LIHUE — More than two hours into a passionate discussion, the Kauai County Council by a 4-3 vote deferred for 90 days a resolution to prompt an investigation into the handling of non-conforming use permits for transient vacation rentals operating
LIHUE — More than two hours into a passionate discussion, the Kauai County Council by a 4-3 vote deferred for 90 days a resolution to prompt an investigation into the handling of non-conforming use permits for transient vacation rentals operating outside visitor destination areas.
“No guts, no glory. Go after it, fix it, let us know. There will be no reconsiderations for any extensions,” Council Chair Jay Furfaro said to the county Planning Department on Wednesday.
Until Oct. 9, the department will give monthly updates on its progress of going after owners of TVRs who were grandfathered to operate outside VDAs under two county ordinances, despite apparently missing vital documents in their application and having alleged irregularities in building permits.
In 2008 and in 2010, the council passed two ordinances allowing owners of TVRs operating in residential and agricultural areas to apply for a non-conforming use permit, provided they met certain and strict criteria. A third ordinance gave the Planning Department enforcement power, including the ability to levy fines.
These ordinances were intended to stop proliferation of TVRs outside VDAs, a trend that creates mini-resort areas within residential neighborhoods and near bona-fide farm operations, driving real estate prices up and reducing affordable rentals.
No grandfathering is allowed for TVRs outside VDAs that started operating after March 2008.
Resolution 2013-55 originally set up a special committee with council members Mel Rapozo, Gary Hooser and Councilman Tim Bynum, but an amendment expanded the committee to include all seven council members.
The committee was supposed to investigate and make findings regarding compliance with county ordinances and state laws in the processing of applications for TVR permits for several properties.
But a council majority voted Wednesday to give the Planning Department three months to come up with a criminal prosecution of at least one case.
To Hooser, Rapozo and Bynum, the department had one too many chances to curb illegal TVRs, and the council should have gone forward with the investigative committee.
Hooser said the department came to the council with a “nice PowerPoint presentation” June 5, but there is still no explanation on why there were so many pieces missing in every application.
“We will never know the answers to these questions unless we do an investigation,” he said. “We will never know why these files are empty or full of misinformation.”
Bynum agreed.
“I implore my colleagues to make this a 7-0 vote,” he said when the motion on the table was to approve the resolution.
Other council members said they would support a motion to defer, which by council rules supersedes other motions.
“I beg you, please reconsider,” Rapozo said to his colleagues, adding that the department’s 90-day plan would not investigate the past, it would only address future actions.
Councilman Ross Kagawa said it was his toughest decision since joining the council last December. He said he felt forming an investigative committee may not be the best way to address the problem, and his gut told him it would delay a solution. He said he wanted to give the department 90 days to show it was doing something.
Council Vice Chair Nadine Nakamura said Furfaro laid out an “outline of deliverables” to the department, and she felt there has been progress and actions made by the administration.
Councilwoman JoAnn Yukimura said she wanted to acknowledge Rapozo and Hooser for introducing the resolution, because it clearly provoked the administration to take action. The administration’s responses to Rapozo’s repeated requests for action over the years, she said, was “really unacceptable.”
“Hopefully the administration knows how counterproductive that kind of response, or lack of response, is,” Yukimura said.
She supported the deferral and said she hoped the council would see “very clear and positive action” regarding TVR enforcement by the administration in the next three months.
Just prior to the roll call on the deferral, Furfaro, who gave the final vote that tipped the decision, said this was an “extremely serious” issue and he was struggling with his vote.
He said he was concerned with Hooser’s comments on the missing files, but he said he thinks it will all come out as the TVRs are being reviewed — by the department.
Furfaro’s last message to the department hinted at a possibility of heads rolling.
“I want you to know, if we don’t get to the right place by Oct. 9, I’m going to ask myself the question, ‘Would we miss a few of you if you were gone?’” he said.
FBI, lies and congratulations
There could be some additional actions if Rapozo follows through with his statements.
“I will be sending a formal request to the FBI,” he said.
Rapozo said he has worked through the protocol and has submitted several requests for records to the department, only to be ignored.
“I’m at the end of my road, there is no more options for me, it was this resolution or the FBI,” he said. “The FBI is not too concerned about politics or due process, they will investigate.”
The issue also brought up a passionate side of Hooser. He said there have been a number of allegations of “egregious abuse” that have been made public, and the administration has not refuted them — despite the council giving them opportunities to do so.
“It’s critical that we take steps necessary to instill some faith and confidence in the process,” he said.
As the meeting progressed, Furfaro said he thought giving the department 90 days was the “right approach.”
“What I’m really afraid of, if we launch this investigation, the records are frozen, and we are so close to actually revoking a few (TVR permits), and I’m going to push for prosecution on those,” Furfaro said.
Rapozo disagreed.
“This is my forte, and I did white-collar crime for many years in the Kauai Police Department; the records don’t get frozen,” he said. “I don’t know where that is coming up.”
It came from County Attorney Al Castillo, though he said he couldn’t point it to any rule of law. His concern, he said, was that after hearing the discussion last week, there is a possibility of criminal action that could result in misdemeanor convictions.
This would prompt a due process that may involve costly court and private attorney fees, Castillo said. And the evidence — the records — would have to be preserved, he said.
Minutes later, when Bynum asked if the department’s records would have to be sealed if the council launched an investigation, Castillo said, “No.”
Furfaro then immediately said, “Let’s move on,” and gave the floor to Hooser, who in turn said he was “pretty much flabbergasted” with the conversation.
Rapozo said his prediction was that in six months, the council will receive a recommendation to amend the law to allow more TVRs.
• Léo Azambuja, staff writer, can be reached at 245-0452 or lazambuja@thegardenisland.com
