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
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