Friday, March 19, 2010

Musings: Revelations

Walking along the road, as I do every morning and evening and other odd times in between, I am often struck by the intimate details of domestic life revealed to one who is passing by, seeing, hearing, smelling, observing unobserved.

Like the man singing a mournful, but tuneful, song in his shower. The moans of a couple making love. The smell of coffee perking, rice cooking, toast browning, clothes tumbling in a dryer with one of those toxic fabric softener sheets. The dietary and recycling habits exposed by an open rubbish can.

Similarly, Councilman Tim Bynum this week revealed that he is catering to a very distinct and select constituency with the introduction of two bills. One would allow dogs on the entire length of the Path now that folks — with the notable exception of Kauai Humane Society Director Becky Rhoades and a handful of others — have shown they can follow the rules.

Would that a similar rationale was the basis for his second bill.

Instead, it not only rewards people for breaking the rules, it facilitates a process by which the county itself can violate state law.

Tim’s bill essentially guts the transient vacation rental (TVRs) ordinance that the Council labored over for many months and replaces it with language that allows TVRs anywhere on the island, including agricultural land. What's more, it doesn’t even require the ag land TVR operator to have even a semblance of a farm.

It also removes language that requires the TVR unit to be in compliance with all state and county land use laws, then goes on to delete language that requires the planning department to conduct a physical inspection of TVRs before they are approved.

Unfortunately, that’s not the whole of it. The bill gives TVR operators who didn’t get their application in before the last bill took effect another chance to apply. So that means that the few TVRs that the planning department previously rejected because of various violations will get another go, even if those violations haven’t been corrected. Because who will know, if there is no inspection?

The bill doesn’t even get into the issue of land use compliance until it starts talking about renewals, at which time the owner is supposed to provide proof of compliance and the county may, or may not, inspect the property.

If applicants fail to meet the deadline for applying within 60 days of the ordinance’s effective date, they can simply pay a $500 penalty and apply anyway, up to a year later.

And while the bill requires the county to post applications and completed applications on its website and make such materials available at the planning department counter, it delete the previous requirement for a deadline to do so. This means that years could by before the public would even know about, much less have an opportunity to challenge, TVR permits.

That provision alone speaks volumes about what Tim thinks about government accountability and transparency, and the public's right to participate in the process.

The entire bill, meanwhile, speaks volumes about what Tim thinks of the law. By introducing this ordinance, he completely thumbs his nose at Chapter 205-5 of the Hawaii Revised Statutes, which states quite clearly (emphasis added):

(b) Within agricultural districts, uses compatible to the activities described in section 205‑2 as determined by the commission shall be permitted; provided that accessory agricultural uses and services described in sections 205‑2 and 205‑4.5 may be further defined by each county by zoning ordinance. Each county shall adopt ordinances setting forth procedures and requirements, including provisions for enforcement, penalties, and administrative oversight, for the review and permitting of agricultural tourism uses and activities as an accessory use on a working farm, or farming operation as defined in section 165‑2; provided that agricultural tourism activities shall not be permissible in the absence of a bona fide farming operation.

Ordinances shall include but not be limited to:
(1) Requirements for access to a farm, including road width, road surface, and parking;
(2) Requirements and restrictions for accessory facilities connected with the farming operation, including gift shops and restaurants; provided that overnight accommodations shall not be permitted;
(3) Activities that may be offered by the farming operation for visitors;
(4) Days and hours of operation; and
(5) Automatic termination of the accessory use upon the cessation of the farming operation.

It’s clear that non-agricultural uses encourage speculation, which drives up ag land prices and make it unfeasible for farming. It’s clear that we already have people who have flouted the law and constructed mini resorts on ag land, like this one and this one and this one, to highlight but a few.

It’s also clear, at least from the vacation rental ads, that very few bonafide farmers are actually operating TVRs.

Instead, they’re a money-making scheme promulgated largely by off-island land owners looking for a bigger return on their investment than a farm could ever provide. And with some of them charging rents ranging from $4,500 to $6,000 per week to $4,450 to $5,500 per night, it’s a very lucrative enterprise indeed.

The other benefactors of the bill's largesse are the Realtors who peddle Kauai's coastal and farm lands, knowingly and willing, to folks who wouldn't be buying it they couldn't exploit it for resort uses that don't even make a pretense of being linked to a farm or a neighborhood.

Those are the folks Tim is catering to with this bill, and he’s not alone. All the other Council members, with the exception of Kaipo Asing and Derek Kawakami, went along.

So if you’re wondering, come election time, who your Councilmembers are working for, odds are, it sure as heck ain’t you.


Anonymous said...

This is scary. I guess we better get used to the "new" Kauai with this kind of representation on the Council. I would have expected this type of arrogance from other members of this Council, but not Bynum. How disappointing. My entire family supported Tim Bynum for Council. We will not support him again. This bill shows his true colors. He is not for the people of Kauai, unless they have money.

Anonymous said...

Wow, those houses in the links are unbelievable. Are they really on Kauai?

Anonymous said...

and many,many more just like it.

what a waste!

Anonymous said...

Just watched the meeting. Bynum and Kawahara are showing their true colors. Bynum is a hypocrite and Lani is a follower. Biggest surprise is Derrick who seems to be the only one that is willing to call them on it. His breakdown of the state law and how it relates to other counties actions were impressive. I didn't vote for him the last time but I will the next time around.

Anonymous said...

Bynum and Kawahara are so fake it is funny how many people have fallen under the "calm and reasonable" and "new voice" spell. Bynum has a hard time grasping simple concepts without confusing himself. Lani is already confused as it is. Ironic how these two are the "champions" of transparancy yet have been caught telling mistruths to the public. I agree that Kawakami has called them both on it on numerous occasions. Problem with Kawakami is he is maybe at times too subtle in calling out their B.S. So subtle that by the time he is done dumb and dumber have no idea that they had just been called on their B.S. It is funny how it seems that Kawahara seems to pick battles with Kawakami who is probably the last fellow she should be targeting if she wants to make a name for herself. She should try to engage Mr. Walaau instead. Chang doesn't seem to know what is going on half or most of the time. If he kept his mouth shut maybe I wouldn't have noticed but they don't call him wala au for nothing. Sadly both Bynum and Kawahara will probably both make it back in to waste more of our dollars and time. I don't see Kawakami in this realm for long. The private sector will probably recognize his talent and pick him up soon.

Anonymous said...

Why is Bynum a hypocrite?

Anonymous said...

why does lani cry, on camera?

Anonymous said...

because she had just been threatened

Anonymous said...

on, not that time. the other time where she was shaking.

Anonymous said...

we're never satisfied with our elected leaders but they seem to find themselves reelected. are we that stoopid? did i even have to ask that?
how many more terms does d kaneshiro have? will dickie c seek reelection for third time if he get reelected? derek is no dumbie; maybe he should run for GH's senate seat and give kouchi a run for his money. maybe mel or joanne will?upward and onward for the big save scion. i hope kaipo calls it good and enjoys retirement like ezra. seems like its the same folks running and winning. good thing billy swain hasn't returned yet. it's kinda sad if you think about it. don't think about it!

Anonymous said...

I'm saving my money so I can rent a house for 5 gs a night!

Anonymous said...

Disturbing, Tim, who has been beating the open gov drum introduced the newest version of the TVR travesty, where they take our community and ag lands and turn it into a resort. Zoning, guess it doesn't matter.
Watched it on TV,
County attorney kept trying to shut the council up, altho Tim's name is on the bill, was it the county attoney who wrote it?
Derek is showing real leadership skills, he's got my vote. The rest need to be replaced . Seems the council/attorneys are not working in the public interest, but in the realtors does allowing vacation rentals on ag land without a farm requirement help ag or farmers? Oh yeah, it doesn't...

Anonymous said...

Bynam is like that guy who was here for awhile , Gary Baldwin, and hopefully he'll end up in the same place.

Anonymous said...

Bynum lives on ag land. So does Kaneshiro. They should not even be voting on this. For Bynum to introduce this bill is totally unethical. Go figure. The irony is how Bynum and Kawahara, the champions of open government that attacked Kaipo Asing, are trying to pass a bill that removes all public involvement from the TVR law.

Anonymous said...

One guess as to what is driving this is the potential county liability under the old (current) TVR law.

Theory: The C.A. must be concerned about the County being forced, in a lawsuit, to compensate (essentially buy) all of the TVRs that it has previously allowed, taxed and even encouraged to be built over the years. Even the (government-approved) land deeds in Kalihiwai state that the right to TVR goes with the land - right in the deed.

One can mock the council for being "afraid of lawsuits" but in reality, if the lawsuits have merit due to the past actions of the County, they could bankrupt the government. It would be foolish not to be "afraid". If the County's exposure in not changing the law is somewhere in the hundreds of millions range, it might be far worse not to change the law than to allow a handful of tvrs on farms. Perhaps the County's insurance company had a say in changing the law too - to minimize liability.

Whether this theory is true is a mystery though. The mundane and financial isn't as readily reported. Someone should examine this beyond the superficial knee jerk reaction (ie Tim B must be selling out to TVR owners) and see what is really behind this law and how it will actually be applied.

Or .. can just continue to accuse people of taking some sort of mystery bribes from mystery tvr owners who promised some mystery future compensation. Hey maybe its true. But perhaps its all a good bit more complex than good versus evil.

Other questions that might be worth exploring are: Does state law allow for exceptions to the quoted statute? Does the HRS 205 ban on overnight stays apply to all ag lands - or just to lands on grade A and grade B soils. Have the Kauai soils where all the TVRs have operated ever been classified as A or B? Does the quoted section of HRS even apply?
Can one obtain a special use permit after a hearing under state law in other contexts? What promises actually were made to the TVR owners (and by whom) before they invested in these mansions? What is the County's honest legal opinion about the viability of the lawsuits? How much is the potential exposure? How many TVRs really are going to be allowed under this law (30 or 1000 - makes a big difference).

Which leads back to the open government angle. Totally agree with the post. Except for liability, none of of this should have been debated behind closed doors.

Anonymous said...

great homes

some pretty interesting comments too. enjoyed reading them


Anonymous said...

Tim, Lani, Dickie, are clueless. Jay is too self righteous to ever be wrong.

Anonymous said...

What does it matter? Our planet's ecosystems are being destroyed and we're going to be history in a few generations. Kauai will still be here, but we won't.

Anonymous said...

"Theory: The C.A. must be concerned about the County being forced, in a lawsuit, to compensate (essentially buy) all of the TVRs that it has previously allowed, taxed and even encouraged to be built over the years. Even the (government-approved) land deeds in Kalihiwai state that the right to TVR goes with the land - right in the deed."

Who wrote this? a county attorney or a tvr owner's attorney? obviously someone with knowledge of the details. Government approved deeds that state that the right to the tvr goes with the land?

jackbauer said...

Who in their right mind would have ever voted for a dip-sh_t like bynam?

noBS said...

The biggest thing this county seems to have to worry about is: dog shit.

Our council members canʻt even handle that. How many years bynam been in the dog shit?

Or was that a distraction for other kinds of shit?

Anonymous said...

because she had just been threatened

March 20, 2010 6:37 PM

then maybe she shouldn't try to be a politician, she doesn't appear to be capable of doing the job.

Anonymous said...

What bothers me the most is the County's constant attempts to circumvent the law. It is incredible how they continue to do that. I think Council members should be held personally responsible, civilly and criminally, for unlawful acts that they facilitate.