Tag Archives: Private Property Rights

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.”


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

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.

REJECT HB 106: Authorizes a county to proceed with a power of sale on real property subject to city fines.

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. 

Unfortunately, the Honolulu Department of Planning and Permitting (DPP) does not have a consistent and good record. This is no way to live in a Democracy where Big Brother and its long arm of government continues to become more powerful and subvert Due Process due its citizen.

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.

Resolution 22-011: STRONGLY OPPOSE – This Process is Too Hasty and Flawed For Adoption

Honolulu City Council member Heidi Tsuneyoshi is rushing city legislation Resolution 22-011 for the Mayor and the Department of Planning and Permitting ( DPP) to impose “Judicial Foreclosure” on this private property owner. ( It started out as “eminent domain” but was quickly amended to “Judicial Foreclosure”).

I understand there are land-use violations by the owners. Yes, the owner must correct the violations. There is no question about that. Those who know also know that working with DPP takes time.

We need to remember that these past two years also suffered from COVID19 lockdowns and disruption. He has submitted applications to cure his violations. He’s been working with a hired engineer and an architect to cure the violations. Again, these actions take significant time. Processing permits takes time even before the COVID19 pandemic.

But if DPP is told to not issue him permits to cure his violations, it’s a Catch 22. It’s discrimination and retaliation. It’s Big Government wielding its Big Stick that undermines due process.

This is a hardworking immigrant owner from the Island of Tonga. I submit that the cultural differences and lack of understanding need to be part of the deliberations. I’ve recently talked with Hopoate and Annetta Taufa. They did not recognize or understand the severity of these hostile actions till just recently. So now they’re fighting for their land. Unfortunately, Annetta is also fighting literally for her life. She’s under hospice care in their home in Laie.

It’s wrong for Tsuneyoshi to push eminent domain or judicial foreclosure quickly on a small private property. Her actions are abusive and undermine private property rights. Tsuneyoshi has accused the owner of violating for five years to the other city council members and to the Honolulu Star Advertiser with a readership of about 147,959 weekdays 162,287 Sundays. But, the owners acquired this property on November 2019. That’s 2.5 years.

This private property taking is off to hostile and unfair start. Resolutions to seize private property must be carefully and correctly vetted with correct data and correct research. City Council members should be working with their constituents when they’re in trouble, not bully them with severe punishments so quickly. Our immigrant families may need extra help on many levels. Understanding Hawaii’s diversity and showing some compassion is in order, especially for legislators

Hauula Fire Station Relocation Controversy Drives Honolulu Mayor to Illegally Shut Down Reynolds Recycling Center

 

Hawaii Eminent Domain Abuse – Honolulu Mayor Goes Amok on Free Speech and Private Property Rights!

DSC07926

Honolulu Mayor Kirk Caldwell impounded free speech signs

on private property on October 18, 2013, again!

DSC07928

Upon taking office, he went on the rampage by implementing

first raid of the signs on May 29, 2013. There is a federal lawsuit  against the city pending.

PRIVATE  fee owners own this commercial lot. The eminent domain

trial is set for March 2014.  Mayor Caldwell’s threats and intimidation are grossly premature and illegal.

On October 21, 2013, the Mayor rampaged further by posting signs on the private property to threaten Reynolds Recycling into closure. The threatening sign was posted in the middle of the entry way to the business. The problem is the city does not own this lot!

DSC08057

The city owns the adjacent lot below but it has no posted signs of any kind at all. Maybe after the Mayor has been exposed, he’ll post a similar sign on this city-owned lot to appear even-handed. But it’s too late. His browbeating and abusing the office of the Mayor’s office are too evident.

DSC08067

Does Hau’ula need a recycling center?

What do you think of the Mayor’s illegal activities?

808 768-4141  mayor@honolulu.gov  Honolulu Mayor

808 768-5002 emartin@honolulu.gov  City Councilman

 

DSC07946