The rain came, steady and strong, while I was still snuggled in bed, and as I listened, pulling the blanket closer against the chill, I thought of the garden bed I’d finished fluffing the day before and covered in its own blanket of banana leaves to await the weekend’s Pisces moon planting, and how the moistness being delivered from the heavens would make it even more appealing to worms.
The heavens in the past couple of days also delivered the chatter of intrusive “green harvest” choppers — so loud and low over my house this morning that it set off the dogs into frantic barking. A friend noted yesterday that while two helicopters had been deployed to seek out marijuana plants, only a single chopper was sent to search for the two missing tourists, one of whom apparently drowned off Polihale.
‘That’s because there’s no money in looking for drowned tourists,” I said, “but there is in looking for marijuana.”
There’s even more money in development. So when it came time to draft an ordinance implementing the 2008 charter amendment limiting resort-oriented development on Kauai, developers and their attorneys — many of them formerly in the county’s employ — immediately began talking about vested rights, takings and litigation.
Those are the magic words that make the knees of county officials buckle every time, and such was the case again when the Council speedily and unanimously passed the bill, and a floor amendment from Councilwoman Nadine Nakamura, that came before it yesterday.
Carl Imparato of the Coalition for Responsible Government, which initiated the charter amendment, spoke to that reality in his testimony before the Council:
In order to explain the essence of the bill, it needs to be considered in context. The reality is that prior to the passage of the Charter Amendment, the Planning Commission had approved more than 4,000 additional tourist units since 2000. Possibly 1,000 of those units have come on-line; so there is a "backlog" of about 3,000 units (some say it is as high as 4,000, but I believe it is closer to 3,000) that have been granted permits and whose owners could argue that their "vested rights" would be harmed if the Charter Amendment's provisions were applied to such projects.
In a sense, these are horses that were already let out of the barn; and while it is possible that some of them could be forced back into the barn (by adding phasing provisions to their permits that require them to wait in line to build), trying to do this through Bill 2410 would create threats of litigation against the County. (Developers cite legal precedents related to "vested rights" and "zoning estoppel.")
Regardless of whether or not these threats have solid legal bases, it is understandable that the County Council, the county administration and the county attorneys want to avoid litigation. They recognize that the developers have very big economic interests and therefore lots of money to fight for what they perceive to be their rights.
This is the environment in which we have had to pursue remedies to the problems in the original version of the bill.
Carl is not unhappy with the final bill; indeed, he supported it, though not all members of the Coalition do. In an email this morning, he wrote:
On the whole, I believe that the bill is a reasonable and legal implementation of the Charter Amendment's annual growth limit option, when all of the realities (such as the size of the backlog of approved-but-not-yet built projects, and the impacts of the economic slowdown on their construction schedules) are factored into the bill's mechanisms, and in light of the County’s fear of litigation threats. I also believe that this is the best product that the process will be able to create. More talk and more time wouldn't result in anything better.
Carl is a realist. Though the Coalition could have pressed harder for a tighter bill, it’s very challenging for grassroots groups to collect money for litigation, and few Kauai attorneys are willing and financially able to do land use cases pro bono or at a discounted rate.
And while many folks are happy to sign their names to a petition or cast their ballot at the polls, it’s tough to get them educated on the complexities of this particular issue and rallied to apply political pressure. Besides, how many times have we heard the citizenry shout no and the politicians still voted yes?
So while this bill ensures that pretty much everything in the hopper — and we’re talking thousands of units — is still good to go, it does throw a few bones to the voters who overwhelmingly approved the charter amendment. Like instead of issuing 750 new certificates for transient accommodation units (TAU) every five years, the county will issue 500. And if the backlog gets built out quickly, that figure will drop to 250. Further, any un-issued TAU certificates will not be rolled over into the next five-year allocation cycle.
Or as Carl summarized in his testimony:
What does that all add up to? Bill 2410 is complex, but I believe that for almost all credible future growth scenarios, the mechanisms above mean that compliance with the 1.5% growth cap will be achieved within the next 20 years.
He then went on to say that citizens must get involved in the next General Plan update, “as that process will maintain, strengthen, weaken, or completely undo everything that has been achieved so far.”
I think we need to go a little deeper than that and look at the faulty premise behind our approach to development. We are continually told that we must have more visitor accommodations, be they vacation rentals, timeshares or hotel rooms, to keep construction and tourism thriving and the economy robust.
But the burst of frenetic development in the first decade of this century did not protect us from the current economic downturn, with its unemployment and sluggish visitor counts and stalled out construction projects and anemic real estate values. As a whole, we’re no better off than we would’ve been, although some individuals and companies have profited wildly and still want more.
In short, what’s happening on Kauai is essentially a microcosm of what’s happened to the nation, where the rich have gotten richer and the poor have gotten poorer and the government has aided the former a helluva lot more than the latter.
So while I happen to personally like some of the people who hold public office, I have to agree with the comment that Naomi Klein made on Democracy Now! today about the ongoing occupation of Wall Street:
Protesters are seeking change in the streets because it won’t come from the ballot box.