Bill 21, authored by City Councilman Tyler Dos Santos-Tam, asks for changes to the City County Housing Code to be consistent with the International Building Code (IBC) that allows windowless (no natural light and ventilation) housing units.
Santos-Tam, a construction industry lobbyist, said that the county needs to build 25,000 housing units and thus “optionality” is necessary in housing development. The statement begs many questions as to who these units are for and do we want Oahu to follow other countries’ values and standards. Is this about helping developers or is this about meeting the needs of our local residents?
Below is an excellent example of a local government worker with lots of expertise and experience standing up for the public good, rather than developers. Michael O Silva, speaking as a private citizen, should be commended for speaking up. His testimony is free from self-interests but filled with common sense and aloha for the ordinary local residents. Read the testimonies here.
Listen to Bill 21 here. It starts around the 1:46 mark.
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.
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.
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.
The City and County of Honolulu is asking to have POWER of SALE on Oahu’s property owners based on DPP liens. Bill 106 will affect ALL Counties.
JHA 1/31/23 2:00 PM Tuesday 325 VIA VIDEOCONFERENCE
BILL 106 and companion SB 216 may sound harmless in an ideal world with perfect fairness and equity and justice for all.
But in real life, these bills are too over-reaching and will further marginalize Private Property Rights.
Bill 106 slams Due Process for ordinary citizens. There are systemic failures of discrimination, inequity, and entrenched bureaucracy at Honolulu Hale. This Power of Sale will expose every property owner to the possible whim of politicians, government officials and its powerful political machine.
Although there is supposedly a fair “process” in place, our decades of participating at Honolulu Hale and the records have shown otherwise. Repeatedly we have witnessed that this same “process” has been unfair and inequitable to ordinary citizens. No matter how thin the cheese is sliced, there are always two sides to it. But the government almost always wins because it has the upper-hand, resources and a legal corporate team to ignore or fight ordinary citizens.
Most ordinary citizens are not born with a silver spoon in their mouth. They work their tails off to achieve real property ownership. The County’s role ought to be helping property owners correct their violations and be in compliance; not be too eager to seize private properties through fines.
This POWER of SALE is NOT about a mortgage company foreclosing based on non-payments of a borrower. This is about the government seizing properties, based on DPP fines.
There is an alleged reason or justification that this Power of Sale is needed to enforce “monster homes” or “illegal vacation rentals”.
The isolated problems with monster homes and illegal vacation rentals are not compelling enough to provide counties with this unfettered powers. DPP needs to examine why monster homes are approved for permits in the first place. There was a time when a property owner could only build up to 50% of its land area. Incrementally, the city has approved regulations and ordinances that allow increased density in its land-use legislation.
As a matter of public policy making and with a bigger picture, providing all counties with this Power of Sale for the above alleged reason is akin to tearing down a Cathedral to fry an egg.
Ordinary citizens cannot afford expensive legal representation to make sure their side of the story is heard and fairly considered in the legislative decision-making.
Affluent and well-connected citizens have the means to circumvent DPP. Ordinary citizens will become the casualties of this powerful and overreaching legislation.
This Power of Sale (aka Non-judicial Foreclosure) is overreaching and tyrannical. This Power of Sale authority makes every property owner a sitting duck at the whim of the city.
Basing a POWER of SALE ( aka NON-Judicial Foreclosure) through DPP fines and recorded liens is the worst possible exposure for more corruption and possible political retaliation.
The City and County of Honolulu requested this same power aka “non-judicial foreclosure” in 2022.
Please read the 2022 written testimonies that provide a very brief summary of this issue. This far-reaching governmental power will affect all Counties but it was one of the best-kept secrets in 2022. It is the same in 2023.
Please protect Due Process and protect private property rights. As if Eminent Domain is insufficient for the government, the Honolulu County is again asking for a quick Power of Sale aka non-judicial foreclosure.
This governmental power is too much to bear in a democratic society. Private Property Rights must be revered as one of Democracy’s foundational pillars. The counties have other options.
Relating to ” Request for Amendments to Chapter 21, Revised Ordinances of Honolulu (ROH), 1990 Land Use Ordinance (LUO), Relating to Use Regulations”
This Monster Bill 10 at 239 pages has been been in the working since the days of Mayor Kirk Caldwell. DPP Katia.Balassianosaid that she also responded to questions at the Honolulu City Council Hearing on September 7, 2022.
But it hasn’t been our case.
We heard about the proposed changes to the City’s LUO being alluded to at the March 17, 2021 Planning Commission Hearing, I personally emailed DPP Katia.Balassiano on March 18, 2021 and did not received any response.
March 18, 2021
Choon James <firstname.lastname@example.org>
Mar 18, 2021, 3:11 PM
Aloha Katia, I was at the Planning Commission Hearing yesterday. I heard your presentation premises about the industrial turbines distance setbacks, of which many of us don’t agree with. On a side note, you also mentioned that you were currently reviewing Oahu’s zoning designations as requested by the City Council. Could you kindly share with us that Resolution or Bill or communications to point us to the primary source. It would be very helpful to us as we’re just unpaid concerned citizens of Oahu. Mahalo! Choon James
April 22, 2021 – I emailed again but no response from Katia.Balassiano again.
Choon James <email@example.com>
Apr 22, 2021, 2:12 PM
Aloha Katia, I’m trying to trace your presentation dialogue.Did you recall saying this? Any more info will behelpful. “On a side note, you also mentioned that you were currently reviewing Oahu’s zoning designationsas requested by the City Council. Could you kindly share with us that Resolution or Bill or communications to point us to the primary source.” Mahalo, Choon James
January 21, 2022
Two concurrent DEPT. COM 74 about Request for Amendments to Chapter 21 was sent to Tommy Waters, Honolulu City Council Chair. from the Blangiardi Administration and the Planning Commission.
It stated that the Planning Commission had their public hearings on November 24, 2021 and January 18, 2022 on the subject matter. It also stated that the public hearing hearing was closed on January 18, 2022.
Our bad. The first meeting was so close to Thanksgiving. And the second meeting was right after Christmas and New Year’s Day. I don’t usually keep track of the Planning Commission Hearings. I wonder who does.
One may wonder why this Monster Bill 10 did not begin at the Honolulu City Council first where there would be more public notice.
If the Mayor’s Request starts at the Planning Commission, the approval vote from the Honolulu City Council is 5 majority votes. However, if the request begins at the Honolulu City Council, the approval majority is 6 votes.
Mayor Kirk Caldwell use this same procedure for the Vacation Rental Bills.
Further reading into the beginnings of this Monster Bill 10 shows the intent and its organized procedure inside Honolulu Hale and at DPP.
I can’t see concerned citizens being easily able to track this Omnibus Monster Bill on their own outside of Honolulu Hale and the Planning Commission without some friendly assistance. Every City Council Hearing is also usually packed with many items.
Is there a way to be more public friendly and more helpful in informing the public?
The Honolulu City Council voted today at its monthly Hearing with 8 “YES” and 1 “NO” vote to adopt Bill 41. This April 13, 2022 action presented a much stricter approach to this decades-old controversy for the island of Oahu, Hawaii.
Predictably, the Opposition against Bill 41 came from the Board of Realtors and short-term vacation rentals operators. Support came from die-hard community activists and community groups who had been protesting for decades. Labor Union Unite Local 5 and housing advocate groups also supported Bill 41 on the argument that affordable housing is being usurped by the more affluent.
However, there were accusations of corruption, conflict of interest, and it being a “rush job”. There were questions as to who made the decision to draw the boundaries or decide which building was included and which building was out. There were also accusations of “insider trading”; did people in the know invest in these properties before hand?
The Director of Planning and Permitting Dean Uchida chose to recuse himself and was not seen today at the Council Hearing. However, several testifiers mentioned that the DPP Director should have recused himself at the onset. His wife is an Executive Officer with the Aqua-Ashton Hospitality which has interests include short term condo-tel in Waikiki.
I hope the Department of Planning and Permitting comes out with a Q & A information so it it will be easier to understand.
For now, those who have their Non-Conforming Units Certificates ( (NUC) will be grandfathered in. They will have to pay yearly registration fees and probably higher property taxes. This list here shows the exceptions that were provided by DPP in 1987. Other than this list, operators in residential areas are ruled out as illegal.
Notably, the 30-day contract (instead of the 29-days short term rental category) that many vacation rental operators use will no longer be allowed. It’s now changed to 90 days.
Operators can be fined up to an initial fine not to exceed $5,000 and a fine not to exceed $10,000 for each day thereafter that the advertisement is on public display. (This raises questions here too. Not every operator needs to use the standard platforms. What about private alumni or business groups?)
Here are the areas that will be permitted to have new operations:
In the North Shore of Oahu, both the Kuilima West and Kulima East Estates are allowed. Note that this area is zoned “Apartment “, not “Resort” :
Below is the west side of Oahu in Ko’olina. However, certain Makaha areas do not appear permitted even though it was designated as “resort” in the recent Oahu General Plan. However, note the Apartment-zoned areas are now allowed in Bill 41.
Below is the Waikiki area. Note again that these are Apartment-zoned, not “Resort”.
If you wish to read the fine print, here is the council approved Bill 41 document. Note the underlined language.
“Enforcement“ is the buzzword for both sides of this issue.
At the Hearing, City Councilwoman Andria Tupola who casted the lone “NO” vote and expressed her frustrations about getting correct data and clarifications. She noted that the Deputy Director was new and trying to educate herself on this issue. This was a valid point. With our years of observing and participating at Honolulu Hale, one can see the uncertainty, lack of experience, and institutional knowledge. The former Acting DPP Director Kathy Sokogawa knew the DPP workings inside and out through her decades of employment.
The DPP Deputy Director told the City Council that they would be hiring seven new inspectors. The big question is how DPP is going enforce its long list of requisites, besides registrations and so forth. And how DPP is going to handle the thousands of illegal vacation operators?
I believe that the city can expect challenges because there appears to be irregularities, inconsistencies, and discrepancies. But as the City Council likes to say of any bill, ” This is not a perfect bill, we can improve in the future.” Any lawsuit expenses against the city will be paid for by the taxpayers of Honolulu.
Prior to Bill 41, there was Bill 89 that adopted and signed by Mayor Kirk Caldwell on June 25, 2019. Bill 89 would have allowed an approximate 1,700 new vacation rentals through lottery. However, there was no traction from the Caldwell Administration despite holding rule-making discussions.
Upon being elected, Mayor Rick Blangiardi nominated Dean Uchida as the Director of Planning and Permitting. Former Acting DPP Director Kathy Sokogawa resigned and a lot of institution knowledge left with her. Bill 41 was then proposed with this first version that included the Gold Coast. It has since been taken out from the final version. There had been amendments along the process.
What is my take on this?
Before Bill 89 was finally approved and adopted, I initially testified that DPP should start by addressing the most egregious cases first. DPP did not appear to have the organization to enforce so much so quickly. It should take the bite of the elephant incrementally.
Also, I objected to making mom-and-pop bed and breakfast rentals pay more fees and taxes. How would it help our local residents if they had to keep paying more?
Will Bill 41 work? Again, the devil is in the enforcement. How is DPP going to clam down? Through the use of fines and then non-judicial foreclosures? We’ll have to wait and see how this is rolled out.
On the other side of the coin, real estate agents are already farming neighborhoods to list properties to sell. It’s a fact that luxury homes are not going to be affordable even if it’s a long-term rental. There are quite a bit of those in Oahu where properties are owned by LLCs and out-of-state investors.
Will vacation rental owners sell or will they hold? Chances are high that many will hang on because Hawaii is still a politically stable place to invest in. We should see more rentals open up to create a little more rental inventory. Even then, the value of real estate does not need to come down.
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?