Jeff Hunt Deposition

0001
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF HAWAII
3 MAUI VACATION RENTAL ASSOCIATION, )
INC., a Hawaii corporation, )
4 )
Plaintiff, ) CIVIL NO.
5 ) CV 07-00495 JMS/KSC
vs. )
6 )
THE COUNTY OF MAUI; JEFF HUNT, )
7 Director of MAUI COUNTY PLANNING )
DEPARTMENT, as an individual, and )
8 DOES 1-10, inclusive; )
)
9 Defendants, )
___________________________________)
10
11 Deposition Noticed by: James H. Fosbinder, Esq.
12
13 DEPOSITION OF JEFFREY S. HUNT
14 1:04 p.m., November 26, 2007
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16 Taken on behalf of the Plaintiff, at Iwado Court
17 Reporters, 2233 Vineyard Street, Suite A, Wailuku, Maui,
18 Hawaii.
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23 REPORTED BY: KATHERINE EISMANN, CRR/RDR/CSR #439
24 IWADO COURT REPORTERS
(808)244-9300
25 Email: Info@iwadocourtreporters.com
0002
1 A P P E A R A N C E S
2 For the Plaintiff:
3 JAMES H. FOSBINDER, ESQ.
Ivey Fosbinder Fosbinder LLC
4 A Limited Liability Law Company
2233 Vineyard Street, Suite C
5 Wailuku, Hawaii 96793
(808) 242-4956
6 Email: fsbndr@hawaii.rr.com
7 For the Defendant County of Maui:
8 JANE E. LOVELL
MARY BLAINE JOHNSTON
9 Deputies Corporation Counsel
County of Maui
10 200 S. High Street
Wailuku, Hawaii 96793
11 (808) 270-7575
Email: jane.lovell@co.maui.hi.us
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0003
1 EXAMINATION INDEX
2 Examination by: Page
3 Mr. Fosbinder 4
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6 EXHIBIT INDEX
7 Exhibit Number Description Page
8 1 Plaintiff's Notice of Taking Oral
Deposition 4
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0004
1 Pursuant to Rule 14 of the Rules Governing
2 Court Reporting in Hawaii, the Reporter's Disclosure was
3 made and is attached hereto.
4 Pursuant to Rule 30(b)(4) of the Hawaii
5 Rules of Civil Procedure, the following is stated for
6 the record:
7 My name is Katherine Eismann, Certified
8 Shorthand Reporter with Iwado Court Reporters. My
9 business address is 2233 W. Vineyard Street, Suite A,
10 Wailuku, Maui, Hawaii. Today's date is November 26,
11 2007. The time is 1:04 p.m. This deposition is taking
12 place at Iwado Court Reporters.
13 In attendance are: Mr. Fosbinder, Mr. David
14 Dantes, Ms. Lovell, and Ms. Johnston
15 The deponent is:
16 JEFFREY S. HUNT
17 * * * * *
18 The deponent, having been sworn to tell the
19 truth, the whole truth, and nothing but the truth, was
20 examined and testified as follows:
21 EXAMINATION
22 (Exhibit 1 marked.)
23 BY MR. FOSBINDER:
24 Q. Hello.
25 A. Hello.
0005
1 Q. Would you state your name for the record?
2 A. Jeff Hunt.
3 Q. And what's your job?
4 A. I am the Planning Director for Maui County.
5 Q. Okay. And what training have you had in
6 being a Planning Director? Where did you go to school,
7 college?
8 A. I've got an undergraduate degree in
9 Environmental Science and Economics from Willamette
10 University, Salem, Oregon.
11 Q. Okay.
12 A. I've got a Master's in Public Administration
13 from the University of Colorado with a focus on local
14 government and management. I have an AICP
15 Certification, American Institute of Certified Planners,
16 and I have taken a number of courses, and seminars, and
17 conferences throughout my career. I have got
18 approximately 17 years of experience in land use
19 planning.
20 Q. And where was that?
21 A. Hood River County, Vail, Colorado,
22 Breckenridge, Colorado, and Maui County.
23 Q. What has been done by the Planning
24 Department during your administration to attempt to
25 determine what the impact of the shutting down
0006
1 un-permitted vacation rentals would be in terms of the
2 local economy, if anything?
3 A. We haven't done any formal studies.
4 Q. Have you done any informal studies?
5 A. I think we have tried to be aware of
6 economic impacts.
7 Q. And how did you try?
8 A. Reading, listening.
9 Q. And did you come to any conclusions?
10 A. No firm conclusions.
11 Q. Did you come to any not firm conclusions?
12 A. (Nods head.)
13 Q. And what were those?
14 MS. LOVELL: I object to the form of the
15 question. Calls for speculation, but you may answer.
16 THE WITNESS: Some of the studies indicate
17 that there could be an economic impact.
18 BY MR. FOSBINDER:
19 Q. What studies are those?
20 A. I believe the Kauaian Institute indicated
21 the amount of revenue that came into the economy based
22 on them.
23 Q. Do you recall how much that was?
24 A. No, I don't.
25 Q. Do you have any idea? Are you able to make
0007
1 an estimate of how much that was?
2 A. No, I'm not able to.
3 Q. Okay. Does that, as a Planning Director,
4 cause you any concern that you are shutting down --
5 well, I will ask a different question first.
6 Do you have an estimate of how many vacation
7 rental businesses there are on Maui at this point that
8 are not permitted yet?
9 A. We estimate approximately 1100.
10 Q. Okay. And do you have the ability to make
11 any sort of estimate as to what the gross revenue of
12 those businesses would be?
13 A. Could you repeat the question?
14 Q. Do you have any estimate that you can give
15 me as to what the gross revenue of all 1100 vacation
16 rental businesses might be?
17 A. No, I don't.
18 Q. Do you have any idea what vacation rentals
19 rent for per day?
20 MS. LOVELL: I object to the form of the
21 question as compound. You may answer.
22 THE WITNESS: Yes.
23 BY MR. FOSBINDER:
24 Q. And what is the approximate range that you
25 understand that to be?
0008
1 A. I've heard as low as in the hundreds and as
2 high as in the thousands.
3 Q. Okay. And so what is the lowest that you
4 think the approximate average daily rental could be?
5 MS. LOVELL: No foundation, calls for
6 speculation. You may answer.
7 THE WITNESS: Could you repeat the question?
8 BY MR. FOSBINDER:
9 Q. Yeah, I'm asking you to make a low-end
10 estimate of what you think the lowest figure per day per
11 room could be?
12 A. I don't know.
13 Q. Do you have any idea whether most of the
14 vacation rentals are rented -- let me rephrase that.
15 Do you have any idea what the occupancy rate
16 of Maui for vacation rentals is?
17 A. No.
18 Q. Okay. Is it fair to say that you have no
19 idea of what the gross revenue of all of the vacation
20 rental businesses is?
21 MS. LOVELL: That's an argumentative
22 question the way it's phrased, and it's asked and
23 answered, but you may respond again.
24 THE WITNESS: Are you asking me if I think
25 your question is fair?
0009
1 BY MR. FOSBINDER:
2 Q. No, I'm asking do you have any notion of
3 what the gross might be?
4 MS. LOVELL: Well, as phrased, that totally
5 calls for speculation. Perhaps you could make it a
6 better question.
7 BY MR. FOSBINDER:
8 Q. Perhaps he can answer it, and if he can't, I
9 will make it a better question.
10 A. Could you repeat the question?
11 Q. Do you have any way to make any sort of
12 estimate at all as to what the gross revenue from
13 vacation rentals on Maui might be?
14 A. That wasn't your original question.
15 Q. Okay. I'm trying to make a better question.
16 A. As I understand it, you are asking me if
17 there's any way I could make that estimate?
18 Q. Here today in front of me.
19 A. Right in front of you?
20 Q. Yes.
21 A. No.
22 Q. Could you multiply the number of vacation
23 rentals, which you have said is 1100, times what you
24 might estimate to be the lowest possible number, which
25 you said was something over a hundred I gather per day,
0010
1 is that correct?
2 MS. LOVELL: Is what correct?
3 BY MR. FOSBINDER:
4 Q. That your belief is that the average daily
5 rental would be at least $100?
6 A. I didn't say that.
7 Q. Okay. So, you don't have any idea whether
8 that would be the lowest? That's what I am trying to
9 find out.
10 A. I don't know what the lowest would be.
11 Q. Okay. And do you have any idea what the
12 average occupancy rate might be?
13 A. No, I don't.
14 Q. Okay. As a Planning Director, does it
15 bother you to be making efforts to shut down 1100
16 businesses without having any idea what the impact would
17 be economically on Maui?
18 MS. LOVELL: I object to the form of the
19 question as argumentative, but you may answer if you
20 understand it.
21 THE WITNESS: Does it bother me?
22 BY MR. FOSBINDER:
23 Q. As a planner, professionally, to be shutting
24 down 1100 businesses on Maui without having any idea of
25 what the total economic impact might be?
0011
1 A. The enforcement action that the County is
2 taking is not based purely on economics.
3 Q. That's not the question I ask. The question
4 I ask was does it bother you, professionally, as a
5 planner, to be making efforts to shut down 1100
6 businesses on Maui without having any idea what the
7 total economic impact might be on Maui?
8 MS. LOVELL: Same objection.
9 THE WITNESS: Should I answer?
10 MS. LOVELL: Yeah, if you can.
11 THE WITNESS: The enforcement is based on
12 the law not based on economics.
13 BY MR. FOSBINDER:
14 Q. Does it bother you personally as a planner
15 to be shutting down these businesses without having any
16 idea what the total economic impact will be?
17 A. As a professional --
18 MS. LOVELL: Same objection.
19 THE WITNESS: As a professional planner, I
20 try and keep my personal feelings out of it.
21 BY MR. FOSBINDER:
22 Q. Your feelings as a professional planner,
23 does it bother you in those feelings to be shutting down
24 1100 businesses without having any idea what the
25 economic impact is?
0012
1 MS. LOVELL: I object to that question as an
2 incomplete hypothetical.
3 THE WITNESS: As a professional planner, I
4 try and keep my personal feelings out of decision
5 making.
6 BY MR. FOSBINDER:
7 Q. Okay. So, let's forget about your personal
8 feelings. Your feelings as a planner, does this bother
9 you as a professional planner that you are engaged in
10 shutting down 1100 businesses without having any idea
11 what the economic impact on Maui will be?
12 MS. LOVELL: Same objections.
13 THE WITNESS: Could you repeat the question?
14 MR. FOSBINDER: Can you read it back?
15 THE REPORTER: "Question: Okay. So, let's
16 forget about your personal feelings. Your feelings as a
17 planner, does this bother you as a professional planner
18 that you are engaged in shutting down 1100 businesses
19 without having any idea what the economic impact on Maui
20 will be?"
21 THE WITNESS: The word bother indicates to
22 me an emotion. As I said before, I try and keep my
23 emotions out of the situation.
24 BY MR. FOSBINDER:
25 Q. As a planner, are you concerned about
0013
1 shutting down 1100 businesses on Maui without any idea
2 of what the economic effect on the County will be?
3 MS. LOVELL: Same objections.
4 THE WITNESS: As a planner, I think I have
5 to follow the law.
6 BY MR. FOSBINDER:
7 Q. Am I correct that it causes you no concern
8 to shut down 1100 businesses on Maui without having any
9 idea what the economic impact on Maui will be?
10 MS. LOVELL: That's a completely
11 argumentative question. I object.
12 THE WITNESS: I didn't say that.
13 BY MR. FOSBINDER:
14 Q. Then are you concerned?
15 A. Am I -- concerned with what?
16 Q. What the economic impact might be?
17 A. Can you restate the question, please?
18 Q. Are you at all concerned about shutting down
19 1100 businesses, approximately, on the North Shore of
20 Maui without having any idea of what the economic impact
21 on Maui will be?
22 MS. LOVELL: That same question has been
23 asked and answered now I don't know how many times.
24 MR. FOSBINDER: No, it hasn't been answered.
25 It's absurd. He either is concerned or he isn't
0014
1 concerned.
2 MS. LOVELL: Whether he is concerned is
3 completely irrelevant.
4 MR. FOSBINDER: As the Planning Director --
5 MS. LOVELL: You have asked the question now
6 like 10 times. I mean, you can answer it again, but --
7 THE WITNESS: I think I have answered the
8 question.
9 BY MR. FOSBINDER:
10 Q. In general, do planning directors following
11 good planning policy shut down relatively large
12 industries without finding out what the economic impact
13 might be?
14 MS. LOVELL: I object that it's an
15 incomplete hypothetical. You have left out the fact
16 that these are un-permitted. You may answer though, if
17 you can.
18 THE WITNESS: Could you repeat the question?
19 THE REPORTER: "Question: In general, do
20 planning directors following good planning policy shut
21 down relatively large industries without finding out
22 what the economic impact might be?"
23 THE WITNESS: I can't speak for planning
24 directors in general.
25
0015
1 BY MR. FOSBINDER:
2 Q. Did you go to school to learn about
3 planning?
4 A. I took some planning courses.
5 Q. How many, approximately?
6 A. It depends what you mean by a planning
7 course. I went to a liberal arts college, so it wasn't
8 a distinct planning course. A number of courses I took
9 had planning involved in them.
10 Q. Such as?
11 A. Can you repeat the question?
12 Q. You said a number of courses that you took
13 had something to do with planning. Am I correct?
14 A. Yes.
15 Q. How many?
16 A. Half a dozen.
17 Q. Such as?
18 A. I don't understand your question.
19 Q. Can you name -- describe the classes to me?
20 A. I can't recall the exact titles of the
21 classes.
22 Q. I understand that. Do you recall the gist
23 of what the classes were about?
24 A. Some were based on futures courses,
25 seminars, some were based on retracking America, where
0016
1 there was a zoning game that we played.
2 Q. So, you remember one about a zoning game and
3 one called -- was that the retracting America, the
4 zoning game?
5 A. Yes.
6 Q. And the other one was about what?
7 A. A futures seminars.
8 Q. Futures seminar?
9 A. Yes.
10 Q. Like buying futures on the stock market, or
11 the future of America, or --
12 A. Future as opposed to past.
13 Q. And was that a course by a Planning
14 Department or professor who taught planning?
15 A. No.
16 Q. How many courses have you taken in your life
17 from a professor who was a professor in the Planning
18 Department?
19 MS. LOVELL: You mean in a County Planning
20 Department, a State Planning Department?
21 BY MR. FOSBINDER:
22 Q. As professor in a Planning Department at
23 university -- at a university. I thought that was
24 understood.
25 A. In my undergraduate work, there was no
0017
1 planning professors. My graduate work, the planning
2 courses I took were taught by specialists.
3 Q. Specialists in what?
4 A. Real estate development and in land
5 development.
6 Q. Was there a Planning Department at the
7 university where you took those classes?
8 A. Yes, these were under --
9 Q. Those classes were taught -- they had a
10 number from the Planning Department, a course number?
11 A. I believe so.
12 Q. But the professors were not professors in
13 the Planning Department?
14 A. I believe so.
15 Q. So, to your recollection, none of the
16 classes that you took were taught by professors who were
17 professors in the Planning Department?
18 MS. LOVELL: Totally misstates what he just
19 said.
20 BY MR. FOSBINDER:
21 Q. Well then, you can tell me that.
22 MS. LOVELL: Well, I object. You can
23 answer.
24 THE WITNESS: I believe they were -- I'm not
25 sure of the technical relationship. I believe they were
0018
1 contracted out or --
2 BY MR. FOSBINDER:
3 Q. Do you recall taking any courses from anyone
4 who was a professor in the Planning Department
5 specifically?
6 A. No, I don't.
7 Q. Okay. Did you ever have any classes in any
8 of your formal education where there was any discussion
9 of economic impact -- the economic impact of planning
10 decisions?
11 A. I can't recall.
12 Q. Okay. Do you have any specific recollection
13 of being taught anything during your formal schooling
14 about how to assess the economic impact of planning
15 decisions?
16 A. In my undergraduate classes, I took a number
17 of economics classes. So, I believe I have a decent
18 understanding of that kind of topic.
19 Q. But none of those classes specifically dealt
20 with planning?
21 A. Not specifically.
22 Q. And if for some reason you were concerned
23 about the likely economic impact of the decision to shut
24 down 1100 TVR businesses, is there someone who you would
25 consult at the Department of Planning who you believe
0019
1 has expertise in that area?
2 MS. LOVELL: I object to the form of the
3 question as argumentative, but you may answer.
4 THE WITNESS: If we needed economic
5 expertise, we would go through the standard routine to
6 obtain that expertise.
7 BY MR. FOSBINDER:
8 Q. And what would that standard routine be?
9 A. We would look at our options.
10 Q. And how would you do that?
11 A. We would discuss the situation.
12 Q. Who would discuss the situation?
13 A. Staff.
14 Q. Who is the staff?
15 A. The Planning Department staff.
16 Q. Everybody at once?
17 A. Not necessarily.
18 Q. Do you ever have a meeting with all of the
19 staff to talk about what to do about anything?
20 A. Can you repeat the question?
21 Q. Do you ever have a meeting with everyone who
22 is on the Planning Department staff to talk about what
23 to do about any issue?
24 A. We have meetings with our staff.
25 Q. To talk about what decision to make or to
0020
1 talk about procedural stuff internally or both?
2 A. Both.
3 Q. Okay. When you attended the forum that was
4 held at the Iao Theater, my recollection was that you
5 indicated that all anybody needed to do to open up a
6 vacation rental business was to get a tax ID number.
7 That as far as you were concerned, that would be okay.
8 Do you recall saying that?
9 A. I don't recall saying that.
10 Q. Well, let me ask you -- let me change topics
11 a little bit.
12 Are you aware of a memo regarding
13 enforcement policy that was signed by Mr. Min?
14 A. Which one?
15 Q. I think there were two. That's right. Were
16 there two?
17 A. I believe there's three.
18 Q. Three. Okay. I couldn't get the third one.
19 Here is one dated October 9th.
20 MS. LOVELL: For the record October 9th,
21 2002.
22 BY MR. FOSBINDER:
23 Q. Correct.
24 A. Could you repeat his reference?
25 THE REPORTER: "Question: Are you aware of
0021
1 a memo regarding enforcement policy that was signed by
2 Mr. Min?"
3 THE WITNESS: I was not aware of that memo.
4 BY MR. FOSBINDER:
5 Q. Okay. Then maybe there's more than three.
6 Here is another one dated April 28th, 2003, that was
7 signed by Michael Foley. Are you familiar with that
8 one?
9 A. I believe I am.
10 Q. Okay. That appears to -- well, first of
11 all, is that policy still in effect?
12 A. As far as I know.
13 Q. Okay. And that policy allows a wide range
14 of home-based businesses, correct?
15 A. That's not my interpretation.
16 Q. Does it allow any home-based businesses?
17 A. My interpretation is it gives interpretation
18 of the existing code.
19 Q. Well, if we didn't have that letter, would
20 the interpretation of the existing code be the same as
21 having that letter?
22 MS. LOVELL: What?
23 BY MR. FOSBINDER:
24 Q. Does the letter change in any way what you
25 would think the existing code means if you didn't have
0022
1 that letter to look at?
2 A. Can you repeat the question?
3 Q. Sure. Does that letter change in any way
4 what you think the interpretation of the existing code
5 would be if you didn't have that letter?
6 A. I don't know what the interpretation of the
7 code would be if we didn't have the letter. I would say
8 what that letter does is it provides interpretation of
9 the code.
10 Q. Isn't it true that the reason that that
11 letter was issued, along with its predecessor, was
12 because people were concerned that residential zoning,
13 as it's written, does not appear to allow home-based
14 businesses?
15 MS. LOVELL: I object to the form of the
16 question as both compound and calling for speculation.
17 THE WITNESS: Could you repeat the question?
18 BY MR. FOSBINDER:
19 Q. Sure. If you read the code having to do
20 with residential zoning, where does it say that you can
21 have a home-based business?
22 THE WITNESS: When I ask him to repeat the
23 question and he doesn't repeat it, what should I do?
24 MS. LOVELL: You can ask the court reporter
25 to read it back.
0023
1 THE WITNESS: Could you read back the
2 original question?
3 MS. LOVELL: Or you can ask Mr. Fosbinder
4 which of his questions he would like you to answer, the
5 original one or his changed one.
6 BY MR. FOSBINDER:
7 Q. Either way. If you want to have her read it
8 back, that's fine.
9 A. Could you read back the original question,
10 please?
11 THE REPORTER: "Question: Isn't it true
12 that the reason that that letter was issued, along with
13 its predecessor, was because people were concerned that
14 residential zoning, as it's written, does not appear to
15 allow home-based businesses?"
16 THE WITNESS: I don't know the reason as to
17 why that memo was produced.
18 BY MR. FOSBINDER:
19 Q. Okay. Have you read the residential zoning
20 section of the zoning in the County statutes?
21 A. Can you be more specific?
22 Q. Does the County Code describe what R-1
23 means?
24 A. The County Code or the zoning ordinance?
25 Q. The County Code encompasses the zoning
0024
1 ordinance, as I understand it. Do you understand
2 differently?
3 A. Do you want me to answer that question or
4 the previous question that I had read?
5 Q. I want you to answer the last question.
6 A. Could you repeat the last question as you
7 stated it, please?
8 Q. Sure. As I understand it, the County Code
9 includes within it the zoning. Do you disagree?
10 A. I agree that the County Code has a number of
11 chapters in it that address residential uses.
12 Q. And is there someplace else to go to look to
13 see what the definition of zoning R-1 is other than the
14 County Code and the letter, the memorandum regarding
15 enforcement?
16 A. I believe your earlier question was related
17 to residential zoning in a broad basis, and whether I
18 have read that. I just wanted to be clear what you were
19 talking about specifically.
20 Q. Well, frankly, I sort of assumed that you
21 had read the whole County Code having to do with zoning.
22 Is that true or is that not true?
23 A. Every page?
24 Q. Yes.
25 A. No.
0025
1 Q. Okay. Have you read the parts having to do
2 with residential use?
3 A. I'm familiar with them, yes.
4 Q. Have you read all of them?
5 A. I believe I have.
6 Q. Okay. And in there, they describe what it
7 means to be a residential zone, right?
8 A. I can't recall off the top of my head.
9 Q. Okay. I have here a transcript that was
10 prepared for us. It was not prepared by a court
11 reporter, and so I cannot tell you it was prepared by a
12 court reporter. However, we do have a tape of it.
13 This is what the person who transcribed it
14 wrote down they understood you were saying from the
15 tape. It's the last paragraph on this page. I'd ask
16 you to look at it and see if -- well, I'd ask you to
17 read it.
18 A. Okay. I have read it.
19 Q. Okay. If I can have it back. "When I
20 worked in the ski area in Colorado, basically needed was
21 a business license. The planners didn't worry about it.
22 It wasn't under our purview. When I moved here to work
23 in this Planning Department, it is different. If
24 Council passes a law that says all you need is a
25 business license, so be it. That would be fine with
0026
1 me."
2 Do you think that you said something to that
3 effect?
4 A. Yes. Your earlier question was you asked me
5 about whether it was based on tax statements, and so
6 that wasn't accurate.
7 Q. I got that wrong. I hadn't looked at the
8 transcript. I was remembering it from several months
9 ago.
10 From a planning point of view today, is
11 there any reason that, as far as you can tell, Maui
12 County should not allow vacation rentals as they have
13 been allowed? And by that I mean the ones that have
14 been permitted.
15 Is there anything bad that you see as a
16 consequence that would make you, as a planner, recommend
17 not allowing people to get those kinds of permits?
18 A. I'm sorry. Could you ask one question at a
19 time?
20 Q. Okay. Some people have received permits for
21 TVRs, correct?
22 A. Yes.
23 Q. Okay. Approximately seven?
24 A. Approximate.
25 Q. From a planning point of view, from what you
0027
1 have learned about planning through your education and
2 your experience, do you see a problem for Maui if more
3 vacation rentals were allowed following the existing
4 permitting procedure?
5 MS. LOVELL: I object, incomplete
6 hypothetical, but you may answer.
7 THE WITNESS: I don't understand the
8 question.
9 BY MR. FOSBINDER:
10 Q. Okay. I assume that as a planner, you don't
11 want to see a gas station next to a child care center.
12 Would that be a good example of something a planner
13 would not want to see?
14 A. It's conceivable.
15 Q. Okay. I assume that you wouldn't want a
16 rendering plant next to an apartment building. Would
17 that be a good example of something a planner would
18 think was inappropriate?
19 A. It's conceivable.
20 Q. Is it only conceivable, or isn't it almost
21 certain that virtually any person trained as a planner
22 would think that a rendering plant should not be located
23 next to an apartment building?
24 MS. LOVELL: The problem is your
25 hypothetical is missing -- you know, it's completely
0028
1 incomplete.
2 THE WITNESS: There's too many
3 circumstances. Maybe the rendering plant was there
4 first. For me to make a broad statement like that is --
5 BY MR. FOSBINDER:
6 Q. I'm trying to find out if there's anything
7 that we can agree on in terms of basic principles of
8 planning, and I am not talking about grandfathered in.
9 I am talking about in the future, as a planner, there
10 are some things that you would not like to see happen,
11 if you can effect that to prevent it from happening,
12 right? There's some things you don't want to see happen
13 as a planner?
14 A. It's not a question of want. It's a
15 question of good planning.
16 Q. Okay. As someone who wants to be a good
17 planner, there are some things that you would want to
18 prevent, right?
19 A. It's not a desire to be a good planner.
20 It's what somebody's opinion of what good planning is.
21 Q. Okay. Can you give me any examples of basic
22 principles of good planning in terms of things that
23 shouldn't be located next to each other?
24 A. A general principle of Euclidian planning is
25 to separate uses that are incompatible with each other.
0029
1 Q. Okay. And can you give me an example of
2 uses that are incompatible with each other?
3 A. As an example, an industrial use in a
4 residential area.
5 Q. Okay. When you first addressed vacation
6 rentals publicly, you indicated that you were concerned
7 about moving the goalposts. Does that sound familiar?
8 MS. LOVELL: If you are referring to a
9 document, would you please show it to him?
10 MR. FOSBINDER: I'm not referring to a
11 document.
12 MS. LOVELL: In that case, could you be more
13 specific about the time or date or place of this?
14 BY MR. FOSBINDER:
15 Q. No.
16 A. Could you repeat the question?
17 Q. Do you recall using the phrase moving the
18 goalposts when discussing vacation rentals on Maui?
19 A. Yes.
20 Q. Okay. And can you tell me what your concern
21 was at that time? Well, here. Why don't I give you
22 this. We found the document. Go ahead.
23 MS. LOVELL: Is there a pending question?
24 BY MR. FOSBINDER:
25 Q. I just want him to read it, and I will ask
0030
1 him a question.
2 A. Okay.
3 Q. You can keep that, actually. I think I have
4 got several sets. Do you remember saying that?
5 A. Yes, I do.
6 Q. Okay. And are you no longer concerned about
7 the effect of moving the goalposts?
8 MS. LOVELL: I object to the form of the
9 question. It's argumentative. Please rephrase it.
10 BY MR. FOSBINDER:
11 Q. Do you want her to read the question back?
12 A. Excuse me?
13 Q. Would you like her to read the question back
14 again?
15 MS. LOVELL: No, I am asking you,
16 Mr. Fosbinder, to please --
17 MR. FOSBINDER: And I won't.
18 MS. LOVELL: You won't?
19 MR. FOSBINDER: I won't. It's not
20 argumentative all at all.
21 MS. LOVELL: It's completely argumentative.
22 Perhaps we should take a break and call the magistrate.
23 MR. FOSBINDER: You are being argumentative.
24 I am not being argumentative.
25 MS. LOVELL: Could I have it read back,
0031
1 please?
2 THE REPORTER: "Question: Okay. And are
3 you no longer concerned about the effect of moving the
4 goalposts?"
5 MS. LOVELL: Okay. That's argumentative, it
6 assumes facts, and it misstates the previous testimony.
7 MR. FOSBINDER: All I'm trying to find out
8 is if he's still got the same concern he used to have.
9 MS. LOVELL: He's never said he had that,
10 quote, unquote, concern. You are misstating the
11 testimony.
12 THE WITNESS: I agree with my counsel.
13 BY MR. FOSBINDER:
14 Q. Okay. Were you ever concerned that it would
15 be an example of moving the goalposts to change the
16 enforcement policy regarding TVRs?
17 A. In discussing the policy, there was two
18 sides to the policy.
19 Q. I'm sorry. That was the answer?
20 A. Yes.
21 Q. Okay. Was that your concern at all
22 personally or not your concern at all that this would
23 appear to be an example of moving the goalposts?
24 A. Can you repeat the question?
25 Q. Read it back.
0032
1 THE REPORTER: "Question: Okay. Was that
2 your concern at all personally or not your concern at
3 all that this would appear to be an example of moving
4 the goalposts?"
5 THE WITNESS: Could you ask me those
6 questions individually? You asked two questions in the
7 same sentence as I understand it. Could you please ask
8 single questions?
9 BY MR. FOSBINDER:
10 Q. I am sorry. You will have to read that back
11 to me again.
12 THE REPORTER: "Question: Okay. Was that
13 your concern at all personally or not your concern at
14 all that this would appear to be an example of moving
15 the goalposts?"
16 THE WITNESS: Was it your concern personally
17 or your concern not at all. Which question would you
18 like to ask me?
19 BY MR. FOSBINDER:
20 Q. Okay. Was it your concern?
21 A. Was it my concern?
22 Q. Yeah.
23 A. What's "it"?
24 Q. Changing enforcement policy.
25 A. The discussion on February 15th was a
0033
1 discussion of the pros and cons. It was a discussion
2 about policy.
3 Q. Okay. So, you didn't -- am I correct that
4 you didn't think this looked like changing the
5 goalposts; that somebody else had said that? Is that
6 what you are telling me?
7 MS. LOVELL: That question is argumentative
8 also, but you can answer it.
9 THE WITNESS: I was raising an issue that
10 the Council should be aware of.
11 BY MR. FOSBINDER:
12 Q. Okay. Did you think that they should regard
13 that as a serious issue, the appearance of moving the
14 goalposts, or did you not regard that as a serious
15 issue?
16 A. Could you ask simple questions, please, and
17 not ask me two questions at the same time?
18 Q. Okay. Is it your opinion that changing the
19 enforcement policy regarding vacation rentals is an
20 example of moving the goalposts or not?
21 MS. LOVELL: It's still two questions,
22 but --
23 THE WITNESS: Could you ask a question
24 without an "or" and then come back with a subsequent
25 question? It's difficult for me to understand your
0034
1 questions when you ask two of them formed with a
2 conjunction "or".
3 BY MR. FOSBINDER:
4 Q. Okay.
5 A. Is it impossible for you to simply ask one
6 question and then stop without adding an "or" and going
7 on?
8 Q. I will make an effort to do that.
9 A. Thank you.
10 Q. Does it seem to you that the County has in
11 any way acted unfairly by having written agreements not
12 to enforce against vacation rentals until their permit
13 application was processed?
14 MS. LOVELL: I object to that question, the
15 form of that question, but you may answer.
16 THE WITNESS: Could you repeat the question?
17 THE REPORTER: "Question: Does it seem to
18 you that the County has in any way acted unfairly by
19 having written agreements not to enforce against
20 vacation rentals until their permit application was
21 processed?"
22 MS. LOVELL: I object to the word agreement,
23 but you may answer.
24 THE WITNESS: I don't believe there is a
25 written agreement that binds the County.
0035
1 BY MR. FOSBINDER:
2 Q. Okay. But would it be fair to say that
3 reasonable people might have understood that having the
4 Planning Director sign a written document meant that the
5 County would follow what it said in that document?
6 A. I don't believe Mr. Min had the authority to
7 bind future administrations.
8 Q. Okay. I'm not asking about legal authority
9 here. I'm questioning you as to whether or not you
10 believe that there is something unfair about signing a
11 written document that says that the County will not
12 enforce a law until someone's permit application is
13 processed, then sitting on that application for several
14 years, and then enforcing it without processing the
15 permit?
16 MS. LOVELL: Okay. That is a compound
17 question. It assumes facts, and it's an incomplete
18 hypothetical.
19 MR. FOSBINDER: Read it back.
20 THE REPORTER: "Question: Okay. I'm not
21 asking about legal authority here. I'm questioning you
22 as to whether or not you believe that there is something
23 unfair about signing a written document that says that
24 the County will not enforce a law until someone's permit
25 application is processed, then sitting on that
0036
1 application for several years, and then enforcing it
2 without processing the permit?"
3 MS. LOVELL: You can answer if you
4 understand the question.
5 THE WITNESS: I don't understand the
6 question. I would like to take a break.
7 MS. LOVELL: Okay. Let's give Mr. Fosbinder
8 one more chance to make that a better question and then
9 we will take a break.
10 MR. FOSBINDER: Read it back again.
11 THE REPORTER: "Question: Okay. I'm not
12 asking about legal authority here. I'm questioning you
13 as to whether or not you believe that there is something
14 unfair about signing a written document that says that
15 the County will not enforce a law until someone's permit
16 application is processed, then sitting on that
17 application for several years, and then enforcing it
18 without processing the permit?"
19 MS. LOVELL: Okay. Same objections.
20 THE WITNESS: I don't believe what you
21 titled as a written agreement is binding. I don't
22 believe that it is even an agreement. I believe it's
23 minutes of a meeting that took place.
24 MS. LOVELL: Okay. Now can we take a short
25 break now that there's no question pending?
0037
1 MR. FOSBINDER: Sure.
2 (Recess, 1:50 p.m. Resumed, 2:01 p.m.)
3 MR. FOSBINDER: Okay. I have here a copy of
4 the County Code. You can look at that. And, Jane, you
5 can have one, too. You can both have one.
6 MS. LOVELL: For the record, it's not the
7 entire County Code.
8 MR. FOSBINDER: No, it's not. That's true.
9 A portion of the County Code. I will admit I got it
10 from the internet, so it could be anything or nothing at
11 all. But I am pretty sure it is.
12 MS. LOVELL: Is there a question?
13 MR. FOSBINDER: There will be one.
14 MS. LOVELL: Do you want the witness to read
15 the entire thing?
16 BY MR. FOSBINDER:
17 Q. Just the entire permitted uses and special
18 uses. You read it?
19 A. Cursory, yes.
20 Q. Okay. Would you agree that on Maui, there
21 are thousands of people who have a business that they
22 run from their home?
23 A. I don't know how many people are running
24 businesses from their home.
25 Q. Can you make an estimate of how many people
0038
1 are running a business from their home?
2 A. No, I couldn't.
3 Q. When I ask for an estimate, I include rough
4 estimates. I mean, presumably, you know there's less
5 than a million?
6 MS. LOVELL: Well, come on. Are you asking
7 him to guess?
8 MR. FOSBINDER: No, I'm asking him to make
9 an estimate.
10 MS. LOVELL: Well, he's just said he can't.
11 THE WITNESS: I said I can't.
12 BY MR. FOSBINDER:
13 Q. Okay.
14 A. Yes, under a million.
15 Q. Under a million. We can maybe go a little
16 further. Would you think that there must be at least
17 500 people running a business from their home?
18 MS. LOVELL: You're calling for speculation.
19 There is no foundation.
20 BY MR. FOSBINDER:
21 Q. No, I'm not. I am calling for an estimate.
22 A. You asked me if I must think that. No, I
23 don't. I don't know how to phrase that, but I don't
24 agree with your statement.
25 Q. Okay. Well, your estimate for vacation
0039
1 rentals was 1100, correct?
2 A. Correct.
3 Q. Okay. Aren't those people all running a
4 home-based business?
5 MS. LOVELL: Object to the form of the
6 question. It's compound and calls for speculation.
7 THE WITNESS: Could you repeat the question?
8 THE REPORTER: "Question: Okay. Well, your
9 estimate for vacation rentals was 1100, correct?
10 "Answer: Correct.
11 "Question: Okay. Aren't those people all
12 running a home-based business?"
13 THE WITNESS: In my mind, a home-based
14 business is different than a vacation rental.
15 BY MR. FOSBINDER:
16 Q. And how is it different?
17 A. A vacation rental is a transient vacation
18 rental subject to the definition of hotel or subject to
19 the definition of vacation rental as construed as a
20 hotel or similar to a hotel use.
21 Q. Okay.
22 A. There's also Community Plan policies that
23 specifically speak to vacation rentals.
24 Q. How many people in the Planning Department
25 are working on the enforcement of laws concerning rental
0040
1 of residential property for less than six months?
2 A. Three and a half.
3 Q. Okay. And how many people at the Planning
4 Department are working on enforcing laws that require
5 that residential property be used for the permitted uses
6 in Section 19.08.020 permitted uses?
7 A. To the best of my knowledge, the three and a
8 half inspectors are enforcing the code.
9 Q. Well, you just said that three and a half
10 people were enforcing specifically regarding vacation
11 rentals. Am I to understand that?
12 A. I didn't say that.
13 MS. LOVELL: No, no, no. He didn't say
14 that. That was not your question.
15 BY MR. FOSBINDER:
16 Q. Then I misunderstood. So, my first question
17 was how many people were working on enforcing the
18 limitation on six-month leases or longer? And I thought
19 you said three and a half, is that correct?
20 MS. LOVELL: Right, but you didn't say
21 specifically or solely or exclusively.
22 BY MR. FOSBINDER:
23 Q. I gather that. Okay. So, how many people,
24 if any, are working full-time on the vacation rental
25 issue?
0041
1 A. I'm not aware of anyone that's working
2 full-time on just the vacation rental issue.
3 Q. Okay. Is there anyone who is primarily
4 working on that?
5 A. I don't believe anyone's been assigned to
6 primarily look at vacation rentals.
7 Q. Okay. Do you check how many complaints you
8 get about various things? Are you familiar with the
9 number of complaints that come into your department?
10 A. Do I check on that?
11 Q. Yes.
12 A. No.
13 Q. Okay. Let me give you a stack of paper. I
14 think that what we are looking at here is the -- I'm
15 sorry. You can have one, too, your very own.
16 I think I want to start by looking at --
17 start at the back and go -- there's three pages, the
18 last three pages I want you to look at.
19 MS. LOVELL: You are referring to a reprint
20 from the Maui News?
21 BY MR. FOSBINDER:
22 Q. Yes, that's correct. Would you like to read
23 this or are you familiar with it?
24 A. Is there a particular paragraph?
25 Q. No, the whole thing.
0042
1 MS. LOVELL: Why don't you take a minute to
2 read it then, if he's going to ask about the whole
3 thing.
4 Just a question, Mr. Fosbinder, did you mean
5 to imply that the last three pages of this stack of
6 papers you handed us are all part of the same thing?
7 MR. FOSBINDER: Oh, no, no, no. The third
8 page is apparently an editorial. I am sorry. I didn't
9 mean to include that one.
10 MS. LOVELL: So, you are referring then to
11 the --
12 MR. FOSBINDER: Referring to Mayor Tavares's
13 Viewpoint.
14 MS. LOVELL: Okay.
15 BY MR. FOSBINDER:
16 Q. Ready?
17 A. Yes.
18 Q. Okay. The first sentence says, "Many
19 members of our island community have expressed dismay
20 about losing a sense of security and community long
21 enjoyed in their rural neighborhoods."
22 Have you had members of Maui community
23 express dismay to you about that?
24 A. There's been dismay expressed through a
25 number of avenues.
0043
1 Q. Have you personally had people contact you
2 to complain about losing a sense of security and
3 community in their rural neighborhoods?
4 A. There's other ways to do that.
5 Q. I'm just asking if you personally --
6 A. I have been in public meetings where I
7 believe those concerns have been expressed.
8 Q. Okay. And how many people have done that in
9 your presence?
10 A. I don't know off the top of my head.
11 Q. Can you make an estimate?
12 A. I won't make an estimate.
13 Q. About anything ever? I wasn't sure if you
14 were saying -- I was just trying to find out if he's
15 never going to make an estimate about anything. I will
16 stop asking about estimates. I don't think he's
17 estimated on anything yet.
18 So, a reason to ask, you just refuse to make
19 estimates? That's your right. I'm just --
20 A. In response to your previous question, I
21 don't want to make an estimate.
22 Q. Okay.
23 A. I think the record shows that there are
24 people who have made those complaints.
25 Q. What record is that?
0044
1 A. Minutes of the Planning Committee meetings.
2 Q. Okay. Have you received any letters
3 addressed to you, to the best of your recollection, in
4 which people express dismay about losing a sense of
5 security and community in their rural neighborhood?
6 A. I have received a lot -- I have received
7 letters from citizens. Whether they expressed this
8 exact concern, I couldn't state for sure. They have
9 expressed concerns about vacation rentals.
10 Q. In particular, have you had any letters sent
11 to you that expressed a concern about being less secure
12 as a result of vacation rentals?
13 A. I can't recall specifically.
14 Q. Okay. Do you get -- if someone sends a
15 letter to the Maui Planning Department, do you see those
16 or does someone else see those?
17 A. I don't necessarily see them all.
18 Q. Okay. Do you see some of them?
19 A. Yes.
20 Q. Okay. Have you seen any letters that were
21 sent to the Maui Planning Department that specifically
22 expressed concern about a sense of security being lost
23 as a result of vacation rentals?
24 A. I don't recall.
25 Q. Okay. Do you have any recollection of
0045
1 seeing any documents or being given any information in
2 any other way that led you to believe that vacation
3 rental residents are more likely to commit crimes than
4 the average resident of Maui?
5 A. Not that I'm aware of.
6 Q. The Haiku-Paia -- I'm sorry. The Paia-Haiku
7 Citizens Advisory Committee recommended for adoption a
8 plan for Haiku and Paia. Have you read that plan?
9 MS. LOVELL: Which plan?
10 BY MR. FOSBINDER:
11 Q. That's true. There's two. There's the
12 Community Plan and the whatchamacallit. Let's just skip
13 that.
14 How many permit applications could your
15 office process in the next two months, approximately?
16 A. I don't know. It would depend on the type
17 of permit.
18 Q. Okay. I am sorry. I am talking about -- do
19 you accept or agree that there's approximately a backlog
20 of 70 applications for TVRs?
21 A. I believe that's an approximation.
22 Q. Okay. It's a reasonable approximation?
23 A. Yes.
24 Q. Okay. And do you have any sense if your
25 Department were to be required to process the
0046
1 applications promptly, how long would it take?
2 A. It depends on the type of the application.
3 Q. Well, for TVR, on average. I'm just trying
4 to get a sense of if the Court were to say you have to
5 process these applications and asked you how long it
6 would take, what's your estimate of how long it would
7 take?
8 A. The applications aren't all the same, so my
9 estimation of how long it would take to process them
10 would not all be the same. I can't make one estimate
11 for all 70 applications.
12 Q. Could it be done in a year?
13 A. I'm not sure.
14 Q. Okay. Could it be done in two years?
15 A. A lot of the processing of the application
16 is dependent upon other agencies and jurisdictions.
17 Q. So, it might take more than two years?
18 A. Well, what do you mean by might?
19 Q. It's possible that it would take --
20 A. Yes.
21 Q. -- more than two years?
22 A. It's possible.
23 Q. Okay. Now, as I understand former Mayor
24 Arakawa's position -- I was talking to him a couple days
25 ago -- he said that he thought that they were told
0047
1 originally that there might be 1800 applications, 1,800.
2 Do you have an estimate of how many people -- if they
3 found out that they could get a TVR permit by applying
4 through the current process, what's on the book now, do
5 you have any idea how many people might apply to do
6 that?
7 MS. LOVELL: I object to the form of the
8 question. First of all, I would appreciate it if you
9 would rephrase it and take out any hearsay from any
10 other witness, because I don't want this witness to have
11 to adopt the hearsay declaration.
12 MR. FOSBINDER: That's fine. That's fair.
13 MS. LOVELL: And secondly, any idea sounds
14 to me like you are calling for speculation.
15 MR. FOSBINDER: Well, calling for a rough
16 estimate. I will rephrase the question.
17 MS. LOVELL: Why don't you rephrase the
18 question.
19 BY MR. FOSBINDER:
20 Q. Okay. Based on everything that you've
21 learned about the history of this issue here and what
22 your staff has told you, if the word were to go out, you
23 will have your permit processed, the rules are the same
24 as they were, do you have any estimate of how many
25 people might apply for a permit?
0048
1 A. No, I don't.
2 Q. Okay. If 500 people applied for a permit,
3 do you have any idea -- do you have a rough estimate how
4 long it would take to process 500 permits?
5 A. The permits are so varied and the situations
6 are so different.
7 Q. Well, of course, I am looking for an
8 average.
9 MS. LOVELL: Well, maybe there is no
10 average.
11 BY MR. FOSBINDER:
12 Q. Well, maybe there isn't, but he can tell me
13 if there is an average.
14 A. I couldn't give you an estimate on an
15 average.
16 Q. Why don't you describe for me the process of
17 processing a permit application under the existing law
18 as you understand it?
19 A. For which application?
20 Q. A TVR in ag zone?
21 A. How large is the acreage?
22 Q. Over two.
23 A. Are they within the SMA?
24 Q. No, no SMA.
25 A. So, you see what I am saying --
0049
1 Q. I understand.
2 A. -- each application is individual.
3 Q. I understand that.
4 A. They are so different and so unique.
5 Q. Relatively simple one, no SMA, standard ag
6 zoning, nothing.
7 A. Well, what's the question again?
8 Q. What is the process for permitting it step
9 by step? Approximately how long does it take? You get
10 a permit application. What happens to it?
11 A. I think those are three questions. I will
12 answer what is the process.
13 Q. Okay.
14 A. And if you could ask me one question
15 individually, I would appreciate it.
16 Q. I will try.
17 A. The process is, generally speaking -- and if
18 I leave something out, it's just because I'm
19 abbreviating the conversation. But as I understand it,
20 the application comes in. It's reviewed for
21 completeness. It goes to the Planning staff. They --
22 Q. Okay. I am sorry. But for each step, can
23 you tell me approximately how long it takes? I have no
24 idea if it's a year or a day. So, anything you can tell
25 me to narrow that gap would help. So, that first step,
0050
1 how long does that take?
2 A. I'm not sure. The first step is done by
3 another Department.
4 Q. Which Department is that?
5 A. Public Works.
6 Q. Okay. So, the next step is?
7 A. They send it to the Planning Department.
8 Q. Okay.
9 A. The Planning Department reviews it, and
10 depending on the workload, that could take anywhere from
11 a few days to a few weeks. If there's any incomplete
12 information, they would ask for complete -- that
13 additional information. Then depending on the response
14 of the applicant, that could take days, that could take
15 months, that could take --
16 Q. Let's take an easy one.
17 A. Some of them have been waiting years.
18 Q. Okay. Let's go through this. Let's assume
19 at every venture that things are as good as they can be.
20 They didn't make any mistakes. What's the next step?
21 A. Then they send it out for agency review.
22 Q. Okay.
23 A. That can take anywhere from, depending on
24 the agency, weeks to months to get a response.
25 Q. Okay. I believe I've been told that
0051
1 something was sent to the State for review and it took
2 over a year. Have you had anything take over a year for
3 an agency review?
4 A. I'm not sure. That wouldn't surprise me.
5 Q. Okay. And what's the next step after agency
6 review?
7 A. Then they have to respond to the agency
8 reviews, and there's an analysis to see as to whether
9 the response to the agency reviews is adequate.
10 Q. Okay. And how long does that take?
11 A. It could take days. It could take months.
12 A lot is dependent on the applicant.
13 Q. Okay. Assuming it's relatively simple,
14 could it take a year?
15 MS. LOVELL: Well, wait a minute. Assuming
16 what is relatively simple?
17 BY MR. FOSBINDER:
18 Q. Whatever he regards as simple. Just the
19 simplest one he's ever seen, the least trouble.
20 MS. LOVELL: Probably the simplest one he's
21 ever seen wasn't in the ag district though.
22 BY MR. FOSBINDER:
23 Q. Well, no. In the ag district.
24 A. Are you talking about the simple application
25 or the simplest responding to agencies?
0052
1 Q. Let's say everything goes about as good as
2 it could.
3 A. In response to agencies, it would likely
4 take a month or two on an average.
5 Q. And a worst case scenario, the worst one you
6 have seen approximately?
7 A. TVRs or otherwise?
8 Q. TVR.
9 A. I haven't seen that many TVRs. I think if
10 you are asking if it's conceivable that it could take a
11 long time, yes.
12 Q. Okay. And the next step?
13 A. After all the agencies have been responded
14 to adequately, then they schedule it for hearing with
15 the Planning Commission.
16 Q. Okay. And how long does that take?
17 A. Forty-five days from the determination that
18 the information has all been responded to adequately by
19 the agencies.
20 Q. And how long would it take the Planning
21 Commission to review it?
22 A. It could be one day.
23 Q. What's the longest?
24 A. I don't know what the longest one is.
25 Q. Okay. What's the next step?
0053
1 A. Then they make the recommendation, depending
2 on the application, to the Council.
3 Q. And how long does that take?
4 A. To make the recommendation? They make the
5 recommendation in one day and forward it up to the
6 Council. Two weeks to four weeks it could.
7 Q. Okay. And the next step?
8 A. The Council schedules it for their review.
9 Q. Okay. And do they have to review it once or
10 more than once?
11 A. The Planning -- the Land Use Committee, I
12 believe, only has to review it once, but then they would
13 make a recommendation to the Council, I believe.
14 Q. And --
15 A. To the best of my knowledge.
16 Q. And after that, does the Council have to
17 vote on it once or twice?
18 A. I believe the full Council has to vote on it
19 twice, but I could be wrong.
20 Q. And what's the longest that you know of the
21 Council sitting on it and not voting on it?
22 MS. LOVELL: Wait. That's an argumentative
23 question and it assumes facts.
24 BY MR. FOSBINDER:
25 Q. Okay. What's the longest that you know that
0054
1 the Council has not voted on it, just kept it for
2 whatever reason?
3 A. I don't know.
4 Q. Isn't it true that some permits have been in
5 front of the Council for over two years without any
6 action?
7 A. I don't know that for a fact. That's what
8 I've heard.
9 Q. Okay. How many complaints, since you became
10 Planning Director, have you personally received
11 approximately, in writing, or by e-mail, or by telephone
12 regarding vacation rentals?
13 A. I couldn't estimate.
14 Q. Have you received any?
15 A. Yes.
16 Q. Okay. Have you received any complaints
17 regarding business use of residential property other
18 than vacation rentals?
19 A. I believe so.
20 Q. Have you received more of one than the other
21 or they seem about the same?
22 A. I believe, to the best of my knowledge, that
23 I have received more regarding vacation rentals.
24 Q. But you don't have any idea how many that is
25 or you can't give me an estimate?
0055
1 A. I don't want to hazard an estimate.
2 Q. Okay. The Mayor's Viewpoint says that --
3 let's see. Let me skip that.
4 What effort, if any, is the Planning
5 Department currently making to create more affordable
6 housing on Maui?
7 A. It's not the role of the Planning Department
8 to do that. There's a Department of Housing. We work
9 with developers and implement the code.
10 Q. Okay. If you would look at the pile of
11 paper I just gave you under -- let's see. Look at the
12 permitted uses, and then look at the top of it is
13 October 9th, 2002, John Min home-based business policy.
14 Do you have that?
15 MS. LOVELL: So, are you referring to a
16 two-page document?
17 BY MR. FOSBINDER:
18 Q. Yes.
19 A. October 9th.
20 Q. Yes.
21 MS. LOVELL: Do you have a question?
22 BY MR. FOSBINDER:
23 Q. Yeah. Would you agree with the first
24 paragraph, zoning ordinances often lag years behind new
25 uses and are therefore frequently outdated. Would you
0056
1 agree with that sentence?
2 A. No.
3 Q. Okay. And the first paragraph of the
4 second -- first sentence of the second paragraph is, in
5 our existing codes, home-based businesses are not
6 permitted within the County's residential apartment,
7 rural, or agricultural districts without first obtaining
8 a County special use permit and conditional use permit
9 or use variance. Would you agree that that's true?
10 A. I would have to do analysis to see whether I
11 agree with that statement or not.
12 Q. Okay. Has this not previously come up since
13 you became Planning Director?
14 A. Not really.
15 Q. Okay. Is the current -- have you signed a
16 new memo regarding home-based business policy?
17 A. Not that I'm aware of.
18 Q. Okay. So, is the home-based business policy
19 that was signed by Mr. Foley -- is that still in effect?
20 A. I believe it is.
21 Q. Okay. And do you support that policy?
22 A. I haven't analyzed that policy to state
23 whether I support it or not.
24 Q. Have you discussed vacation rentals directly
25 with Mayor Tavares?
0057
1 A. Yes.
2 Q. And did she at any point insist that you do
3 anything or not do anything with regard to vacation
4 rentals?
5 MS. LOVELL: Could you be a little more
6 specific?
7 THE WITNESS: I don't recall her insisting.
8 BY MR. FOSBINDER:
9 Q. Okay. And is this policy of shutting down
10 vacation rentals before they are -- first of all, would
11 you agree that the Department now has a policy of moving
12 to shut down vacation rentals even if they've applied
13 for a permit if it has not yet been processed?
14 A. I would say that is the law, not the policy.
15 Q. Well, the policy used to be not to do that,
16 right?
17 A. I don't understand the previous policy
18 fully. I can tell you right now, we are working under
19 the existing law.
20 Q. Okay. Are you enforcing with the same vigor
21 and energy the prohibition on home-based businesses,
22 which the document dated October 9th, 2002, refers to,
23 in our existing codes, home-based businesses are not
24 permitted within the County's residential, apartment,
25 rural, or agricultural districts.
0058
1 Are you enforcing that prohibition with
2 equal energy as the mandatory six-month minimum
3 residential lease?
4 A. Could you repeat the question?
5 THE REPORTER: "Question: Okay. Are you
6 enforcing with the same vigor and energy the prohibition
7 on home-based businesses, which the document dated
8 October 9th, 2002, refers to? In our existing codes,
9 home-based businesses are not permitted within the
10 County's residential, apartment, rural, or agricultural
11 districts.
12 "Are you enforcing that prohibition with
13 equal energy as the mandatory six-month minimum
14 residential lease?"
15 THE WITNESS: Could you break those
16 questions down, please.
17 BY MR. FOSBINDER:
18 Q. I think it's one question, but I will try.
19 Okay. I would ask you to read the second paragraph
20 below the word background on the October 9th, 2002,
21 document.
22 A. Okay.
23 Q. Okay. Is your Department, under your
24 leadership, enforcing the codes which do not permit,
25 within residential, apartment, rural, or agricultural
0059
1 districts, home-based businesses?
2 A. As far as I know, we are.
3 Q. And can you think of anything you have done
4 to make sure that that was being done?
5 A. I don't have the time to go and make sure
6 that every code that is on the books is being enforced.
7 I give general direction to my staff.
8 Q. Okay. So, am I correct in assuming that you
9 are making sure that your staff is enforcing the
10 requirement of a six-month minimum lease?
11 A. What would we be enforcing in regards to a
12 six-month minimum lease?
13 Q. No TVRs without special permits, without
14 the --
15 A. We are enforcing against un-permitted TVRs.
16 Q. And have you discussed with the Mayor the
17 issue of home-based businesses which don't have a
18 special or conditional use permit or use variance?
19 A. Not that I am aware of.
20 Q. How much time have you spent discussing
21 vacation rentals with the Mayor approximately?
22 A. A few hours.
23 Q. How much time have you spent talking with
24 the Mayor about businesses that aren't vacation rentals
25 in residential zones or ag zones if any?
0060
1 A. Could you repeat the question, please?
2 THE REPORTER: "Question: How much time
3 have you spent talking with the Mayor about businesses
4 that aren't vacation rentals in residential zones or ag
5 zones if any?"
6 THE WITNESS: I don't believe much time. I
7 won't say absolutely that we haven't.
8 BY MR. FOSBINDER:
9 Q. Is it possible you haven't spent any time?
10 MS. LOVELL: Calls for speculation.
11 THE WITNESS: I can't recall.
12 BY MR. FOSBINDER:
13 Q. You can't recall specifically ever
14 discussing that with her?
15 A. Which is that?
16 Q. Home-based businesses in residential or ag
17 zone.
18 A. I don't recall.
19 Q. It's my perception, frankly, that the
20 vacation rental industry is unusual in that virtually
21 all of the people involved, certainly over 95 percent,
22 are Anglo-Saxons, if you will, whites, and other
23 home-based businesses are much more spread across all of
24 the racial demographics here on Maui. Does that seem
25 true to you?
0061
1 A. I have no basis for that. I question your
2 basis for it.
3 Q. Okay. And you've never acknowledged to
4 anyone that that appeared to be the case?
5 A. I don't recall.
6 Q. Is it possible that you acknowledged that to
7 someone?
8 MS. LOVELL: If you have got something, why
9 don't you show it to him.
10 MR. FOSBINDER: I just asked the question.
11 MS. LOVELL: Well then, you are asking him
12 to speculate.
13 MR. FOSBINDER: No, if he knows.
14 MS. LOVELL: You say is it possible. When
15 you ask someone if something is possible, you are asking
16 for speculation.
17 BY MR. FOSBINDER:
18 Q. Well, there are some things that people know
19 they would never say, and there are some things people
20 aren't sure of. Are you sure that you never said that,
21 never acknowledged that?
22 MS. LOVELL: Never said what?
23 BY MR. FOSBINDER:
24 Q. That it appeared that vacation rentals were
25 unusual in that virtually all of the people involved
0062
1 appeared to be Anglo-Saxon, white, haole, whatever you
2 want to call them?
3 A. Are you asking me if I said what you just
4 said?
5 Q. I am asking if you have either said it or
6 acknowledged to anyone who said it that that seemed to
7 be true?
8 A. I don't recall.
9 Q. Okay. Is it a fair statement that your
10 initial position on vacation rentals was altered by
11 conversations with the Mayor?
12 A. No.
13 Q. So, the policy regarding vacation rentals
14 was your idea, the Mayor's, or both of yours, or some
15 other choice? Whose idea was it to stop?
16 MS. LOVELL: Wait, wait.
17 THE WITNESS: Which policy?
18 MS. LOVELL: I was going to say which of
19 those questions.
20 BY MR. FOSBINDER:
21 Q. John Min's document that he signed that
22 Mr. Dantes has also signed, you have seen that, I
23 assume, am I correct?
24 A. I have seen documents that Mr. Min and
25 Mr. Dantes have signed.
0063
1 Q. Okay. And that policy is no longer in
2 effect? Yes, that's true?
3 A. Which policy?
4 Q. Well, as I recall the document or
5 particularly the last one, they agreed -- it stated that
6 permits would be processed before enforcement action was
7 taken unless there was a specific complaint. Is that a
8 fair summary?
9 A. That's not accurate.
10 MS. LOVELL: I object. That's not a fair
11 summary.
12 THE WITNESS: That's not what it says.
13 BY MR. FOSBINDER:
14 Q. What does it say as you recall it?
15 A. It doesn't say that.
16 Q. Okay. What does it say?
17 A. Which document?
18 Q. The last one.
19 A. Which is the last one? Essentially, those
20 documents have changed, so I need to know which one you
21 are referring to.
22 MS. LOVELL: Do you need to call somebody?
23 THE WITNESS: I will just miss the flight.
24 BY MR. FOSBINDER:
25 Q. If you have a flight, when is it? We are
0064
1 almost done.
2 A. It leaves at 3:15, but it's a charter
3 flight, so I can get there by 3:15.
4 MS. LOVELL: What time is it?
5 MR. FOSBINDER: A quarter of. I don't want
6 to appear uncooperative if you have got more questions.
7 BY MR. FOSBINDER:
8 Q. Okay. I do have a question regarding you
9 filed a form with the County regarding your income and
10 your wife's income, and I don't have it in front of me.
11 My recollection was that you projected your wife's
12 income was going from 100,000 to 500,000. Do you recall
13 that?
14 A. Approximately. I recall it. I'm not sure
15 about the numbers.
16 Q. And your wife works in the real estate
17 business in some way?
18 A. That's correct.
19 Q. What does she do?
20 A. She sells full ownership condominiums for
21 Honua Kai.
22 Q. And did you -- is that document -- I am
23 sorry. Did your wife have that job before you became
24 Planning Director?
25 A. Yes.
0065
1 Q. Okay. And am I correct that her income back
2 in Colorado was approximately $100,000?
3 A. I think it was more than that depending on
4 the year. Some years were better. Real estate isn't
5 steady.
6 Q. Yeah, I was once a real estate broker. I
7 know that. We can agree on that. And why -- how come
8 her income came up so dramatically? People ask me, and
9 I am curious.
10 MS. LOVELL: Well, you know, I really
11 question the relevance of the questions about Jeff's
12 wife's income.
13 MR. FOSBINDER: It's a very unusual
14 situation to have a Planning Director's wife makes four
15 times as much as he does and be in the real estate
16 business at the same time.
17 MS. LOVELL: Well, possibly Director Hunt is
18 underpaid.
19 MR. FOSBINDER: That could be, and he can
20 lobby the Council with your assistance to remedy that
21 problem.
22 Q. Was there something unusual? Did she sell a
23 large piece of property? Was that it?
24 A. I don't mind answering.
25 MS. LOVELL: Go ahead.
0066
1 THE WITNESS: I believe the income from that
2 particular statement was based on a launch where they
3 save up the -- save is not the right word. They sell
4 all the property at one day.
5 BY MR. FOSBINDER:
6 Q. Okay. And she was entitled to a commission.
7 Frankly, I assumed there was some explanation along
8 those lines, but people ask me, and I have to make
9 inquiry. So, as you understand it, this was an unusual
10 situation, is that -- it's not an every year thing?
11 A. Unfortunately.
12 Q. Yeah. I had a suspicion it probably wasn't,
13 because, frankly, real estate is usually not that good,
14 as you know.
15 What if anything would be a negative
16 consequence to the County of Maui, as you understand it,
17 if the Court were to order that you process all of these
18 approximately 70 permits before you do an enforcement
19 action against the people who applied for the permits?
20 A. The complaints or concerns that we have
21 heard relate to impacts to neighbors, impacts to
22 neighborhoods, impacts to affordable housing prices,
23 impacts to housing rental pools, inconsistency with the
24 General Plan and Community Plans, concerns for no
25 inspections, fire, building permits.
0067
1 Concerns that have led to a proliferation,
2 and that there's an atmosphere of permissiveness which
3 invites further permissiveness.
4 Q. And have you any examples of permissiveness
5 inviting further permissiveness?
6 A. The testimony that we have heard is the
7 Arakawa non-enforcement policy led to a proliferation.
8 Q. Of vacation rentals?
9 A. Of vacation rentals.
10 Q. But back to the earlier issues, there is no
11 scientific evidence, if you will, nothing, no formal
12 study to show what the effect on low-income housing
13 would be for instance?
14 A. There's some statistics that indicate
15 there's a high percentage of rentals that are being
16 occupied by vacation rentals.
17 Q. But not necessarily affordable. Let's let
18 you go on the airplane. There is no reason to go
19 through this. We have been through it before. I don't
20 have any further questions.
21 MS. LOVELL: Okay.
22 (Adjourned, 2:48 p.m.)
23
24
25
0068
1 REPORTER'S CERTIFICATE
2 STATE OF HAWAII )
3 ) SS.
4 County OF MAUI )
5 I, KATHERINE EISMANN, CSR 439, Notary Public
in and for the State of Hawaii, do hereby
6 certify:
7 That the witness whose deposition is
contained herein appeared before me on the date and time
8 specified; that prior to being examined, the witness
was by me duly sworn;
9
That the deposition was taken down by me in
10 machine shorthand and was thereafter reduced to print
under my supervision by means of computer-assisted
11 transcription; that the foregoing represents, to my
best ability, a true and correct transcript of the
12 proceedings had in the foregoing matter;
13 That, if applicable, the witness was
notified through counsel, by mail, or by telephone that
14 the deposition was available for review, signature and
corrections, if any. If not signed, the reading and
15 signing of the deposition were waived or the witness
failed to appear;
16
That pursuant to HRCP 30(f)(1), the original
17 will be sealed and forwarded to the noticing counsel
for his retention.
18
I further certify that I am not an attorney
19 for any of the parties hereto, nor in any way
interested in the outcome of the cause named in the
20 caption.
21 Dated: ______________________
22
23 _______________________________
Katherine Eismann, CSR #439
24 Notary Public, State of Hawaii
My Commission expires 6/23/2010
25
0069
1 SIGNATURE PAGE
2
3 I, JEFFREY S. HUNT, certify that I have
4 read the foregoing transcript pages, and corrections,
5 if any, were noted by me. The same is now a true and
6 correct transcript of my testimony.
7
8
9 _____________________________
10 JEFFREY S. HUNT
11
12
13 Signed before me this _______ day
14
of ____________________, 2007.
15
16 ______________________________