In the years leading up to 2008 with a strong economy prevailing the development of Kaua‘i properties for tourist accommodations was very active. Construction of new facilities was occurring at a rate several times that envisaged by the 2000 Kaua‘i
In the years leading up to 2008 with a strong economy prevailing the development of Kaua‘i properties for tourist accommodations was very active. Construction of new facilities was occurring at a rate several times that envisaged by the 2000 Kaua‘i General Plan. In this period the Planning Commission had jurisdiction over the building approvals required and it failed to exercise meaningful controls as to the quantity of units being planned. Several citizen groups, including the 1,000 Friends of Kaua‘i, became concerned about the rate at which the urbanization of our island was proceeding and the absence of effective steps being taken to monitor this expansion.
After seeking unsuccessfully to interest the Kaua‘i County Council members in their concerns, the citizens fashioned a measure which was submitted to the voters of Kaua‘i as a charter amendment and adopted in the November 2008 general election by a nearly two-to-one margin. The amendment recognized that the appointed Planning Commission was not providing effective restraints on the building of accommodations for transients. Therefore, it vested in the elected council this authority with the requrement that permits be granted only after a public hearing and upon a finding that the development would be consistent with the planning growth range in the General Plan. The amendment also empowered the council to transfer back to the Planning Commission the processing of such permits if the council adopted an ordinance limiting the annual rate of increase in transient accommodation units to no more than 1.5 percent. The measure essentially was a choice between those who wanted unrestricted development and those who sought responsible controls on Kaua‘i’s growth. The voters predominantly gave the message they favored restrictions on transient development.
At about the time the amendment was adopted, the market for real estate faltered sharply and in the two years since then there have been no constructions under the governance of the amendment. However, evidently sensing that improved times may be in the offing at the last session of the council before the seating of the new members a Bill 2386 was introduced purporting to exercise the option given to the council to grant back to the Planning Commission and specifying the procedures to be observed by the commission.
Given the strong mandate of the voters in adopting the amendment to protect a continuance of the rural nature of our island. it would seem that the orientation of the bill should adhere strictly to the terms and meanings of the amendment limiting the extent of transient accommodation development. However, the tenor of the bill appears otherwise.
The subject matter of the bill is a complex one and the council’s treatment of the matter exposes a basic flaw in the methods of our legislative body.
In light of the history it would have been courteous and appropriate for county officials to check with the group sponsoring the amendment as to their view whether the bill met the requirements of the amendment. But this was not done and instead the council hastily referred the bill for consideration by the Planning Commission without giving attention to public testimony. The Council chair commented that the referral was “automatic.” But does it make sense to ask the commission to express views on a document that is likely to be changed?
Under the terms of the charter amendment which must be the prevailing law transient accommodation units are stated to consist of hotels, time shares and vacation rentals. However, the bill includes, in addition to those, dwellings in Visitor Destination Areas and certain lots. This is a vital difference because the 1 1/2 percent annual growth rate for new units is computed based on the number of units existing at the beginning of the year. It would appear that the bill would authorize new transient units at a rate substantially greater than that permissible under the amendment.
Similarly the bill purports to exclude from the limitations of the amendment subdivisions having “tentative” approval from the Planning Commission prior to the effective date of the amendment and to exempt “existing” resort projects. The propriety of these provisions which which seek to protect undisclosed developers and also affect the growth rate computation is doubtful.
The bill contains a number of other questionable terms. Included among them are:
The bill is unclear as to the retroactive approval to be allowed for new units given the absence of activity to date.
The lottery to determine allocation of the growth allowance among applicants and depending on the size of the project.
Many more potential deficiencies in the bill could be mentioned. Under the present procedures of the council, the first step is that comments must be received from the Planning Commission and then presumably a public hearing will be held. While hearing proceedings may be useful for many of the bills considered by the council, their utility as to Bill 2386 is dubious. A public hearing with its three minutes per speaker limit is not a reasonable way to consider the legal question whether the Bill fails to meet the requirements of the amendment. As it appears likely that a costly legal challenge would ensue if such conformance does not occur, a different and better means of dialogue is needed.
It remains to be seen if the council is willing to serve the expressed will of its citizens and recede from the pro-development philosophy that is apparent in the bill as it presently exists and to make the reasonable changes necessary so that the bill actually implements the concepts in the amendment that were overwhelmingly endorsed by our voters in the 2008 election.
