HomeMy WebLinkAbout08/14/2019 Council minutes COUNCIL MEETING
August 14, 2019
The Council Meeting of the Council of the County of Kaua`i was called to order
by Council Chair Arryl Kaneshiro at the Council Chambers, 4396 Rice Street,
Suite 201, Lihu`e, Kaua`i, on Wednesday, August 14, 2019 at 9:27 a.m., after which
the following Members answered the call of the roll:
Honorable Arthur Brun
Honorable Mason K. Chock
Honorable Felicia Cowden
Honorable Luke A. Evslin
Honorable Ross Kagawa
Honorable KipuKai Kuali`i
Honorable Arryl Kaneshiro
APPROVAL OF AGENDA.
Councilmember Chock moved for approval of the agenda, as circulated,
seconded by Councilmember Brun.
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify on the agenda?
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Kaneshiro: Seeing none, is there any discussion from the
members?
The motion for approval of the agenda, as circulated, was then put, and
unanimously carried.
Council Chair Kaneshiro: The motion is carried. Next item, please.
MINUTES of the following meeting of the Council:
July 17, 2019 Council Meeting
July 17, 2019 Public Hearing re: Bill No. 2693
July 31, 2019 Public Hearing re: Bill No. 2754
Councilmember Kuali`i moved to approve the Minutes as circulated, seconded
by Councilmember Brun.
COUNCIL MEETING 2 AUGUST 14, 2019
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify on the Minutes?
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Kaneshiro: Seeing none, is there any discussion from the
members?
The motion to approve the Minutes, as circulated, was then put, and
unanimously carried.
Council Chair Kaneshiro: Motion carried. We have a Special Order of
the Day.
SPECIAL ORDER OF THE DAY:
Bill No. 2612, Draft 1 — A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 14, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE
PLUMBING CODE: Councilmember Kuali`i moved to approve Bill No. 2612, Draft 1,
on second and final reading, and that it be transmitted to the Mayor for his approval,
seconded Brun.
Council Chair Kaneshiro: I am going to excuse myself of this vote. I am
just kidding. We finally have everyone. Do we have any questions or comments? If
not, we will take public testimony, vote on this Bill, we have seven (7)
Councilmembers. This Bill will move somewhere. Do we have anyone signed up?
JADE K. FOUNTAIN-TANIGAWA, County Clerk: No one has signed up to
speak.
Council Chair Kaneshiro: Mr. Sykos.
There being no objections, the rules were suspended to take public testimony:
LONNIE SYKOS: For the record, Lonnie Sykos. I am confused
with this. What my confusion lies about is whether I am "yes" or "no," but I am very
clear on my position on this. If I understand the issue, we are basically being asked
to continue to allow using the existing Plumbing Code that was developed in the
United States, and our current methodology of plumbing. There is the movement to
create an International Plumbing Code (IPC), which is applicable everywhere in the
world that will most likely put our plumbing industry out of business. The rest of the
world runs on metric and we do not. To comply with the building code, some people
COUNCIL MEETING 3 AUGUST 14, 2019
are shaking their heads. In my observation, every time we see this movement of
global introductions, we see jobs in America disappear. I am opposed to replacing our
current code with this new one. I do not want to give up our existing plumbing code
for the promises of the IPC. Thank you.
Council Chair Kaneshiro: Mr. Bukoski.
KIKA BUKOSKI: Thank you, Chair and Councilmembers. Kika
Bukoski on behalf of the Plumbers & Fitters UA Local Union 675. I want to thank
you folks for continuing to take on this important issue. I want to especially thank
your staff. I know it has been a long-haul. I am hoping we are able to move forward.
It looks positive today that we are able to move forward in some direction. This year
marks the one hundredth (100th) anniversary for the Plumbers & Fitters UA Local
Union 675 as one of the oldest organized labor organizations in Hawai`i. It has been
nearly fifty-five (55) years that the County of Kaua`i first adopted the Uniform
Plumbing Code (UPC). At that time, Hartwell Blake was the Chair of the Board of
Supervisors for the County of Kaua`i. The Plumbers & Fitters UA Local Union 675
and the UPC has in many ways shaped and developed the County of Kaua`i as we
know it today. I want to reiterate three (3) points that I believe I have mentioned in
previous testimony. This is a good bill and it is sound policy. It provides the County
of Kaua`i the ability to update its plumbing code, and to take advantage of some of
the conservation efforts and efficiencies in the new code. It provides a tremendous
amount of flexibility to allow the County to use alternative methods, materials, or
engineer designs if they are available;that may present additional cost-savings. Most
importantly, it allows the County, this body, and the Administration to pursue its
initiatives to provide the people of Kaua`i with affordable housing. We strongly
support this Bill, and we ask for your support. We will continue to lend our efforts to
this body and County. We hope to gain partnership in working together on issues
that may arise in the future.
Council Chair Kaneshiro: Thank you.
Mr. Bukoski: Thank you.
Council Chair Kaneshiro: Mr. Hart.
BRUCE HART: For the record, Bruce Hart. I tend to stand in
favor of the UPC and the changes that are going to be made. I do not see that the
last testimony from Mr. Bukoski who testified that the other plumbing code would be
entirely different than the one we have. If we stay with what the Plumbing Union
wants, it is what they are familiar with, it is what the supplies are geared to, and I
think that is the way to go. Thank you.
COUNCIL MEETING 4 AUGUST 14, 2019
Council Chair Kaneshiro: Is there anyone else in the audience wishing
to testify for the first time? Seeing none. Is there anyone for a second time?
There being no further testimony, the meeting was called back to order, and
proceeded as follows:
Council Chair Kaneshiro: Is there any final discussion from the
members? Councilmember Kagawa.
Councilmember Kagawa: Thank you, Chair. I will be voting"yes" to the
Bill that was amended in Committee. For me, the reason we amended the bill is
because it is Plumbing Code. The State Building Code Council failed to get the
Plumbing Union to agree on some of the changes. Should the IPC stay in, you
basically would the general contractors or other unions like the Laborers'
International Union of North America (LiUNA) possibly benefit from having added
plumbing work. We talked about options. In our Code, we have had the option to use
IPC for fourteen (14) plus years. There has been nearly zero (0) instances that we
have ever used it. In the instances that we have used it, there were arguments made
that the UPC could be used to perform the same job. As far as track record for the
County of Kaua`i, when you look over the fourteen (14) years, we do not use the State
Building Code Council's proposal. We have not used it, and we were able to get by
with using one (1) code. Being that this is a plumbing issue, and a Plumbing Code,
we should listen to the professional plumbers. They have earned the right to become
a plumber by going through the licensing programs. If you really want to save cost,
what I see out there is that we are not using our youth who are going into the
plumbing, electrical, and air-conditioning fields. You see it. What do you see? You
see a lot of those skilled workers flying over from the City and County of Honolulu to
do the jobs here. I recently went to an electrician licensing graduation, and there
were only five (5) people that graduated from a three (3) year program. That is not
enough to support our growth. Which is why we need to fly people over from the City
and County of Honolulu or the mainland to do jobs here. How do you help the
economy? You need to hire our local folks who are certified in those fields. From the
education standpoint, Kaua`i Community College (KCC) and our Department of
Education (DOE) needs to focus on our children, so they are able to get these
high-paying skilled jobs. That will better our economy. We do not improve our
economy by saving cost, yet flying people over to do our jobs here. If we really want
to hit the nail on the head, that is the way we save costs. If we increase costs, and
our local children are the ones who are able to build their families around those
incomes, we are far better off. Instead of dealing with jurisdictional issues between
the laborers, plumbers, and general contractors...it is a plumbing issue. The
plumbers knows what is best for Kauai, for safety, for our residents, and for
businesses. It is a plumbing issue, let us listen to the plumbers, and that is why I am
voting "yes." Thank you, Chair.
COUNCIL MEETING 5 AUGUST 14, 2019
Councilmember Kagawa: Councilmember Evslin.
Councilmember Evslin: I want to thank the Plumbers and Laborers
Union for spending so much time in coming here and educating all of us. Since
Inauguration, I have learned way more about the Plumbing Code then I have ever
wanted to learn. I appreciate that. I would also like to say that I appreciate that the
Plumbers Union came to the table with a compromise and to keep the IPC in there to
tag a date into the code, and match it up with UPC. I believe that compromise would
have passed unanimously and allowed all of us to vote in favor of the code.
Unfortunately, that is not on the table. I want to clarify a couple of things based on
Mr. Sykos' testimony, and on other things that I have heard about the decision we
are making today. The IPC has been part of our code since 1997. Explicitly
referenced in the code as an alternative method, in which you need a licensed
engineer to draft. If you are going to get a plumbing permit, you do not need a licensed
engineer, so that is an extra barrier. It is a big part of the reason why very few people
have done this process. The logic for keeping the IPC in there is because it has
resulted in large cost-savings elsewhere. It is the most common code in the United
States, thirty-three (33) states have this code including the federal government. It
was developed in the United States and it is not a code from elsewhere coming into
play. What we are deciding on today...we voted on an amendment a few weeks ago
to remove the language allowing for IPC. The vote today is to pass the UPC without
the allowance for IPC. What has been established is there is no difference in health
outcomes. There is no evidence of IPC leading to negative potential health concerns.
For me, I really want to vote "yes" because I do think that this Plumbing Code in
whole would be a good thing. In good faith, I am not able to vote "yes" for something
that is eliminating choice and the potential for cost-savings. I will be a "no-vote"
today. I want to reiterate that this came from the State Building Code Council. I
strongly feel that the reason why our codes come from the State Building Code
Council is because they are not elected officials. They are industry professionals who
know their job and are developing codes, for the most part, to benefit Hawai`i without
politics involved. I do not think it is a good road to travel down when we are
nitpicking and taking out aspects of building codes that are coming from these
industry professionals. Lastly, I have said before, as we are facing the biggest
housing crisis we have ever seen, anything we can do to lower cost is important. Even
if there is the potential for someone to go forward with a project, whether it is Habitat
for Humanity, a County project, et cetera...if you are able to bring those costs down,
even if it is one half percent (1/2%), that is something. For all of those reasons, I think
it is important to keep the provision in there for the IPC. I will be voting "no" today.
A no-vote, if it were to get overturned we would not know. This means that the code
as passed by the State Building Code Council will come into effect I believe in
eighteen (18) months. This is not saying that we will never take this, it is saying that
it will take it as passed by the State Building Code Council when our clock is up.
Council Chair Kaneshiro: Is there anyone else? Councilmember Chock.
COUNCIL MEETING 6 AUGUST 14, 2019
Councilmember Chock: Thank you, Mr. Chair. I did not speak at the
last meeting, I knew we did not have the people around the table to actually get this
through. I will say my final comments now. This is in no disrespect. I feel sorry for
Councilmember Kagawa having to run this through his Committee for three (3)years,
and to be put in the position having to mitigate this. It has been a difficult road. The
sure sign of political disposition is when something is on the agenda for three (3)
years, and we are still at no resolution. When it comes down to it, we are laypeople,
leaders in the community trying to make a decision for professionals in the field who
are also in a disagreement. Therein lays a real challenge for us around the table in
trying to supersede that. The question is, why has other counties not done this? They
have not. Why did the County of Kaua`i choose to do this, that is the question. Here
is a list of reasons on why I will be voting against this Bill, as amended. First, the
IPC has proven to show cost effectiveness. As an option, that is something that we
really need to consider for our affordable housing needs. Secondly, as I have seen, it
shows no example for the harm of health and safety. Third, this has been in our code
now for fourteen (14) years. It already existed, while it has not been used, the
flexibility that it offers is something that we should consider. We need to figure out
how to make it more attainable in order for it to be successful, and for us being able
to use it to our advantage. The State Building Code Council has already made a move
on the recommendation and it will go into effect in the near future. Meanwhile, what
is happening at that level is that they are continuing to have this discussion on how
to come to a better agreement. At this time, I do not think we should be the ones in
the middle, therefore, I would prefer to stay out of it. With that being said, I
appreciate everyone that has come forth. For the unions, this is a national fight
between the organizations that has come to our table. I know that this will be passed
today. It has been on our agenda long enough to know where the votes are sitting.
We will move forward in doing the best that we are able. Thank you, Mr. Chair.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: I appreciate all that has been said here. In
my opinion, the cost-savings is a mere fraction of a percent. That is in comparison to
attacking a capillary. If you use the UPC, you are still able to get the cost-savings as
you would in the IPC. There is a lot of work available for general labor. It is really
important to encourage highly skilled set craftsmen in our community. As we move
away from skilled labor, it makes us all vulnerable as an island and a nation. I
respect what Councilmember Chock said about the state should really be handling
this, but the state has not handled this. We are using an old set for the Plumbing
Code. We need to move into a modern Plumbing Code. If this will force the
conversation at the State-level, I am willing to do that. As I had mentioned, I am
concerned about mission creep. I appreciate Ryan Kobayashi from LiUNA. He gave
his commitment to me in saying, "He would not allow that to happen." I believe and
appreciate him. At the same time, it might not be me and it might not be him. Policy
COUNCIL MEETING 7 AUGUST 14, 2019
is a lot more important than the personalities that are sitting on either side of this
banister. Generally, I like to always go with our Administration and the experts that
are handling the permitting. I am going to support this bill and the plumbers in
knowing what they want. That is my position.
Council Chair Kaneshiro: Councilmember Kagawa.
Councilmember Kagawa: I want to clarify that when the statements are
made in saying that thirty-two (32) states use the IPC, which is more than fifty
percent (50%). Thirty-two (32) states have municipalities that use IPC, it does not
mean that the IPC is predominately used over the UPC. The UPC is the predominate
code. The federal government adopted the IPC, and with the federal jobs they are
able to use the IPC. Both codes are the same. We have a different process in allowing
the IPC to be used if it is as Councilmember Evslin said, and it is stamped by a
licensed engineer. It should be dealt with at the State-level and they should work out
the compromise with the Plumbing Union. They failed to do this, that is the issue,
and that it has been through two (2) different plumbing administrations that came
through with the same testimony. A year ago, I thought they had a change in
leadership. I thought it changed where they may have softened their vote, but they
still were strongly against it. There were two (2) different leaders who agreed that
the IPC was not acceptable. If the State Building Code Council saw options, they
preferred if they did specific amendments to teach all the counties what areas to save
money when doing jobs. If the State Building Code Council truly wanted to do their
job as stated by Councilmember Chock, they need to spend more time and divulge
into spending time on the issues. They need to tell our Plumbing Union and plumbers
the areas for saving people money. When that job is done, we will see a better result
from the State Building Code Council rather than listening to general contractors
and laborers. Everyone is worried on how we are able to get more work out there. As
I mentioned, I would like to save taxpayers money. I would like to see local children
interested in plumbing and electrician fields because they pay really good money.
Thank you, Chair.
Council Chair Kaneshiro: Is there anyone else? Councilmember Kuali`i.
Councilmember Kuali`i: I am not going to restate my position. I want
to thank Councilmember Kagawa for his leadership all along. Thank you, to the
Plumbers Union and Kika Bukoski. Thank you, for continuing to come back and
reminding us why it is important to pass this bill. I stand with the plumbers and all
of the statements that Councilmember Kagawa made today.
Council Chair Kaneshiro: Is there anyone else? I am going to mirror my
statements from last week. The current bill as it stands strikes out IPC and only
allows for UPC. I will be voting "no." My no-vote keeps the code the same which
allows for both IPC and UPC. It has been that way for over ten (10) years. This vote
COUNCIL MEETING 8 AUGUST 14, 2019
is to provide the residents and contractors with the option to either code and to
provide cost-saving opportunities. When we had the Energy Code before us, we
softened their language to provide the contractors and customers with an opportunity
to have cost-savings. Examples of cost-savings are submetering commercial
buildings, electrical vehicle chargers in garages, and mandatory ceiling fans. This is
mandatory softened language changing the word "shall" to "may," and was done to
allow the homeowner the opportunity to save cost on the front-end. By having the
IPC and UPC, we are giving the residents and the contractors the option to use what
they want. That is the way it has been. My vote is to keep it that way. In the future
and at the State-level, I am hopeful that IPC and UPC is able to come up with
something that everyone is going to be able to agree on. At this time, I am not able
to strike out the IPC. My vote is going to be "no." Is there anyone else? If not, we
will take a roll call vote.
The motion to approve Bill No. 2612, Draft 1, 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 APPROVAL: Brun, Cowden, Kagawa, Kuali`i TOTAL— 4,
AGAINST APPROVAL: Chock, Evslin, Kaneshiro TOTAL— 3,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Council Chair Kaneshiro: Motion passes, 4:3.
Ms. Fountain-Tanigawa: 4:3.
Council Chair Kaneshiro: Next item, please.
Ms. Fountain-Tanigawa: Next is items on the Consent Calendar for
receipt.
CONSENT CALENDAR:
C 2019-180 Communication (07/20/2019) from the Director of Finance,
transmitting for Council information, the Fourth Quarter Statement of Equipment
Purchases for Fiscal Year 2018-2019, pursuant to Section 17 of Ordinance
No. B-2018-841, relating to the Operating Budget of the County of Kaua`i for Fiscal
Year 2018-2019.
C 2019-181 Communication (07/29/2019) from the Director of Finance,
transmitting for Council information, the Condition of the County Treasury
Statement quarterly report as of May 7, 2019.
Councilmember Kuali`i moved to receive C 2019-180 and C 2019-181 for the
record, seconded by Councilmember Brun.
COUNCIL MEETING 9 AUGUST 14, 2019
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify on the Consent Calendar?
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Kaneshiro: Seeing none, is there any discussion from the
members?
The motion to receive C 2019-180 and C 2019-181 for the record was then put,
and unanimously carried.
Council Chair Kaneshiro: Let us take Communication 2019-182.
Ms. Fountain-Tanigawa: On page 2.
COMMUNICATIONS:
C 2019-182 Communication (07/26/2019) from the Prosecuting Attorney,
requesting Council approval to receive and expend State funds, in the amount of
$222,628.00, to be used towards funding one (1) Full-Time Equivalent (FTE) Deputy
Prosecuting Attorney and partial fringe benefits for the Career Criminal Prosecution
Unit, and to indemnify the State of Hawai`i Department of the Attorney General:
Councilmember Kuali`i moved to approve C 2019-182, seconded by Councilmember
Brun.
Ms. Fountain-Tanigawa: Chair, we do have a speaker on this item,
Debra Kekaualua.
There being no objections, the rules were suspended to take public testimony.
DEBRA KEKAUALUA: Aloha everyone, for the record, Debra
Kekaualua. I am here specifically for C 2019-183.
Council Chair Kaneshiro: I am sorry Ms. Kekaualua, would you like to
speak on C 2019-182 or C 2019-183?
Ms. Kekaualua: This one has to do with the C 2019-183
regarding the two hundred twenty-two thousand dollars ($222,000).
Council Chair Kaneshiro: Okay, C 2019-182, you are on the right one.
Go ahead.
COUNCIL MEETING 10 AUGUST 14, 2019
Ms. Kekaualua: I am sorry, I read the wrong the number.
Council Chair Kaneshiro: I wanted to ensure you were testifying on the
correct bill. C 2019-182 on the two hundred twenty-two thousand dollars ($222,000),
that is correct.
Ms. Kekaualua: Thank you. I want to say"no"to receiving and
expending State funds in the amount of two hundred twenty-two thousand six
hundred twenty-eight dollars ($222,628). I do not think that this island warrants
having a Career Criminal Prosecution Unit. I wanted to represent myself as a victim,
and I am also representing many victims of the spirit of"can," and to make comment
on the many Hawai`i "hot" and not "cold" cases. We have not received judicial
compensation. We are all in the courthouse doing prose work being that the
prosecuting attorney (PA) has closed many of our cases. During Iniki time, Aleisea
"Lacey" Woosley Ruf, a four (4) year old, who was murdered at `Anini. Read the book,
The 5th Seal, it will tell you about Lacey and the other Kaua`i victims that have yet
to receive representation or receive justice for the injuries they have received,
including murder.
(Councilmember Kagawa was noted as not present.)
The stolen mailbox is the tip of the iceberg. In my opinion, this department
and others across the "fake board" need to be audited and not allowed to conduct
further shenanigans out of the PA victim witness program, the Kaua`i Police
Department (KPD), and the judiciary. Thank you.
Council Chair Kaneshiro: Thank you. Is there anyone else in the
audience wishing to testify? Mr. Sykos.
Mr. Sykos: For the record, Lonnie Sykos. The question I
have and I am not asking the police department any specifics about anything...what
are the career criminal activities that are going on here on Kaua`i? One aspect is that
we know that people are importing drugs. We have tons of money from different
organizations and sources for drug zones and surveillance. What impact is this
money going to have? For example, eliminating the drug ice. Do we have online
gambling, or do we have cyber criminals working out of Kaua`i? My question is, what
are the career criminal activities that we are funding to eliminate? Thank you.
Council Chair Kaneshiro: Is there anyone else in the audience wishing
to testify? Is there anyone for a second time? If not, while the rules are still
suspended we have a question from Councilmember Cowden.
Councilmember Cowden: Am I able to speak to the Office of the
Prosecuting Attorney?
COUNCIL MEETING 11 AUGUST 14, 2019
Council Chair Kaneshiro: Yes, they are here.
YVETTE SAHUT, Administrative Services Officer: Good morning, Council
Chair Kaneshiro and Councilmembers, Yvette Sahut, Administrative Services
Officer.
JAIMIE OLIVAS, Grant Coordinator: Jaimie Olivas, Grant Coordinator.
Councilmember Cowden: Thank you for coming. I spent quite a bit of
time reading all of the inclusion in here. As the Public Safety & Human Services
Committee, Chair, I felt this is really important. I am hoping this will answer the
questions from the last two (2) people who testified. For the sake of the last person,
are you able to clarify, and I do see it in here, what defines a career criminal? It is
on page 6.
Ms. Sahut: The Hawai`i Revised Statutes (HRS),
Chapter 845-3 lays out exactly what is considered a career criminal. It says, "One, a
career criminal must have had two (2) or more felony convictions within the last five
(5) years. Two, has had one (1) or more felony, or two (2) or more misdemeanor
convictions and/or arrests within the last three (3) years. Misdemeanors will be
limited to prostitution, theft II, and place to keep firearm. Three, is convicted and/or
arrested for the offense of felon in position of firearm within the last five (5) years.
Four, is on parole. Five, on probation. Six, is on bond awaiting an appeal. Eight, is
known or suspected to be an associate of an organized crime. Nine, is known or
suspected of recurring or ongoing criminal activity. Ten, has no adult record, but who
has had an extensive juvenile record. Eleven, is a juvenile with an extensive record
who has waived to the circuit court for trial." I would add that our office has
guidelines, policies, and procedures to establish in identifying these people.
Councilmember Cowden: I highlighted so many lines in here. To my
understanding, and if you are able to help me if I am not correct..."It is assuring a
continuity and quality of effort now perhaps lacking in most prosecutorial offices
because of existing caseload." What I see is a person who goes to court, a lot of times
things fall through the cracks and someone is constantly reassigned to the case.
When there is someone who has a repeat offense, they need to make sure from start
to finish, that there is nothing that are falling through the cracks when attorneys are
being switched out. Is that correct?
Ms. Olivas: Correct. The funding is based on one (1)
full-time Deputy Prosecuting Attorney. This attorney will be taking care of these
cases from the very beginning; from the initial intake all the way to the end.
Councilmember Cowden: There are two (2) nuances. I am not sure if
the first person asking questions is still here. We have people who receive a series of
COUNCIL MEETING 12 AUGUST 14, 2019
misdemeanors for policy types of issues. For example, the Hawaiian Sovereignty
movement. Would those people be considered career criminals? If they are
repeatedly protesting, would that fall under this umbrella?
Ms. Sahut: That would be at the discretion of the
prosecuting attorney who is reviewing the case supported by the facts that go along
with the case.
Councilmember Cowden: If I heard correctly, a piece of what she is
saying, that is an important group to set aside if it is a situation of politics. What I
was encouraged in looking at, is that some people are good in knowing how to get
through the process and they continue to commit crime after crime. The goal is to
put a stop to this, correct?
Ms. Sahut: Yes.
Councilmember Cowden: Is this coming from State or Federal funds?
Ms. Olivas: State.
Councilmember Cowden: State. Is this another grant that would be
four (4) years of State funding?
Ms. Olivas: No, this is a continuation. We have funding
every year from the State. It is in the Hawai`i Revised Statutes (HRS).
Councilmember Cowden: Is this already happening?
Ms. Olivas: Yes, it has been happening.
Councilmember Cowden: Is it working, because then I am to wonder.
Ms. Sahut: We wanted to have our current Deputy here
today, but he is in jury trial for a Career Criminal Prosecution (CCP) case.
Councilmember Cowden: How long has it been in place?
Ms. Olivas: Since the 1980's or 1990's.
Councilmember Cowden: Okay, I thought we were getting something
new that seemed grossly needed. To be honest, that is disappointing. I will support
this, but I am not able to tell if this is happening. I thought this was something fresh.
Okay, thank you.
COUNCIL MEETING 13 AUGUST 14, 2019
Council Chair Kaneshiro: Are there any other questions?
Councilmember Evslin.
Councilmember Evslin: Thank you for coming. I will be supporting
this, but I do have a question. On page 10, there is a page that says program statistics
and it is blank. Presumably that is filled out at the end of the year?
Ms. Olivas: Yes, this is part of the grant application.
These are the statistics that the State requires us to report on.
Councilmember Evslin: Do you have reporting on previous years?
Ms. Olivas: We do. If you look at attachment...it is
further in the back.
Councilmember Evslin: Oh, I see. Great, thank you so much. I also
asked the last time about the seventy-five percent (75%) prosecution rate as a stated
goal. I asked because it seemed high. In reading through this, I see that you folks
have a sixty-eight percent (68%) prosecution rate and a high number of cases. I want
to congratulate you for that and rephrase my previous questions. I am guessing
seventy-five percent (75%) is not too high of a goal.
Ms. Olivas: Thank you.
Council Chair Kaneshiro: Are there any other questions?
Councilmember Kuali`i.
Councilmember Kuali`i: My question is probably for the person who is
not here. However, are you able provide basics on what the Career Criminal
Prosecution Unit regarding staff and funding? What does the two hundred thousand
dollars ($200,000) represent as part of the entire budget for that unit?
Ms. Olivas: Since I have been in the Office of the
Prosecuting Attorney for the last twelve (12) plus years, when I first started, we
would receive three hundred thousand dollars ($300,000) to four hundred thousand
dollars ($400,000)for the CCP Unit. At that time, we were able to staff two (2) Deputy
Attorney's and clerks. Currently, we are only receiving one hundred ten thousand
dollars ($110,000) each year; and this is a two (2) year grant. With one hundred ten
thousand dollars ($110,000), we only have enough to fund one (1) Prosecuting
Attorney along with some fringe benefits.
Councilmember Kuali`i: Thank you.
Council Chair Kaneshiro: Is there anyone else? If not, thank you.
COUNCIL MEETING 14 AUGUST 14, 2019
Ms. Sahut: Thank you.
The meeting was called back to order, and proceeded as follows:
Council Chair Kaneshiro: Are there any final discussion from the
members? If not, we will take a roll call vote.
The motion to approve C 2019-182 was then put, and carried by the following
vote:
FOR APPROVAL: Brun, Chock, Cowden, Evslin,
Kagawa, Kuali`i, Kaneshiro TOTAL— 7*,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL— 0.
(*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kaua`i,
Councilmember Kagawa was noted as silent (not present), but shall be recorded
as an affirmative for the motion.)
Ms. Fountain-Tanigawa: Motion passes.
Council Chair Kaneshiro: Next item, please.
C 2019-183 Communication (08/07/2019) from the County Attorney,
requesting Council approval to expend funds up to $50,000.00, to retain Special
Counsel to represent the Planning Department in Transient Vacation Rental (TVR)
appeals and related matters: Councilmember Kuali`i moved to approve C 2019-183,
seconded by Councilmember Brun.
Ms. Fountain-Tanigawa: Chair, we will have an Executive Session on
this item, but there is a speaker.
Council Chair Kaneshiro: Do we have someone signed up?
Ms. Fountain-Tanigawa: Yes, Lonnie Sykos.
Council Chair Kaneshiro: Mr. Sykos.
Mr. Sykos: For the record, Lonnie Sykos. My apologies,
what is the agenda item?
Council Chair Kaneshiro: This is C 2019-183, regarding the Transient
Vacation Rental (TVR) appeals and approval to expend funds up to fifty thousand
dollars ($50,000).
Mr. Sykos: Yes, I read the recent article in The Garden
Island newspaper on this. For the County Attorney, my question is...to me as a
COUNCIL MEETING 15 AUGUST 14, 2019
layperson, the fifty thousand dollars ($50,000) is a retainer fee. How much is this
going to cost us? I know that you do not have an answer, but if I were one (1) of those
six (6) people, my attorney already told me what the bottom-line of this is going to be.
Is the County able to tell the customers what the cost is going to be? The answer to
that is, in your conversations, Council Chair Kaneshiro I am not a transplant. Are
you familiar with Mario Savio, and the reasons for the UC Berkeley Free Speech
Movement? If you are not, then you should Google it. In my observation of the County
Council, you need to clean your language. I am not a transplant. The six (6) people
that are suing us are not transplants. It is racist, bigoted language, and it is going to
cost the public an enormous amount of money. In this application of the law, it is bad
that the County has a public record of disparaging them for who they are as a class
of people. It is pathetic, and it is going to cost a lot of money which is why I am asking
our County Attorney what the bottom-line price is going to be for this lawsuit. That
does not change the outcome of it. To the public that is watching, the County really
needs to change how it does business because this is going to be another massively
expensive bill for the general public to pay. Thank you.
Council Chair Kaneshiro: Thank you. Is there anyone else? Mr. Hart.
Mr. Hart: For the record, Bruce Hart. I have with me
The Garden Island newspaper dated last Wednesday, August 7th. This article is on
what happened in the courtroom with the Honorable Judge Kathleen N. A.
Watanabe. It is disturbing to read and it has me very concerned. I do not know all
of the details because I have not had the time to be able to go over the courtroom
transcript, to read everything that happened, and what was said. I only have the
highlights from the newspaper article. What is seen here seems to be factual. I do
not know Judge Watanabe personally or socially, but I have been in her courtroom.
She calls what happened, "Pretty amazing and really embarrassing." In light of all
of this, I am wondering if this is premature. As a member of the public, I do not know
exactly what happened and I have not heard both sides. I am not able to make a
decision on whether I am for or against this. This issue is going to also come up today
in the Executive Session. I do not even see how the Council knows, unless you know
something that I do not know? According to the Sunshine Law, you do not. Again, I
am not able to make a decision, because I do not have the information I need in order
to make a decision. I consider this premature. Thank you.
Council Chair Kaneshiro: Thank you. Is there anyone else? Is there
anyone else for a second time? Seeing none.
There being no further testimony, the meeting was called back to order, and
proceeded as follows:
Council Chair Kaneshiro: We will be voting on this item after the
Executive Session. Next item, please.
Ms. Fountain-Tanigawa: Chair, the next item is a Legal Document.
LEGAL DOCUMENTS:
C 2019-184 Communication (07/26/2019) from the Deputy County Engineer,
recommending Council approval of the following Property Adjustment Agreements
for the Lihu`e Town Core Mobility and Revitalization Project —TGR-0700(073):
COUNCIL MEETING 16 AUGUST 14, 2019
• Property Adjustment Agreement by and between the County of
Kaua`i and H5`ike: Kaua`i Community Television, Inc., 4318 Rice
Street, Tax Map Key (TMK) No. (4) 3-6-003:013;
• Property Adjustment Agreement by and between the County of
Kaua`i and Hale Kaua`i LTD., 4290 Rice Street, TMK
No. (4) 3-6-003:015; and
• Property Adjustment Agreement by and between the County of
Kaua`i and JV D Two Lihu`e LLC, 4291 Rice Street, TMK
No. (4) 3-6-007:031.
Councilmember Kuali`i moved to approve C 2019-184, seconded by
Councilmember Brun.
Council Chair Kaneshiro: Do we have any questions from the members
on this item for the Administration? If not, is there anyone in the audience wishing to
testify on this item?
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back to
order, and proceeded as follows:
Council Chair Kaneshiro: Is there any final discussion? None.
The motion to approve C 2019-184 was then put, and unanimously carried
(Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Kagawa was noted as silent (not present), but shall be recorded
as an affirmative for the motion).
C 2019-185 Communication (07/31/2019) from Bryson Ponce, Assistant Chief
of Police, Investigative Services Bureau, recommending Council approval to enter
into a Memorandum of Agreement (MOA) with the American Society of Crime
Laboratory Directors (ASCLD) Domestic Accreditation Task Force, to seek
international accreditation of the Kaua`i Police Department Crime Scene and
Laboratory Unit, and to indemnify, hold harmless, and defend the ASCLD, its elected
officials, officers, employees, and agents from and for any and all losses, claims,
actions, judgments for damages, or injury to persons or property, and losses and
expenses caused or incurred by or arising out of the tortious conduct of the ASCLD
or its elected officials, officers, employees, or agents.
• Memorandum of Agreement Between the Kaua`i Police Department
(KPD) and the American Society of Crime Laboratory Directors
(ASCLD) Regarding ASCLD Domestic Accreditation Task Force
(ADATF) and the KPD Crime Scene and Laboratory Unit (CSLU)
Councilmember Kuali`i moved to approve C 2019-185, seconded by
Councilmember Brun.
COUNCIL MEETING 17 AUGUST 14, 2019
Council Chair Kaneshiro: Councilmember Cowden has a question.
There being no objections, the rules were suspended.
BRYSON PONCE,Assistant Chief of Police, Investigative Services Bureau: Good
morning. For the record, Bryson Ponce, Assistant Chief, Kaua`i Police Department.
Councilmember Cowden: Good morning.
STEPHANIE REGAN, Crime Scene Specialist I: Stephanie Regan,
Supervisor for the Crime Scene and Laboratory Unit.
Councilmember Cowden: I want to thank you for the good work that you
do in the Crime Scene and Laboratory Unit. I appreciate what we are able to learn from
you in our Citizens Police Academy. Are you able to tell me in what way...are you going
to go away for training or are you going to bring people in to step this up, and what are
we going to be achieving different from what we are currently doing?
Ms. Regan: Currently as you know,in 2016 the department
achieve Commission on Accreditation for Law Enforcement Agencies (CALEA)
accreditation as a general department. For that, that is applicable to the police
department as a whole. It actually has very little to do with the forensic science
function. The only real piece covered under CALEA standards, for the forensic sciences,
is when evidence is not in our hands, that evidence is not being degraded. Other than
that, all of the forensic sciences are not governed by those CALEA associated standards.
We are hoping to look towards the International Accreditation Board (IAB) for the
forensic sciences and go after ISO/IEC 17025, which is forensic science specific
accreditation for our unit. That is the goal in what we are trying to do. As far as what
this initiative will do and our actions with it, we would be bringing in a mentor. We
have partnered with ASCLD. If this mentorship and the Memorandum of
Agreement (MOA) approved, one of the quality insurance directors out of Arizona will
be slated out of Chandler Police Department to be our mentor. She would be coming
out here to do a walk around. A lot of the mentorship will be based on conference calls
and reviewing of documents. As far as travel and training, that will be semi-limited in
that mentorship program. She will also come out for an initial audit.
Councilmember Cowden: When we get this accreditation, will this help
us to receive further grants? How does this help us? I am hoping it will help us to be
more effective at solving crimes. Why is the accreditation important?
Ms. Regan: For the accreditation in whole, blankly across
the board right now even on unaccredited, we try to maintain the highest quality and
standards that we are able. An accreditation will ensure that we are up to the
internationally recognized best practices and standards. As far as that goes, it will
COUNCIL MEETING 18 AUGUST 14, 2019
allow us to both operate efficiently and at a higher quality. In addition, it will help us
in courtroom testimony to be sure that all of our standards are aligned with what is
internationally known for best practice. A lot of the federal funding is beginning to be
handcuffed to accredited labs or those perusing accreditation. In that realm,it will open
the doors and continue to allow us to tap into the federal funding in order to better our
forensic systems.
Councilmember Cowden: In summary, what I am hearing is our
prosecution will be aided being that the testimony will be stronger against the defense.
I want to acknowledge the effectiveness the police department seems to be having in
getting outside funding. Will this help with that?
Ms. Regan: It will. For this accreditation initiative, we are
hoping to have all funding covered in the next year or so. We are also hoping to receive
federal funding for all associated costs.
Councilmember Cowden: I am going to use this moment...in the earlier
part of our Consent Calendar, when we looked at our spending. In the last quarter, the
police department was the strongest department who exceeded saving and not spending
a lot of money. I believe that is from your grant writing, thank you so much.
Mr. Ponce: Thank you.
Council Chair Kaneshiro: Are there any other questions from the
members? If not, thank you. While the rules are still suspended, is there anyone else
in the audience wishing to testify on this item?
There being no one present to provide testimony, the meeting was called back to
order, and proceeded as follows:
Council Chair Kaneshiro: Seeing none. Is there any final discussion from
the members?
The motion to approve C 2019-185 was then put, and unanimously carried
(Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmember Kagawa was noted as silent (not present), but shall be recorded
as an affirmative for the motion).
CLAIMS:
C 2019-186 Communication (07/30/2019) from the County Clerk,
transmitting a claim filed against the County of Kaua`i by Rita's Equipment Rental
& Trash Disposal, Inc., for damage to their vehicle, pursuant to Section 23.06,
Charter of the County of Kaua`i.
COUNCIL MEETING 19 AUGUST 14, 2019
(Councilmember Brun was noted as not present.)
C 2019-187 Communication (08/01/2019) from the County Clerk,
transmitting a claim filed against the County of Kaua`i by Matthew Mannisto, Esq.,
as Personal Representative of the Estate of Leslie Gae Lutao, Deceased, Richard
Lutao, Jessica Lancaster, Selina Lutao, Shayna Camarillo, and Jason Camarillo, and
their attorneys Michael J. Green and Susan L. Marshall, for negligence and fatal
injury, pursuant to Section 23.06, Charter of the County of Kaua`i.
Councilmember Kuali`i moved to refer C 2019-186 and C 2019-187 to the Office
of the County Attorney for disposition and/or report back to the Council,
seconded by Councilmember Chock.
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify on these items?
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Kaneshiro: Seeing none. Is there any discussion from the
members?
The motion to refer C 2019-186 and C 2019-187 to the Office of the County
Attorney for disposition and/or report back to the Council was then put, and
unanimously carried (Pursuant to Rule No. 5(b) of the Rules of the Council of
the County of Kauai, Councilmembers Brun and Kagawa were noted as silent
(not present), but shall be recorded as an affirmative for the motion).
Council Chair Kaneshiro: Motion carried, next item please.
Ms. Fountain-Tanigawa: Next item is your Committee Report.
COMMITTEE REPORT:
PLANNING COMMITTEE:
A report (No. CR-PL 2019-09) submitted by the Planning Committee,
recommending that the following be Approved on second and final reading:
"Bill No. 2754–A BILL FOR AN ORDINANCE AMENDING SECTION
8-1.5, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO GUEST
HOUSE (Guest House— Planning Commission Recommendation)"
Councilmember Chock moved for approval of the report, seconded by
Councilmember Kuali`i.
COUNCIL MEETING 20 AUGUST 14, 2019
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify on this item? This is the Committee Report.
There being no objections, the rules were suspended to take public testimony.
There being no one present to provide testimony, the meeting was called back
to order, and proceeded as follows:
Council Chair Kaneshiro: Seeing none, is there any discussion from the
members?
The motion for approval of the report was then put, and unanimously carried
(Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai,
Councilmembers Brun and Kagawa were noted as silent (not present), but shall
be recorded as an affirmative for the motion).
Council Chair Kaneshiro: Motion carried. Next item.
Ms. Fountain-Tanigawa: Chair, the next item is a Bill for Second
Reading.
BILL FOR SECOND READING:
Bill No. 2754–A BILL FOR AN ORDINANCE AMENDING SECTION 8-1.5,
KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO GUEST HOUSE
(Guest House — Planning Commission Recommendation): Councilmember Chock
moved to approve Bill No. 2754, on second and final reading, and that it be
transmitted to the Mayor for his approval, seconded by Councilmember Kuali`i.
Council Chair Kaneshiro: Do we have any amendments or how are we
going to proceed with this?
Councilmember Chock: Yes, Mr. Chair, if you do not mind, I would
like to ask the County Attorney and our Planning Director a few questions as it
relates to potential amendments.
Council Chair Kaneshiro: My comment would be, if there are a
significant amount of amendments, that we move it back into Committee.
Councilmember Chock: Thank you. As they are coming up...there
were two (2) amendments that we have discussed at the Committee level. One (1)
amendment was the increase of size to the eight hundred (800) square feet. To my
understanding, that amendment as well as the attached existing structure were both
significant amendments in changing the original intent of the bill. Therefore, if
amended, it would need to restart its process. I would like to confirm that. Second,
in the last week since the Committee Meeting, there was another issue that was
brought to my attention. One (1) issue was pertaining to the Visitors Destination
Area (VDA) and the use of Transient Vacation Rentals (TVRs) and taking away the
COUNCIL MEETING 21 AUGUST 14, 2019
use of VDA, which has been deemed the area for those types of activities. I would
like to clarify one (1) and two (2). We did not receive it in writing, and I would like to
get it on record that they were significant. Mr. Chair, we would then suggest to
submit a new bill to address those issues of interest. Third, if we are able to get
clarification...the main issue we had with the VDA question was if it is an entitlement
that is being taken away and if it would cause any legal ramifications to this bill.
May I please get an explanation?
There being no objections, the rules were suspended.
MATTHEW A. BRACKEN, County Attorney: Matthew Bracken,
County Attorney. In regards to the first question, if it is a substantial change or not,
I did opine on the floor last week, and I took a closer look at the case this week. It is
still my opinion that there would be a substantial change. The test is basically
whether the change would amount to an entirely new proposal. As originally
proposed, the ordinance change is to allow kitchens, changing the square footage, and
restricting the use of the VDA. Any change in square footage and how the square
footage is defined, I would opine that there would be a substantial change as it would
basically be a new proposal. I would recommend a separate bill for those two (2)
changes.
Councilmember Chock: Thank you very much.
Mr. Bracken: For the other question, as written, this would
restrict TVR use of a guest house even within the VDA. How that works is basically
very similar to the current operation of a TVR outside of the VDA. If there is a guest
house that is currently operating as a TVR and they have the proper permits, if this
ordinance is passed, it would become nonconforming uses. It is not essentially taking,
those uses would just become nonconforming.
Councilmember Chock: Thank you. Mr. Chair, could I please
complete the circle with the Planning Director on what the wish is in terms of dealing
with this. In our discussions, we have talked about whether or not this is enforceable,
and what the future plans are within the Planning Department's standpoint. Is there
anything in the bill that should be addressed now?
KAAINA S. HULL, Planning Director: Good morning, Chair and
Councilmembers, Ka`aina Hull on behalf of the Planning Department. In concern for
restriction of guest houses for TVR use within the VDA, I believe this was put on at
the Planning Commission level. Part of the Commission's desire was to recognize the
fact that if we are putting kitchens in guest houses, indeed they will be used for
habitation purposes, and let us try to use these guest houses throughout the
island...whether VDA or not, for residential and not transient purposes. I agree with
that philosophy, which is why we are amenable to the proposal at the Planning
Commission. Realistically and to be blunt about it, to ensure that guest houses are
used for residential purposes and not TVRs in the VDA is a bit difficult. We need to
go off of advertisements. Walking up to a property, discerning because there is a
rental car, and assuming the car is for a TVR. That is not going to hold mustard in
court. We have to use the advertisements from third-party host platforms to establish
COUNCIL MEETING 22 AUGUST 14, 2019
if there is a vacation rental operation happening on a particular site, and we need to
be able to callout the advertisement to the specific address. Addresses are not on
third-party host platforms. They intentionally blur out the exact location. Our team
has to sleuth that out by using digital technology. That is going on outside of the
VDA.
(Councilmember Brun was noted as present.)
The team sorts through several hundred advertisements. The number we were
getting two (2) or three (3) years ago was one thousand three hundred (1,300) to one
thousand fifteen hundred (1,500) advertisements for illegal operations outside the
VDA. Over the past few years, as I was talking to the team about this, the team has
actually chipped away at a lot of illegal vacation uses outside of the VDA. Some of
the digital numbers that we are now getting for illegal vacation rentals range from
three hundred (300) to five hundred (500). It is no longer in the thousand threshold
outside of the VDA. If we were to look within the VDA now, to parcel out guest houses
that are being used for illegal vacation rental operations, there are thousands of
legally operating TVRs in the VDA. For them to have to sort through thousands of
advertisements to pinpoint a potential guest house is difficult, but it is not impossible.
That was a longwinded answer. We support the philosophy and the merit behind the
way the proposal was set-up, but it is a bit difficult to enforce at this time.
Councilmember Chock: Ka`aina, I want to make sure that I
understand correctly. The interest of the Planning Department is to limit guest
houses as TVR in VDA. Is that correct?
Mr. Hull: Yes, we would with this wording. We are in
agreement with this wording.
Councilmember Chock: Okay, thank you.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: I have a simple follow-up. Do you have any
idea on how many guest houses are in the VDAs that would benefit from having a
kitchen?
Mr. Hull: I do not have those numbers at this time. We
could attempt to find out.
Councilmember Cowden: I wondered if it were fifty (50), one
hundred (100)...you have no idea?
Mr. Hull: I do not know the number off the top of my
head. The fact of the matter is, a lot of the potential properties in the VDA that are
within the Residential District where TVRs occur, those properties generally qualify
for an Additional Dwelling Unit (ADU). You would either pick and ADU or a guest
house. In most scenarios, if the property wants a second structure, they would go for
the ADU as oppose to the guest house.
COUNCIL MEETING 23 AUGUST 14, 2019
Council Chair Kaneshiro: Councilmember Evslin.
Councilmember Evslin: I have a follow-up to Councilmember Chock's
question to Matthew Bracken. When you said that if this bill passes, any existing
TVR in a guest house would become nonconforming, would they need to come in and
get a Zoning Permit in order to be nonconforming or would it be considered
nonconforming without a Zoning Permit.
Mr. Bracken: Currently, they should have a Class I Zoning
Permit to be operating within the VDA. If they had the permit and operating, they
would be nonconforming, and entitled to continue operation. Essentially, it would be
treated like the TVRs outside the VDA.
Councilmember Evslin: Without a Class I Zoning Permit, they would
not be considered nonconforming.
Mr. Bracken: Yes, technically that it is correct. The permit
is where the entitlement is from. Without the proper permit, they would be
nonconforming.
Councilmember Evslin: Okay. As Ka`aina explained the reason why
enforcement is so difficult within the VDA, and it does not seem as if we are at a place
where we will be able to enforce it anytime soon. Ka`aina, there has been lots of other
places as we have talked about it on and off the floor about whether the State or the
County could mandate the online list of the retailers permit number through their
advertisement. Do you foresee any potential of that happening in the future? If so,
in order to operate, everyone within the VDA would have to come in for a Class I
Permit.
Mr. Hull: The enforcement of VDA is not a priority of
the department being that vacation rentals are outright permissible in the VDA. As
the County Attorney mentioned, you technically need a Class I Zoning Permit. We
are well aware that many of these operations are operating without the Class I Zoning
Permit. It has not been the prerogative of this department to go in there and start
"shaking up" those TVRs because it is an over-the-counter permit, it is thirty dollars
($30), and it relatively easy to acquire. The Class I Permit is to ensure they have that
entitlement. Our focus has been outside of the VDA, and in our Residential
neighborhoods and Agricultural Lands where you are not able to get a permit. Our
enforcement has been on the Non-Visitor Destination Areas for illegal TVR owners.
As far as the ability to enforce on the VDA should something like this ordinance pass,
where the Council and County would be looking at somewhat parceling out what type
of structures within the VDA is able or not able to be used for TVR purposes. I would
say, the long-range plan in how the Planning Department deals with TVRs is able to
align better with enforcement. Ultimately, you have seen several municipalities
attempt to deal with third-party host platforms. Right now, our law engages the
Planning Department on the individual vacation rentals operator. We wage that
battle with each and every one of them. Instead of waging the battle on the individual
operator, you would go straight to the third-party host platforms such as Airbnb and
COUNCIL MEETING 24 AUGUST 14, 2019
Vacation Rental By Owner (VRBO) to regulate those sites in order to end the legal
battle before it occurs. If the people are not able to get on these sites to advertise
their legal operations, you will end the war before the first shot is fired. Several
municipalities have attempted to do this and several of them have been sued by
Airbnb and they lost in court. We have been watching it unfold in the national scene.
Most recently, the Ninth Circuit Court ruled in favor of Santa Cruz. Santa Cruz has
set-up a model in which they are able to regulate the third-party host platforms by
prohibiting the transaction of renting out an illegal vacation rental. It is fairly
nuanced the way that they set this up. We have targeted that as a model to follow in
a way to regulate third-party host platforms. Before we are able to propose that to
you, we need to get the authorization from the State Legislature. Last year, the TVR
team and I was present at the legislature weekly, pushing the ability to get
authorization for the counties to begin regulating third-party host platforms. We
were really close, they voted 12:13, where the Senate and a few House members
veered away. We were very close, but unsuccessful. We are going to be there next
year in an attempt to get the authorization. We need to get that authorization first,
circle back to you to see if we are able to regulate third-party host platforms, more
than likely we would get challenged in court. Matt will have work on his end. Should
we succeed in that strategy, it will give us the full capability to regulate vacation
rentals in third-party host platform levels. It would be very useful in enforcing this
bifurcation of vacation rental use in the VDA, as proposed in this bill.
Councilmember Evslin: Thank you. To my understanding, it seems
right now moving forward, we do not have a great enforced mechanism for that
provision within the bill. It is likely or definitely possible in the near future, we will
have a mechanism to mandate for people to have a Class I Zoning Permit. If not, they
would not be able to advertise without it.
Mr. Hull: In the future, yes.
Councilmember Evslin: Although we do not have the correct
mechanism to enforce this, this will be used as a rationale for keeping this in the bill.
There is some concern as Councilmember Chock mentioned saying, "We are then
taking away entitlement within the VDA." Councilmember Cowden asked how many
guest houses exist within the VDA, do you have any idea on how many were created
with the bill being that we allowed them to be on less than nine thousand (9,000)
square feet. How many lots that are bigger than nine thousand (9,000) square feet
currently have that entitlement verses how many would we create?
Mr. Hull: I do not have that number, but I am able to
get the number of how many lots are under nine thousand (9,000) square feet. I
cannot imagine that there is a lot. Generally, those lots would veer in the route of
the ADU over the guest house.
Councilmember Evslin: This would only affect...in order to not have
the ADU, you need the density for two (2) homes.
Mr. Hull: That is correct.
COUNCIL MEETING 25 AUGUST 14, 2019
Councilmember Evslin: You would need a lot under nine
thousand (9,000) square feet with the density for two (2) homes, and they would not
be able to use their guest house as a TVR. They would be able to use their two (2)
homes, but they would not be able to use their guest house.
Mr. Hull: That is correct. The vast majority of
residential lots in the VDA have been chopped up to the minimal required size to
have only one (1) house. I would not say "all," but it is the vast majority.
Councilmember Evslin: What you are saying is, this does not affect
many properties.
Mr. Hull: Yes.
Councilmember Evslin: That is all the questions that I have, thank
you.
Mr. Hull: Thank you.
Council Chair Kaneshiro: Are there any other questions from the
members? Thank you. While the rules are still suspended, we will take public
testimony.
Ms. Fountain-Tanigawa: Chair, we have two (2) registered speakers.
The first registered speaker is Brian O'Brien, followed by Elizabeth Kreitzer.
BRIAN O'BRIEN: Thank you, is this the guest house issue?
Council Chair Kaneshiro: Yes.
Mr. O'Brien: Good morning, Chair and Councilmembers. I
am here to say that I support the issue to allow kitchens in the guest house. In
addition, to allow a guest house to be built on its own, and not require a primary home
that already exists on the property. Meaning, the guest house is able to be built
before a primary house. I did make a statement last week about high school
graduates who are coming up the line who need housing. In my opinion, there is
approximately two hundred (200) students per year that graduate. I spoke to my
youngest daughter who graduated there (3) years ago, and she said there was two
hundred (200) graduates in her class. As we pandered around, thought about the
other high schools outside of the public system, and children who are home-schooled,
there might be close to seven hundred (700) graduates yearly. Over a few years, there
might be over thousands of graduates who are going to be looking for their own place
to live, and start families. When Councilmember Kagawa and Mr. Esaki had talked
about increasing the square footage, I want to say that I support that. I had other
things to share, but I believe I forgot what they were. Thank you for letting me testify.
Council Chair Kaneshiro: Thank you. Ms. Kreitzer.
(Councilmember Kagawa was noted as present.)
COUNCIL MEETING 26 AUGUST 14, 2019
ELIZABETH KREITZER: Good morning, thank you for having me. For
the record, Elizabeth Kreitzer. I am testifying in support of Bill No. 2754. The Kaua`i
Census stated that the average number of people per house on the island is three
point one two (3.12). This is a community of families with children. The availability
of homes is a serious issue for all renters. Homeowners are relying on family to help
with childcare while they work extra jobs to struggle and pay their mortgage. If
homeowners are able to build a larger guest house for extended family or renting out
to others, it would help to alleviate some of the issues we are facing with the housing
crisis. It would give our community members some much needed relief. It would be
very difficult for a family of three point one two (3.12)persons to fit into a five hundred
(500) square foot guest house with no kitchen. By increasing the square footage of
the guest house from five hundred (500) square feet to eight hundred (800) square
feet, and adding a kitchen, will allow homeowners to rent it out. It could mean having
a livable two (2) bedroom home for a family in need. I ask you, the County of Kaua`i
Councilmembers, to please consider passing Bill No. 2754, to increase the square
footage and add a kitchen to construction of guest house for the benefit of all families
in our community. Thank you.
Council Chair Kaneshiro: Thank you.
Ms. Fountain-Tanigawa: Chair, we have one (1) more speaker, Lonnie
Sykos.
Mr. Sykos: For the record, Lonnie Sykos. The first issue
I have is about the term "guest house." Guest house by definition is a short-term
stay. Whether they came for a day, week, or months, and they return back to their
life; verses, a long-term place to live. We are converting the short-term rental into a
long-term rental. A short-term "free" place to stay into a long-term place to "pay" for.
If you allow this to occur on agricultural land, you will contribute to destroying the
possibility of agriculture. How many tomatoes do you have to raise and sell to match
the net rent payment from your guest house? I am able to guarantee you that the
rent from a guest house produces a lot more money than the square footage does
growing tomatoes in a standard agricultural operation. If you are modern with you
agriculture, you are able to make a lot of money off of a small area. However, it
requires a lot of money to get started. I understand that the County has a big problem
with housing. Whether one likes it or not, increasing the density in different areas
creates unintended consequences that are going to be enormously extensive to the
taxpayers down the road when it hits us. As far as the VDA, what do you think is
going to happen? That someone is going to build a guest house in their Po`ipu
property, and then rent it out to someone for one thousand dollars ($1,000) to one
thousand five hundred dollars ($1,500) a month, no. No one is going to build a VDA
to rent it out for affordable housing. They are going to build a VDA to rent it out to
maximize their cash revenue. The County Council and the Mayors in the past,
created "cash machines" for Po`ipu property owners. It does not make sense to ban
the use of a vacation rental in the VDA, when your own department is telling you
how hard it is to enforce that. To me, it makes no sense at all. If someone wanted to
COUNCIL MEETING 27 AUGUST 14, 2019
use it for long-term affordable housing, okay, but the whole point of the VDA is to
make revenue off of visitors. The entire conversation about having this in the VDA
goes over my head. They should be able to rent it out however they want too. In the
outlining areas...no. Thank you.
Council Chair Kaneshiro: That is your first three (3) minutes. Mr. Hart.
Mr. Hart: For the record, Bruce Hart. At the beginning,
I spoke about the enforcement and the potential for abuse. That has come up again
today. In light of the Planning Department's testimony today, I would be willing to
suspend opposition to this bill on one (1) condition, that it will include a sunset clause.
From what the County Attorney said, it is going to require a whole new bill. Include
a sunset clause, mirroring the one that died three (3) weeks back. That is the only
way I will support this. I will express the concerns that I have had all long. This is
a very large increase in density across all agricultural land. I believe that in two (2)
decades down the road, this will cause a lot of problems if there is no stop we are able
to put on it. Please seriously think about my previous suggestion. Consider up zoning
marginally agriculture lands that are near urban areas. This is a difficult decision
for all of you, and for me as well. We need to have housing. I do not want to rush
forward, and I want to consider the long-term consequences. Most of the agricultural
lots, I have been told by the Planning Department, are nine thousand (9,000) square
feet. They are all going to be capable of building this. It is turning a guest house into
a rental unit. You are able to address the enforcement, put in the sunset clause, and
consider other alternatives. I will be back to discuss this. Thank you.
Council Chair Kaneshiro: Thank you. Is there anyone else wishing to
testify for the first time? Is there anyone for a second time?
There being no further testimony, the meeting was called back to order, and
proceeded as follows:
Council Chair Kaneshiro: Is there any final discussion from the
members? Councilmember Evslin.
Councilmember Evslin: I support the Bill as I have expressed before.
I do understand and mirror the concerns of Mr. Sykos and Mr. Hart. It is very clear
within our General Plan that we should not be adding density to our agricultural
areas. We have a housing crisis, and we should be looking at the areas where the
jobs and infrastructure exists. If not, we are exacerbating our infrastructure cost,
and we are not able to afford it. We have a three million dollar ($3,000,000) backlog
for road maintenance. Police and fire protection cost a lot more when we are spread
apart. I am not supportive of increasing density through ADUs or other mechanisms
on agricultural land. The reason I support this Bill, is because of the density for a
five hundred (500) square foot house. Often times when these houses are being built,
COUNCIL MEETING 28 AUGUST 14, 2019
I think the good that is able to come out of in allowing a family to live in it, use it for
their caretaker, someone who is working on the land, or for their children. In this
case, doing something does more "good" than "bad;" and allowing the kitchen to be
built in a guest house. Being that so many people are already installing the kitchens,
and we have no enforcement mechanism to track that. In looking at the agriculture
lots to solve our housing crisis is definitely the wrong direction. For uses within the
VDA, we have a Tourism Strategic Plan that clearly states we are over the capacity
for tourism, and one of the strongest measures we have to control those numbers is
through land use. As we are doing things to increase the density the residential
areas...through ARUs and allowing guest houses on lots under nine thousand (9,000)
square feet, I believe it is important that we are doing everything in our power to
ensure that is going to residents and not visitors. If we increase the density
everywhere, all of it will go to visitors, we will have no control over the number of
visitor units we have here, and we will have no control over our visitor numbers. I
support this, and I really appreciate the work that Councilmember Chock and
Councilmember Brun put into doing this. The work that the Planning Commission
included with the VDA and the nine thousand (9,000) square foot language really
helped to strengthen this Bill. I appreciate that as well.
Council Chair Kaneshiro: Is there anyone else? Councilmember Chock.
Councilmember Chock: I actually had an amendment set for today
regarding the VDA. I withdrew it for a couple of reasons. The response given by our
County Attorney, I do believe that if the long-range plan is to really get them under
control, we will need the mechanism first. Rather than proliferating even further
within the designated area...in the future, we may have the right tools to manage
them correctly through permit. I am supportive of the increase to eight hundred
(800) square feet. If it comes up in another bill, the other amendment regarding the
existing attached structure is something that we should look at. I am also interesting
in looking at the sunset, I believe it is something that we have come to realization
that these structures are already in place. In this Bill, it is really stringent in the
sense that it actually creates the parameters around the type of growth intention for
these existing structures out there, and we should monitor them properly in order to
see what it is we are able to do next. I look forward to having that discussion. It is
apparent that this will most likely come back to us in the future. Thank you, Mr.
Chair.
Council Chair Kaneshiro: Councilmember Cowden.
Councilmember Cowden: I want to speak to unintended consequences.
I respect what Lonnie Sykos had to say. There is also unintended consequences that
are not stretching to legalize housing where there are already existing living spaces.
That is the type of housing crisis that we are in. Right now, if those units are legal
without having a kitchen, it makes living there a lot harder for that person who is
COUNCIL MEETING 29 AUGUST 14, 2019
struggling in there. As we are talking about existing houses, most of which people
are already in there. I will be supporting the Bill. I do agree that we need a holistic
look at this. For right now, I will be supporting this. For the other two (2) people, as
you may have heard when talking to the County Attorney and the Planning Director;
at this time, we are not able to add the eight hundred (800) square feet. That will be
a broader discussion about ADUs. Thank you.
Council Chair Kaneshiro: Is there anyone else? If not, roll call vote.
The motion to approve Bill No. 2754, 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 APPROVAL: Brun, Chock, Cowden, Evslin
Kagawa, Kuali`i, Kaneshiro TOTAL— 7,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Council Chair Kaneshiro: Motion passes.
Ms. Fountain-Tanigawa: Seven (7) ayes.
Council Chair Kaneshiro: Next item.
Ms. Fountain-Tanigawa: Chair, next is Executive Session items. On
Page 4.
EXECUTIVE SESSION:
ES-999 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4
and 92-5(a)(3), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council to discuss the acquisition of
several large parcels of land, identified by the master Tax Map Key (TMK)
No. (4) 1-2-006-009, for community based needs including affordable housing, park
facilities, and the expansion of public utilities. This briefing and consultation
involves the consideration of the powers, duties, privileges, immunities, and/or
liabilities of the Council and the County as they relate to this agenda item.
ES-1000 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4
and 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council to discuss the Kekaha
Landfill operations and contractual obligations under the Waste Management
contract. This briefing and consultation involves the consideration of the powers,
duties, privileges, immunities, and/or liabilities of the Council and the County as they
relate to this agenda item.
COUNCIL MEETING 30 AUGUST 14, 2019
ES-1001 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4,
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council to provide the Council with
a briefing on the retention of Special Counsel to represent the Planning Department
in TVR appeals 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.
Councilmember Kagawa moved to convene in Executive Session for ES-999,
ES-1000, and ES-1001, seconded by Councilmember Cowden.
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify on any Executive Session items? Mr. Hart.
There being no objections, the rules were suspended to take public testimony.
Mr. Hart: ES-1001. Bruce Hart, for the record. I want
to make mention of the fact that in the six (6) years, I have never testified on an
Executive Session. Due to the nature expressed in my first testimony, in order for
me to make a decision for fifty thousand dollars ($50,000). I am needing to know the
legal basis for the appeal. From what I have learned, I do not see a legal basis. I am
not saying that there is not a legal basis, but I do not see one. Thank you.
Council Chair Kaneshiro: Mr. Sykos.
Mr. Sykos: For the record, Lonnie Sykos. I have a
question about the Kekaha Landfill operation. For the Waste Management contract,
is that with a third-party and who is the third-party?
Council Chair Kaneshiro: Waste Management.
Mr. Sykos: Waste Management. My request is that at
the next meeting, if you are able to put an item on the agenda to tell us what our
County Attorney says what these three (3) items will cost us. We need to be looking
at our next year's budget. Whether we need to increase taxes or if we are able to
tighten our belt in order to pay for these legal bills. Thank you very much.
Council Chair Kaneshiro: Thank you. Is there anyone else? Is there any
discussion from the members? Councilmember Kagawa.
There being no further testimony, the meeting was called back to order, and
proceeded as follows:
COUNCIL MEETING 31 AUGUST 14, 2019
Councilmember Kagawa: Thank you, Mr. Sykos for mentioning your
concern. Anything that is discussed in Executive Session should not be publicly
discussed. As Chair of the Public Works &Veterans Services Committee, in knowing
that our taxpayers are concerned about the existing landfill, about the future of our
landfill, and about the future in moving our landfill, I will do my utmost to ensure
only confidential information are kept behind closed doors. Anything that is public
information, will be shared. It does not help when decisions are made, comes with
the request for money from the County and taxpayers money, and there is no
explanation or information shared as to why. On this issue, we need to ensure that
confidential information is kept in the Executive Session, and any public information
will be shared. My crystal ball tells me it is not good news, and the landfill is a very
costly item. Thank you.
Council Chair Kaneshiro: Councilmember Chock.
Councilmember Chock: Thank you. On a different subject matter, but
I also agree in terms to what should be shared on the table for public discussion. As
it relates to the fifty thousand dollars ($50,000), I believe it is an alarming situation
as outlined by The Garden Island newspaper. I believe we do need a time to be
briefed on what has occurred. Mr. Chair, my only request is that it does overlap into
some concerns to what we have recently passed at this Council; in terms of allowing
flexibility and power to our Planning Department. We need to be considerate of that
in hopes of our Planning Director being part of that conversation. If it warrants
public information when we return or on an additional item. Thank you.
Council Chair Kaneshiro: I would like to say that we have not been
briefed on these Executive Session items. We do not have any answers to any
questions. When the timing is appropriate, we will put the item on the agenda. With
that, may I get a roll call vote to go into Executive Session?
The motion to convene in Executive Session for ES-999, ES-1000, and ES-1001
was then put, and carried by the following vote:
FOR EXECUTIVE SESSION: Brun, Chock, Cowden, Evslin,
Kuali`i, Kagawa, Kaneshiro TOTAL— 7,
AGAINST EXECUTIVE SESSION: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Ms. Fountain-Tanigawa: Seven (7) ayes.
Council Chair Kaneshiro: We need to come back to vote on one (1) of the
Executive Session items, I am going to request that we take the vote after our public
hearing at 1:30 p.m. We have public hearing at 1:30 p.m., and we will come back to
vote on the decisions we make in the Executive Session. This will allow Ho`ike and
our caption typist to return at 1:30 p.m. We will back at 1:30 p.m. for public hearing,
and to finish our final vote for the Council Meeting.
COUNCIL MEETING 32 AUGUST 14, 2019
There being no objections, the meeting recessed to convene in Executive
Session at 10:58 p.m.
The meeting reconvened at 2:18 p.m., and proceeded as follows:
C 2019-183 Communication (08/07/2019) from the County Attorney,
requesting Council approval to expend funds up to $50,000.00, to retain Special
Counsel to represent the Planning Department in Transient Vacation Rental (TVR)
appeals and related matters.
Council Chair Kaneshiro: Is there anyone in the audience wishing to
testify for a first time? Is there anyone in the audience wishing to testify for a second
time? Mr. Sykos.
There being no objections, the rules were suspended to take public testimony.
Mr. Sykos: For the record, Lonnie Sykos. My question is
if the Council able to enlighten the public at this time or do we need to wait for
information? Thank you.
Council Chair Kaneshiro: Matthew, I am guessing you are the best to
answer what we are able to say. Mr. Hart, do you want to testify?
Mr. Hart: For the record, Bruce Hart. My concern is and
I am assuming there has been a ruling by Judge Watanabe. No? If that is true, then
I am wondering why there is a need for funding now. What if it is ruled in our favor?
This is the Rules of Appellate Procedure, fifty-six (56) pages, and I cannot even begin
to understand this. I am not an attorney, but I do know that Appellate Procedures
are very specific. I am wondering if it is permissible that the people know why we
are giving this money to hire a Special Counsel. There has been no ruling, and I do
not understand. If there was a ruling in our favor...if the ruling was not in our favor,
then there would be a need, but what is the basis? I am concerned for everyone, the
government, and not just the people. Thank you.
Council Chair Kaneshiro: Is there anyone else in the audience wishing
to testify? Seeing none. Matthew, if you would like to briefly say something.
Mr. Bracken: Matthew Bracken, County Attorney. I am
able to expand on the purpose for the funds. If it is approved, the funds will be used
shortly thereafter this is concluded. The purpose would be to aid my office for defense
and prosecution of planning cases. That would be all planning TVR enforcement
cases. If that helps to provide additional information.
COUNCIL MEETING 33 AUGUST 14, 2019
Council Chair Kaneshiro: This is not specific to only one (1) or six (6)
cases.
Mr. Bracken: It is not specific to one (1) or six (6) cases, it
would be to all cases.
Council Chair Kaneshiro: Correct, thank you.
Mr. Bracken: Thank you.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Council Chair Kaneshiro: Is there any final comments from the
members? Councilmember Kagawa.
Councilmember Kagawa: I would like to thank Matthew for all of his
efforts. In The Garden Island newspaper, there was an article on what happened in
the courtroom. I have the utmost respect Judge Watanabe, as I know her personally.
When you receive criticism from an accurate person such as Judge Watanabe, you
need to ask yourself what I am going to do to get better. How am I going to improve
the County situation? Enforcing the counties actions against TVR's and Airbnb's that
are not improved by the County, is that important? If so, how do we defend it in
court? If the judge is telling you that you are not doing a good job, if you do nothing,
then you are not really listening to the judge. I believe Matthew is doing the right
thing in standing up, unfortunately I do not know if the County Attorney's pay in his
office is not high enough to attract the personnel that we need. At times, you need to
look further. This Council stands united in being united to give Matthew the tools
needed so those type of articles do not repeat itself. Perhaps in the future, we are
able to have positive articles on how we are doing in court. Thank you, Chair.
Council Chair Kaneshiro: Is there anyone else? If not, we will take a roll
call vote.
The motion to approve C 2019-187 was then put, and carried by the following
vote:
FOR APPROVAL: Brun, Chock, Cowden, Evslin
Kagawa, Kuali`i, Kaneshiro TOTAL— 7,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: None TOTAL— 0.
Ms. Fountain-Tanigawa: Seven (7) ayes.
COUNCIL MEETING 34 AUGUST 14, 2019
Council Chair Kaneshiro: Motion passes. With that, this concludes the
business on our agenda.
ADJOURNMENT.
There being no further business, the Council Meeting adjourned at 2:25 p.m.
Respectfully submitted,
iliki
JAD . FOUNTAIN-TANIGAWA
County Clerk
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