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.
UPDATE: SB875 & HB15are 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:
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.
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.
Board and Commissions are meant to provide another level of independent grassroots experiences and understanding to the political decision-makers. However, many of these major Boards have become an extension of the politicians and made up of the lobbyists, political donors, trade industries and legal Oligarchy.
We’re not placing a judgment on the nominated members. They are not elected to represent the people although there are basic requisites and Standards of Conduct expected. But we’re placing the judgment on the Mayors and the City Council members who are the elected decision-makers expected to watch out for the overall public good and public interest.
Is there fairness or a diversified representation of Oahu’s population in these nomination and appointment process? The City Council should not be simply a rubber-stamp of the Office of the Mayor.
This is the Planning Commission that recently reviewed Bill 10 to significantly amend Oahu’s Land Use Ordinances. Bill 10 became controversial because many residents are expressing grave concerns about the lack of grassroots participation.
Here are the members as of this writing:
Brian Lee was appointed by Mayor Kirk Caldwell. Affiliations: Hawaii Laborers & Employers Cooperation and Education Trust Fund. Hawaii LECET -Executive Director Intnl. Brotherhood of Electrical Workers -Director of Research & Communications Hawaii Construction Industry Association -Executive Director
Ryan Kamo was appointed by Mayor Kirk Caldwell. Affiliations: Design Partners Incorporated.
Hilarie Alomar was appointed by Mayor Rick Blangiardi. Affiliations: Kamehameha Schools – Commercial Real Estate Division, TOWNSCAPE INC.
Melissa May was appointed by Mayor Rick Blangiardi. Affiliations: SSFM International, SSFM International (2013-present) – Senior Planner, Associate Hawaii Fashion Incubator (2006-2017) – Co-founder Group 70 International (2012-2013) – Planner Lumen Solar LLC (2010-2013)
Nathaniel Kinney was appointed by Mayor Rick Blangiardi. Affiliations: Executive Director, Hawaii Construction Alliance. Served on the Honolulu Fire Commission.
Pane Meatoga III was appointed by Mayor Rick Blangiardi. Affiliations: Hawaii Operating Engineers Industry Stabilization Fund, Community Liaison. Polynesian Cultural Center Marketing Manager. He’s in the process of being re-appointed in 2022 as of this writing.
Kai Nani Kraut was appointed by Mayor Rick Blangiardi. Afiliations: QRSE, LLC -Environmental consulting with DTS. Design of projects that require permitting through DPP. HDR, Inc, Honolulu Authority for Rapid Transit Project (HRTP), Sun Edison WindFarm, Honolulu County Deputy Director of Transportation,
Advises the Mayor, County Council, and Planning Director in matters concerning planning programs.
Reviews amendments to the General Plan, Development Plans, Zoning Ordinances, and State Land Use district boundaries of 15 acres or less, and after public hearings, transmits findings and recommendations to the County Council for consideration and action.
Acts as the authority for the City on State Special Use Permits.
Section 6-1506. Powers, Duties and Functions — The planning commission shall: (a) Advise the mayor, council and the director of planning and permitting on matters concerning the planning programs. (b) Hold public hearings and make recommendations on all proposals to adopt or amend the general plan, development plans, and zoning ordinances. The commission shall complete its review and transmit its recommendations through the mayor to the council for consideration and action in a timely manner. (c) Perform such other related duties as may be necessary to fulfill its responsibilities under this charter or as may be assigned by the mayor or the council. (1998 General Election Charter Amendment Question No. 1(III))
References: Are the appointments contributing to these expectations and ideals for Honolulu’s Boards and Commissions? Is there diversification and a fair representation across Oahu’s population?
ARTICLE XI – STANDARDS OF CONDUCT. Section 11-101. Declaration of Policy — ( Page 101) Elected and appointed officers and employees shall demonstrate by their example the highest standards of ethical conduct, to the end that the public may justifiably have trust and confidence in the integrity of government. They, as agents of public purpose, shall hold their offices or positions for the benefit of the public, shall recognize that the public interest is their primary concern, and shall faithfully discharge the duties of their offices regardless of personal considerations.
Section 11-104. Fair and Equal Treatment — (page 103) Elected or appointed officers or employees shall not use their official positions to secure or grant special consideration, treatment, advantage, privilege or exemption to themselves or any person beyond that which is available to every other person. (Reso. 83-357)
Bill 10 was introduced for First Reading on February 23, 2022 Agenda on page 15. Relating to use regulations. (Addressing the regulation of uses throughout Chapter 21, Revised Ordinances of Honolulu 1990 (“Land Use Ordinance”).
The proposed amendments are far-reaching. But it’s a very technical piece of document that covers 239 pages. Bill 10 (22) includes the following:
BILL 10 (2022) RELATING TO USE REGULATIONS. PART I. BRIEF SUMMARY BY SUBJECT MATTER
Transfer of development. The agreement running with the land for all donor and receiving zoning lots must remain in effect for a minimum of 60 years (instead of 30 years). Clarifies that for the transfer of development (floor area only) from a donor zoning lot with a historic site to a receiving zoning lot, or for the transfer of development (floor area or number of dwelling units only) from a donor zoning lot within the special management area to a receiving zoning lot, all other requirements and standards applicable to the receiving zoning lot and its underlying zoning district remain in effect.
What is the above proposed LUO amendment about?
Is the longer version below of “Transfer of development” easier to understand for the public?