Musings: Abuse Chronicles 17

There's a certain sense of entitlement expressed by many vacation rental wannabes — an attitude that is fed by the attorneys who serve them. Which leads us to Pulelehua, a story that again underscores how lawyers who previously worked for Kauai County have inordinate influence on the TVR approval process.

In this case, it's Lorna Nishimitsu, who successfully appealed — stretching the truth and threatening “a taking” in the process — when the planning department quite properly denied her client's application for a TVR certificate.

Her client was William Morgan, a Realtor from Del Mar., Calif., who developed two other TVRs in the same Wainiha neighborhood — Hale Hina and Banana Beach, previously detailed in Abuse Chronicles 10 and 12, respectively. In June 2004, Morgan and three others bought the property they later named Pulelehua for $1.47 million. He then proceeded to flip it several times through a series of tax-free property exchanges involving numerous tenants in common, the same timeshare-type investment strategy he employed with the other two properties.

When Morgan initially bought the Pulelehua property, the structures were not fully legit. In 1997, the county's engineering department had issued a violation notice for illegal ground floor alterations and additions to the main house and guest house. The files also state “elevation certificate has not been submitted to date.”

Photos published on the 2004 real estate listing document the continued existence of those violations. This picture of the illegally enclosed ground floor bedroom actually bore the caption “downstairs storage:”

Another photo shows the guest cottage's illegal full kitchen with stove:

In October 2004, Morgan, through his agent, Matt Hunter, sought a $71,000 building permit ostensibly to remove the illegal downstairs enclosures and replace them with “breakaway walls.” The previous month, prior to any alterations being done, architect Ron Agor had helpfully provided an elevation certificate for “finished construction.” The work got its final approval in July 2005.

On Sept. 30, 2008, Morgan applied for a TVR certificate, claiming the use started on April 1, 2006. Though the law required him to document TVR use prior to March 2008 through a rental reservations log, proof that general excise and transient accommodation taxes had been paid, and a sworn affidavit, his application included none of this. Instead, he submitted only copies of a GE and TAT license for an unnamed business that was started April 1, 2005.

On April 24, 2009, planning inspector Bambi Emayo sent Morgan a letter informing him of several violations, including a full kitchen within the guest house, constructing the kitchen without proper permits and use of the guesthouse as an additional dwelling unit. Morgan was ordered to immediately cease and desist all vacation rental activities and use of the guest house as a dwelling unit. He was directed to remove cabinets, cooking appliances and the electrical and gas supplies to cooking appliances. He was also directed to submit an “acceptable plan for compliance.”

On May 7, Lorna Nishimitsu sent a letter to the planning department on Morgan's behalf in which she submits a “plan for compliance” that is essentially a denial that anything is wrong. In one section she claims (emphasis added):

Having expended approximately $100,000 to bring the guest house into compliance with the Planning Department's directions so that the registration of the single-family dwelling as a transient vacation rental could proceed, our client would not have placed the coffee maker and microwave oven within the guest house structure such that it would result in denial of the nonconforming use certificate for the dwelling (i.e., the main house.)

Curiously, the building permit on record for the guest house renovations was valued at just $28,000.

Lorna also argued that only the main house needed to be in compliance to get a TVR certificate, not the entire property. Under this reasoning, you could be running an auto wrecking yard in a residential zone, but never mind, so long as the house itself is in compliance.

On May 12, Lorna submitted a formal appeal to the planning department. In it, she makes at least two spurious claims. One is that Morgan had shown “by a preponderance of the evidence” that the house was being used as a TVR prior to March 2008, and he had “satisfied all the requirements” of the TVR ordinance. In fact, as I noted earlier, his application was missing nearly all of the requirement documentation.

Another is that Morgan had been unable to bring the cottage into compliance because it was being occupied under a rental agreement issued by the previous owner — an agreement that he could not terminate until its term expired on March 1, 2008. In fact, the house was being rented under a month-to-month agreement, one that had begun in March 2006, under Morgan's ownership. He ultimately gave the tenant a vacate notice effective March 1, 2008, even though the woman was just about to give birth and had nowhere else to go.

Lorna then goes on to claim that denial of the TVR certificate “will result in a substantial decrease in the value of the subject property,” even though it wasn't a TVR when Morgan bought it. As a result, Lorna claims, the “denial represents a taking without just compensation” in violation of the state and U.S. constitutions.

That's right. Not being given something you wanted, but never actually had — and never even proved you were qualified to receive — amounts to “a taking” in Lorna's world.

Worse, the planning department caved and went along. In a June 26, 2009 letter, former planning director Ian Costa advised Lorna his office had reviewed her appeal and decided that Morgan's application “will now be recommended for approval before the Planning Commission.”

The planning commission affixed its rubber stamp on July 14, 2009, with the staff-recommended caveat that the TVR certificate “is not evidence of compliance with any and all pertinent zoning and use regulations.”

So Morgan got his TVR certificate. 

And though multi-family rentals are illegal on the North Shore, Lorna continues to submit the renewal applications as if the owner is also entitled to rent out the cottage that she previously claimed was not part of the original application:

“The SFR is rented either independently of the guest house or with the guest house. The guest house is not a stand along rental.”

The internet ads, meanwhile, tell the real story, that this is an illegal multi-family rental:

We had two families for a total of 10 people and we had plenty of room in the kitchen and living area. We also used the "tree house" which was nice as well. The tree house is detached from the main house and you can feel a little disconnected from the main house.

Internet ads also tell of visitors using the “tree tunnel” — a dedicated beach access that Morgan has heavily landscaped to discourage public use — to reach “Banana Beach” so they can swim, body surf, boogie board and snorkel in waters that are extremely dangerous and lacking any lifeguard:

We were so excited to "discover" the "tunnel" leading to the almost private beach where we spent almost all of our time. 

A beach that many residents no longer want to use, because it's now filled with the visitors from the three mini-resorts that Morgan developed and all the other TVRs along that stretch of sand.

Oh, and btw, do those look like "break -away" walls on the "downstairs storage" to you?

Musings: Abuse Backstory 1

It occurred to me, while reading the article “TVR probe stalls” in today's edition of The Garden Island, that we need another series to run concurrently with the Abuse Chronicles. This new series will include the backstory that helps people understand how and why this vacation rental mess came to be.

Let's start with County Attorney Al Castillo. As TGI reports, Al raised concerns about costs, legalities and jurisdiction in his attempt to derail the Council's proposed investigation into the abysmal failure of the 2010 TVR law. 

So where was Al when the Council passed the 2010 TVR law? You know, Ordinance 904 — the law that cemented all the problems created by the 2008 TVR law, dug the county's legal hole that much deeper?

Al didn't pinpoint the failings in 904 because he was too busy lobbying for it. Remember when the bill was up for a vote, in July 2010, and former Councilman Dickie Chang was on the fence? And Al and Deputy County Attorneys Ian Jung and Mike Dahilig (who is now the planning director)  visited Dickie at home and plied him with beer to secure his vote on the TVR bill? Yeah, that's the kind of lobbying I'm talking about.

Maybe "beer gate" wasn't technically illegal, but it sure seems unethical – especially since the County Attorney's office is supposed to represent the Council, the Administration and the county as a whole, which presumably includes the poor taxpayers who are footing the bill for all these missteps.

And it certainly raises the ethical and practical question of whether Al, after actively pushing the bill, should now be advising the Council on how to deal with it's utter failture. A failure has been documented in 16 Abuse Chronicles that cover 24 separate TVR certificates, and that's barely scratching the surface.

Al and his office are so badly conflicted on this issue that ethically, he should have recused himself at the last Council meeting and suggested they hire special counsel. Instead, with Council Chair Jay Furfaro's complicity, he bought a 30-day delay — time that he and Mayor Bernard Carvalho (who hired him, let's not forget) can use to head off any investigation into these wrong doings.

You know, the same way a proposed Council investigation into Public Works was sidelined – an investigation that might have prevented some of the Building and Engineering transgressions uncovered by the Abuse Chronicles. Things like allowing tiny houses to be remodeled into mini-resorts without meeting flood or septic requirements.

If Bernard, Al, Ian and Mike had actually checked into how the planning department was implementing the 2008 law, they would have found that it was in total shambles. Instead, they pushed the Council to amend the law in 2010, which compounded the problems from 2008 while eliminating inspections, proof of tax payments, proof of prior TVR use and all the other teeth.

With the passage of Ordinance 904 in 2010, they threw open the door to pretty much anybody who could put a pencil on paper. And for those who couldn't, well, remember how Bruce Fehring admitted to the Planning Commission that planner Mike Laureta had actually written his TVR application for him?

Al also claimed the mere presence of HGEA union rep Gerald Ako at the Council meeting “raised a red flag” that should be heeded. If Al had been paying attention he would have known that Ako actually raised a red herring. Ako later admitted to the Council that no matter who did investigation, employees would still have union representation and all the protection it entails.

The red flag I saw was Ako arguing for the Administration, rather than the Council, to conduct the investigation. He obviously knows, like the rest of us, that if it's left to the Administration, absolutely nothing will happen.

Finally, I've got to say something about Council Chair Jay Furfaro. I'm talking about his feigned shock and indignation that the Council resolution hadn't been sent to the County Attorney's office for review. 

Curious how Jay, a supposed stickler for process, has never implemented a procedure for what goes to the County Attorney's office for review, and when.  That's right. It's totally ad hoc, hit and miss, whatevahs. Seems awfully inefficient. But oh so convenient when you want to stall something while pretending that you're moving it along.

Musings: Yellow Light

The sun rises in an explosion of pink and gold and already bees are working the beach heliotrope blossoms. Turtle tracks on the wet sand speak to an overnight visitor, who rose even earlier than I. The sea invites me to swim in her salty shimmer and I accept, gratefully. It's the best time of year, when the days start early and everything is fresh and green and bursting with new life.

In the midst of all this busting out all over, the EPA approved Dow's new systemic insecticide, sulfoxaflor, which it acknowledges is highly toxic to honey bees. Seems the feds aren't concerned because they don't anticipate any “catastrophic effects” on bees. Just the usual slow simmer in the increasingly toxic soup. Besides, “industry” is clamoring for a “new and improved” pesticide because – surprise! – the bugs are becoming increasingly resistant to the stuff already used to kill them, including the neonicotinoids linked to hive collapse. Oh, but no worries, this new chemical is “softer” than the ones it's replacing. It's “beneficial.” You know, better living through chemistry.

So how long do you suppose we can keep upping the poison ante? I mean, before everything folds?

It seems Europeans are far more worried about this than Americans, who are dulled and dazed by GMO high fructose corn syrup, bad TV and a quest for the almighty dollar. As The Washington Post reports, America's devotion to pesticides and GMO crops may jam up EU trade talks:

U.S. crops inspire fear among everyone from French wine producers to German corn growers. Many European farmers say that plants that are carefully engineered to do everything from boosting production to repelling pests have uncertain environmental consequences and, once growing, spread uncontrollably via pollen that can float for miles on the wind.

In the United States last year, genetically modified crops comprised 88 percent of all corn, 94 percent of cotton and 93 percent of soybeans, according to Agriculture Department figures. In the European Union, they covered less than 1 percent of farmland, mostly in Spain, according to the European Commission.

Just two genetically modified crop types are approved for planting in the European Union, out of a far wider range of species used elsewhere. But one of the two, a BASF potato, is no longer marketed; the other, a Monsanto corn breed, is banned for growing in France, Germany and elsewhere, despite findings from both U.S. and E.U. food regulators that the produce is safe. [Many U.S.-grown products are banned from Europe.] One exception is the American-grown genetically modified soybean, which dominates the European animal feed market.

The difference in approaches, analysts say, is that U.S. regulators tend to rely on short-term scientific studies about safety to give new technologies a green light. European regulators tend to be far more cautious, focusing more on what they might not know than on what they do know.

But even the Europeans may not be spared the consequences of what Dr. Robert S. Lawrence, director of the Johns Hopkins' Center for a Livable Future, terms “a dramatic assault on the security of the food supply.” As NBC News reports:

“We’re in a situation where the food supply is more vulnerable than it has ever been,” added Lee Hannah, senior fellow at Conservation International, a global nonprofit that advocates for sustainable policies.

It seems that GMOs and pesticides are only part of the problem. There's also the growing impact from atmospheric carbon dioxide, which last week reached concentrations likely not experienced on Earth since the Pliocene era, some 4.5 million years ago. The warm, moist air is allowing pathogens to thrive at a time when global trade is expediting the movement of plant pests and diseases. Citrus, coffee, chocolate, wine, maple syrup and salmon are just some of the foods that are either likely to suffer, or already getting hit.

America's reliance on mono-cropping poses another grave risk, according to Hannah:

“For instance, corn plants in the American Midwest are grown closer together and taller than they have been in the past because we’re genetically engineering them to do that. That produces a lot more food. But it also makes that corn more vulnerable to disease, which, if it gets into that mono-culture system, can sweep through it much as a disease will go through a city a lot faster than it does a rural countryside."

Although the human race has faced famines of its own making in the past, this is a whole new ballgame, Lawrence says:

“So there are precedents but they’ve all been local and people just abandoned those areas and moved on. What’s very sobering about the situation today: This is global and there isn’t any other place to go on this spaceship Earth.”

And it's not just about the humans, either, but all the other life forms that inhabit this beautiful planet.

Speaking of which, you know how the Navy is always trying to convince us that its sonar is perfectly safe for marine mammals? So safe that it wants to use even more of it, year-round, in waters surrounding the Hawaiian Islands? Well, it's apparently not so benign as the Navy has claimed. As a new study published in Nature reports:

The Canary Islands used to be a hotspot for mass strandings [of whales and dolphins], but there have been no mass beachings since the Spanish government imposed a moratorium on naval exercises in these waters in 2004.

So couldn't we impose a similar ban here? 

I know the precautionary principle is often pooh-poohed as unscientific, and frequently bad for business, but how about if we, as humans, just exercise a little common sense? As the time-worn adage reminds us: Err on the side of caution.

Unless, of course, you don't care if it all turns to shit, so long as you're raking in a pile of cash along the way.

Musings: Heroes

Given the reactions, you would've thought the Kauai County Council had proposed The Inquisition rather than an investigation into just how, exactly, the vacation rental issue got so damn messed up.

I mean, nobody was gonna be burned at the stake or anything. Just a few subpoenas, some interviews, a little fact-finding, perhaps a wrist-slap, or in the best county tradition, an assignment to another job where your incompetence isn't quite so noticeable.

Absolutely no investigation is needed, but if one must be done, let the Administration do it, pleaded HGEA union rep Gerald Ako, who admitted he had not even read the resolution he was testifying against.

Aw, come on, give the Administration another chance, begged managing director Gary Heu. We'll get it right this time. After all, the mayor has formed an “oversight committee at an executive level...to get our arms around this issue.”

When was it formed? Oh, about two weeks ago.

“We should really pull back and take a much broader look at the issue,” Heu advised.

You mean as in whether we want Mayor Bernard Carvalho to represent us for another four years, seeing as how all this ineptitude and inaction happened under his watch? Or just who, exactly, does benefit from blanket approvals of non-qualifying TVRs? Or how much this boondoggle has — and will — cost the taxpayers?

What the county really requires is a re-engineering study, “a big picture, long-term kind of thing,” Heu said. But the Administration knows nobody wants to wait around six months to a year for that. So instead, “a short term plan is being developed, such as taking some of these [years old] violations into enforcement.”

Be still, my heart.

The planning department has actually formed a four-person task force “to take a look at a few of these violations and a find a way to move them forward,” Heu said.

Can we expect in three months to see at least one case brought to a hearings officer, civil or criminal charges, fines? wondered Councilwoman JoAnn Yukimura, ever the optimist.

“We would like to move as soon as possible,” Heu hedged, following the county maxim of never let yourself be pinned down.

By the afternoon, that “few” had somehow mushroomed into 30 cases that Planning is investigating or enforcing against, or maybe looked at the files or something. It wasn't totally clear, but the number sounded big. Or at least, bigger than “a few,” and hopefully big enough to head off a Council investigation at the pass.

More obfuscation was provided by County Attorney Al Castillo, who was flanked in this most serious matter by deputy county attorneys Maunakea Trask and Ian Jung. The three of them offered a lot of mumbo jumbo about adjudication, due process for TVR owners, county rights, 20 contested cases, Council overstepping its bounds, duplicate investigations. It all boiled down to the same message: butt out and let the Administration handle it.

“I would've liked to be able to review the resolution first for its legality,” Castillo sniffed. No one sent it to his office with that specific request, though surely he knew about it, since it was publicly noticed a week ago, and he could have shown some initiative in checking it out.

But then, initiative is apparently not  a county value, or we wouldn't have a planning department that waits until it receives a formal complaint before investigating, even when it has been made publicly aware of zoning violations.

“Can we get an attorney who can help us?” asked Councilman Mel Rapozo in frustration.

One thing the Council and Administration did agree upon, aside from wanting to “get to the same place” — a destination that was not precisely defined, and appears to have several routes, depending on who is steering and how much they wish to keep hidden— was the county's tremendous liability exposure. Then there's its unspoken counterpart: how much that exposure might increase if the county's dirty laundry is hung out on the line.

Caren Diamond, a longtime beach advocate and member of Protect Our Neighbor Ohana, discussed the dangers of allowing visitors to keep sleeping in ground floor units within the flood zone.

“Every morning that visitors wake up in these units exposes the county to liability, especially  that morning when a tsunami comes,” she said. 

After her testimony, Councilman Ross Kagawa praised her contribution to the investigation and evidence laid out in the 16-and-counting “Abuse Chronicles” series on this blog: “You and Joan and Barbara Robeson [Caren's fellow PONO member] are heroes.”

“You are only heroes if the Council takes action to rectify,” said Councilman Gary Hooser, who with Rapozo introduced the resolution to investigate.

About seven hours later, the Council voted to defer the issue for a month.

Oh.

Well, as David Bowie would sing: “We can be heroes, just for one day.”

And maybe in a month or so the Council can be, too.

Musings: Way of the World

Out in the garden at daybreak, dogs sniffing, birds singing, hands deep in soil quenched by rain, the sky a study in contrasts: charcoal black over the mountains, pale gold in the east; a co-existence of light and dark. But then, isn't that the way of the world?

Tomorrow the County Council will consider a resolution to investigate the TVR ordinance, specifically as it pertains to the 16 properties covered in the Abuse Chronicles. Please, folks, send emails supporting resolution 2013-55 to counciltestimony@kauai.gov.

I've also learned the Council is not planning to fund Prosecutor Justin Kollar's request for a deputy who would be assigned half-time to zoning enforcement. So is Justin supposed to cram zoning into an already crowded criminal caseload, or become a good county employee and just look the other way? Maybe he should blow off those petty drug and property offenses and focus solely on rich white people committing white collar crimes.

Heck, I know money is tight, but there seems to be a bottomless pit to fund requests for special counsel. Which will no doubt come in handy when the county gets sued, as it inevitably will, over those illegal TVRs.

If you've had any doubt the U.S. government is doing the bidding of the biotech seed industry, a new reportt by Food and Water Watch will lay it to rest. The organization reviewed 926 diplomatic cables between the State Department and embassies in more than 100 countries and found the agency essentially acting as a shill for the biotech firms.

For instance, the State Department produced pamphlets in Slovenia promoting biotech crops, sent pro-biotech DVDs to high schools in Hong Kong and helped bring foreign officials and media from 17 countries to the United States to promote biotech agriculture. Embassies were also directed to "troubleshoot problematic legislation" that might hinder biotech crop development and to "encourage the development and commercialization of ag-biotech products.”

The cables covered the period 2005-09 and were released by Wikileaks. So why is the U.S. so hot to use your tax dollars help these international chemical corporations? As Food and Water Watch surmises:

Although the U.S. commodity crop market is nearly saturated with biotech seeds, most of the world remains biotech-free. Even 17 years after biotech crops were first introduced in the United States in 1996, only five countries cultivated 89.4 percent of biotech crops in 2012 (the United States, Brazil, Argentina, Canada and India). The seed companies need the power of the U.S. State Department to force more countries, more farmers and more consumers to accept, cultivate and eat their products.

Meanwhile, do-it-yourself types with 3-D printers are already reproducing handguns at home, and even improving on the original model, despite an order from the State Department to remove online blueprints for the 3D-printable “Liberator” handgun that Defense Distributed posted last week. As with anything released on the Internet, or into the environment, there's no recalling it once it's dispersed.

Yet despite all the insanity, life goes on. Because isn't that the way of the world?

Musings: Tone Deaf

The underbelly of Kauai is again getting national exposure, this time in a New York Times Magazine thumbsucker about the monk seal killings. The article makes this point: the NMFS proposal to relocate seals here from the Northwestern Hawaiian Islands was culturally and politically tone-deaf, and incited animosity toward the endangered animals.

The piece included an embarrassingly tone-deaf interview with Mayor Bernard Carvalho, who expressed bewilderment about the Justice Department's crackdown over the Newell's shearwaters. Bernard still refuses to acknowledge that the feds and state repeatedly warned the county to correct its light-attraction problem, as I detailed in the Honolulu Weekly:

[DOFAW Director Scott] Fretz confirmed that the state “had been interacting with and discussing solutions with the county for years. We told them what was going on, what would help.”

But Bernard, who was director of parks and rec at the time, just stonewalled and foot-dragged — you know, the same way he's responding to the transient vacation rental problem that has mushroomed under his watch.

What really staggered me, though, was this tone-deaf quote:

As Holly Doremus, an environmental legal scholar at the University of California, Berkeley, writes, America has saved so much without ever asking “how much wild nature society needs, and how much society can accept.”

Like wild nature is something “saved” for our recreation, exploration and missionary work, rather than dwindling remnants of intact, healthy ecosystems, which we all depend upon for life.

Meanwhile, scientists are slowly turning their attention to the equally misunderstood ecosystem within us. They've learned the lowly bacteria that we're usually trying to kill are a significant factor in our health and well-being, and likely play a role in such diseases as obesity, autism, depression, asthma and even cancer. It seems the overuse of antibiotics and a rise in Caesarian deliveries and bottle-feeding (not to mention all that crappy, pesticide-contaminated food that folks consume) are contributing to imbalances in gut flora.

Which leads to an interesting research paper on glyphosate, the primary ingredient in Roundup, which is so heavily used these days, especially on dietary staples like corn, soy, wheat and sugar:

We have found clear evidence that glyphosate disrupts gut bacteria and suppresses the CYP [cytochrome P450] enzyme class. CYP enzymes play crucial roles in biology, one of which is to detoxify xenobiotics [drugs, pesticides, carcinogens]. Evidence of disruption of gut bacteria by glyphosate is available for both cattle and poultry.

The authors suggest that this CYP enzyme disruption could be playing a significant role in human disease, and also contributing to the widespread collapse of bees by reducing their innate ability to resist pesticides.

The paper goes on to report that Americans use a whopping 100 million pounds of Roundup annually — up from 85-90 million pounds a decade ago. Much of that increase can be attributed to the popularity of Roundup Ready crops, and the herbicide's use as a preharvest desiccant on sugar cane, wheat, RR sugar beets, canola and cottonseed for oils, among others.

In response to a petition by Monsanto, the EPA just approved a new rule that increases the allowable levels of glyphosate residue in crops, especially animal feed. Though some researchers believe damage can occur with glyphosate residues below 0.1 ppm, the EPA is allowing residues of 10 ppm in sugar beets, 30 ppm in wheat and 40 ppm in oil sees (except canola, which is 20 ppm.) Allowable animal feed residues range from 100 to 400 ppm.

Not surprisingly, the intensive use of Roundup has led to the development of herbicide-resistant “super weeds,” prompting Dow and Monsanto to come up with genetically engineered corn, soybean and soybeans seeds that can resist much nastier herbicides, like 2,4-D (an ingredient in Agent Orange) and dicamba. The 2,4-D is of particular concern because it can volatilize in heat and migrate off-site. Dicamba, on the other hand, “is mobile in most soils and significant leaching is possible.”

But instead of its usual rubber-stamp, the USDA just announced it will conduct two separate Environmental Impact Statements on the proposed crops to better inform its decision-making regarding deregulation of these GE crops:

With regard to these new herbicide-resistant plants, through its analysis of information submitted by the developers, as well as public comments, APHIS [USDA's Animal and Plant Health Inspection Service] has determined that its regulatory decisions may significantly affect the quality of the human environment.

Ya think?

More than 400,000 people signed a petition opposing the 2,4-D crops. APHIS also plans to conduct hearings, though the agency hasn't yet said where. It sure would be nice to hold one on Kauai, so we can weigh in and find out whether Dow is experimenting with those seeds here. Because surely we have a right to know if unapproved plants are being cultivated on our island, seeing as how invasive species and environmental contamination are already serious problems.

In closing, I'll leave you with these tone-deaf corporate comments:

Monsanto called the USDA's decision "unexpected" [because they normally get whatever they want from the feds?] and said in a statement it would use the extra time to broaden development of the dicamba-resistant seeds.

Kenda Resler-Friend, a spokeswoman for Midland, Mich.-based Dow, said the USDA's new seeds are eagerly anticipated by farmers, who are having an increasingly hard time fighting weeds across the Corn Belt because of resistance to glyphosate. "Those weed problems are getting worse every single year," she said.

Indeed.

Musings: Still Clueless

So what do you do with a beautiful tropical island in the Northern Marianas chain, an island that has native forests, rare tree snails, endangered birds and fruit bats, an island that is the ancestral home of many Chamorro people?

Well, if you're the U.S. Navy, you bomb the hell out of it.

Or at least try: "The U.S. is rebalancing military forces in the Asia-Pacific region. In support of this, the U.S. military is proposing to increase joint military training capabilities by developing live-fire ranges and training areas on the islands of Tinian and Pagan."

The plans for Pagan — check out these photos of the place — are especially devastating: “The U.S. military intends to use the entire island with a full spectrum of weapons and joint training activities."

As Dr. Mike Hadfield, a UH biologist, observes in a Star-Advertiser commentary:

There are many reasons why Pagan Island should be preserved, but most of all we should ask: Why should more lands, especially unique islands, be bombed into oblivion? Is it not enough that much of Kahoolawe was turned into bare rock by military bombardment, and that great stretches of that island remain inaccessible because of the unexploded bombs and shells buried in the soil?

The military continues to devastate vast stretches of Pohakuloa Training Area on the Big Island and Schofield Ranges on Oahu by bombing, strafing and shelling. Why more?

Why indeed?

If you care enough to say "WTF are you thinking?" or "no way," the Navy is currently preparing a draft EIS. You can send comments through May 12 at this website, which has additional documents. Or click on the comment form. 

Musings: Clearly Not Over

The clouds were scrunched down on the eastern horizon, gray on top, smokey red-orange on the bottom, when the dogs and I went walking this morning, regaled by the throaty trills and joyous warbles of chubby shama thrush, who always wake before dawn with something scintillating to say.

Such was not the case the other day when former Prosecutor Shaylene Iseri-Carvalho appeared before the County Council to give another one of her “poor me” spiels about how she has been so horribly mistreated by County Attorney Al Castillo. This time Al reportedly refused, gasp, to approve funds for her to travel to Honolulu for Councilman Tim Bynum's deposition, or to fly back home to Kauai to listen to her former first deputy Jake Delaplane recite “I don't recall” for seven hours.

Shay had occasion to be there because that same “irrational” Al was asking the Council to approve, which it did, more dough for Shay's two attorneys, one of whom represents her personally, the other in her professional capacity. Seems they've already burned through $47K and need $25,000 more. So, yeah, Al probably should've approved the travel money, at least to attend Tim's depo, but it's kinda Shayme to go crying to the Council about a few hundred bucks when you've already cost the taxpayers so much dough.

And it ain't over yet.

Though it does appear to be for Principal Nathan Aiwohi, at least at Kapaa Middle School, which now has a new interim principal. Despite Aiwohi's removal, or perhaps because of it, he's slightly ahead — 322 to 279 — in the support vs remove petition drive. While some of his critics have suggested he would be better suited to a career in law enforcement, it's unclear whether he's applied for one of the KPD dispatch vacancies.

It's also unclear why Green Energy's Eric Knutzen refused to answer questions for my current Honolulu Weekly piece on biofuels. Eric is the front man for the wood-chip-burning power plant now under construction near Koloa, as well as director of the Hoouluwehi Sustainable Living Program at KCC. Now, I may be old-fashioned, but it seems reasonable that he should answer a few questions about the project, considering the company got a $73 million federal loan guarantee, wants to lease Hawaiian Homelands in Anahola and plans to sell us electricity at an undisclosed price.

Who knows, maybe Eric has something to hide. Or perhaps he resents the way I've been exposing the shibai shenanigans of this "green" project since 2007, when they first proposed growing highly invasive albezia on irrigated state land at Kalepa.

Speaking of shibai shenanigans, the TVR violations outlined in the 16-part-and-counting “Abuse Chronicles” comprise the basis for a County Council resolution authorizing a special 3.17 investigation. The resolution, scheduled for next Wednesday's Council agenda, calls for creating a three-member Council committee to investigate whether the county complied with its own, state and federal laws in processing TVR applications and building permits for properties outlined in the Chronicles.

The resolution, introduced by Councilmen Mel Rapozo and Gary Hooser, also authorizes the committee to investigate other TVRs and building permits, if warranted. The committee will have subpoena powers — yes! — and the ability to hire investigators and hold hearings. According to the resolution:

The Committee shall, where appropriate, make findings regarding any alleged misconduct related to the laws that the County of Kaua’i is charged with implementing. The Committee shall, at its conclusion, make appropriate findings and recommendations as warranted.

To quote one political observer: “Let the fireworks begin."

Musings: Political Wills and Ways

Political will was the catch phrase at yesterday's Kauai County Council meeting, with members asking why Mayor Bernard Carvalho's administration hasn't enforced the transient vacation rental law, as detailed in this blog's “Abuse Chronicles” series.

Council members made it clear they do have the political will, and will soon consider a resolution authorizing a special investigation “to find out how and why this could've happened,” said Councilman Gary Hooser.

Though special investigations are permitted by the County Charter, the Council has invoked that privilege only once, in a police matter, and it was resolved before the inquiry got under way. Council Chair Jay Furfaro said an investigation is “a pretty dramatic move” but may be warranted “because we have a mess on our hands.”

“I hope we set a precedent,” Councilman Mel Rapozo said. “We need to tell the mayor if you keep screwing up we will investigate your butt because I'm fed up with it already.”

“I would not support anything that would be characterized as an investigation,” said Planning Director Mike Dahilig, noting the problems were “more systemic” and he hadn't seen any indication of “malfeasance.”

Rapozo said it's time for “an independent party to take a look at the process and see what the heck is going on.”

The Council had asked Dahilig and Prosecutor Justin Kollar to attend yesterday's meeting to present a plan for cracking down on the island's numerous TVR violations. But the Council quickly became irritated when Dahilig said that enforcement was hindered by an inadequate data base, poorly trained inspectors and “un-understood relationships” with other county departments and the state Health Department.

Dahilig further irked the Council when he had to leave the meeting in mid-discussion to catch a flight for another event, prompting a two-week deferral of the matter.

“They [the Administration] need to understand it's a priority,” Furfaro said “There is an urgency here. We have rules. We have ordinances that I have worked on for 12 years. It's the law of the land. They need to get us to the point where the law is obeyed.”

Kollar said he's ready to go once the Council funds a deputy prosecutor position that will be assigned part-time to zoning enforcement. Still, he said, his office is part of a “multi-pronged enforcement effort” that will be ineffective "if one of those prongs isn't working right.”

Councilmembers were displeased with Dahilig's three-page enforcement handout, which essentially said the planning department will try to get its act together this year with the idea of cracking down on violations for the 2014 renewal cycle. The TVR law was passed in 2008, but the planning department failed to implement it properly, approving TVR applications that lacked the proper documentation and houses with zoning violations.

“A year ago we had the same discussion,” Rapozo said, with Dahilig promising then to go after violations in the next round of renewals. “Every year we get excuses.”

Councilman Tim Bynum said he felt “a lot let down” by the department's failure to make applicants “comply with even the most basic aspects of the law.”

Dahilig, who took the job in late 2010, said that as he dug into the matter he discovered “more systemic issues that I wasn't aware of. I'll be candid about the limitations from a human resources standpoint and infrastructure. The fundamentals aren't there.”

But Councilmembers seemed to feel that Dahilig, the mayor and TVR owners had been given adequate time to assess the problem and devise a clean up plan. Some of the violations were reported to the planning department back in 2008, but the owners were issued TVR certificates, anyway. FEMA also identified shortcomings in the law's implementation in August 2009, identifying TVRs that were operating with illegal ground floor units in the flood zone.

“The exposure to the county is huge,” Hooser said, questioning whether the county would have increased liability if someone were to be killed or injured in a unit that had violations the county knew about. County Attorney Al Castillo said he couldn't answer without doing “an analysis.”

Councilman Ross Kagawa said the TVRs profiled in the Abuse Chronicles “are restricting access to the beach and damaging the shoreline.” He asked Dahilig if he could use the posts as a starting point for enforcement. “It was almost like you were handed all this evidence. If we don't do anything, in time the community is going to get frustrated.”

Some Councilmembers suggested Dahilig and Kollar enforce first against the “low-hanging fruit” to send a message to other TVR owners that the county is getting serious about a crack down. Others said he should pursue one or two cases to get a handle on what it will take to work through the list.

“I”m not looking for enforcement on one or two,” Furfaro said. “Why not cast a net that goes after those 16 that are the most serious?”

Councilwoman Nadine Nakamura said she believes the TVR violations outlined in the Abuse Chronicles “are only the tip of the iceberg.”

Councilwoman JoAnn Yukimura said she'd heard Realtors are selling agricultural land under the false promise that owners can develop TVRs. She wondered whether the real estate organizations could do more to crack down on unethical members.

Former Prosecutor Shaylene Iseri-Carvalho also weighed in, saying her office had tried to enforce against TVRs in 2010, but the planning department refused to provide any of its investigative reports, which are public, anyway. The OPA had to file a motion to compel the department to turn over the files. 

Hooser asked Dahilig if the county had followed up on any of the abuses profiled in the blog series. Dahilig said he had looked into the first report, which found no record of building permits for the Wainiha River dock where a visitor drowned in February. Dahilig said he sent out inspectors, but “the work product was problematic.”

When asked what that meant, Dahilig said the inspectors “still require more training. We are going to be following through once we are able to ascertain the files we are referencing were correct.”

“So it's still operating?” Hooser asked.

“That I don't know,” Dahilig said. “We did issue a cease and desist order.”

The $2.589 million property is currently listed by Realtor Jane Abramo as “a very successful and fully permitted vacation rental. All showings subject to 48 hour notice if the home is occupied by vacation guests."

Musings: Abuse Chronicles 16

“Right in the sand” gush the ads for Holo Makani, a Wainiha vacation rental. But the selling point for Gary Fischer's TVR — now on the market for $5.75 million — comes at the price of the public beach, which has been heavily landscaped to protect a house built too close to the sea.

So close that waves were washing under the support columns during construction, as evidence by this debris line.

So close that residents of the neighborhood started asking, how can somebody build right on the sand? That question ultimately turned into a lawsuit, Diamond vs State of Hawaii, which ended in the landmark 2006 Hawaii Supreme Court affirmation: yes, the public beach extends to the highest seasonal wash of the waves.

But things were different in Rocky's day; or more specifically, 2002, when Sylvester Stallone  sold Fischer this oceanfront lot for $625,000:

Back then the state Department of Land and Natural Resources was still using vegetation to set the shoreline, and the county at the time required just a 40-foot setback. Though Fischer had ample room on his lot to set the house back, he chose to build as close as possible to the water.

It apparently proved too close for comfort, because Fischer quickly began planting naupaka in the setback. The planning commission allowed it, figuring a little greenery would soften the in-your-face house right on the beach. 

Except the naupaka kept getting washed out when the winter waves washed in, year after year: 

Undeterred, Fischer kept replanting, steadily creeping not only further makai, but also onto the then-empty lots on either side of his property. 

By 2009 he was adding heliotrope trees to the mix to help anchor the naupaka and create a thick vegetative seawall on the public beach in front of his house:

Fischer and his wife Samantha initially lived in the house. Then they moved to Princeville and turned the house into a vacation rental so it could get grandfathered in under the new law.

In his TVR application to the county, Fischer submitted an affidavit in which he swore he'd been using the house as a TVR since 2005, However, he and his wife had also claimed the homeowner's "permanent home use" property tax exemption in 2005 and 2006. 

Fischer, a Realtor, submitted proof of transient accommodation and general excise tax paid in January 2007. But it's unclear if the payments pertained to Holo Makani, because the tax licenses were issued in1996 and 1989, respectively, well before the house was built. None of the other required documentation was in the file. 

But on March 30, 2009, former deputy planning director Imai Aiu approved the TVR certificate anyway. By July 2009, when Fischer submitted his renewal application, Holo Makani was openly advertising on the web as also having a "downstairs studio" with bathroom, kitchenette and cable TV. 

FEMA, which was conducting its own audit of properties with flood zone violations, notified the county of the downstairs studio on Aug. 6, 2009. Such a use within the flood zone is clearly illegal. Nonetheless, the county granted Holo Makani's renewal on Aug. 24, 2009. A county inspection form states "subject property has no violations." It is initialed, but undated. 

On July 16, 2010, Fischer came in for a $56,200 building permit for a lower level addition. Curiously, the applicant was listed as Sylvester Stallone, who had sold the lot eight years earlier. On July 30, 2010, Fischer sent in his TVR renewal. No approval date was listed.

The county told Fischer to get a certified shoreline prior to issuing the building permit. On April 18, 2011, the state surveyor sent Fischer's engineer a letter advising that a wire fence, rat traps, sprinkler heads, tiki torch and recently planted vegetation were found makai of the shoreline — or in other words, plainly on the public beach. He was advised those issues had to be resolved before the state would certify the shoreline.

Finally, it seemed, Fischer would have to trim back his vegetation and get his other unauthorized junk off the beach.  But then the county planning department inexplicably waived the shoreline requirement. The beach encroachment remained.

On July 28, 2011, Fischer submitted his TVR renewal. On Oct. 12, 2011, planning director Mike Dahilig sent him a letter, telling him to immediately "cease and desist" all TVR operations. Fischer was warned his certificate would not be renewed until he had cleaned up his flood  and other zoning ordinance violations. It's unclear whether the permit was renewed that year.

On July 26, 2012, Fischer again submitted his annual TVR renewal. No record is shown of it being approved. But in the MLS listing, Holo Makani is presented as having a valid TVR certificate with an "EXCELLENT!! rental history." Buyers are advised they must honor short-term rental contracts.  It is currently booked through August on its website.  

Meanwhile, Fischer's after-the-fact permits are moving through the county. On April 17, 2013, the county building division OK'd his permit for enclosed "storage" on the ground floor. (How much storage, in addition to a garage, does a vacation rental need?) And though the electric panel had to be relocated above the flood level, an above-ground Jacuzzi with its electric pump is apparently allowed to remain. 

Assisted by the actions, and inactions, of the state and the county, the public has lost the lovely wide open beach at Wainiha. The dunes are now heavily landscaped to provide privacy and protection for the upscale homes and vacation rentals that now line the shoreline. It's taken just a decade for the privatization to occur.

But hey, no worries. It's "all g" — so long as you only look makai: