Musings: Political Wills and Ways

Political will was the catch phrase at yesterday's Kauai County Council meeting, with members asking why Mayor Bernard Carvalho's administration hasn't enforced the transient vacation rental law, as detailed in this blog's “Abuse Chronicles” series.

Council members made it clear they do have the political will, and will soon consider a resolution authorizing a special investigation “to find out how and why this could've happened,” said Councilman Gary Hooser.

Though special investigations are permitted by the County Charter, the Council has invoked that privilege only once, in a police matter, and it was resolved before the inquiry got under way. Council Chair Jay Furfaro said an investigation is “a pretty dramatic move” but may be warranted “because we have a mess on our hands.”

“I hope we set a precedent,” Councilman Mel Rapozo said. “We need to tell the mayor if you keep screwing up we will investigate your butt because I'm fed up with it already.”

“I would not support anything that would be characterized as an investigation,” said Planning Director Mike Dahilig, noting the problems were “more systemic” and he hadn't seen any indication of “malfeasance.”

Rapozo said it's time for “an independent party to take a look at the process and see what the heck is going on.”

The Council had asked Dahilig and Prosecutor Justin Kollar to attend yesterday's meeting to present a plan for cracking down on the island's numerous TVR violations. But the Council quickly became irritated when Dahilig said that enforcement was hindered by an inadequate data base, poorly trained inspectors and “un-understood relationships” with other county departments and the state Health Department.

Dahilig further irked the Council when he had to leave the meeting in mid-discussion to catch a flight for another event, prompting a two-week deferral of the matter.

“They [the Administration] need to understand it's a priority,” Furfaro said “There is an urgency here. We have rules. We have ordinances that I have worked on for 12 years. It's the law of the land. They need to get us to the point where the law is obeyed.”

Kollar said he's ready to go once the Council funds a deputy prosecutor position that will be assigned part-time to zoning enforcement. Still, he said, his office is part of a “multi-pronged enforcement effort” that will be ineffective "if one of those prongs isn't working right.”

Councilmembers were displeased with Dahilig's three-page enforcement handout, which essentially said the planning department will try to get its act together this year with the idea of cracking down on violations for the 2014 renewal cycle. The TVR law was passed in 2008, but the planning department failed to implement it properly, approving TVR applications that lacked the proper documentation and houses with zoning violations.

“A year ago we had the same discussion,” Rapozo said, with Dahilig promising then to go after violations in the next round of renewals. “Every year we get excuses.”

Councilman Tim Bynum said he felt “a lot let down” by the department's failure to make applicants “comply with even the most basic aspects of the law.”

Dahilig, who took the job in late 2010, said that as he dug into the matter he discovered “more systemic issues that I wasn't aware of. I'll be candid about the limitations from a human resources standpoint and infrastructure. The fundamentals aren't there.”

But Councilmembers seemed to feel that Dahilig, the mayor and TVR owners had been given adequate time to assess the problem and devise a clean up plan. Some of the violations were reported to the planning department back in 2008, but the owners were issued TVR certificates, anyway. FEMA also identified shortcomings in the law's implementation in August 2009, identifying TVRs that were operating with illegal ground floor units in the flood zone.

“The exposure to the county is huge,” Hooser said, questioning whether the county would have increased liability if someone were to be killed or injured in a unit that had violations the county knew about. County Attorney Al Castillo said he couldn't answer without doing “an analysis.”

Councilman Ross Kagawa said the TVRs profiled in the Abuse Chronicles “are restricting access to the beach and damaging the shoreline.” He asked Dahilig if he could use the posts as a starting point for enforcement. “It was almost like you were handed all this evidence. If we don't do anything, in time the community is going to get frustrated.”

Some Councilmembers suggested Dahilig and Kollar enforce first against the “low-hanging fruit” to send a message to other TVR owners that the county is getting serious about a crack down. Others said he should pursue one or two cases to get a handle on what it will take to work through the list.

“I”m not looking for enforcement on one or two,” Furfaro said. “Why not cast a net that goes after those 16 that are the most serious?”

Councilwoman Nadine Nakamura said she believes the TVR violations outlined in the Abuse Chronicles “are only the tip of the iceberg.”

Councilwoman JoAnn Yukimura said she'd heard Realtors are selling agricultural land under the false promise that owners can develop TVRs. She wondered whether the real estate organizations could do more to crack down on unethical members.

Former Prosecutor Shaylene Iseri-Carvalho also weighed in, saying her office had tried to enforce against TVRs in 2010, but the planning department refused to provide any of its investigative reports, which are public, anyway. The OPA had to file a motion to compel the department to turn over the files. 

Hooser asked Dahilig if the county had followed up on any of the abuses profiled in the blog series. Dahilig said he had looked into the first report, which found no record of building permits for the Wainiha River dock where a visitor drowned in February. Dahilig said he sent out inspectors, but “the work product was problematic.”

When asked what that meant, Dahilig said the inspectors “still require more training. We are going to be following through once we are able to ascertain the files we are referencing were correct.”

“So it's still operating?” Hooser asked.

“That I don't know,” Dahilig said. “We did issue a cease and desist order.”

The $2.589 million property is currently listed by Realtor Jane Abramo as “a very successful and fully permitted vacation rental. All showings subject to 48 hour notice if the home is occupied by vacation guests."