to get things to comply. They obviously are hiring their Attorney staff to fight what actions we take, but these are positive steps. The last thing I want to ask is in talking to people out in Planning, they are saying that in the last two (2) months we have come a long way and we cannot determine that from the chair here. But if you could just summarize what has come a long way in the past two (2) months? Has it been the files, these four (4) test cases that are starting to move things or we are picking the low-hanging fruit that were actually running? What is your response to we have come a long way? Mr. Dahilig: I think what the takeaway, if that is what I would say is that we have a stronger frame work for enforcement. We have protocols for carrying things all the way from a complaint all the way through to a contested-case hearing where we never had that before. We have a way of organizing quasi-judicial hearings before the Planning Commission in ways that have not had before. We have a method of immortalizing inspections that we have not had before. So, we have been able to at least very carefully start to build the framework of what I would call an Enforcement Division by trying to pull together COUNCIL MEETING 30 OCTOBER 23, 2013 the leadership as well as the protocols and the manpower to then follow through with a lot of these actions. I have been very blessed to have the staff that I do have to try to get with the program and help provide feedback on how to do things better and I think we have been yielding results. Beyond these four (4) cases, and I just want to mention this, that we are actively still receiving complaints about TVRs. I do have information regarding something of that that I probably should not divulge because they are active investigations. But since this has happened, we have had over twenty-five (25) active complaints that we are working off of and by utilizing the tools, the procedure, and the protocols that we have learned to develop over the past few months, I am hopeful that these particular situations will be handled properly and that they will be essentially shutdown. I think case 3 is indicative and why I wanted to highlight that one is because it was not a chronicle case. It is something that came in over complaint, we handled the protocols appropriately and it led to a contested-case hearing where we are able to, I believe in my judgment, fight and defend the law which is that you are not to operate a TVR outside of the VDA. I think that is where we are right now. Mr. Kagawa: Just a last final question. We have done three (3) of the abuse chronicle cases and in all three (3), we are finding areas where we have a case that may lead to some type of action. Mr. Dahilig: Yes. Mr. Kagawa: There has been what nineteen (19), twenty (20) of the chronicles? Is this just the start? Will we be looking at more of the abuse chronicles? Mr. Dahilig: I guess I can — not to divulge too much of the strategy that we have in terms of how we approach the chronicles. I do want to say though that we look at every single one of them and it was a multi-Department team that looked at every single one of them. It was not just our Department. We had the Health Department come in, we had ourselves, the Building Division, and the Engineering Division come in and actually sort through the findings that Joan had through her blogs and also complaints that we had gotten, supplemental material that we had gotten from Ms. Diamond and Ms. Robeson to kind of evaluate where we are factually with our files and then where we are in terms of being able to move forward with an inspection and enforcement. What you see as these cases is really culmination of an evaluation of everything. But these kind of rose to the enforcement level because we were able to, I believe, able to move forward with a case. Mr. Kagawa: Thank you. Ms. Nakamura: Councilmember Hooser. Mr. Hooser: Good afternoon. Mr. Dahilig: Good afternoon. Mr. Hooser: Just a few questions. There is a permitting fee when it is renewed, is that correct? Mr. Dahilig: Yes. COUNCIL MEETING 31 OCTOBER 23, 2013 Mr. Hooser: How much is that? Mr. Dahilig: The Council just changed it. It is now five hundred dollars ($500) a year. Mr. Hooser: So, the Council has to do that legislatively? Mr. Dahilig: To change the fee, yes. Mr. Hooser: Is that fee sufficient to cover the cost of regulation? Mr. Dahilig: No. I will say that it certainly helps support the added costs that I am having to absorb right now. But if we were looking at it as a zero-sum cost basis, I would say that the fee would have to be four (4) to five (5) times that. Mr. Hooser: Four (4) to five (5) times? Mr. Dahilig: Four (4) to five (5) times that. Mr. Hooser: So, two thousand dollars ($2,000), two thousand five hundred dollars ($2,500) annual fee? Mr. Dahilig: Yes, annual fee. Mr. Hooser: And that would cover the direct costs? Mr. Dahilig: Yes. Mr. Hooser: I believe by law, that is all were allowed to? Mr. Dahilig: I believe given what we have as comparable salaries for these positions, that is where I would be basing that multiplier on, Councilmember. Mr. Hooser: The penalties, you said twenty-five thousand dollars ($25,000) or forty-five thousand dollars ($45,000) in fines? Mr. Dahilig: So far we have levied twenty-three thousand dollars ($23,000). Mr. Hooser: So, that can be used for the cost of regulation also? Mr. Dahilig: It is a little unique in the sense that the legislation that was passed creates a special account just for enforcement only. I would not be able to use that money for processing of the TVR applications. It would strictly are to be used for the actual inspections/enforcement and those types of things. Mr. Hooser: I guess what I am getting at is that I think it would be useful for the Council to have that math to see. If we wanted to do a reasonable enforcement effort and pay for the regulation, we take those two (2) pots COUNCIL MEETING 32 OCTOBER 23, 2013 of funding, what would they need? You can predict, I suppose the fines and then the remaining amount would be divided by the permits and what would that be? I think that would be useful to have. My second question focuses on the advertising that Councilmember Yukimura. I am just sitting here thinking about and I just could not get it. If I am renting a house, illegally, and running ads, why could that ad not be used as evidence against me or if my agent is running ads for my house illegally, why could that not? I understand there are renegades taking a picture or taking my ad and doing it, but if you just set those aside for a second, if you want to rent a house out, it is either money goes to the owner or to the owner's agent so they are running advertisements. It seems like that would be direct evidence that they are violating the law. Mr. Dahilig: I whole-heartedly agree with the concept. I might be mistaken. Actually, as I am thinking about, it may still be in the law. I do not have a copy of the Ordinance in front of me, but the principle makes heck of a sense when you are looking at it. If I am affirmatively saying I am renting out my bottom and top floor as units, that should give us cause to say, "You are saying it," right? Mr. Hooser: Right. Mr. Dahilig: There are instances we used it to help support a larger case, but having that one element or one admission on the website becomes — the defensibility of it is weak given what we have tried to do with it in the past. So, it helps from a circumstantial framework, but if I were to rely on the advertisement alone, I think we would have weaknesses heading before the Planning Commission or Hearings Officer and we just need more beyond just that one thing. Mr. Hooser: Thank you. Ms. Nakamura: Councilmember Rapozo. Mr. Rapozo: When you have an ad, I mean, one of the parts of the Ordinance is that you cannot advertise a house without the TVNC number. Mr. Dahilig: That is correct. Mr. Rapozo: That is clear. Mr. Dahilig: Yes. Mr. Rapozo: So, when you have an ad and I am assuming that test case 1 is the Pohaku house. But when you have an ad like this that comes off the internet, it is right here, and there is no TVNC at all, do we even take a look? It is illegal. This ad is illegal. Mr. Dahilig: Right. Mr. Rapozo: Whoever posted the ad up, whoever posted the ad is in violation of the statute, not necessarily the owner. I mean, www.Geneandabbot.Com, if I had my iPad I would punch it up. I would assume that has some contact information, phone number or something. Why would somebody just post a vacation rental with no opportunity to make money? That COUNCIL MEETING 33 OCTOBER 23, 2013 makes no sense. You would think that someone would call Gene and Abbot and say, "What is up?" But we did not do that? We are just discounting the ads and saying we are not even going to look at them? Mr. Dahilig: No. When we get a complaint about a TVR, one of the first things we do we go to Vacation Rental By Owner (VRBO) or we go on a website an actually look at the ads because that gives us some indication as to one, what are they advertising and two, are they meeting, as you mentioned, the letter of the law? So, the complaint is what initiates these reviews. Once the actual ad is compared with what physically is on the ground or if we were to use the contact information to call, as I mentioned previously, what happens is that they say "We do not have that house available. Here is another one we have that is available." So, having the ability to tie the ad to a physical parcel of record becomes difficult because those two (2) things have to match. For me to issue a cease-and-desist order, I cannot issue a cease-and-desist order to an individual. I have to issue a cease-and-desist order to an actual parcel of record. If somebody is actually putting up ads without any type of parcel tracing, then the only recourse in that respect is a criminal enforcement at that point. Mr. Rapozo: Correct, and that is what I am saying. I am not talking about cease and desist. I am talking when you have a clear violation of the law, which is the basic one, is that the TVNC on an ad. Mr. Dahilig: Right. Mr. Rapozo: And that is absent, it is missing, that is a violation. To me, when you talk about low-hanging fruit, that is it. I do not think we have ever issued anybody a citation for advertising a property without a TVNC number. Mr. Dahilig: I would concur with that statement. Mr. Rapozo: To me, that is the lowest hanging fruit of them all because when you talk about prima fascia, you either have it or you do not. You either have the TVNC number on the ad or you do not. You cannot appeal that. It is what it is. Did you have it or did you not? Did you have a safety check on your bumper or did you not at the time you were stopped? That is what I guess I am struggling because you are giving us every reason why we cannot do these things and yet when I go to VRBO, there is just a bunch. Just type in Kaua`i Vacation Rentals on Google and there is a ton of ads without numbers and we all know where those properties are. The fact that this ad here does not have an address, but it states the Pohaku house, we all know where the Pohaku house is. We know exactly which house is the Pohaku house. So, if the guy says that is not available, really, it does not take much to get that information. This one here is very clear. I mean, it tells you that the lower level has a suite, separate kitchen, bathroom, jacuzzi, tub, and shower. It is clear and it is a great tool. We should not be discounting these things and it is a great way to start an investigation. I guess I am saying that we are not doing that. We are not and for me, that is the troubling part. Ms. Nakamura: Is that something that you would consider doing in the future, what Councilmember Rapozo... Mr. Dahilig: I think it is something that in terms of partnership with an agency that actually has the ability to enforce against the COUNCIL MEETING 34 OCTOBER 23, 2013 person versus the parcel, that is something I would need to have the discussion with the Prosecutor about. I think Councilmember Rapozo raises a good weakness that we need to address. Certainly, there are criminal acts that I wish I had the ability from a civil standpoint to be able to address, but being able to tie that to a person from an enforcement standpoint is an ability that my Department does not have. Ms. Nakamura: Councilmember Hooser and then Councilmember Yukimura. Mr. Hooser: Just to follow-up. Sometimes I think deterrents get left out. We want to prosecute, lock people up, throw away the key, and take away their permits, but just deterring people from doing the action. Again, I am having a hard time wrapping my arms around it. If somebody called that ad, why can they not just say I am calling from the Planning Department and you have an ad, you do not have the TVR number, this is a warning, and just gather the information? I mean without — and just do that, just have somebody doing that all day long and keeping track of it. It seems like it is a fundamental basic step and even if they said, that the property is not available for rent now, that does not matter, what matters is that they are supposed to have the TVR number and who is responsible. Just, administratively nobody has to go out to the property, there is no contested-case hearing, and there is just this pure deterrent kind of action. Mr. Dahilig: I think it is a great perspective. It is certainly something that we can do more of. Part of deterrence is just presence. I understand and maybe having that presence is needed and certainly, I could have that discussion with my staff about that. Mr. Hooser: Do you document it and develop warning letter or maybe two (2) or three (3), they escalate? I do not need to be here trying to tell you to do your job even though we are offering suggestions, but it seems like a low-hanging fruit. It does seem like it is so in your face to see these ads that are blatantly illegal. Mr. Dahilig: It is a point well-taken. I think it is something I can take back to my staff. Mr. Hooser: Thank you. Ms. Nakamura: Councilmember Yukimura. Ms. Yukimura: One follow-up on the phone call thing, do you stop when they say it is not available? Why do you not say, "Will it be available at another time?" Do you go through all these kinds of questions? Mr. Dahilig: I am generalizing here. I cannot speak specifically on that, but what usually happens is the ad, when it is first reviewed, once a complaint comes in and a call goes out to try to verify what is there and is it available. In terms of how the ad comes into play in the overall building of the case, what happens is if we are unable to verify that what they are advertising on the website is actually what is being complained about, that already presents us some problems when we are trying to use the ad as part of building a case. COUNCIL MEETING 35 OCTOBER 23, 2013 Ms. Yukimura: I understand that. It is just that at that point, you are not trying to bring it to court or even before the Planning Commission, you are just trying to find out as much as you can about that unit. Mr. Dahilig: Yes. Ms. Yukimura: This exploration of oh — I am assuming that your people are posing as someone who wants to rent it, right? Well, if it is not available now, will it be available later, blah blah blah and just pursue it until you know as much as you can about it. Anyway, more long-term, the Chair said what resources do you need? He wants to know your answer to that question. Well, I want to know. He also said how are you fixing the problem? I guess I want to know what your goals and objectives are long-term? Mr. Dahilig: I think what our goals and objectives are long-term is the ability to have one, an online and digital database that we can rely on. We are getting there. We started to have the first printouts of that database and we are staring to make that available online. That database becomes essentially a repository going forward over time that allows us into the future be able to get the information that we need to enforce. I would like to be able to have the renewal and repository of withholding situation at a point it is well-oiled so the focus of my Inspectors can move and my Inspection Team to move to those not hitting the system, things that are real raw complaints like you see in test case 3. Then I would like to be to the point that our staff is actually comfortable with handling and building cases that can be brought to contested-case hearing. I think that comfort only comes with time after going through this process so many times. Certainly, again, Councilmember Hooser's point about the deterrents, I think that does present an angle that maybe I have not explored much. But I think does give us some cause to look at is there a better way at trying to create a culture of compliance versus just banging people with fines and that is something that we probably can explore as we are looking at to the future. I would say having strong leadership in a Division and having an organization around leader is something that I want long-term because when you create an actual Division that is focused on one task versus having it spread among different units within my office, it unites people for one purpose and one purpose alone, which is enforcement. Ms. Yukimura: I think those are very good things to aim for. They are mainly enforcement infrastructure. Mr. Dahilig: Right. Ms. Yukimura: But what is your goal with respect to outcomes and results? Mr. Dahilig: I am constantly reminded and after we had the meeting two (2) weeks ago, that we did not have. I am reminded of the fact that these vacation rentals outside of the VDA are hurting communities. They are, and the best I can do as a Director is that if we are able to very strictly and very cleanly apply the law that the Council has passed, that naturally people are going to, I guess, these numbers are going to go down because in as much as I would like to say that we are going to change the zoning law and that these things are no longer permitted, the principle of grandfathering and use and structure are principles that are there. I one hundred percent (100%) agree that vacation rentals are not what I would consider a community-building activities. They do tend to calcify the nature COUNCIL MEETING 36 OCTOBER 23, 2013 of a community. I look at maps that I know I have represented before the Council that show areas like Wainiha and Ha`ena that are red with vacation rentals. It is a real problem. Ms. Yukimura: But the policy was supposedly set by the law. Mr. Dahilig: Right. Ms. Yukimura: It said no more vacation rentals outside of visitor areas, except if you are already operating at the time that the law passed. Mr. Dahilig: Right. Ms. Yukimura: Unless you are recommending a new law, your goal is to make sure that no VDA that was grandfathered in, which did not actually deserve to be grand fathered in, I would think, right? Mr. Dahilig: Right. Ms. Yukimura: I am not sure how well you are achieving that. You did say that there were some cases that were done irrevocably before your tenure and before you put your team together. I would like to find how many did you find that were irrevocable that could have, if caught early, would not have been grandfathered in, but given the process that the County has followed or not followed, we are not able to revoke the certificates. That is a lesson of history I am presuming. If you know mechanisms by which that happened, it would be very useful. I think that was one of the intents of the investigation. But then the other part, if you are looking ahead, is so there are those, then there are the others. I am not sure how many there are anymore that can you remedy, and then there were those that are cropping up now, do not have any grounds for grandfathering, but are in operation which would be like any illegal building without a permit. It seems to me and I would like to know clearly what the goals are? If you are going to ask us for resources, what your goals are with respect to those categories so that we can say, and I guess some of the infrastructure you are talking about and the creation of a culture of compliance is what you would achieve if you had this cracker jack team that just goes out and nips it in the butt wherever you have illegal vacation rentals starting without any grounds for it. Mr. Dahilig: Right. Ms. Yukimura: I do not know. If that is your goal, how are you going to get there and what you need? Mr. Dahilig: I know the focus has been on TVRs, but what I believe this framework also yields is better compliance with the CZO. Mike not only oversees the TVR program, but he has been overseeing CZM. What he has been able to do with his work our CZM enforcement, is that even beyond the fines here we have been yielding a number of fines on that end too that we are not reporting, but it is because of the CZM compliance. I think having a structure where the uniformity of enforcement not only just over TVRs, but over Chapter 8, Chapter 9 and Chapter 205(A), that is the leadership that I think we do need. But as we pare down specifically to the TVR issue, I need to get to a point where I have a team that focuses less on administrative and remediating the situation that we are in right now and really forcing the issue when it comes to those that are COUNCIL MEETING 37 OCTOBER 23, 2013 cropping up, that have no certificate, that have not hit our system, and that I think from a message standpoint, needs to be shifted because what has really and I know it is a difficult situation when you say that we are enforcing more heavily on people that have availed themselves to our system versus those who do not even come hit our system in the first place, and that is really the goal. The goal is to get this manageable with protocols so that it is not taking up the amount of time it is taking right now so that we can move the human resource over to those that are trying to reap a benefit for something that they are not permitted to do in the first place. Ms. Yukimura: Page 3, your file progress. I mean, you are going to have a goal to reduce and complete the appeals. Mr. Dahilig: Right. Ms. Yukimura: Successfully, hopefully, and then those are kind of the pending cases of the grandfathering problem. No? Mr. Dahilig: Yes, in some degree. But I would also say that I would say the appeals are a way of life. They will be a way of life moving forward. As we get into enforcement, not just can TVRs, but just general code violations, we have a couple of contested-case hearings that have come up that are based off of Chapter 8 violations. It has nothing to do with TVRs, but given our ability to levy fines now, there is some... Ms. Yukimura: These are not only TVR cases? Mr. Dahilig: No, these are only TVR cases. We are looking at things that is even beyond even the TVR cases. Ms. Yukimura: I know you are, but I guess I am looking for some kind of completion with respect to the TVR grandfathering cases. Mr. Dahilig: Yes. Ms. Yukimura: Then a system to address these TVRs that are that are cropping up now. Mr. Dahilig: Right. Ms. Yukimura: Then your long-term goal of CZO enforcement. Mr. Dahilig: Right. Ms. Yukimura: But it would be good, if you could do that analysis in three (3) parts or even two (2) parts first, especially if you are going to be justifying permanent positions, etcetera, etcetera? Mr. Dahilig: I think the high number of contested-case hearings that you are seeing is a direct result of clean-up and it is a bubble. In terms of sustained contested caseload, given the fining authority and the consistent maintenance that is going to be required of the program, there will be people that do not comply. Just this past year, as you saw between 2012 and 2013, we had a dozen or so that did not meet the renewal deadline and so that falls into again, a COUNCIL MEETING 38 OCTOBER 23, 2013 situation where we have to initiate contested-case hearings. It is a maintenance situation. I do not foresee TVRs as being a one-time shot with respect to contested- case hearings, but the load that you are seeing right now, I do not think is indicative of what you will see in the future. Ms. Yukimura: Thank you. Ms. Nakamura: Councilmember Hooser. Mr. Hooser: Just kind of following up. Earlier I mentioned the concept of having the people who receive the permits paying for the regulation. Mr. Dahilig: Right. Mr. Hooser: I had asked you if you could kind of figure that out. I want to be clear that I do not expect so-called legal, permitted TVR owners to pay for all of the renegade enforcement either. I do not think that would be appropriate. I think they pay for their regulation and their enforcement. Mr. Dahilig: Right. Mr. Hooser: In terms of managing the money. Mr. Dahilig: I understand. Mr. Hooser: I do not think it would be fair to be charging for both. I think the principle of the law is that they would pay for their own regulation. Mr. Dahilig: Right. Mr. Hooser: Thank you. Mr. Dahilig: Understood. Ms. Nakamura: Thank you for the clarification. Any further questions for Mike? If not, thank you very much, Mike. We have some follow-ups and I am sure staff will summarize them and get it over to your Department. Let us open it up for public testimony. There being no objections, the rules were suspended to take public testimony. ALLISON S. ARAKAKI, Council Services Assistant I: We have four (4) registered speakers. Ms. Nakamura: Thank you. Ms. Arakaki: First registered speaker is Pua La`a Norwood, followed by Barbara Robeson. Ms. Nakamura: Why do not you come up, Barbara, and then maybe somebody can see if she is still in the building. Can you introduce yourself? COUNCIL MEETING 39 OCTOBER 23, 2013 BARBARA ROBESON: Barbara Robeson and Caren Diamond, for the record. We are here representing Protect Our Neighborhood `Ghana and the items that we wanted to talk about today research and investigation of the questionable TVR approvals and renewals in the Wainiha and Ha`ena areas upholding the integrity and then potentially in the future, you folks amending Ordinance No. 904. Ms. Nakamura: Excuse me, Barbara. I just want to clarify you both have six (6) minutes each and that we will start the clock. Thank you. Ms. Robeson: Now just for background, I am sure you are all very familiar with this. North Shore is a special planning area and one of the goals is to preserve the natural beauty of the North Shore and preserve the special rural charm and the areas with unique cultural and physical characteristics, as some examples of the special planning area. General plan, of course, has pointed out that permitting processes should consider the cumulative impacts that a large concentration of alternative visitor units can have on a residential neighborhood and of course, we want to focus on that. I know Caren will get to that in a moment. Then in this Kaua`i 2005 TVR study said that this is part of what the study pointed out, was that neighborhood impacts are significant, the community character is altered and again, we are talking about Wainiha to Ha`ena. The illegal conversions into multi-family units, the disproportionate impact on the North Shore, and recommendation from this particular study is to channel the TVRs in an area set aside for resort uses. Some the maps in here were presented in September 2011 at the Planning Conference that was held here on Kaua`i. This documentation is actually from 2011 and it points out the numbered of TVR units in the various areas throughout Kaua`i. As you can see, I think that was supposed to be corrected, that Zone 5. Anyway, fifty-four percent (54%) at least in the Hanalei district. Actually, it was corrected fifty-five percent (55%), Zone 5 which Hanalei. So, Hanalei has more than any other place on the island, North Shore. Sixty-five point two percent (65.2%) of the North Shore TVRs are in the Special Management Area (SMA) and none of them had an SMA permit for their TVR. Back to one of the other earlier slides that mentioned the cumulative impacts and the intensity of use, based on the sixty-five point two percent (65.2%). We are going to be focusing, as previously mentioned, on the Wainiha and Ha`ena area. This map was one of the maps that our Planning Director, Mr. Dahilig, presented in June and those red marks on that map, this is the Wainiha/Hd'ena area, those are TVRs. This particular map was presented at the 2011 conference and it had the bright pink is the approved TVR and at that particular time, the purple color was the pending TVR units and some of those have numbers on it because if you look over to the right side where you see that purple and it is got a number 4, there were four (4) TVR pending applications. CAREN DIAMOND: On this map here, it has been alleged that the inspectors did not do a good job and I want to just correct that record. There was a lot of approvals that were not given to TVRs that had downstairs enclosures and this is only a small portion of the map. But some of them, such as these ones in blue were not approved because they had downstairs enclosures, but later subsequently they did get approved. So, like one of the ones that were before you a few minutes ago, actually was not approved in 2011 and was subsequently approved after that. It has had a change of three (3) TVR numbers since then, it operated for several years with no permit, and it is permitted legally at the moment. This slide is just one (1) block and this is (inaudible) block in Wainiha. Earlier it was asked which were approved without documentation. The ones in darker red were all approved without the documentation that was needed to establish the COUNCIL MEETING 40 OCTOBER 23, 2013 non-conforming use in the first place and this is a current picture from approvals. This was just done September 18, 2013 from Mike's information. What I really want to point out if you look at this map and all the ones that are red should not be here, all the ones that are just light pink are the ones that actually put in their documentation, and the rest of them did not have what it took to establish the non-conforming use in the first place; only one (1) of them has since relinquished their permit. There was something else forgotten and it was to think about the waste water. So, while these permits were granted approval, many of them have cesspools. If you look, all the ones with the yellow are cesspool and some of them sleep twenty (20) people, they sleep fourteen (14) people, the sleep twelve (12) people, they have cesspools, and they are approved by the County. Ms. Robeson: This next slide and I am sorry that one on the left is a little hard to read. The background for the sources on this particular slide, it was census data, real property data, and we researched and compiled the sleep number for each of the TVRs and then calculated the overall average. On that slide on the left, that first green bar that is two hundred seventy-five (275) units that are residential units and the population based on census data of two point seven (2.7), the total population for the two hundred seventy-five (275) units is seven hundred forty-nine (749). The TVRs in the next bar there, the ninety-five (95)m, approximately ninety-five (95) TVRs and the de facto population would be six hundred forty-six (646) and that is based on the far right of that chart, six point eight (6.8) is the average number of persons occupying TVR units and that was based on going to all of the websites of those ninety-five (95) units and finding out how many people they slept there and then averaging it out. Ms. Diamond: So many of the TVR are hotel houses. They sleep fourteen (14), they sleep twelve (12), they sleep ten (10), yet they are not residential houses, they are not single-family houses, and they add to the congestion and they add to the problems that we are having on the North Shore. We do have many visitors that sleep on the ground floor and the ground floor units actually have approval by the Planning Department for the TVRs. So, the one on the top right is the one of the ones we were talking about this morning that advertises that you can sleep on the ground floor with an extra kitchen on the ground floor and it has County approval on the ground floor and it has passed its inspection. It is common for visitors to sleep on the ground floor. Here is a couple more examples. This is oceanfront, Lihi Kai. They sleep eight (8) people, four (4) bedrooms, and three (3) of them are on the ground floor. County approval. Again, it did not get approved the first go around, but it got approved subsequently sometime. Ms. Nakamura: You have four (4) minutes left. Ms. Diamond: Thank you. This is the TVR on the left. In 2008, when the inspection happened, when the Bill was supposed to apply only to TVRs that were operating, the top picture show what it looked like at that time and then on the bottom, you can see it now has two (2) TVR permits. Well, here it is. It advertises that you can have one (1) ground floor guest suite with a separate entrance. It has two (2) TVR approvals for this one (1) house. I imagine the second Approval is for the ground floor suite. I do think there is some liability for the county in this. This is Pohaku and again, they advertised their lower level suite with two (2) twins, a separate kitchen, a bathroom, and current County approval. Again, you can sleep on the ground floor and it is currently approved. Fourteen (14) people sleep here, the ocean washes under the house, and it has a cesspool, but never went through an SMA permit. It is currently approved. We are asking you to COUNCIL MEETING 41 OCTOBER 23, 2013 fix it, to please, correct the TVR Ordinance and ungut it because it was gutted and mitigate the cumulative impacts and diminish the intensity of use on the North Shore. We are asking you to enforce Federal, State, and County laws and above all, we are asking you to get rid of the commercial uses in residentially areas. We are asking you to do this for the children of Ha`ena, Wainiha and for the future. It is the wrong place for a resort. Ms. Robeson: Thank you, that is all. Ms. Nakamura: That is it? Questions? Councilmember Yukimura. Ms. Yukimura: Thank you very much. You always give such interesting presentations. When you are saying you want a new Ordinance or you want an amended Ordinance, how would you like it? What provisions do you want that would solve the problem in your mind? Ms. Diamond: I think that is a long discussion of things. It is a long Ordinance and it needs a lot of things amended in it, but primarily it needs to be amended to reduce the numbers and especially... Ms. Yukimura: Reduce the number of TVRs or numbers of people allowed in a unit? Ms. Diamond: Both. If you remember, when we were doing the stakeholder groups, no one neighborhood was supposed to be impacted. If more than fifteen percent (15%) of the neighborhood was vacation rentals, that was the limit that the stakeholder group has set on where we made a difference between a neighborhood still being a neighborhood and it not being. The numbers of Ha`ena, Wainiha, and Hanalei are too high and those numbers need to be reduced in keeping with where the safety and the hazards are. There is no evacuation route, it is the highest coastal hazard area, and there is no way out for the visitors staying there. Ms. Nakamura: I think it is an important discussion that Councilmember Yukimura raises. Can we bring it to the Resolution at hand and I think discussion about changes to the TVR law should happen at some other agenda posting or side discussion. Ms. Yukimura: Right, I understand what you are saying. If you go back to your slide with Wainiha, no documentation. In the red. Ms. Robeson: That one? Ms. Diamond: Yes. Ms. Yukimura: I believe so. The TVRs with missing documents, do you know which ones were done prior to the tenure of the existing Planning Director or maybe I need to ask our Attorney? We need to know which ones are — I guess I was asking for Mr. Dahilig to give us that information, are considered irrevocable? Ms. Diamond: My answer would be that this is why the Council actually should consider hiring outside Counsel because at the beginning in COUNCIL MEETING 42 OCTOBER 23, 2013 June, it was going to be an investigation to what happened and why these were approved without — what happened, and know we know that they were approved without documentation. We are saying that this use has to exist forever, but yet, that initial use was never even a valid use. I think that puts us in a very bad position. I understand that now once they have continued the approval, that pretty much seals it because they have continued the approval and not the vesting has continued. I think you need to investigate how they got their approvals to begin it, so you can... Ms. Yukimura: I think what I was looking for is choosing a best case scenario for going to court and taking it to court. If we prevail in that, that means we would prevail on the others, for example. If we did not, it means that we are forever adversely affected by poor leadership and management, that we cannot reverse. Maybe we need to have our Attorneys come up after we are done with Barbara and Caren. Ms. Nakamura: I think we can do that, Councilmember Yukimura. Councilmember Rapozo and then Councilmember Hooser. Mr. Rapozo: Thank you, and thank you folks for your work. I guess the first question, do you support the Resolution because that is really what is on the agenda? Ms. Diamond: Yes, we do support the Resolution and the Bill being amended. Mr. Rapozo: I plan do the amendments to the Bill and we will definitely make that happen. As far as the cases that you show up here with the photos, are those cases that you sent over to the Planning Department? Ms. Diamond: They were all in the chronicles. Most of them were not approved under the first go around. They have subsequently been approved. Ms. Robeson: The information that we presented today was current information. It is not leftover from the days of chronicle even. It is current. Mr. Rapozo: I know you said one of them changed TVNC numbers several times? Ms. Diamond: Right, in doing the research, it seemed that twenty-five (25) of them had changed numbers from last year and originally they were given one number. The ones that did not get approved to begin with came in and got a second number and then now there is a third number. It gets very difficult to follow the TVR numbers. Mr. Rapozo: I guess we can ask Mike, when he talks about these numbers are these duplicates? Ms. Diamond: We found that in our research, much of the dead files were all duplicated with another file that was well alive, operating, and permitted. COUNCIL MEETING 43 OCTOBER 23, 2013 Mr. Rapozo: So, they submitted an application under the first TVR number, is gets denies, they come back, and they apply for a second with a new TVNC numbers, and it gets approved? Ms. Diamond: Yes. Mr. Rapozo: Okay. Ms. Nakamura: We can do a follow-up there as well. Ms. Robeson: Could I just, Councilmember Rapozo? Ms. Nakamura: Go ahead, Barbara? Ms. Robeson: Also, in terms of the Resolution, I think there is really two (2) parts to it. The part that I believe that we are interested in solving the problem. It is my assumption there are internal issues or there were internal issues. I personally am not — that is for the County to deal with, but the TVR problem that is affecting the community, I am very, very supportive of correcting that. Ms. Nakamura: Thank you. Councilmember Hooser. Mr. Hooser: Just a couple of questions. You emphasized that people were allowed to sleep downstairs. What is the significance of that? Ms. Diamond: They are in the flood zone. They are hazards to the people who are staying there. Mr. Hooser: Is that a tsunami zone? Ms. Robeson: It is a tsunami zone. Ms. Diamond: Yes, it is a tsunami inundation zone. There are Federal flood laws where you are not allowed to use the ground floor for habitation. So, ground floors in flood zone is only to be used for storage or parking and these houses have converted those units to habitation and it is unsafe for the visitors, predominantly if we have a tsunami, those will be your liabilities. Mr. Hooser: So, it is your understanding that the law prohibits the downstairs areas to be used by habitation, but the County is permitting vacation rentals to do the same thing downstairs? That is what you believe is the case right now? Ms. Diamond: Yes. Mr. Hooser: Ms. Robeson, did you want to add to that? Ms. Robeson: Yes, besides the direct impact on the people that are sleeping downstairs in an illegal area, the big-picture of the evacuation of health, safety and welfare for people that live out in the North Shore, there is one (1) way to get out of there and the residents population has decreased and with all the TVRs now that was in one of those slides, we have got higher population of people that maybe did not really know because there are not evacuation sign on the COUNCIL MEETING 44 OCTOBER 23, 2013 highway and according to some information that we received at the Watershed Hui Resilience Plan that they have been working on, the Civil Defense said that there is between four thousand five hundred (4,500) and five thousand (5,000) people that would need to be evacuated with an alert and it would take three and a half (31/2) hours. When you live out there, it is kind of scary if something like that happened. Mr. Hooser: During a future conversation or agenda item, I would be happy to work with you and Councilmember Rapozo or whoever on amendments. The cesspool issue is particularly concerning to me also, with the impacts on the reefs that we keep hearing so much about and there might be other ways to disincentive or deal with that issue as well. Thank you very much. Ms. Diamond: Thank you. Councilmember Yukimura. Ms. Yukimura: Caren, when you said "not approved on the first go around," what is the first go around? Ms. Diamond: The first Ordinance No. 864 which required compliance with the Federal flood laws, the SMA laws, and required these properties to actually be legally operating and have the evidence to back it up. Ms. Yukimura: So, there were actual denials of applications? Ms. Diamond: Yes. Ms. Yukimura: Then the subsequent go around was when? Ms. Diamond: When Ordinance No. 904 was passed and it allowed people to come in for another year. In August 2010 when that law was signed, it allowed for a whole other year for people to come and apply and you had people who were denied, all came in and applied because they no longer had anything to comply with, the law was gutted and they got approval under that. When you actually look it, it is hard to tell if they were approved under that Ordinance or the previous Ordinance because... Ms. Yukimura: I am sorry? Ms. Diamond: When you try to follow which Ordinance they were approved under, it is difficult sometimes because the information is not there from Planning. Ms. Yukimura: Yes, but you could tell by date, right? Ms. Diamond: Yes. Ms. Yukimura: If the date of approval versus the effective date of the Bill. Ms. Nakamura: Let us go back now to the Resolution at- hand. Are there any other questions for Barbara and Caren? We can always call you back if ore come up, if there are others. I think we had questions for Ian Jung and Mike Dahilig. Ms. Diamond: Thank you. COUNCIL MEETING 45 OCTOBER 23, 2013 Ms. Yukimura: Yes. Ms. Nakamura: After we ask our follow-up questions to Mike and Ian, I want to go back to the public testimony. Councilmember Hooser. Mr. Hooser: Good afternoon gentlemen, again. The main question that I have immediately — I might have more later, is this issue with the downstairs units being the County is somehow permitting or allowing Transient Vacation Rentals, allowing people to sleep downstairs in units that apparently it is not legal for residents to sleep downstairs. Could you clarify or confirm or deny? Mr. Dahilig: I do have some work product that here, if in camera, the Council wants to take a look at. This was produced by the Engineering Division and so what the Engineering Division did is it took all of the TVRs that were in the Resolution that potentially could have a flood violation issue, and then actually did research to follow-up and determine whether or not there was either a violation of the Flood Ordinance or not. As far as I understand, in terms of how the analysis starts is whether or not a structure is pre-firm or post-firm. So, if there was downstairs that was enclosed and used for habitation, that was there before the passage of the Flood Ordinance and they come in for one (1) TVR certificate for the whole property, it does not preclude them from being able to use the bottom floor, because it is pre-firm. Ms. Nakamura: What date is that? Excuse me, sorry about that. IAN K. JUNG, Deputy County Attorney: I believe it was 1981. Mr. Hooser: If I could just interject just so that I am clear. If it was pre-firm, that meant a regular residential use, they have not been allowed to sleep downstairs? Mr. Dahilig: Before 1981, that was the case. Mr. Hooser: It just seems that the areas that you say are legal, if would or permitted are pre-firm. Mr. Jung: I think before we start getting into the details of how you analyze each individual property, it is really important to recognize that the law of non-conforming use is a well-established legal principle that has to be honored. The fact when you get into trying to deal with how to honor this use, and what it is, it is a previously unregulated use. That is hence the word non-conforming. Once you impose the regulation, then you have to analyze what other regulations are tied into this? One of the major issues with Ordinance No. 864, which I recognize that Caren and Barbara are really passionate about this, but I think at times passion has to be tempered with reason and when you look at the reasonable application of the law is, Ordinance No. 864 was problematic. We had a case, Waikiki Marketplace case, that made a clear distinction of a legal use and a legal structure. It was very complex, especially when you had properties that potentially with violations of the Flood Ordinance that were trying to get a non-conforming use certificate for a structure that was so-called two (2) floors. But the floor where there was no violation could potentially be recognized as a use because what you are doing is translating a use such as a single-family dwelling unit into a short-term versus long-term rental. Previously, you could do short-term COUNCIL MEETING 46 OCTOBER 23, 2013 rentals until the law came into effect, was changed, and then now you cannot do it, unless you pre-established that pre-existing use. So, when you go in to analyze each of these laws whether they are flood, CZM, SMA, or CZO, there was still no previous regulation on short-term rentals and that is what the study went through in 2001 to 2007. Now, when you get back on trying to take away someone's use based on an illegal so-called structure or portion of the structure, you get into significant legal hurdles and that was one of the situations out of Ordinance No. 864 where there was a number of appeals that people launched by the Department issuing cease-and-desist letters for say a lockout and then not allowing the continuation of the TVR. Mr. Hooser: If I could interrupt for a second because I have other questions. I will try to summarize for myself, that because these uses were grandfathered and it is hard to take them away so therefore, the County does permit them? That is what it sounds like to me even though... Mr. Jung: Let me temper that because it is the use that is permitted, but if there is someone living in a downstairs portion that is subject to a flood violation, that is still an independent violation that can be enforced. Currently, it is on a complaint based system where people can lodge a complaint and the Department, in this case the Department of Public Works, would have to go out and investigate the complaint. Mr. Hooser: Even if it is pre-firm. Mr. Jung: If it is pre-firm, then you look at it as a grandfathering standard as well. But for certain structures can you do a fifty percent (50%) substantial improvement threshold. So, a lot of these structures that may be pre-firm, but do improvements as long as they meet the fifty percent (50%) substantial threshold, they can continue on and do work on the structure, but it remains clear that they cannot have any habitable space downstairs. Mr. Hooser: It seems like the County is permitting a use that is not safe. Mr. Jung: Let me just clarify because it is not... Mr. Hooser: Let me finish. Mr. Jung: No. I think you referred to as a "permit," but it is a "certificate." Mr. Hooser: The County is blessing the use of these properties and implicitly saying that it is okay to rent your downstairs units for people to sleep in areas that we would otherwise consider unsafe if it was a new dwelling. Legally, it is grandfathered in according to what you are saying, but we believe that it is unsafe because we would not grant a permit today for that. But we are letting people run a business and letting people sleep there and giving them whether it is a certificate or permit, we are saying that legally, you are qualifying for that. I am concerned not just about the safety of those people, but about exposure to the County and even if we cannot deny them their permit, it seems like we could require them to disclose the unsafe nature to the people that are sleeping there. We could do some things to protect the people, number one. COUNCIL MEETING 47 OCTOBER 23, 2013 Mr. Jung: I believe when the Planning Commission was going through some of the hearings, they put a specific notification that the downstairs is not a habitable space. We can thread thorough the records to see which ones that had a structural issue but not a use issue and we can go back and look through those records and get that information for you. Mr. Hooser: But pre-firm, we are still letting them do it? Mr. Jung: Pre-firm, yes. Mr. Hooser: Those issues we are still sanctioning by certificate or permit and allowing these people to sleep there without informing them that they may be sleeping in a not safe situation. Mr. Jung: And that is the nature of grandfathering. Mr. Hooser: No, but this is a commercial use basically. This is not a family using it. This is for money. I think there is a higher threshold of responsibility for commercial uses. I am sorry, Director? Mr. Dahilig: I guess that organically has been the tension. I acknowledge there has always been questions about whether a SMA permit is required for not and one of the initial questions is there a difference between a rental for a property that is one (1) week versus one (1) month versus one (1) year? Ms. Nakamura: Excuse me. Excuse me. I think one of the concerns that the Chair had about having the earlier presentation was that we would go into a Committee type meeting discussion about the merits and what is working and not working and how to change it. Really what is on the table is a Resolution to initiate an investigation. I think what all of you are bringing is up is important issues that need to be discussed in a Committee Meeting on the topic of changes needed to this law. I would like to get the public testimony completed, then have our discussion, and then vote. Can we move that along? Mr. Hooser: I am done. Thank you. Chair. Ms. Nakamura: Councilmember Yukimura. Ms. Yukimura: I think part of this discussion is to know whether and what would be investigated. This issue of grandfathering is what would be investigated, I think, that is why getting some clarity about this issue is important to the voting on the Resolution, I think. If I might follow-up on what Councilmember Hooser was talking about, if you had a bottom floor post-firm so that means they had to abide by flood regulations, but they were using it illegally for downstairs habitation, and they were using it for vacation rental downstairs habitation, is that grandfathered in? Mr. Jung: Each situation would turn on a specific set of facts, but one of the... Ms. Yukimura: I am giving you a specific set of facts. Mr. Jung: I think one of the situations would be, and you have to remember, it is a single-family. If they converted to a multi-family COUNCIL MEETING 48 OCTOBER 23, 2013 dwelling unit and tried to rent out each floor, then it becomes problematic. But if the intent was to establish the pre-existing use, which under the tenure of the law is the pre-existing use requirement, then you would have to look at did they actually rent out the upstairs portion which was the legal portion with the legal use? The court would have to make a fine-line distinction on that and that was the direction of where a lot of these Attorneys were going in their original appeals in dealing with Ordinance No. 864 and their alleged illegality of it. Ms. Yukimura: If there was a family on the top and a family on the bottom, that is illegal, right, because it is supposed to be one family? If it is a family on the top renting the bottom as a vacation rental, is that multi-family use? Mr. Jung: It depends on — and we go on this definition through the definition of"kitchens," of what creates a multi-family dwelling. Ms. Yukimura: So, my question is, why cannot we take one of these cases to court and even change the Waikiki Marketplace case if it does not have logical enforcement basis? Mr. Jung: Sure, we could try. Ms. Yukimura: I mean, I think... Mr. Jung: I mean, precedent in the State of Hawai`i is what it is. There is always the ability to change it. Ms. Yukimura: Listen to it. The first set of circumstances that I gave you was bottom floor, post-firm. Number one, post-firm; so they have to follow the flood regulations and they do not. So, they have habitation in the bottom and it is vacation rental use. How can they claim a grandfathering of this vacation rental use when it was on the bottom floor which was illegal? Mr. Jung: Again, that is a very difficult question to answers because the court would have to analyze whether or not they maintained — because the law previously unregulated, the law did not regulate a specific use such as a TVR operation or a short-term rental as it is called, they would have to make that fine-line distinction. Well, they rented out the whole, upstairs and downstairs. But they still rented out the upstairs and possibly the downstairs as well. If you cut off the downstairs but allow the upstairs, did they meet that pre-existing use there? Ms. Yukimura: Now, if they had a vacation... Ms. Nakamura: Councilmember Yukimura, I realize we are talking about the concept here of finding a case to pursue and I think what the County Attorney is saying, is that he is willing to have that discussion and strategize on the type of case that is needed. How it affects the three (3) page Resolution and the Resolution is about instigating an investigation on the whole TVR, not the details of how we are going to implement. Ms. Yukimura: I know, but if a good majority of the cases fall or revolve around this particular issue, then it would be worth more time and money to actually initiate a case and go to court, than to spend the whole time doing a panel of discussion, subpoenaing records from the Planning Department, and making them spend a lot of time doing that? COUNCIL MEETING 49 OCTOBER 23, 2013 Ms. Nakamura: Then we should vote down the Resolution and do your strategy, but the Resolution is what is on the table. Ms. Yukimura: That is why I believe my questioning is relevant to the Resolution. Ms. Nakamura: Councilmember Rapozo. Mr. Rapozo: I disagree. I think that is why you pass the Resolution so we can get the investigation done, so we can get the findings and the recommendations of the investigation. That is what this. This is looking backwards. The discussion right now is looking forward. It is not even relevant to the Resolution. I understand what Councilmember Yukimura is saying and she is trying to find a case, let us take it to court. This Resolution, as the co-author, is to go back and find out how did these illegal vacation rentals get approved? That is what this is about. This is not about grandfathering. That may be the result, but firm was in 1981, many of these homes were built 1981. Many of the improvements were done after 1981. We might be talking about a percentage. Really, the Resolution is real simple. Go back and investigate, find out where the breakdowns were because I did not hear what the breakdowns were other than we misfiled some things. That was what was told to us in the presentations, but actually going into the cases and find out where the breakdowns occurred and why? Is there a common theme? I heard today several times that Ordinance No. 864... Ms. Yukimura: Madame Chair, I had the floor. Mr. Rapozo: No, she gave it to me. Ms. Nakamura: I did for you to comment. The issue was regarding the... Mr. Rapozo: I just asked that...then make it a point of order that the topic of the agenda is the Resolution, not about the TVR law, not about grandfathering. It is about the Resolution about an investigation and that is where I think we need to be. Thank you. Ms. Nakamura: Councilmember Yukimura, one last comment and what I want to do is have the public testimony so we can have our discussion. Ms. Yukimura: Chair, I was pursuing this line of questioning because if the cause — and it is a forward looking questioning because if the problem is primarily this issue of grandfathering, an investigation is not going to solve the problem. If I may, just finish up that line of questioning I would appreciate it. Ms. Nakamura: Okay, go ahead. Ms. Yukimura: If there was no vacation rental on the top, but a vacation rental on the bottom and it was illegal, how could it be grandfathered in? Would we not have a really good case to take before the Supreme Court of Hawai`i to get an iteration on the Waikiki Marketplace case? Mr. Jung: Sure, I think it would be a great case. COUNCIL MEETING 50 OCTOBER 23, 2013 Ms. Yukimura: And would that not really clarify and resolve a lot of this issue? Mr. Jung: I would hope so, but you never know what comes out of the appellate courts. Ms. Yukimura: That is true. It is always a risk, but do not you think we have a good logical basis to argue this? Mr. Jung: Sure, yes. Ms. Yukimura: The illogic is how could you have a grandfathered vacation rental when it was illegal in use, not just structure? Mr. Dahilig: Councilmember, I do want to do a frame that Waikiki Marketplace, in as much as it is being talked about as Seminole in how we are applying principles of land use law here, what Waikiki Marketplace does from a precedent standpoint is say that you cannot apply structural violations to prohibiting continuing use. It creates a situation where use cannot be intermixed with structure and I think that is all the issue is. If from a health and safety reason as many are aware of the loopholes — I call it the loophole that is happening here, is that you have structural grandfathering that allows for health and safety issues, which is the downstairs habitation, then I can see us making that argument. Ms. Yukimura: Well, then let us make the argument because in this case, you cannot separate structure from use. I do not remember the details of the Waikiki Marketplace case, but if we can distinguish it, then let us make some new law. Mr. Dahilig: I guess I would agree with that principle, in the sense that our hands are tied when left with a very apparent action that is contradictory to what the purpose of the Flood Ordinance is, but at the end of the day it is still characterized as a structural regulation and not a usage regulation. Ms. Yukimura: Well, if you do not think that a legal case will solve this problem, then maybe we need to go into investigation. Mr. Dahilig: That is where I think having that discussion about whether we can make a case for the firm or the Flood Ordinance being I guess tied into how we evaluate use, then I think that may be an exception of law that can be carved out through some type of case. Ms. Yukimura: Then let us make new law. Ms. Nakamura: That is a suggested strategy, Councilmember Yukimura, that we should note and follow-up on. I think we are back with getting public testimony. If there are no other questions for Mr. Dahilig and Mr. Jung. Thank you very much. Our final testifier? Ms. Fountain-Tanigawa: The next public speaker is Pua La`a Norwood followed by Joan Conrow. Ms. Nakamura: Thank you for patiently waiting for your turn which we digressed a little bit. COUNCIL MEETING 51 OCTOBER 23, 2013 PUA LA`A NORWOOD: Aloha and good evening honorable Councilmembers. I did not come... Ms. Nakamura: Please state your name for the record. Ms. Norwood: Oh, thank you. Aloha, my name Pua La`a Norwood and I did not come prepared to submit public testimony for this. I just happened to be here today and I have some personal experience in the TVR situation. I was a North Shore resident and I was displaced when my home was converted to a vacation rental. I received notification in August that the home I was living in would be converted to vacation rental and they gave me some time to find a place. At that time there were no long-term rentals available on the North Shore at all and I looked for four (4) months and it ended up with my son and I being homeless for three (3) weeks because we could not find anything, everything had been converted. There were no rentals available so we relocated and we are now on the East Side. It is very difficult on the North Shore to find a home, long-term, so residents are being displaced and it does change the character of the neighborhood. The issue about the cesspools is really of great concern for health hazards. Hanalei Bay is often very contaminated and if you look at the water testing reports, there is a lot of bacteria and infectious diseases caught in Hanalei Bay. I know a lot of surfers and they catch a lot of infections. My concern is certain is as a resident and an ex-North Shore resident displaced because of the vacation rental issue. I think that an investigation is very important because a lot of people were really upset about the issue and calling for action and then the law was made, but then it did not stop. So, that is the part that I think, is upsetting a lot of people. The problem just continued. As we have heard, it is going to go into perpetual state of misuse of the property. Then furthermore, the property that I was on was agriculture land so that is again, another concern because agriculture land really should be for agricultural use. It was agriculture land that was used for vacation rental. Thank you. Ms. Yukimura: I have a question. Ms. Nakamura: There is onequestion. Councilmember Yukimura. Ms. Yukimura: Pua, thank you very much for bringing this forth. Ms. Norwood: You are welcome. Ms. Yukimura: It really does show the impact of vacation rentals on affordable housing availability. In your particular situation, are you talking about August of this year? Ms. Norwood: August of 2012. Ms. Yukimura: August of 2012, and had that unit you that you were in been used for vacation rental? Ms. Norwood: It had been used, but did not have a permit until August. COUNCIL MEETING 52 OCTOBER 23, 2013 Ms. Yukimura: It had been used for vacation rental, but you were renting it for a while? Ms. Norwood: I was. I was a long-term renter. Well, let me clarify, JoAnn. Ms. Yukimura: Yes. Ms. Norwood: There was the main house and then the ohana unit. So, I rented the °ohana unit as a long term and then the main house was being used as vacation rental. Then once they acquired the permit, then they wanted to include the `ohana unit as part of the vacation rental. Ms. Yukimura: So, they got a vacation rental unit for the main unit and then they asked you to leave so that they could rent the `ohana unit as a vacation rental? Ms. Norwood: I cannot ascertain that they actually had a permit to rent the main house, that I do not. Ms. Yukimura: Can you share the address with the Planning Department? Ms. Norwood: With whom? Ms. Yukimura: With the Planning Department? Ms. Norwood: I could. Ms. Yukimura: Thank you. Ms. Nakamura: Thank you very much. Ms. Norwood: You are welcome. Ms. Nakamura: Is there another speaker? Ms. Fountain-Tanigawa: The next speaker is Joan Conrow. Ms. Nakamura: Thank you for patiently waiting. JOAN CONROW: No problem. My name is Joan Conrow and thank you very much for your continuing your interest because it is been going on a long time and I am just glad that you are not letting it die. In the months since the Resolution was first considered, the Planning Department's own review has disclosed that things are even worse than I report in the abuse chronicles. Eighty-four percent (84%) of the files, these are all the files, were missing documents which means that the applicants failed to prove that they were eligible for the certificates, yet they were given life of the property TVR certificates that add substantially to the value of that property and now we are told by the County Attorney that those permits must be allowed to stand even if they were improperly granted. I would like to formerly ask the Council to please release that opinion to the public because we deserve to know why this grave error and injustice is allowed to stand, because it is an injustice and it is also a mockery of the County zoning COUNCIL MEETING 53 OCTOBER 23, 2013 laws and the very lengthy public process that went into creating these laws. Most important, it is still a public health and safety issue. It was a drowning in an improperly permitted TVR that prompted the abuse chronicle series and there are still far too many people exposed to dangerous conditions staying in TVRs in the flood zone. Although all of scrutiny has been directed at the Planning Department, it is also the Building Department that is implicated here. They are the ones that approved the formulas that allowed the people to skirt the flood violations to declare these things as unsubstantial improvements so they did not have to comply. I think we really need to look at the Building Department and not just the Planning Department in this investigation. I appreciate that Mike is cracking down and is coaching his team, but as Mel said we are not seeing the attrition that was envisioned and from what Mike was saying today, I do not see how we will ever get to that attrition. As Ross said, people are not being penalized, even a four thousand dollar ($4,000) fine is minimal when you consider the value of some of these rentals. When Mike says some of these cases have been resolved, what that means is approved. When he says they are active without issue, it means he is ignoring the fundamental issue which is that they were never eligible, they never proved eligibility. Also, all of the abuse chronicles were approved except for those that did not apply for renewal and it is those in the enforcement action now. All the rest were approved for renewal and some of those renewals were approved at a time before Mike got the County Attorney's opinion justifying that. Ms. Nakamura: That is your first three (3) minutes, Joan. Ms. Conrow: Okay. I am almost done. I would like to make a few suggestions before I close and that is one, could the Council seek some really skilled outside Counsel to explore and challenge this premise that these improperly granted permits are allowed to stand? Could you please consider some radical amendments to the TVR law, which has proved itself to be a complete failure of implementation, if not policy? Besides the improperly approved TVRs, we also have scores of totally illegal TVRs, which create additional health and safety risks, land use problems, etcetera. It seems like we also need to conduct some sort of assessment on how this failure has impacted the community with loss of affordable housing rentals, property crimes, overburdened cesspools, and roads, etcetera. I believe in doing this investigation you are allowed to set the parameters how you wish and so that is up to you, but please do not just let this go away. I do not think that sending a letter to the Administration asking about next year's staffing, just to keep this alive, make sure we clean this up, and that these problems do not keep going on. Thank you very much. Ms. Nakamura: Thank you. Any questions for Joan? Thank you very much. Is there anyone else signed up to testify? Ms. Fountain-Tanigawa: No other registered speakers. Ms. Nakamura: So let us come back to the Council discussion. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Nakamura: Councilmember Rapozo. COUNCIL MEETING 54 OCTOBER 23, 2013 Mr. Rapozo: Thank you, Council Vice Chair. A lot was talked about today about what we think we need to do as far as recommendations, TVR Ordinance changes, and this Resolution does not only cover Planning, it does cover Public Works as well. It does give the Committee the authority or the ability to make findings regarding Public Works because Public Works is in charge of the Flood Ordinance. There is a lot of questions in my mind, especially after seeing some of the presentations today, fifty percent (50%) substantial construction. At what point do we just ignore the new law and how far does grandfathering go? All of that has to be obtained through an investigation and we are not going to get it here asking Mike Dahilig because it involves much more than Mike Dahilig. It involves Public Works, and it involves the Building Division. The investigation to me, is the start. It is the only start. We gave them some time and I appreciate what Mike has done. I think the presentation that he did today, especially with the test cases, I mean as Joan said, it even showed us that we are worse than we thought. Mike is trying his best to get it fixed and this Resolution would help him. Number 8, if you look at Section 8 of the Resolution, it says "The Committee shall at its conclusion make appropriate findings and recommendations as warranted. Recommendation may include measures to improve the County's enforcement of TVR and Floodplain Ordinances," which is exactly what I heard several members talk about today, "measures to improve coordination among Departments," that is something that we always strive for, "potential changes to the TVR Ordinance to improve enforcement," we heard that a lot today and not just hiring more personnel, and then the addition of County staffing resources to fully enforce the TVR Ordinance." Everything that we talked about today that we want to get is what this Resolution strives to do. So, to vote against but yet to say this is what I want, I want to know how to make it better, but I am not going to vote for the Resolution, why? This Resolution is not to investigation people, it is not to investigate a person, it is not to investigate Mr. Dahilig, it is to investigate the process, the process that has failed us tremendously over the years. We heard today from Mike, we even heard from Mr. Jung, that we have problems with our Ordinance. Yet, TVR Ordinance No. 864 was introduced by this Council by request. It came from them. The second TVR Ordinance No. 876 was by request, it came from them, and the final one, Ordinance No. 904 was by request, it came from them. Three (3) TVR Bills over the years that took what I consider a not bad Bill, it was not perfect, but we weakened and weakened it to a point where it is useful and all three (3) of these Bills were sent over to this body by the Administration. They created the Bills. They drafted the Bills. It was not created out of here. I can promise you the next one will not come from the Administration. We will start work on those amendments today, but my point is three (3) of those initiated Bills came from the Administration and today we are told that we have problems with the Bills. Were we set up to fail? I am frustrated right now. I think we have to take the initiative on this Council and say enough is enough, let us go get an independent look at this to find out exactly what wrong, and give us some recommendations on how to fix it because we cannot do it on this table. We talked about, I think Jay Furfaro called it best, I am glad he saw the meeting last night and I do not know how often they play it, but he had the best representation, of the tail wagging the dog. The defendant or the violator or the person that was served a notice, the Attorney was really running the show. Mike sat there and he read a script saying we met, we agreed, we stipulate, we are charging them one thousand dollars ($1,000), and they can continue. It was the Attorneys of the operators that to me, anyway, that is what the appearance was. Rarely do I get so upset that I post something on Facebook, but I did. It was so frustrating to watch, just thinking one after another. I guess there were like elven (11) or so, maybe even more, and it was the same script. Yes, we were wrong, yes we were wrong, but we met with the County and they are going to COUNCIL MEETING 55 OCTOBER 23, 2013 let us go. We are going to pay one thousand dollars ($1,000), that is why I think your line of questioning about the fee, I agree, it should be two thousand five hundred dollars ($2,500) a year to cover the enforcement if we have to hire more people. Is that my five (5) minutes? Real quick, there was talk about the criminal prosecution and that Mike said he has to check with the Prosecutor. We had that discussion here. That was the purpose of this delay. This deferral was so that they could go check with everybody and come back to us and say we are going to do and that is still an open-ended deal. We do not know, I have to go check with the Prosecutor. No, you do not need to check with the Prosecutor, you cite them on the violation on the law and you send it for prosecution. That is how you deal with it. What is there to check? How we are going to negotiate that away, too? Enough is enough. I have had it. I ask that you please, pass this investigation Resolution so we can just fix this once and for all. Thank you. Ms. Nakamura: Any further comment before we vote? Councilmember Yukimura. Ms. Yukimura: I just want to clarify Councilmember Rapozo's memory about — well, not memory, but statement about the first Bill that came. There was a Bill that did come to us from the Planning Department. It allowed TVRs outside of Visitor Destination Areas based on whether there was public input and so we gutted that Bill and Ordinance No. 860 is essentially a Council Bill, just so you know that. I do want to also ask Councilmember Rapozo, you said when we first considered this Resolution that the intention was to hire a Special Investigator. Is that still the intention? Mr. Rapozo: That is in the Resolution. Ms. Yukimura: I do not see anything about a Special Investigator and I think you also said they would have the power to subpoena and that none of the Councilmembers would be involved. It would be kind of a hands- off, but nothing is in the Resolution. Mr. Rapozo: If I may, Chair? Ms. Nakamura: Yes. Mr. Rapozo: Number 8, number 6 is clear. It says "The Committee shall utilize a qualified independent investigator or individual to assist." Ms. Yukimura: Yes, but subpoena witness, etcetera, etcetera, is to be done by the Investigating Committee. Mr. Rapozo: The Committee is the Committee of the Whole. The Committee of the Whole shall have the powers and functions allowed to an Investigating Committee by law and that is where the subpoenas come in. So, it will not be the investigating agency, it will be the Committee of the Whole. Ms. Yukimura: So, number 5, "The Committee shall have the powers or functions allowed to" — okay. Where does it say it is the Committee of the Whole? Okay. It is the Committee of the Whole that would subpoena witnesses? Mr. Rapozo: Correct. COUNCIL MEETING 56 OCTOBER 23, 2013 Ms. Yukimura: That is not what you said initially because we were talking about the time it would take for Councilmembers to run this. Then also... Mr. Rapozo: Well, just to respond to that. My original request of what I wanted to happen had been amended so this is what the Committee agreed to and more specifically, Mr. Bynum because he did not want to support a Committee of three (3). He said he could only support this Resolution if in fact, it was the Committee of the Whole. I conceded and said that was fine. That is why the changes are in there. It was also important for Mr. Bynum that the Committee would have the say on who gets subpoenaed or not if in fact, there will even be subpoenas. So, that is in there. It would take the action of the Committee to subpoena. Ms. Yukimura: If we subpoena, we will need a Court Reporter? Mr. Rapozo: No. A subpoena would be for records. You are going to issue a subpoena, they are going to write a subpoena, take it to the Department, and get records. They are not going to... Ms. Yukimura: Subpoena witnesses is also... Mr. Rapozo: If, in fact, yes. I mean, assuming that there will be a need for that. I do not envision that at all. Ms. Yukimura: Really? Mr. Rapozo: Yes. Ms. Yukimura: What kind of projected cost are you looking at the? Mr. Rapozo: I cannot remember what the — well, it will be based on what the Committee or the Council funds the Committee. Ms. Yukimura: But, you still want to know how much it would cost to do a... Mr. Rapozo: I could not tell you how much it is going to cost. Ms. Yukimura: Thank you. Mr. Rapozo: I would say at seventy-five dollars ($75) an hour for the investigator, I do not know, one hundred dollars ($100), fifteen thousand dollars ($15,000). Maybe I would say complete, maybe fifteen thousand dollars ($15,000), I would guess. Ms. Yukimura: Based on that, I am not ready to vote for this. I am not satisfied either with the Planning Department's work and I am concerned about, I do not know the extent of irrevocable permits. I think it is an important thing to know and if it turns on the Waikiki International Marketplace case, I had not heard the analysis. Thank you to Caren and Barbara for the data or COUNCIL MEETING 57 OCTOBER 23, 2013 the presentation, but I am thinking if that is one of the main issues then we need to go to court and I am not sure that a special investigation will be the thing that solves problem. Ms. Nakamura: We are going to have to take a caption break in five (5) minutes, so let us take our Council comments and then we will take the break. Councilmember Hooser. Mr. Hooser: I am in support of the Resolution. I believe that it is broad enough to allow the Committee to do exactly what Councilmember Rapozo said and it is to answer in of these questions and to improve the process. As happy as I am with the Director moving forward and making progress, there is still many, many unanswered question and I would like an independent voice. I would like the Council to exercise its authority and to engage, which we are allowed to do by law, this process, and hire a qualified independent firm to assist us in doing this and help figuring out these problems. It is only going to add value at the end of the day. As was stated before, make appropriate findings and recommendations including enforcement, Floodplain Ordinances, measures to improve coordination among Departments and just to answer and address a lot of these questions. I am in full support. This is not a process that will be driven by any one Councilmember or two (2) Councilmembers or three (3), it is Committee of the Whole, this is all seven (7) Councilmembers, and it is a majority that can define and control the direction and issue subpoenas if they see fit or not. I believe that we need to move forward on this, otherwise we will just be talking more about this a year from now. Thank you. Ms. Nakamura: Councilmember Kagawa. Mr. Kagawa: Thank you, Chair. I am getting closer to finding myself to support this Resolution. However, I still feel like we are making progress, that is what I asked for two (2) months ago, is that we make some progress. I see the progress. I see that we are trying to grab the low-hanging fruit and trying to get some progress on those cases. I think the huge problem is what was presented by Caren and Barbara, is the improperly granted permits that were allowed to continue and that was a result of the Planning Department not having the proper staff experience and time to implement an Ordinance passed by the Council back when all of these problems really started. I think if we can take care of that red or pink area that was shown on the map, I think that will help to put a huge dent in this big problem. I do not think we need this Resolution or this 3.17 investigation to happen. I think we as a body, should put this item on the agenda and try to find a way, maybe to find some means to cure that problem. If they were just granted permits without having all of the necessary qualifications or what have you, they should be re-looked at to see if they really qualify or not. When we can come to that conclusion, I think it will give Ian and Mike some way to really cure the problem and look at each individual case. As of now, really, I do not see them having any way to do it. I do not think 3.17 investigation will give us that answer as to how to fix the improperly granted permits that are being allowed to continue. I think that would be the solution to our problem. Thank you. Ms. Nakamura: Councilmember Rapozo. Mr. Rapozo: I have a question for staff. Did we get a County Attorney's opinion as it relates to the permits that may have been issued COUNCIL MEETING 58 OCTOBER 23, 2013 without the documentation, but because of that, we cannot unwind that? Did we get a County Attorney's opinion on that? I never got it. Does anyone have it? Ms. Nakamura: Yes. Mr. Rapozo: Do you have it B.C.? Ms. Nakamura: We need to take a break and then let us come back and answer that question. There being no objections, the Council recessed at 5:29 p.m. There being no objections, the Council was called back to order at 5:38 p.m., and proceeded as follows: Ms. Nakamura: We left off with Councilmember Rapozo's question asking for the opinion on permits that were issued without proper documentation. I wanted to say that I did request that opinion. I think that it would be wise to schedule an Executive Session with the person who rendered the opinion to have a discussion about what it contains and should it be released. I am happy to initiate that dialogue, so that it is on your next agenda. Mr. Rapozo: I appreciate that. Again, I have not seen it. I am not sure if the rest of you have, but I am interested to look at it. It is just very hard to grasp onto the concept of an illegally or unlawfully approved permit would not be able to be unwound. I do not know if you had to go and renew your license since the State changed their law about identification, and if you have not, good luck. You have go over there now, you have to provide a birth certificate or marriage certificate and all of these things. Because I got my license back before that law was passed, I still have to comply with that. I think it is a simple fix, simply amending the current Ordinance to require proof of operation prior to the date of the Ordinance, beginning 2014 or beginning of 2015. Then they know, so I mean that is an easy fix. I am more interested in seeing the opinion. That is one of the amendments that I can tell you will be introduced very shortly. Thank you. Ms. Nakamura: Councilmember Yukimura. Ms. Yukimura: I just want to say that I was told that my take on the law is not really correct and that I need to also be briefed on this opinion that has been rendered. I support that and I also want to say that some of the issues really are about standards of decision-making and it is based on the law. I look forward to the amendments that are coming forward and they need to be done. I appreciate the Councilmembers who are going to work on it. Ms. Nakamura: I am just going to make my final comments and then we can vote on it. I will not be voting for this Resolution. I think that we have heard about management's findings number one, that the TVR applications did not reflect what was actually in the Ordinance, that individuals that were assigned to evaluate application were inadequately trained and supervised, that amendments to the original TVR Ordinance exponentially increased the workload of Planning staff and imposed unrealistic deadlines, and that was a decision made by this body. Also, that the second Ordinance was approved against the objections of the community who wanted the original law to play out. We also found out that when the Council asked the Planning Department whether they needed more COUNCIL MEETING 59 OCTOBER 23, 2013 resources, the Planning Director said, "No" at the time. The physical inspections were limited to kitchen, lockouts, and because they were limited definitions in the Comprehensive Zoning Ordinance (CZO), this hampered that process. I think these are givens to how we have gotten to this situation and I think what I would like to see is our energy, and our resources focused on the fix. I think just today everyone around this table gave really good suggestions. I was hoping we would have done more work with the Prosecutor following up, making suggestions that we sit down and look at changes in the law to strengthen it and look at attrition, looking at the analysis of fees collected, fines collected and how do you pay for this ongoing need, looking at what are the long-term goals and objectives of this overall program so we can clarify how we move ahead, and dealing with the whole improperly granted permit issue and if we need to take a case to court, what is the best case to take and strategizing around that? I think we know what the problems are and we have got to work together on the solutions. So, that is where I am going with this. If there is no further discussion — Councilmember Yukimura. Ms. Yukimura: I also want to say that Attorney Ian Jung said that they are actually going through the process through contested cases to actually get into court, so that process is right now, ongoing. Ms. Nakamura: Can we do a roll call? The motion to adopt Resolution No. 2013-55, Draft 1 was then put, and failed by the following vote: FOR ADOPTION: Hooser, Rapozo TOTAL — 2, AGAINST ADOPTION: Kagawa, Nakamura, Yukimura TOTAL— 3, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Nakamura: Motion fails 2:3. Next item on the agenda? Resolution No. 2013-73 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF REVIEW (Dorothy R. Bekeart): Ms. Yukimura moved for adoption of Resolution No. 2013-73, seconded by Mr. Kagawa. Ms. Yukimura: I just want to say that Dorothy Bekeart was Deputy Finance Director when I was Mayor and was in charge of Real Property taxes. She has a wealth of knowledge. She was the one who actually opened up the appeal board proceedings to the public. They used to do it in Executive Session, so she is highly qualified for this particular position to which she is being appointed. Thank you. The motion to adopt Resolution No. 2013-73 was then put, and carried by the following vote: FOR ADOPTION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL— 5, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL — 2, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Five (5) ayes. COUNCIL MEETING 60 OCTOBER 23, 2013 Ms. Nakamura: Thank you, 5:0. Councilmember Kagawa. Mr. Kagawa: Chair, Theresa has been waiting very patiently for about four (4) hours. So, if we can go back to it. Ms. Fountain-Tanigawa: Page 3? Mr. Kagawa: Yes. If it is okay with you Chair. Ms. Nakamura: That is fine. C 2013-348 Communication (10/02/2013) from the Life's Choices Kaua`i Coordinator, requesting agenda time for Sarah C. W. Yuan, PhD, Associate Specialist from the University of Hawai`i at Manoa Center on the Family to present the results of the Strategic Prevention Framework State Incentive Grant (SPF-SIG): Mr. Rapozo moved to receive C 2013-348 for the record, seconded by Ms. Yukimura. There being no objections, the rules were suspended. THERESA KOKI, Life's Choices Kaua`i Coordinator: I would apologize. Ms. Nakamura: Thank you for patiently waiting. Ms. Koki: We had the agenda that we were here for 8:30 a.m. and consequently prior to our submission of our letter we worked with the Clerk to make sure that we would be able to get that because they were here for two (2) days and every hour on the hour they have to meet with our prevention providers as well and that is why we were not available because we were in the middle of a meeting when they called us to come before the Planning Commission. I would like to apologize, but our friends from the University of Hawai'i had to catch their flight back and because I am not an Epidemiologist, nor am I Ph.D. for the University of Hawai`i, I am not able to deliver the data to you today. I am not sure — what is the request of the Council for a future presentation? Ms. Nakamura: We could defer it to another meeting if that is the pleasure of the Council. Ms. Koki: They would also go back to the Alcohol and Drug Abuse Division to see if their contract can be extended because they are on limited-term contract and they are traveling to all of the islands. I am sure you are familiar with the Strategic Prevention Framework State Incentive Grant (SPF-SIG) that we had that it was a request of the Council to come back and report the data and the outcomes of how well we accomplished the underage drinking grants. Ms. Nakamura: Councilmembers, do you have questions for Theresa? Councilmember Yukimura. Ms. Yukimura: I just want to thank you for all of your work on this, Theresa. I know you are so dedicated. Ms. Koki: Thank you. COUNCIL MEETING 61 OCTOBER 23, 2013 Ms. Yukimura: Thank you. Ms. Nakamura: Would it make sense then to work with staff to schedule another briefing when it is convenient and when they are back in town? Ms. Koki: If they can get their contract extension for funding for travel, yes. Ms. Nakamura: Councilmember Rapozo. Mr. Rapozo: Thank you. I would suggest that we receive the item and repost at the time that we know they can make it back, otherwise it hangs in limbo. Ms. Nakamura: I think there is a motion to receive. Mr. Rapozo: There is. Ms. Nakamura: Councilmember Kagawa. Mr. Kagawa: I would also recommend that we look for a Committee date and I would be very happy to take them up as the first item of the day, since they come from O`ahu. That is my suggestion, but it is up to members. Thank you. Ms. Nakamura: Why do we not set it up with staff to work with Theresa to coordinate a Committee Meeting date? Would that be Committee of the Whole? Okay. Will that work Theresa? Ms. Koki: Okay. Ms. Nakamura: Thank you. Ms. Koki: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Nakamura: Any further discussion? The motion to receive C 2013-348 for the record was then put, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused.) Ms. Nakamura: Next item. Ms. Fountain-Tanigawa: The next item is still on page 3. C 2013-351 Communication (10/11/2013) from the County Attorney, requesting Council approval to expend additional funds up to $40,000 for Special Counsel's continued services provided in County of Kaua`i vs. Michael Guard Sheehan, et al., Civil No. 11-1-0098 (Condemnation), Fifth Circuit Court, and M related matters: Mr. Rapozo moved to defer C 2013-351, seconded by Ms. Yukimura, carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused.) COUNCIL MEETING 62 OCTOBER 23, 2013 Ms. Fountain-Tanigawa: It brings us back to page 5. BILLS FOR FIRST READING: Proposed Draft Bill (No. 2505) — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-754, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND CIP (Kaneiolouma Heiau - $805,000, Complete Streets Koloa/Po`ipu - $333,528, Po ipu Beach Park - $333,527): Mr. Kagawa moved for passage of Proposed Draft Bill No. 2505 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 20, 2013, and that it thereafter be referred to the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Ms. Yukimura. Ms. Nakamura: Is there anyone here that who would like testify? Seeing no one, any further discussion? The motion for passage of Bill No. 2505 was then put, and carried by the following vote: FOR PASSAGE: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL— 5, AGAINST PASSAGE: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Proposed Draft Bill (No. 2506) — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-754, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE BOND FUND (Kaneiolouma Heiau - $350,000, Heiau Contingency - $63,407): Mr. Kagawa moved for passage of Proposed Draft Bill No. 2506 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 20, 2013, and that it thereafter be referred to the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Ms. Yukimura. Ms. Nakamura: No one in the public here to testify on this matter. Roll call. The motion for passage of Bill No. 2506 was then put, and carried by the following vote: FOR PASSAGE: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL— 5, AGAINST PASSAGE: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. COUNCIL MEETING 63 OCTOBER 23, 2013 Proposed Draft Bill (No. 2507) — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND, SOLID WASTE FUND, AND SEWER FUND: Mr. Kagawa moved for passage of Proposed Draft Bill No. 2507 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 20, 2013, and that it thereafter be referred to the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Rapozo. Ms. Nakamura: No one here to testify. Roll call, please. The motion for passage of Bill No. 2507 was then put, and carried by the following vote: FOR PASSAGE: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL — 5, AGAINST PASSAGE: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL — 2, RECUSED & NOT VOTING: None TOTAL — 0. Proposed Draft Bill (No. 2508) — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (Licenses & Permits/Dog (Street-Use - General Fund) - $110,000, Kauai Humane Society (Special Projects) - $110,000): Mr. Kagawa moved for passage of Proposed Draft Bill No. 2508 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 20, 2013, and that it thereafter be referred to the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Rapozo. Ms. Nakamura: There is no one here to testify again. Roll call, please. The motion for passage of Bill No. 2508 was then put, and carried by the following vote: FOR PASSAGE: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL — 5, AGAINST PASSAGE: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Five (5) ayes. COUNCIL MEETING 64 OCTOBER 23, 2013 BILLS FOR SECOND READING: Bill No. 2499 — A BILL FOR AN ORDINANCE AMENDING CHAPTER 6, KAUAI COUNTY CODE 1987, AS AMENDED, BY ESTABLISHING A NEW ARTICLE RELATING TO CHARGES AND FEES: Mr. Kagawa moved to adopt Bill No. 2499 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Rapozo. Ms. Nakamura: There is no one here to testify. Any discussion? Roll call. The motion to adopt Bill No. 2499 on second and final reading, and that it be transmitted to the Mayor for his approval, was then put, and carried by the following vote: FOR ADOPTION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL— 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Ms. Nakamura: Motion carries. Bill No. 2500 — A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (SHOPO Arbitration): Mr. Kagawa moved to adopt Bill No. 2500 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Rapozo. Ms. Nakamura: Any discussion? No one here to testify. Roll call, please. The motion to adopt Bill No. 2500 on second and final reading, and that it be transmitted to the Mayor for his approval, was then put, and carried by the following vote: FOR ADOPTION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL — 5, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL — 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Ms. Nakamura: Thank you. COUNCIL MEETING 65 OCTOBER 23, 2013 Bill No. 2501 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE BUDGET PROVISO IN SECTION 2(E) RELATING TO THE COMMITTED RESERVE FUND BALANCE: Mr. Kagawa moved to adopt Bill No. 2501 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Rapozo. Ms. Nakamura: Thank you. Any discussion? There is no one here in the public to testify. Roll call, please. The motion to adopt Bill No. 2501 on second and final reading, and that it be transmitted to the Mayor for his approval, was then put, and carried by the following vote: FOR ADOPTION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura TOTAL — 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Furfaro TOTAL — 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Ms. Nakamura: Thank you. EXECUTIVE SESSIONS: ES-670 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), on behalf of the Council, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing and to discuss legal issues concerning the application and enforcement of Kaua`i County Code Chapter 8, Article 17, specifically the sections enacted under Ordinance Nos. 864, 876 and 904, and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Rapozo: Madame Chair. Ms. Nakamura: Yes? Mr. Rapozo: Being that the Resolution has failed and we were talking about having another discussion on the release of your opinion, I believe it is appropriate to receive this item unless it sits here. But I do not think we will be using it in the near future. So, if there is no objection, will make a motion to receive. Mr. Rapozo moved to receive ES-670 for the record in open session, seconded by Mr. Kagawa. Ms. Nakamura: Thank you. Any further discussion? COUNCIL MEETING 66 OCTOBER 23, 2013 The motion to receive ES-670 for the record in open session was then put, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused). Ms. Nakamura: Next item. Ms. Fountain-Tanigawa: The next item is also for a deferral. ES-684 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and 92-5(a)(4) and (8), and Kaua`i County Charter Section 3.07(E), the purpose of this Executive Session is to provide the Council with a briefing on County of Kaua`i vs. Michael Guard Sheehan, et al., Civil No. 11-1-0098 (Condemnation), Fifth Circuit Court, and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item: Mr. Kagawa moved to defer ES-684, seconded by Mr. Rapozo, and carried by a vote of 5:0:2 (Mr. Furfaro and Mr. Bynum were excused). ADJOURNMENT: There being no further business, the meeting was adjourned at 5:56 p.m. Res• •ctf )ly submitted, JA er . • I TAIN-TANIGAWA Deputy County Clerk :aa