Friday, May 31, 2013

Musings: Honor Among Thieves

A former employee has filed a claim against Kauai County for $356,400, alleging corruption, misconduct, ethics violations, retaliation and a hostile work environment in the auditor's office.

Ron Rawls, a former staff internal auditor, contends that county Auditor Ernie Pasion and former Prosecutor Shaylene Iseri-Carvalho doctored a county fuel audit investigative report to make their political enemy, Mayor Bernard Carvalho, look bad. 

Rawls says he was harassed when he spoke up, prompting him to file a hostile workplace complaint in June 2012. After that, Rawls says, he was subjected to illegal retaliation and ultimately banished to a small, windowless office with no work assignments for five months. He resigned effective Jan. 7, 2013.

Rawls also maintains that Pasion refused to authorize an investigation into allegations that Iseri-Carvalho and her first deputy, Jake Delaplane, were misusing county vehicles and gas. 

Rawls outlines events surrounding a county fuel audit that eventually led to a failed bid to indict one of the mayor's administrators, Janine Rapozo, on theft charges in the waning days of Iseri-Carvalho's term. The indictment was thrown out because an insufficient number of grand jurors had found probable cause to charge her.

Rawls further contends that in “a number of instances” Pasion and audit manager Lani Nakazawa “violated government auditing standards (and hence violated legal requirements set forth in the county charter) relating to auditor independence, objectivity, impartiality, integrity and professional behavior in connection with the fuel costs audit investigations.”

Here's what happened, according to the declaration that accompanied Rawls' claim:

In August 2010, Rawls was assigned to conduct an audit of county fuel costs. After discovering that the mayor and other county employees were possibly misusing county fuel, he reported his findings to Pasion, who hired an Oahu law firm (McCorriston, etc.) to conduct an extended audit. The firm issued two reports: one on the mayor and another on a parks worker.

The McCorriston report stated that Carvalho was following a procedure started by previous mayors and may not have had criminal intent. It suggested the County Council refer the issue to the state Attorney General if it wanted to pursue the question of intent.

In a meeting that Rawls attended, Pasion and Iseri-Carvalho decided to withhold the part about mens rea (criminal intent) in a summary report submitted to the Council in order to make the mayor appear guilty and encourage a criminal prosecution. Rawls expressed his opposition at the meeting, and followed up with an email to Pasion, but the Council was not given the full report.

On Aug. 4, 2011, the Auditor's office received an anonymous complaint about Iseri-Carvalho and Delaplane misusing county vehicles and fuel. Rawls had previously become aware that other employees were taking county vehicles home, increasing the likelihood of improper personal use.

At a mid-August meeting with the McCorriston law firm, Rawls presented the information about the take home vehicles. Investigators “were unequivocal in their position” that all the fuel cases should be reviewed simultaneously to avoid the appearance of selective prosecution.

However, Pasion specifically directed McCorriston to investigate only the mayor and a parks worker, and none of the other employees. Rawls contends Pasion was trying to derail any investigation into Iseri-Carvalho because they are close political allies, whereas he has observed that Pasion “openly disdains and disparages Mayor Carvalho.”

After receiving the McCorriston reports in April 2012, Rawls confronted Pasion about his misconduct and suggested he recuse himself. In response, Pasion “lashed out” and removed Rawls from the take-home vehicle audit, then began excluding him from closed-door staff meetings. Pasion and Nakazawa also ridiculed him in front of another employee with false accusations about his work.

On June 25, 2012, Rawls filed a hostile workplace complaint and was offered a work space in a different building. Though Pasion initially gave him work, he began withdrawing the assignments in August and excluded Rawls from a staff training conference.

In August 2012, Rawls reported the retaliation to the County Attorney, Human Resources and County Council, which oversees the Auditor's office. The Council hired an investigator, who provided the Council with “substantial documentation” of the retaliation. However, “no discernible action was taken to stop the retaliation.”

Consequently, I was left sitting in a small, windowless office with no audit work from mid-August 2012 through my last day of work on Jan. 7, 2013. These working conditions and the continuing retaliation and hostile work environment became so intolerable that I felt I had been constructively discharged from my employment.”

The value of his claim is based on projected lost earnings with Kauai County and expenses incurred due to the higher cost of living on Oahu, where he was able to secure another job.

In a follow-up to the McCorriston report, which also suggested the county clean up its act, I asked county spokeswoman Beth Tokioka what, if anything, had been done. She wrote:

Last fall, the Mayor discontinued fueling his personal vehicle via the County's automated fueling system and since that time has received no reimbursement for vehicle expenses of any kind, including mileage.

Beth also said that Public Works was researching a new system well before the report, and on May 17, 2013 installed a new dual-key FuelMaster system “for great accountability” at its gas pumps.

Under the new FuelMaster system, each employee will be assigned a “swipe card”, and Public Works will install in each of the County’s four hundred vehicles and equipment a module which will automatically communicate with the gas pump upon fueling to identify the vehicle being fueled; this will eliminate any need to manually enter information into the fueling system.

We are also developing a Motor Vehicle Policy, which is not yet final.  However, I can tell you that the following statement will be included in that policy: "Fuel available at County baseyards or through a County credit card shall only be used to fuel County owned vehicles and privately owned vehicles that are permitted through collective bargaining agreements, County ordinances or other agreements.  Fuel usage shall be monitored by each respective Department/Agency."

Thursday, May 30, 2013

Musings: Abuse Chronicles 18

Every story has a beginning, and for Kaulana Haena, it starts with the Wainiha subdivision, a five-acre parcel east of the YMCA's Camp Naue. That's where Dr. Alex Ferreira proposed developing 17 condos and four houses in 1978. His plan met with fierce opposition from residents concerned about the environmental impacts.

Their fears were underscored by county planning staff, who reported:

The density of development and the nature of use (visitor oriented/resort residential function) are the main factors that are judged to cause the more significant effects to the environment of Haena.

Nonetheless, planners recommended approval and the Planning Commission went along. A group of neighbors, including Samson Mahuiki and Kaipo Asing, promptly filed suit challenging the approval.

In 1982, the Hawaii Supreme Court ruled the Commission had violated state law by failing to find the development, which was within the special management area (SMA), would "not have any substantial adverse environmental or ecological effect" or that the adverse effect was "clearly outweighed by public health and safety" prior to the approval.

The condo project died, and Sylvester Stallone bought the property for $1.75 million in 1984. The SMA permit ultimately granted for the subdivision specified the houses were to be exclusively for residential use, with one house per lot, and no guest or ohana units allowed. The CC&Rs for the subdivision specified, emphasis added:

No owner shall subdivide or re-subdivide his Lot, nor shall any Owner seek a zoning amendment, use permit, variance or any other type of approval which would allow a use of his Lot for other than single family residential use. No commercial activities shall be allowed on any Lot.”

With those restrictions in place, Stallone began to slowly sell lots. The first house was constructed in 1995 by Marvin and Melinda Goodman, residents of Santa Barbara, Calif., who had bought a lot for $925,000 in February 1992. Shortly afterward, Iniki hit, and it looked like this:
Contrast that to today, where it is fully landscaped, right onto the public beach, like so many of the other TVRs in the Wainiha subdivision:
In 2008, the County Council passed a law regulating vacation rentals. The Goodmans submitted an application for Kaulana Haena in October 2008, claiming they'd been using the house as a TVR since 1995. However, their application file contained no proof of general excise or transient accommodation taxes paid and no rental reservation log, as required under the law.

Nonetheless, planning inspector Bambi Emayo sent the Goodmans an undated letter approving their application and issuing them TVNC-1214. The March 31, 2009, TVR log on the county website showed Kaulana Haena as approved. 

The Goodman's property manager, Leila Kawaihalau, later submitted the 2009 TVR renewal, which was due by July 31, 2009. The county received it on Aug. 3, 2009, but rejected it because “our records show you have no valid non-conforming use certificate to renew," according to a letter from then Planning Director Ian Costa.

Leila sent in the approval letter from Bambi, along with the renewal. On Oct. 13, 2009, Ian sent another letter saying the department planned to deny the renewal application because it was received late. However, he gave her 60 days to submit a letter explaining “extenuating circumstances” for the late submittal.

Leila sent in a letter claiming she was sure she had submitted the renewal in a timely fashion, but had “learned a very valuable lesson,” which was to use certified mail so she would have a record of when it was sent and received. The TVR certificate was renewed.

The 2010 renewal was submitted on time, but curiously included copies of TAT and GE licenses that showed a business start date of June 7, 2010. The 2011 renewal, though signed by Leila on June 23, 2011, was not received by the department until Aug. 15, 2011. Yet it also was approved.

Meanwhile, despite prohibitions against guest or ohana houses in the subdivision, Kaulana Haena is openly advertised as having a guest house, which can be rented in addition to the main house:

The guest house is an attached 500 sq ft, 1 bedroom studio. There is a King size bed in the bedroom as well as a bathroom, living room, small dining area and mini kitchen with a full size Sub Zero fridge. The living room has a twin size pull out sofa bed.

When booking this 5,000 sq. ft. home, you have the option of either renting the 4 bedrooms which are located in the main part of the home or adding the 5th bedroom which is an additional 500 sq. ft.

This property, which never proved it was eligible for a TVR certificate, should have lost its certificate anyway for twice renewing late and renting a guest house.

Similar irregularities have been documented in the Abuse Chronicles for four other properties in the Wainiha subdivision:  Banana Beach House, Holo Makani, Hale Hina and Hale Koaniani. Yet they all still operate. Combined with Kaulana Naue, these five properties  alone — and there are other TVRs on this short stretch of coastline — can accommodate 41 to 46 guests per day.

That seems to be quite a lot, especially for a subdivision that was never supposed to have any commercial uses — a subdivision that was approved under an SMA permit that is supposed to consider the cumulative impacts of a project. Remember the Mahuiki decision, and how the Commission was dinged for failing to prove the project proposed for this very same plot of land would "not have any substantial adverse environmental or ecological effect" or that the adverse effect was "clearly outweighed by public health and safety" prior to the approval?

Yet all those impacts have been allowed to occur in a defacto manner by approving — and continually renewing — these TVR permits without ever revisiting the SMA.

Back in 1978, when the Planning Commission was considering the condo project, several members expressed reservations, although they felt they had to act because the parcel previously had been upzoned to R-4.

I hate to see an area as beautiful as Haena being slowly eroded and destroyed,” said Commissioner Fujita.

Commissioner Tehada was more blunt. “Unfortunately, and this is the saddest part, our ordinance permits the use of catering to short term visitors in the residential district. In the sensitive environment of Haena, this function, which is more of a resort type use, is highly out of character and I portend that in the long run, highly detrimental. I am sure that the past decision-makers, in their deliberation and subsequent decision to upzone the land, did not intend that it eventually be used as a resort/visitor destination area.”

Yet here it is, a resort area. And our public beach has been turned into Kaulana Naue's private yard, as evidenced by this debris line deposited by the high wash of the waves: 
As the saying goes, those who forget history are doomed to repeat it.

Wednesday, May 29, 2013

Musings: Battle of the Badge

Dayne (Aleka Aipoalani) Gonsalves is again a free man, but his super scary Kingdom of Atooi badge remains in lockdown.

Yes, even though attorneys negotiated a plea deal for Dayne on charges that began with the Aug. 26, 2007 Superferry protests, Deputy Prosecutor Melinda Mendes insisted on playing hard ball by fighting the return of Dayne's badge. The same badge that Circuit Judge Kathleen Watanabe had previously ordered cops and prosecutors to return. The same badge that Prosecutor Justin Kollar says his office views as neither contraband, nor "a valid symbol of law enforcement authority."

So why not just give it back? Maybe even with an apology for the way the system has jacked Dayne around so badly for the last six years. Let's not forget that Dayne and Rob Pa were the only people ever prosecuted for the Superferry protests. Or the time when cops did a dramatic armed traffic stop to arrest Dayne, in front of his wife and daughter, for missing a court date — even though he had a doctor's excuse that was indeed in court records.

Melinda claims the badge is still needed as evidence in the case pending against Rob. But that's kind of hard to swallow, since Rob is also planning to plead out. And even if he does go to trial, why would you present evidence that hadn't been used to secure a conviction against another defendant?

Melinda's move smacks of a petty power play. Or maybe she just doesn't like men with tattoos on their faces.

Either way, she does have a boss who has shown his inclination to do the right thing by settling stinky cases that have already wasted tens of thousands of taxpayer dollars. Perhaps he'll stretch a bit more and kick down the badge. I'm sure it would mean a lot to Dayne and those who support indigenous rights.

And that includes the United Nations, which last week sponsored a press conference on the Kingdom's launch of its kala currency. The currency, not minted since the late 1800s, will come in three denominations: one ounce copper worth 2 kala; one ounce silver worth 50 kala and a tenth-ounce gold coin worth 500 kala. It's currently being sold online.

All this was announced in the press conference, in which Dayne is described as the Alii Nui of Polynesia. In response to questions from reporters, Dayne said the Kingdom has been recognized by the United Nations. When pressed for what kind of recognition, Dayne said the UN gave Hawaii “seat number 25” in 1945, and he is working to reclaim that seat. (I haven't been able to confirm that assignation.)

Dayne also told reporters he has been negotiating with the feds, specifically Homeland Security, and Hawaii police to collaborate with the Kingdom's security force “to focus our efforts on crime.” That's likely to be a hard sell, given the intense resistance to Dayne even possessing a Kingdom badge, much less one that they recognize.

Tuesday, May 28, 2013

Musings: Myth-Busters

It's been fascinating to watch the fear-mongering associated with the ever-so-slow easing of cannabis laws. The latest is a Colorado study that suggests more kids may be sickened after accidentally munching their parents' Alice B. Toklas brownies. However, Lucky Charms, McNuggets, Mountain Dew and all the rest of the GMO-laden crap they're intentionally fed is perfectly alright.

Because as the “seed farmers” — aka chemical companies — will tell you in the “myth-busters” ad they've been running in The Garden Island:

Since 1996 we have been safely eating foods from genetically engineered ingredients with no evidence of harm demonstrated anywhere in the world. Genetically engineered crops are the most regulated agricultural commodities in the nation.

Well, not so tightly regulated as that other agricultural commodity, hemp, which still cannot be grown without a rarely issued federal license — despite its proven value as a food, fiber and fuel source that doesn't require a lot of water, fertilizer or pesticides. So why is it that GE crops and their associated chemicals can be planted with impunity anywhere in the U.S., but hemp is still outlawed?

The myth-busters piece, which claims to want to “put the falsehoods aside and talk facts,” then goes on to deliver the biggest whopper of them all, and I'm not talking burgers:

Genetic engineering has helped decrease pesticide applications from our plant care routine.

Oh, really? That's not what the U.S. government says:

The greatest glyphosate use is in the Mississippi River basin, where most applications are for weed control on genetically-modified corn, soybeans and cotton. Overall, agricultural use of glyphosate (Roundup) has increased from less than 11,000 tons in 1992 to more than 88,000 tons in 2007.”

In these studies, Glyphosate was frequently detected in surface waters, rain and air in areas where it is heavily used in the basin. The consistent occurrence of glyphosate in streams and air indicates its transport from its point of use into the broader environment.

"Though glyphosate is the most widely used herbicide in the world, we know very little about its long term effects to the environment," says Paul Capel, USGS chemist and an author on this study.

So please, don't try to tell us that GE crops are some of the most thoroughly researched in the world.

Continuing on the topic of chemical companies, the international spotlight recently has been trained on imidacloprid, the world's most widely-used insecticide. The European Union recently banned it and two other neonicotinoids from some crops for two years because it's linked to bee deaths. But Dutch researcher Dr Jeroen van der Sluijs says much stronger action is needed because the pesticide is devastating dragonflies, snails and other water-based species:

Van der Sluijs added that half the 20,000 tonnes of the imidacloprid produced each year is not affected by the EU ban. It is used not to treat crops, but to combat fleas and other pests in cattle, dogs and cats. 

"All this imidacloprid ends up in surface water," he said. The pollution was so bad in some places that the ditch water in fields could have been used as an effective pesticide, he said.

Not surprisingly, another U.S. government study has for the first time documented just how fast frogs, toads and salamanders are disappearing from their habitat. Significant declines are occurring even in protected areas, like national parks and wildlife refuges. Why should we care?

"Amphibians have been a constant presence in our planet's ponds, streams, lakes and rivers for 350 million years or so, surviving countless changes that caused many other groups of animals to go extinct," said USGS Director Suzette Kimball. "This is why the findings of this study are so noteworthy; they demonstrate that the pressures amphibians now face exceed the ability of many of these survivors to cope."

And it ain't just wildlife in the U.S. that's reeling. As The Guardian reports:

An unprecedented stocktake of UK wildlife has revealed that most species are struggling and that one in three have halved in number in the past half century. [M]any animals, birds, insects, fish and plants are in trouble.

The causes include the intensification of farming, with the consequent loss of meadows, hedgerows and ponds and increased pesticide use, as well as building development, overfishing and climate change.

Getting back to that ubiquitous high fructose corn syrup — made from all that Roundup Ready and Bt corn and added to nearly every processed food sold in the conventional grocery store — another study finds a possible link between the practice of feeding commercial honeybees high-fructose corn syrup and the collapse of honeybee colonies around the world.

It seems that feeding bees high fructose corn syrup, which is cheap and allows the valuable honey to be sold, compromises the bees' immune systems and makes them more vulnerable to pathogens and pesticides. Or to put it more scientifically, “constituents found in honey...specifically induce detoxification genes.”

It's so fascinating how we make like we know it all, like we've really got a handle on this crazy complex thing called life, yet we're constantly finding new pieces to the puzzle and trying to fit them in. You know, before it's too late. Though just last night, listening to Midnite's “Bushman,” I was struck by the lyrics:

Don't you think they know
The system is too far gone”

Which could prompt some folks to get anxious, anguished, apocalyptic. As Robert Jensen writes:

Many associate “apocalypse” with the rapture-ranting that grows out of some interpretations of the Christian Book of Revelation (aka, the Apocalypse of John), but it’s helpful to remember that the word’s original meaning is not “end of the world.” “Revelation” from Latin and “apocalypse” from Greek both mean a lifting of the veil, a disclosure of something hidden, a coming to clarity. Speaking apocalyptically, in this sense, can deepen our understanding of the crises and help us see through the many illusions that powerful people and institutions create.

But there is an ending we have to confront. Once we’ve honestly faced the crises, then we can deal with what is ending—not all the world, but the systems that currently structure our lives. Life as we know it is, indeed, coming to an end.

Or as a wise friend observed, "Shouldn't you just try to create diversity in your own life every way you can?"

And for our last myth-buster, does Shaylene Iseri-Carvalho actually think anyone believes she wasn't involved in going after Councilman Tim Bynum for a zoning violation? Give it up, girl. Please. 

Friday, May 24, 2013

Musings: Don't Struggle

Found a Newell's shearwater late yesterday afternoon, being guarded by a friend's Golden Retriever, who wasn't biting or mouthing, but just keeping watch. I crawled beneath the house and wrapped it in a towel: no blood, wings intact. I have no idea why it came down, or if it was leaving the burrow, having been relieved from egg-sitting duty by its mate, or heading in to take its turn.

It spent the moonlit night in a cardboard box, where it didn't want to be — who would? — scratching at times to get out, but responding always to a soothing voice: don't struggle. Words we all can live by. 

This morning it's enroute to the Humane Society, which is a long ways from Wainiha, where it was found, but they don't put out the little aid boxes at the fire stations until September.

Hopefully it will be released soon, so it can do its part in hatching a chick this season. At least it's alive, with no visible injuries, unlike all the other A'o I've found over the years. 

Thursday, May 23, 2013

Musings: Damage Control

Planning Director Mike Dahilig was a no show at the County Council, and the Council wasn't pleased.

“The Administration has decided to say let's do damage control and not give anyone an opportunity to expose more,” Councilman Mel Rapozo said. “That's what it is. It's clear and plain.”

The Council was scheduled to question Mike about about his plans for TVR enforcement — a presentation Mike cut short two weeks ago when he dashed off to catch a plane.

Instead, the Council got County Attorney Al Castillo, who said he had advised Mike to skip the session. If Mike did attend, Al said, he might need to invoke the Fifth Amendment.

Councilwoman JoAnn Yukimura hotly contested whether Mike could refuse to answer any questions, even those that didn't deal with a possible Council investigation into TVR abuses.

Mel said he had never before seen a department head fail to show up. “That to me is disrespectful, to say I'm not coming to talk about anything.”

Chairman Jay Furfaro advised Al to confer again with Mike. But though the agenda item was postponed for a few hours, Mike came.

Instead, the Council got Deputy County Attorney Ian Jung, who pressed for an executive session (ES) to “explain the legal complexities of the TVR law” before the Council engaged in open discussion on enforcement.

Mel was dubious. “The appearance is like we're kind of hiding something.”

Ian said that anything discussed in public could be used against the county, which is currently being sued for denying one TVR permit on ag land, and holding contested case hearings on other denials. “We have to formulate a valid position before we engage in open discussion so we have a strategy for litigation,” Ian said.

Councilman Gary Hooser noted that litigation was always going on. Typically, the County Attorney typically sits next to whomever is being questioned and interjects if things start to stray. “Why can't we do it that way?” Gary asked.

To which Ian replied: “I want you to understand there are concerns here and I would rather do that in private.

Ian said it was important for the Council to be aware of the all the legal issues “before engaging in open dialog and criticism of the planning director and criticism of the Administration for not going after TVRs. Because we are. We're enforcing to the point of pending applications, getting through that batch before we move on. Things move in steps.”

Mel said the day's events “make it clear the 3.17 (Council investigation) is needed. This problem is bigger than I think we all even imagined. It bothers me tremendously that this body would be disrespected.”

“It's sad we can't talk to our planning director about a front-burner issue in the community,” Gary said. “It seems something big is out of whack in this county. We should ask the mayor to come forward and take responsibility and brief us in the future.”

JoAnn also expressed disappointment at how things had unfolded. “I'm very bothered by the way the Administration has been responding. It's both disrespectful and not very artful and not very diplomatic.”

Mel said the Council had merely wanted to ask Mike, “What's your plan? When's it going to happen?” Instead, Mike "went running to the county attorney" and the discussion was moved to a closed session. “And in the meantime, the public gets left out.”

Tuesday, May 21, 2013

Musings: Abuse Chronicles 17

There's a certain sense of entitlement expressed by many vacation rental wannabes — an attitude that is fed by the attorneys who serve them. Which leads us to Pulelehua, a story that again underscores how lawyers who previously worked for Kauai County have inordinate influence on the TVR approval process.

In this case, it's Lorna Nishimitsu, who successfully appealed — stretching the truth and threatening “a taking” in the process — when the planning department quite properly denied her client's application for a TVR certificate.

Her client was William Morgan, a Realtor from Del Mar., Calif., who developed two other TVRs in the same Wainiha neighborhood — Hale Hina and Banana Beach, previously detailed in Abuse Chronicles 10 and 12, respectively. In June 2004, Morgan and three others bought the property they later named Pulelehua for $1.47 million. He then proceeded to flip it several times through a series of tax-free property exchanges involving numerous tenants in common, the same timeshare-type investment strategy he employed with the other two properties.

When Morgan initially bought the Pulelehua property, the structures were not fully legit. In 1997, the county's engineering department had issued a violation notice for illegal ground floor alterations and additions to the main house and guest house. The files also state “elevation certificate has not been submitted to date.”

Photos published on the 2004 real estate listing document the continued existence of those violations. This picture of the illegally enclosed ground floor bedroom actually bore the caption “downstairs storage:”

Another photo shows the guest cottage's illegal full kitchen with stove:

In October 2004, Morgan, through his agent, Matt Hunter, sought a $71,000 building permit ostensibly to remove the illegal downstairs enclosures and replace them with “breakaway walls.” The previous month, prior to any alterations being done, architect Ron Agor had helpfully provided an elevation certificate for “finished construction.” The work got its final approval in July 2005.

On Sept. 30, 2008, Morgan applied for a TVR certificate, claiming the use started on April 1, 2006. Though the law required him to document TVR use prior to March 2008 through a rental reservations log, proof that general excise and transient accommodation taxes had been paid, and a sworn affidavit, his application included none of this. Instead, he submitted only copies of a GE and TAT license for an unnamed business that was started April 1, 2005.

On April 24, 2009, planning inspector Bambi Emayo sent Morgan a letter informing him of several violations, including a full kitchen within the guest house, constructing the kitchen without proper permits and use of the guesthouse as an additional dwelling unit. Morgan was ordered to immediately cease and desist all vacation rental activities and use of the guest house as a dwelling unit. He was directed to remove cabinets, cooking appliances and the electrical and gas supplies to cooking appliances. He was also directed to submit an “acceptable plan for compliance.”

On May 7, Lorna Nishimitsu sent a letter to the planning department on Morgan's behalf in which she submits a “plan for compliance” that is essentially a denial that anything is wrong. In one section she claims (emphasis added):

Having expended approximately $100,000 to bring the guest house into compliance with the Planning Department's directions so that the registration of the single-family dwelling as a transient vacation rental could proceed, our client would not have placed the coffee maker and microwave oven within the guest house structure such that it would result in denial of the nonconforming use certificate for the dwelling (i.e., the main house.)

Curiously, the building permit on record for the guest house renovations was valued at just $28,000.

Lorna also argued that only the main house needed to be in compliance to get a TVR certificate, not the entire property. Under this reasoning, you could be running an auto wrecking yard in a residential zone, but never mind, so long as the house itself is in compliance.

On May 12, Lorna submitted a formal appeal to the planning department. In it, she makes at least two spurious claims. One is that Morgan had shown “by a preponderance of the evidence” that the house was being used as a TVR prior to March 2008, and he had “satisfied all the requirements” of the TVR ordinance. In fact, as I noted earlier, his application was missing nearly all of the requirement documentation.

Another is that Morgan had been unable to bring the cottage into compliance because it was being occupied under a rental agreement issued by the previous owner — an agreement that he could not terminate until its term expired on March 1, 2008. In fact, the house was being rented under a month-to-month agreement, one that had begun in March 2006, under Morgan's ownership. He ultimately gave the tenant a vacate notice effective March 1, 2008, even though the woman was just about to give birth and had nowhere else to go.

Lorna then goes on to claim that denial of the TVR certificate “will result in a substantial decrease in the value of the subject property,” even though it wasn't a TVR when Morgan bought it. As a result, Lorna claims, the “denial represents a taking without just compensation” in violation of the state and U.S. constitutions.

That's right. Not being given something you wanted, but never actually had — and never even proved you were qualified to receive — amounts to “a taking” in Lorna's world.

Worse, the planning department caved and went along. In a June 26, 2009 letter, former planning director Ian Costa advised Lorna his office had reviewed her appeal and decided that Morgan's application “will now be recommended for approval before the Planning Commission.”

The planning commission affixed its rubber stamp on July 14, 2009, with the staff-recommended caveat that the TVR certificate “is not evidence of compliance with any and all pertinent zoning and use regulations.”

So Morgan got his TVR certificate. 

And though multi-family rentals are illegal on the North Shore, Lorna continues to submit the renewal applications as if the owner is also entitled to rent out the cottage that she previously claimed was not part of the original application:

The SFR is rented either independently of the guest house or with the guest house. The guest house is not a stand along rental.”

The internet ads, meanwhile, tell the real story, that this is an illegal multi-family rental:

We had two families for a total of 10 people and we had plenty of room in the kitchen and living area. We also used the "tree house" which was nice as well. The tree house is detached from the main house and you can feel a little disconnected from the main house.

Internet ads also tell of visitors using the “tree tunnel” — a dedicated beach access that Morgan has heavily landscaped to discourage public use — to reach “Banana Beach” so they can swim, body surf, boogie board and snorkel in waters that are extremely dangerous and lacking any lifeguard:

We were so excited to "discover" the "tunnel" leading to the almost private beach where we spent almost all of our time. 

A beach that many residents no longer want to use, because it's now filled with the visitors from the three mini-resorts that Morgan developed and all the other TVRs along that stretch of sand.

Oh, and btw, do those look like "break -away" walls on the "downstairs storage" to you?

Sunday, May 19, 2013

Musings: Abuse Backstory 1

It occurred to me, while reading the article “TVR probe stalls” in today's edition of The Garden Island, that we need another series to run concurrently with the Abuse Chronicles. This new series will include the backstory that helps people understand how and why this vacation rental mess came to be.

Let's start with County Attorney Al Castillo. As TGI reports, Al raised concerns about costs, legalities and jurisdiction in his attempt to derail the Council's proposed investigation into the abysmal failure of the 2010 TVR law. 

So where was Al when the Council passed the 2010 TVR law? You know, Ordinance 904 — the law that cemented all the problems created by the 2008 TVR law, dug the county's legal hole that much deeper?

Al didn't pinpoint the failings in 904 because he was too busy lobbying for it. Remember when the bill was up for a vote, in July 2010, and former Councilman Dickie Chang was on the fence? And Al and Deputy County Attorneys Ian Jung and Mike Dahilig (who is now the planning director)  visited Dickie at home and plied him with beer to secure his vote on the TVR bill? Yeah, that's the kind of lobbying I'm talking about.

Maybe "beer gate" wasn't technically illegal, but it sure seems unethical – especially since the County Attorney's office is supposed to represent the Council, the Administration and the county as a whole, which presumably includes the poor taxpayers who are footing the bill for all these missteps.

And it certainly raises the ethical and practical question of whether Al, after actively pushing the bill, should now be advising the Council on how to deal with it's utter failture. A failure has been documented in 16 Abuse Chronicles that cover 24 separate TVR certificates, and that's barely scratching the surface.

Al and his office are so badly conflicted on this issue that ethically, he should have recused himself at the last Council meeting and suggested they hire special counsel. Instead, with Council Chair Jay Furfaro's complicity, he bought a 30-day delay — time that he and Mayor Bernard Carvalho (who hired him, let's not forget) can use to head off any investigation into these wrong doings.

You know, the same way a proposed Council investigation into Public Works was sidelined – an investigation that might have prevented some of the Building and Engineering transgressions uncovered by the Abuse Chronicles. Things like allowing tiny houses to be remodeled into mini-resorts without meeting flood or septic requirements.

If Bernard, Al, Ian and Mike had actually checked into how the planning department was implementing the 2008 law, they would have found that it was in total shambles. Instead, they pushed the Council to amend the law in 2010, which compounded the problems from 2008 while eliminating inspections, proof of tax payments, proof of prior TVR use and all the other teeth.

With the passage of Ordinance 904 in 2010, they threw open the door to pretty much anybody who could put a pencil on paper. And for those who couldn't, well, remember how Bruce Fehring admitted to the Planning Commission that planner Mike Laureta had actually written his TVR application for him?

Al also claimed the mere presence of HGEA union rep Gerald Ako at the Council meeting “raised a red flag” that should be heeded. If Al had been paying attention he would have known that Ako actually raised a red herring. Ako later admitted to the Council that no matter who did investigation, employees would still have union representation and all the protection it entails.

The red flag I saw was Ako arguing for the Administration, rather than the Council, to conduct the investigation. He obviously knows, like the rest of us, that if it's left to the Administration, absolutely nothing will happen.

Finally, I've got to say something about Council Chair Jay Furfaro. I'm talking about his feigned shock and indignation that the Council resolution hadn't been sent to the County Attorney's office for review. 

Curious how Jay, a supposed stickler for process, has never implemented a procedure for what goes to the County Attorney's office for review, and when.  That's right. It's totally ad hoc, hit and miss, whatevahs. Seems awfully inefficient. But oh so convenient when you want to stall something while pretending that you're moving it along.

Saturday, May 18, 2013

Musings: Yellow Light

The sun rises in an explosion of pink and gold and already bees are working the beach heliotrope blossoms. Turtle tracks on the wet sand speak to an overnight visitor, who rose even earlier than I. The sea invites me to swim in her salty shimmer and I accept, gratefully. It's the best time of year, when the days start early and everything is fresh and green and bursting with new life.

In the midst of all this busting out all over, the EPA approved Dow's new systemic insecticide, sulfoxaflor, which it acknowledges is highly toxic to honey bees. Seems the feds aren't concerned because they don't anticipate any “catastrophic effects” on bees. Just the usual slow simmer in the increasingly toxic soup. Besides, “industry” is clamoring for a “new and improved” pesticide because – surprise! – the bugs are becoming increasingly resistant to the stuff already used to kill them, including the neonicotinoids linked to hive collapse. Oh, but no worries, this new chemical is “softer” than the ones it's replacing. It's “beneficial.” You know, better living through chemistry.

So how long do you suppose we can keep upping the poison ante? I mean, before everything folds?

It seems Europeans are far more worried about this than Americans, who are dulled and dazed by GMO high fructose corn syrup, bad TV and a quest for the almighty dollar. As The Washington Post reports, America's devotion to pesticides and GMO crops may jam up EU trade talks:

U.S. crops inspire fear among everyone from French wine producers to German corn growers. Many European farmers say that plants that are carefully engineered to do everything from boosting production to repelling pests have uncertain environmental consequences and, once growing, spread uncontrollably via pollen that can float for miles on the wind.

In the United States last year, genetically modified crops comprised 88 percent of all corn, 94 percent of cotton and 93 percent of soybeans, according to Agriculture Department figures. In the European Union, they covered less than 1 percent of farmland, mostly in Spain, according to the European Commission.

Just two genetically modified crop types are approved for planting in the European Union, out of a far wider range of species used elsewhere. But one of the two, a BASF potato, is no longer marketed; the other, a Monsanto corn breed, is banned for growing in France, Germany and elsewhere, despite findings from both U.S. and E.U. food regulators that the produce is safe. [Many U.S.-grown products are banned from Europe.] One exception is the American-grown genetically modified soybean, which dominates the European animal feed market.

The difference in approaches, analysts say, is that U.S. regulators tend to rely on short-term scientific studies about safety to give new technologies a green light. European regulators tend to be far more cautious, focusing more on what they might not know than on what they do know.

But even the Europeans may not be spared the consequences of what Dr. Robert S. Lawrence, director of the Johns Hopkins' Center for a Livable Future, terms “a dramatic assault on the security of the food supply.” As NBC News reports:

We’re in a situation where the food supply is more vulnerable than it has ever been,” added Lee Hannah, senior fellow at Conservation International, a global nonprofit that advocates for sustainable policies.

It seems that GMOs and pesticides are only part of the problem. There's also the growing impact from atmospheric carbon dioxide, which last week reached concentrations likely not experienced on Earth since the Pliocene era, some 4.5 million years ago. The warm, moist air is allowing pathogens to thrive at a time when global trade is expediting the movement of plant pests and diseases. Citrus, coffee, chocolate, wine, maple syrup and salmon are just some of the foods that are either likely to suffer, or already getting hit.

America's reliance on mono-cropping poses another grave risk, according to Hannah:

For instance, corn plants in the American Midwest are grown closer together and taller than they have been in the past because we’re genetically engineering them to do that. That produces a lot more food. But it also makes that corn more vulnerable to disease, which, if it gets into that mono-culture system, can sweep through it much as a disease will go through a city a lot faster than it does a rural countryside."

Although the human race has faced famines of its own making in the past, this is a whole new ballgame, Lawrence says:

So there are precedents but they’ve all been local and people just abandoned those areas and moved on. What’s very sobering about the situation today: This is global and there isn’t any other place to go on this spaceship Earth.”

And it's not just about the humans, either, but all the other life forms that inhabit this beautiful planet.

Speaking of which, you know how the Navy is always trying to convince us that its sonar is perfectly safe for marine mammals? So safe that it wants to use even more of it, year-round, in waters surrounding the Hawaiian Islands? Well, it's apparently not so benign as the Navy has claimed. As a new study published in Nature reports:

The Canary Islands used to be a hotspot for mass strandings [of whales and dolphins], but there have been no mass beachings since the Spanish government imposed a moratorium on naval exercises in these waters in 2004.

So couldn't we impose a similar ban here? 

I know the precautionary principle is often pooh-poohed as unscientific, and frequently bad for business, but how about if we, as humans, just exercise a little common sense? As the time-worn adage reminds us: Err on the side of caution.

Unless, of course, you don't care if it all turns to shit, so long as you're raking in a pile of cash along the way.

Thursday, May 16, 2013

Musings: Heroes

Given the reactions, you would've thought the Kauai County Council had proposed The Inquisition rather than an investigation into just how, exactly, the vacation rental issue got so damn messed up.

I mean, nobody was gonna be burned at the stake or anything. Just a few subpoenas, some interviews, a little fact-finding, perhaps a wrist-slap, or in the best county tradition, an assignment to another job where your incompetence isn't quite so noticeable.

Absolutely no investigation is needed, but if one must be done, let the Administration do it, pleaded HGEA union rep Gerald Ako, who admitted he had not even read the resolution he was testifying against.

Aw, come on, give the Administration another chance, begged managing director Gary Heu. We'll get it right this time. After all, the mayor has formed an “oversight committee at an executive get our arms around this issue.”

When was it formed? Oh, about two weeks ago.

“We should really pull back and take a much broader look at the issue,” Heu advised.

You mean as in whether we want Mayor Bernard Carvalho to represent us for another four years, seeing as how all this ineptitude and inaction happened under his watch? Or just who, exactly, does benefit from blanket approvals of non-qualifying TVRs? Or how much this boondoggle has — and will — cost the taxpayers?

What the county really requires is a re-engineering study, “a big picture, long-term kind of thing,” Heu said. But the Administration knows nobody wants to wait around six months to a year for that. So instead, “a short term plan is being developed, such as taking some of these [years old] violations into enforcement.”

Be still, my heart.

The planning department has actually formed a four-person task force “to take a look at a few of these violations and a find a way to move them forward,” Heu said.

Can we expect in three months to see at least one case brought to a hearings officer, civil or criminal charges, fines? wondered Councilwoman JoAnn Yukimura, ever the optimist.

“We would like to move as soon as possible,” Heu hedged, following the county maxim of never let yourself be pinned down.

By the afternoon, that “few” had somehow mushroomed into 30 cases that Planning is investigating or enforcing against, or maybe looked at the files or something. It wasn't totally clear, but the number sounded big. Or at least, bigger than “a few,” and hopefully big enough to head off a Council investigation at the pass.

More obfuscation was provided by County Attorney Al Castillo, who was flanked in this most serious matter by deputy county attorneys Maunakea Trask and Ian Jung. The three of them offered a lot of mumbo jumbo about adjudication, due process for TVR owners, county rights, 20 contested cases, Council overstepping its bounds, duplicate investigations. It all boiled down to the same message: butt out and let the Administration handle it.

“I would've liked to be able to review the resolution first for its legality,” Castillo sniffed. No one sent it to his office with that specific request, though surely he knew about it, since it was publicly noticed a week ago, and he could have shown some initiative in checking it out.

But then, initiative is apparently not  a county value, or we wouldn't have a planning department that waits until it receives a formal complaint before investigating, even when it has been made publicly aware of zoning violations.

“Can we get an attorney who can help us?” asked Councilman Mel Rapozo in frustration.

One thing the Council and Administration did agree upon, aside from wanting to “get to the same place” — a destination that was not precisely defined, and appears to have several routes, depending on who is steering and how much they wish to keep hidden— was the county's tremendous liability exposure. Then there's its unspoken counterpart: how much that exposure might increase if the county's dirty laundry is hung out on the line.

Caren Diamond, a longtime beach advocate and member of Protect Our Neighbor Ohana, discussed the dangers of allowing visitors to keep sleeping in ground floor units within the flood zone.

“Every morning that visitors wake up in these units exposes the county to liability, especially  that morning when a tsunami comes,” she said. 

After her testimony, Councilman Ross Kagawa praised her contribution to the investigation and evidence laid out in the 16-and-counting “Abuse Chronicles” series on this blog: “You and Joan and Barbara Robeson [Caren's fellow PONO member] are heroes.”

“You are only heroes if the Council takes action to rectify,” said Councilman Gary Hooser, who with Rapozo introduced the resolution to investigate.

About seven hours later, the Council voted to defer the issue for a month.


Well, as David Bowie would sing: “We can be heroes, just for one day.”

And maybe in a month or so the Council can be, too.