Walter Lewis The Kaua‘i General Plan adopted in 2000 included a guideline to limit growth in Transient Accommodation Units on the island to about 1.5 percent annually. This guideline was essentially ignored by our Planning Commission which in the years
Walter Lewis
The Kaua‘i General Plan adopted in 2000 included a guideline to limit growth in Transient Accommodation Units on the island to about 1.5 percent annually. This guideline was essentially ignored by our Planning Commission which in the years 2000 to 2008 gave preliminary approvals such as zoning to 16 owners for developments to contain 4,650 TAUs. This quantity alone disregarding any TAUs intended by other parties when added to the present 9,200 TAUs would vastly exceed the intended growth rate for tourist facilities for many years.
Concerned about this Planning Commission largesse a citizens group sponsored a charter amendment which was adopted in 2008 by a nearly 2 to 1 margin. This amendment transferred the approvals for TAUs from the appointed Planning Commission to the elected Kaua‘i County Council but included a provision to allow the council to return the approval of TAUs to the commission upon adopting an ordinance limiting TAU annual growth to 1.5 percent on a multi-year average.
Last year one or more of the council members concluded that the council should not have to face the political heat involved in approving new TAUs and eliminating the need for these approvals from its agendas would be a good idea. So after the 2010 elections a lame duck member introduced a proposed ordinance to relieve the council from the TAU approval process. In substance, the bill proposed to exempt the 4,650 units that had some Commission approvals and then limit other new TAUs to 1.5 percent per year.
In the consideration of the bill the council and its counsel had three principal issues:
— Should the legality of the charter amendment be challenged?
— How should the position of the owners of the units which had received preliminary approval form the Planning Commission be handled?
— Will the bill as formulated comply with the provisions of the charter amendment?
All three of these issues were considered behind closed doors in secret executive sessions. No public information is available about these discussions.
It may, however, be useful to offer some surmises as to the probable nature of the discussions held. If the amendment were to be challenged and held illegal it would eliminate the problem it presented and the unrestricted power of the commission would be restored. But attacking a charter provision strongly favored by a substantial majority of the county’s citizens would be unpopular and could lead to other actions that would cause problems for the council. The key issue to be resolved was the matter of the approvals given by the commission which conferred, under existing legal precedents, certain rights on the owners of the projects, particularly those who had invested significant sums in the project involved. The decision made, to exempt these units from the terms of the Bill and to allow them, in effect, to be built on demand was an extreme choice.
The alternative choice of requiring such deferral of construction as would permit compliance with the 1.5 percent growth rate would very likely have been defensible. However, the council must have viewed the 16 owners with trepidation as they included some of the major developers on the island and had considerable political clout. They also offered a formidable legal threat apart from any merit in the contentions as they would have a major stake in protecting their project and substantial means to pursue legal remedies. So the council took the discrete (or cowardly route depending on your point of view) and chose to sidestep any controversy with these owners. That left the critical question whether giving the potential TAUs of these owners an exemption complied with the requirement of the amendment. Assuming that our economy will have some recovery from its current real estate depression, it seems virtually assured that more TAUs will be built during, say, the next twenty years than allowable under the 1.5 percent formula. (We now have 9,200 TAUs and even if only the 4,650 units presently authorized are built that will be a more than 50 percent increase over a period when only about 33 percent would be permissible).
So a very real issue arises — was the council advised that Bill 2410 would be in compliance with the requirements of the charter? The writer wrote to the council chair and requested that if the council received advice as to compliance of the bill with the charter that such advice be publicly disclosed. Legal advice is privileged, but the client (the council) can always waive the privilege. As I had assumed, the response I received of which I was well aware was that the advice was privileged. So I persisted and requested that the council waive the privilege and was informed that the council did not know how to waive part of the advice received. Nonsense! Although redacted legal opinions have been released many times, it seemed apparent that the council wanted to continue to shroud what they had been told in secrecy.
The basic purpose of the state Sunshine Law is to open up governmental processes — the formulations of laws and policies — to public review. As long as our government chooses to operate behind closed doors and hide the reasons for its actions we cannot expect to get responsible action from our council and our administration. And isn’t it troublesome when our council’s action arise not from faithful performance of its duties but rather from a cynical determination that individually our citizens cannot financially justify challenging litigation?
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
