Island Breath: Lack of Planning on Kauai

SUBJECT: KAUAI WITHOUT PLANNING

SOURCE: RAY CHUAN rchuan@hawaiiantel.net

POSTED: 30 June 2006 - 3:00am HST

Planning Director Gone Berserk?

motel sized vacation rental "home" under construction in Haena in 2005 maxing out zoning envelope

SUPER-ATFP’S!! ULTRA-ATFP’S!!
(ATFP = After The Fact Permit or Anti-Terrorism-Force Protection)
by Ray Chuan on 29 June 2006

At the rate our current Planning Director is pushing to turn this whole island into one big Visitor Destination Area Mr.Costa will cause us to run out of superlatives. One of the extremes is that the really discriminating vacationer coming to Kauai can spend fifteen to twenty thousand dollars a week, a price that will give him a private beach to top off all the amenities. If you think I am exaggerating, try going to the beach in certain stretches in Haena and find out how you will be banned from the beach. The Planning Director and the Planning Commissioners have known this all along; but choose to close their collective eyes. All you have to do is go on the web and look for vacation rental in Kauai or, to find the high-end places, go for the North Shore, where you will even find one called the Haena Hotel in its advertising on the web. Those are the super ATFP creations that will make cheap hovels of the five-thousand a week places in Hanalei!

After agonizing over all these creations of our Kauai government I have for some time come to the conclusion that the only way to deal with the officials is to take them to court, despite the realization that the County of Kauai has deep pocket to handle any lawsuit – the money being supplied by the hapless taxpayers, of course. Nine years ago I, in fact, did file a lawsuit against the County of Kauai (with a pro-bono law firm, of course.) By their very nature as desirable vacation locations by far the majority of the thousands of vacation rentals on Kauai are located in the Special Management Area (SMA), which is a State designation that derives from the federal Coastal Management Act. Among many categories of land use the Hawaii Revised Statute (HRS) Chapter 205A defines a commercial use in the SMA as “Development”, for which the operator must obtain an SMA Permit.

By the mid nineties the burgeoning business of commercial; tour boats out of state waters in Hanalei had grown to the point of creating significant impacts on the Hanalei community. These businesses operated in the SMA, but without any permits, because Kauai County told the operators they didn’t need any. So I took the County to court (Civil 97-0212) for failure to enforce HRS-205A. Shortly after I filed the suit a group of residents of the North Shore went to see then Gov. Cayetano to invite him to come to Hanalei himself to see the turmoil. Cayetano was so impressed and moved by what he saw that he immediately ordered the expulsion of the zodiacs from Hanalei. It was a huge victory for the people of Hanalei; and it also made moot my lawsuit which Judge Masuoka of the Fifth Circuit Court dismissed “without prejudice”, which meant that the Plaintiff can come back to court with the same complaint if the County again violates HRS 205A.

This I informed the Planning Commissioners and Planning Director Ian Costa, at a public hearing on the matter of vacation rentals on June 27, I would do. Thus the gauntlet has been thrown. down.

I attach below the testimony I delivered at this public hearing on June 27, 2006
before the Kauai County Planning Commission, on the matter of Zoning Amendment ZA-2006-7, relating to amendments to the Comprehensive Zoning Ordinance being proposed by the County of Kauai to establish regulations relating to Transient Vacation Rentals (TVR) and Bed and Breakfast (B&B) operations.

In my two decades of observation of the operation of the Kauai County government one outstanding feature that has attracted my special attention has been the culture or practice of “After The Fact Permits”, a practice so common that it has earned the acronym ATFP, and commonly pronounced as ATFIP. One can usually proceed to engage in some activity that is usually governed by some county regulation, without first obtaining a Permit as generally required by law, with the understanding that the County of Kauai will usually oblige by issuing the appropriate permits, after the fact.

What is most unusual and massively inclusive in the practice of “atfip” as proposed in Section 8-17.4 Existing Uses, is nothing short of mind boggling! It gives new meaning to the term “Grandfathering”! This section also creates and defines a new term: Non-conforming Use Certificate. One could probably call this a Super Atfip! This Super Atfip will be the result of the county assuring the operators that they will have plenty of time – six months- to either apply for the permit on an existing operation or even build a new one.

Up to this point it looks like smooth-sailing for this proposed CZO amendment. However, the consultants hired by the Planning Department failed to note that, as proposed, this document contains within its language an important admission that what is being proposed “will include or adversely affect predominantly residential neighborhoods” This language appears in Section 8-17.6, Subsection (7) Amendments To Visitor Destination Areas. It basically is an admission of the complaint from large numbers of real residents living in predominantly residential neighborhoods that Vacation Rentals destroy residential neighborhoods.

The proposed amendments to the CZO ignores, deliberately, certain Hawaii State statutes – namely, HRS 205A, regarding the Special Management Area. On the other hand, the Planning Department has recognized that certain commercial activities constitute “development” in the SMA; and thus would require certain actions by the Planning Department relating to the permitting of such activities as required by HRS 205A. By far the majority of vacation rentals on this island are in the SMA.

The Department has generally elected to ignore the permitting requirements of such developments under HRS 205A, although it has certainly admitted the relevance of HRS 205A in specific instances, for reasons I am not aware of. However, the selective application of HRS 205A does not absolve the Department of the responsibility to apply HRS 205A to Vacation Rentals and B&B’s as “development”.

As a matter of recent history, members of the Planning Department, including the current director, should remember that I filed suit in the Fifth Circuit against the County of Kauai, Civil 97-0212, over its violations of HRS 205A in allowing unpermitted operation of large numbers of zodiacs in state waters. Before the case went to trial, then Governor Cayetano, upon the appeal of residents of Hanalei, banned the zodiac operations, thus, in effect, rendered my lawsuit moot. In dismissing my lawsuit “without prejudice” Judge Masuoka found:

1. The case is moot and

2. Even if the case is not moot, as a matter of law, the County Officials’ enforcement of Hawaii Revised Statutes Chapter 205A is not so inadequate to be beyond their discretion; and

3. Should their enforcement of that chapter become so inadequate as to be beyond theirdiscretion, Plaintiff will be entitled to file another complaint for relief.

Commissioners and Mr. Costa, I am prepared to re-file if you proceed to adopt this subject amendment to the CZO.
Raymond L. Chuan(A bit of history here. The group of North Shore residents who went to see Gov. Cayetano in 1998 was to form the Limu Coalition, a non-government group –NGO- dedicated to the protection and preservation of the environmental and cultural resources of the Island of Kauai. Limu Coalition was the lead NGO Plaintiff that brought the federal Clean Water Act lawsuit against James Pflueger, and joined by the EPA, for the massive destruction of the land, streams, ocean and coral reef at Pila`a, Kauai. According to the EPA, this was the largest case of its kind under the Clean Water Act.)

Back to the Planning Commission. I told the commissioners that I did not also cite the rules under the State Conservation District that would also apply to the case in point, since some of the vacation rentals are not only in the SMA, but also in the Conservation District; because I felt my re-opening a case that was dismissed “without prejudice” would be a more direct way to challenge the County. So if anyone is interested in taking the County to court over its failure to require Conservation District Use Permit, be my guest.

Another bit of history. Ian Costa was the Deputy Planning Director at the time of the boating controversy. He and the SMA Inspector did assist the people of Hanalei in monitoring the activities of the zodiacs. This aroused the ire of then mayor Marianne Kusaka, who was on the side of the zodiac operators. So Kusaka banished Ian to the Public Works Department as the Deputy County Engineer, for which Ian was not qualified by education. With an empty desk and no duty or responsibility, Ian was to languish for the rest of Kusaka’s tenure. When Bryan Baptiste decided to run for mayor he made a deal with Ian. If Ian and his widely connected ohana would support Baptiste’s run for mayor, the new mayor would send Ian back to Planning as the Director.

The fact that the Kauai County Charter does not give the mayor the power to appoint the Planning Director is just one of the many inconveniences that our politicians don’t bother with. Bryan won; and Ian came out of exile into a higher position. But this turned into, not unexpectedly, a Faustian tale wherein Ian Faust would do the bidding of Baptiste the Devil from that point on – which was, not unexpectedly, the beginning of the effective demise of the Planning Department as a pivotal part of the government. Ian will, of course, join the ranks of Cesar Portugal, John Apana, Wally Kubo, Doug Haigh, Russell Sugano and Troy Tanigawa as the Untouchables; and look forward to a comfortable retirement.

I will, of course, keep you posted on my lawsuit against the County of Kauai.

SUBJECT: KAUAI WITHOUT PLANNING

SOURCE: RAY CHUAN rchuan@hawaiiantel.net

POSTED: 24 June 2006 - 12:30pm HST

Does Kauai really have a Planning Department?

the “Poster Child of Bad Planning” on Kauai!! The view of Waipouli Beach Resort from Kauai Village Plaza

Planning? What Planning??
by Ray Chuan on 24 June 2006

In the much heralded Ka Leo community meetings promoted by Mayor Baptiste and chaired by his Community Relations Guru Tim Bynum His Honor and his Guru do their best to give the community members, who have the lasting power to attend these monthly meetings, that the Administration understands well the public’s concerns and will take care of them. The Guru’s magic is to keep repeating the word “process”, to the end that it becomes some kind of magic cure of all problems. I lasted two of these sessions in Hanalei when they began two years ago.

In the mean time, Councilwoman JoAnn Yukimura, chair of the Council’s Planning Committee, would do her part in soothing the nerves of the public by inviting speakers (who usually are some kind of experts in community planning) to address the unwashed on how great things can be if we would just keep attending these experts’ enlightening sessions, the latest one of which is the notice she sent out today that I quote below:

From: JoAnn Yukimura [mailto:jyukimura@hotmail.com]
Sent: Sunday, June 18, 2006 11:07 PM
To: jyukimura@hotmail.com
Subject: Rural Lands Workshop Today (6/19/06)

Aloha, friends,
This announcement is so late, it feels as though I shouldn't send it. However, if even one of those of you of the fifty or so to whom I am sending this email, is interested, didn't know about the workshop and is able to come, it shall be worth it.

A main theme of the Kaua`i General Plan, as updated in 2000, was preservation of the rural character of Kaua`i. How exactly can we do this? What will it take? How are rural lands to be differentiated from agricultural lands--or should they be? These are some of the questions that we need to grapple with as we plan for the future if we want to keep Kaua`i Kaua`i.

If you are interested in this topic, or if you live on rural lands or sell rural lands, you may wish to attend a workshop that will be happening Monday, June 19, at the ALoha Beach Hotel from 12:30 p.m. to 4:30 p.m. That is likely to be the day you are reading this email.
I apologize for the lateness of this notice. I am getting better at this mass email technology and hopefully will be more timely in the future.
If you don't wish to receive my occasional emailings about certain events, please feel free to email me and tell me so. Mahalo.

Aloha,
JoAnn

The flyer attached to JoAnn’s invitation explains that this workshop is titled “Planning for Rural Areas: the Road Less Traveled. Policies, standards, tools.”; and that it is a project of , among many important state and federal agencies, the Planning Depart of the County of Kauai no less!!

Wow! Wouldn’t the Workshop location be more appropriate if it were in front of the “Poster Child of Planning” shown above?! After all, on this island the planning folks have developed over the decades the best, smoothest process with the acronym “ATFP” (popularly pronounced “atfip”) which stands for “After The Fact Permit.” This is how this super-sophisticated process works:

You go ahead with your project. The County catches you (if it does, which most of the time it doesn’t, depending on how big an operator you are), you get a violation notice. You have a private meeting with some official of the County or one of the County’s dozens of Consultants. The County issues you an ATFP. You then go the next step, and the next….., until the whole grand project is completed. If you think I am joking, or worse, being flippant with such an important activity, let me give you one specific example: The development of Moloa`a Valley.

For some years, beginning around 1999 to 20001, a lot of grading, excavating, earth movement, clear-cutting of trees went on at Moloa`a, to the consternation of some of the original residents of this valley down to the beach, as old roads and access to the ocean were cut off. Complaints from these folks finally induced the County Council to invite the developer to come before the body at a public meeting to give a status report of what was going on at Moloa`a. What took place was nothing less than a classic demonstration of how the ATFP system operates.

An attorney from Honolulu representing the developer gave the Council a well polished PowerPoint presentation lasting nearly an hour which was nothing short of a litany of: – work on the land without a permit, followed by an ATFP from the County of Kauai; followed by another segment of activity without permit which was promptly sanctified with another ATFP; followed by another segment of unpermitted activity which was promptly again sanctified by an ATFP, and so on, and so on…., until all the activities that had been carried out at Moloa`a up to that point in time had been appropriately sanctified. It was a superb piece of work that would certainly have earned the ultimate compliment of a “seamless performance”!!

hillside in Moloaa that was cearcut by owner without permit

I was so impressed by the performance that I was moved to meet the attorney after his presentation, to congratulate him on both the unprecedented quality of the presentation and my surmise that the developer he represented must have been appropriately pleased with the show. The attorney was a bit taken aback at first; but accepted my compliments in good grace. Alas! I failed to get a copy of the Hoike video record of this signal event, for it really should have been preserved on tape and be made a part of JoAnn Yukimura’s advertised workshop on “policies, standards, tools” for planning for rural areas.

What is even more astounding than the run-of-the-mill ATFP’s is the latest proposed ordinance from the Planning Dept which puts ATFP on a wholesale basis when applied to the permitting of vacation rentals and bed-and-breakfast operations. Before going into the essential features of this proposed ordinance let’s go back a few decades to the original ordinance regarding the permitting of short-term visitor accommodations. The basic language was very simple: “Transient Visitor Accommodations are permitted only in the Visitor Destination Areas.” VDA’s are designated in places like Poipu and Princeville, which are basically resort areas for visitors.

Whether one follows common logic or analyzes the legal interpretation of the phrase “are permitted only in VDA’s”, the unambiguous meaning is that vacation rentals “are not permitted outside the VDA’s” Our Planning Department, however, has insisted that there has to be specific language to cover the converse of “are permitted only in”. But, for whatever reason nobody ever bothered to propose definitizing this converse statement, even after the Planning Commission, at the conclusion of the General Plan Update Process in 1999-2000, instructed the Planning Dept to proceed, as a matter of first priority, to clear up any ambiguity regarding the legality of vacation rentals.

Seven years later, nothing has happened yet, as residential neighborhoods continue to disappear in several areas on the island, with the resulting rapid increase in real estate value and the disappearance of residential home ownership or home rental. This rapidly deteriorating situation had been pointed out to the Planning Commission and the County Council as early as 1999 by the Limu Coalition with respect to the North Shore, where eighty percent of residential properties had turned into parts of Motel Rows. Council members and Planning Commissioners listened to the statistics and watched the slides with what could only be described as polite indifference.

In the ensuing years a new phenomenon had surfaced wherein huge new “homes” were being built on lots right up to the set-backs of the property boundary, with mature trees being clear cut to make room for these “motels”, the most elaborate of them in Haena being a “home” with 11 bedrooms and 7 baths. That was five years ago; since them more Monster Houses have been built and dozens of old trees cut down. In addition, the makai extent of the property boundary is now typically pushed tens of feet into the beach by watering plants to grow seaward, to establish a new “shoreline“ that is created by the new “vegetation line”

surveyor's stake defining new line of beachfont limiting public access

By now, in 2006, with the de facto conversion of large swaths of residential areas to commercial enterprise in the form of vacation rental, our heretofore somnambulant Planning Director has awaken with a bang by proposing a sweeping new legislation that would be the “Ultimate ATFP” whereby every de facto motel outside the VDA’s will be issued a permit if the owner simply applies for it six months prior to the final adoption of the new Super Ordinance. Since any ordinance of such magnitude and importance would certainly take more than six months to be sprinkled with the final holy water, the more enterprising operators, with the appropriate assistance by certain realtors, can even start building new motels now and beat the deadline.

The Planning Directors who preceded Ian Costa probably never dreamt that the Mandate of the Planning Commissioners six years ago – to fix the Vacation Rental problem - would actually be fulfilled soon in 2006 or 2007, with the adoption of the Super AFTP Ordinance. One wonders what gurus JoAnn would then bring to the Garden Island to feed the appropriate opiate to calm the natives.

More on this ridiculous planning game of this county later.