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)
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)
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)
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.
Controversial DPP Director submitted his resignation from the position as of September 6, 2022.
When Rick Blangiardi became the Mayor of Honolulu, it was no surprise to the public that many of established interest organizations in town continue to have a big presence at City Hall.
Dean Uchida was appointed his Director of Planning and Permitting. Support came from Oahu’s building, construction and development groups.
Several controversies stood out that raised significant public mistrust towards the Blangiardi Administration, Director Uchida, and DPP itself.
1.The Department of Planning and Permitting’s chronic history of corruption
DPP has elicited many names from the general public – The Department of Permitting and Permitting Department, The Department of Pay to Play, The Department of Pilau Permitting and so on.
Recently, several DPP employees were indicted for bribery. Six individuals were charged with Bribery Schemes for Official Acts at the Department of Planning and Permitting of the City and County of Honolulu:
2.HB 1434 Relating Seeking Non-Judicial Foreclosure based on DPP Fines
The Mayor’s 2022 Legislative Package of asking the State Legislature for NON-JUDICIAL FORECLOSURE based on DPP’s fines raised alarm.
This agenda to ask for “Non-Judicial Foreclosure” powers based on DPP Fines was one of the most aggressive attacks on private property rights in Hawaii. The goal ought to be helping owners correct violations, not seize private properties without Due Process.
Fortunately, the Hawaii State Legislature deferred the measure. This “Non-Judicial Foreclosure” agenda should not see the light of day again. It’s over-reaching. It opens up to too much subjectivity and corruption as well as possibilities of abuse of powers. This attempt would turn the Aloha State into a Police State. Instead of helping property owners to address violations, the county wants to use the big stick of government to suppress private property rights without Due Process.
Every Property Owner automatically becomes a sitting duck. Based on DPP’s record and history, it opens up more room for mischief or even political retaliation. DPP had been known for such.
3.City Council Bill 41to address illegal vacation rentals
Illegal Short-term rentals have been a controversy for decades. The number has accelerated from about 800 legal properties with non-conforming use certificates to about 10,000.00 and more operations throughout Oahu.
In the process of this legislative process, DPP Director Uchida had been accused of having conflict of interests:
“Uchida’s wife, Joy Uchida, is an executive with Aqua-Aston Hospitality, which owns over a dozen condo-hotel properties in Waikiki and stood to benefit from the legislation’s passage. Asked about ethics concerns regarding his wife last year, Uchida said he didn’t view the situation as a conflict of interest.
The Honolulu Ethics Commission received at least one complaint about the matter late last year. It investigated and shared its findings with the complainant in a letter on March 30, according to a copy obtained by Civil Beat in which the complainant’s name is redacted.”
Unhappy owners and operators also filed a lawsuit against the City and County of Honolulu.
The Federal lawsuit against the City and County of Honolulu, Department of Planning and Permitting, and Director Dean Uchida alleges the following:
This huge bill that is made up of many parts and areas with about 200 pages -Addressing the regulation of uses throughout Chapter 21, Revised Ordinances of Honolulu 1990 (“Land Use Ordinance” . (Deadline: 10/29/22).
While the DPP Department may be working to amend this Land Use Ordinance (LUO) along with other insiders, the general public at large is not familiar with the many proposed changes involved. Bill 10 is confusing and demands detailed reading and digesting. The changes range from Agricultural land use to Commercial use ordinances to setbacks for industrial turbines to neighborhood B1 and B2 Zoning applications to designations of vacation rental areas in Kapolei to getting rid of “preservation” zones and so on.
Bill 10 was heard at the City Council Public Hearing on September 7, 2022. A public member is only allowed 3 minutes to testify about this omnibus bill. The Uchida Resignation Press Release from the Office of the Mayor’s was announced by the media around noon, before the Bill 10 decision-making hearing.
It’s fervently hoped that the Mayor will make sure that the culture of Aloha not be usurped by turning it into a Police State with hasty wielding the big stick of government through big fines and imposing non-judicial seizure of private properties.
Aloha does not mean the lack of efficiency and effectiveness in city management. Aloha means that Honolulu Hale will consistently serve the people of Honolulu in a helpful, fair and equitable ways across the board.