OPPOSITION to Dawn Chang for Chairperson, Department of Land and Natural Resources (DLNR) GM 516

Consultant Dawn Chang’s nomination Hearing is on Friday March 31, 2023 1:00 pm

Testimonies can be submitted here. You need an email to register. Testimonies can be a simply OPPOSE or SUPPORT.

This is a written testimony from Deborah Ward from Mountain View, Hawaii Island OPPOSING Dawn Chang. Deborah has been in the environmental movement to preserve and protect Hawaii’s resources for decades. She has been a member of the Hawaii island group of Sierra club since 1984 in Excom positions since then. She served on the OMKM ENVIRONMENT committee for 23 years. Deborah is a retired faculty for UH DEPT of natural resources and environmental management, with an MS in Horticulture. She is currently farming ten acres in Mountain View.

” I am writing to urge you to not to confirm the nomination of Ms.Dawn Chang as Chair of the Board of Land and Natural Resources (BLNR).

The basis for my opposition to this appointment is that Ms. Chang’s approach to the pressing issues of our time has been too narrowly focused on meeting the needs of her corporate and organizational clients when the focus needs to be on protecting the public trust.

The context for my concerns is the kuleana of the BLNR. While I am sure that you are aware of that responsibility, a reminder is in order given the importance of the appointment being considered. The Department of Land and Natural Resources, headed by an executive Board of Land and Natural Resources, is responsible for managing, administering, and exercising control over public lands, water resources, ocean waters, navigable streams, coastal areas (except commercial harbors), minerals, and all interests therein.

The department’s jurisdiction encompasses nearly 1.3 million acres of State lands, beaches, and coastal waters as well as 750 miles of coastline (the fourth longest in the country). It includes state parks; historical sites; forests and forest reserves; aquatic life and its sanctuaries; public fishing areas; boating, ocean recreation, and coastal programs; wildlife and its sanctuaries; game management areas; public hunting areas; and natural area reserves.A summary of that kuleana is protecting the public trust.

Given this tremendous responsibility, the selection of a Chair should be guided by the highest principles. There is ample evidence that the selection of Ms. Chang does not demonstrate an adherence to that fundamental requirement.

The candidate should have demonstrated unquestionable integrity, a profound understanding of Hawaiian history and, a deep respect for the traditional Hawaiian civilization.

While Ms. Chang’s work has been involved in a wide range of relevant areas, an examination of her record in those involvements discloses a bias that disqualifies her from holding the BLNR position. Ms. Chang’s career is repeatedly characterized by decisions that ignore the mandates of history in order to facilitate the colonial mindset of facilitating economic exploitation, rather than acting as a protector of Hawai’i’s future. Her long list of corporate clients is the visible manifestation of her true professional commitments.

Her company belongs in the company of businesses that prepare environmental assessments and environmental impact statements which give developers the cover of a document that says what the developer needs to justify the project at issue.

There are other questions about the fitness of Ms. Chang. Some of her actions appear to be unethical, such as advising clients on how to avoid taking legally required actions.

For example, she advised Kawaiahaʻo Church that its proposal to construct a multi-purpose center did not require an archeological inventory survey, which the law clearly required. Ms. Chang’s advice was to ignore the legal requirement to avoid increasing the project cost.Her advice resulted in lengthy litigation and the illegal disturbing of hundreds of burials.

One of the major issues BLNR must address is the future of Mauna Kea. On that issue, Ms. Chang was responsible for preparing a woefully inadequate comprehensive master plan. Her plan was missing provisions for natural and cultural management, decommissioning, and public access. BLNR determined that the plan was deficient. The delay in approving the missing critical pieces of the plan led to delays in the CDUA for the TMT construction. The BLNR had to step in to require compliance with the law lacking in Ms. Chang’s plan.

DLNR is currently plagued by weak leadership, with multiple conflicts between offices and divisions, many due to conflicting mandates. The chronic understaffing and underfunding leads to ineffectiveness and institutional frustration. The loss of institutional knowledge has led to a serious degradation of our cultural heritage.

Ms. Chang does not demonstrate the skills to address these issues, and could serve to exacerbate the problems. Ms Chang is not the right person to be confirmed as Chair. I ask you to oppose her appointment.”

Honolulu City Hall wants pay raise

Some of the pay raises are significant. City Council would at least double its pay.

There was a Salary Commission meeting this afternoon on March 21, 2023 at 1:30 pm. Did you hear about it?

I was looking for a written testimony section for today’s Salary Commission Hearing but could not locate it.

But I found one for 2022 Hearing. The sentiments were overwhelmingly against the raise. This year 2023 poses over 100% and more pay raise for City Council members. Council members like Chair Tommy Waters and Radiant Cordera are publicly saying their job is not a part-time job.

Here is Mayor Rick Blangiardi’s written testimony to the Honolulu Salary Commission for 2023.

Who sits on the Honolulu Salary Commission. If the names look familiar, you’re not wrong.

SB 1468: Surveyors want entry into any private property that has not hired their services

This is another bill that needs more deliberations and disclosure to the public at large. The most-affected stakeholder – the private property owners – deserve to be in this legislative process prior to any adoption of such bills. (The Honolulu Department of Design and Construction (DDC) ” respectfully supports ” this Bill.)

SB 1468 ” Authorizes professional land surveyors, and any assistant under the direct supervision of the land surveyor, to enter any private property to perform land surveying, subject to certain provisions regarding notice and identification. Shields land surveyors and their assistants from prosecution under criminal trespass laws when performing their duties. Effective 7/1/2050. (SD2)”

Screenshot from https://mjslandsurvey.com/about-scalice-land-surveying/

For clarifications: Subject Property – hires the surveyor.

Non-Subject Property – does not hire the surveyor but surveyor wants right of entry.

Here are some comments and questions:

  1. SB 1458 “Shields land surveyors and their assistants from prosecution under criminal trespass laws when performing their duties.”
  2. On the other side of the coin, what about the liability of the private property owners who did not hire these surveyors but are forced to provide entry to the surveyors? What happens if a surveyor is bitten by a dog, or trips on a rock and break a leg, or is attacked by a swarm of bees or has a heart attack on the non-subject property?
  3. This Bill is an over-reaching and over-arching demand of right-of-entry to any property in Hawaii.
  4. What about the privacy of the non-subject property owners? Is their property not their castle?
  5. Why this request this year? There are actually more technology options for surveyors now to map out properties.
  6. Why do surveyors need to enter another non-subject property when surveyors already have full access to the subject property that hire them?
  7. Surveyors can perform, stake the pins, and complete work on the Subject Project. The first point of reference is usually on public places like a road or highway.
  8. Surveyors have worked in this industry for ages without asking for entry into any property that do not hire their services. Polite and respectful surveyors usually have no problems with adjacent property owners should there be a need for an adjustment of some sort.
  9. Non-subject Property owners could be on vacation, have kupuna, teenagers, children, tenants, pets, guard dogs, expensive stack of surf boards, and so on that need to be considered.
  10. How can another non-subject property trust surveyors they have not hired for the job? This is opening a new can of worm for personal security of property owners. Already we have criminals who are bold enough to pose as a policeman.
  11. Are the outside party surveyors going to pay for the non-subject property owner’s time to be present, on their own private property?
  12. The beneficiary of this are the surveyors. Just a written notice to the non-subject property owners is very assuming and autocratic. Sending a written notice is insufficient. The US Post Office is unreliable. Or an owner may have a PO Box office that is not checked regularly. The owners may not read or understand English. This should read: the real property to be surveyed after providing a landowner with written notice not less than 30 days before the proposed date of entry to the non-subject property and only upon a written approval receipt from the rightful owner(s).
  13. Again, the surveyors are the beneficiaries. It’s wrong to imply approval just because the surveyors have not received a timely objection. These unsolicited requirements on private property owners takes time, effort and costs. It’s a huge inconvenience. As discussed in #10, there could be a litany of reasons why the owners may not know what’s going on. The result should be the other way around. If the surveyor does not received a written approval, it’s a “No, no approval” to enter private property. (4) A statement that the landowner may refuse entry by making a timely written objection; and(5) A statement of the date, time, and method by which a landowner may object.
  14. This again disenfranchises the private property owner who is not benefitting from these actions. The surveyor is asking for a favor. Unless the surveyor receives a written approval from the non-subject property owner, it must be considered a ” non approval” to gain entry. Also using a certified mail is insufficient notice; it must include a USPO signed RETURN CERTIFICATE from the rightful owner in this context sentence. “Written notice shall be sent to the last known address of the landowner of, or person with an interest in, the real property to be surveyed and the landowner or occupier of adjoining lands to be accessed; provided that notice sent by certified mail shall be deemed sufficient notice.

REFERENCES: This are excerpts relating to ” subject to certain provisions regarding notice and identification” as printed in this Bill:

Page 2 Ҥ464- Professional land surveyor right of entry to
private property; notification; identification; liability
. (a)
A professional land surveyor licensed pursuant to this chapter,
and any assistant under the direct supervision of the land
surveyor, may enter the private property of the landowner of the
real property to be surveyed and any adjoining lands at
reasonable times to perform land surveying at the request of the
landowner of, or person with an interest in, the real property
to be surveyed after providing a landowner with written notice
not less than ????? days before the proposed date of entry. The
written notice shall include:
(l) The date and time the entry shall occur;
(2) A description of the work to be performed;

Page 3 (3) The approximate duration of the entry;
(4) A statement that the landowner may refuse entry by
making a timely written objection; and
(5) A statement of the date, time, and method by which a
landowner may object.

Any objection shall be expressly communicated to the land
surveyor in writing no later than ????? hours before the date the
survey work is to be performed. If a landowner makes a timely
objection, a professional land surveyor shall not be authorized
to enter the private property of the objecting landowner
pursuant to this section.

(b) The land surveyor shall give at least ten days written
notice of the intention to enter the private property on which
the land surveying is to be performed when the land surveying
may involve adjoining lands. The written notice shall include:

(l) The name of the landowner of, or person with an
interest in, the real property to be surveyed and the
name of the landowner or occupier of adjoining lands
to be accessed;
(2) The date and time the survey work is proposed to be
performed; and

Page 4 (3) The name and contact information of the land surveyor
that will perform the work.
Written notice shall be sent to the last known address of the
landowner of, or person with an interest in, the real property
to be surveyed and the landowner or occupier of adjoining lands
to be accessed; provided that notice sent by certified mail
shall be deemed sufficient notice.

When the landowner or person with interest in a property
involved in the survey, including adjoining lands to be
accessed, gives notice to the surveyor that the surveying may
disrupt or interfere with operations on the properties involved,
the surveyor shall meet with the landowners or persons with an
interest in the properties to negotiate a mutually agreeable
date and time to perform the land surveying. (c) The land surveyor shall carry a government-issued
photo identification, and the land surveyor’s:

(l) Certificate of licensure with the license number
issued pursuant to this Chapter, or a facsimile
thereof; or
(2) Seal or stamp, or facsimile thereof, authorized
pursuant to section 464—11; and

Page 5

a copy of the notice submitted pursuant to this section.”

A lessee of the land or premises; or
(b) A professional land surveyor, or assistant under the
direct supervision of the land surveyor, who enters or
remains in or upon the land or premises of another,
after giving notice as required by section 464—
for the purpose of performing land surveying at the request of the landowner of, or person with an
interest in, the real property to be surveyed.”

Page 7: (b) A professional land surveyor, or assistant under the
direct supervision of the land surveyor, who enters or
remains in or upon the land or premises of another,
after giving notice as required by section 464-
for the purpose of performing land surveying at the
request of the landowner of, or person with an
interest in, the real property to be surveyed.”

Note the “Effective 7/1/2050” can be quickly amended to “This Act shall take effect upon its approval.”


Hawaii Legislature: HB 538 dismisses the US Constitution

Did a group of politicians woke up one morning and decided to attack the US Constitution or something?

Read HB 538 in the context that the Honolulu Department of Planning and Permitting (DPP) is struggling. It has been mired with corruption and mismanagement for years.

At Honolulu Mayor Rick’s Blangiardi’s City Address on March 15, 2023, he stated that the average time for a permit approval was 300 days. Three hundred (300) days is actually on the fast track.

HB 538 states ” then the applicable county planning or permitting agency shall commence foreclosure proceedings, judicial or nonjudicial, on the real property without delay.” Guess which type of foreclosure the county is going to choose?

HB 538 first started with wanting entry into homes without consent. (Interestingly, another bill SB 1468 asks for surveyors entry into any property too.)

Page 2 of HB 538 proposes:

46-A Authority to enter private property; zoning
violation. (a) Notwithstanding chapter 322, a county planning
or permitting agency may enter privately owned residential real property, without the consent or cooperation of the owner or
occupant of the real property, for the purpose of investigating
any condition on the premises that the officer reasonably
believes may constitute a violation of any county zoning
ordinance, rule, or regulation that:

On Page 4, it continues:

§46-B Penalties for unaddressed zoning violations. The
penalties for a violation of any county zoning ordinance, rule,
or regulation shall be as follows, regardless of whether a
county planning or permitting agency’s investigation was
conducted without the owner’s or occupant’s consent or
cooperation pursuant to section 46-A(a) or by other means:

(1) An owner of real property who fails to remediate all
conditions that gave rise to issuance of the notice of
violation, to the agency’s satisfaction and within the
agency’s specified time frame, shall be assessed by
the agency a fine of not less than $1,000 for each day
the violation persists;

(2) If fines assessed to the owner of real property exceed
$5,000, then the notice of violation shall constitute
a lien upon the real property within thirty days; and

(3) If within thirty days of receiving notice of the lien,
the owner of real property fails to:
(A) Satisfy the lien specified in paragraph (2); and (B) Commence and diligently conduct remediation of
all conditions that gave rise to issuance of the
notice of violation, to the agency’s
satisfaction, then the applicable county planning or permitting
agency shall commence foreclosure proceedings,
judicial or nonjudicial, on the real property without
delay.”

Hawaii Legislative Bills must uphold the US Constitution

Good public policies are vetted carefully in an over-arching manner. They must be rooted within the parameters of the US Constitution that have served us well for 235 years.

There are some very troublesome bills – SB875, HB15. HB538, HB106, SB216, HB 498 that are introduced this 2023 session.

The language may vary in these Bills but the core violation is the taking of private property based on civil fines, without providing the judicial court process. It’s not about the market value or the balance of the sold property loot.

I get it that certain politicians are hoping for easier and quicker penalties like non-judicial foreclosures. But to think that the counties can seize private property based on civil fines is misguided. We can’t have knee-jerk legislation just because we want to punish some “egregious” private property owners or to create a new source of income revenues.

Counties cannot become the in-house Police, Prosecutor, Jury, Judge, and Executioner.

The late Justice Ruth Bader Ginsburg said it best in one of her last Opinions for the US Supreme Court in Timbs vs Indiana relating to excessive CIVIL fines and Due Process. Below are some of jurist RBG’s excerpts to all of us from the grave:


This Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.”  

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.”

” Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue. The historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is indeed overwhelming.”

“Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,”

” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”       

Hawaii State Legislature: Bills against Private Property Rights are the best-kept secrets.

There were about 3132 Bills this 2023 Session.

There are 6 Power of Sale Bills with the agenda to force the sale of private property. based on civil fines. The County wants to cut off the judicial court process.

These Bills violate basic Constitution civil rights. These Non-Judicial requests turns the counties in Police, Prosecutor, Jury, Judge, and Executioner.

They also assume that the city is always right and the people always wrong.

Below are the 3 active Bills asking for Non-Judicial Foreclosure: To sell private properties without going to court. City wants to levy civil fines and the powers to sell.

SB 875 Introducer(s):
CHANG, MORIWAKI, Dela Cruz

Description:Authorizes counties, after adoption of an ordinance, to sell private property after all notices, orders, and appeal proceedings are exhausted and to use those revenues to pay unpaid civil fines related to that property; provided that the county sells the property at not less than the market value of similarly situated properties and that all revenues received from the sale that exceed the amount of the unpaid civil fines are refunded to the property owner. (SD1)

HB 15 Introducer(s):
TARNAS

Description:Authorizes the State and the counties to place liens on real properties for unpaid civil fines resulting from violations of land use laws. Authorizes the State and counties, subject to adoption of appropriate and particular laws or rules establishing the power of sale, to sell properties after all notices, orders, and appeal proceedings, if any, are exhausted and use those revenues to pay unpaid civil fines related to property. Effective 6/30/3000. (HD2)

HB538 Introducer(s): MATAYOSHI, BELATTI, HASHIMOTO, HOLT, KILA, KITAGAWA, LAMOSAO, MARTEN, NISHIMOTO, TAKENOUCHI, TARNAS, Chun

Description:Establishes penalties for failure to remediate violations, including fines and, under circumstances, foreclosure. Effective 6/30/3000. (HD1)

These bills below did not pass the March 9 Cross-over.

HB106 Package:
City and County of Honolulu

Description:Authorizes a county to proceed with a power of sale on real property subject to a recorded lien.

SB 216 Package:
City and County of Honolulu

Description:Authorizes a county to proceed with a power of sale on real property subject to a recorded lien.

HB 498. Introducer(s):
SAYAMA

Description:Authorizes counties, after adoption of an ordinance, to sell private property after all notices, orders, and appeal proceedings are exhausted and to use those revenues to pay unpaid civil fines related to that property. Effective 6/30/3000. (HD1)

This list is from the Star Advertiser:

Screenshot from Star Advertiser. March 13, 2023

My written testimony to Public Safety & Intergovernment & Military Affairs (CPM)

KILL HB 538 –  ( also HB 15  & SB 875)

You can register testimony to OPPOSE HB538 or SUPPORT HB 538.

The committee(s) on PSM has scheduled a public hearing on 03-17-23 3:02PM; Conference Room 225 & Videoconference

Measure Title:RELATING TO RESIDENTIAL REAL PROPERTY.
Report Title:Residential Real Property; Counties; Zoning Violation; Penalties
Description:Establishes penalties for failure to remediate violations, including  fines and, under circumstances, foreclosure. Effective 6/30/3000. (HD1)

Aloha to all,

I know you have too much to read and digest in such a short time. 3132 bills for this session is insane! Which human can carefully analyze all these bills carefully for decision-making and study its overall impacts, unforeseen or unintended consequences?

Before we go further, I’m sharing a few excerpts from the recent Supreme Court ruling relating to the US Constitution 14th Amendment.  It relates to  HB 538 (and SB 875 & HB 15) about CIVIL fines, Due Process, and so on.  

The late Justice Ruth Bader Ginsburg said it best in one of her last Opinions for the US Supreme Court in Timbs vs Indiana relating to excessive CIVIL fines and Due Process. Below are some of jurist RBG’s messages to all of us from the grave:

“This Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.”  

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.”

” Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue. The historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is indeed overwhelming.”

“Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,”

” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”       

Punishments and Penalties

When you’re in a position of power, it’s even more incumbent on you to be much more circumspect and focused in your decision-making. It might be fun or satisfying to punish the supposed egregious ones. But it doesn’t mean that the US Constitution can become marginalized to punish them. It’s never a good policy to burn down the Cathedral of Civil Rights to fry a few bad eggs.

Civil Rights is Civil Rights. You can’t protect abortion civil rights but destroy private property rights. You must uphold and protect the US Constitution that you swore to do. The Constitution has protected equality, justice, and Due Process for over 200 years!

It appears the HB 538 introducers must not know about the challenges of working with DPP or getting a permit to be approved by DPP.

One has to question how a small lot in Kalihi Heights can be fined for $15.8 million for “overgrown weeds”. This local owner is a 50% Hawaiian man with chronic and severe health problems. There is much more to this situation here.

Where is the Aloha?

Where is the compassion to help our local residents who are already struggling and trying to keep up with the cost of living in Hawaii?

I hope this Star Advertiser report of “uncashed fines” is not giving any counties ideas for a new stream of income and future revenues. 

There are always two sides to a story. The government is here to help, not to steal people’s homes and properties.

Most people work their tails off and sacrificed to own properties in Hawaii. 

Who can trust DPP?

This is nothing personal. But these few clips will provide you a quick overview of what’s happening at the Department of Planning and Permitting.  DPP is struggling. Its workers are overloaded. Through the years, the Mayors and City Councils have also contributed to these modern day problems by their actions.

Through the years, land-use density has been greatly increased. It used to be that an owner could not build on more than 50% of their total land area.

Why blame the Monster Homes when it was DPP who approved the permits in the first place? 

Excessive Fines and Cruel & Unusual Punishments

HB 583 is off-based. It may have some “egregious” owners in mind to punish but there are too much unforeseen consequences.

HB 538 is out of touch with the majority of the private property owners, construction and real estate world.

These timelines are too impractical and oppressive.

HB 538 assumes that DPP is always right and the public is always wrong.

Kill HB 538  AND SB 875 and HB 15.

The Counties have many other options.

Submitted by Choon James

CountryTalkStory.com

ChoonJamesHawaii@gmail.com

Bipolar Legislation: Abortion Rights Protected. Private Property Rights Denied?

Hawaii State Legislature are cherry picking Civil Rights issues. NON-Judicial Foreclosure Bills to seize private property WITHOUT going to court are speeding through.

In 2022, Honolulu Mayor Rick Blangiardi requested the State Legislature for Non-Judicial Foreclosure (Power of Sale), based on civil fines. HB1434 would allow its Department of Planning and Permitting (DPP) to sell private property, WITHOUT going to court.

Counties would become the Police, Prosecutor, Jury, Judge, and Executioner. Property owners would be striped of basic constitutional civil rights and denied judicial due process. Fortunately, HB1434 died.

In 2023, Blangiardi requested the same Power of Sale in HB106 with its companion Bill SB216. This year, there are at least four (4) more clone bills with the same agenda.  

The following bills are sailing through, with little public awareness:

SB 875 Introduced by Senators Stanley Chang, Donovan Dela Cruz, and Sharon Moriwaki

HB 15 Introduced by Representative David Tarnas

HB 538 with similar features is introduced by House Representatives: Scot Z. Matayoshi, Della Au Belatti,  Troy Hashimoto, Daniel Holt,  Daris Kila, Lisa Kitigawa,  Rachelle Lamosao, Lisa Marten,   Scott Y. Nishimoto, Jenna Takenouchi, David Tarnas, Cory M. Chun  

Before we move on, let’s pause to put the US Constitution in this conversation about excessive Civil fines:

The late Justice Ruth Bader Ginsburg said it best in one of her last Opinions for the US Supreme Court in Timbs vs Indiana relating to excessive civil fines:

This Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.”  

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.”

” Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties. They can be used, e.g., to retaliate against or chill the speech of political enemies. They can also be employed, not in service of penal purposes, but as a source of revenue. The historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is indeed overwhelming.”

“Even absent a political motive, fines may be employed “in a measure out of
accord with the penal goals of retribution and deterrence,” for “fines are a
source of revenue,”

” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”

Who is responsible to inform the public about these Bills?

It’s common knowledge that residents cannot actively participate in these fast-paced proceedings held during working hours.

Generally those who bird-dog the sessions are from within the governmental bureaucracy, politicians, non-profit group personnel, trade industry, lobbyists, some independent groups and grassroots community advocates.

Google Searches show no County Mayors, Council members, or State Legislators apprising these monumental and far-reaching Power of Sale Bills in the public square.  

On one hand, recent indictments of two state legislators and county officials have brought increased calls for a more open and transparent and accountable government.

Thanks to Civil Beat and others, there is a concerted media exposure on the so-called “SUNSHINE BILLS” to promote more accountability this legislative session.

On the other hand, these five non-judicial foreclosure bills are the best-kept secrets in town. These bills significantly disenfranchise and undermine the basic civil rights of Hawaii’s private property owners.

Even the few legislators/aides that I talked with were initially unaware of these far-reaching bills.  

Who are shepherding these Power of Sale bills?

There were five (5) Honolulu City Council members and former DPP Director Dean Uchida supporting the two (2) non-judicial foreclosure bills last year. But it’s down to one Honolulu council member this year.

Further tracking of these five (5) Power of Sale bills reveals third-year City Council member Calvin Say and newly-appointed Honolulu DPP Director Dawn Takeuchi Apuna .

There is no participation from other counties although these bills will affect all of Hawaii.

What are the Justifications for these bills?  

The written testimonies from City Councilmember Calvin Say and DPP Director Dawn Takeuchi Apana reflect troublesome “Straw Man Argument” — creating hasty and broad generalizations of a few egregious private owners to justify the request for an over-reaching non-judicial Power of Sale.

City Council man Calvin Say:

Our City Corporation Counsel is currently able to initiate a Judicial Foreclosure process, which has been successful in similar instances, however this is a long process that takes valuable resources away from other pressing legal matters.

SB 875 would allow the City to keep our neighborhoods safe by stopping illegal activities, health hazards, and other public nuisances on properties in a more efficient and expeditious manner. “

Calvin Say submits this written testimony template to all the committees during this fast-paced process. Sometimes he’s the only submission.

Recently-appointed DPP Director DawnTakeuchi Apuna further reinforces the justification that their existing powers that the city has to ” pursue a judicial foreclosure, which is a lengthy and costly process. This measure will provide the counties with a more viable, efficient, and effective method to collect liens on properties for civil fines.

Apuna would later amend her testimony template (below) to assure that the city will not abuse this authority. These non-judicial foreclosures are abusing private property owners. Private property owners will be denied their judicial Due Process. Instead, the City will become the in house Police, Prosecutor, Jury, Judge and Executioner.” The constitutional access to the courts will be cut out.

In a nutshell, the Honolulu county is saying that its existing tools in its toolbox are too slow and too much work.

These county testimonies also do not disclose the city’s other tools to enforce “problem properties” including the police, Department of Health, and a long list of other bureaucratic resources to manage and implement municipal affairs and enforcement.

Is DPP always Right and the Public always wrong?

Could the Honolulu County be hoping for a new windfall and income revenues through fines? Like any issues, there are always two sides to a story no matter how thin the cheese is sliced.

What is behind the story of this 5,000 square feet residential lot in Kalihi Heights? It has accrued $15.8 million in civil fines for “overgrown weeds”.

The written testimonies do not disclose that while they want “more efficient and expeditious manner”, DPP is struggling with permit processing delays, mismanagement, corruption culture and so forth. It would be unjust to expect residents to cure their violations in a more efficient and expeditious manner when their permits to correct violations are cancelled, lost or delayed. It becomes a Catch-22 for the owners.

The Legislature assumes that DPP is always right and the Public is always wrong.

There is also no acknowledgement that the Department of Planning and Permitting (DPP) has systemic mismanagement and corruption challenges. Even its own workers are saying that DPP needs to be overhauled and “fixed”. Many are carrying overload capacity with minimum support. They feel they’re being politically weaponized.

Residents with violations have complained that they were not even aware of the fines that DPP imposed on their property. Some maintain that DPP imposed wrong violations on them. Some say they could never get their calls returned. An ailing owner said he called the city about their fines and the answer given to him was he could “quitclaim their property to the city” to solve his problem. One complained that a kupuna was told to remove their small handicap ramp in front of their small Hicks home but they knew of other big homes who were given a pass. Some complained about lost permits. These are just the small mom-and-pop complaints. Nothing is written about comments from the professional building and construction industry.

There is no compassion or understanding that most Hawaii property owners sacrificed much to acquire their property for themselves and their families.

When a property is seized, where is the owner going to find a replacement property? How is seizing private properties helping local residents?

Shouldn’t the county be helping owners get into compliance rather than seizing properties?

Is this process for these bills adequate for good decision-making?

As I have mentioned, the few legislators/aides I spoke with initially were not aware of these bills.

To be fair, who can blame the State Legislators?  3,132 Bills are introduced within a period of a month or so.

Which legislator can humanly and intelligently deliberate on each bill in such a short time?

With these civil rights bills, should monumental public policies be adopted based on superficial and unvetted written testimonies by one very energetic third-year councilman and a newly-appointed DPP Director?

Should legislators simply defer to the Committee Chairs?  

Should opposing views from the public have any standing in the decision-making?

Should significant bills usurping civil rights deserve at least more disclosure from the legislators and more public dialogue?

Note that City Council member Calvin Say template testimony remains the same at the various committee hearings.

Honolulu DPP Dawn Takeuchi Apuna’s written testimony was edited later to assure there will be no abuse. She misses the point that non-judicial power of sale is already abusing private property rights because the owners is denied Due Process from the judicial branch i.e. the courts. Giving the Counties the in-house role of Police, Prosecutor, Jury, Judge, and Executioner is already abusive.

Cut and Paste Committee Reports

Unfortunately, the various Committee Reports through the process will show great deference to City Council member Say and DPP Director Apuna. No one questioned them. These written testimonies are “cut and paste” onto their official records FOR ADOPTION.

Here is an example:

Here is the Committee Report form the Finance Committee:

The city wants to be the in house Police, Prosecutor, Jury, Judge, and Executioner. There in no “all proceedings are exhausted” when owners are denied judicial Due Process in court.

Here’s another cut and paste Committee Report based the written testimony from Council Say and DPP Director Apuna. Opposing testimonies are summarily dismissed.

This lawmaker is even more zealous against private property rights. Not only does he wants to cut off the judicial Due Process, he states that ” this measure would enable the property to be put to productive use “.

 

The Grassroot Institute of Hawaii’s written testimony plays right into the hand of the Senate Judicial Committee:

To add to the confusion, Grassroot Institute of Hawaii submitted concerns about possible abuse of power,  recent corruption scandals, bribery, favoritism and corruption are commonplace, equity of resources, especially amongst older individuals, the most vulnerable would be most affected, and so on.

Unfortunately, Grassroots Institute of Hawaii offered a pending case Tyler vs Hennepin County, Minnesota that relates to property tax debts. However, these Power of Sale bills are about seized property based on county civil fines. Property Tax is not a civil fine .

Furthermore, the Grassroot Institute of Hawaii further committed harakiri on its own when it contradicted its own opposition to non-judicial seizure of private property: 

” ; provided that the county sell the property at no less than the market value of similarly situated properties and that all revenues received from the sale that exceed the amount of the unpaid civil fines be refunded to the property owner.

With supposed “freedom” fighters for liberty like this group, who needs enemies?

At issue is the non-constitutional of a private taking of a private property WITHOUT due process. The city becomes the Police, Prosecutor, Jury, Judge, and Executioner.

It’s not about the price or the balance of the forced power-of-sale.

Unfortunately, the State Senate Judiciary Committee Chair quickly adopted this language from the Grassroots Institute of Hawaii’s written testimony. Again, other opposing written testimonies were summarily dismissed. The language is highlighted in green for quick reading.

Unfortunately, Grassroots Institute of Hawaii provided a wrong pending case. Tyler vs Hennepin County, Minnesota that relates to property tax debts. These bills are about seizing property based on county civil fines through non-judicial Due Process.

Here is another Cut and Paste Committee Report.

Below is language from the Grassroots Institute of Hawaii’s written testimony that was quickly adopted by the Senate Judicial Committee. The language is highlighted in green for quick reading. Again, other Opposition testimonies that did not fit the Legislators agenda were summarily dismissed.

Thanks in part to the illogical rationale of the Grassroots Institute of Hawaii, SB 875, S.D.1 seems good to go!

What’s next?

Kill Bill 875, HB 15, HB 538.

A relatively few property owners can be loathsome and egregious. But there is never a good reason to burn down the Cathedral of Civil Rights to fry a few bad eggs.

—Pau

 

Who’s behind these non-judicial Power of Sale bills?

UPDATE: SB 875 & HB 15 are speeding on. ( HB 538 is quite similar.)

Keep in mind the counties already have “Judicial Foreclosure” and “Eminent Domain” powers in place. But the justification is that these processes take too long.

In other words, these bills will allow the counties to be the Police, Prosecutor, Jury, Judge, and Executioner. The Judicial Due Process will be cut off.

We’re asked who started these non-judicial foreclosure bills to forced sale of a private property, based on the Honolulu Department of Planning and Permitting (DPP) fines, without going to court.

Here are some quick answers:

It originated in 2022 as HB 1434 with Honolulu Mayor Rick Blangiardi. Keep it mind that this Power of Sale requests applied to ALL Counties in Hawaii. Based on my observations of him, it’s unlikely that this non-judicial Power of Sale idea originated from Blangiardi unless he’s hoping for a new stream of revenues from fines and sale of properties.

If I have to take a guess, it would be his Managing Director Mike Formby, formerly with the Pacific Resource Partnership (PRP) or former Department of Planning and Permitting (DPP) Director Dean Uchida.

Five (5) City Council members, known as the Gang of 5, also submitted testimony – Chair Tommy Waters, Esther Kia’iana, Brandon Elefante, Calvin Say, and Radiant Cordera.

What were the underlying motives?

Fortunately, Bill 1434 failed to pass last year.

I was in the same Mayoral campaign with Rick Blangiardi in 2020. Based on my observations and
his words, he had very shallow understanding about Honolulu City Hall workings.

This year 2023, Mayor Blangiardi is back with HB 106 and SB 216 by request to Senate President Ron Kouchi and House Speaker Scott Saiki.

However, presto! The tactics have changed a bit this year. There are five (5) clone bills with the same agenda speeding through.

Google Searches show no county mayors, state legislators or city council members appear to have warned Hawaii about this draconian assault on private properties.

Here are the rest of the three (3) bills.

SB875 is introduced by Senators Stanley Chang, Donovan Dela Cruz and Sharon Moriwaki. This bill is alive and has crossed over on March 7, 2023.

This time around, written testimonies come from only Honolulu City Council former Budget Chair Calvin Say and DPP Director Dawn Takeuchi Apuna.

Companion Bill HB498 is introduced by Representative Jackson Sayama.

HB 15 is introduced by Representative David Tarnas (D) It has no senate companion bill but it has crossed over on March 7, 2023.

HB538 is another similar one that includes judicial or non-judicial foreclosure. It is introduced by MATAYOSHI, BELATTI, HASHIMOTO, HOLT, KILA, KITAGAWA, LAMOSAO, MARTEN, NISHIMOTO, TAKENOUCHI, TARNAS, Chun.

The time line provided in this bill is too unrealistic. It assumes that DPP is 100% efficient. In actual fact, it takes a very long time to get a permit. Some permits take a much longer time because it may need a shoreline certified shoreline. This could easily take six months to complete.

Hawaii State Legislature quietly overturning basic civil rights

UPDATE: SB875 & HB15 are speeding through at the State Capitol. Caveat: There may be more clone bills of this same agenda. I can’t keep up.

It’s a zoo at the State Capitol. Bills are flying off the tables. I don’t see how these 3,123 bills can be carefully vetted and thoroughly deliberated in such a short time.

There are at least five (5) clone bills allowing Hawaii counties to have non-judicial Power of Sale of private properties, based on county civil fines, WITHOUT going to court. This means no checks and balances in our Democracy.

These proposed actions violate many constitutional liberties. Due Process, that includes having your day in court, is fundamental to basic Civil Rights. Even prisoners on death-row have more judicial Due Process than these bills.

Even if we emotionally hate some egregious property owners, we cannot tear down the Cathedral of civil rights to fry a few bad eggs. There are other enforcement options for the counties already in place.

None of the legislators I’ve talked with knew about these far-reaching proposed Power of Sale bills.

Below are the CLONE BILLS that give all Hawaii counties non-judicial power of sale. Honolulu County reiterates that it already has “Judicial Foreclosure” and “Eminent Domain” powers but these processes take too long:

SB875 Introduced by Senators Stanley Chang, Donovan Dela Cruz & Sharon Moriwaki.

HB15 Introduced by Representative David Tarnas

HB106 Introduced by HOUSE SPEAKER SCOTT SAIKI (Introduced by request of another party – Honolulu Mayor Rick Blangiardi.)

SB216 SENATE PRESIDENT RONALD KOUCHI (Introduced by request of another party – Honolulu Mayor Rick Blangiardi.)

HB498 Introduced by Representative Jackson Sayama.

Give Voice Now!

Email: sens@capitol.hawaii.gov, reps@capitol.hawaii.gov,

OPPOSE SB875, HB15, HB106, SB216, HB498. Don’t overturn our basic civil rights. Allowing Hawaii counties to have non-judicial Power of Sale, based on county civil fines, WITHOUT going to court violates Due Process, There will be no checks and balances in our Democracy.

Call them now:

Senate: https://www.capitol.hawaii.gov/legislature/legislators.aspx?chamber=S

House: https://www.capitol.hawaii.gov/legislature/legislators.aspx?chamber=H