Monday, October 7, 2013

Council to Reconsider TVR Investigation

On Feb. 5, 2013, a Canadian visitor fell or jumped to his death from a riverside deck/dock that had been added, apparently without any building permits, to Kauai Paradise House, a Wainiha transient vacation rental.

Thus began my 20-part Abuse Chronicles series, which scrutinized just 25 of the hundreds of TVR certificates issued by the Kauai County planning department since 2009. Investigations revealed serious irregularities in each and every one, including unpermitted remodeling and the building department's use of questionable formulas to exempt owners from federal flood laws. As a result, many unsuspecting visitors now occupy ground floor bedrooms in the tsunami zone.

Research also disclosed numerous oceanfront TVRs are using cesspools, including some that sleep as many as 10 to 14 guests. This raises serious concerns about ongoing contamination of marine waters with e-coli bacteria, pharmaceuticals and other human waste. Others are vegetating the public beach, and in one case, the county failed to record a beach easement.

Most significantly, however, not one of the Abuse Chronicles property owners submitted all the documents required to prove they were eligible for a TVR certificate. That's right. Not even one met the legal requirements for a valuable TVR certificate, which is issued for the life of the property, with yearly renewals. Yet they were all approved by either the planning department or commission, despite the missing documents.

What's more, all but five were renewed again this year. Following a series of public records requests and delays, Planning Director Mike Dahilig finally released a document that showed his department had renewed 20 of the 25 TVR certificates investigated in the Abuse Chronicles. Those that were not renewed include Kauai Paradise House, Blue Lagoon, Love Shack, Hale Poo and Hale Hoku. It appears they were denied simply because their renewal applications were late. All but one is appealing.

In the meantime, under threat of a County Council investigation, Dahilig has been attempting to organize the TVR files. In the process, he discovered that some 84% are lacking the full documentation to prove eligibility.

Yet according to an opinion from the County Attorney, all of these improperly issued certificates must be allowed to stand because they were approved by former Planning Director Ian Costa and his former deputy, Imai Aiu. That opinion has not been made public. County Attorney Al Castillo confirmed he shared the opinion with Council Chair Jay Furfaro, who reportedly has not shared it with all of his colleagues.

Furthermore, a number of the Abuse Chronicles certificates were renewed before Dahilig got the opinion, and at a time when he publicly claimed his staff was trying to develop a process for renewal and investigating the charges laid out in the series.

On Wednesday, the Council is set to again consider Councilman Mel Rapozo's resolution calling for a special Council investigation into the TVR travesty. In the five months since it was introduced, it has become clear the problems outlined in the Abuse Chronicles are even deeper and more widespread than originally thought.

The Council itself has acknowledged that the planning department willfully failed to properly implement and enforce the TVR ordinances, resulting in not only hundreds of improperly issued certificates, but hundreds of totally illegal TVRs operating openly and with impunity.

And though the Council has repeatedly offered him money to hire extra help, Dahilig still has failed to create a TVR data base that can be reliably used even by his own department. As a result, the public has been entirely shut out of the process. In his most recent email, Dahilig indicated he will be taking a hardball approach to public records requests:

In the future, OIP requests should not reflect questions of how much, how many, and which ones. 

As I have mentioned, my ultimate goal is to have our working database updated for online information and use. As you know, Mike [Laureta] and Marissa [Valenciano] are hard at work with a number of TVR tasks and are spread between many priorities, including information requests which must be responded to within a short timeframe. Once my staff can slog through the database along with the other pressing issues, hopefully it will act as a self-service source for the information you seek and we can avoid charging you.

In the meantime, another worm — the so-called “dead files” — is crawling out of the can. It seems that planning told some folks who applied for TVRs back in 2009-10 to submit additional documentation. And though they did, the department never acted upon their applications. Now some of these injured parties, who weren't given certificates for which they proved themselves eligible, are preparing to sue the county for damages.

Some Council members have expressed concern that an investigation could be construed as a “witch hunt,” while others said they want to move forward, rather than dwelling in the past.

However, the issue before the Council goes much deeper than whether to approve the investigation to dig into the TVR debacle.

The core question now facing the Council is this: If county workers and the Administration can unilaterally decide they do not want to implement and enforce a law, and suffer absolutely no consequences — as evidenced by Mayor Bernard Carvalho's re-election bid — then what is the purpose of the Council and its law-making powers?

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