In my last article I discussed Resolution 2013 — 55 relating to the use of Charter Section 3.17 by the Council to investigate matters regarding the handling of Transient Vacation Rentals (TVRs) by the Planning Department. A further look into
In my last article I discussed Resolution 2013 — 55 relating to the use of Charter Section 3.17 by the Council to investigate matters regarding the handling of Transient Vacation Rentals (TVRs) by the Planning Department. A further look into the background of these matters may well be in order.
When time share projects began to be sought on our island, the Kauai Council chose to enact an Ordinance defining a Visitor Destination Area (VDA) on Kauai within which tourist accommodations would be permissible.
Although the VDA name clearly suggests that hotels, time shares and transient vacation rentals would only be permitted in the designated area, a deputy county attorney issued an opinion that argued that since TVRs were not expressly required by the ordinance to be only in VDA locations, they must be allowed elsewhere.
So although the validity of the opinion might well be questioned, beginning in 2008 the County Council enacted a series of ordinances seeking to grandfather established TVRs and to control the remainder. Enforcement of the ordinances was entrusted to the Planning Department.
Thereafter on a number of occasions the Council received citizen reports that the ordinances were not being enforced in accordance with the terms of the ordinances.
Efforts by the Council to obtain information from the Planning Department about the instances reported were largely ineffective because of its conspicuous absence of cooperation.
The council was also experiencing difficulties in obtaining information from certain other administrative departments as to varying matters of concern to the council.
The Federal constitution established the three branches of government — executive, legislative and judicial to be separate and equal and this pattern has been generally followed in state and local governments, including Kauai.
To enable the legislative branch to obtain information necessary for its purposes it is uniformly given the power to require data and testimony from executive branch officials. On Kauai that power has been set forth in Section 3.17 of the Charter since 1969.
However, our Council has not chosen to apply the Charter given authority despite immense provocation.
Why? No satisfactory answer exists. It is difficult to escape the conclusion that the Council has been averse to be confrontational with the administration and has been willing to fail in its legislative missions rather than mandate compliance to its information gathering requests.
The issues surrounding TVRs on Kauai are numerous and complex. The non-enforcement by the Planning Department with the TVR ordinances in the 27 instances cited in Resolution 2013 – 55 are evident. And those cases are all located in Hanalei. The non-enforcement County wide could be much greater.
Available information indicates a dysfunctional Planning Department. Council members Mel Rapozo and Gary Hooser should be commended for recognizing that such an agency is unlikely to be self remedying and initiating the resolution to allow an independent look at the actual conditions.
The debate at the June 12 Council meeting on the resolution was extended and vigorous. At its end the Council kicked the can down the road, a defensible but dilatory step, and voted 4 to 3 to defer action on the resolution until Oct. 9.
I communicated with one of the Council members who voted to defer action.
He appropriately pointed out that the leadership of the Planning Department had changed and he urged the importance of relationships among County officials, but acknowledged that the Council expected appropriate response to its inquiries by the end of the deferral.
With an extended history of less than good faith responses by administration officials to Council inquiries, the failure to employ the investigative power of Section 3.17 is increasingly questionable.
“Speak softly but carry a big stick” is a sensible policy, but when after an unbroken sequence of inadequate responses over a range of subjects and a substantial time, the stick is not employed the value of its threat is diminished.
It is in the public interest that the Council and our citizens learn about the status of TVR compliance over the entire County and the capability and intent of the Planning Department to rectify it and whether new laws may be needed.
In my view, it would have been the wiser course if the Council had adopted the resolution at its June meeting, giving the Planning Department some time to make full disclosure of the position and to organize its program to obtain compliance with the ordinance requirements.
However, unless the Planning Department before the October extension date it sought makes a voluntary comprehensive factual disclosure of the nature a Section 3.17 investigation would have given and presents a solid program for future general compliance countywide for TVR usage, the Council would be derelict if it failed to initiate the Section 3.17 provisions.
Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
