Friday, July 16, 2010

Musings: How Blatant

It was quiet, the way Furlough Fridays tend to be, when Koko and I went out walking this soft, still morning beneath solidly gray skies. En route a light rain began to fall, each drop visible in its descent, and still we kept on for a while, me enjoying the sensation of being watered like a plant, until we found a place that was dry beneath a thicket of shell ginger sheltered by ironwood trees and from there we watched and waited until it drifted off, perhaps to join the sheer curtain that had similarly descended over Haupu.

I got home and more rain arrived, along with an email from a friend that had a link to The Garden Island article about how a military helicopter — but of course, not one of PMRF’s or the RIMPAC gang, because “We take our environmental stewardship seriously,” says Commander Greg Hicks — had flown right over sea bird nesting areas at the Kilauea Point Wildlife Refuge.

It was bad enough that the Fish and Wildlife Service spoke out about it. The chopper apparently hung around for 30 minutes, so it wasn’t just a fly by, and passed with 20 feet of the coastline, rather than the recommended 2,000 feet.

“How blatant,” my friend wrote.

Indeed. But that’s the way those guys are.

I was particularly intrigued by a comment that Fish and Wildlife spokesman Ken Foote made in the article:

Additionally, low-flying aircraft creates stress in adult birds and their chicks, which increases the “chance of exposure to the elements possibly resulting in injury or death,” Foote said.

Eggs and chicks can “fall of the face of cliffs” and “harassed birds” that “take off in flight are subject to air strikes which often result in death,” said Foote.


Yet day in and day out we allow tour helicopters to fly low over native bird nesting areas in Waimea, Kokee, Wailua — heck, all the interior areas — and they’ve been doing so for years. Do you suppose that just might have something to do with the steady decline and imperiled condition of too many of our native forest birds?

But at least one helicopter company claims its fuel-sucking, treetop-hovering, ear-splitting ways (and I can hear one now, flying over my neighborhood because the mountains are socked in with clouds) are ecofriendly:

A helicopter tour has less impact on the environment while giving you a unique perspective of the diversity of Hawaii. Help us preserve some of the world's most delicate ecosystems.

How blatant. But that’s the way those guys are.

We also have the paper reporting on this week’s meeting of the planning commission, which had four requests for nonconforming use permits for vacation rentals (TVRs) on its agenda. But none of the owners could be bothered to show up, or even send representatives. And one of the applicants, California resident James Christiansen, who has a TVR in Haena, also stood up the county inspector, which caused him to miss the March 30, 2009 deadline to apply for the permit.

How blatant. But that’s the way those guys are.

At least a few of the commissioners seemed to understand the crux of the matter:

“For them not showing up, when the inspectors were out there, to me that’s grounds for denial,” Commissioner Jan Kimura said.

”To me it seems that he’s taking this commission for granted,” Kimura said. “I feel this county had been taken advantage of.”

“How far do we have to bend over to be quote ‘fair?’ They’re not being fair with us,” [Hartwell] Blake said.

“If you’re applying, then you make it happen. If the inspectors are there, you better be there,” Blake said. “Don’t just not show.”


Yet with Deputy Planning Director Imai Aiu and Deputy County Attorney Ian Jung smooth-talking to smooth the way for Christainsen, commissioners couldn’t muster the fortitude to turn the guy down.

Instead, they deferred the matter until Aug. 10. But prior to voting, they found out the guy also hadn’t provided plans:

Planning Department Director Ian Costa did clarify that the plans are not part of the ordinance, but something the department requires as a policy.

“We couldn’t technically say it was an incomplete application,” he said.


Funny. Lack of plans did prompt the department to turn down one TVR owner I know, which kind of makes you wonder about selective enforcement and arbitrary decision-making.

How blatant. But that’s the way those guys are.

Meanwhile, as a photo in The Garden Island seems to indicate, Christiansen apparently is continuing to rent out his property, even though he’s not allowed to operate a TVR outside of a Visitor Destination Area without the extremely valuable special use permit that he couldn’t be bothered to show up to get.

How blatant. But like I said, that’s the way those guys are.

45 comments:

Anonymous said...

How blatant. But like I said, that’s the way those guys are.


so sad :(

Anonymous said...

What?! Some officious bureaucrats were inconvenienced? Aaaaaaaaaaaaaah! So sad.

Anonymous said...

The violator needs to be reported. Has anyone done that yet?
You can call the FAA (anonymously if you like) at: 888-697-7813.

Ask for a follow up or inform them that you will be following up.

1)Get the name of the person you talk to,
2)Keep a record of when you talked to them.

Itʻs illegal what this pilot did and there are penalties.

Anonymous said...

Why wont the planning commission keep post up to date meeting records??? I want to read that one from July 13th!

They are at least 2 months behind!

Anonymous said...

I watched it in disbelief. Ian Costa, Imai Aiu and Ian Jung should all be fired.

Anonymous said...

Incomplete application, missed deadline, no-show at inspection and hearing, etc. What more do these commissioners need?

Anonymous said...

Incomplete application, missed deadline, no-show at inspection and hearing, etc. What more do these commissioners need?

you assume they should be working hard to deny applications. That's just your bias, and it's wrong.It is difficult and confusing to comply with all the requirements of the laws, regulations, rules, and policies. It sounds like here they are doing the right thing and accommodating applicants. Although some of them apparently have a bad attitude about it. It's a good thing they have those guys to straighten out their attitudes and make them do their job.

Joan Conrow said...

It is difficult and confusing to comply with all the requirements of the laws, regulations, rules, and policies. It sounds like here they are doing the right thing and accommodating applicants.

Why should we be accommodating of an applicant seeking a special permit that allows him to make $1,750 a week renting out his sleeps 12 mini-hotel? Surely he can afford to hire someone to help him through the process.

Anonymous said...

July 16, 2010 3:01 PM

http://www.kauai.gov/Government/BoardsampCommissions/PlanningCommission/tabid/517/Default.aspx


June 8, 2010 minutes look posted.

Anonymous said...

Why should we be accommodating of an applicant seeking a special permit that allows him to make $1,750 a week renting out his sleeps 12 mini-hotel?

At the risk of just having my answer censored again, it's because it's not about hatred or resentment for people just because they put their efforts and talents toward making money. Most people don't think that in itself is wrong or immoral.

Anonymous said...

somebody got some 'splaning
to do! whose going to be at the next meeting?

Anonymous said...

"The inspectors had arranged to meet the applicant’s representative by the Princeville Shopping Center, Aiu said, but the applicants never showed." from the article.

Why would the inspectors not just go to the home which is 7xxx Kuhio? Why were there "meetings" set up before the home inspections? hmm...

Joan Conrow said...

July 17, 2010 9:19 AM -- Glad to see you are able to express your POV w/o a personal attack.

And you're right, it's not about hatred or resentment or whether people focus their attention on making money. It's about a process that needs to be followed to gain a privilege, e.g., a special use permit.

Anonymous said...

I think you are responding to two "anonymi" as one.

from now on I will call me Anonymoose!

I'm the one that wants some - 'splainin and why in the world would the inspector want to "meet"- aren't they supposed to be inspecting - or is it because they may want to bargain first?

if so that... again hmmm

Anonymoose

Anonymous said...

Business as usual for the County of Kauai. As sickening as it is, it is a way of life here. You would think the Mayor would have said something by now. Could it be that he condones this type of corruption? Or is he keeping his distance from an issue that may cost him some campaign dollars? Only he knows.

Anonymous said...

The Mayor? You mean the entertainer who would rather sing than address the issues facing Kauai? When was he observed last speaking on the serious issues of the island? Think about it.

Anonymous said...

"whose going to be at the next meeting?"

July 17, 2010 10:38 AM

Will there be any tvrs on the agenda?

Anonymous said...

I like the way the white people bitch about the Hawaiian leadership. Like, the Hawaiians don't act like the white's think they ought to act.

Anonymous said...

July 17, 2010 8:34 PM

ok - like those aren't racist assumptions.

Anonymous said...

They are at least 2 months behind!

July 16, 2010 3:01 PM

Why did you lie about a discoverable truth? or is that just how you roll?

Anonymous said...

I'm the one that wants some - 'splainin and why in the world would the inspector want to "meet"- aren't they supposed to be inspecting - or is it because they may want to bargain first?

Word is that at least one tvr owner paid 5,000 to get his 2 tvr permits. Guess, they meet in person to collect...

Anonymous said...

http://www.nytimes.com/2010/07/18/travel/18couch.html?_r=1&src=me&ref=homepage

Kauai is different?

So, why not tax the commerical use and at least have the benefit locally of additional tax income?

Anonymous said...

"So, why not tax the commerical use and at least have the benefit locally of additional tax income?"

BECAUSE IT IS ILLEGAL!! WHAT PART OF THAT DON'T YOU UNDERSTAND??

Anonymous said...

WHAT PART OF THAT DON'T YOU UNDERSTAND??

July 18, 2010 9:14 PM

you poor angry thing - try reading more, your anger will subside as your understanding of the real world expands -

http://www.sanjuanislander.com/county/gma/transient-rentals.shtml

http://dor.myflorida.com/dor/taxes/sales_tax.html

Kauai county proposed this two maybe three years ago but it was a 145+ page bill with other ramifications and it did not pass.

do you need more examples?

Anonymous said...

July 18, 2010 9:14 PM

http://www.slocounty.ca.gov/Assets/PL/Ordinances/Residential+Vacation+Rentals+Ordinance.pdf

Page 3, l. ..."including any
required payment of transient occupancy tax for each residential vacation rental unit."

Anonymous said...

This aint San Juan, Florida or any other place. This is Kauai. Get it?

Anonymous said...

Get it?

July 19, 2010 6:31 AM

No, are you trying to say the county should or cannot implement a law to tax the neighbor making a profit on his commerical use of a residential or agricultural house/farm dwelling?

Anonymous said...

Why should we be accommodating of an applicant seeking a special permit that allows him to make $1,750 a week renting out his sleeps 12 mini-hotel? Surely he can afford to hire someone to help him through the process.

And you're right, it's not about hatred or resentment or whether people focus their attention on making money. It's about a process that needs to be followed to gain a privilege, e.g., a special use permit.


Really? What if it was something that you approved of? What if, oh, say, the gov made the process for obtaining a medical marijuana card an onerous, multi-step, confusing, bureaucratic nightmare requiring an applicant to shuttle back and forth between various agencies with unpublished "policies" often gumming up the applicant's good faith efforts?

I bet THEN you would think the government should be more accommodating.

Anonymous said...

Get it?

July 19, 2010 6:31 AM

Nope, maybe you own a vacation rental and don't want to pay commerical tax for a commerical use, otherwise, no I don't 'Get it?'

Anonymous said...

Wish the "you poor thing" person would come up with something else to say. Getting a little old.

Anonymous said...

The application fee for the TVR NCU permit was priced too low! What was it- $150 dollars? That hardly covered if at all the administrative time to process the applications, check TAT and GET records, inspection, etc.

I believe that the fees for the TVR permits in the VDA's were also a give away. What if a portion went to education? Or Conservancy of the Land?

The County should have put a premium on the application to cover the expenses and then some, and could have added to the staffing without impacting the County budget. Same for the annual renewal. What do you think a permit is worth and how would you base the value?

As for Christianson's house and many other of the old houses here on Kauai that have been rented out from since the 60's, (before the VDA area designation) and they are exempt under State law from any obligation.. That is why Ian Jung deferred comment on the matter.

There are pending suits especially from the Ag community that could cause the County tremendous financial burden. The cow has been out of the barn for a long time.

The VDA was not even established then, and this exemption even extends to Ag Land. The County knows that it will be too costly to defend the arguments against grandfathering.

There are several legal arguments that will succeed and the County knows it. Bill 2204 should have been authored to consider the ramifications. The County will not be able to prevail at in the higher Courts. Sad but true because the intention was good. However the County is has a history and presently as in the Conservation Land issue, they are trying to trump State and Federal law as regarding zoning. But even the DLNR even accepts grand fathering.

Legal Bases:
These arguments include the contention that Bill No. 2204, violates a landowners' "vested rights" under Hawaii law, constitutes an unconstitutional "takings" under the 5th Amendment, and/or violates a person's equal protection rights under the 14th Amendment.[2] Of these arguments, the contention that Bill No. 2204, , is in violation of the 14th Amendment is the least pressing of the constitutional arguments available to the landowner.

Under Hawaii law the County may be estopped from denying a landowner the right to use his property in a manner that was previously allowed by the government or from taking away from a landowner certain vested property rights. See generally County of Kauai v. Pacific Standard Life Ins. Co., 65 Haw. 318, (1982); Life of the Land v. City Council, 61 Haw. 390, 606 P.2d 866 (1980). Bill No. 2204, as amended, potentially violates these two well established legal principles by prohibiting property owners who have lawfully relied, in good faith, on previous government permits and actions to construct and operate a transient vacation rental in their single family dwelling.

Secondly, landowners could also argue that Bill No. 2204, as amended, constitutes an unconstitutional taking of their property without compensation in violation of the 5th Amendment. Under this theory, Bill No. 2204, is unconstitutional "taking" of a landowner's property rights, without compensation if: 1) it is determined to be either a physical taking or appropriation of a person's property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 73 L.Ed. 2d 868 (1982), 2) deprives a person of all economically beneficial use of the person's property, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 120 L.Ed.2d 798 (1992), or 3) the regulation so interferes with a landowner's investment-backed expectations and the character of the government's action is such that it would constitute an unjust taking without compensation, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 57 L.Ed. 2d 631 (1978) Chun 2007.

Pikake M.

Anonymous said...

The application fee for the TVR NCU permit was priced too low! What was it- $150 dollars? That hardly covered if at all the administrative time to process the applications, check TAT and GET records, inspection, etc.

I believe that the fees for the TVR permits in the VDA's were also a give away. What if a portion went to education? Or Conservancy of the Land?

Pikake M.

Anonymous said...

The County should have put a premium on the application to cover the expenses and then some, and could have added to the staffing without impacting the County budget. Same for the annual renewal. What do you think a permit is worth and how would you base the value?

As for Christianson's house and many other of the old houses here on Kauai that have been rented out from since the 60's, (before the VDA area designation) and they are exempt under State law from any obligation.. That is why Ian Jung deferred comment on the matter.

Pikake M.

Anonymous said...

There are pending suits especially from the Ag community that could cause the County tremendous financial burden. The cow has been out of the barn for a long time.

The VDA was not even established then, and this exemption even extends to Ag Land. The County knows that it will be too costly to defend the arguments against grandfathering.

There are several legal arguments that will succeed and the County knows it. Bill 2204 should have been authored to consider the ramifications. The County will not be able to prevail at in the higher Courts. Sad but true because the intention was good. However the County is has a history and presently as in the Conservation Land issue, they are trying to trump State and Federal law as regarding zoning. But even the DLNR even accepts grand fathering.

Pikake M.

Anonymous said...

Legal Bases:
These arguments include the contention that Bill No. 2204, violates a landowners' "vested rights" under Hawaii law, constitutes an unconstitutional "takings" under the 5th Amendment, and/or violates a person's equal protection rights under the 14th Amendment.[2] Of these arguments, the contention that Bill No. 2204, , is in violation of the 14th Amendment is the least pressing of the constitutional arguments available to the landowner.

Under Hawaii law the County may be estopped from denying a landowner the right to use his property in a manner that was previously allowed by the government or from taking away from a landowner certain vested property rights. See generally County of Kauai v. Pacific Standard Life Ins. Co., 65 Haw. 318, (1982); Life of the Land v. City Council, 61 Haw. 390, 606 P.2d 866 (1980). Bill No. 2204, as amended, potentially violates these two well established legal principles by prohibiting property owners who have lawfully relied, in good faith, on previous government permits and actions to construct and operate a transient vacation rental in their single family dwelling.

Secondly, landowners could also argue that Bill No. 2204, as amended, constitutes an unconstitutional taking of their property without compensation in violation of the 5th Amendment. Under this theory, Bill No. 2204, is unconstitutional "taking" of a landowner's property rights, without compensation if: 1) it is determined to be either a physical taking or appropriation of a person's property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 73 L.Ed. 2d 868 (1982), 2) deprives a person of all economically beneficial use of the person's property, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 120 L.Ed.2d 798 (1992), or 3) the regulation so interferes with a landowner's investment-backed expectations and the character of the government's action is such that it would constitute an unjust taking without compensation, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 57 L.Ed. 2d 631 (1978) Chun 2007.

Pikake M.

Anonymous said...

Sorry I didn't mean to post my POV twice, but when I posted in the long form, I got an error page and then I broke it up in to sections, and then low and behold the original showed up. That was not my intention. But I did want to have my POV examined once. Please don't think that I am shouting about this it is just my POV.

Pikake M.

Anonymous said...

Pikake M: This is not a takings as you state. You know that and the attorneys know that.

"Under Hawaii law the County may be estopped from denying a landowner the right to use his property in a manner that was previously allowed by the government or from taking away from a landowner certain vested property rights."

What was previously allowed? TVRs were never "allowed." These structures may have been permitted as dwellings but please show me where the permits for TVRs are.

Anonymous said...

. But even the DLNR even accepts grand fathering.Get the fgacts straight please,the DLNR enforced against vacation rentals in conservation. And anything grandfathered in was before 1978.

Anonymous said...

Learning all the time- I was thinking that since the definition of TVR was not defined it was not an illegal use, and I had read the Kobayashi Opinion

http://www.kauai.gov/portals/0/planning/SFVR/Blaine_Kobayashi_opinion.pdf

However I did read now the article:

UESDAY, JULY 20, 2010

GRANDFATHERING, WHAT BIG TEETH YOU LACK
GRANDFATHERING, WHAT BIG TEETH YOU LACK: Tomorrow could well be a black-letter day in the history of land use on Kaua`i and that’s saying a lot.

The stripping of the guts of the Transient Vacation Rentals (TVR) ordinance passed in 2008 and moreover the lifting of the total ban on TVRs on agriculturally zoned land is poised for passage once again.

But the so called “facts” that have led to the current bill are apparently the result of a council that’s incapable of independent legislative thought and rather rely on County Attorney Al Castillo’s inept legal constructions to write legislation.

That construction relies on the infamous “Kobayashi opinion” which supposedly caused those who were operating TVRs to “rely” on that opinion saying TVRs in non visitor destination areas (VDA) were not illegal.

http://parxnewsdaily.blogspot.com/2010/07/grandfathering-what-big-teeth-you-lack.html

I am always ready to be informed! I just don't understand what is going on in the Plannng Dept & Commission.

Pikake M.

Anonymous said...

And I have to add that I think that anyone that has a permit for a TVR should pay real property tax assessments as categorized by Hotel land.

P. M.

Anonymous said...

Kobayashi did not address TVRs on ag lands. He couldn't because Chapter 205 clearly prohibited it. He was addressing single-family dwellings outside of the VDA and on non-ag lands. Please look at the entire picture. Do not take Kobayashi out of context. Have you read the legislative minutes? Of course not because if you had, you would see that the Kobayashi opinion was never written for TVRs on ag lands.

Anonymous said...

July 20, 2010 5:02 PM

A change in the real property tax laws would be necessary to implement the requested change.

Anonymous said...

I am always ready to be informed! I just don't understand what is going on in the Plannng Dept & Commission.
Fact is, neither does the planning commission, they forgot that they are not just supposed to be a rubba stamp for the planning dept, and now are starting to feel like fools .seems the CA is protecting the (alleged)planning dept\ rather than serving the interests of the people of kauai

And why do we have a county council or a planning commission, if the county attorney office tells them what way they have to vote? No sunshine, no transparancy, and this from bynam, mr transparancy himself. Do as i say, not as i do... please tell us, why our best ag lands should be a resort?
Oh yeah, because Justin and Michelle Hughes are gonna donate a mall fortune to those councilmembers who support turning our ag lands into resorts.Notice all the big time ag landowners drooling

Anonymous said...

The Kobayashi opinion is just that, it was a deputy CA opinion, not case law... has no force of nothing. Please show me where the law reads they were legalor permitted?

Anonymous said...

Christiansen's TVR was approved at the 8/10/10 Planning Commision Meeting!