I happened to be in town yesterday afternoon, so I stopped by Judge Trudy Senda's District Courtroom for round one in the criminal proceedings against Councilman Tim Bynum over his alleged zoning violations.
The county code says the county attorney and prosecutor must enforce such violations together. On the criminal side, he's now facing four misdemeanor counts of violating the comprehensive zoning ordinance (CZO) for allegedly converting his single family home into a multi-family dwelling unit without the proper permits. He faces a maximum $2,000 fine and one-year jail term for each count. On the civil side, Tim was ordered to cease and desist and bring his home into compliance, which he reportedly has done.
Tim's attorney, Dan Hempey, was in court yesterday trying to get the misdemeanor changed to a violation, but Judge Trudy — I love watching her in action because she's so akamai — wasn't going along. She set Feb. 28, 2012 as the day Tim has to enter a plea. He is entitled to a jury trial, if he wants and can afford one.
For a bit of background, county planning inspectors reportedly observed the violations on April 14, 2010, and they were first made public in my blog on Oct. 27, 2010. I then provided more details, using planning department documents, in a Nov. 9, 2010 post that refuted Tim's account of the incident as reported in another blog.
Specifically, Tim was busted for having installed a door between the rest of his house and a “family room,” where planning inspectors Patrick Henriques and Sheila Miyake reportedly spotted a refrigerator and rice cooker during a site visit. The room also contains a wet bar sink. Together, they gave the appearance that the room was being used as a dwelling unit, prompting the April 15, 2010, notice of violation and cease and desist order.
The CZO defines a kitchen as any room used, intended or designed to be used for preparing food. According to planning inspectors, intent can be determined by such things as installed appliances or a space in a countertop where a stove might go. Under the CZO, a dwelling unit is described as a unit used for cooking, eating, sleeping.
The case is intriguing because it involves a county councilman and the possibility of political dirty tricks. Tim previously claimed the complaint was politically motivated by his enemies, Councilman Mel Rapozo and County Prosecutor and former Councilwoman Shaylene Iseri-Carvalho, but both deny that contention.
Interestingly, Tim was not in the courtroom yesterday — The Garden Island reported his wife was in surgery — but his arch enemy, former Council Chair Kaipo Asing, was.
All that aside, the case raises a number of thorny questions: What exactly constitutes a kitchen? Is it discriminatory for such zoning violations to be pursued primarily on a complaint basis? Are inspectors trespassing and violating civil rights if they look into a window when the occupant is not at home? Can administrative searches, such as those undertaken by planning inspectors, be used to prosecute criminal cases? And what will it take for the county to bring all the many violators into compliance?
Because as Deputy Prosector Jake Delaplane noted after the hearing, “On this island, the CZO violations are out of control.”
Jake said the Councilman was not singled out for prosecution, noting that some 40 persons accused of CZO violations were arraigned the same day as Tim. “Overall, we're taking a stronger stance with these violations because they haven't been enforced in the past.”
The prosecutor's office regularly gets notices of violations from the planning department, he said, “but historically there was very little follow up.”
Now, however, they're getting more attention. The county prosecutor's office is currently going through a “big stack” of zoning violations to determine whether they are chargeable offenses, he said, and it just filed “a bunch of TVR violations.” However, it's proving a bit difficult to serve summons in some of those cases because the owners live off-island.
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47 comments:
Kaipo went to watch a minor hearing in Bynum's case?
I have no idea if a rice cooker and a refrigerator make a dwelling unit, but I sure hope a bbq grill and a refrigerator in the carport don't - or I'm going to jail too.
Thorny seems an accurate description. Good to enforce zoning laws but something smells a little off here....
Its about time that the rules get enforced. I have no personal beef with Bynum but his case should serve as an example. He should be held accountable perhaps even more so since he is a leader in our County.
You better watch out, you better not have a rice cooker and fridge in your living room or someone will be looking for a reason to look in your home when you're not there...and it won't be Santa Claus. It may be Shaylene Iseri-Carvalho.
Is there even one person that does not think this is poltically motivated?
Hmmm. let's see here. "Administrative searches?" Is that what you call them? Does that mean the planning is entitled to warrantless searches and entering upon people's property without permission and looking through a window? I always knew the 4th amendment didn't apply to Kaua`i (they don't even have administrative rules for doing so- not that that would make it legal). It's funny that both planning and DPW claimed for years they couldn't go onto Pfleuger and/or McCluskey's properties without permission or a warrant- and continue to claim such for McCluskey's Kealia property where massive violations have been alleged. But it's okay for Sheila to sneak into Tim's yard and peep through a window (I am NOT Tim).
so if you turned your farm dwelling into a vacation rental , you can get permitted , but if your family lives there, it's a criminal offense?
Clearly a political witch-hunt. Every third house or more has some type of permitting issue/violation. As the economy worsens, more and more people will be renting rooms and converting rooms to rentals. If this was normal Kauai style, the inspector would call the violator on the side and tell him "you better fix this otherwise I am going to have to fine you or whatever". The inspectors are normally loath to be the bad guys, especially if the violater is "somebody". This is why they send the heaveyweight (Sheila M)to do the heavy lifting. None of the regular civil service oldtimers would have the stomach for it. They let Phlueger and so many others get away with all kinds of crap and yet they're going to send Bynum to jail for a rice cooker and a microwave? I guess they want to teach the uppity hoale a message.
haole :) sorry
Does anybody know who made this complaint in the first place?
Ordinance No. 919 is the heavyweight NOT Sheilah Miyake.
The second the Mayor signed this ordinance into law - this island as we know it will be no longer...be aware and afraid!
I bet we ALL have a neighbor (or two) in violation!
There are bigger fish to fry than some one being prosecuted for a rice cooker.
Is the is joke? or a waste of tax payer money?
Kill the haole day? Island politics at their best.
Don't rock the boat, or the boat will rock you.
Dr Shibai
There's no law against putting a lock on a door in your house, and the definition of kitchen is so ridiculously broad that it will never hold up in court.
Which is worse, having a fridge and rice cooker in your family room, or using your position as prosecutor and public resources to attack your political opponents?
Itʻs a long overdue crackdown.
Thanks, Joan for another terrific job reporting.
And, County Council meetings regarding the 2 bills 2421 for imposition of civil fine authority for planning department and bill no 2420 relating to the comprehensive zoning authority.
My question is whether Tim Bynum introduced these bills. Maybe they are relating to his misdemeanor charges and he was trying to fix the laws to suit himself.
Massive waste of tax money. Peeping planners and poisonous prosecutors. I don't like the way Mr Bynum votes but I'm inclined to vote for him now, just to take a stand against this type of local payback crap. Isn't the prosecutor up for reelection too?
Most of you transients of the Caucasian persuasion donʻt like Shaylene too much do you?
Why are you all whining about her when Bynumʻs the one committed the offenses?
Donʻt try to drag the focus away from the wrongdoer, who, in this case is: Bynum.
They arenʻt prosecuting Bynum for "a rice cooker and a microwave"...
Itʻs about time. Maybe goodie 2-shoes Yukimura is next. Or dingleberry Chang, hot-air Furfaro.
The issue here among many is that he KNOWINGLY violated the law.
County councilman going to plead ignorance to laws?
Come on let's get it right. It is a rice cooker and a fridge!
Hmmm... Let’s see first secret complaint and Joan’s blog come just before the election. Then nothing for a year and a half, and then a prosecution that plays out during the next election cycle. It’s probably just a coincidence.
This is a democracy and it is an election year so the issue has very much to do with the prosecutor. We can vote if we want our extorted tax money spent this way or not.
Let’s see first secret complaint and Joan’s blog come just before the election.
My first blog report did come out just before the election, but the complaint (not "secret" but by someone choosing to remain anonymous) was made in April, well before the election.
Is it the rice cooker and refrigerator or the use of "family room" as a "dwelling unit"? I read your November 2010 post and he misrepresented what he was building. I'm sure it happens all the time and with anyone else it would be no big deal but he looks like a hypocrite.
It's the use of the fridge and rice cooker (and the rice cooker, btw, is Tim's contention. I haven't seen that referenced in anything I've gotten from planning, only "electrical appliances") in the family room, combined with the door separating it from the main house, that gave rise to the inspectors' contention that he had turned his sf house into a multifamily dwelling.
Sound like all Hanamaulu gonna go jail.
Better kick out Tutu.
Having lived in Hanamaulu and driving through parts of it now on most weekdays, it seems that people have the misconception that Hanamaulu has more than its fair share of zoning violations. I don't believe that this is true and I would bet that the people making these claims are racist.
Hanamaulu, what ever the circumstances are in the homes are renting expensive vacation rentals, etc.
If they are doubling up it to make ends meet in some pretty dire situations.
Give me a break; canʻt you come up with something better than that?
Please decipher the last post. It seems to be in code.
So, let me understand this...the Planning Department submits HUNDREDS of zoning violations and yet only a few are written or documented well enough to prosecute?
So who isn't doing their job? Is planning submitting sub-par work or the prosecutors office is SELECTIVELY prosecuting those who haven't contributed to the Carvalho campaign?
forget the unsolved murders and the pill poppers turning the parks into drug markets, i feel much safer knowing that we're finally getting to the bottom of tim bynum's rice cooker!
Waaaahhhhhhhh - waaah - waaaaaaaahhhhhhh.
Cry me a river.
I'm not sure a rice cooker constitutes a kitchen anywhere else, in the US, however a third world country, yes.
Welcome!
It's a matter of intent. According to your November 2010 post, Tim applied for a family room but it sounds like it was used as a separate residence. Th rice cooker was probably the clincher. Who cooks rice in the family room if there's another kitchen?
The bottom line is Bynum has obviously broken no laws and the county is going to be liable for big damages to him for violating his rights. It's the Kauai way.
evidently Tim took the slogan"cook rice not ice" to heart.
It is a good thing to hold our elected officials to the letter of the law. Lots of us support Shaylene's actions. And if it includes a bit of payback... it's well deserved.
"The bottom line is Bynum has obviously broken no laws and the county is going to be liable for big damages to him for violating his rights. It's the Kauai way."
December 23, 2011 10:27 PM
I donʻt get where the ʻobviouslyʻ part comes in.
"I donʻt get where the ʻobviouslyʻ part comes in."
There's no law against putting locks on doors in your house (it would be unconstitutional even if there were such a law) and there's no law against having a sink and fridge in any room in your house (again, any such law would be unconstitutional).
Obviously, he has broken no laws, the county is violating his constitutional rights in a way the courts loathe (a man's house is his castle and all), and will be liable to him.
If a man's castle is supposed to be a single family residence and he converts it to a multi family dwelling, then he broke the law. Should be interesting if Tim testifies. Then he can explain why the "family room" was being used as a separate apartment and the differences between what he said on his application and what he really used it for. There is a big difference between renting out a room in your house and converting a room into a separate unit that can be rented for a lot more money. Thanks for the November 2010 post, Joan. That was most illuminating.
"Who cooks rice in the family room if there's another kitchen?"
But this issue is bigger than "who does that". This time, she actually could put him in jail for four years because he supposedly cooked rice in the wrong room inside of his own house.
This has really been some good detective work, catching that rice cooker in a family room - I we citizens are lucky and it was really well investigated they might even have some video of someone eating rice outside of the designated kitchen area...
Those that are cheering this on better not ever have a political enemy or your house might be next. And whatever you do, don't get drunk and piss in the kitchen sink... You go to jail for making one extra bathroom without a permit.
Wonder if the Planning Department's and the Prosecutor's break rooms are permitted as a kitchen? Bet they prepare and eat food there too.
By the way, was he renting it? It would be understandable if a family member was living there, but if he was renting it to make a buck . . .
There is something very McCarthyesque about this whole thing.
Can't place it, but it feels like the dark days of the red scare.
Hyperbole, anyone?
Should we allow ag land to be used for multi-family housing? If we ignore the zoning laws, what then? Resorts on ag land or in the conservation district? Wait, we already have that, thanks to people who don't give a damn about the law and think it only applies to suckers.
What the hell was that old geezer Kaipo doing there?
Kaipo probably reported him.
"Obviously, he has broken no laws, the county is violating his constitutional rights in a way the courts loathe (a man's house is his castle and all), and will be liable to him.
December 24, 2011 9:54 AM"
But again, donʻt like the law, fix it, so as it is, these laws that exist are for everyone else except Bynum?
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