LIHU‘E — The head of the Planning Department took a lashing from the Kaua‘i County Council Wednesday for using funds earmarked for enforcement of transient vacation rentals in a different manner than approved by the council in 2012 and refusing to reveal additional details publicly.
“We’re talking about enforcement,” Councilman Mel Rapozo said. “It just sounds like we have decided not to go after these guys and that’s what’s bothering me. We’re a laughing stock.”
During the budget review sessions in April and May of last year, the council set aside $30,000 for the Planning Department to hire two retired police officers, on an 89-day contract each, to investigate potentially illegal TVRs functioning outside the Visitor Destination Area.
“This is what the council said we wanted and that is what you agreed to,” Rapozo said to Planning Director Michael Dahilig.
After Fiscal Year 2013 started July 1, and the money was in the department’s hands, Dahilig decided to use it in a different manner. From a budgetary standpoint, he said, it was not appropriate for the department to whittle down the funds and not get the “bang-for-the-buck type of situation.”
If the department used the money in the way that it was provided for, it would only be able to go after one or two illegal TVRs, based on some of the quotes that the department got, according to Dahilig.
So instead, Dahilig said he used the funds to create partnerships between the Kaua‘i Police Department and the Office of Prosecuting Attorney to help assist his department and train his staff to be at a level where they could provide “evidentiary support” to bring enforcement situations to a contested case.
Dahilig said the department has been using the $30,000 for enforcement and there is a plan for it. But just how exactly the money is being used, he would not disclose to the council unless they met behind closed doors, away from the public’s view.
“Given the sensitivity of how that money is going to be used, it’s something that I would not like to reveal in public,” Dahilig said.
Council Chair Jay Furfaro had additional concerns on how the department handled a decision to change the manner in which it is using the $30,000. He said there are only two opportunities for a county agency to change the intent of funds approved for capital improvement projects. One opportunity is during the budget review sessions, which extend for about six weeks in April and May. The other is to come before the council with a money bill.
“Those are the rules, and we control the purse strings,” said Furfaro, adding that it would have made a lot more sense for Dahilig to have a discussion with the council before changing the purpose of the money in the budget.
Since the council passed Ordinance 904, the department grandfathered TVRs that were operating in agricultural lands.
“I don’t think I’m revealing any top-secret information, but we have 91 of these TVRs that have failed to comply with renewals, and continue operations,” said Furfaro, asking Dahilig if the owners have been cited. “Is that a concern, yes or no?”
Dahilig said the bulk of the TVRs are being processed, and about a third of them has been issued a notice of compliance.
TVR owners who are not in compliance are first given a notice to comply, and if no action is taken to correct the situation, the department can make a determination to seek an order to show cause before the Kaua‘i Planning Commission, which to trigger a contested case to revoke the permit, according to Dahilig.
A revocation could potentially be appealable in the 5th Circuit Court, which is a similar situation happening with the revocation of permits for Coco Palms in Wailua Beach, he said.
On Feb. 19, blogger Joan Conrow started a series called “Abuse Chronicles” at www.kauaieclectic.blogspot.com, in which she exposes several irregularities — backed up by public documents — with TVRs outside VDAs and heavily criticizes how the department has been handling enforcement.
Rapozo said he read the blogs after it was brought up to his attention.
“I think we need to do something, because it really doesn’t make this county look good,” he said.
To him, the county decided not to enforce TVRs, he said, and needs to change this picture and quickly.
“My question is, are we moving forward … to actively and aggressively go after these violators?” Rapozo said.
Dahilig’s answer was yes.
Council members discussed on whether to go into executive session to discuss enforcement details.
Deputy County Attorney Ian Jung said he doesn’t think that specific policies and operational tactics of investigation is something the council wants to reveal in public. Jung said there is a due process in place. The county may have authority to fine, but the owners also have authority to appeal.
County Attorney Al Castillo said nothing was being done in secrecy. The “very questions” that all council members were asking would easily be answered in executive session, Castillo said.
By a 4-2 vote, the council voted to go behind closed doors. Rapozo and Hooser cast the dissenting votes. Councilman Tim Bynum was absent at the meeting Wednesday. After emerging from executive session Furfaro said the issue will be back on the agenda, probably at the end of March.