As part of the 2022 county package to state legislators, Honolulu Mayor Rick Blangiardi requested “nonjudicial foreclosure” powers, i.e., the power to seize private property without going to court. Fortunately, House Bill 1434 did not pass last year.
This year’s package includes another request for “nonjudicial foreclosure,” aka “power of sale.” 2023HB 106 BELOW represents an alarming threat to property owners and is prevalent in totalitarian regimes.
This year’s HB 106 offers weak assurance that “a county may, after all notices, orders, and appeal proceedings are exhausted, satisfy all unpaid civil fines through the power of sale on the real property subject to a recorded lien.”
Unfortunately, our years of civic participation at Honolulu Hale show that due process has not always been fair and equitable to ordinary residents.
Furthermore, recent federal indictments and guilty pleas continue to show the troubledHonolulu Department of Planning and Permitting (DPP) has no consistent record of fair play or efficient management. Written testimonies reveal alarming threats toward private property rights.
Dawn Takeuchi Apana, DPP director designate, stated: “Specifically, this bill would authorize the city to bring closure to pending civil fines imposed on landowners who are in violation of the city’s land use ordinances and building codes, through a nonjudicial or administrative process.”
Honolulu City Councilman Calvin Sayalso submitted testimony for a quicker seizure: “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.”
In other words, give us the authorization to hurry it up by bypassing the regular court method of foreclosure.
The House Committee on Judiciary & Hawaiian Affairs, whose members include Chairman David Tarnas and Vice Chair Gregg Takayama, approved HB 106 on Jan. 31. Its report states in part:
“Your committee finds that authorizing the counties to collect on liens filed on properties through a nonjudicial foreclosure process provides some leverage over property owners to comply or lose their property. If a property owner fails to comply and the property is foreclosed upon, this measure would enable the property to be put to productive use, allow liens attached to the property to be satisfied, and stop the accrual of additional debt or taxes on the property.”
Hawaii’s state legislators should recognize that most ordinary residents sacrifice and work their tails off to achieve real property ownership. Each county’s goal should be to help property owners comply with the law and correct their violations, not summarily seize their properties.
HB 106 invites corruption and exposes residents, especially those who have fewer financial resources available to them, as easy casualties of this potential power of sale. All Hawaii counties would be affected.
It should be noted the U.S. Supreme Court ruled unanimously on Feb. 20, 2019 (Timbs vs Indiana), that the Constitution’s ban on excessive fines — civil asset forfeitures are a type of fine — applies to state and local governments, thus limiting their ability to use fines to raise revenue.
The late Justice Ruth Bader Ginsburg also astutely argued fines could be used to retaliate against political enemies and had been used as a source to raise revenue.
Hawaii has a few egregious property owners, but this tyrannical bill is not the solution. We urge our legislators to vote “no” on HB 106.
AUTHORS:Natalie Iwasa is a CPA and certified fraud examiner; Choon James is a residential Realtor and farmer.They have spent combined decades of civic participation at Honolulu Hale as community advocates for good governance.
There is no question that the subject property owner Taufa needs to correct his violations. But these violations take time to cure.
A city council member should especially make the efforts to reach out to those in trouble and try to help them. Immigrant families especially need more education and understanding in addressing Hawaii’s land use issues.
I’ve known many immigrants here for over forty years. Some may be here for a while but still need understanding due to inherent cultural perceptions or lack of knowledge or carelessness. For example: I continue to help educate our Southeast Asian farmers that “Round-Up” must be used very carefully, if at all. Many think that “Round-up” and other chemical fertilizers are simply “Good medicine”.
Even some from the Continental Mainland have misunderstandings of Oahu’s land-use ordinances. In places like Idaho, Tennessee, or Upstate New York, there are still counties with no land-use designations. A property can do as they wish. They can drill a well, build an air-strip, do a quarry business or build a residential home side by side of each other. Hawaii fortunately has a wonderful land-use designations on paper.
It’s a known fact that many contractors store their equipments and do their businesses out of their ag-zoned parcels whether it be roofing, trucking, and so on. I’m not saying that these owners are correct. But parts of the islands do not have “industrial” zone area for such business activities. But I’m saying that it is a very common occurrence in Oahu to mix ag-land with construction businesses.
Thus, if such a quick severe punishment is imposed on one particular owner and not the others, there should be at least a fair and objective outreach by the city council member first.
A few neighbors near this property have complained about this property. They have the right to do so. The Hau’ula Community Association President has weighed in although many in Hau’ula does not feel she represents the community at large. This activism began to snow-ball to include a few north shore environmentalists, who in turn has solicited for testimonies from around the island for DPP to “do its job” in enforcement.
I understand the frustrations with DPP. But we cannot allow this anger against DPP’s chronic lack of enforcement by turning this small property owner into a whipping boy. This is grossly unfair. There is no question that the property owner has violations to cure. Enforcement by DPP is important. But social justice is important too, especially when dealing with minorities and immigrant families.
Unfortunately, instead of granting some outreach to the property owner, City Council Member Tsuneyoshi initiated her first step with this Resolution 22-006.
Measure Title: STRONGLY URGING THE DEPARTMENT OF PLANNING AND PERMITTING TO IMMEDIATELY ADDRESS OUTSTANDING VIOLATIONS RELATED TO THE PROPERTY AT 54-406 KAMEHAMEHA HIGHWAY IN HAU’ULA (TAX MAP KEY 5-4-004:021).
Date Introduced: Jan 7, 2022 Introduced By:HEIDI TSUNEYOSHI
Committee: ZONING AND PLANNING (ZP)
Voting Legend: * = Aye w/Reservations
Reported out for adoption.CR-007 (22)4 AYES: CORDERO, ELEFANTE, KIAʻĀINA, SAY
Committee report and Resolution were adopted.9 AYES: CORDERO, ELEFANTE, FUKUNAGA, KIAʻĀINA, SAY, TSUNEYOSHI, TULBA, TUPOLA, WATERS
After persuading the entire City Council to adopt her Resolution 22-06 on January 26, 2022, despite flawed information, City Council Member Heidi Tsuneyoshi quickly introduced another Resolution 22-11 to use eminent domain on the Taufa’s property at the Executive Matters and Legal Affairs Committee on February 8, 2022.
Measure Title: URGING THE CITY ADMINISTRATION TO ACQUIRE THE PROPERTY AT 54-406 KAMEHAMEHA HIGHWAY IN HAUULA (TAX MAP KEY 5-4-004:021) IN ORDER TO PROTECT THE PUBLIC HEALTH AND SAFETY FROM ENVIRONMENTAL DEGREDATION, INCLUDING, IF NECESSARY, TAKING STEPS TO ACQUIRE THE PROPERTY BY EMINENT DOMAIN.
Date Introduced:Jan 20, 2022 Introduced By:HEIDI TSUNEYOSHI
Committee: EXECUTIVE MATTERS AND LEGAL AFFAIRS (EMLA)
Voting Legend: * = Aye w/Reservations
Reported out for adoption as amended in CD1 form.CR-168 AYES: CORDERO, ELEFANTE, FUKUNAGA, SAY, TSUNEYOSHI, TULBA, TUPOLA, WATERS1 EXCUSED: KIAʻĀINA
The Star Advertiser prepared and published an article on the proposed takings in the morning of February 8, 2022 EMLA ( Executive Matters Legal Affairs) Committee.
District 2 Council member Tsuneyoshi as quoted to Star Advertiser’s Ashley Mizuo:
“Hopefully, it isn’t seen as coming after a property owner. … It was hopeful that we could have come to a resolution where he would have complied with all that’s been told to him to do, but unfortunately, after five years that wasn’t the case.” ( Note that the owners acquired the property in November 2019 which is about two years ago.)
TSUNEYOSHI’S WORDS TO THE STAR ADVERTISER CONTRADICT HER ACTIONS
A close look at the timeline shows that Tsuneyoshi was already lining all the ducks in a row despite her words to the Star Advertiser that it ” shouldn’t be seen as after a property owner “.
February 26, 2020. Note Resolution 22-006 was adopted by the Honolulu City Council.
January 20, 2022. However, note that her new eminent domain Resolution 22-011 was prepared and introduced six days BEFORE Reso 22-006 was adopted.
It’s hard to buy her public statements that “Hopefully, it isn’t seen as coming after a property owner …”.
MORE TARGETING BY TSUNEYOSHI
The discrimination and targeting mounted when Tsuneyoshi persuaded the EMLA Committee to amend her Eminent Domain to Judicial Foreclosure. This action was completed in about an half hour period.
There were other little changes like a spelling error in her Resolution 22-11 with the word correcting “degredation” to “degradation” in the title of her resolution and miscellaneous technical and non substantive amendments.
But other far more substantial errors in the Resolution’s contents were untouched. Contrary Information and concerns submitted by the public did not appear to be considered by her.
EVENMORE TARGETING of PROPERTY OWNER THROUGH INCONSISTENT TREATMENTS
There were three (3) Resolutions relating to Eminent Domain takings. It’s important to note that the 1.Taufa Resolution 22-11 is the only hostile taking of property. Tsuneyoshi stated his compounded DPP fines was about $400,000.00 (However, statement to the news media on February 21, she changed the news media that his fines were about $300,000.00 ). During the EMLA meeting, the Taufa’s eminent domain action was the only Resolution that was changed to Judicial Foreclosure in a very short period.
2. Resolution 21- 280 for eminent domain relates to an abandoned property in Pensacola with Fines of about $900,000.00
3. Resolution 22-22involves a property owners in Waianae who told the City Council members that she would be so happy if the city would acquire her property.
These actions should be alarming to any private property owner. There is no consistency in the application of Due Process. There appeared to be no clear understanding of the differences of Eminent Domain versus Judicial Foreclosure but it was quickly decided upon anyways.
So, what is the threshold to take someone’s property by Eminent Domain or Judicial Foreclosure?
Is it $900K as in the the Pensacola Street property?
Or is it $300K or $400k as in the subject Hau’ula Property?
Since the Hau’ula property is now solely targeted for Judicial Foreclosure takings, how is this process going to play out?
Judicial Foreclosures is generally a mortgage delinquency issue. We know that the county has powers to auction off a private property owner who has trouble paying their real property taxes. We also know that the City County of Honolulu has practiced forbearance in helping private properties solve their financial problems by allowing them TIME.
In this case here, we’re talking about county land-use violation fines. Some of violations were incorrect but the owners were fined.
There are still many OTHER unanswered questions relating to this issue.
Why is City Council member Heidi Tsuneyoshi rushing this hostile taking of this property?