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.