Recall Tavares

NEW BLOG & CONTACT INFORMATION

2008-11-24T15:54:00.001-08:00

Please note - we would like to direct you to the new blog and email address:

Email: mauiimpeachment@gmail.com
Blog: www.mauiimpeachment.blogspot.com

Thank you.

Letters to the Editors

2008-11-05T12:01:00.000-08:00

The Maui News on-line edition has been conducting a poll regarding The Recall effort.
At the moment, approximately 59% of those polled are against Tavares.

The Poll only accepts one vote from every computer. Once a vote has been received from a computer your screen changes and all you can see is the vote totals. Some people have contacted us thinking that their screen changed because the polling was over, this is not correct. So please vote and encourage others to vote. It has been claimed that 'any fool' knows you can vote over and over again, thus distorting the outcome - that is not the case.

It is not clear whether the Maui News will publish the results so letters to the editor mentioning the vote total will be helpful.

Please write a Letter to the Editor to support the Recall of Mayor Tavares. Your letter could highlight your opinion and/or personal experience of this administrations policies.

The letters so far in favor of Tavares follow talking points such as ;

1.Mayor Tavares has been good for the environment look at her support of the conference regarding the reefs.

Another perspective is; we do not need a conference, we know the reefs are being destroyed by run off of fertilizer herbicides and pesticides and most importantly by nitrogen and phosphates leaking into the ocean from Maui's injection well/sewerage treatment system.
In 2 years Mayor Tavares has actually done nothing about the reefs

2. We are blaming Tavares for the worldwide economic problems.

Untrue. we are blaming her for not having any plan to mitigate the bad effects of the worldwide crisis.

3.Maui is the most desirable Island vacation spot therefore everything is still great .

No, all tourism numbers for Maui are diving off a cliff. Maui's great but we are in competition with Mexico and the Caribbean. The meaningful question is; are we the best deal in light of the high transportation costs. If we are the best value we will prosper. We need to become super competitive, not just desireable. Ferrari makes incredibly desired cars but at 300k they don't sell very many.

4. We shouldn't expect the Mayor not to enforce the law.

The Mayor has done nothing in two years to enforce laws against home based businesses. There are many more home based businesses than there ever were vacation rentals. We should expect the mayor to enforce laws based on logical priorities and as well as a sense of fairness and in times of economic crisis and a sense of practicality designed to minimize bankruptcy and foreclosure.

Time is of the essence! In order to educate people about why this recall is so important and should be supported we must tell our stories to the other members of the public who think it does not affect them.

Here is the contact information for letters to the editors:
The Maui News:
letters@mauinews.com
(Letters must include the writer's name, address and a telephone number where the writer can be reached. Letters will be edited for clarity, accuracy and length. Shorter letters are given priority.)
The Maui Weekly: editor@mauiweekly.com
(Submissions must include name, town name and a phone number.)
The Lahaina News: lahnews@maui.net
(Include full name)
The Maui Times: letters@mauitime.com - to respond to their editorial coverage
(All correspondence must include your full name, hometown and a phone number)

Thank you. If you would like additional information or have any questions, please contact recalltavares@gmail.com.

Election Day Efforts

2008-11-05T11:55:00.000-08:00

Our hoped for Election Day 'captive audience' idea to collect signatures at the polling stations proved problematic. While we have argued the case with the Elections office that we are not in fact 'electioneering', (Mayor Tavares is not on the ballot), they have sent us maps of a 200' perimeter around all the polling stations where 'electioneering' is prohibited. While legally this is invalid in our case, we do not want to put anyone in the position of having to argue this case in public with any hostile opponents on site, nor create a potentially heated situation with uninformed election officials or law enforcement - not to mention how it may reflect negatively on the effort overall.

So, if anyone does want to go to their local polling station tomorrow to collect signatures they can of course do so, but we would ask that you first become fully informed and get the respective map from our office or the elections office at the County Clerk showing the 200' perimeter. Our purpose and goal is conduct this effort in the most responsible and effective way and not put any one in harms way. So we do encourage everyone to continue collecting signatures within their own communities, however the polling stations on election day will not offer the opportunity we had hoped for given the 'misunderstanding' of the elections office - which unfortunately can not be fully addressed given the time constraints.

Please do email recalltavares@gmail.com with any questions and keep in mind that we still have 20 days to collect signatures and write letters to the papers. It is possible! Forward the blog and email to your email lists

PETITION LOCATIONS

2008-10-29T17:10:00.000-07:00

For a list of locations in your area where you can sign the Petition to Recall Mayor Tavares, or to pick up blank petitions to collect signatures, please mail: recalltavares@gmail.com and we can give the most uptodate information.

Please note: ONLY Maui residents and REGISTERED VOTERS can sign the petiton.
These signatures will be cross checked by the Co. Clerks office when submitted and must be valid to succeed in the recall.
Mahalo.

RECALL ELECTION PROCEDURE

2008-10-27T17:13:00.000-07:00

Per Section 12-6 of the Maui County Charter:
( http://hi-mauicounty.civicplus.com/documents/Council%20Services/2003charter.PDF )

Section 12-6. Recall Election.
If a recall petition or supplemental petition shall be certified by the county clerk to be sufficient, the county clerk shall at once submit the petition with the certificate to the council and shall notify the officer sought to be recalled of such action. If the officer whose removal is sought does not resign within five (5) days after such notice, the council shall thereupon order and fix a day for holding a recall election. Any such election shall be held not less than sixty (60) nor more than ninety (90) days after the petition has been presented to the council, at the same time as any other election held within such period; but if no election is to be held within such period, the council shall call a special recall election to be held within the time aforesaid. If less than fifty percent (50%) of the voters registered in the last general election shall vote at such recall election, the officer sought to be recalled shall not be deemed recalled regardless of the outcome of the election.

VOLUNTEER CALL, Press Release and biography information

2008-10-23T16:51:00.000-07:00

Press release regarding Recall of Maui Mayor Charmaine Tavares:

There is substantial interest in recalling Mayor Tavares. On October 21st I submitted the affidavit which begins the recall process. We will begin our signature drive on Nov 4th election day. We anticipate having volunteers at each of the 43 polling places. We expect to have 2 volunteers for the first and last shift of the day. The volunteers will be 200 feet away from the actual polling place in order to comply with election laws, so look for the yellow and orange recall sign. In order to cause a recall election to be held we need to secure approximately 17,000 signatures. Voter turnout may exceed 55,000. Polls are open from 7am until the last voter in line at 6pm votes.

To volunteer: E-mail us at recalltavares@gmail.com . Give your full name, e-mail address, phone number and location most convenient for you to be at. Volunteers must be over 18 years of age and residents of Maui. Volunteers will work 3 1/2 hour shifts. For more information, locations of all polling places and to read Maui News ‘Viewpoints’ article, please go to www.recalltavares.blogspot.com
James Fosbinder

Who is James Fosbinder?

I am a resident of, and Attorney at Law in, Maui County and have spent over a thousand hours in the past 12 months researching the law and the facts regarding the topics in my Maui News 'Viewpoints' piece (10/17/08). I am convinced that Mayor Tavares has a goal of shutting down every vacation based activity that I mention. I have deposed every one of the last three Maui County Planning Directors as well as the last three mayors. I have been a licensed real estate broker, I am a licensed Lawyer with extensive federal appellate experience for the past 24 years. Maui County will be paying out a total of approximately 8 million dollars to clients who had building permits illegally revoked.

We succeeded in convincing the state of Hawaii to settle our lawsuit demanding an end to discrimination against tourists who wanted to be married on the beach. The state entered into a permanent stipulation allowing weddings on the beach without permits as long as the wedding did not fence of any portion of the beach.

Most of my experience as a lawyer is in the area of curbing government abuse.
I have extensive experience litigating over the use of public parks and public forums.
I have won the right on the east coast in Federal Court for citizens to demonstrate in Central Park in NYC, Lafayette Park (across from the Whitehouse) and at the Washington Memorial. I have worked on successful civil rights litigation with some of Americas best known civil rights attorneys including Peter Neufeld (Neufeld and Scheck) best known for being the DNA lawyers for O.J Simpson, and William Kuntsler best known for his defense of the Chicago 8.

On the West Coast I have represented successfully in Federal Courts dozens of individuals in lawsuits involving the rights of artists, musicians and political activists on the Venice Beach Boardwalk, Santa Monica’s Third Street Promenade and the Ocean Front Parks in Laguna Beach. As may be apparent my litigation has no particular political bias. In the past few years I have represented right wing left wing and center of the bird, this year I served as general counsel to the Ron Paul Blimp project.

I have for over 10 years been active in almost every ocean activity I note in the Viewpoints piece. I have been the president of what was at the time one of the largest bicycle stores in the US. I am friends with many owners, operators and employees of ocean recreation businesses as well as many TVR operators.

Despite having sued former Mayors Apana and Arakawa I have worked with them in an attempt to mitigate the havoc that our current Mayor is imposing on hundreds of hardworking business owners.
Sincerely, James Fosbinder.

TO POST A COMMENT...

2008-10-23T16:37:00.001-07:00

If you wish to post a comment you must click on the "Comment" link which appears at the bottom of each posted article. Your comment does not have to relate to that particular article.
Just scroll to the bottom of any "Archive" entry (list of articles found to the right), and select "Comment" (which is preceded by the number of comments already posted - as directly below..)

Maui News Viewpoint Article 10/17/08

2008-10-21T14:47:00.000-07:00

"Sell extended cab 4wd pickup with lift kit and leather interior only 13000 miles, paid $52 thousand, asking $5 thousand dollars cash”. Well not yet, but with Mayor Tavares and George Bush sharing the driver’s seat for our economy, ads like that may be in the paper in time for Christmas.

Even if the mainland economy was great and oil was cheap, Mayor Tavares’ attack on every growth sector of our tourist based economy was bound to create a recession on Maui.

Surfing, Kite boarding, Standup, Windsurfing, Kayaking, all green activities, all growing steadily. Teaching tourists how to do these things guarantees their return because there is no better place for all of these activities than Maui.

Mayor Tavares’ response? Ban teaching tourists at the best places to learn. Require expensive insurance policies which indemnify the County (indemnification is not required for operators of semi- tankers hauling gasoline, nor similar high risk businesses on the Island). Regulate the ratio of students to teacher to make it impossible to make a profit.

Vacation Rentals are increasing in popularity world wide. They benefit caterers, contractors, bars, restaurants, airline employees and the benefits trickle on and on.

Mayor Tavares’ response? Support vacation rentals until she was elected then bizarrely, according to her deposition; wake up the morning after being elected feeling a need to shut down every vacation rental immediately.

19 FOSBINDER Q. Do you recall, during the period before your
20 election, disseminating any information that would lead
21 a reasonable voter to come to the conclusion that you
22 intended or wanted to shut down all the vacation rentals
23 on January 2nd?
24 TAVARES: A. I don't recall that, saying that or doing
25 anything like that.
1 Q. What happened? At what point did you decide
2 that you wanted to shut down all the vacation rentals on
3 January 2nd?
6 THE WITNESS: When I took my oath of office,
7 January 2nd.
(You can find the Mayor’s deposition as well as hundreds of pages of documents related to these issues at www.RecallTavares.blogspot.com)

Scuba diving is very popular with baby boomers and its demographics are: Boomers/highly educated /environmentally sensitive/prosperous.

Mayors Tavares’ response? Shut down the best place to take beginners, Makena Landing, based on a nonsensical denial of the obvious prescriptive easement relied on by the public since the Kingdom’s legislature voted $1500 dollars for the repair of Makena Landing provided that it would be open for all types of public use …..forever.

Boomers need exercise, walking is universally recommended. Walking oriented vacations are booming. What could possibly be smarter growth than lodging for tourists who prefer to walk rather than drive around Maui? How many places does Maui have that cater to walking tourists? I only know of one, Patey’s Place in central Lahaina. Walking tourists aren’t clogging the Pali, aren’t driving drunk, and their rental cars aren’t parked in the space you want.

Mayor Tavares’ response? Refuse to allow Mr. Patey, the owner, a reasonable amount of time to submit a full application for a conditional permit despite every similar conditional permit processed by the County being eventually approved.

The State of Hawaii formally admitted through a permanent stipulation that couples getting married on the beach have a First Amendment right not to be treated differently than picnickers or Frisbee players (no permit needed), settled our lawsuit by majority vote of the legislature but is now threatening to disrupt people’s weddings if they hire a photographer or wedding coordinator.

The first interrupted wedding will be publicized around the world. Ten million dollars worth of bad publicity that our Mayor might be able to prevent.

Mayor Tavares Response?
………Nothing

We stand in the cross hairs of economic hit men, Bush and Tavares -- either will put our island economy on life support. Together they will bring Maui a tsunami of foreclosures and bankruptcies never before seen on this island.

This need not happen. If the mainland recession should devolve into a true depression there will still be millions of wealthy Americans who will be able to go wherever they want. Maui will be the most desirable place in the world to visit ….If we support environmentally responsible growth types of tourism.

We must act quickly to restore our reputation as “tourist friendly”.
Time really is of the essence. Recall Mayor Tavares.

Volunteers Needed To Collect Signatures for Recall

2008-10-21T13:38:00.000-07:00

In order to cause a recall election to be held we need to secure approximately 17,000 signatures. Polls are open Nov 4th from 7am until the last voter in line at 6pm votes. To volunteer please e-mail us at recalltavares@gmail.com. Give your full name, e-mail address, phone number and location most convenient for you to be at. Volunteers must be over 18 years of age and residents of Maui. Volunteers will work 3 1/2 hour shifts. Location of polling stations is included in this blog below.

There is substantial interest in recalling Mayor Tavares. We will begin our signature drive on Nov 4th election day. We anticipate having volunteers at each of the 43 polling places. We expect to have 2 volunteers for the first and last shift of the day. The volunteers will be 200 feet away from the actual polling place in order to comply with election laws so look for the yellow and orange recall sign.

Maui Polling Stations

2008-10-21T13:21:00.000-07:00

These Maui voting locations will be open from 7am - 6pm on Nov 4th.

8th DistrictWaihee-Wailuku
1. Waihee Elementary School cafeteria, 2125 Kahekili Highway
2. Velma McWayne Santos Community Center, 395 Waena St.
3. Baldwin High School cafeteria, 1650 Kaahumanu Ave.
4. Paukukalo Hawaiian Homes Community Center, 657 Kaumualii St.
5. Wailuku Elementary School cafeteria, 355 S. High St.
6. Waikapu Community Center, 22 E. Waiko Road
7. Maui Economic Opportunity Center, 99 Mahalani St.

9th DistrictKahului-Paia (incl Haiku-Hana)
1. Iao School cafeteria, 260 S. Market St.
2. Maui Waena Intermediate School cafeteria, 795 Onehee Ave.
3. Lihikai Elementary School cafeteria, 335 S. Papa Ave.
4. Maui High School, 660 S. Lono Ave.
5. Kahului Elementary School cafeteria, 410 S. Hina Ave.
6. Kahului Hongwanji Mission, 291 S. Puunene Ave.
7. Kaunoa Senior Citizen Center, 401 Alakapa Place
8. Paia Community Center, 252 Hana Highway
9. Haiku Elementary School cafeteria, 105 Pauwela Road
10. Haiku Community Center, 1008 Hana Highway
11. Kaulanapueo Church, Door of Faith Church Road
12. Keanae Elementary School cafeteria, Hana Highway
13. Hana High/Elementary School, 4111 Hana Highway

10th District Olowalu-Kapalua
1. Kenolio Recreational Complex cafeteria, 131 S. Kihei Road
2. King Kamehameha III Elementary School cafeteria, 611 Front St.
3. Lahaina Intermediate School, 871 Lahainaluna Road
4. Princess Nahienaena Elementary School cafeteria, 816 Niheu St.
5. Lahaina Civic Center, 1840 Honoapiilani Highway
6. Honolua United Methodist Church, 5110 Kohi St.

11th DistrictMakena-Kihei
1. Trinity Episcopal Church by the Sea, 100 Kulanihakoi St.
2. Kamalii Elementary School cafeteria, 180 Alanui Ke Alii St.
3. Kihei Community Center, 303 E. Lipoa St.
4. Kihei Elementary School cafeteria, 250 E. Lipoa St.

12th District Pukalani-Ulupalakua
1. Kalama Intermediate School, 120 Makani Road
2. Eddie Tam Memorial Complex, 931 Makawao Ave.
3. Pukalani Elementary School cafeteria, 2945 Iolani St.
4. Mayor Hannibal Tavares Community Center, 91 Pukalani St.
5. Kula Community Center, 4355 Lower Kula Road
6. Kula Elementary School cafeteria, 5000 Kula Highway
7. Ulupalakua Ranch, Ulupalakua Ranch

13th DistrictLanai-Molokai
1. Paia Community Center, 252 Hana Highway
2. Haiku Elementary School cafeteria, 105 Pauwela Road
3. Haiku Community Center, 1008 Hana Highway
4. Kaulanapueo Church, Door of Faith Church Road
5. Keanae Elementary School cafeteria, Hana Highway
6. Hana High/Elementary School, 4111 Hana Highway
7. Lanai High/Elementary School cafeteria, 555 Fraser Ave.
8. Kilohana Community Center, Kamehameha V Highway
9. Kaunakakai School cafeteria, 30 Ailoa St.
10. Maunaloa Elementary School cafeteria, 128 Maunaloa Road
11. Kualapuu Community Center, Alahula Street
12. Kalaupapa Settlement, County of Kalawao Hall

Maui Co. Charter - Recall Process

2008-10-15T14:45:00.001-07:00

Click on this link.
Go to Page 42 of this Maui County Charter, Section 12, for details about Recall process:

http://hi-mauicounty.civicplus.com/documents/Council%20Services/2003charter.PDF

NOTE

2008-10-14T16:39:00.001-07:00

Please note that many of theses postings are documents in progress - kindly ignore type-o and abbreviatons!

Reduce Traffic Congestion

2008-10-14T13:53:00.000-07:00

The Patey Place in Lahaina requires no physical changes to the property, just a conditional use permit.
The property has been used for 15 years as a boarding house. The purpose of the Conditional Permit is to legalize the existing use. The property serves a clientele of new employees for restaurants, hotels and retail stores located within walking distance of the subject property.

It is we assume generally agreed that there is currently a shortage in the Lahaina area of affordable housing for employees of the numerous hotels, restaurants and other vacation driven businesses in the area. This has resulted in the absurdity of many employees being forced to drive from areas such as Pukalani all the way to Lahaina and back each day. This has resulted in many traffic problems, resulting in serious accidents and increased traffic congestion on the commuting route. There are many incidents of road rage and the Aloha spirit is often replaced during commuting hours by the single digit salute.

The present use of the subject property reduces these congestion problems directly by residents walking or bicycling to work and also indirectly as employees with a month or two to look for suitable roommates are significantly more likely to be able to find long-term suitable housing/roommates within a short commute.

Typically after a period of several weeks to several months tenants find a house or apartment to share and move out Pateys Place. Based on discussion with many tenants, if this property was not available the alternatives, in approximate order of frequency are:

1. Sleep on the beach.
2. Sleep in a car.
3. Find housing on the North Shore and drive approximately 50 miles per day.

The property as it has been operated has had few complaints and we intend to supplement this application with more letters in support of the change as they become available.

The following negative impacts are believed to be likely if this application is not approved.

1.Increased traffic particularly on the already overloaded Mailia Harbor to Lahina and back routes at peak commuting time.
2.Increased crime as employees are forced to sleep on the beach and are often victims of crime.
3. The owner will be forced to rent on a long term basis if unable to secure the change in approved use. This will not result in affordable family housing. This is likely to go one of two ways; either the property will be rented as-is to the highest bidder, resulting most likely in a defacto albeit illegal rooming house. Alternatively the owner will remodel as a luxury unit resulting in gentrification.

Cert. Shorelines v. ownership rights

2008-10-09T13:10:00.000-07:00

Gathering Place

Peter T. Young
Thursday, November 13, 2003
________________________________________
Certified shorelines
don’t determine
ownership
________________________________________
As chairman of the Board of Land and Natural Resources, I certify shorelines on coastal properties in the state of Hawaii. Certified shorelines have been the subject of discussions lately, and in those discussions I have noted several misconceptions.
Owners of coastal property must receive certification of their shorelines before applying for building permits for improvements on their properties. In large part, there is confusion because the statutory definition of "shoreline" for certification purposes is nearly identical to what the Hawaii courts have determined to be the line for property boundary and ownership purposes.
Under the Coastal Zone Management Act, in which the shoreline certification program is included, "shoreline" is defined as "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs."
The Hawaii Supreme Court has held that "according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves."
Why, then, wouldn't a certified shoreline be the property boundary line? Shouldn't they be the same? The answer is that they are not necessarily the same because their purposes, the impacts and the processes for determining these lines are significantly different.
The BLNR is responsible for determining the location of the certified shoreline. The counties are generally responsible for establishing the width of the setback.
The BLNR rules associated with this law on shoreline certification state that their purpose is "to standardize the application procedure for shoreline certifications for purposes of implementing the shoreline setback law and other related laws."
The Department of Health's Office of Environmental Quality Control notes: "State law requires that Hawaii shorelines be surveyed and certified when necessary to clearly establish the regulatory building setback (usually 40 feet inland from the shoreline)."
Shorelines are "certified" for county setback purposes. Certified shorelines serve as points of reference in determining where improvements may be placed on coastal property.
Certified shorelines also serve as managerial and jurisdictional dividing lines. Issues mauka of the certified shoreline fall under the jurisdiction of the counties. Lands makai of the line are automatically "conservation" and are under control of the state. Shoreline certification is valid for only 12 months.
When property boundaries and ownership are in question, the state does not rely on shoreline certifications, but instead takes a more rigorous approach to locating the property's seaward boundary.
When shorefront property owners bring quiet title actions (lawsuits seeking the court's determination of ownership,) the state enters the action to preserve all of its rights and title to its coastal property.
Certified shorelines do not determine ownership. Ultimately, the court decides ownership of the property and the boundary line dividing private and public lands. Because the certified shoreline serves a purpose different from ownership, the certified shoreline may be at a different location than the property's seaward boundary line.
Certified shorelines also do not define placement of public access.
The shoreline certification process is a partnership between the state and counties addressing the respective jurisdictions and obligations relative to coastal lands.
The laws and rules are clear: Certified shorelines deal with governance, not ownership.
The public land trust, access and the state's ownership of land are other matters.
________________________________________
Peter T. Young is chairman of the state Department of Land and Natural Resources.

Conditional Use Permit approved for weddings/Maui

2008-10-09T13:08:00.000-07:00

Source: Tom Finnegan, Judge approves company’s permits, Star Bulletin, Aug. 22, 2008.

United States Court of Appeals,
Ninth Circuit.
Laki KAAHUMANU; The Harvest Chapel Church of God; Sandra Barker; Double S Inc., dba A Romantic Maui Wedding, Plaintiffs-Appellees,
v.
COUNTY OF MAUI; J. Kalani English, Chair of Maui County Land Use Committee and Maui County Council Member; Patrick Kawano, Chair of Maui County Council; Dain Kane; Michael A. Davis; John Wayne Enriques; G. Riki Hokama; Dennis Nakamura; Wayne Nishiki; Charmaine Tavares, Maui County Council Members, Defendants-Appellants.
No. 02-15189.
Argued and Submitted Nov. 1, 2002.
Filed Jan. 14, 2003.
Operator of commercial wedding business and pastor of church who conducted some of the ceremonies arranged by the wedding operator brought action against county council and its members under § 1983 after the council denied a conditional use permit (CUP) for conducting commercial wedding business on beach-front residential property. The United States District Court for the District of Hawai'i, Alan C. Kay, J., granted the council members' motion to dismiss the claims against them in their official capacities, but denied their motion to dismiss the claims against them in their individual capacities on ground of legislative immunity. Council members appealed. The Court of Appeals, Fisher, Circuit Judge, held that council's decision whether to grant or deny the CUP was an administrative act, rather than a “legislative” act, and thus, council members were not entitled to absolute legislative immunity for the act under § 1983.

Affirmed.

West Headnotes

[1] KeyCite Citing References for this Headnote

170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)1 In General
170Bk776 k. Trial De Novo. Most Cited Cases
The Court of Appeals reviews de novo a district court's decision to grant or deny legislative immunity.

[2] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(1) k. In General. Most Cited Cases
(Formerly 78k214(1))
Whether an act of a government official is “legislative,” for the purpose of legislative immunity under § 1983, turns on the nature of the act, rather than on the motive or intent of the official performing it. 42 U.S.C.A. § 1983.

[3] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1400 Presumptions, Inferences, and Burdens of Proof
78k1407 k. Defenses; Immunity and Good Faith. Most Cited Cases
(Formerly 78k240(5))
The burden of proof in establishing absolute immunity under § 1983 is on the individual asserting it. 42 U.S.C.A. § 1983.

[4] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(1) k. In General. Most Cited Cases
(Formerly 78k214(1))
A court determines whether an action is “legislative,” for purposes of legislative immunity under § 1983, by considering each of four non-mutually exclusive factors: (1) whether the act involves ad hoc decisionmaking, or the formulation of policy, (2) whether the act applies to a few individuals, or to the public at large, (3) whether the act is formally legislative in character, and (4) whether it bears all the hallmarks of traditional legislation. 42 U.S.C.A. § 1983.

[5] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(1) k. In General. Most Cited Cases
(Formerly 78k214(1))
For the purpose of analyzing whether an act of a government official is “legislative” so as to entitle the official to absolute legislative immunity under § 1983, whether the act is “ad hoc” can depend on whether it is aimed at a few people or many, and whether the act bears all the hallmarks of traditional legislation can depend on whether it is ad hoc. 42 U.S.C.A. § 1983.

[6] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
For the purpose of analyzing whether county council's denial of conditional use permit (CUP) to allow operator of commercial wedding business to conduct weddings on beach-front residential property was a legislative act so as to entitle the council members to absolute legislative immunity under § 1983, the decision was “ad hoc” where it was made based on the circumstances of the particular case and did not effectuate policy or create a binding rule of conduct; although granting permit would require council's enactment of ordinance and decision involved exercise of considerable discretion, the ordinance would be specific rather than general, affecting only the parcel of land at issue, and the decision involved administering policies set out in county code. 42 U.S.C.A. § 1983.

[7] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
Mere fact that the county council retained authority to grant conditional use permits (CUP) did not necessarily imply that granting CUPs involved policy-making, for purpose of analysis whether denial of a CUP was a legislative act so as to entitle the council members to absolute legislative immunity under § 1983; the council's decision to grant or deny a CUP was not a derogation from the county's comprehensive zoning ordinance, but rather, was an individualized determination that the proposed use was similar, related, or compatible to permitted uses. 42 U.S.C.A. § 1983.

[8] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
Fact that county council's decision whether to grant a conditional use permit (CUP) ran with the land did not preclude a finding that the decision was “ad hoc,” for purpose of analysis whether the decision was a legislative act so as to entitle council members to absolute legislative immunity under § 1983. 42 U.S.C.A. § 1983.

[9] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
Limited number of people impacted by county council's denial of conditional use permit (CUP) to allow operator of commercial wedding business to conduct weddings on beach-front residential property weighed against a finding that the decision was a legislative act so as to entitle the council members to absolute legislative immunity under § 1983, even if granting one application for a CUP would make it politically difficult for the council to deny a similar application from someone else, as a grant would have no legal effect on subsequent council decisions. 42 U.S.C.A. § 1983.

[10] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
Formally legislative character of county council's decision whether to grant conditional use permit (CUP) to allow operator of commercial wedding business to conduct weddings on beach-front residential property weighed against a finding that the decision was a legislative act so as to entitle the council members to absolute legislative immunity under § 1983, but was not decisive of the issue. 42 U.S.C.A. § 1983.

[11] KeyCite Citing References for this Headnote

78 Civil Rights
78III Federal Remedies in General
78k1372 Privilege or Immunity; Good Faith and Probable Cause
78k1376 Government Agencies and Officers
78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
For the purpose of analyzing whether county council's denial of conditional use permit (CUP) to allow operator of commercial wedding business to conduct weddings on beach-front residential property was a legislative act so as to entitle the council members to absolute legislative immunity under § 1983, the decision did not bear all the hallmarks of traditional legislation, where it did not change the county's comprehensive zoning ordinance or the policies underlying it, or affect the county's budgetary priorities or the services the county provided to residents. 42 U.S.C.A. § 1983.

[12] KeyCite Citing References for this Headnote

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78k1376(4) k. Municipalities and Counties and Their Officers. Most Cited Cases
(Formerly 78k214(4))
County council's decision whether to grant or deny conditional use permit (CUP) to allow operator of commercial wedding business to conduct weddings on beach-front residential property was an administrative act, rather than a “legislative” act, and thus, council members were not entitled to absolute legislative immunity for the act under § 1983, where, despite its formally legislative character, the decision was ad hoc, affected only the applicants, and did not bear all the hallmarks of traditional legislation. 42 U.S.C.A. § 1983.

*1217 James H. Fosbinder and Rhonda M. Fosbinder, Fosbinder & Fosbinder, Kahului, HI, for the plaintiffs-appellees.

Victoria J. Takayesu, Deputy Corporation Counsel, Wailuku, Maui, HI, for the defendants-appellants.

Appeal from the United States District Court for the District of Hawai‘i; Alan C. Kay, District Judge, Presiding. D.C. No. CV-01-00689-ACK.

Before: SCHROEDER, Chief Judge, ALARĆON and FISHER, Circuit Judges.

FISHER, Circuit Judge.
This case arises from the Maui County Council's denial of a conditional use permit that would have allowed plaintiffs-appellees (“plaintiffs”) to conduct a commercial wedding business on beach-front residential property. Plaintiffs brought suit under 42 U.S.C.A. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc, against Maui County and members of the Maui County Council in their individual and official capacities after the Council voted not to grant the permit. The defendants-appellants (“defendants”) moved to dismiss the claims against the Council members in their individual capacities, arguing that the individual-capacity claims were barred by legislative immunity. The district court denied the motion to dismiss the individual-capacity claims. The defendants now appeal the denial of legislative immunity.

FACTUAL AND PROCEDURAL BACKGROUND

Maui may be to weddings in the first decade of this century what Reno was to divorces in the middle decades of the last.FN1 As the Maui Visitor's Bureau puts it:

FN1. For evidence of Reno's status as divorce capitol of the United States, see The Women (Hunt Stromberg 1939) (Wealthy Mary Haines, played by Norma Shearer, travels to Reno to secure a divorce from her husband after discovering his affair with shop attendant Crystal Allen, played by Joan Crawford.).

*1218 “Paradise” is a word that takes on special meaning for couples planning to marry or honeymoon in Maui's Magic Isles. What better time for a magical sunset or moonlit walk on a tropical beach? What better setting than a tumbling waterfall framed by hillsides carpeted in exotic blooms and gorgeous green rainforest? Candle-lit dinners in a world class restaurant; snorkeling in an underwater garden; hiking the magnificent Haleakala Crater; the list of guaranteed memories goes on and on.

Aloha from Maui Visitors Bureau, Weddings/Honeymoons, at http:// www.visitmaui.com/index.html (last visited Jan. 6, 2002).

Plaintiff Sandra Barker runs a commercial wedding business, Double S Inc., under the trade name “A Romantic Maui Wedding.” Plaintiff Laki Kaahumanu, Pastor of Harvest Chapel Church of God, conducts some of the ceremonies Barker arranges. In 1998, Barker began to arrange wedding ceremonies at her beachfront home. She also provided beach access through her property for wedding ceremonies on the public beach.

On September 3, 1998, Barker applied for a conditional use permit (CUP) so she could continue to use her beachfront property, which is located in a residential district, as a commercial wedding venue.FN2 If the proposed use of Barker's property had fallen within one of the “special uses” listed in the Maui County Code (MCC), such as “[c]hurches together with accessory buildings,” Barker could have applied to the Maui Planning Commission for a special use permit. MCC §§ 19.08.030, 19.510.070. A special use is one that “meets the intent and purpose of the zoning district but which requires the review and approval of the appropriate planning commission in order to ensure that any adverse impacts on adjacent uses, structures or public services and facilities which may be generated by the use can be, and are, mitigated.” Id. § 19.04.040. The final authority to grant a special use permit rests with the Planning Commission. Id. § 19.510.070.

FN2. Barker's property is located in an A-1 apartment district. Commercial enterprises are neither expressly permitted nor designated as special uses in A-1 apartment districts and are therefore prohibited. Maui County Code (MCC) §§ 19.04.020(B), 19.08.030, 19.12.020.

Because Barker's business did not fall within a designated special use, however, she had to apply for a conditional use permit, which can only be granted through the enactment of an ordinance by the Maui County Council. Id. § 19.40.070. A conditional use permit is intended for uses that are “similar, related or compatible to ... permitted uses and which ha[ve] some special impact or uniqueness such that [their] effect[s] on the surrounding environment cannot be determined in advance of the use being proposed for a particular location.” Id. § 19.040.010. The Maui Planning Commission hears and reviews an application for a CUP and makes a recommendation to the Maui County Council. Id. § 19.40.020. The Council then enacts or declines to enact an ordinance approving the CUP. Id. § 19.40.070.

On June 17, 1999, after an administrative review of Barker's application, the Maui Planning Commission recommended to the Council that the CUP be approved. On October 20, 2000, a subcommittee of the Council, the Land Use Committee, held a two-hour public meeting at which some members of the public argued *1219 against the permit. At the conclusion of the meeting, the Land Use Committee recommended denial of the permit. The Maui County Council voted to reject Barker's application that same day.

On November 24, 2000, Barker and Kaahumanu were cited for “continuing to conduct commercial weddings and other related activities” on the beachfront property and fined $1000.

Procedural History

The plaintiffs filed suit for monetary, declaratory and injunctive relief against the Maui County Council and its members in their individual and official capacities under 42 U.S.C.A. § 1983 for violation of the First, Fifth and Fourteenth Amendments, and under RLUIPA, 42 U.S.C. § 2000cc.

The defendants moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the claims against the Council members in their individual and official capacities. They argued that the individual-capacity claims were barred by legislative immunity and that the official-capacity claims were duplicative of the claims against the County of Maui.

The district court denied the motion to dismiss the individual-capacity claims on the ground of legislative immunity but granted the motion to dismiss the official-capacity claims. The members of the Maui County Council, in their individual capacities, now appeal the district court's denial of legislative immunity.

STANDARD OF REVIEW

[1] We review de novo a district court's decision to grant or deny legislative immunity. San Pedro Hotel v. City of Los Angeles, 159 F.3d 470, 476 (9th Cir.1998).

DISCUSSION

The Supreme Court has long held that state and regional legislators are absolutely immune from liability under § 1983 for their legislative acts. See Tenney v. Brandhove, 341 U.S. 367, 376-77, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (state legislators); Lake Country Estates, Inc., v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (regional legislators). They are immune not for the sake of private indulgence, but so they may freely discharge their public duties as legislators. Tenney, 341 U.S. at 377, 71 S.Ct. 783. Thus, the immunity attaches only to actions taken “in the sphere of legitimate legislative activity.” Id. at 376, 71 S.Ct. 783. In Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), the Supreme Court extended this immunity to local legislators, holding them “absolutely immune from suit under § 1983 for their legislative activities.” FN3

FN3. Because we ultimately conclude that the Council members' action was administrative rather than legislative, and thus not entitled to legislative immunity, we need not reach the question whether legislative immunity extends to suits brought under 42 U.S.C. § 2000cc. The parties did not address this question in their briefs or at oral argument.

[2] We have recognized that “not all governmental acts by ... a local legislature[ ] are necessarily legislative in nature.” Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.1984). “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Bogan, 523 U.S. at 54, 118 S.Ct. 966. The question before us, then, is whether the actions of the Council members, when “stripped of all considerations of intent and motive,” were legislative rather than administrative or executive. Id. at 55, 118 S.Ct. 966.

[3] “The Supreme Court ‘has generally been quite sparing in its recognition of claims to absolute official immunity.’ ” *1220 Chateaubriand v. Gaspard, 97 F.3d 1218, 1220 (9th Cir.1996) (quoting Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). “The burden of proof in establishing absolute immunity is on the individual asserting it.” Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.1994).

[4] [5] We determine whether an action is legislative by considering four factors: (1) “whether the act involves ad hoc decisionmaking, or the formulation of policy”; (2) “whether the act applies to a few individuals, or to the public at large”; (3) “whether the act is formally legislative in character”; and (4) “whether it bears all the hallmarks of traditional legislation.” Bechard v. Rappold, 287 F.3d 827, 829 (9th Cir.2002) (quoting San Pedro Hotel, 159 F.3d at 476, and Bogan, 523 U.S. at 55, 118 S.Ct. 966) (internal quotation marks omitted). We consider each factor in turn, but recognize that they are not mutually exclusive.FN4

FN4. Whether an act is ad hoc can depend on whether it is aimed at a few people or many, and whether an act bears all the hallmarks of traditional legislation can depend on whether it is ad hoc. See Bechard, 287 F.3d at 829-32.

(1) Ad hoc decision making: The defendants argue that a decision to grant or deny a conditional use permit is an act of public policy rather than an ad hoc decision because it involves the exercise of considerable discretion. They argue that because a CUP authorizes a use that would otherwise be prohibited under the existing comprehensive zoning ordinance, a CUP therefore temporarily modifies and supersedes the policies contained in that ordinance. The plaintiffs respond that such decisions are made on a case-by-case basis, and that as a practical matter, the consequences of each individual permit do not alter the underlying legislative policy.

[6] The district court rightly concluded that the Council's decision was ad hoc. The decision was taken based on the circumstances of the particular case and did not effectuate policy or create a binding rule of conduct. Typically, a zoning ordinance establishes a rule of general application, but here the ordinance would have affected only a single permit and a single parcel of land. As the district court noted, “regardless of whether the County Council voted to deny or grant Plaintiffs' CUP, those seeking to conduct businesses similar to Plaintiffs' wedding operation would be required to obtain their own CUP in accordance with the provisions of the Maui County Code.” Enactment of the ordinance would not have created a new category of expressly permitted or special uses and therefore did not modify or supersede the policies contained in the existing comprehensive zoning ordinance.

The defendants rely on Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982), to no avail. That case dealt with an emergency amendment to a county zoning ordinance that had the effect of making the operation of plaintiff's two adult businesses unlawful. Id. at 1347. Although the ordinance may have had an immediate practical effect on only two parcels of land, by its terms the ordinance applied to all parcels within the covered area. Id. at 1348. We held that “the enactment of a general zoning ordinance is a legislative act” and consequently granted legislative immunity. Id. at 1349. The present case is easily distinguishable. An ordinance granting a CUP is not a “general zoning ordinance.” It affects only the parcel of land that is the subject of the application and has no further force or effect. See Haskell v. Washington Township, 864 F.2d 1266, 1278 (6th Cir.1988) (holding that “[i]f ... the [zoning] action single[s] out specifiable individuals and affect[s] them differently from others, it is administrative”) (internal quotation marks and citations omitted).

*1221 We agree with the district court that granting or denying a CUP constitutes ad hoc administration of the existing zoning ordinance rather than the formulation of policy. As the district court observed: “The County of Maui's zoning policy is reflected in the Maui County Code, and as the Code provides a mechanism to ‘establish uses not specifically permitted within a given use zone’ through obtainment of a CUP, the decision to grant or deny a CUP constitutes administration of the Code.” (quoting MCC § 19.40.010). In other words, the Council is carrying out, not changing, the policies embodied in the comprehensive zoning ordinance when it grants or denies a CUP.

The defendants argue that the Council's decision to grant or deny a CUP is not ad hoc by contrasting the Council's discretion under the Code with the specific guidelines the Planning Commission must follow in deciding whether to recommend that the Council grant a CUP. Although the Code does provide more specific guidelines to the Planning Commission,FN5 the Code does not give the Council complete discretion. The Code defines the intent of a CUP as providing “the opportunity to consider establishing uses not specifically permitted within a given use zone where the proposed use is similar, related or compatible to those permitted uses.” MCC § 19.40.010 (emphasis added). This stated intent applies to and guides both the Planning Commission and the Council in carrying out their respective duties. The Council is also guided by the general purpose and intent of the comprehensive zoning ordinance, as laid out in MCC § 19.04.015. Although the Council undoubtedly retains considerable discretion, the exercise of such discretion does not convert the Council's action from an administrative or executive decision to a legislative one. See Barbaccia v. County of Santa Clara, 451 F.Supp. 260, 267 (N.D.Cal.1978) (holding that city council members were not legislatively immune from suit for rejecting plaintiff's development plan because their acts involved “discretionary determinations with respect to a single parcel of land”). But see Stephenson v. Town of Garner, 136 N.C.App. 444, 524 S.E.2d 608, 613 (2000) (holding that a decision to grant a CUP “requires the exercise of substantial discretion on the part of local officials in deciding important community-wide land use policies, and is therefore legislative in nature”).

FN5. The Code directs the Planning Commission to recommend approval of a CUP only if the proposed use will not be “significantly detrimental to the public interest, convenience and welfare, and will be in harmony with the area in which it is to be located.” MCC § 19.40.070. The Code also directs the Planning Commission to recommend denial of a CUP if it “is for a use which is substantially different from those uses permitted in the use zone.” Id.

[7] [8] Defendants also argue that the Council's action was not ad hoc by contrasting the procedures for granting conditional and special use permits. The defendants argue that the granting of a special use permit by the Maui Planning Commission is administrative because there has been a prior legislative determination that the special uses listed in the Code meet the intent and purpose of the various zoning districts. They argue that in the case of a conditional use permit, there has been no such prior legislative determination. Instead, they claim, the authority to grant a conditional use permit has been specifically retained by the County's legislative body, the County Council, because the granting of a conditional use permit ultimately involves the reformulation and enactment of zoning policy in derogation of the County's comprehensive zoning ordinance. We cannot accept this professed *1222 distinction. The mere fact that the Council has retained the authority to grant conditional use permits does not necessarily imply that granting conditional use permits involves policy-making. The Council's decision to grant or deny a CUP is not a derogation from the comprehensive zoning ordinance; rather, it is an individualized determination that the proposed use is “similar, related or compatible to ... permitted uses.” MCC § 19.40.010. Furthermore, the Code itself seems to distinguish between a conditional use permit and an actual “change of zoning.” Id. § 19.40.070 (providing that the Maui Planning Commission shall recommend denial of a CUP for “a use which is substantially different from those uses permitted in the use zone,” and “may instruct the applicant to seek a change of zoning should the facts warrant such an application”) (emphasis added).FN6

FN6. We also reject as immaterial the defendants' argument that the decision to grant a CUP is not ad hoc because it runs with the land. As the defendants concede, the decision to grant a special use permit also runs with the land, but is administrative.

(2) Whether the act applies to a few individuals or the public at large: When the act in question applies to a few individuals rather than the public at large, legislative immunity is disfavored. See San Pedro Hotel, 159 F.3d at 476 (holding that a city council member was entitled to immunity because his decision to vote for or against a publicly financed loan “involved the formation of policy applied to the public at large”); Trevino, 23 F.3d at 1482 (holding that city council members' determinations whether to pay punitive damages awards under a state statute are non-legislative in nature in part because they “shield[ ] individuals from specific damages awards” and thus do not apply to the community at large); Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir.1988) (denying immunity to city council members for their decision to reject plaintiff's building permit because the decision “was directed specifically and solely at a single individual” and did not “appl[y] to the general community”). We have also recognized, however, that while this factor “may at times be useful, it does not always provide an answer to the question” whether an act is legislative. Cinevision Corp., 745 F.2d at 579 (“Congress, as well as many state and local legislatures, may enact private, or other, bills that affect an individual or a narrowly defined group of individuals. We cannot say that such activities are not legislative.”).

[9] A decision to enact or reject an ordinance granting a CUP is made on a case-by-case basis and does not apply to the public at large in Maui County. It is therefore distinguishable from the enactment of a comprehensive zoning ordinance. We do not hold, however, that anything short of a comprehensive zoning ordinance is administrative rather than legislative. The question here is one of degree, and we conclude simply that the very limited impact of the conditional use permit at issue here weighs against absolute immunity.FN7 *1223 The defendants also argue that the grant of a CUP in this case would have far-reaching prospective implications because the Council would be hard pressed to deny a CUP to the next individual from the same neighborhood who applied for one. Although it may be true that granting one application for a CUP makes it politically difficult for the Council to deny a similar application from someone else, the grant has no legal effect on subsequent Council decisions.

FN7. The defendants rely on three cases from other federal courts of appeals for the proposition that a zoning ordinance affecting only one parcel of land is nonetheless legitimately legislative: Biblia Abierta v. Banks, 129 F.3d 899 (7th Cir.1997); Acierno v. Cloutier, 40 F.3d 597 (3d Cir.1994); and Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir.1993). All three are distinguishable on their facts. Biblia Abierta, like the Kuzinich case discussed supra, involved an ordinance that initially affected only two parcels of land, but which by its terms applied equally “to all current and future owners of the property” in the affected district. Biblia Abierta, 129 F.3d at 904. The CUP in the present case by its terms would have applied only to Barker's parcel.In Acierno, the members of the county council down-zoned the plaintiff's 38-acre property through two ordinances that applied to the plaintiff's property alone. Acierno, 40 F.3d at 612. The Third Circuit held that the act of down-zoning was a broad policy decision because the development plan for the parcel called for 322 apartment units and some commercial use, and raised concerns about traffic and compliance with wetlands, public works and fire prevention regulations. Id. at 613. The present case involves a much smaller parcel and does not raise public policy concerns of the same type or magnitude.

In Corn, the city council enacted an ordinance down-zoning an 8.5-acre parcel to a more restrictive business classification. Corn, 997 F.2d at 1371. The Eleventh Circuit held that the city council members were immune from suit in enacting the ordinance because “even ... decision[s] about which zoning classification should be applied to a specific parcel of land [ ] are legislative actions.” Id. at 1392. The present case is distinguishable because it does not involve rezoning or an application for rezoning. The CUP would not have rezoned the property for commercial use; it would have permitted the plaintiffs to conduct commercial wedding activities under specific conditions. As noted above, the Code itself distinguishes between a CUP and an actual “change of zoning.” MCC § 19.40.070.

[10] (3) Whether the act is formally legislative in character: The defendants rest their argument for absolute immunity in part on the formally legislative character of their decision. Their “acts of voting ... were, in form, quintessentially legislative.” Bogan, 523 U.S. at 55, 118 S.Ct. 966. While this fact weighs in favor of legislative immunity, it does not in itself decide the issue. In Bogan, the Supreme Court did not reach the question “whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation.” Id. We, however, reached the question in Cinevision Corp. Under Cinevision, we must look beyond the formal character of the act to see whether it “ ‘contain[s] matter which is properly to be regarded as legislative in its character and effect.’ ” 745 F.2d at 580 (quoting INS v. Chadha, 462 U.S. 919, 952, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)).

[11] (4) Whether the act bears all the hallmarks of traditional legislation: In Bogan, the plaintiff alleged that her discharge, accomplished through an ordinance eliminating the city's health department (of which she was the sole employee), was motivated by racial animus and retaliation for filing a complaint against another employee. Bogan, 523 U.S. at 47, 118 S.Ct. 966. The Supreme Court concluded that absolute immunity applied because the ordinance “bore all the hallmarks of traditional legislation.” Id. at 55, 118 S.Ct. 966. The Court reasoned that the ordinance “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents.” Id. at 55-56, 118 S.Ct. 966. The Court also found that because the ordinance eliminated a position rather than a particular employee, it “may have prospective implications that reach well beyond the particular occupant of the office.” Id. at 56, 118 S.Ct. 966. As explained above, the Maui County Council's decision not to grant the CUP was ad hoc rather than one of policy. In denying a single application for a CUP, the Council did not change Maui's comprehensive*1224 zoning ordinance or the policies underlying it, nor did it affect the County's budgetary priorities or the services the County provides to residents.

CONCLUSION

[12] The Maui County Council's decision to deny the CUP was ad hoc, affected only the plaintiffs and did not bear all the hallmarks of traditional legislation. Despite its formally legislative character, the decision was administrative and the individual members of the Maui County Council are therefore not entitled to legislative immunity.FN8

FN8. We have no occasion to address whether the doctrine of qualified immunity applies in this case, nor do we opine on the merits of plaintiffs' claims.

AFFIRMED.

C.A.9 (Hawai‘i),2003.
Kaahumanu v. County of Maui
315 F.3d 1215, 03 Cal. Daily Op. Serv. 390, 2003 Daily Journal D.A.R. 455

Rare Lahaina Accomodation

2008-10-09T12:46:00.000-07:00

A Room of Her Own
"Two roads diverged in a wood, and I -- I took the one less traveled by,
And that has made all the difference." (Robert Frost)
Maui Oct 24 - Nov 02 2006
SATURDAY, DECEMBER 30, 2006

When people think of Hawaii, the word "budget" is not the next thing that comes to mind. But it can be done. I did Maui on a budget! The key is research and planning. There are a few options when it comes to accomodation.

If you're going with a bunch of people, renting an apartment is definately the way to go. But if you're a solo traveller such as myself, consider looking into the few, very few, hostels available in Hawaii. Do your research. There is plenty of information online with feedback from other travellers' first-hand experiences.

Thanks to my friend Christin, I knew to stay in Lahaina Town. There are many other towns on Maui but Lahaina was a little less pricey. What a great little place. Decently priced and full of history. I stayed at Patey's Place on Wainee Street. Yes, they are strict: no alcohol, no drugs, no loud music, kitchen's closed at 10pm. But it is very safe and very clean. I guess they have to be strict to keep things in order. The staff is great; I became good friends with two of them, Aaron and Annemat.

Aaron, who's from California, took me around the island in a 2006 Mustang GT. It was awesome to be driving around Maui with the top down. The weather was perfect and the scenery was absolutely breathtaking. Words cannot describe what I saw. You're just going to have to see it for yourself.

Anna, from Holland, was so much fun to hang around. I miss her. She taught me how to surf; she is a wonderful person. We had fun shopping and singing and driving around in her surf van. We got into a small fender-bender. As you can see, it was easily fixed with some ducktape!!! She's still in Maui. She'll be leaving for Australia in the new year. After a couple of months, she'll be heading to Fiji then to Bali. Anna is on a surfing tour. How awesome is that!! Hope you're having fun girl!
WRITTEN BY THOUGHT GIRL AT 1:13 PM

Hawaii State Land Use Law - Land Use Commission

2008-10-09T12:30:00.000-07:00

History
• Purpose of the Law
• Composition of the Commission
• Role of the Commission
State Land Use Districts
• Urban
• Rural
• Agricultural
• Conservation
District Boundary Amendment Procedures
• Quasi-Judicial Proceedings
• Decision-Making Criteria
• Fifteen Acre Rule
• Affordable Housing Projects
• Special Permits
State Land Use Commission Members:
• Lisa M. Judge Chairperson (Maui)
• Duane Kanuha, Vice Chair (Hawaii)
• Thomas Contrades (Kauai)
• Reuben S.F. Wong, Esq. (Oahu)
• Kyle Chock (At-Large)
• Vladimir P. Devens, Esq. (At-Large)
• Normand R. Lezy, Esq. (At-Large)
• Ransom A.K. Piltz (At-Large)
• Nicholas W. Teves, Jr. (At-Large)
LUC Staff

________________________________________

HISTORY
The State Land Use Law (Chapter 205, Hawaii Revised Statutes) is unique in the history of Hawaii land use planning. Originally adopted by the State Legislature in 1961, the Land Use Law establishes an overall framework of land use management whereby all lands in the State of Hawaii are classified into one of four Districts:
• URBAN
• RURAL
• AGRICULTURAL
• CONSERVATION
PURPOSE OF THE LAW
In 1961, the Hawaii State Legislature determined that a lack of adequate controls had caused the development of Hawaii’s limited and valuable land for short-term gain for the few while resulting in long-term loss to the income and growth potential of our State’s economy. Development of scattered subdivisions, creating problems of expensive yet reduced public services, and the conversion of prime agricultural land to residential use, were key reasons for establishing the state-wide zoning system.
To administer this state-wide zoning law, the Legislature established the Land Use Commission. The Commission is responsible for preserving and protecting Hawaii’s lands and encouraging those uses to which lands are best suited.
COMPOSITION OF THE COMMISSION
The Commission is composed of nine members, who are appointed by the Governor and confirmed by the State Senate. One member is appointed from each of the four counties. Five members are appointed at-large. Commissioners are non-paid volunteers who represent a cross-section of the community.
ROLE OF THE COMMISSION
The Commission’s primary role is to ensure that areas of state concern are addressed and considered in the land use decision-making process.
The Commission establishes the district boundaries for the entire State. The Commission acts on petitions for boundary changes submitted by private landowners, developers and State and county agencies. The Commission also acts on requests for special use permits within the Agricultural and Rural Districts.
STATE LAND USE DISTRICTS
URBAN DISTRICT
The Urban District generally includes lands characterized by “city-like” concentrations of people, structures and services. This District also includes vacant areas for future development.
Jurisdiction of this district lies primarily with the respective counties. Generally, lot sizes and uses permitted in the district area are established by the respective county through ordinances or rules.
RURAL DISTRICT
Rural Districts are composed primarily of small farms intermixed with low-density residential lots with a minimum size of one-half acre.
Jurisdiction over Rural Districts is shared by the Commission and county governments. Permitted uses include those relating or compatible to agricultural use and low-density residential lots.
Variances can by obtained through the special use permitting process.
AGRICULTURAL DISTRICT
The Agricultural District includes lands for the cultivation of crops, aquaculture, raising livestock, wind energy facility, timber cultivation, agriculture-support activities (i.e., mills, employee quarters, etc.) and land with significant potential for agriculture uses. Golf courses and golf-related activities may also by included in this district, provided the land is not in the highest productivity categories (A or B) of the Land Study Bureau’s detailed classification system.
Uses permitted in the highest productivity agricultural categories are governed by statute. Uses in the lower-productivity categories – C, D, E or U - are established by the Commission and include those allowed on A or B lands as well as those stated under Section 205-4.5, Hawaii Revised Statutes.
CONSERVATION DISTRICT
Conservation lands are comprised primarily of lands in existing forest and water reserve zones and include areas necessary for protecting watersheds and water sources, scenic and historic areas, parks, wilderness, open space, recreational areas, habitats of endemic plants, fish and wildlife, and all submerged lands seaward of the shoreline. The conservation District also includes lands subject to flooding and soil erosion.
Conservation Districts are administrated by the State Board of Land and Natural Resources and uses are governed by rules promulgated by the State Department of Land and Natural Resources.
DISTRICT BOUNDARY AMENDMENT PROCEDURES
District boundary amendments are obtained by petition to the Commission. Amendment petitions can be initiated by State departments or agencies; County departments or agencies in which the property is situated; and any person with a direct interest in the property sought to be reclassified. A $500 fee is required from private landowners and developers when filing an application to amend district boundaries. This fee is waived for government agencies.
Contents and format of a petition are described in the Hawaii Land Use Commission Rules. A petition must meet the requirements of content and format before it is considered properly filed and accepted for processing. Upon acceptance of a properly filed petition, the Commission must hold a hearing on the island on which the subject property is situated within not less than 60 days and not more than 180 days. This hearing can be before the entire Commission or an appointed Hearing Officer.
The Commission must decide upon the request within 365 days after the petition is deemed a proper filing unless otherwise ordered by a court, or unless a time extension, which shall not exceed 90 days, is established by a two-thirds vote of the members of the commission. The Commission may approve, approve with conditions or deny the petition. If a district boundary is amended with conditions, the conditions must be recorded with the Bureau of Conveyances, as these conditions will run with the land and shall be binding upon the petitioner and subsequent persons with any interest in the land.
On petitions to redistrict Conservation lands, the requirements of the EIS law (Chapter 343, HRS) must be met before the petition to reclassify Conservation land can be officially accepted as a proper filing and acted upon by the Commission.
Amendment of a district boundary requires approval by at least six of the nine Commissioners.
QUASI-JUDICIAL PROCEEDINGS
By law, the decision-making process of the Commission is quasi-judicial. This means that the process is more judicial than legislative in nature. In this way, the rights of those who are most directly involved or most affected by the decision are accorded due process before an action is taken by the Commission. Theses individuals are allowed to take part in the proceedings as “parties.”
Parties that appear before the Commission may do so on the party’s own behalf or through an authorized representative. Parties may also be represented through an attorney. Persons with direct interests that are clearly distinguishable from those of the general public may petition the Commission to intervene in the proceeding. As an intervenor, a $50 fee is required and they have the right to present witnesses, cross-examine witnesses of other parties, and have standing to appeal the Commission’s decision to the Circuit Court.
All others may apply for leave to intervene as long as their position is not substantially similar to the position of party already admitted to the proceedings.
In addition to the petitioner, the Office of Planning and the respective County Planning Departments are mandatory parties to the proceedings.
The Land Use Law sets general procedures for processing district boundary amendment and special use permit requests. The Commission has adopted specific rules for implementing the law and reviewing these land use requests.
DECISION-MAKING CRITERIA
The Land Use Law requires the Commission to specifically consider the following criteria in review of any petition for a boundary amendment:
A. Conformity to the goals, objectives and policies of the Hawaii State Plan (Chapter 226, Hawaii Revised Statutes) and the Functional Plans adopted pursuant to the State Plan.
B. Extent to which the proposed reclassification conforms to the applicable district standards
C. Impacts on the following State concerns:
1. preservation or maintenance of important natural systems or habitats;
2. maintenance of valued cultural, historical or natural resources;
3. maintenance of other natural resources relevant to Hawaii’s economy, including but not limited to agricultural resources;
4. commitment of state funds and resources;
5. provision for employment opportunities and economic development; and
6. provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups.
D. The representations and commitments made by the petitioner in securing a boundary change.
Furthermore, the Commission must take into account the General Plan of the respective County; and, where applicable, the objectives, policies and guidelines of the State Coastal Zone Management Law (Chapter 205A, Hawaii Revised Statutes).
FIFTEEN ACRE RULE
In an effort to streamline the decision-making process, the law was amended in 1985 to allow applicants for land use changes of 15 acres or less to apply directly to the counties. The Commission, therefore, no longer handles such requests except when the lands are situated within the Conservation District.
All amendments approved by the counties are submitted to the State Land Use Commission Office in Honolulu for revision of the Official State Land Use District Boundaries Maps.
AFFORDABLE HOUSING PROJECTS
Projects which qualify under Section 201G-118, Hawaii Revised Statutes, as affordable housing projects benefit from a “fast track” procedure whereby petitions for district boundary amendment are required to be heard and decided upon within 45 days after the filing of a petition.
SPECIAL USE PERMIT PROCEDURES
This permitting process allows for “unusual and reasonable” uses within the Agricultural and Rural Districts; provided such uses comply with the objectives of the Land Use Law and meet the guidelines established by the Commission.
Applications for special use permits are made initially to the appropriate planning commission of the county where the property is located. When the proposed permit area is greater than 15 acres, the approval of both the county and the Commission is required.
On an application that involves an area greater than 15 acres, the Commission must decide on the request within 45 days after receipt of the complete record of the proceeding held by the County. Five affirmative votes are required to approve such a request.
Denial or modification of a Special Use Permit is appeal able to the circuit court of the circuit in which the land is situated.
________________________________________
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Mayor Tavares MVRA Deposition

2008-10-09T12:15:00.000-07:00

0001
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF HAWAII
3 MAUI VACATION RENTAL ASSOCIATION, )
INC., a Hawaii corporation, )
4 )
Plaintiff, ) CIVIL NO.
5 ) CV 07-00495 JSM/KSC
vs. )
6 )
THE COUNTY OF MAUI; JEFF HUNT, )
7 Director of MAUI COUNTY PLANNING )
DEPARTMENT, as an individual, and )
8 DOES 1-10, inclusive; )
)
9 Defendants, )
___________________________________)
10
11 Deposition Noticed by: James H. Fosbinder, Esq.
12
13 DEPOSITION OF MAYOR CHARMAINE TAVARES
14 2:02 p.m., November 28, 2007
15
16 Taken on behalf of the Plaintiff, at the Mayor's Lounge,
17 County of Maui, 200 High Street, Wailuku, Maui, Hawaii.
18
19
20
21
22
23 REPORTED BY: KATHERINE EISMANN, CRR/RDR/CSR #439
24 IWADO COURT REPORTERS
(808)244-9300
25 Email: Info@iwadocourtreporters.com
0002
1 A P P E A R A N C E S
2 For the Plaintiff:
3 JAMES H. FOSBINDER, ESQ.
Ivey Fosbinder Fosbinder LLC
4 A Limited Liability Law Company
2233 Vineyard Street, Suite C
5 Wailuku, Hawaii 96793
(808) 242-4956
6 Email: fsbndr@hawaii.rr.com
7 For the Defendant County of Maui:
8 JANE E. LOVELL
MARY BLAINE JOHNSTON
9 Deputies Corporation Counsel
County of Maui
10 200 S. High Street
Wailuku, Hawaii 96793
11 (808) 270-7575
Email: jane.lovell@co.maui.hi
24
25
0003
1 EXAMINATION INDEX
2 Examination by: Page
3 Mr. Fosbinder 4
4
5
6 EXHIBIT INDEX
7 Exhibit Number Description Page
8 (None marked.)
9
10
11

25
0004
1 Pursuant to Rule 14 of the Rules Governing
2 Court Reporting in Hawaii, the Reporter's Disclosure was
3 made and is attached hereto.
4 Pursuant to Rule 30(b)(4) of the Hawaii
5 Rules of Civil Procedure, the following is stated for
6 the record:
7 My name is Katherine Eismann, Certified
8 Shorthand Reporter with Iwado Court Reporters. My
9 business address is 2233 W. Vineyard Street, Suite A,
10 Wailuku, Maui, Hawaii. Today's date is November 28,
11 2007. The time is 2:02 p.m. This deposition is taking
12 place at the Mayor's Lounge, County of Maui, 200 High
13 Street, Wailuku, Maui, Hawaii.
14 In attendance are: Mr. Fosbinder, Mr. David
15 Dantes, Ms. Lani Stout, Ms. Lovell, and Ms. Johnston
16 The deponent is:
17 MAYOR CHARMAINE TAVARES
18 * * * * *
19 The deponent, having been sworn to tell the
20 truth, the whole truth, and nothing but the truth, was
21 examined and testified as follows:
22 EXAMINATION
23 BY MR. FOSBINDER:
24 Q. It seems silly, but would you state your
25 name for the record?
0005
1 A. Charmaine Tavares, C-H-A-R-M-A-I-N-E
2 T-A-V-A-R-E-S.
3 Q. When did you -- let me say a few things
4 first. We'd ask that you try to avoid saying uh-huh or
5 huh-uh, because the court reporter --
6 A. Uh-huh.
7 Q. -- has trouble with that. I'll try not to
8 talk over you, and you will try not to talk over me. If
9 I ask you to make an estimate --
10 A. Uh-huh.
11 Q. -- it seems obvious, and I assume you know
12 this, but I will explain anyway. The difference between
13 an estimate and guessing is if you are guessing, you
14 really have no idea at all. If you are estimating, you
15 may only know that it's less than a million, but that
16 might be helpful to me, because I might not know that it
17 was less than a hundred million.
18 A. Right, right.
19 Q. So, if you have any information that helps
20 to narrow the number to something, that's more helpful
21 than nothing. So, I would ask you to answer those
22 questions if you can. If you just have no information
23 whatsoever, and it's a guess, I don't want to hear that.
24 Just say I can't do anything but guess, and I won't ask
25 about it anymore.
0006
1 A. That's fine.
2 Q. Okay. Approximately when did you decide
3 that it would be desirable to shut down all un-permitted
4 vacation rentals on Maui?
5 MS. LOVELL: Object to the form of the
6 question. Assumes facts. You may answer.
7 THE WITNESS: It's not up to me to decide,
8 actually.
9 BY MR. FOSBINDER:
10 Q. Okay. Who is it up to to decide?
11 A. The law.
12 Q. Okay. So, is it your position that the law
13 mandates that un-permitted vacation rentals be the
14 subject of an enforcement action by the County of Maui?
15 A. If those un-permitted vacation rentals are
16 outside the zones where vacation rentals are permitted.
17 Q. So, for instance, recently, Mr. Dantes'
18 application was approved by the County Land Use
19 Committee. Are you aware of that?
20 A. Yes, I am.
21 Q. And that's in an ag zone. Is that within or
22 outside the permitted area?
23 A. That is outside the permitted areas.
24 Q. Okay. By that, do you mean that it's
25 outside the permitted areas if you don't have a permit,
0007
1 a conditional permit or a special permit, or do you mean
2 that no matter what, there should not be, as you
3 understand the law, any vacation rentals in that area?
4 MS. LOVELL: That question asks for a legal
5 conclusion, but you may answer if you can.
6 THE WITNESS: The permitted areas are resort
7 areas, and specifically, hotel and other zoned areas.
8 Agriculturally zoned areas are not outright permitted,
9 so there is a process to go through to get a permit
10 discussed and acted upon by the Council and the Mayor.
11 BY MR. FOSBINDER:
12 Q. Okay. So, it's your understanding that it
13 is possible to go through a process, and if you are on
14 ag land, you may be able to get a vacation rental
15 permit?
16 A. You may.
17 Q. Okay. When you say that the law requires
18 that enforcement be done, does the law, as you
19 understand it, require that every single law regarding
20 zoning be enforced by the County all the time?
21 MS. LOVELL: Object to the form of the
22 question as it misstates former testimony and also it
23 calls for a legal conclusion, but you may answer, if you
24 can.
25 THE WITNESS: Well, I don't think I can,
0008
1 because it's very general.
2 BY MR. FOSBINDER:
3 Q. I'm going to hand out the piles. Somewhere
4 in there, and I'm afraid that I can't tell you
5 exactly -- let me try to figure out roughly where it is.
6 Okay. If you start at the back, one, two staples, three
7 staples.
8 MS. STOUT: The October 8th letter?
9 MR. FOSBINDER: Yes, October 9th, 2002.
10 MS. STOUT: October 9th letter regarding
11 home-based business policy.
12 MR. FOSBINDER: Right.
13 THE WITNESS: Is this in chronological
14 order?
15 MS. LOVELL: No, I don't think so. I mean,
16 I have no idea.
17 BY MR. FOSBINDER:
18 Q. It's not. Did you find it?
19 A. Yes.
20 Q. Okay. And then if you look at the document
21 just before that, too -- sorry.
22 MS. STOUT: April 28th, it should be just
23 underneath that particular document.
24 MS. JOHNSTON: April 28th, 2003.
25
0009
1 BY MR. FOSBINDER:
2 Q. Correct, yes.
3 A. Which one are you looking at first?
4 Q. Well, I'd like you to look at both of them,
5 but I don't care which one you look at first, but look
6 at both of them.
7 A. Do you have a question?
8 Q. Yes. If you look in particular at the
9 April 28th, 2003, document, my understanding, after
10 deposing your Planning Director, Mr. Hunt, is that this
11 memo is still in effect. Do you know whether that's
12 true or not?
13 MS. LOVELL: I object to the preamble and
14 the assumptions built into it, but you may answer.
15 THE WITNESS: Well, you will notice that
16 based on the date of the transmittal or communication,
17 it's from a former Planning Director and is a former
18 administration. That is not my administration. So,
19 unless it's an opinion by Corporation Counsel, they are
20 all subject to interpretation.
21 BY MR. FOSBINDER:
22 Q. Okay. But my question was, Mr. Hunt said
23 that this was still in effect. Do you disagree with
24 that?
25 MS. LOVELL: I disagree with the form of the
0010
1 question. It assumes facts, but you may answer.
2 THE WITNESS: It's not my place to disagree.
3 If I were going to disagree or agree, I would first want
4 to see if it's based in law, and that would take an
5 opinion by Corporation Counsel.
6 BY MR. FOSBINDER:
7 Q. Do you know what the County's policy is with
8 regard to home-based businesses at this time?
9 A. Home-based businesses, I'm not really sure,
10 but there are certain home-based businesses that require
11 permits, either by the State or the County, such as
12 daycare centers, adult daycare centers, and there may be
13 others.
14 Q. Okay. Well, if you look at this, if you
15 look at the third paragraph, it says -- I'm sorry. I
16 guess really the second paragraph.
17 It states, "In our existing codes,
18 home-based businesses are not permitted within the
19 County's residential, apartment, rural or agricultural
20 districts without first obtaining a County special use
21 permit, conditional use permit, or use variance. As
22 such, our existing ordinances greatly overregulate
23 home-based businesses at a considerable cost to our
24 County's economy."
25 Are you familiar with that section of this?
0011
1 A. Now, I am.
2 Q. In your opinion, is that true or not true,
3 if you have an opinion?
4 A. I think this is Mike Foley's opinion about
5 overregulation of home-based businesses. And I'll go
6 back to what I said earlier, that part of our problem
7 exists sometimes when people go ahead and try to
8 interpret laws that are not our attorneys.
9 Q. Okay. Well, Jane Lovell was there. Your
10 Planning Director said this was currently the policy of
11 the County of Maui. Are you saying it shouldn't be?
12 A. No, I'm not saying that.
13 MS. LOVELL: I object to the form of the
14 question, it's argumentative, and it misstates prior
15 testimony. Now you may answer.
16 MR. FOSBINDER: Misstates prior testimony in
17 what way?
18 MS. LOVELL: Of Hunt.
19 MR. FOSBINDER: He said this was still the
20 policy.
21 MS. LOVELL: The record will reflect what he
22 said.
23 MR. FOSBINDER: And that's what it said.
24 MS. LOVELL: Well, that's fine. When we see
25 the record, we can see what it said. We don't have to
0012
1 take your word for it.
2 BY MR. FOSBINDER:
3 Q. If he said that, is he in error as far as
4 you are concerned?
5 A. No, I really have no comment about that. We
6 have not delved into this particular interpretation or
7 section.
8 Q. Okay. Why is it that you haven't delved
9 into this particular interpretation, as you refer to it,
10 but you have delved into vacation rentals?
11 A. Because vacation rentals are specifically
12 outlined in some of the laws, such as the Community Plan
13 and short-term occupation or short-term residents --
14 residency is mentioned specifically in our codes as is
15 daycare centers and other ones.
16 Q. You are saying that -- am I to understand
17 that your belief is that home-based businesses are
18 permitted within the County's residential, apartment,
19 rural, or agricultural districts without first obtaining
20 a County special use permit?
21 A. I didn't say that.
22 MS. LOVELL: That's not what she said.
23 THE WITNESS: I didn't say that.
24 BY MR. FOSBINDER:
25 Q. I didn't say it was correct, I asked. I was
0013
1 not correct?
2 A. No.
3 Q. So, is it your understanding that they do
4 require the conditional or use variance or special use
5 permit?
6 A. It depends on what the activity is, and
7 there are different provisions in the law for different
8 types of activities.
9 Q. Are you reading this in a way that to you it
10 doesn't mean that the Planning Director, in this
11 document, is acknowledging that this policy statement,
12 this memo regarding home-based business policy
13 contradicts the statute?
14 A. No, I'm not saying that.
15 MS. LOVELL: What? Wait, wait, wait. Just
16 a moment, Mayor. That question is completely
17 unintelligible.
18 BY MR. FOSBINDER:
19 Q. Well, she intelliged (sic) it.
20 A. Well, my intelligence of it is that I said
21 once before that Mr. Foley is expressing his opinion and
22 his interpretation of the laws, which he's not really
23 qualified to do, and I would depend on Corporation
24 Counsel opinions and their interpretation of the law as
25 well as the Court's opinion's rather than -- you know,
0014
1 someone can have a personal opinion about anything, but
2 it's what is it based on.
3 Q. Well, if you look at the other document
4 dated October 9th, 2002, from John Min -- have you read
5 this document previously?
6 A. I might have a long time ago.
7 Q. Okay.
8 A. When I was on Council.
9 Q. Would you read it now?
10 A. 2002 was five years ago.
11 Q. I know. Would you like to read it before I
12 ask you questions about it?
13 A. Well, I don't see that -- a copy was sent to
14 Deputy Corporation Counsel, but there is no other
15 indication that Corporation Counsel was actually asked
16 for an opinion regarding home-based businesses.
17 Q. Okay. Would you like to look -- let's step
18 back to the April 28th, 2003, document, if you want to
19 make that point, and I'd have you look at the last page
20 of it.
21 A. Yes, okay. And a copy was given to Brian
22 Moto.
23 Q. That's correct.
24 A. Yes.
25 Q. And is Brian Moto your choice for --
0015
1 A. Corporation Counsel.
2 Q. -- Corp Counsel?
3 A. Yes, he is.
4 Q. So, you understand that he apparently
5 approved this?
6 A. No, he didn't approve it. He got a copy of
7 it. XC that means a copy.
8 Q. So, as you understand it, perhaps Mr. Foley
9 got an opinion from Brian Moto that this was illegal but
10 went ahead and did it anyway; is that what you think may
11 have happened?
12 A. No.
13 MS. LOVELL: No, that's a completely
14 argumentative question, and it's completely improper.
15 Please rephrase it.
16 BY MR. FOSBINDER:
17 Q. You were on the County Council. You have
18 been the Mayor. Is it your understanding that when the
19 County Corporation Counsel gets a document such as this
20 to review, that they give the person who sent it to
21 them, in this case the Planning Director, their opinion
22 as to whether or not it's legal or illegal?
23 A. Do you have a document from Corporation
24 Counsel that says it's legal?
25 Q. I'm asking you what the customary procedure
0016
1 as you understand it has been?
2 A. As I understand it, and I'm not in
3 Corporation Counsel, that many documents, hundreds and
4 thousands of documents get copied to the Corporation
5 Counsel, and it's a matter of courtesy. And when and if
6 this comes up, then they can look at some of these
7 things and do whatever they need to do based on what's
8 requested of them either by me or the County Council.
9 Q. Okay. Has anyone come to you prior to my
10 bringing this document up to you and talked to you about
11 this document since you became Mayor?
12 A. No.
13 Q. Okay. Is it -- do we agree that both of
14 these documents appear to be documents which are from
15 the Planning Director, which have the effect of stating
16 that certain things which are illegal will not be
17 enforced, if you will, against as long as the policy is
18 in effect?
19 MS. LOVELL: Well, that's a completely
20 overbroad question. You have got two multi-paged memos.
21 MR. FOSBINDER: I asked her if she wanted to
22 read it, and I'm perfectly happy to have her read it.
23 MS. LOVELL: I think you need to break that
24 down. Each memo has numerous things in it. You are
25 asking for --
0017
1 MR. FOSBINDER: Is that an objection?
2 MS. LOVELL: Yes.
3 MR. FOSBINDER: It doesn't sound like one.
4 MS. LOVELL: Your question is compound and
5 overbroad.
6 BY MR. FOSBINDER:
7 Q. Can you answer the question?
8 A. No.
9 Q. Okay. Have you read these?
10 A. As I stated earlier, I read them at some
11 point in time as a Council member.
12 Q. Would you read them now, please?
13 A. They basically state the same thing --
14 Q. We agree with that.
15 A. -- in the enumeration of the home-based
16 business being considered incidental. The points are, I
17 believe, the same in both memos.
18 Q. And doesn't the statement, "As such, our
19 existing ordinances greatly overregulate the home-based
20 businesses at a considerable cost to our County's
21 economy," combined with the rest of the letter, make it
22 clear that they are making a policy that for certain
23 home-based businesses, which are described in greater
24 detail on the second page, that they will not be
25 enforcing the statute even though they know the statute
0018
1 appears to apply?
2 MS. LOVELL: That completely misstates both
3 documents. You may answer though.
4 THE WITNESS: As I said before, that second
5 paragraph represents Mr. Foley's opinion.
6 BY MR. FOSBINDER:
7 Q. Well, Mr. Min's apparently, too.
8 A. And Mr. Min's.
9 Q. And apparently the Planning Director, but --
10 since he told me this was the policy.
11 A. They are both the Planning Directors at
12 their time.
13 Q. So, is it your testimony that if a Planning
14 Director wishes to have a written policy not to enforce
15 a particular County regulation or law, that that is
16 improper and that they cannot do that lawfully?
17 A. Yeah, well --
18 MS. LOVELL: That calls for a legal
19 conclusion.
20 BY MR. FOSBINDER:
21 Q. I want to know what her understanding is. I
22 am trying to understand how the County government works.
23 I want to know what she understands. I don't know
24 whether it's true or not. I just want to know what
25 principle she's working on. Can they do that or not do
0019
1 that?
2 A. I think they cannot do that.
3 Q. Okay.
4 A. Not as alone. They have to have a basis in
5 law and with -- like I said, with the opinion or
6 interpretation based upon Corporation Counsel's opinions
7 on what it is. They can call anything a policy, but
8 if -- it's not up to the Planning Director to say he's
9 going to have this policy that's contrary to other parts
10 of our laws.
11 Q. I mean, as I understand it, the Planning
12 Directors apparently felt that they had limited
13 resources and some things were worth enforcing and some
14 things weren't. Is it your perception that the County
15 Planning Director must attempt to enforce every zoning
16 ordinance equally with equal effort?
17 MS. LOVELL: Before you answer, Mayor, I
18 object to the form of the question and particularly to
19 the preamble. But you may -- as assuming facts, and it
20 makes it a compound question. But you may answer.
21 THE WITNESS: It is similar to expecting the
22 police department to tag every speeder on the highway.
23 BY MR. FOSBINDER:
24 Q. I agree.
25 A. So that when it comes down to enforcement,
0020
1 given your personnel, there are certain ones that will
2 receive priority over others as far as enforcement of
3 like zoning infractions.
4 Q. Okay. And assuming that your Planning
5 Director said this was the current policy, can you
6 explain to me why it is that no effort is being made to
7 enforce the laws regarding home-based businesses other
8 than home-based businesses that involve vacation
9 rentals?
10 MS. LOVELL: I object to the form of the
11 question. It assumes facts and it misstates the
12 testimony of Mr. Hunt. You may answer.
13 THE WITNESS: What was the question?
14 MR. FOSBINDER: Can you read it back?
15 THE REPORTER: "Question: Okay. And
16 assuming that your Planning Director said this was the
17 current policy, can you explain to me why it is that no
18 effort is being made to enforce the laws regarding
19 home-based businesses other than home-based businesses
20 that involve vacation rentals?"
21 THE WITNESS: When you said this is the
22 policy, which policy was he referring to?
23 MR. FOSBINDER: The most recent one.
24 MS. LOVELL: Well, that again misstates his
25 testimony.
0021
1 MR. FOSBINDER: 2003, Foley.
2 MS. LOVELL: Mr. Hunt testified that it was
3 an interpretation.
4 MR. FOSBINDER: He said it was the policy.
5 MS. LOVELL: Well, the transcript will say
6 what it says, but --
7 BY MR. FOSBINDER:
8 Q. Can you answer the question?
9 A. Not until I see Mr. -- actually,
10 Mr. Foley's -- I mean, what Mr. Hunt said, because if
11 he's saying the policy as described by Mr. Foley's memo
12 and similarly Mr. Min's memo, I think the part they were
13 talking about is part two, the interpretation and
14 enforcement, which lists what's considered -- what
15 wouldn't be considered a home occupation.
16 Q. I'm sorry. Are you stating that you
17 understand this document to be saying that under the
18 existing statutes, that if a business meets
19 characteristics one through 10, that, as a matter of
20 law, they don't require a permit or a variance?
21 MS. LOVELL: That's not what she said.
22 THE WITNESS: No.
23 MR. FOSBINDER: I asked. There is no reason
24 for you to tell me that's not what she said. I'm asking
25 her if that's what she said.
0022
1 MS. LOVELL: Well, my objection is you
2 misstated testimony.
3 MR. FOSBINDER: I am asking her. I am not
4 misstating anything. I am asking her if that's what she
5 meant. You are just harassing. That doesn't make any
6 sense to say that's not what she said if I am asking her
7 if that's what she meant.
8 MS. LOVELL: It's my duty to make objections
9 to questions that are objectionable as to form and
10 that's what I am doing.
11 THE WITNESS: I would want, first of all, to
12 check in our codes if this part two interpretation and
13 enforcement is actually stated as part of our County
14 Code. It doesn't have a reference to it, but it must
15 have come from somewhere.
16 BY MR. FOSBINDER:
17 Q. Yeah, John Min.
18 A. Because the first one has eight or seven.
19 John Min's one has eight, and this one has 10. So, I
20 would want the opportunity to check in our County Code
21 to see if this is stated in that code.
22 Q. Okay. We will come back to that later
23 presumably then. Is there any reason that you can think
24 of that all of the other home-based businesses, which
25 would be covered by these policy memos, would not be
0023
1 having any enforcement action at all, if they are not
2 legal, if they are clearly -- if you read the law, the
3 understanding, apparently, of both Planning Directors
4 were they weren't legal, but they were going to allow
5 it. Why is it that they are not the subject of any
6 apparent enforcement action at the moment at all?
7 MS. LOVELL: I object to the form of the
8 question as assuming facts, and it's also a compound.
9 You may answer.
10 THE WITNESS: You are assuming that there
11 has been no enforcement of other than illegal transient
12 vacation rentals.
13 BY MR. FOSBINDER:
14 Q. I'm assuming it's not any sort of
15 significant effort at the moment. Is it your
16 understanding it is or do you just not know?
17 A. I do not know specific cases, but I can
18 recollect some of the -- it didn't come in Council, but
19 some of the home occupation businesses were shut down
20 other than transient vacation rentals.
21 Q. Is it your -- have you discussed enforcement
22 of laws regarding vacation rentals directly with
23 Mr. Hunt?
24 A. Yes.
25 Q. Okay. And approximately how much time have
0024
1 you spent, since you became Mayor, discussing that issue
2 with Mr. Hunt?
3 A. Approximately? I would say at least a
4 couple hours a month.
5 Q. Okay. And have you made any suggestions to
6 Mr. Hunt as to what should be done?
7 A. We have discussed various processes.
8 Q. Have you made any suggestions to Mr. Hunt as
9 to what should be done?
10 A. I don't know if I made the suggestions, but
11 what he is doing now is a joint -- he's not on his own,
12 in other words. What he has as his -- laid out his time
13 lines and all that was discussed.
14 Q. Have you, to the best of your recollection,
15 made any suggestions to Mr. Hunt as to how or in what
16 manner or what time vacation rental laws should be
17 enforced?
18 A. I can't speak specifically to any specific
19 recommendation. They are all part of a discussion that
20 involves Mr. Hunt and others. So, the answer is no, if
21 you are saying did I make a specific recommendation, and
22 that's why we have this enforcement. It was not done
23 unilaterally.
24 Q. Did you make a general suggestion to
25 Mr. Hunt?
0025
1 A. Yeah, the general suggestion was to outline
2 what was going to happen with the applications, what was
3 going to happen with time lines for closing -- closing
4 down illegal operations. They were given deadlines.
5 The calendars were set. Yes, those all happened.
6 Q. And did you make suggestions as to what the
7 calendar should be?
8 A. Well, you're assuming that because I'm Mayor
9 I do a unilateral, "it shall be this."
10 Q. I am asking.
11 A. I don't do that. That's not how I operate.
12 I operate in an atmosphere, an environment where
13 everyone has an opportunity to discuss and have input.
14 And through people's input, we come up with what we
15 think is the best solution, or process, or whatever it
16 may be. And this applies across all departments, not
17 just the Planning Department. So, I don't -- you know,
18 I am not the pound-your-fist-on-the-table kind of
19 person.
20 Q. Does Mr. Hunt serve at your pleasure?
21 A. Yes.
22 Q. Does Mr. Hunt understand that you can fire
23 him at any time for any reason?
24 A. I'm sure he does. Even for no reason.
25 Q. Did Mr. Hunt come to you and propose
0026
1 changing the policy regarding the enforcement of the TVR
2 regulations, laws, or did you bring the matter up to him
3 or something else?
4 A. Let's see. I took -- we took office on
5 January 2nd. And by that time, the former bill for an
6 ordinance had gone to the Planning Commissions and come
7 back to the Council, and the new Council was acting on
8 it.
9 When the new Council filed that, then we met
10 to determine what it is we would do, because I
11 believe -- and I don't have the minutes in front of me,
12 but I believe that the conversation or discussion was
13 that now that this bill has failed, we don't want to see
14 any other moratoriums, or in abeyance, or that kind of
15 stuff. The County Council's message to the
16 administration was to enforce the laws.
17 Q. Okay. First of all, you say there was a
18 message from the County Council. How did you receive
19 that message?
20 A. Through the minutes of the meeting.
21 Q. And the County --
22 A. In their discussion, in their discussion on
23 the County Council.
24 Q. And so the County Council didn't vote to
25 send you a message?
0027
1 A. No, no.
2 Q. You are interpreting what the County Council
3 members said that was recorded during the meeting?
4 A. I'm interpreting that they said enforce the
5 law. Yes, I am interpreting that.
6 Q. And did Mr. Hunt tell you that he thought
7 that had happened, or did you tell him you thought that
8 had happened?
9 A. I don't remember.
10 Q. Okay. Did you or anyone at that time
11 suggest that it might be desirable to make some sort of
12 analysis of what the economic impact of shutting down
13 all of the vacation rentals might be?
14 A. If there was a suggestion to do that? No.
15 Q. Okay. Do you think that is an issue worth
16 considering what the economic impact may be?
17 A. No. You want the economic impact of an
18 illegal operation? Does that mean that every illegal
19 operation in the country should have an economic impact
20 study done before it's shut down?
21 Q. Well, perhaps everyone that was encouraged
22 by every branch of the County for a decade to go ahead
23 and do it should.
24 A. Not based in law though.
25 Q. You have indicated that you have heard from
0028
1 many members of our island community who were dismayed
2 about losing a sense of security in their rural
3 neighborhoods.
4 A. Uh-huh.
5 Q. How many people have contacted you to
6 express a lack of feeling of security in their rural
7 neighborhoods?
8 A. That used the exact word security?
9 Q. Well, we will start with that.
10 A. Okay. Who might have used the exact word of
11 security, I think two.
12 Q. Okay. And do you remember who they are?
13 Are they people you know personally before they
14 expressed their concern?
15 A. No, no.
16 Q. Okay. How many people have communicated a
17 concern about the economic impact of closing down all
18 the vacation rentals?
19 A. There's been a number of them.
20 Q. Hundreds?
21 A. No. I would say a few dozen.
22 Q. Okay. And the people who expressed concern
23 about their sense of security, what was that based on as
24 you understood it? Were they concerned about crime
25 or --
0029
1 A. No.
2 Q. What were they concerned about?
3 A. The concern was about -- from one of them
4 was that they were not feeling good about the traffic
5 that was in their neighborhood, and this one particular
6 person lived on a cul-de-sac where the kids, as local
7 kids do, play in the street.
8 She was afraid for their safety and did not
9 allow them to play on the street anymore. The lack of,
10 I guess, the feeling that they didn't know who the
11 people are, these strangers that show up every so many
12 days was a concern.
13 Q. That's one, and what's the other?
14 A. The other was the feeling that they didn't
15 know their neighbors. They lost their sense of a little
16 neighborhood, like so many of us do on our -- in our
17 communities. And you know, several people have said
18 that, not just one or two.
19 But when you ask specifically about
20 security, I would have to point to the security part
21 being safety of the children as being their concern. I
22 don't believe anyone talked about crime.
23 Q. Okay. And you understand that the Planning
24 Director can initiate enforcement action against any
25 particular vacation rental if there's a complaint,
0030
1 right?
2 A. Yes.
3 Q. And had these people complained to the
4 Planning Director?
5 A. No.
6 Q. And why not, if you know?
7 A. Because they are local. Local people
8 usually don't do that.
9 Q. They complain to you?
10 A. They complain to people they know or they
11 feel that will listen.
12 Q. Were you someone they knew?
13 A. They knew me in my position as Council
14 Member and then as Mayor.
15 Q. Presumably, they would know the Planning
16 Director in the same way?
17 A. No, the Planning Director is new.
18 Q. Ah, okay. So, am I correct that no one has
19 expressed to you a concern that tourists who stay in
20 vacation rentals are more likely to commit crimes
21 than --
22 A. No, no one has expressed that to me
23 personally.
24 Q. Okay. And do we agree that that probably
25 has something to do with the demographics, the average
0031
1 age of vacation rental people, or do you have any
2 opinion as to what that --
3 A. Well, I don't think that's what tourists
4 come here for, to rip off their neighbors.
5 Q. Well, we will agree on that. That's fine.
6 It's not a headline we see very often, is it?
7 A. No.
8 Q. So, the next issue is whether or not
9 vacation rentals have an impact on affordable housing.
10 Is it your position that vacation rental businesses had
11 a negative impact on the availability of affordable
12 housing? And I am limiting this question to within the
13 Paia-Haiku Community Plan area.
14 A. That's something that has not been studied
15 in particular, because, as you well know, some of those
16 vacation rentals, if they were on the open market for
17 long-term rental, would be way out of the reach for
18 affordable. So, we don't know, and we haven't studied
19 that part.
20 Q. Do you have an opinion, in the absence of a
21 study, on whether it may have affected the affordability
22 issue?
23 A. I don't have an opinion.
24 Q. Okay. I guess the core question that most
25 of the people I have talked to would like to know is why
0032
1 not wait to shut down people until their permits are
2 processed? Do we -- I will start with a separate
3 question. Let me lay a foundation.
4 Do we agree that there are approximately 70
5 pending permits in front of the Planning Department for
6 TVRs?
7 A. That's the number I have heard from the
8 Planning Department.
9 Q. And why not wait until they are processed to
10 shut them down?
11 A. They have been on notice since, I believe,
12 even last year or earlier, earlier in the year. Yeah,
13 not last year. I am sorry. I thought we were in 2008
14 already. This year, after the bill failed.
15 Q. Close.
16 A. A few days off.
17 Q. Once the Christmas shopping --
18 A. When the first bill failed or that bill
19 failed, then that's when the notices kind of went out to
20 everyone. So that would have, in effect, given them
21 almost a year to make accommodations for their
22 reservations they had already incurred for beyond
23 whatever period of time, and they were given, I believe,
24 January 1st.
25 Q. Have I forgotten something?
0033
1 A. Next year.
2 Q. I thought the change in enforcement policy
3 wasn't until the middle of February, and that it was
4 kept secret for two months. Is that not your
5 understanding?
6 A. No, no. When the bill failed? The bill
7 failed, I think, in February.
8 Q. But the failure of the bill didn't
9 necessarily mean that the enforcement policy would
10 change?
11 A. No, but if the bill had passed, the
12 enforcement policy would have changed because of the way
13 the bill was crafted, and that they would then be legal,
14 the ones in ag district.
15 Q. But they still had to apply for permits,
16 didn't they?
17 A. I don't recall the details of the bill. I
18 am sorry.
19 Q. Well, if it did require that they get a
20 permit, it was just easier to get?
21 A. Yes, yes.
22 Q. So, they still would have had to get a
23 permit?
24 A. Yes.
25 Q. So, why not wait -- some of these people --
0034
1 do we agree that some of these people have applied as
2 much as more than four years ago for permits?
3 A. Yes.
4 Q. And that the permits were held up in the
5 County Council for some cases for years?
6 A. There are many things held up in the County
7 Council for years. I have been there.
8 Q. Happy to agree with you about that.
9 A. Ten years I was there.
10 Q. Everything is held up or close to it. No,
11 but do you agree that many of these permits were stuck,
12 if you will, in the County Council for over a year?
13 A. I would say they were on the Council agendas
14 for over a year.
15 Q. Without action?
16 A. Without action for some of them. Some of
17 them did receive action. That's shown in your -- one of
18 your papers over here.
19 Q. Correct.
20 A. So, there was not an outright we are not
21 going to process applications.
22 Q. But there was, in fact, a failure to process
23 most of those 70 applications for more than a year?
24 A. Well, we don't have deadlines in Council.
25 Q. I understand that. Is it your understanding
0035
1 that when the Council was voting on these permits, that
2 they were acting legislatively or administratively?
3 A. Legislatively.
4 MS. LOVELL: That calls for a legal
5 conclusion, but you may answer.
6 THE WITNESS: Legislatively of course. What
7 else would it be? Administratively?
8 BY MR. FOSBINDER:
9 Q. In light of the Laki Kaahumanu decision --
10 MS. LOVELL: Well, now you are clearly
11 asking for a legal conclusion.
12 BY MR. FOSBINDER:
13 Q. Not just responding but asking a question.
14 A. That's their role. They are the legislative
15 branch. They make the laws. Through the laws, the
16 policies of the County are established. Then it is up
17 to the administration to carry out those policies.
18 Q. Is it your belief that every single thing
19 that the County Council does that it says is passing a
20 law is legislative action and not administrative?
21 MS. LOVELL: Again, that calls for a legal
22 conclusion, and it's overbroad.
23 MR. FOSBINDER: I am asking her what her
24 understanding is.
25 MS. LOVELL: Your question is entirely
0036
1 overbroad, but you may answer.
2 THE WITNESS: I don't understand what you
3 are getting at.
4 BY MR. FOSBINDER:
5 Q. Well, there was --
6 A. How can it be administrative?
7 Q. You are not aware of the decision the Ninth
8 Circuit made regarding Sandy Barker?
9 MS. LOVELL: Mr. Fosbinder, the Mayor is not
10 here to provide legal interpretations of Ninth Circuit
11 opinions.
12 MR. FOSBINDER: I don't want her to
13 interpret anything. I just want to know what she's
14 aware of and what she isn't. I am trying to find out
15 how this decision got made.
16 Q. Are you aware -- do you know what I'm
17 talking about, Sandy Barker?
18 A. I know about the case. I was the Park's
19 Director at the time.
20 Q. Didn't the Ninth Circuit rule that sometimes
21 when the legislative branch of the County Council votes
22 on an ordinance, that actually they are acting
23 administratively?
24 A. No.
25 MS. LOVELL: When you ask the Mayor to
0037
1 respond to what the Ninth Circuit ruled, you are asking
2 for a legal conclusion.
3 BY MR. FOSBINDER:
4 Q. Well, isn't that your understanding that
5 that's what happened?
6 A. No, I don't know what happened after that.
7 Q. Okay. That's fine. So, getting back to the
8 core issue, why not wait until these people who applied
9 for permits in good faith years ago had their permits
10 processed? What happened that necessitated that
11 enforcement action begin before they get their permit or
12 don't get their permit?
13 A. Well, normally, people get their permits or
14 whatever's required before they even start something. I
15 didn't drive a car until I had a permit.
16 Q. I agree with all of that. However, do we
17 not agree that the County of Maui, in terms of both
18 previous Mayors, Mr. Arakawa, and Mr. Apana, and the
19 Planning Department encouraged people to go into the
20 vacation rental business?
21 A. I can't -- I can't comment on that.
22 Q. You don't have any recollection of anything
23 happening that was looking like encouraging people to go
24 into the vacation rental business?
25 A. No, I do not.
0038
1 Q. Okay. I mean, you are aware, of course,
2 that Mr. Min signed the document with Mr. Dantes that
3 said that no one would be prosecuted until their permit
4 was reviewed?
5 MS. LOVELL: Well, that's an incomplete
6 description --
7 THE WITNESS: Is that here?
8 MS. LOVELL: -- of the document.
9 MS. STOUT: It's toward the bottom.
10 BY MR. FOSBINDER:
11 Q. Toward the bottom.
12 A. Oh, maybe I have part of the bottom here.
13 MS. LOVELL: There itself.
14 THE WITNESS: This bottom belongs on this
15 bottom.
16 BY MR. FOSBINDER:
17 Q. I'm referring to the November 1st, 2001,
18 document.
19 A. Uh-huh. This looks like a document that
20 reiterates or captures what happened in a meeting.
21 Q. I accept that characterization. Do you know
22 that it was signed by John Min, Planning Director, and
23 David Dantes?
24 A. Uh-huh, I see that.
25 Q. Does this -- have you read this document
0039
1 previously?
2 A. Previously, although a while back.
3 Q. Would you be so kind as to read it again?
4 (Ms. Stout left the deposition.)
5 A. Okay.
6 Q. Can you see where someone who saw this
7 document might reasonably believe that they could
8 continue to operate a vacation rental business without
9 any enforcement action being taken against them until
10 the time that their permit application was processed?
11 MS. LOVELL: That calls for speculation.
12 You may answer.
13 THE WITNESS: Is that stated in here
14 somewhere?
15 BY MR. FOSBINDER:
16 Q. Yes.
17 A. Which one?
18 Q. The paragraph numbered two.
19 A. And there was no subsequent communication
20 from Mr. Min regarding this? I mean, my comment is that
21 Mr. Min -- this doesn't serve as a legal and binding
22 document. It's not a contract. It's not a unilateral
23 or bilateral agreement.
24 But I could see that a common person or a
25 person who -- not knowing could be led that way. And
0040
1 that was, I think, pointed out during the -- some of the
2 earlier discussions.
3 Q. Do we agree that people without relatively
4 sophisticated knowledge of County government would
5 presume, based on this signed document, that they could
6 rely on it, that they would not be prosecuted while the
7 permit was being processed if they had already applied
8 for one at that time?
9 MS. LOVELL: That calls for speculation.
10 THE WITNESS: No, it doesn't say anywhere in
11 here that they would not be prosecuted that I see unless
12 you see it someplace.
13 BY MR. FOSBINDER:
14 Q. It says -- paragraph two, "You have given
15 your assurance that any property owner who submits a
16 conditional use permit application will be allowed to
17 continue their business while the application is
18 pending. However" -- skip the next sentence. "However,
19 filing the application will place a moratorium on zoning
20 enforcement until the permit process has concluded."
21 Isn't that pretty darned explicit?
22 A. For November 1, 2001, yeah, but this is a
23 new day.
24 Q. But my question, the one I started out with,
25 having read this now, doesn't it seem as though the
0041
1 average person reading this would believe that they
2 could, if they made an application, make that
3 application and that they would not be prosecuted or in
4 any other way enforced against until their permit was
5 processed?
6 MS. LOVELL: I object to the form of the
7 question. You are asking the Mayor to speculate about
8 what someone else might think. You may answer.
9 THE WITNESS: I would hope that anyone who
10 was going to spend a whole lot of money in a business
11 would check with what is a more proper authority and
12 based on a document that is a legal document before they
13 jumped into spending any kind of a money on a business.
14 BY MR. FOSBINDER:
15 Q. Who would be a more proper person to check
16 on Planning Department enforcement policy than the
17 Planning Director?
18 A. If they made their application, on the
19 application, did it say that they will not be prosecuted
20 or that they will not be -- it will not enforced until
21 their permit is approved? Does that appear on the
22 permit application itself? I don't know that.
23 Q. No, it doesn't.
24 A. Okay.
25 Q. I mean, this is after the fact obviously.
0042
1 A. Uh-huh.
2 Q. It couldn't have been before.
3 A. Well, I don't think that that is a legal
4 document. It's documents like this that got us where we
5 are now.
6 Q. What about it isn't legal as you understand
7 it?
8 A. That I don't believe that the Planning
9 Director or any Director or even the Mayor can say I'm
10 going to set aside a law.
11 Q. I agree with you that they can't set aside
12 the law. The question, as I understand it, is whether
13 they can agree not to enforce it for a period of time
14 while someone's permit application --
15 A. No.
16 Q. -- is being processed?
17 A. Actually, only the County Council has that
18 authority. It's called a moratorium.
19 Q. Okay.
20 A. And if that were the case, that should have
21 been processed as moratorium.
22 Q. Okay. And is it your belief that the
23 average resident of Maui would know that?
24 MS. LOVELL: Again --
25 THE WITNESS: I can't speculate.
0043
1 MS. LOVELL: That calls for speculation.
2 THE WITNESS: I can't answer that for the
3 average. I don't even know what average is these days.
4 You know, I have an appointment in 10 minutes, so we
5 have got to wrap up.
6 MR. DANTES: Don't let that happen. We're
7 not wrapping up.
8 MS. LOVELL: You asked for one hour.
9 MR. FOSBINDER: No, I didn't.
10 MS. LOVELL: You did.
11 MR. FOSBINDER: I said I thought that I can
12 be done in an hour, but I didn't agree to an hour.
13 MS. LOVELL: Well, let's move it along.
14 MR. FOSBINDER: Let me take a short break.
15 MS. LOVELL: Sure. Why don't we go outside.
16 (Recess, 2:55 p.m. Resumed 2:57 p.m.)
17 THE WITNESS: I have rescheduled that
18 appointment. That is changed to 7:30 tonight.
19 MR. DANTES: Thank you.
20 BY MR. FOSBINDER:
21 Q. We will keep you till 7:29.
22 A. No, I mean I had to put her after the last
23 appointment.
24 Q. Just kidding. Okay. Given what you have
25 told me about the problems with vacation rentals, my
0044
1 understanding is that your voting record, during the
2 eight years you were on the Council, is that you voted
3 to approve nine out of nine permits that were processed?
4 A. Uh-huh. Yeah, the record shows that.
5 Q. Okay. Given that history that nine out of
6 nine were approved and that you voted for nine out of
7 nine, is there any reason to believe that if the other
8 70 permits that are pending were processed, that all 70
9 wouldn't be granted?
10 A. I can't --
11 MS. LOVELL: That calls for speculation.
12 THE WITNESS: I can't say that, because the
13 reason that it goes through this process is each one is
14 a case-by-case situation. The process allows input by
15 the community, you know, at the Planning Commission, at
16 the County Council.
17 BY MR. FOSBINDER:
18 Q. Okay.
19 A. So, there's that input that's necessary
20 before we make a decision.
21 Q. I understand the process as do you. My
22 question is, are you aware of anything that's changed,
23 anything that's different than it was before the nine
24 were approved?
25 A. Changed in what way?
0045
1 Q. Well, if in fact all of the tourists were
2 causing a massive crime wave, I assume that -- we were
3 all laughing. I agree. That's not something we worry
4 about.
5 But if it were true, I assume that if that
6 were on the front page of the paper every day, that you
7 would say that, well, given the massive crime wave
8 caused by tourists, I doubt if another one would be
9 approved.
10 I am asking you, is there any fact like that
11 out there that you can think of, anything different?
12 A. No, no. What's different is the process,
13 that we don't know what's out there until it goes
14 through the process.
15 Q. Okay. Do you have any idea how long it
16 would take to process the 70 pending permits?
17 A. I have no idea.
18 Q. Okay. And an estimate that I have been
19 given by a former Mayor is that it would take years, at
20 least five years to process -- no, I am sorry. That's
21 wrong.
22 For 70, it would take at least a year. I am
23 sorry. Do you have any reason to believe that it could
24 be done in substantially less than a year?
25 A. No, I cannot predict what the Council does
0046
1 with the things on their agenda.
2 Q. So, essentially, what you are telling me is
3 it could be -- the outside is it could take forever if
4 the Council just sits on it, is that correct?
5 A. The Council doesn't sit on things.
6 Q. Okay. What's the longest it could possibly
7 be?
8 A. I don't know. It depends on the situation,
9 depends on what other priority items are in that
10 committee. I mean, you said you understood the process.
11 Q. I do, I think, and we are just disagreeing
12 on the phrase "sit on it," I think. The County Council
13 might just not act on it for an indefinite period, which
14 could be something approaching forever, is that true?
15 MS. LOVELL: Well, that's argumentative.
16 You may answer.
17 THE WITNESS: You mean forever?
18 BY MR. FOSBINDER:
19 Q. Ten years.
20 A. I can't think of anything that took 10 years
21 to do.
22 Q. Well, so far some of these are five years
23 old, right?
24 MR. DANTES: Some of them are nine years
25 old.
0047
1 BY MR. FOSBINDER:
2 Q. I'm sorry. Some of these are nine years
3 old. Is that your understanding?
4 A. I don't know the dates of when things came
5 in.
6 Q. If I tell you some of them are nine years,
7 does it seem quite possible that it might take 10 years
8 for some of them?
9 A. Well, what did these take? Did you look at
10 that? When were they submitted and when were they
11 approved?
12 Q. I think it's there.
13 A. I don't know if we can tell. Oh, we can
14 tell from the years, '98.
15 Q. That would be nine years ago.
16 A. '98, and it was approved in '98, unless I
17 don't know the coding. I don't know. That would be --
18 when you get down to the third one, it says 2001. The
19 Herlot vacation rental was approved in 2002. It doesn't
20 have the month in 2001, but it has when it was approved.
21 But, you know, I would --
22 Q. I'm not sure whether that document explains
23 it. My understanding is there's one that has been --
24 which was the nine years?
25 MR. DANTES: I couldn't name it.
0048
1 BY MR. FOSBINDER:
2 Q. Okay. Do you have any reason to believe
3 that it might not take more than five years?
4 MS. LOVELL: That's an incomplete
5 hypothetical.
6 THE WITNESS: I don't know.
7 MS. LOVELL: And it calls for speculation.
8 You may answer.
9 THE WITNESS: Yeah, I can't predict anything
10 that has to do with the County Council.
11 BY MR. FOSBINDER:
12 Q. Okay.
13 A. I can't even predict when something will go
14 to the Planning Commission. It depends on their
15 schedule.
16 Q. If everything went as fast as it possibly
17 could, do you have an understanding as to how long?
18 A. No, I don't.
19 Q. Okay. That's fine.
20 A. I often asked that question when I was on
21 the Council.
22 Q. What's that?
23 A. I often asked that question when I was on
24 the Council. What's the shortest period of time to
25 process a permit for X, and never did get an answer.
0049
1 Q. Who were you asking?
2 A. Whichever Department had the issue.
3 Q. Have you studied the economic impact of
4 shutting down all of the --
5 A. You asked me that already.
6 MS. LOVELL: You did. The legal objection
7 is asked and answered.
8 BY MR. FOSBINDER:
9 Q. Yeah, thank you.
10 A. Oh, I am sorry. Okay.
11 MS. LOVELL: You are doing a good job.
12 THE WITNESS: Okay.
13 BY MR. FOSBINDER:
14 Q. Did you at one time tell John Rapaz and
15 David Dantes that no one in their right mind seriously
16 thinks vacation rentals are causing the housing
17 shortage?
18 A. I don't recall that conversation.
19 Q. Do you deny saying it?
20 A. I'm not -- I'm saying I didn't recall saying
21 it.
22 Q. So, you may have and you may not; you just
23 don't remember?
24 A. I would doubt that I would say it that way,
25 but I have been noted to be taken out of context a lot
0050
1 lately.
2 Q. Okay.
3 A. That if it was a concern, it is not the
4 major concern.
5 Q. Okay. If your Corporation Counsel were to
6 tell you that many, many hundreds of home-based
7 businesses were, in fact, illegal and had been allowed
8 simply because of these enforcement memos, but that
9 actually they were illegal, will you take any action on
10 that?
11 MS. LOVELL: That's an incomplete
12 hypothetical. You may answer.
13 THE WITNESS: If -- I am sorry. Did you say
14 if Corporation Counsel --
15 BY MR. FOSBINDER:
16 Q. Yes.
17 A. -- informed me --
18 Q. Yes.
19 A. -- that -- what was the rest of it?
20 Q. Well, we read those two memos regarding
21 policy and enforcement, right?
22 A. Uh-huh.
23 Q. And in there it seems to say that we are
24 going to not enforce even though it is against the
25 statute.
0051
1 MS. LOVELL: No, that's not what they say.
2 BY MR. FOSBINDER:
3 Q. Okay. I will read it again.
4 A. April 28th.
5 Q. The April 28th, 2003. "In our existing
6 codes, home-based businesses are not permitted within
7 the County's residential, apartment, rural, or
8 agricultural districts without first obtaining a County
9 special use permit, conditional use permit, or use
10 variance. As such, our existing ordinances greatly
11 overregulate home-based businesses at a considerable
12 cost to our County's economy."
13 MS. LOVELL: Right, and then the document
14 goes on in the interpretation section to say the
15 following things are not a home-based business.
16 MR. FOSBINDER: It doesn't say that. It
17 says we are not going to enforce against these.
18 MS. LOVELL: It says interpretation.
19 THE WITNESS: Interpretation on enforcement.
20 BY MR. FOSBINDER:
21 Q. Okay. I am sorry. Where are we? Did you
22 refuse to meet with the MVRA prior to the lawsuit being
23 filed?
24 A. Yes.
25 Q. Why?
0052
1 A. Because it wasn't in my hands. It would be
2 a waste of their time and mine.
3 Q. When you say it wasn't in your hands, what
4 do you mean by it wasn't in your hands?
5 A. It's at the Council's hands.
6 Q. The County Council?
7 A. The County Council has the bill -- had a
8 bill -- another bill that was going through the process,
9 and meeting with me, prior to an outcome on that bill,
10 was not, you know, worth a meeting.
11 Q. Okay. It's my understanding that you have
12 said that you can't have a moratorium. That that's
13 illegal?
14 A. No, I said a moratorium can only be issued
15 by the County Council.
16 Q. Right. I am sorry. Yes, I accept that
17 that's correct. That's what you said.
18 A. Thank you.
19 Q. That the Planning Director cannot have a
20 moratorium.
21 A. Right.
22 Q. Okay. So, in that case, why was there an
23 eight-month moratorium that you permitted to the
24 vacation rental people?
25 MS. LOVELL: That question is argumentative
0053
1 because it assumes facts.
2 BY MR. FOSBINDER:
3 Q. Didn't you give a moratorium in February?
4 The moratorium was cancelled you said, but then there's
5 a new moratorium that people could stay in business
6 until January 1st; isn't that a moratorium?
7 A. Well, if you want to throw those kind of
8 words around, but a moratorium that is an official
9 moratorium has to come from the County Council. The
10 plan -- the plan to say when people were going to get
11 letters or when they could operate, when they should
12 shut down, was an agreement in consideration of what
13 folks had already been told from the past.
14 I mean, I appreciate the position I am in,
15 where I had two mayors before me that chose not to
16 enforce the law. And so it seemed reasonable at the
17 time, and it still seems reasonable to me, that they
18 have at least some time to shut down.
19 Q. So, 10 months -- so, 10 months was
20 reasonable to you?
21 A. Uh-huh.
22 Q. But not anything longer than 10 months?
23 A. We agreed on 10 months, the Planning
24 Department and I.
25 Q. We being who?
0054
1 A. The Planning Department and myself through
2 our meetings.
3 Q. Did one side lobby for a longer enforcement
4 moratorium?
5 A. No, it was just all discussed.
6 MS. LOVELL: I am sorry. The question
7 assumes there was an enforcement moratorium. That's
8 argumentative.
9 BY MR. FOSBINDER:
10 Q. Well, you agreed that even though it was
11 illegal to have a moratorium without approval by the
12 County Council, that you would have a new shorter
13 moratorium, isn't that true?
14 MS. LOVELL: That question --
15 THE WITNESS: No.
16 MS. LOVELL: -- is argumentative.
17 BY MR. FOSBINDER:
18 Q. Well, didn't you agree not to enforce
19 against people until January 1st?
20 A. There was no moratorium.
21 Q. Didn't you agree not to enforce against
22 people until January 1st?
23 A. Yeah.
24 Q. Even though you were aware that they were
25 operating technically an illegal business back in
0055
1 February, right?
2 A. Yes.
3 Q. But you are not willing to call that a
4 moratorium?
5 A. No.
6 Q. Because?
7 A. Because a moratorium is a term used to
8 describe an action taken by the Maui County Council.
9 Q. What would you describe the action taken by
10 John Min when he signed the document with David Dantes?
11 What was that?
12 A. That was his interpretation of something and
13 his opinion.
14 Q. But didn't you just do the exact same thing?
15 MS. LOVELL: That is a -- that question is
16 argumentative, but you may answer if you understand it.
17 THE WITNESS: No, I'm not sure, since I
18 didn't put anything in writing.
19 BY MR. FOSBINDER:
20 Q. So, the difference between what Mr. Min did
21 and what you did was yours wasn't in writing?
22 A. No, no.
23 Q. What else is the difference?
24 A. The difference is that we were trying to be
25 reasonable in light of all of the conditions that
0056
1 occurred previously.
2 Q. Isn't that what --
3 A. With people being told that they are not
4 going to be enforced, don't bother to apply, because,
5 you know, it doesn't matter, all of those kinds of
6 things. We were trying to be understanding of the
7 situations that people were placed in. And through our
8 discussions, it came to the dates that 10 months was
9 sufficient time, we felt, for vacation rentals to cease
10 their operation until they became legal or were turned
11 down.
12 Q. But why not process at least the permits for
13 the people who had already applied?
14 A. They are being processed.
15 Q. So, if you don't -- am I correct you don't
16 know of any specific reason to think that any of those
17 70 will be turned down?
18 A. No, I didn't say that.
19 Q. Do you know of a specific reason that one of
20 those --
21 A. No.
22 Q. -- or more will be turned down?
23 A. Because I told you, as I stated before, each
24 case is different. And through the process is when we
25 learn whether or not something should be considered,
0057
1 what conditions should be put on each one, and there are
2 probably no two alike. Each one has a unique situation
3 depending on where they are, how big it is. There's all
4 kinds of factors in there.
5 So, as each one comes up through the
6 Planning Commission and through the County Council,
7 conditions of the permit are placed upon each individual
8 one.
9 Q. If the law requires you to enforce the law,
10 then what legal authority did you have for allowing a
11 10-month period of time without enforcement?
12 MS. LOVELL: Are you suggesting that we
13 should have had a shorter time?
14 BY MR. FOSBINDER:
15 Q. I am asking a question.
16 A. I answered that already.
17 Q. I don't -- would you please answer it again?
18 A. I said because we were trying to be
19 considerate, and now --
20 Q. And where is the considerate section in the
21 law?
22 A. The considerate section is -- in the law?
23 Q. Yeah.
24 A. There's not a considerate section in the
25 law.
0058
1 Q. So --
2 A. Trying to make it -- not make it a worse
3 situation than it already was.
4 Q. So, if you are trying to make it not a worse
5 situation --
6 A. I was talked out of shutting them down
7 January 2nd when I took office.
8 Q. By who?
9 A. Okay.
10 Q. By who?
11 A. By the Planning Department through our
12 discussions with Planning and others.
13 Q. When you say the Planning Department --
14 A. Jeff Hunt, whoever else was in the meeting
15 from Planning.
16 Q. Do you remember anybody else in the meeting?
17 A. No, it changed from time to time. Different
18 folks came to the meetings.
19 Q. Do you recall, during the period before your
20 election, disseminating any information that would lead
21 a reasonable voter to come to the conclusion that you
22 intended or wanted to shut down all the vacation rentals
23 on January 2nd?
24 A. I don't recall that, saying that or doing
25 anything like that.
0059
1 Q. What happened? At what point did you decide
2 that you wanted to shut down all the vacation rentals on
3 January 2nd?
4 MS. LOVELL: That misstates the testimony.
5 You may answer.
6 THE WITNESS: When I took my oath of office,
7 January 2nd.
8 BY MR. FOSBINDER:
9 Q. So, prior to taking your oath of office, you
10 didn't have it in your mind to shut down the vacation
11 rentals right away?
12 A. No.
13 Q. This was like an epiphany?
14 A. No.
15 MS. LOVELL: Argumentative.
16 THE WITNESS: I wasn't the Mayor before the
17 election.
18 BY MR. FOSBINDER:
19 Q. Okay. But you knew that you had a chance of
20 being the Mayor. Okay. I am not going to ask that.
21 A. You know, when the question came up during
22 the campaign, and my answer always had been, I believe
23 it was pretty consistent, that the process should work
24 itself out. That the laws, at the time of the election,
25 those -- that bill, the proposed bill, which had been in
0060
1 my Planning Committee, had gone to the Planning
2 Commissions.
3 Okay. They weren't -- I don't think they
4 were back yet from the Planning Commissions before the
5 election. So, it was let it go through the process,
6 which was now the Planning Commissions would have their
7 hearings. They would make their recommendations. It
8 would come back to Council, and Council would act
9 whichever way they wanted to act.
10 Q. Did the two people who complained about not
11 feeling safe in their neighborhood, did they complain
12 before the election or after the election?
13 A. After.
14 Q. I know I tried to ask this before, but I
15 don't think I worded it sufficiently artfully. I will
16 try again.
17 If you are informed by the Corporation
18 Counsel that other home-based businesses in ag zones are
19 illegal, but have been tolerated just because of the
20 Planning Department's memo regarding enforcement, will
21 you require the Planning Department to enforce the
22 restrictions on home-based businesses?
23 MS. LOVELL: That question was asked
24 previously. I made objections to it previously. I have
25 the same objections. It's an incomplete hypothetical,
0061
1 it is compound, and it assumes facts.
2 And I believe it was already answered, so I
3 will throw in asked and answered. Do you have any
4 different answer you want to give to that question than
5 what you gave before?
6 THE WITNESS: I will have to see what the
7 Corporation Counsel, in their hypothetical opinion, how
8 they are notifying me of what. I do value very much the
9 opinion of Corp Counsel, and it would depend on what
10 they said in their communication to me about something
11 that they became aware of.
12 BY MR. FOSBINDER:
13 Q. Did you tell an audience in Hana last
14 November 19th that when enforcement is carried out,
15 maybe Hana will not be high on the list?
16 A. In a meeting in Hana?
17 Q. Uh-huh, yes. Sorry if I missed that.
18 A. Which meeting was that?
19 Q. I don't know.
20 MR. DANTES: November 19th.
21 BY MR. FOSBINDER:
22 Q. Sorry. November 19th, I understand.
23 A. The community meeting we had in Hana?
24 Q. Yes.
25 A. I don't think I said Hana was, you know, low
0062
1 on the list. There was going to be a meeting the
2 following Monday with the Hana Advisory Committee to the
3 Maui Planning Commission, that was going to be there
4 specifically to hear concerns about transient vacation
5 rentals. And I had encouraged all of them that were
6 there at my meeting to go to that meeting.
7 Q. The Community Plan for Haiku specifically
8 says that one of the goals is not to have hotels on the
9 North Shore.
10 A. Uh-huh.
11 Q. Yet the new proposal by the Planning
12 Department would allow in Paia 20-unit combinations,
13 correct?
14 A. Correct.
15 Q. Is it your contention that 20 units is not a
16 hotel?
17 A. I don't know what the definition of a hotel
18 is.
19 Q. Do you think most people would think that 20
20 units was a hotel --
21 MS. LOVELL: That's argumentative, and it
22 calls for speculation.
23 BY MR. FOSBINDER:
24 Q. -- or a motel?
25 MS. LOVELL: Why do you keep asking the
0063
1 witness --
2 BY MR. FOSBINDER:
3 Q. Do you support the Planning Department's
4 proposed law with regard to changes to be made to the
5 code regarding 20 units in areas such as Paia?
6 A. I supported their submitting the bills to
7 Council to go through the process to get the facts, or
8 not the facts, the feelings of the community, as it
9 would go through from the Council, to the Planning
10 Commissions, back to the Council, and see what the
11 Council was going to do with it.
12 Q. And do you support that change?
13 A. It doesn't matter if I support that change
14 or not.
15 Q. Do you support the change?
16 A. No. I mean, I'm not supporting it or not
17 denying it. I think it should be discussed. The
18 community should have a say in what happens in their
19 community.
20 And it's like any law. If you have a law
21 that doesn't fit the time or is outdated, antiquated,
22 whatever, then there's a process to change that law.
23 And there have been many amendments, as you well know,
24 to all kinds of laws, all kinds of sets of laws. This
25 is an attempt to find out have conditions changed enough
0064
1 so that the people in Paia and Haiku community would
2 want to say, okay, this is fitting in a Commercial
3 District. That's to put it out there for the discussion
4 and to get input from the communities.
5 Q. Do you personally recommend that that be in
6 a new law?
7 A. I don't have a recommendation, and for that
8 matter, I don't have personal opinions anymore. As a
9 Mayor, I don't have personal opinions.
10 Q. Do you have a Mayoral opinion on whether or
11 not there should be 20 unit --
12 A. It's not up to me.
13 Q. -- rentals? I understand it's not up to
14 you. Do you have an opinion?
15 A. No.
16 Q. Okay. Do you have any opinion on whether or
17 not the law should be changed to make it easy -- I will
18 use that term -- to have vacation rentals in ag zones?
19 A. I have no opinion on that.
20 MR. FOSBINDER: One other short break, and
21 we will be done.
22 (Recess, 3:20 p.m. Resumed, 3:23 p.m.
23 MR. FOSBINDER: My understanding is we are
24 under time pressure here, and also there are some
25 questions that I may move to compel answers to. So, I
0065
1 am taking that into account. We are through for the
2 moment at least and maybe we are through for all time.
3 MS. LOVELL: No, I am sorry. You noticed
4 this. Let's keep going until you are finished. And
5 there have been no instructions not to answer, and there
6 have been no questions that haven't been answered.
7 MR. FOSBINDER: There are some questions
8 that haven't been answered, and if I am wrong, we are
9 not going anywhere.
10 MS. LOVELL: If you have more questions, the
11 Mayor is here, why don't we keep going. You said you
12 would be about an hour. You have gone now an hour and a
13 half. She does have other time pressures, but you don't
14 get two bites at the apple, so let's just keep going.
15 MR. FOSBINDER: Well, I may and I may not,
16 depending on what's in the record. We will look at it
17 later. That's all.
18 MS. LOVELL: Well, I am not agreeing to
19 adjourn. I'm agreeing that the deposition is concluded.
20 MR. FOSBINDER: I don't have to say
21 anything. We are not going to ask any more questions
22 now period. That's all I am going to say.
23 MS. LOVELL: All right. Thank you.
24 (Adjourned, 3:25 p.m.)
25
0066
1 REPORTER'S CERTIFICATE
2 STATE OF HAWAII )
3 ) SS.
4 County OF MAUI )
5 I, KATHERINE EISMANN, CSR 439, Notary Public
in and for the State of Hawaii, do hereby
6 certify:
7 That the witness whose deposition is
contained herein appeared before me on the date and time
8 specified; that prior to being examined, the witness
was by me duly sworn;
9
That the deposition was taken down by me in
10 machine shorthand and was thereafter reduced to print
under my supervision by means of computer-assisted
11 transcription; that the foregoing represents, to my
best ability, a true and correct transcript of the
12 proceedings had in the foregoing matter;
13 That, if applicable, the witness was
notified through counsel, by mail, or by telephone that
14 the deposition was available for review, signature and
corrections, if any. If not signed, the reading and
15 signing of the deposition were waived or the witness
failed to appear;
16
That pursuant to HRCP 30(f)(1), the original
17 will be sealed and forwarded to the noticing counsel
for his retention.
18
I further certify that I am not an attorney
19 for any of the parties hereto, nor in any way
interested in the outcome of the cause named in the
20 caption.
21 Dated: ______________________
22
23 _______________________________
Katherine Eismann, CSR #439
24 Notary Public, State of Hawaii
My Commission expires 6/23/2010
25
0067
1 SIGNATURE PAGE
2
3 I, MAYOR CHARMAINE TAVARES, certify that I
4 have
5 read the foregoing transcript pages, and corrections,
6 if any, were noted by me. The same is now a true and
7 correct transcript of my testimony.
8
9
10 _____________________________
11 MAYOR CHARMAINE TAVARES
12
25 REF NO. 3241A
0068

Jeff Hunt Deposition

2008-10-09T12:09:00.000-07:00

0001
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF HAWAII
3 MAUI VACATION RENTAL ASSOCIATION, )
INC., a Hawaii corporation, )
4 )
Plaintiff, ) CIVIL NO.
5 ) CV 07-00495 JMS/KSC
vs. )
6 )
THE COUNTY OF MAUI; JEFF HUNT, )
7 Director of MAUI COUNTY PLANNING )
DEPARTMENT, as an individual, and )
8 DOES 1-10, inclusive; )
)
9 Defendants, )
___________________________________)
10
11 Deposition Noticed by: James H. Fosbinder, Esq.
12
13 DEPOSITION OF JEFFREY S. HUNT
14 1:04 p.m., November 26, 2007
15
16 Taken on behalf of the Plaintiff, at Iwado Court
17 Reporters, 2233 Vineyard Street, Suite A, Wailuku, Maui,
18 Hawaii.
19
20
21
22
23 REPORTED BY: KATHERINE EISMANN, CRR/RDR/CSR #439
24 IWADO COURT REPORTERS
(808)244-9300
25 Email: Info@iwadocourtreporters.com
0002
1 A P P E A R A N C E S
2 For the Plaintiff:
3 JAMES H. FOSBINDER, ESQ.
Ivey Fosbinder Fosbinder LLC
4 A Limited Liability Law Company
2233 Vineyard Street, Suite C
5 Wailuku, Hawaii 96793
(808) 242-4956
6 Email: fsbndr@hawaii.rr.com
7 For the Defendant County of Maui:
8 JANE E. LOVELL
MARY BLAINE JOHNSTON
9 Deputies Corporation Counsel
County of Maui
10 200 S. High Street
Wailuku, Hawaii 96793
11 (808) 270-7575
Email: jane.lovell@co.maui.hi.us
12
13
14
15
16
17
18
19
20
21
22
23
24
25
0003
1 EXAMINATION INDEX
2 Examination by: Page
3 Mr. Fosbinder 4
4
5
6 EXHIBIT INDEX
7 Exhibit Number Description Page
8 1 Plaintiff's Notice of Taking Oral
Deposition 4
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
0004
1 Pursuant to Rule 14 of the Rules Governing
2 Court Reporting in Hawaii, the Reporter's Disclosure was
3 made and is attached hereto.
4 Pursuant to Rule 30(b)(4) of the Hawaii
5 Rules of Civil Procedure, the following is stated for
6 the record:
7 My name is Katherine Eismann, Certified
8 Shorthand Reporter with Iwado Court Reporters. My
9 business address is 2233 W. Vineyard Street, Suite A,
10 Wailuku, Maui, Hawaii. Today's date is November 26,
11 2007. The time is 1:04 p.m. This deposition is taking
12 place at Iwado Court Reporters.
13 In attendance are: Mr. Fosbinder, Mr. David
14 Dantes, Ms. Lovell, and Ms. Johnston
15 The deponent is:
16 JEFFREY S. HUNT
17 * * * * *
18 The deponent, having been sworn to tell the
19 truth, the whole truth, and nothing but the truth, was
20 examined and testified as follows:
21 EXAMINATION
22 (Exhibit 1 marked.)
23 BY MR. FOSBINDER:
24 Q. Hello.
25 A. Hello.
0005
1 Q. Would you state your name for the record?
2 A. Jeff Hunt.
3 Q. And what's your job?
4 A. I am the Planning Director for Maui County.
5 Q. Okay. And what training have you had in
6 being a Planning Director? Where did you go to school,
7 college?
8 A. I've got an undergraduate degree in
9 Environmental Science and Economics from Willamette
10 University, Salem, Oregon.
11 Q. Okay.
12 A. I've got a Master's in Public Administration
13 from the University of Colorado with a focus on local
14 government and management. I have an AICP
15 Certification, American Institute of Certified Planners,
16 and I have taken a number of courses, and seminars, and
17 conferences throughout my career. I have got
18 approximately 17 years of experience in land use
19 planning.
20 Q. And where was that?
21 A. Hood River County, Vail, Colorado,
22 Breckenridge, Colorado, and Maui County.
23 Q. What has been done by the Planning
24 Department during your administration to attempt to
25 determine what the impact of the shutting down
0006
1 un-permitted vacation rentals would be in terms of the
2 local economy, if anything?
3 A. We haven't done any formal studies.
4 Q. Have you done any informal studies?
5 A. I think we have tried to be aware of
6 economic impacts.
7 Q. And how did you try?
8 A. Reading, listening.
9 Q. And did you come to any conclusions?
10 A. No firm conclusions.
11 Q. Did you come to any not firm conclusions?
12 A. (Nods head.)
13 Q. And what were those?
14 MS. LOVELL: I object to the form of the
15 question. Calls for speculation, but you may answer.
16 THE WITNESS: Some of the studies indicate
17 that there could be an economic impact.
18 BY MR. FOSBINDER:
19 Q. What studies are those?
20 A. I believe the Kauaian Institute indicated
21 the amount of revenue that came into the economy based
22 on them.
23 Q. Do you recall how much that was?
24 A. No, I don't.
25 Q. Do you have any idea? Are you able to make
0007
1 an estimate of how much that was?
2 A. No, I'm not able to.
3 Q. Okay. Does that, as a Planning Director,
4 cause you any concern that you are shutting down --
5 well, I will ask a different question first.
6 Do you have an estimate of how many vacation
7 rental businesses there are on Maui at this point that
8 are not permitted yet?
9 A. We estimate approximately 1100.
10 Q. Okay. And do you have the ability to make
11 any sort of estimate as to what the gross revenue of
12 those businesses would be?
13 A. Could you repeat the question?
14 Q. Do you have any estimate that you can give
15 me as to what the gross revenue of all 1100 vacation
16 rental businesses might be?
17 A. No, I don't.
18 Q. Do you have any idea what vacation rentals
19 rent for per day?
20 MS. LOVELL: I object to the form of the
21 question as compound. You may answer.
22 THE WITNESS: Yes.
23 BY MR. FOSBINDER:
24 Q. And what is the approximate range that you
25 understand that to be?
0008
1 A. I've heard as low as in the hundreds and as
2 high as in the thousands.
3 Q. Okay. And so what is the lowest that you
4 think the approximate average daily rental could be?
5 MS. LOVELL: No foundation, calls for
6 speculation. You may answer.
7 THE WITNESS: Could you repeat the question?
8 BY MR. FOSBINDER:
9 Q. Yeah, I'm asking you to make a low-end
10 estimate of what you think the lowest figure per day per
11 room could be?
12 A. I don't know.
13 Q. Do you have any idea whether most of the
14 vacation rentals are rented -- let me rephrase that.
15 Do you have any idea what the occupancy rate
16 of Maui for vacation rentals is?
17 A. No.
18 Q. Okay. Is it fair to say that you have no
19 idea of what the gross revenue of all of the vacation
20 rental businesses is?
21 MS. LOVELL: That's an argumentative
22 question the way it's phrased, and it's asked and
23 answered, but you may respond again.
24 THE WITNESS: Are you asking me if I think
25 your question is fair?
0009
1 BY MR. FOSBINDER:
2 Q. No, I'm asking do you have any notion of
3 what the gross might be?
4 MS. LOVELL: Well, as phrased, that totally
5 calls for speculation. Perhaps you could make it a
6 better question.
7 BY MR. FOSBINDER:
8 Q. Perhaps he can answer it, and if he can't, I
9 will make it a better question.
10 A. Could you repeat the question?
11 Q. Do you have any way to make any sort of
12 estimate at all as to what the gross revenue from
13 vacation rentals on Maui might be?
14 A. That wasn't your original question.
15 Q. Okay. I'm trying to make a better question.
16 A. As I understand it, you are asking me if
17 there's any way I could make that estimate?
18 Q. Here today in front of me.
19 A. Right in front of you?
20 Q. Yes.
21 A. No.
22 Q. Could you multiply the number of vacation
23 rentals, which you have said is 1100, times what you
24 might estimate to be the lowest possible number, which
25 you said was something over a hundred I gather per day,
0010
1 is that correct?
2 MS. LOVELL: Is what correct?
3 BY MR. FOSBINDER:
4 Q. That your belief is that the average daily
5 rental would be at least $100?
6 A. I didn't say that.
7 Q. Okay. So, you don't have any idea whether
8 that would be the lowest? That's what I am trying to
9 find out.
10 A. I don't know what the lowest would be.
11 Q. Okay. And do you have any idea what the
12 average occupancy rate might be?
13 A. No, I don't.
14 Q. Okay. As a Planning Director, does it
15 bother you to be making efforts to shut down 1100
16 businesses without having any idea what the impact would
17 be economically on Maui?
18 MS. LOVELL: I object to the form of the
19 question as argumentative, but you may answer if you
20 understand it.
21 THE WITNESS: Does it bother me?
22 BY MR. FOSBINDER:
23 Q. As a planner, professionally, to be shutting
24 down 1100 businesses on Maui without having any idea of
25 what the total economic impact might be?
0011
1 A. The enforcement action that the County is
2 taking is not based purely on economics.
3 Q. That's not the question I ask. The question
4 I ask was does it bother you, professionally, as a
5 planner, to be making efforts to shut down 1100
6 businesses on Maui without having any idea what the
7 total economic impact might be on Maui?
8 MS. LOVELL: Same objection.
9 THE WITNESS: Should I answer?
10 MS. LOVELL: Yeah, if you can.
11 THE WITNESS: The enforcement is based on
12 the law not based on economics.
13 BY MR. FOSBINDER:
14 Q. Does it bother you personally as a planner
15 to be shutting down these businesses without having any
16 idea what the total economic impact will be?
17 A. As a professional --
18 MS. LOVELL: Same objection.
19 THE WITNESS: As a professional planner, I
20 try and keep my personal feelings out of it.
21 BY MR. FOSBINDER:
22 Q. Your feelings as a professional planner,
23 does it bother you in those feelings to be shutting down
24 1100 businesses without having any idea what the
25 economic impact is?
0012
1 MS. LOVELL: I object to that question as an
2 incomplete hypothetical.
3 THE WITNESS: As a professional planner, I
4 try and keep my personal feelings out of decision
5 making.
6 BY MR. FOSBINDER:
7 Q. Okay. So, let's forget about your personal
8 feelings. Your feelings as a planner, does this bother
9 you as a professional planner that you are engaged in
10 shutting down 1100 businesses without having any idea
11 what the economic impact on Maui will be?
12 MS. LOVELL: Same objections.
13 THE WITNESS: Could you repeat the question?
14 MR. FOSBINDER: Can you read it back?
15 THE REPORTER: "Question: Okay. So, let's
16 forget about your personal feelings. Your feelings as a
17 planner, does this bother you as a professional planner
18 that you are engaged in shutting down 1100 businesses
19 without having any idea what the economic impact on Maui
20 will be?"
21 THE WITNESS: The word bother indicates to
22 me an emotion. As I said before, I try and keep my
23 emotions out of the situation.
24 BY MR. FOSBINDER:
25 Q. As a planner, are you concerned about
0013
1 shutting down 1100 businesses on Maui without any idea
2 of what the economic effect on the County will be?
3 MS. LOVELL: Same objections.
4 THE WITNESS: As a planner, I think I have
5 to follow the law.
6 BY MR. FOSBINDER:
7 Q. Am I correct that it causes you no concern
8 to shut down 1100 businesses on Maui without having any
9 idea what the economic impact on Maui will be?
10 MS. LOVELL: That's a completely
11 argumentative question. I object.
12 THE WITNESS: I didn't say that.
13 BY MR. FOSBINDER:
14 Q. Then are you concerned?
15 A. Am I -- concerned with what?
16 Q. What the economic impact might be?
17 A. Can you restate the question, please?
18 Q. Are you at all concerned about shutting down
19 1100 businesses, approximately, on the North Shore of
20 Maui without having any idea of what the economic impact
21 on Maui will be?
22 MS. LOVELL: That same question has been
23 asked and answered now I don't know how many times.
24 MR. FOSBINDER: No, it hasn't been answered.
25 It's absurd. He either is concerned or he isn't
0014
1 concerned.
2 MS. LOVELL: Whether he is concerned is
3 completely irrelevant.
4 MR. FOSBINDER: As the Planning Director --
5 MS. LOVELL: You have asked the question now
6 like 10 times. I mean, you can answer it again, but --
7 THE WITNESS: I think I have answered the
8 question.
9 BY MR. FOSBINDER:
10 Q. In general, do planning directors following
11 good planning policy shut down relatively large
12 industries without finding out what the economic impact
13 might be?
14 MS. LOVELL: I object that it's an
15 incomplete hypothetical. You have left out the fact
16 that these are un-permitted. You may answer though, if
17 you can.
18 THE WITNESS: Could you repeat the question?
19 THE REPORTER: "Question: In general, do
20 planning directors following good planning policy shut
21 down relatively large industries without finding out
22 what the economic impact might be?"
23 THE WITNESS: I can't speak for planning
24 directors in general.
25
0015
1 BY MR. FOSBINDER:
2 Q. Did you go to school to learn about
3 planning?
4 A. I took some planning courses.
5 Q. How many, approximately?
6 A. It depends what you mean by a planning
7 course. I went to a liberal arts college, so it wasn't
8 a distinct planning course. A number of courses I took
9 had planning involved in them.
10 Q. Such as?
11 A. Can you repeat the question?
12 Q. You said a number of courses that you took
13 had something to do with planning. Am I correct?
14 A. Yes.
15 Q. How many?
16 A. Half a dozen.
17 Q. Such as?
18 A. I don't understand your question.
19 Q. Can you name -- describe the classes to me?
20 A. I can't recall the exact titles of the
21 classes.
22 Q. I understand that. Do you recall the gist
23 of what the classes were about?
24 A. Some were based on futures courses,
25 seminars, some were based on retracking America, where
0016
1 there was a zoning game that we played.
2 Q. So, you remember one about a zoning game and
3 one called -- was that the retracting America, the
4 zoning game?
5 A. Yes.
6 Q. And the other one was about what?
7 A. A futures seminars.
8 Q. Futures seminar?
9 A. Yes.
10 Q. Like buying futures on the stock market, or
11 the future of America, or --
12 A. Future as opposed to past.
13 Q. And was that a course by a Planning
14 Department or professor who taught planning?
15 A. No.
16 Q. How many courses have you taken in your life
17 from a professor who was a professor in the Planning
18 Department?
19 MS. LOVELL: You mean in a County Planning
20 Department, a State Planning Department?
21 BY MR. FOSBINDER:
22 Q. As professor in a Planning Department at
23 university -- at a university. I thought that was
24 understood.
25 A. In my undergraduate work, there was no
0017
1 planning professors. My graduate work, the planning
2 courses I took were taught by specialists.
3 Q. Specialists in what?
4 A. Real estate development and in land
5 development.
6 Q. Was there a Planning Department at the
7 university where you took those classes?
8 A. Yes, these were under --
9 Q. Those classes were taught -- they had a
10 number from the Planning Department, a course number?
11 A. I believe so.
12 Q. But the professors were not professors in
13 the Planning Department?
14 A. I believe so.
15 Q. So, to your recollection, none of the
16 classes that you took were taught by professors who were
17 professors in the Planning Department?
18 MS. LOVELL: Totally misstates what he just
19 said.
20 BY MR. FOSBINDER:
21 Q. Well then, you can tell me that.
22 MS. LOVELL: Well, I object. You can
23 answer.
24 THE WITNESS: I believe they were -- I'm not
25 sure of the technical relationship. I believe they were
0018
1 contracted out or --
2 BY MR. FOSBINDER:
3 Q. Do you recall taking any courses from anyone
4 who was a professor in the Planning Department
5 specifically?
6 A. No, I don't.
7 Q. Okay. Did you ever have any classes in any
8 of your formal education where there was any discussion
9 of economic impact -- the economic impact of planning
10 decisions?
11 A. I can't recall.
12 Q. Okay. Do you have any specific recollection
13 of being taught anything during your formal schooling
14 about how to assess the economic impact of planning
15 decisions?
16 A. In my undergraduate classes, I took a number
17 of economics classes. So, I believe I have a decent
18 understanding of that kind of topic.
19 Q. But none of those classes specifically dealt
20 with planning?
21 A. Not specifically.
22 Q. And if for some reason you were concerned
23 about the likely economic impact of the decision to shut
24 down 1100 TVR businesses, is there someone who you would
25 consult at the Department of Planning who you believe
0019
1 has expertise in that area?
2 MS. LOVELL: I object to the form of the
3 question as argumentative, but you may answer.
4 THE WITNESS: If we needed economic
5 expertise, we would go through the standard routine to
6 obtain that expertise.
7 BY MR. FOSBINDER:
8 Q. And what would that standard routine be?
9 A. We would look at our options.
10 Q. And how would you do that?
11 A. We would discuss the situation.
12 Q. Who would discuss the situation?
13 A. Staff.
14 Q. Who is the staff?
15 A. The Planning Department staff.
16 Q. Everybody at once?
17 A. Not necessarily.
18 Q. Do you ever have a meeting with all of the
19 staff to talk about what to do about anything?
20 A. Can you repeat the question?
21 Q. Do you ever have a meeting with everyone who
22 is on the Planning Department staff to talk about what
23 to do about any issue?
24 A. We have meetings with our staff.
25 Q. To talk about what decision to make or to
0020
1 talk about procedural stuff internally or both?
2 A. Both.
3 Q. Okay. When you attended the forum that was
4 held at the Iao Theater, my recollection was that you
5 indicated that all anybody needed to do to open up a
6 vacation rental business was to get a tax ID number.
7 That as far as you were concerned, that would be okay.
8 Do you recall saying that?
9 A. I don't recall saying that.
10 Q. Well, let me ask you -- let me change topics
11 a little bit.
12 Are you aware of a memo regarding
13 enforcement policy that was signed by Mr. Min?
14 A. Which one?
15 Q. I think there were two. That's right. Were
16 there two?
17 A. I believe there's three.
18 Q. Three. Okay. I couldn't get the third one.
19 Here is one dated October 9th.
20 MS. LOVELL: For the record October 9th,
21 2002.
22 BY MR. FOSBINDER:
23 Q. Correct.
24 A. Could you repeat his reference?
25 THE REPORTER: "Question: Are you aware of
0021
1 a memo regarding enforcement policy that was signed by
2 Mr. Min?"
3 THE WITNESS: I was not aware of that memo.
4 BY MR. FOSBINDER:
5 Q. Okay. Then maybe there's more than three.
6 Here is another one dated April 28th, 2003, that was
7 signed by Michael Foley. Are you familiar with that
8 one?
9 A. I believe I am.
10 Q. Okay. That appears to -- well, first of
11 all, is that policy still in effect?
12 A. As far as I know.
13 Q. Okay. And that policy allows a wide range
14 of home-based businesses, correct?
15 A. That's not my interpretation.
16 Q. Does it allow any home-based businesses?
17 A. My interpretation is it gives interpretation
18 of the existing code.
19 Q. Well, if we didn't have that letter, would
20 the interpretation of the existing code be the same as
21 having that letter?
22 MS. LOVELL: What?
23 BY MR. FOSBINDER:
24 Q. Does the letter change in any way what you
25 would think the existing code means if you didn't have
0022
1 that letter to look at?
2 A. Can you repeat the question?
3 Q. Sure. Does that letter change in any way
4 what you think the interpretation of the existing code
5 would be if you didn't have that letter?
6 A. I don't know what the interpretation of the
7 code would be if we didn't have the letter. I would say
8 what that letter does is it provides interpretation of
9 the code.
10 Q. Isn't it true that the reason that that
11 letter was issued, along with its predecessor, was
12 because people were concerned that residential zoning,
13 as it's written, does not appear to allow home-based
14 businesses?
15 MS. LOVELL: I object to the form of the
16 question as both compound and calling for speculation.
17 THE WITNESS: Could you repeat the question?
18 BY MR. FOSBINDER:
19 Q. Sure. If you read the code having to do
20 with residential zoning, where does it say that you can
21 have a home-based business?
22 THE WITNESS: When I ask him to repeat the
23 question and he doesn't repeat it, what should I do?
24 MS. LOVELL: You can ask the court reporter
25 to read it back.
0023
1 THE WITNESS: Could you read back the
2 original question?
3 MS. LOVELL: Or you can ask Mr. Fosbinder
4 which of his questions he would like you to answer, the
5 original one or his changed one.
6 BY MR. FOSBINDER:
7 Q. Either way. If you want to have her read it
8 back, that's fine.
9 A. Could you read back the original question,
10 please?
11 THE REPORTER: "Question: Isn't it true
12 that the reason that that letter was issued, along with
13 its predecessor, was because people were concerned that
14 residential zoning, as it's written, does not appear to
15 allow home-based businesses?"
16 THE WITNESS: I don't know the reason as to
17 why that memo was produced.
18 BY MR. FOSBINDER:
19 Q. Okay. Have you read the residential zoning
20 section of the zoning in the County statutes?
21 A. Can you be more specific?
22 Q. Does the County Code describe what R-1
23 means?
24 A. The County Code or the zoning ordinance?
25 Q. The County Code encompasses the zoning
0024
1 ordinance, as I understand it. Do you understand
2 differently?
3 A. Do you want me to answer that question or
4 the previous question that I had read?
5 Q. I want you to answer the last question.
6 A. Could you repeat the last question as you
7 stated it, please?
8 Q. Sure. As I understand it, the County Code
9 includes within it the zoning. Do you disagree?
10 A. I agree that the County Code has a number of
11 chapters in it that address residential uses.
12 Q. And is there someplace else to go to look to
13 see what the definition of zoning R-1 is other than the
14 County Code and the letter, the memorandum regarding
15 enforcement?
16 A. I believe your earlier question was related
17 to residential zoning in a broad basis, and whether I
18 have read that. I just wanted to be clear what you were
19 talking about specifically.
20 Q. Well, frankly, I sort of assumed that you
21 had read the whole County Code having to do with zoning.
22 Is that true or is that not true?
23 A. Every page?
24 Q. Yes.
25 A. No.
0025
1 Q. Okay. Have you read the parts having to do
2 with residential use?
3 A. I'm familiar with them, yes.
4 Q. Have you read all of them?
5 A. I believe I have.
6 Q. Okay. And in there, they describe what it
7 means to be a residential zone, right?
8 A. I can't recall off the top of my head.
9 Q. Okay. I have here a transcript that was
10 prepared for us. It was not prepared by a court
11 reporter, and so I cannot tell you it was prepared by a
12 court reporter. However, we do have a tape of it.
13 This is what the person who transcribed it
14 wrote down they understood you were saying from the
15 tape. It's the last paragraph on this page. I'd ask
16 you to look at it and see if -- well, I'd ask you to
17 read it.
18 A. Okay. I have read it.
19 Q. Okay. If I can have it back. "When I
20 worked in the ski area in Colorado, basically needed was
21 a business license. The planners didn't worry about it.
22 It wasn't under our purview. When I moved here to work
23 in this Planning Department, it is different. If
24 Council passes a law that says all you need is a
25 business license, so be it. That would be fine with
0026
1 me."
2 Do you think that you said something to that
3 effect?
4 A. Yes. Your earlier question was you asked me
5 about whether it was based on tax statements, and so
6 that wasn't accurate.
7 Q. I got that wrong. I hadn't looked at the
8 transcript. I was remembering it from several months
9 ago.
10 From a planning point of view today, is
11 there any reason that, as far as you can tell, Maui
12 County should not allow vacation rentals as they have
13 been allowed? And by that I mean the ones that have
14 been permitted.
15 Is there anything bad that you see as a
16 consequence that would make you, as a planner, recommend
17 not allowing people to get those kinds of permits?
18 A. I'm sorry. Could you ask one question at a
19 time?
20 Q. Okay. Some people have received permits for
21 TVRs, correct?
22 A. Yes.
23 Q. Okay. Approximately seven?
24 A. Approximate.
25 Q. From a planning point of view, from what you
0027
1 have learned about planning through your education and
2 your experience, do you see a problem for Maui if more
3 vacation rentals were allowed following the existing
4 permitting procedure?
5 MS. LOVELL: I object, incomplete
6 hypothetical, but you may answer.
7 THE WITNESS: I don't understand the
8 question.
9 BY MR. FOSBINDER:
10 Q. Okay. I assume that as a planner, you don't
11 want to see a gas station next to a child care center.
12 Would that be a good example of something a planner
13 would not want to see?
14 A. It's conceivable.
15 Q. Okay. I assume that you wouldn't want a
16 rendering plant next to an apartment building. Would
17 that be a good example of something a planner would
18 think was inappropriate?
19 A. It's conceivable.
20 Q. Is it only conceivable, or isn't it almost
21 certain that virtually any person trained as a planner
22 would think that a rendering plant should not be located
23 next to an apartment building?
24 MS. LOVELL: The problem is your
25 hypothetical is missing -- you know, it's completely
0028
1 incomplete.
2 THE WITNESS: There's too many
3 circumstances. Maybe the rendering plant was there
4 first. For me to make a broad statement like that is --
5 BY MR. FOSBINDER:
6 Q. I'm trying to find out if there's anything
7 that we can agree on in terms of basic principles of
8 planning, and I am not talking about grandfathered in.
9 I am talking about in the future, as a planner, there
10 are some things that you would not like to see happen,
11 if you can effect that to prevent it from happening,
12 right? There's some things you don't want to see happen
13 as a planner?
14 A. It's not a question of want. It's a
15 question of good planning.
16 Q. Okay. As someone who wants to be a good
17 planner, there are some things that you would want to
18 prevent, right?
19 A. It's not a desire to be a good planner.
20 It's what somebody's opinion of what good planning is.
21 Q. Okay. Can you give me any examples of basic
22 principles of good planning in terms of things that
23 shouldn't be located next to each other?
24 A. A general principle of Euclidian planning is
25 to separate uses that are incompatible with each other.
0029
1 Q. Okay. And can you give me an example of
2 uses that are incompatible with each other?
3 A. As an example, an industrial use in a
4 residential area.
5 Q. Okay. When you first addressed vacation
6 rentals publicly, you indicated that you were concerned
7 about moving the goalposts. Does that sound familiar?
8 MS. LOVELL: If you are referring to a
9 document, would you please show it to him?
10 MR. FOSBINDER: I'm not referring to a
11 document.
12 MS. LOVELL: In that case, could you be more
13 specific about the time or date or place of this?
14 BY MR. FOSBINDER:
15 Q. No.
16 A. Could you repeat the question?
17 Q. Do you recall using the phrase moving the
18 goalposts when discussing vacation rentals on Maui?
19 A. Yes.
20 Q. Okay. And can you tell me what your concern
21 was at that time? Well, here. Why don't I give you
22 this. We found the document. Go ahead.
23 MS. LOVELL: Is there a pending question?
24 BY MR. FOSBINDER:
25 Q. I just want him to read it, and I will ask
0030
1 him a question.
2 A. Okay.
3 Q. You can keep that, actually. I think I have
4 got several sets. Do you remember saying that?
5 A. Yes, I do.
6 Q. Okay. And are you no longer concerned about
7 the effect of moving the goalposts?
8 MS. LOVELL: I object to the form of the
9 question. It's argumentative. Please rephrase it.
10 BY MR. FOSBINDER:
11 Q. Do you want her to read the question back?
12 A. Excuse me?
13 Q. Would you like her to read the question back
14 again?
15 MS. LOVELL: No, I am asking you,
16 Mr. Fosbinder, to please --
17 MR. FOSBINDER: And I won't.
18 MS. LOVELL: You won't?
19 MR. FOSBINDER: I won't. It's not
20 argumentative all at all.
21 MS. LOVELL: It's completely argumentative.
22 Perhaps we should take a break and call the magistrate.
23 MR. FOSBINDER: You are being argumentative.
24 I am not being argumentative.
25 MS. LOVELL: Could I have it read back,
0031
1 please?
2 THE REPORTER: "Question: Okay. And are
3 you no longer concerned about the effect of moving the
4 goalposts?"
5 MS. LOVELL: Okay. That's argumentative, it
6 assumes facts, and it misstates the previous testimony.
7 MR. FOSBINDER: All I'm trying to find out
8 is if he's still got the same concern he used to have.
9 MS. LOVELL: He's never said he had that,
10 quote, unquote, concern. You are misstating the
11 testimony.
12 THE WITNESS: I agree with my counsel.
13 BY MR. FOSBINDER:
14 Q. Okay. Were you ever concerned that it would
15 be an example of moving the goalposts to change the
16 enforcement policy regarding TVRs?
17 A. In discussing the policy, there was two
18 sides to the policy.
19 Q. I'm sorry. That was the answer?
20 A. Yes.
21 Q. Okay. Was that your concern at all
22 personally or not your concern at all that this would
23 appear to be an example of moving the goalposts?
24 A. Can you repeat the question?
25 Q. Read it back.
0032
1 THE REPORTER: "Question: Okay. Was that
2 your concern at all personally or not your concern at
3 all that this would appear to be an example of moving
4 the goalposts?"
5 THE WITNESS: Could you ask me those
6 questions individually? You asked two questions in the
7 same sentence as I understand it. Could you please ask
8 single questions?
9 BY MR. FOSBINDER:
10 Q. I am sorry. You will have to read that back
11 to me again.
12 THE REPORTER: "Question: Okay. Was that
13 your concern at all personally or not your concern at
14 all that this would appear to be an example of moving
15 the goalposts?"
16 THE WITNESS: Was it your concern personally
17 or your concern not at all. Which question would you
18 like to ask me?
19 BY MR. FOSBINDER:
20 Q. Okay. Was it your concern?
21 A. Was it my concern?
22 Q. Yeah.
23 A. What's "it"?
24 Q. Changing enforcement policy.
25 A. The discussion on February 15th was a
0033
1 discussion of the pros and cons. It was a discussion
2 about policy.
3 Q. Okay. So, you didn't -- am I correct that
4 you didn't think this looked like changing the
5 goalposts; that somebody else had said that? Is that
6 what you are telling me?
7 MS. LOVELL: That question is argumentative
8 also, but you can answer it.
9 THE WITNESS: I was raising an issue that
10 the Council should be aware of.
11 BY MR. FOSBINDER:
12 Q. Okay. Did you think that they should regard
13 that as a serious issue, the appearance of moving the
14 goalposts, or did you not regard that as a serious
15 issue?
16 A. Could you ask simple questions, please, and
17 not ask me two questions at the same time?
18 Q. Okay. Is it your opinion that changing the
19 enforcement policy regarding vacation rentals is an
20 example of moving the goalposts or not?
21 MS. LOVELL: It's still two questions,
22 but --
23 THE WITNESS: Could you ask a question
24 without an "or" and then come back with a subsequent
25 question? It's difficult for me to understand your
0034
1 questions when you ask two of them formed with a
2 conjunction "or".
3 BY MR. FOSBINDER:
4 Q. Okay.
5 A. Is it impossible for you to simply ask one
6 question and then stop without adding an "or" and going
7 on?
8 Q. I will make an effort to do that.
9 A. Thank you.
10 Q. Does it seem to you that the County has in
11 any way acted unfairly by having written agreements not
12 to enforce against vacation rentals until their permit
13 application was processed?
14 MS. LOVELL: I object to that question, the
15 form of that question, but you may answer.
16 THE WITNESS: Could you repeat the question?
17 THE REPORTER: "Question: Does it seem to
18 you that the County has in any way acted unfairly by
19 having written agreements not to enforce against
20 vacation rentals until their permit application was
21 processed?"
22 MS. LOVELL: I object to the word agreement,
23 but you may answer.
24 THE WITNESS: I don't believe there is a
25 written agreement that binds the County.
0035
1 BY MR. FOSBINDER:
2 Q. Okay. But would it be fair to say that
3 reasonable people might have understood that having the
4 Planning Director sign a written document meant that the
5 County would follow what it said in that document?
6 A. I don't believe Mr. Min had the authority to
7 bind future administrations.
8 Q. Okay. I'm not asking about legal authority
9 here. I'm questioning you as to whether or not you
10 believe that there is something unfair about signing a
11 written document that says that the County will not
12 enforce a law until someone's permit application is
13 processed, then sitting on that application for several
14 years, and then enforcing it without processing the
15 permit?
16 MS. LOVELL: Okay. That is a compound
17 question. It assumes facts, and it's an incomplete
18 hypothetical.
19 MR. FOSBINDER: Read it back.
20 THE REPORTER: "Question: Okay. I'm not
21 asking about legal authority here. I'm questioning you
22 as to whether or not you believe that there is something
23 unfair about signing a written document that says that
24 the County will not enforce a law until someone's permit
25 application is processed, then sitting on that
0036
1 application for several years, and then enforcing it
2 without processing the permit?"
3 MS. LOVELL: You can answer if you
4 understand the question.
5 THE WITNESS: I don't understand the
6 question. I would like to take a break.
7 MS. LOVELL: Okay. Let's give Mr. Fosbinder
8 one more chance to make that a better question and then
9 we will take a break.
10 MR. FOSBINDER: Read it back again.
11 THE REPORTER: "Question: Okay. I'm not
12 asking about legal authority here. I'm questioning you
13 as to whether or not you believe that there is something
14 unfair about signing a written document that says that
15 the County will not enforce a law until someone's permit
16 application is processed, then sitting on that
17 application for several years, and then enforcing it
18 without processing the permit?"
19 MS. LOVELL: Okay. Same objections.
20 THE WITNESS: I don't believe what you
21 titled as a written agreement is binding. I don't
22 believe that it is even an agreement. I believe it's
23 minutes of a meeting that took place.
24 MS. LOVELL: Okay. Now can we take a short
25 break now that there's no question pending?
0037
1 MR. FOSBINDER: Sure.
2 (Recess, 1:50 p.m. Resumed, 2:01 p.m.)
3 MR. FOSBINDER: Okay. I have here a copy of
4 the County Code. You can look at that. And, Jane, you
5 can have one, too. You can both have one.
6 MS. LOVELL: For the record, it's not the
7 entire County Code.
8 MR. FOSBINDER: No, it's not. That's true.
9 A portion of the County Code. I will admit I got it
10 from the internet, so it could be anything or nothing at
11 all. But I am pretty sure it is.
12 MS. LOVELL: Is there a question?
13 MR. FOSBINDER: There will be one.
14 MS. LOVELL: Do you want the witness to read
15 the entire thing?
16 BY MR. FOSBINDER:
17 Q. Just the entire permitted uses and special
18 uses. You read it?
19 A. Cursory, yes.
20 Q. Okay. Would you agree that on Maui, there
21 are thousands of people who have a business that they
22 run from their home?
23 A. I don't know how many people are running
24 businesses from their home.
25 Q. Can you make an estimate of how many people
0038
1 are running a business from their home?
2 A. No, I couldn't.
3 Q. When I ask for an estimate, I include rough
4 estimates. I mean, presumably, you know there's less
5 than a million?
6 MS. LOVELL: Well, come on. Are you asking
7 him to guess?
8 MR. FOSBINDER: No, I'm asking him to make
9 an estimate.
10 MS. LOVELL: Well, he's just said he can't.
11 THE WITNESS: I said I can't.
12 BY MR. FOSBINDER:
13 Q. Okay.
14 A. Yes, under a million.
15 Q. Under a million. We can maybe go a little
16 further. Would you think that there must be at least
17 500 people running a business from their home?
18 MS. LOVELL: You're calling for speculation.
19 There is no foundation.
20 BY MR. FOSBINDER:
21 Q. No, I'm not. I am calling for an estimate.
22 A. You asked me if I must think that. No, I
23 don't. I don't know how to phrase that, but I don't
24 agree with your statement.
25 Q. Okay. Well, your estimate for vacation
0039
1 rentals was 1100, correct?
2 A. Correct.
3 Q. Okay. Aren't those people all running a
4 home-based business?
5 MS. LOVELL: Object to the form of the
6 question. It's compound and calls for speculation.
7 THE WITNESS: Could you repeat the question?
8 THE REPORTER: "Question: Okay. Well, your
9 estimate for vacation rentals was 1100, correct?
10 "Answer: Correct.
11 "Question: Okay. Aren't those people all
12 running a home-based business?"
13 THE WITNESS: In my mind, a home-based
14 business is different than a vacation rental.
15 BY MR. FOSBINDER:
16 Q. And how is it different?
17 A. A vacation rental is a transient vacation
18 rental subject to the definition of hotel or subject to
19 the definition of vacation rental as construed as a
20 hotel or similar to a hotel use.
21 Q. Okay.
22 A. There's also Community Plan policies that
23 specifically speak to vacation rentals.
24 Q. How many people in the Planning Department
25 are working on the enforcement of laws concerning rental
0040
1 of residential property for less than six months?
2 A. Three and a half.
3 Q. Okay. And how many people at the Planning
4 Department are working on enforcing laws that require
5 that residential property be used for the permitted uses
6 in Section 19.08.020 permitted uses?
7 A. To the best of my knowledge, the three and a
8 half inspectors are enforcing the code.
9 Q. Well, you just said that three and a half
10 people were enforcing specifically regarding vacation
11 rentals. Am I to understand that?
12 A. I didn't say that.
13 MS. LOVELL: No, no, no. He didn't say
14 that. That was not your question.
15 BY MR. FOSBINDER:
16 Q. Then I misunderstood. So, my first question
17 was how many people were working on enforcing the
18 limitation on six-month leases or longer? And I thought
19 you said three and a half, is that correct?
20 MS. LOVELL: Right, but you didn't say
21 specifically or solely or exclusively.
22 BY MR. FOSBINDER:
23 Q. I gather that. Okay. So, how many people,
24 if any, are working full-time on the vacation rental
25 issue?
0041
1 A. I'm not aware of anyone that's working
2 full-time on just the vacation rental issue.
3 Q. Okay. Is there anyone who is primarily
4 working on that?
5 A. I don't believe anyone's been assigned to
6 primarily look at vacation rentals.
7 Q. Okay. Do you check how many complaints you
8 get about various things? Are you familiar with the
9 number of complaints that come into your department?
10 A. Do I check on that?
11 Q. Yes.
12 A. No.
13 Q. Okay. Let me give you a stack of paper. I
14 think that what we are looking at here is the -- I'm
15 sorry. You can have one, too, your very own.
16 I think I want to start by looking at --
17 start at the back and go -- there's three pages, the
18 last three pages I want you to look at.
19 MS. LOVELL: You are referring to a reprint
20 from the Maui News?
21 BY MR. FOSBINDER:
22 Q. Yes, that's correct. Would you like to read
23 this or are you familiar with it?
24 A. Is there a particular paragraph?
25 Q. No, the whole thing.
0042
1 MS. LOVELL: Why don't you take a minute to
2 read it then, if he's going to ask about the whole
3 thing.
4 Just a question, Mr. Fosbinder, did you mean
5 to imply that the last three pages of this stack of
6 papers you handed us are all part of the same thing?
7 MR. FOSBINDER: Oh, no, no, no. The third
8 page is apparently an editorial. I am sorry. I didn't
9 mean to include that one.
10 MS. LOVELL: So, you are referring then to
11 the --
12 MR. FOSBINDER: Referring to Mayor Tavares's
13 Viewpoint.
14 MS. LOVELL: Okay.
15 BY MR. FOSBINDER:
16 Q. Ready?
17 A. Yes.
18 Q. Okay. The first sentence says, "Many
19 members of our island community have expressed dismay
20 about losing a sense of security and community long
21 enjoyed in their rural neighborhoods."
22 Have you had members of Maui community
23 express dismay to you about that?
24 A. There's been dismay expressed through a
25 number of avenues.
0043
1 Q. Have you personally had people contact you
2 to complain about losing a sense of security and
3 community in their rural neighborhoods?
4 A. There's other ways to do that.
5 Q. I'm just asking if you personally --
6 A. I have been in public meetings where I
7 believe those concerns have been expressed.
8 Q. Okay. And how many people have done that in
9 your presence?
10 A. I don't know off the top of my head.
11 Q. Can you make an estimate?
12 A. I won't make an estimate.
13 Q. About anything ever? I wasn't sure if you
14 were saying -- I was just trying to find out if he's
15 never going to make an estimate about anything. I will
16 stop asking about estimates. I don't think he's
17 estimated on anything yet.
18 So, a reason to ask, you just refuse to make
19 estimates? That's your right. I'm just --
20 A. In response to your previous question, I
21 don't want to make an estimate.
22 Q. Okay.
23 A. I think the record shows that there are
24 people who have made those complaints.
25 Q. What record is that?
0044
1 A. Minutes of the Planning Committee meetings.
2 Q. Okay. Have you received any letters
3 addressed to you, to the best of your recollection, in
4 which people express dismay about losing a sense of
5 security and community in their rural neighborhood?
6 A. I have received a lot -- I have received
7 letters from citizens. Whether they expressed this
8 exact concern, I couldn't state for sure. They have
9 expressed concerns about vacation rentals.
10 Q. In particular, have you had any letters sent
11 to you that expressed a concern about being less secure
12 as a result of vacation rentals?
13 A. I can't recall specifically.
14 Q. Okay. Do you get -- if someone sends a
15 letter to the Maui Planning Department, do you see those
16 or does someone else see those?
17 A. I don't necessarily see them all.
18 Q. Okay. Do you see some of them?
19 A. Yes.
20 Q. Okay. Have you seen any letters that were
21 sent to the Maui Planning Department that specifically
22 expressed concern about a sense of security being lost
23 as a result of vacation rentals?
24 A. I don't recall.
25 Q. Okay. Do you have any recollection of
0045
1 seeing any documents or being given any information in
2 any other way that led you to believe that vacation
3 rental residents are more likely to commit crimes than
4 the average resident of Maui?
5 A. Not that I'm aware of.
6 Q. The Haiku-Paia -- I'm sorry. The Paia-Haiku
7 Citizens Advisory Committee recommended for adoption a
8 plan for Haiku and Paia. Have you read that plan?
9 MS. LOVELL: Which plan?
10 BY MR. FOSBINDER:
11 Q. That's true. There's two. There's the
12 Community Plan and the whatchamacallit. Let's just skip
13 that.
14 How many permit applications could your
15 office process in the next two months, approximately?
16 A. I don't know. It would depend on the type
17 of permit.
18 Q. Okay. I am sorry. I am talking about -- do
19 you accept or agree that there's approximately a backlog
20 of 70 applications for TVRs?
21 A. I believe that's an approximation.
22 Q. Okay. It's a reasonable approximation?
23 A. Yes.
24 Q. Okay. And do you have any sense if your
25 Department were to be required to process the
0046
1 applications promptly, how long would it take?
2 A. It depends on the type of the application.
3 Q. Well, for TVR, on average. I'm just trying
4 to get a sense of if the Court were to say you have to
5 process these applications and asked you how long it
6 would take, what's your estimate of how long it would
7 take?
8 A. The applications aren't all the same, so my
9 estimation of how long it would take to process them
10 would not all be the same. I can't make one estimate
11 for all 70 applications.
12 Q. Could it be done in a year?
13 A. I'm not sure.
14 Q. Okay. Could it be done in two years?
15 A. A lot of the processing of the application
16 is dependent upon other agencies and jurisdictions.
17 Q. So, it might take more than two years?
18 A. Well, what do you mean by might?
19 Q. It's possible that it would take --
20 A. Yes.
21 Q. -- more than two years?
22 A. It's possible.
23 Q. Okay. Now, as I understand former Mayor
24 Arakawa's position -- I was talking to him a couple days
25 ago -- he said that he thought that they were told
0047
1 originally that there might be 1800 applications, 1,800.
2 Do you have an estimate of how many people -- if they
3 found out that they could get a TVR permit by applying
4 through the current process, what's on the book now, do
5 you have any idea how many people might apply to do
6 that?
7 MS. LOVELL: I object to the form of the
8 question. First of all, I would appreciate it if you
9 would rephrase it and take out any hearsay from any
10 other witness, because I don't want this witness to have
11 to adopt the hearsay declaration.
12 MR. FOSBINDER: That's fine. That's fair.
13 MS. LOVELL: And secondly, any idea sounds
14 to me like you are calling for speculation.
15 MR. FOSBINDER: Well, calling for a rough
16 estimate. I will rephrase the question.
17 MS. LOVELL: Why don't you rephrase the
18 question.
19 BY MR. FOSBINDER:
20 Q. Okay. Based on everything that you've
21 learned about the history of this issue here and what
22 your staff has told you, if the word were to go out, you
23 will have your permit processed, the rules are the same
24 as they were, do you have any estimate of how many
25 people might apply for a permit?
0048
1 A. No, I don't.
2 Q. Okay. If 500 people applied for a permit,
3 do you have any idea -- do you have a rough estimate how
4 long it would take to process 500 permits?
5 A. The permits are so varied and the situations
6 are so different.
7 Q. Well, of course, I am looking for an
8 average.
9 MS. LOVELL: Well, maybe there is no
10 average.
11 BY MR. FOSBINDER:
12 Q. Well, maybe there isn't, but he can tell me
13 if there is an average.
14 A. I couldn't give you an estimate on an
15 average.
16 Q. Why don't you describe for me the process of
17 processing a permit application under the existing law
18 as you understand it?
19 A. For which application?
20 Q. A TVR in ag zone?
21 A. How large is the acreage?
22 Q. Over two.
23 A. Are they within the SMA?
24 Q. No, no SMA.
25 A. So, you see what I am saying --
0049
1 Q. I understand.
2 A. -- each application is individual.
3 Q. I understand that.
4 A. They are so different and so unique.
5 Q. Relatively simple one, no SMA, standard ag
6 zoning, nothing.
7 A. Well, what's the question again?
8 Q. What is the process for permitting it step
9 by step? Approximately how long does it take? You get
10 a permit application. What happens to it?
11 A. I think those are three questions. I will
12 answer what is the process.
13 Q. Okay.
14 A. And if you could ask me one question
15 individually, I would appreciate it.
16 Q. I will try.
17 A. The process is, generally speaking -- and if
18 I leave something out, it's just because I'm
19 abbreviating the conversation. But as I understand it,
20 the application comes in. It's reviewed for
21 completeness. It goes to the Planning staff. They --
22 Q. Okay. I am sorry. But for each step, can
23 you tell me approximately how long it takes? I have no
24 idea if it's a year or a day. So, anything you can tell
25 me to narrow that gap would help. So, that first step,
0050
1 how long does that take?
2 A. I'm not sure. The first step is done by
3 another Department.
4 Q. Which Department is that?
5 A. Public Works.
6 Q. Okay. So, the next step is?
7 A. They send it to the Planning Department.
8 Q. Okay.
9 A. The Planning Department reviews it, and
10 depending on the workload, that could take anywhere from
11 a few days to a few weeks. If there's any incomplete
12 information, they would ask for complete -- that
13 additional information. Then depending on the response
14 of the applicant, that could take days, that could take
15 months, that could take --
16 Q. Let's take an easy one.
17 A. Some of them have been waiting years.
18 Q. Okay. Let's go through this. Let's assume
19 at every venture that things are as good as they can be.
20 They didn't make any mistakes. What's the next step?
21 A. Then they send it out for agency review.
22 Q. Okay.
23 A. That can take anywhere from, depending on
24 the agency, weeks to months to get a response.
25 Q. Okay. I believe I've been told that
0051
1 something was sent to the State for review and it took
2 over a year. Have you had anything take over a year for
3 an agency review?
4 A. I'm not sure. That wouldn't surprise me.
5 Q. Okay. And what's the next step after agency
6 review?
7 A. Then they have to respond to the agency
8 reviews, and there's an analysis to see as to whether
9 the response to the agency reviews is adequate.
10 Q. Okay. And how long does that take?
11 A. It could take days. It could take months.
12 A lot is dependent on the applicant.
13 Q. Okay. Assuming it's relatively simple,
14 could it take a year?
15 MS. LOVELL: Well, wait a minute. Assuming
16 what is relatively simple?
17 BY MR. FOSBINDER:
18 Q. Whatever he regards as simple. Just the
19 simplest one he's ever seen, the least trouble.
20 MS. LOVELL: Probably the simplest one he's
21 ever seen wasn't in the ag district though.
22 BY MR. FOSBINDER:
23 Q. Well, no. In the ag district.
24 A. Are you talking about the simple application
25 or the simplest responding to agencies?
0052
1 Q. Let's say everything goes about as good as
2 it could.
3 A. In response to agencies, it would likely
4 take a month or two on an average.
5 Q. And a worst case scenario, the worst one you
6 have seen approximately?
7 A. TVRs or otherwise?
8 Q. TVR.
9 A. I haven't seen that many TVRs. I think if
10 you are asking if it's conceivable that it could take a
11 long time, yes.
12 Q. Okay. And the next step?
13 A. After all the agencies have been responded
14 to adequately, then they schedule it for hearing with
15 the Planning Commission.
16 Q. Okay. And how long does that take?
17 A. Forty-five days from the determination that
18 the information has all been responded to adequately by
19 the agencies.
20 Q. And how long would it take the Planning
21 Commission to review it?
22 A. It could be one day.
23 Q. What's the longest?
24 A. I don't know what the longest one is.
25 Q. Okay. What's the next step?
0053
1 A. Then they make the recommendation, depending
2 on the application, to the Council.
3 Q. And how long does that take?
4 A. To make the recommendation? They make the
5 recommendation in one day and forward it up to the
6 Council. Two weeks to four weeks it could.
7 Q. Okay. And the next step?
8 A. The Council schedules it for their review.
9 Q. Okay. And do they have to review it once or
10 more than once?
11 A. The Planning -- the Land Use Committee, I
12 believe, only has to review it once, but then they would
13 make a recommendation to the Council, I believe.
14 Q. And --
15 A. To the best of my knowledge.
16 Q. And after that, does the Council have to
17 vote on it once or twice?
18 A. I believe the full Council has to vote on it
19 twice, but I could be wrong.
20 Q. And what's the longest that you know of the
21 Council sitting on it and not voting on it?
22 MS. LOVELL: Wait. That's an argumentative
23 question and it assumes facts.
24 BY MR. FOSBINDER:
25 Q. Okay. What's the longest that you know that
0054
1 the Council has not voted on it, just kept it for
2 whatever reason?
3 A. I don't know.
4 Q. Isn't it true that some permits have been in
5 front of the Council for over two years without any
6 action?
7 A. I don't know that for a fact. That's what
8 I've heard.
9 Q. Okay. How many complaints, since you became
10 Planning Director, have you personally received
11 approximately, in writing, or by e-mail, or by telephone
12 regarding vacation rentals?
13 A. I couldn't estimate.
14 Q. Have you received any?
15 A. Yes.
16 Q. Okay. Have you received any complaints
17 regarding business use of residential property other
18 than vacation rentals?
19 A. I believe so.
20 Q. Have you received more of one than the other
21 or they seem about the same?
22 A. I believe, to the best of my knowledge, that
23 I have received more regarding vacation rentals.
24 Q. But you don't have any idea how many that is
25 or you can't give me an estimate?
0055
1 A. I don't want to hazard an estimate.
2 Q. Okay. The Mayor's Viewpoint says that --
3 let's see. Let me skip that.
4 What effort, if any, is the Planning
5 Department currently making to create more affordable
6 housing on Maui?
7 A. It's not the role of the Planning Department
8 to do that. There's a Department of Housing. We work
9 with developers and implement the code.
10 Q. Okay. If you would look at the pile of
11 paper I just gave you under -- let's see. Look at the
12 permitted uses, and then look at the top of it is
13 October 9th, 2002, John Min home-based business policy.
14 Do you have that?
15 MS. LOVELL: So, are you referring to a
16 two-page document?
17 BY MR. FOSBINDER:
18 Q. Yes.
19 A. October 9th.
20 Q. Yes.
21 MS. LOVELL: Do you have a question?
22 BY MR. FOSBINDER:
23 Q. Yeah. Would you agree with the first
24 paragraph, zoning ordinances often lag years behind new
25 uses and are therefore frequently outdated. Would you
0056
1 agree with that sentence?
2 A. No.
3 Q. Okay. And the first paragraph of the
4 second -- first sentence of the second paragraph is, in
5 our existing codes, home-based businesses are not
6 permitted within the County's residential apartment,
7 rural, or agricultural districts without first obtaining
8 a County special use permit and conditional use permit
9 or use variance. Would you agree that that's true?
10 A. I would have to do analysis to see whether I
11 agree with that statement or not.
12 Q. Okay. Has this not previously come up since
13 you became Planning Director?
14 A. Not really.
15 Q. Okay. Is the current -- have you signed a
16 new memo regarding home-based business policy?
17 A. Not that I'm aware of.
18 Q. Okay. So, is the home-based business policy
19 that was signed by Mr. Foley -- is that still in effect?
20 A. I believe it is.
21 Q. Okay. And do you support that policy?
22 A. I haven't analyzed that policy to state
23 whether I support it or not.
24 Q. Have you discussed vacation rentals directly
25 with Mayor Tavares?
0057
1 A. Yes.
2 Q. And did she at any point insist that you do
3 anything or not do anything with regard to vacation
4 rentals?
5 MS. LOVELL: Could you be a little more
6 specific?
7 THE WITNESS: I don't recall her insisting.
8 BY MR. FOSBINDER:
9 Q. Okay. And is this policy of shutting down
10 vacation rentals before they are -- first of all, would
11 you agree that the Department now has a policy of moving
12 to shut down vacation rentals even if they've applied
13 for a permit if it has not yet been processed?
14 A. I would say that is the law, not the policy.
15 Q. Well, the policy used to be not to do that,
16 right?
17 A. I don't understand the previous policy
18 fully. I can tell you right now, we are working under
19 the existing law.
20 Q. Okay. Are you enforcing with the same vigor
21 and energy the prohibition on home-based businesses,
22 which the document dated October 9th, 2002, refers to,
23 in our existing codes, home-based businesses are not
24 permitted within the County's residential, apartment,
25 rural, or agricultural districts.
0058
1 Are you enforcing that prohibition with
2 equal energy as the mandatory six-month minimum
3 residential lease?
4 A. Could you repeat the question?
5 THE REPORTER: "Question: Okay. Are you
6 enforcing with the same vigor and energy the prohibition
7 on home-based businesses, which the document dated
8 October 9th, 2002, refers to? In our existing codes,
9 home-based businesses are not permitted within the
10 County's residential, apartment, rural, or agricultural
11 districts.
12 "Are you enforcing that prohibition with
13 equal energy as the mandatory six-month minimum
14 residential lease?"
15 THE WITNESS: Could you break those
16 questions down, please.
17 BY MR. FOSBINDER:
18 Q. I think it's one question, but I will try.
19 Okay. I would ask you to read the second paragraph
20 below the word background on the October 9th, 2002,
21 document.
22 A. Okay.
23 Q. Okay. Is your Department, under your
24 leadership, enforcing the codes which do not permit,
25 within residential, apartment, rural, or agricultural
0059
1 districts, home-based businesses?
2 A. As far as I know, we are.
3 Q. And can you think of anything you have done
4 to make sure that that was being done?
5 A. I don't have the time to go and make sure
6 that every code that is on the books is being enforced.
7 I give general direction to my staff.
8 Q. Okay. So, am I correct in assuming that you
9 are making sure that your staff is enforcing the
10 requirement of a six-month minimum lease?
11 A. What would we be enforcing in regards to a
12 six-month minimum lease?
13 Q. No TVRs without special permits, without
14 the --
15 A. We are enforcing against un-permitted TVRs.
16 Q. And have you discussed with the Mayor the
17 issue of home-based businesses which don't have a
18 special or conditional use permit or use variance?
19 A. Not that I am aware of.
20 Q. How much time have you spent discussing
21 vacation rentals with the Mayor approximately?
22 A. A few hours.
23 Q. How much time have you spent talking with
24 the Mayor about businesses that aren't vacation rentals
25 in residential zones or ag zones if any?
0060
1 A. Could you repeat the question, please?
2 THE REPORTER: "Question: How much time
3 have you spent talking with the Mayor about businesses
4 that aren't vacation rentals in residential zones or ag
5 zones if any?"
6 THE WITNESS: I don't believe much time. I
7 won't say absolutely that we haven't.
8 BY MR. FOSBINDER:
9 Q. Is it possible you haven't spent any time?
10 MS. LOVELL: Calls for speculation.
11 THE WITNESS: I can't recall.
12 BY MR. FOSBINDER:
13 Q. You can't recall specifically ever
14 discussing that with her?
15 A. Which is that?
16 Q. Home-based businesses in residential or ag
17 zone.
18 A. I don't recall.
19 Q. It's my perception, frankly, that the
20 vacation rental industry is unusual in that virtually
21 all of the people involved, certainly over 95 percent,
22 are Anglo-Saxons, if you will, whites, and other
23 home-based businesses are much more spread across all of
24 the racial demographics here on Maui. Does that seem
25 true to you?
0061
1 A. I have no basis for that. I question your
2 basis for it.
3 Q. Okay. And you've never acknowledged to
4 anyone that that appeared to be the case?
5 A. I don't recall.
6 Q. Is it possible that you acknowledged that to
7 someone?
8 MS. LOVELL: If you have got something, why
9 don't you show it to him.
10 MR. FOSBINDER: I just asked the question.
11 MS. LOVELL: Well then, you are asking him
12 to speculate.
13 MR. FOSBINDER: No, if he knows.
14 MS. LOVELL: You say is it possible. When
15 you ask someone if something is possible, you are asking
16 for speculation.
17 BY MR. FOSBINDER:
18 Q. Well, there are some things that people know
19 they would never say, and there are some things people
20 aren't sure of. Are you sure that you never said that,
21 never acknowledged that?
22 MS. LOVELL: Never said what?
23 BY MR. FOSBINDER:
24 Q. That it appeared that vacation rentals were
25 unusual in that virtually all of the people involved
0062
1 appeared to be Anglo-Saxon, white, haole, whatever you
2 want to call them?
3 A. Are you asking me if I said what you just
4 said?
5 Q. I am asking if you have either said it or
6 acknowledged to anyone who said it that that seemed to
7 be true?
8 A. I don't recall.
9 Q. Okay. Is it a fair statement that your
10 initial position on vacation rentals was altered by
11 conversations with the Mayor?
12 A. No.
13 Q. So, the policy regarding vacation rentals
14 was your idea, the Mayor's, or both of yours, or some
15 other choice? Whose idea was it to stop?
16 MS. LOVELL: Wait, wait.
17 THE WITNESS: Which policy?
18 MS. LOVELL: I was going to say which of
19 those questions.
20 BY MR. FOSBINDER:
21 Q. John Min's document that he signed that
22 Mr. Dantes has also signed, you have seen that, I
23 assume, am I correct?
24 A. I have seen documents that Mr. Min and
25 Mr. Dantes have signed.
0063
1 Q. Okay. And that policy is no longer in
2 effect? Yes, that's true?
3 A. Which policy?
4 Q. Well, as I recall the document or
5 particularly the last one, they agreed -- it stated that
6 permits would be processed before enforcement action was
7 taken unless there was a specific complaint. Is that a
8 fair summary?
9 A. That's not accurate.
10 MS. LOVELL: I object. That's not a fair
11 summary.
12 THE WITNESS: That's not what it says.
13 BY MR. FOSBINDER:
14 Q. What does it say as you recall it?
15 A. It doesn't say that.
16 Q. Okay. What does it say?
17 A. Which document?
18 Q. The last one.
19 A. Which is the last one? Essentially, those
20 documents have changed, so I need to know which one you
21 are referring to.
22 MS. LOVELL: Do you need to call somebody?
23 THE WITNESS: I will just miss the flight.
24 BY MR. FOSBINDER:
25 Q. If you have a flight, when is it? We are
0064
1 almost done.
2 A. It leaves at 3:15, but it's a charter
3 flight, so I can get there by 3:15.
4 MS. LOVELL: What time is it?
5 MR. FOSBINDER: A quarter of. I don't want
6 to appear uncooperative if you have got more questions.
7 BY MR. FOSBINDER:
8 Q. Okay. I do have a question regarding you
9 filed a form with the County regarding your income and
10 your wife's income, and I don't have it in front of me.
11 My recollection was that you projected your wife's
12 income was going from 100,000 to 500,000. Do you recall
13 that?
14 A. Approximately. I recall it. I'm not sure
15 about the numbers.
16 Q. And your wife works in the real estate
17 business in some way?
18 A. That's correct.
19 Q. What does she do?
20 A. She sells full ownership condominiums for
21 Honua Kai.
22 Q. And did you -- is that document -- I am
23 sorry. Did your wife have that job before you became
24 Planning Director?
25 A. Yes.
0065
1 Q. Okay. And am I correct that her income back
2 in Colorado was approximately $100,000?
3 A. I think it was more than that depending on
4 the year. Some years were better. Real estate isn't
5 steady.
6 Q. Yeah, I was once a real estate broker. I
7 know that. We can agree on that. And why -- how come
8 her income came up so dramatically? People ask me, and
9 I am curious.
10 MS. LOVELL: Well, you know, I really
11 question the relevance of the questions about Jeff's
12 wife's income.
13 MR. FOSBINDER: It's a very unusual
14 situation to have a Planning Director's wife makes four
15 times as much as he does and be in the real estate
16 business at the same time.
17 MS. LOVELL: Well, possibly Director Hunt is
18 underpaid.
19 MR. FOSBINDER: That could be, and he can
20 lobby the Council with your assistance to remedy that
21 problem.
22 Q. Was there something unusual? Did she sell a
23 large piece of property? Was that it?
24 A. I don't mind answering.
25 MS. LOVELL: Go ahead.
0066
1 THE WITNESS: I believe the income from that
2 particular statement was based on a launch where they
3 save up the -- save is not the right word. They sell
4 all the property at one day.
5 BY MR. FOSBINDER:
6 Q. Okay. And she was entitled to a commission.
7 Frankly, I assumed there was some explanation along
8 those lines, but people ask me, and I have to make
9 inquiry. So, as you understand it, this was an unusual
10 situation, is that -- it's not an every year thing?
11 A. Unfortunately.
12 Q. Yeah. I had a suspicion it probably wasn't,
13 because, frankly, real estate is usually not that good,
14 as you know.
15 What if anything would be a negative
16 consequence to the County of Maui, as you understand it,
17 if the Court were to order that you process all of these
18 approximately 70 permits before you do an enforcement
19 action against the people who applied for the permits?
20 A. The complaints or concerns that we have
21 heard relate to impacts to neighbors, impacts to
22 neighborhoods, impacts to affordable housing prices,
23 impacts to housing rental pools, inconsistency with the
24 General Plan and Community Plans, concerns for no
25 inspections, fire, building permits.
0067
1 Concerns that have led to a proliferation,
2 and that there's an atmosphere of permissiveness which
3 invites further permissiveness.
4 Q. And have you any examples of permissiveness
5 inviting further permissiveness?
6 A. The testimony that we have heard is the
7 Arakawa non-enforcement policy led to a proliferation.
8 Q. Of vacation rentals?
9 A. Of vacation rentals.
10 Q. But back to the earlier issues, there is no
11 scientific evidence, if you will, nothing, no formal
12 study to show what the effect on low-income housing
13 would be for instance?
14 A. There's some statistics that indicate
15 there's a high percentage of rentals that are being
16 occupied by vacation rentals.
17 Q. But not necessarily affordable. Let's let
18 you go on the airplane. There is no reason to go
19 through this. We have been through it before. I don't
20 have any further questions.
21 MS. LOVELL: Okay.
22 (Adjourned, 2:48 p.m.)
23
24
25
0068
1 REPORTER'S CERTIFICATE
2 STATE OF HAWAII )
3 ) SS.
4 County OF MAUI )
5 I, KATHERINE EISMANN, CSR 439, Notary Public
in and for the State of Hawaii, do hereby
6 certify:
7 That the witness whose deposition is
contained herein appeared before me on the date and time
8 specified; that prior to being examined, the witness
was by me duly sworn;
9
That the deposition was taken down by me in
10 machine shorthand and was thereafter reduced to print
under my supervision by means of computer-assisted
11 transcription; that the foregoing represents, to my
best ability, a true and correct transcript of the
12 proceedings had in the foregoing matter;
13 That, if applicable, the witness was
notified through counsel, by mail, or by telephone that
14 the deposition was available for review, signature and
corrections, if any. If not signed, the reading and
15 signing of the deposition were waived or the witness
failed to appear;
16
That pursuant to HRCP 30(f)(1), the original
17 will be sealed and forwarded to the noticing counsel
for his retention.
18
I further certify that I am not an attorney
19 for any of the parties hereto, nor in any way
interested in the outcome of the cause named in the
20 caption.
21 Dated: ______________________
22
23 _______________________________
Katherine Eismann, CSR #439
24 Notary Public, State of Hawaii
My Commission expires 6/23/2010
25
0069
1 SIGNATURE PAGE
2
3 I, JEFFREY S. HUNT, certify that I have
4 read the foregoing transcript pages, and corrections,
5 if any, were noted by me. The same is now a true and
6 correct transcript of my testimony.
7
8
9 _____________________________
10 JEFFREY S. HUNT
11
12
13 Signed before me this _______ day
14
of ____________________, 2007.
15
16 ______________________________

Revoking CORA permits, Makena.

2008-10-08T17:09:00.000-07:00

The Maui Prince Hotel went through a years-long dispute over the resort’s request to cut off the old government road that ran between the hotel and Malu‘aka Beach. The fight led to the formation of the Hui Alanui o Makena, a Hawaiian rights advocacy group that still is involved in other development issues. But the Makena Resort eventually was allowed to turn the road into a walking path, agreeing to provide public parking, restrooms and walkways to the beach. Public beach facilities were built in the mid-’80s and in 1992 to provide beach access at Makena Landing and at Malu‘aka. The facilities include three restrooms, outdoor showers and 85 parking stalls that are maintained by the resort staff. Figueiroa said the resort recognizes that the island’s water resources and other infrastructure are limited.

BAKER….
For 25 years Bobby Baker has been taking people scuba diving, launching at two or three different spots along the strip of S. Maui coast known as Makena Landing. It was Mr. Baker’s understanding that this was an ancient right of way, familiar to all as an historical and well known harbor and landing in public use since pre-contact times.
Over the past decades Mr. Baker has shared this spot with many others and understood and witnessed it to be widely used for public, private and commercial purposes alike. Some for-profit and some not. He was not aware, nor made aware, of any restrictions to using the area and there were certainly no signs posted or objections made to him or others using the landing over these many years – which include fishermen, kayakers, surfers or windsurfers, small sail boaters and anyone wishing to enjoy the waters of this area – until he and other permit holders received a letter on July 24, 2008 stating that starting Sept. 1, the Maui County Parks and Recreation Department must revoke Baker's commercial ocean recreation permit along with the permits of 18 other dive and kayak rental companies at Makena Landing and five permits at nearby Maluaka North and South beach parks.

Parks Department Director Tamara Horcajo said the decision was not the county's to make. Despite what the general public may believe, the county does not own the land, parking lots or restrooms, which are maintained by Maui Prince Hotel.

However, Horcajo noted that the public will still have access as usual to the facilities and beach. That access is protected by law. Only commercial operators will be restricted.
As part of that initiative, department staff had written letters to all the stakeholders seeking their input, including park owners such as the state and Maui Land and Pineapple Co.
When he researched the issue, Dowling, whose Namalu subsidiary owns the Makena land, said he learned that the areas are actually zoned Parks 1, which strictly prohibits commercial activities there. Once that was discovered, he had no choice, he said.
This has been found to be incorrect.

For decades, scuba dive company operator Bobby Baker has been taking divers on underwater adventures at Makena Landing Beach Park, certainly predating the “public” facilities, which further gave one and all the distinct impression that the landing was an acknowledged public access to the water.

The Maluaka North and South beaches are on either side of the Maui Prince Hotel, which Dowling and Morgan Stanley Real Estate purchased for $575 million a year ago as part of the 1,800-acre Makena Resort holdings. Dowling said he's working on reviving the stalled Makena Resort plan to build housing on 600 acres of undeveloped land.
Then when grub work recently began on a seven-home subdivision right behind Makena Landing, it fueled speculation about Dowling's real intentions. The commercial operators believed it was a Dowling project, and concluded that was why he wanted them out, Baker said.
But the subdivision has actually been six years in the making by developers Bill Frampton, Dave Ward and John Santos and has nothing to do with Dowling, Frampton said. He said they had no idea that commercial operators were getting kicked out. He also wondered where they would go south of Kihei.

Summary of recent litigation: Makena Landing.
In recent history (post WW.II), the subject area has been in contention by several parties. Our research has shown the following:
Until 1965 the State claimed title to the disputed property and TMK2-1-7:4. In that year the State and Ulupalakua Ranch entered in to a boundary agreement setting their common boundaries in the region,
In 1973 a parcel was conveyed to current titled owner Seibu Hawaii, Inc – dba Prince Hotels of Hawaii.
In 1986 neighboring property owners George and Elenor Ferreira brought a quite title action (Civil No 86-0364), filing a motion for preliminary injunction Sept 30 and Oct 1st 1986 against Seibu Hawaii, Inc. claiming interest in subject property and claiming to have adverse possession of subject property since 1895. They were also defendants in a Complaint to Trespass (Civil No 86-0410), which was counterclaimed to enforce their rights to easement.
Cross claim was made by Hui Alanui O Makena v. County of Maui (and various defendants Ululpalakua Ranch, Inc; Seibu Hawaii et al) Civil No 86-0187 – resulting in the State approving a new boundary between Kaeo and Maluaka. Hui Alanui contended this boundary effected management of ceded land but these claims became moot as plaintiff entered into a settlement agreement with defendant Seibu.
On October 26th, 1987 the court granted the Motion to Enforce Settlement agreement and the above referenced complaints were apparently settled in this agreement, finally referred to and dated November 30th 1987. Despite exhaustive efforts we are unable to discover the terms of this closed settlement – (ask Jim to clarify this:…..which we believe would have relevant bearing on our clients right to prescriptive easement (?)…….
The property on either side of the Maui Price Hotel was sold to Dowling’s Namalu subsidiary and Morgan Stanley Real Estate in 2007. The land directly behind Makena landing is owned by developers Bill Frampton, Dave Ward and John Santos.

Makena History:
Historical:
While deforestation, privatization of land, introduction of new plants, animals and diseases changed the lives of Makena’s traditional inhabitants; the forces of Hawaii’s new plantation economy were shaping Makena’s future. The lands of Ka’eo and the bustling port of Makena landing were the centerpiece of Capt. James Makee’s famed Rose Ranch from the 1850’s to 1880’s. The Ranch, which at first grew sugar cane and diverse crops to serve the mainland export trade, eventually concentrated its activities on cattle ranching. Makena was Maui’s second busiest seaport up until the late 1880’s and the Rose Ranch was a center of employment, commerce and social life for visiting dignitaries and local residents alike.
This beautiful spot called Makena plays a significant role in Maui’s history, and with new development plans in the works, will be a changing landscape in Maui’s future.
Makena is part of a larger ancient land division named Honua’ula. Honua’ula encompassed land from the rough lava flow terrain of Keone’o’io (later to be called LaPerouse Bay) on the southeast shore, to the sprawling lush pastures of Ulupalakua upcountry, to pristine Keawakapu Beach, just north of Wailea. The first settlers were thought to be followers of Moikeha, a Polynesian voyager believed to have arrived from Tahiti around 1300 A.D. Many places along the Honua’ula coastline are said to be named for those voyagers Moikeha permitted to land and become established.
The shores of Honua’ula are where Kalani’opu’u, chief ruler of the Big Island of Hawaii, returned in 1776 to seek vengeance from an earilier defeat from Kahekili, ruler of Maui. Kalani’opu’u and his warriors’ double-hulled canoes spanned miles of coastline from Keone’o’io to Makena. While they ravaged the countryside, the people known as the “Makenans” fled into the brush. This was at the same time as Captain Cook’s first landing on the Big Island. Cook was met by Kalani’opu’u’s cousin, Kamehameha, who would later become King and unite all of Hawaii. A decade later, La Perouse – the first European explorer to land on Maui, came ashore at Makena bay, documenting the spot in his journals.
The Makena name is derived from the word mak’ke, meaning, “many gathered”. One story of the origin of the name involves the building of Po’okela church in Makawao. Many people traveled to Makena to gather coral for building the church. Passing the stones hand to hand. The area is also steeped in legends of Pele, Hawaiian goddess of volcanoes. It is said that Pele was jealous of the beautiful lizard maiden sunning herself on the south shore so she split the maiden in two in a fiery wrath, the head becoming Pu’u Ola’i, and the tail, Molokini islet.
The reefs around Makena were abundant with many species of sea life. Makenans exchanged fish for most of their other food needs grown on the Wao-Kanaka, or uplands. Fishing shrines are still visible in the area. A fishing shrine, or Ko’a, was located on top of Pu’u Ola’i, and there is also one on Nahuna point across Keawala’i bay. These two landmarks were vectors to point to where the best deep-sea fishing place lies. Most of the small heiaus that can still be seen today are Ko’as, also known as Ku’ula heiaus. They are dedicated solely to the service of Ku’ula, god of fishing. Ko’as have a walled area to protect the Loko-i’a, or watcher-for-fish.

Restrictions on teaching surfing in Maui

2008-10-08T17:00:00.000-07:00

Please note that these are documents in progress - kindly ignore type-o and abbreviatons!

ISSUES;
1. Religious Expression
2. Public Forum
3. Discrimination
4. Social/Political Expression
5. Artistic Expression
6. Expressive Association

1. Here plaintiffs contend that surfing for many of it’s practitioners is expressive activity conducted in traditional public forums. To many it is the core of their religious and spiritual practice. As such the government’s ability to regulate surfing and or the teaching of surfing is limited. There is a large body of evidence that supports this contention.

Historically this is evident in the multitude of references of the religious importance of surfing to its practitioners and their culture and the larger counter-culture that exists. With the renewed respect for and resurgence in indigenous and authentic life in Hawaii, surfing is often held as an example of one unadulterated aspect of true Hawaiian life. Something that along with ‘Aloha’ can be shared with all people and held as a cultural example of the higher spiritual aspirations of all. To it’s devotees surfing is indeed considered a religious act and pursuit (2.).

One of the many examples that support the idea of surfing as a religious activity is found in a recent paper by Bron Taylor published in the JAAR (Journal of the American Academy of Religion - Taylor J Am Acad Relig.2007; 75: 863-874), “Aquatic Nature Religion”, where he states, in brief; “…For some, surfing clearly is a religious experience, and it does not take long analyzing material surf culture or it’s associated rhetoric to see it’s spirituality-infused nature. Religion observer Melekian concluded accurately that surfing resembles religion in important ways asserting that it makes one more compassionate towards both people and nature…. Surfing has a spiritual aura that you only get once you have experienced yourself…” (full text, ref.8).
Even in the beginning, the surfboard was a religious icon (ref.9e). The early Hawaiians viewed their surfboards not only for recreation, but as tools for worshipping the ocean. Riding the oceans energy was a reverential act, and an integral part of the ancient religion of the Polynesian Islands (2a.).

While religion has been defined broadly by the US. Supreme Court, it is a well documented fact that surfing was certainly an intrinsic part of the religious practices of ancient Hawaiian’s (ref.). Present day devotees are no less moved and inspired. Author Steven Kotler presents his spiritual journey through surfing in his book, “West of Jesus: Surfing, Science and the Origin of Belief” (Bloomsbury, June 2006) in which he conducts an exhaustive investigation into the science and nature of faith, concluding that the act of surfing is fundamentally religious. (ref.2).
It is well established that a law enacted to discourage a specific group from engaging in first amendment protected activity is subject to strict scrutiny.

Again, at issue here; is surfing and its instruction fully protected because for many practitioners it is a core religious belief and fulfillment of cultural identity? Is it protected in Hawaii because of it roots as a religious/political/social act?

While many surfers view surfing as the core of their religion others also passionate about the activity regard it as integral to their philosophy. An activity that is inextricably intertwined with their political, religious, sociological, and ideological identity.

Throughout the world, surfing has had a similar impact and position in peoples lives. For example, Nancy M. Vicoorin-Vangerud (2003) summarized and interpreted survey research by Bentley and Hughes (1998) in this way: When Peter Bentley and Philip J. Hughes….. Surveyed Australians about where they most often experience a sense of peace and well being, 71% of the respondents replied, ‘by the sea’ (1998:108). Other answers included ‘in the bush’ (66%), ‘with family’ (64%), with friends (59%), ‘in a garden’ (56%), praying and church services only 29 and 28% respectively. Upon closer examination, for some persons the sea takes the place of churches, for others, the spiritual resources of the natural environment exists alongside traditional religious resources. In fact, the people who attend church regularly were just as strong in affirming the sea as those who did not attend church”. This suggests why a sense of spiritual serenity is common among surfing cultures and sub cultures, (in part at least because it is common among many people well acquainted with the sea), and it further illustrates why some surfers use religious terminology to express their sea-related feelings. All of which further underscores the importance of, and right to, allow unencumbered access to this activity and expression.

2. Also at issue in the present case is the question of whether the beach and ocean near the shoreline is a traditional public forum? Certainly in the case of Leydon v. Greenwich, CT, 257 Conn. 318 (2001) it was affirmed by the Connecticut Supreme Court that restricting municipally managed beach access to the public was unenforceable. The Connecticut Supreme Court focused almost exclusively on the First Amendment argument that the beach was a traditional public forum.

In the case at hand the government’s apparent goal is to reduce crowding, presuming then that students without friends or relatives to teach them for free have the same right of access to the ocean and its surf as those who receive instruction for a fee. It is apparent that the code section takes large numbers of instructors out of the picture only because they help people who don’t know anyone else willing to provide the exact same information and instruction, regardless of whether or not there is a fee involved.

3. In this case the proposed regulations were admitted by the Parks Department director to be for the benefit of local residents who perceive over crowding at some popular surf breaks. The method to reduce crowding however has the clear effect of placing the burden of reducing surf crowding almost entirely on “outsiders” also known as tourists and those who may wish to learn and engage in this spiritual and cultural activity. The regulations are most discriminatory on holidays where the reduction is borne approximately 90% by tourists. The method chosen to reduce crowding is almost entirely directed against tourists. Given that Hawaii has 12 months of possible surfing it is generally easy for residents, especially long time residents, to find a family member or family friend to help their children or themselves learn to surf – with far more available time and opportunity than the average tourist visit of one week.
Individuals who do not know anyone on Maui are unlikely to find someone to volunteer to teach them about surfing. Parents who wish to have someone teach their children about surfing are unlikely to be able to find a volunteer, qualified or otherwise.

However for many years in Hawaii residents and tourists have been able to find a professional surf instructor. Surf Instructors typically cover a wide range of material including the religious and cultural history of surfing in Hawaii, the esthetic of surfing maneuvers, the elements of ocean safety and respect for the environment. The first wide availability of surf instruction by professionals was the Wai Kiki beach boys Duke etc.
Currently the state of Hawaii through DLNR, and the County of Maui through the parks department are attempting to discriminate against instructors who require payment as compared to instructors who provide instruction for free and also discriminates against the people, primarily visitors, who are unlikely to know anyone locally to teach them – for a fee or otherwise.
If the Government can meet the burden of proving a serious risk, it can regulate surfing’s popularity by many methods which treat all of those who wish to teach about surfing, for a fee or not, equally. Limits on the number of surfers in the water at the few particularly crowded spots at peak hours would be equally effective, but would not discriminate against surfers unable to live without income from teaching surfing, or their clients.

4. At question also is what characteristics of teaching surfing suggest that instruction regarding surfing in Hawaii is protected fully by the First Amendment? Apart from the shortsighted efforts of the missionary’s of old to forbid the ‘sinful pleasures’ of surfing, there is no legal precedent regarding any effort to ban surfing or the teaching of surfing to refer to. However it’s cultural, political and historical importance and significance has been well documented.

As an initial matter, it is unquestioned that the First Amendment protection is not lost simply because the protected expression is sold for profit. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n. 5, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (expressive items are no less protected than they would otherwise be under the First Amendment merely because they are sold for profit); see also Riley v. Nat'l Fed'n of Blind of North Carolina, 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (“It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.”). It is also unquestioned that the First Amendment shields far more than just written and spoken forms of expression. *1138 See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). However, contrary to plaintiff's assertions, all visual art is not historically and unquestionably entitled to full First Amendment protection. While the Supreme Court has found protection for a broad array of artistic expression, including music, theater, and film, see, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (music without regard to words); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (theater); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (film); Miller v. California, 413 U.S. 15, 34-35, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (“expression of serious literary, artistic, political, or scientific ideas,” unless obscene in legal sense); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-34, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (topless dancing), as well as for many instances of expressive conduct, see e.g. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (parades); Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (peaceful marches to express grievances to governmental authorities); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing of black arm bands to evidence disapproval of U.S. involvement in Vietnam); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (sit-ins to protest racial discrimination); and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (refusal to salute flag), it has not provided blanket protection for all visual art. The Supreme Court, however, has explained that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S. at 569, 115 S.Ct. 2338 (citation omitted).

The direct impact of paid instructors is no different than volunteer instructors. The increase in the number of surfers is not by any means entirely the result of the availability of competent professional instructors. Interest in surfing has been going up world wide and most southern California breaks (and beaches) are vastly more crowded than any location in Hawaii.
(A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials; such is the case when a permit or license requirement places unbridled discretion in the hands of a government official. U.S.C.A. Const.Amend. 1.)
Surfing was not only a sport for Hawaiians, but it was also an integral part of their social structure. Surfing was part of the Kapu system of government on the islands. This system maintained a sense of order and societal classes. Surfboards were divided into classes according to the type of wood used and the length of the boards. The largest and heaviest were reserved strictly for Hawaiian royalty. They were prominently displayed as status symbols and that of social ranking and political power. (1&2.).

Indeed even the very determined and almost overwhelming oppression of the puritanical missionaries, who in their misguided benevolence, deemed surfing to be sinful in its pleasure, were unable to extinguish the vital and ingrained spiritual flame of surfing. As they did with all traces of indigenous spiritual practices such as hula, chanting and the native tongue, the missionaries did their utmost to stamp out these empowering religious rites. However, all of these vital indigenous religious practices have survived due to both their essential importance to and the tenacity of the culture and its people.

Ancient Hawaiians practiced the art of surfing as part religion, part sport and as a large part of their social structure. (2a). This supreme pleasure of surfing was deeply rooted in centuries of Hawaiian legend and culture. Place names were bestowed to honor and remember legendary surfing incidents. The Makahiki festival, an annual celebration to the god Lono, featured surfing rituals. The kahuna intoned special chants too to christen new surfboards and to give courage to men and women who challenged the waves.

Surfing was used as a means to settle disputes among the people. Wealth, social standing, land holdings and even matters of the heart were all settled with surfing contests.

Surfing has been considered a vital form of expression and protest. Practitioners have felt compelled to take this most personal form of expression to the waters on many occasions when moved to oppose or protest a given issue. This has been recognized as a means of protest all over the world, (ref.3-7). It is also recognized as a common forum for funeral ceremonies to mourn the passing of any person, whether surfing devotee or not.

5. Surfing is closely related to expressive dancing as an art form (as defined in expressive association) which has been found to be expressive speech or “Right of expressive association” which is protected by the first amendment. Although the argument for what activity is in fact “expressive association” has been analyzed in the case of Dallas v. Stanglin, 490 U.S. 19, 24-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), Justice David Souter, in his concurrence, goes further than Scalia with regards to the status of types of dancing under First Amendment analysis: “Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment’s protection, Dallas v. Stanglin, 490 U.S. 19, 24-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment’s concern. But dancing as a performance directed to an actual or hypothetical audience gives ‘expression’ at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. … Although such performance dancing is inherently expressive, nudity per se is not.”
Is this activity protected because in competition it is evaluated in large part on esthetic considerations? Because it inspires a “political, religious, ideological” view point to the spectator the same argument used in the as White vs. City of Sparks (No.05-15582, 2007). Its definition of art and as self expression focuses on the relation to the ‘message’ or effect on the spectator….. ‘If it imparts a political, religious or ideological impression’… it is defined as art and self expression protected by the first amendment. Surfing certainly imparts an ideology to the spectator.

Esthetically speaking the physical activity itself is oftentimes compared to dance. The poise, the balance, the dancers flourish and technique. All the requisite practice of mental and physical focus and training exists. It is a defining act, the beauty and artistic expression of surfing sets it apart from a mere sporting pastime or mindless recreation. Combine this with the inherently intimate relationship the ‘performer’ has with the elements (wind, water, air) and it is at once elevated to a deeply spiritual art form. Art as expression is protected by the first amendment.
Is surf instruction protected because of a long tradition of revering surfboards as esthetic/artistic/religious items?

Creating surfboards was/is also a religious ceremony in the Hawaiian culture. Only three types of wood were suitable for crafting traditional boards. Surfers took special care in selecting a tree, recited prayers and placed fish in a hole at the base of the tree. Only once all these rituals were performed would the tree be cut down and used for a surfboard. Similarly to the great works of art offered up in the celebration of many recognized religions, surfboards have been the chosen vehicle and canvas for many visual artists to manifest their visions inspired by the practice of surfing. (ref.7, 9e)

6. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.” See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640, 644, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one's voice with the voices of others. See Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). If the government were free to restrict individuals' ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect. Ibid. Rumsfeld v. Forum for Academic and Institutional Rights, Inc.547 U.S. 47, 126 S.Ct. 1297U.S.,2006.March 06, 2006
Likewise, if the government were free to restrict individuals' ability to join together and surf or learn to surf, it could essentially ‘silence’ the “expressive association” of creativity, inspiration and the pursuit of what for some is a spiritual experience – essentially what the First Amendment is intended to protect.
Surf instructors and surf students alike have this “Right of expressive association” as defined in the 1984 decision Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) where the court identified two types of Freedom of Association with constitutional protection – intimate association (“intimate human relations”) and expressive association (“engaging in those activities protected by the First Amendment – freedom of speech, assembly, petition for the redress of grievances, and the exercise of religion).
In Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Supreme Court found that where the commercial and expressive parts of speech are “inextricably intertwined,” a court could not parcel out the protected and unprotected parts of the speech. This court has applied the “inextricably intertwined” standard to merchandise like that at issue here; the Gaudiya court found that the plaintiffs' street sale of merchandise with messages affixed to the products was fully protected because the commercial and noncommercial aspects of speech “inextricably intertwined.” Gaudiya, 952 F.2d at 1064-65; see also One World, 76 F.3d at 1012 (finding sale of merchandise bearing political, religious, philosophical or ideological messages “inextricably intertwined” with other forms of protected expression).

The district court relied on One World to find the ordinance here a valid time, place or manner restriction. Accordingly, appellees rely primarily on One World to support their case. However, in One World, the restriction did not discriminate against certain types of speech depending on the speaker. In fact, in One World, when the court analyzed whether the ordinance was narrowly tailored, it reasoned that the ordinance was narrowly tailored because it addressed the government interests “without ... significantly restricting a substantial quantity of speech that does not create the same evils.” 76 F.3d at 1014 (citing Ward, 491 U.S. at 799 n. 7, 109 S.Ct. at 2758 n. 7).
Here, defendants claim to be prohibiting the evil of commercial activity by prohibiting all surf instruction not done for free. However, the nonprofit distinction significantly restricts a substantial quantity of speech - namely expressive speech by people who are not nonprofit - that does not create the same evils as purely commercial activity on the beaches what the government admittedly wants to restrict. Thus, applying the reasoning of One World, rather than merely looking to its result, one can see that the ordinance at issue here is not narrowly tailored to serve government interests.
(White/City of Sparks)….The First Amendment protection of free expression is not lost simply because the protected expression is sold for profit. U.S.C.A. Const.Amend. 1)
A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials; such is the case when a permit or license requirement places unbridled discretion in the hands of a government official. U.S.C.A. Const.Amend. 1.
To determine whether a prior restraint on speech violates the First Amendment, the question is whether the standards to guide the official's discretion are so imprecise that discriminatory enforcement is a real possibility. U.S.C.A. Const.Amend. 1
It is clear that there are limits to the breadth of the First amendment protection such as - The Sabin vs. Butz 515 F.2d 1061, 1975-1 Trade Cases P 60,262 United States Court of Appeals,Tenth Circuit example. is not applicable to this case as there were no intrinsically religious, historical or cultural arguments presented in association with skiing or its pursuit. It also dealt with third party permitees. It was denied on the grounds that it did not infringe on protected First Amendment Rights.

And indeed, there are many useful limits to what can be reasonably defined as “art” that may enjoy first amendment protection, that have often been rigorously challenged even within some of the cases cited here. However, in relation to the activity and pursuit of surfing, it is, as clearly detailed in this memo, undoubtedly held to a higher standard than that of simple recreation or sport.