Thursday, April 29, 2010

Musings: Belly Full

First thick clouds, then heavy rain, muffled moonlight, stifled sunlight and waylaid walk plans for a while, but eventually Koko and I were able to venture out into a dripping landscape with roadside rivulets.

The sky briefly blushed pink atop Waialeale, which was buried in a heap of fleece, and a black cloud curled up like campfire smoke from the belly of the Giant.

Hanalei resident Mark Daniells was busy bellyaching in The Garden Island yesterday about his “vindictive and malicious” neighbors in Hanalei. It seems they're not pleased that he has been operating an art studio for the past 20 years under a temporary permit that actually expired 19 years ago. Now he's trying to make the permit permanent in preparation for subdividing and selling — as a much more valuable “commercial” property — the 7,900-square-foot lot where he and his wife, Diane, also run a day care and vacation rental.

I found it amusing that Diane is a former Taylor Camper. Doncha just love the evolution of those great “'60s values?”

Meanwhile, The Garden Island today took up the evolving topic of legalizing vacation rentals, with nary a word on Tuesday’s planning commission vote on the matter, and no reference to when it will be back on the County Council agenda. But at least it did shed some light on how Councilmen Tim Bynum and Jay Furfaro, both avid supporters of the new TVR bill, think:

Like this comment from Jay, offered as rationale for why we have to allow TVR operators on ag land to apply:

“Not only the county accepted tax money, but the state accepted revenue,” he said.

So if an ice dealer pays some taxes, that gives him a claim to legitimacy?

Or this:

“They still have to meet all codes, conditions, show their records and so on,” said Furfaro, adding that owners will also have to prove that they were actively operating legally on March 7, 2008, otherwise they won’t be granted a permit.

Yes, but if no inspection is required, how will we know if they’re meeting all codes and conditions?

Or this example of Tim’s naivete:

Hanalei-Ha‘ena Community Association Board Member Barbara Robeson said many property owners have abused the current ordinance, claiming they have been running a TVR, and obtaining a permit, despite no such activities.

“They would be committing major fraud; they can go to prison for that,” Bynum said.


Yes, but who is going to go after them? The planning department doesn’t even want to hear about those kinds of complaints and the prosecutor’s office is in shambles. Meanwhile, the perps are laughing all the way to the bank.

The article underscores the lawsuit phobia driving this bill and the county in general — a phobia fed by opinions from the county attorney’s office that aren’t even made public.

I was talking to a Council and Commission observer who pointed out that the County Attorney’s office regularly pressures members to get with the program by saying they will not be given legal representation if they go against the County Attorney’s opinion.

So then essentially what we’re getting is rule by the County Attorney’s office. And who appointed them king?

25 comments:

Anonymous said...

D&O liability insurance (Directors & Officers) is the golden shield behind which any reasonable and prudent person in such a capacity will stand. It applies to home owners association boards up to county councils. It protects against personal liability.

For the insurance to kick in, when required, the officer in question must be shown to have acted in a reasonable and prudent manner given that is not a "professional", but a volunteer acting for a time in an elected or appointed role of responsibility with no particular expertise in it.

Nothing says "reasonable and prudent" more than following the written advice of professionals....lawyers, engineers, even licensed contractors.

But, must specifically, the advice of the organization's lawyers should be heeded.

It's just the way the world works.

Anonymous said...

If the county attorney gives the council an opinion that some bill they are considering would violate citizens' rights and result in lawsuit that the county would lose, and the council votes for that law anyway, then those that council persons who voted for the (illegal) law can be personally liable. Im pretty sure that is true.

So are we mad at county attorney for giving that opinion or at council members for not wanting to be personally exposed?

Anonymous said...

The Council has legislative immunity. It's absolute and does not depend upon heeding the advice of lawyers.

Anonymous said...

You know what I don't understand, why hasn't Tim recused himself on this issue and why do we have to read or hear a conflicted elected official's pontifications on this issue?

Derek recused himself on the plastic bags. Does Tim not have the good judgement and decency to recuse himself on this?

And anyway, two wrongs don't make a right. Just because JoAnn Yukimura screwed this up in the first place for a key supporter doesn't mean we need to screw it up further for the whole island.

Looking forward to voting against Tim and JoAnn later this year. Both of 'em are milimouthed shisters.

Anonymous said...

But, must specifically, the advice of the organization's lawyers should be heeded.
Then why have a planning commission, why not just give it to the county attorney to decide? And if that's all we are really doing anyway, the system is broke

Anonymous said...

"But, must specifically, the advice of the organization's lawyers should be heeded.

It's just the way the world works."

Not really. A "reasonable" person would get a second opinion from a second lawyer, and you can always get two lawyers with differing opinions.

Anonymous said...

"So if an ice dealer pays some taxes, that gives him a claim to legitimacy?"

-- reminds me of that guy in AZ who tried to pay the sales tax on his selling pot. the state would not take it


"The article underscores the lawsuit phobia driving this bill and the county in general — a phobia fed by [recent serious defeats in court]"



dwps

Anonymous said...

Joan said "I found it amusing that Diane is a former Taylor Camper. Doncha just love the evolution of those great ''60s values?'"

Taking the evolution of one individual's values and implying an entire generations values evolved in a like manner indicates unfounded bias. John Harder of Zero Waste Kauai was also a former Taylor Camper, and still seems concerned about the planet.

What have you got against the '60's generation? Anti war, civil rights, women's rights, black and Chicano power, gay, lesbian and transgendered rights, free speech, questioning authority, alternative media and the environmentalism were all resurgent movements in the '60's.

I may be wrong Joan, but it seems the values you express in this blog are largely from the sixties or don't you agree with these sentiments http://www.youtube.com/watch?v=yVoP5SvqJVo

Anonymous said...

"Not really. A "reasonable" person would get a second opinion from a second lawyer, and you can always get two lawyers with differing opinions."

Not so. I've been on councils and boards. You don't go shopping for a legal opinion that meets your desires. You engage a lawyer experienced in the type of law for which your council or board makes decisions, and abide by it....or face the potential of personal liability.

I always hide behind lawyers, as do most reasonable people.

Or do you wish to be like the guy that said he read that too much drinking is bad, so he quit reading.

Anonymous said...

The number 1 obligation of those in public service is to keep their asses out of jail and personal civil liability.

Number one. Mo question. Absolutely.

After that, they will try (some, maybe most of them) to serve the public.

Anonymous said...

"Not so. I've also been on councils and boards. You don't go shopping for a legal opinion that meets your desires. You engage a lawyer experienced in the type of law for which your council or board makes decisions, and abide by it....or face the potential of personal liability."

Exactly so! I have also been on boards, councils, etc. and you shop for a lawyer, or "engage" if you prefer a lawyer experienced in the type of law for which your council or board makes decisions about. You seem to be asserting corporate council experience is always superior to outside council? Carol Furtado (Police Commission member) disagreed with and did not follow County Council advice and was cleared of any wrong doing, and she didn't even have a lawyer!

Anonymous said...

Anon: "Carol Furtado (Police Commission member) disagreed with and did not follow County Council advice and was cleared of any wrong doing, and she didn't even have a lawyer!"

Hmmmm.... so did Rolf Beiber. So that makes two ordinary citizens without lawyers that appear to know more than the "experienced" county lawyers. Go figgah

Joan Conrow said...

Dear Anonymous
April 29, 2010 4:15 PM,

Mahalo for the youtube link and your comment/question, which gave me an idea for tomorrow's post.

Anonymous said...

"The number 1 obligation of those in public service is to keep their asses out of jail and personal civil liability."

I think that is the number one obligation of anyone, anywhere, all the time, but the US has more people in jail than any other country. If they only would have listened to lawyers. Oh wait a lot of lawyers are in jail as well.

Anonymous said...

Joan Conrow said...

Dear Anonymous
April 29, 2010 4:15 PM,

Mahalo for the youtube link and your comment/question, which gave me an idea for tomorrow's post.

You are welcome Joan and keep "speaking truth to power...but ride a fast horse" as Jim Hightower says ;-)

Anonymous said...

So what exactly is the County Attorney's position on this issue? I've seen the quotes from the AG's opinion but what's the County Attorney got to say about TVRs on ag land? Why would the County be sued if it followed the AG's opinion? Someone doing something illegal can sue the government if the government tries to stop them? That's crazy.

Anonymous said...

I wonder what Mayor Carvalho's position on this issue is? He's been pretty quiet on it. I wonder why?

Anonymous said...

Not so. I've been on councils and boards. You don't go shopping for a legal opinion that meets your desires. You engage a lawyer experienced in the type of law for which your council or board makes decisions, and abide by it....or face the potential of personal liability.
Abide by decisions already made for you???? Abide by a CA opinion that protects the planners, but not the people of Kauai? If that is so, the hearings are a sham done in private exec session, with no public disclosure at all, no opinions to argue with, just back room crap. No wonder no one attends meetings anymore, why bother? but of course that is just what they want.

Anonymous said...

Anonymous said...
I wonder what Mayor Carvalho's position on this issue is? He's been pretty quiet on it. I wonder why?
He is not really silent. He appoints the commissioners,they do his (the administrations bidding),dept heads, appointed by him, so he could have transferred Ian Costa to a dept he had the experience to be in. Planning has been a mess since Ian has been its head with zero experience.So the county attorneys are always busy trying to change the laws to accommadate Ian's practices. In the TVR case, planning blew implementation of the ordinance, now we must get rid of it...
The silence and lack of any questions of substance by the commission lets you know they are in lockstep, and were probably appointed for that very reason.

Anonymous said...

The silence and lack of any questions of substance by the commission lets you know they are in lockstep, and were probably appointed for that very reason.

I once had a conversation with a commissioner who was just put on the commission, and he said, he was put on it because they knew he would never say no

Anonymous said...

I really think the dog path people are barking up the wrong tree by taking their issue to the County Council.

Why not just ask off island vacation rental owners, their attorneys and the Kauai Board of Realtors what they think. They seem to be calling all the shots.

Anonymous said...

Can someone ask the Mayor to state his position on this issue? Please?

Anonymous said...

"Can someone ask the Mayor to state his position on this issue? Please?

April 30, 2010 11:23 AM"

why does this matter? seriously - he will either sign it or not - after council....

Anonymous said...

"once had a conversation with a commissioner"

when? one of the current ones? seriously...they who?

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