Mayor Tavares MVRA 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 JSM/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 MAYOR CHARMAINE TAVARES
14 2:02 p.m., November 28, 2007
15
16 Taken on behalf of the Plaintiff, at the Mayor's Lounge,
17 County of Maui, 200 High Street, Wailuku, Maui, Hawaii.
18
19
20
21
22
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
24
25
0003
1 EXAMINATION INDEX
2 Examination by: Page
3 Mr. Fosbinder 4
4
5
6 EXHIBIT INDEX
7 Exhibit Number Description Page
8 (None marked.)
9
10
11

25
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 28,
11 2007. The time is 2:02 p.m. This deposition is taking
12 place at the Mayor's Lounge, County of Maui, 200 High
13 Street, Wailuku, Maui, Hawaii.
14 In attendance are: Mr. Fosbinder, Mr. David
15 Dantes, Ms. Lani Stout, Ms. Lovell, and Ms. Johnston
16 The deponent is:
17 MAYOR CHARMAINE TAVARES
18 * * * * *
19 The deponent, having been sworn to tell the
20 truth, the whole truth, and nothing but the truth, was
21 examined and testified as follows:
22 EXAMINATION
23 BY MR. FOSBINDER:
24 Q. It seems silly, but would you state your
25 name for the record?
0005
1 A. Charmaine Tavares, C-H-A-R-M-A-I-N-E
2 T-A-V-A-R-E-S.
3 Q. When did you -- let me say a few things
4 first. We'd ask that you try to avoid saying uh-huh or
5 huh-uh, because the court reporter --
6 A. Uh-huh.
7 Q. -- has trouble with that. I'll try not to
8 talk over you, and you will try not to talk over me. If
9 I ask you to make an estimate --
10 A. Uh-huh.
11 Q. -- it seems obvious, and I assume you know
12 this, but I will explain anyway. The difference between
13 an estimate and guessing is if you are guessing, you
14 really have no idea at all. If you are estimating, you
15 may only know that it's less than a million, but that
16 might be helpful to me, because I might not know that it
17 was less than a hundred million.
18 A. Right, right.
19 Q. So, if you have any information that helps
20 to narrow the number to something, that's more helpful
21 than nothing. So, I would ask you to answer those
22 questions if you can. If you just have no information
23 whatsoever, and it's a guess, I don't want to hear that.
24 Just say I can't do anything but guess, and I won't ask
25 about it anymore.
0006
1 A. That's fine.
2 Q. Okay. Approximately when did you decide
3 that it would be desirable to shut down all un-permitted
4 vacation rentals on Maui?
5 MS. LOVELL: Object to the form of the
6 question. Assumes facts. You may answer.
7 THE WITNESS: It's not up to me to decide,
8 actually.
9 BY MR. FOSBINDER:
10 Q. Okay. Who is it up to to decide?
11 A. The law.
12 Q. Okay. So, is it your position that the law
13 mandates that un-permitted vacation rentals be the
14 subject of an enforcement action by the County of Maui?
15 A. If those un-permitted vacation rentals are
16 outside the zones where vacation rentals are permitted.
17 Q. So, for instance, recently, Mr. Dantes'
18 application was approved by the County Land Use
19 Committee. Are you aware of that?
20 A. Yes, I am.
21 Q. And that's in an ag zone. Is that within or
22 outside the permitted area?
23 A. That is outside the permitted areas.
24 Q. Okay. By that, do you mean that it's
25 outside the permitted areas if you don't have a permit,
0007
1 a conditional permit or a special permit, or do you mean
2 that no matter what, there should not be, as you
3 understand the law, any vacation rentals in that area?
4 MS. LOVELL: That question asks for a legal
5 conclusion, but you may answer if you can.
6 THE WITNESS: The permitted areas are resort
7 areas, and specifically, hotel and other zoned areas.
8 Agriculturally zoned areas are not outright permitted,
9 so there is a process to go through to get a permit
10 discussed and acted upon by the Council and the Mayor.
11 BY MR. FOSBINDER:
12 Q. Okay. So, it's your understanding that it
13 is possible to go through a process, and if you are on
14 ag land, you may be able to get a vacation rental
15 permit?
16 A. You may.
17 Q. Okay. When you say that the law requires
18 that enforcement be done, does the law, as you
19 understand it, require that every single law regarding
20 zoning be enforced by the County all the time?
21 MS. LOVELL: Object to the form of the
22 question as it misstates former testimony and also it
23 calls for a legal conclusion, but you may answer, if you
24 can.
25 THE WITNESS: Well, I don't think I can,
0008
1 because it's very general.
2 BY MR. FOSBINDER:
3 Q. I'm going to hand out the piles. Somewhere
4 in there, and I'm afraid that I can't tell you
5 exactly -- let me try to figure out roughly where it is.
6 Okay. If you start at the back, one, two staples, three
7 staples.
8 MS. STOUT: The October 8th letter?
9 MR. FOSBINDER: Yes, October 9th, 2002.
10 MS. STOUT: October 9th letter regarding
11 home-based business policy.
12 MR. FOSBINDER: Right.
13 THE WITNESS: Is this in chronological
14 order?
15 MS. LOVELL: No, I don't think so. I mean,
16 I have no idea.
17 BY MR. FOSBINDER:
18 Q. It's not. Did you find it?
19 A. Yes.
20 Q. Okay. And then if you look at the document
21 just before that, too -- sorry.
22 MS. STOUT: April 28th, it should be just
23 underneath that particular document.
24 MS. JOHNSTON: April 28th, 2003.
25
0009
1 BY MR. FOSBINDER:
2 Q. Correct, yes.
3 A. Which one are you looking at first?
4 Q. Well, I'd like you to look at both of them,
5 but I don't care which one you look at first, but look
6 at both of them.
7 A. Do you have a question?
8 Q. Yes. If you look in particular at the
9 April 28th, 2003, document, my understanding, after
10 deposing your Planning Director, Mr. Hunt, is that this
11 memo is still in effect. Do you know whether that's
12 true or not?
13 MS. LOVELL: I object to the preamble and
14 the assumptions built into it, but you may answer.
15 THE WITNESS: Well, you will notice that
16 based on the date of the transmittal or communication,
17 it's from a former Planning Director and is a former
18 administration. That is not my administration. So,
19 unless it's an opinion by Corporation Counsel, they are
20 all subject to interpretation.
21 BY MR. FOSBINDER:
22 Q. Okay. But my question was, Mr. Hunt said
23 that this was still in effect. Do you disagree with
24 that?
25 MS. LOVELL: I disagree with the form of the
0010
1 question. It assumes facts, but you may answer.
2 THE WITNESS: It's not my place to disagree.
3 If I were going to disagree or agree, I would first want
4 to see if it's based in law, and that would take an
5 opinion by Corporation Counsel.
6 BY MR. FOSBINDER:
7 Q. Do you know what the County's policy is with
8 regard to home-based businesses at this time?
9 A. Home-based businesses, I'm not really sure,
10 but there are certain home-based businesses that require
11 permits, either by the State or the County, such as
12 daycare centers, adult daycare centers, and there may be
13 others.
14 Q. Okay. Well, if you look at this, if you
15 look at the third paragraph, it says -- I'm sorry. I
16 guess really the second paragraph.
17 It states, "In our existing codes,
18 home-based businesses are not permitted within the
19 County's residential, apartment, rural or agricultural
20 districts without first obtaining a County special use
21 permit, conditional use permit, or use variance. As
22 such, our existing ordinances greatly overregulate
23 home-based businesses at a considerable cost to our
24 County's economy."
25 Are you familiar with that section of this?
0011
1 A. Now, I am.
2 Q. In your opinion, is that true or not true,
3 if you have an opinion?
4 A. I think this is Mike Foley's opinion about
5 overregulation of home-based businesses. And I'll go
6 back to what I said earlier, that part of our problem
7 exists sometimes when people go ahead and try to
8 interpret laws that are not our attorneys.
9 Q. Okay. Well, Jane Lovell was there. Your
10 Planning Director said this was currently the policy of
11 the County of Maui. Are you saying it shouldn't be?
12 A. No, I'm not saying that.
13 MS. LOVELL: I object to the form of the
14 question, it's argumentative, and it misstates prior
15 testimony. Now you may answer.
16 MR. FOSBINDER: Misstates prior testimony in
17 what way?
18 MS. LOVELL: Of Hunt.
19 MR. FOSBINDER: He said this was still the
20 policy.
21 MS. LOVELL: The record will reflect what he
22 said.
23 MR. FOSBINDER: And that's what it said.
24 MS. LOVELL: Well, that's fine. When we see
25 the record, we can see what it said. We don't have to
0012
1 take your word for it.
2 BY MR. FOSBINDER:
3 Q. If he said that, is he in error as far as
4 you are concerned?
5 A. No, I really have no comment about that. We
6 have not delved into this particular interpretation or
7 section.
8 Q. Okay. Why is it that you haven't delved
9 into this particular interpretation, as you refer to it,
10 but you have delved into vacation rentals?
11 A. Because vacation rentals are specifically
12 outlined in some of the laws, such as the Community Plan
13 and short-term occupation or short-term residents --
14 residency is mentioned specifically in our codes as is
15 daycare centers and other ones.
16 Q. You are saying that -- am I to understand
17 that your belief is that home-based businesses are
18 permitted within the County's residential, apartment,
19 rural, or agricultural districts without first obtaining
20 a County special use permit?
21 A. I didn't say that.
22 MS. LOVELL: That's not what she said.
23 THE WITNESS: I didn't say that.
24 BY MR. FOSBINDER:
25 Q. I didn't say it was correct, I asked. I was
0013
1 not correct?
2 A. No.
3 Q. So, is it your understanding that they do
4 require the conditional or use variance or special use
5 permit?
6 A. It depends on what the activity is, and
7 there are different provisions in the law for different
8 types of activities.
9 Q. Are you reading this in a way that to you it
10 doesn't mean that the Planning Director, in this
11 document, is acknowledging that this policy statement,
12 this memo regarding home-based business policy
13 contradicts the statute?
14 A. No, I'm not saying that.
15 MS. LOVELL: What? Wait, wait, wait. Just
16 a moment, Mayor. That question is completely
17 unintelligible.
18 BY MR. FOSBINDER:
19 Q. Well, she intelliged (sic) it.
20 A. Well, my intelligence of it is that I said
21 once before that Mr. Foley is expressing his opinion and
22 his interpretation of the laws, which he's not really
23 qualified to do, and I would depend on Corporation
24 Counsel opinions and their interpretation of the law as
25 well as the Court's opinion's rather than -- you know,
0014
1 someone can have a personal opinion about anything, but
2 it's what is it based on.
3 Q. Well, if you look at the other document
4 dated October 9th, 2002, from John Min -- have you read
5 this document previously?
6 A. I might have a long time ago.
7 Q. Okay.
8 A. When I was on Council.
9 Q. Would you read it now?
10 A. 2002 was five years ago.
11 Q. I know. Would you like to read it before I
12 ask you questions about it?
13 A. Well, I don't see that -- a copy was sent to
14 Deputy Corporation Counsel, but there is no other
15 indication that Corporation Counsel was actually asked
16 for an opinion regarding home-based businesses.
17 Q. Okay. Would you like to look -- let's step
18 back to the April 28th, 2003, document, if you want to
19 make that point, and I'd have you look at the last page
20 of it.
21 A. Yes, okay. And a copy was given to Brian
22 Moto.
23 Q. That's correct.
24 A. Yes.
25 Q. And is Brian Moto your choice for --
0015
1 A. Corporation Counsel.
2 Q. -- Corp Counsel?
3 A. Yes, he is.
4 Q. So, you understand that he apparently
5 approved this?
6 A. No, he didn't approve it. He got a copy of
7 it. XC that means a copy.
8 Q. So, as you understand it, perhaps Mr. Foley
9 got an opinion from Brian Moto that this was illegal but
10 went ahead and did it anyway; is that what you think may
11 have happened?
12 A. No.
13 MS. LOVELL: No, that's a completely
14 argumentative question, and it's completely improper.
15 Please rephrase it.
16 BY MR. FOSBINDER:
17 Q. You were on the County Council. You have
18 been the Mayor. Is it your understanding that when the
19 County Corporation Counsel gets a document such as this
20 to review, that they give the person who sent it to
21 them, in this case the Planning Director, their opinion
22 as to whether or not it's legal or illegal?
23 A. Do you have a document from Corporation
24 Counsel that says it's legal?
25 Q. I'm asking you what the customary procedure
0016
1 as you understand it has been?
2 A. As I understand it, and I'm not in
3 Corporation Counsel, that many documents, hundreds and
4 thousands of documents get copied to the Corporation
5 Counsel, and it's a matter of courtesy. And when and if
6 this comes up, then they can look at some of these
7 things and do whatever they need to do based on what's
8 requested of them either by me or the County Council.
9 Q. Okay. Has anyone come to you prior to my
10 bringing this document up to you and talked to you about
11 this document since you became Mayor?
12 A. No.
13 Q. Okay. Is it -- do we agree that both of
14 these documents appear to be documents which are from
15 the Planning Director, which have the effect of stating
16 that certain things which are illegal will not be
17 enforced, if you will, against as long as the policy is
18 in effect?
19 MS. LOVELL: Well, that's a completely
20 overbroad question. You have got two multi-paged memos.
21 MR. FOSBINDER: I asked her if she wanted to
22 read it, and I'm perfectly happy to have her read it.
23 MS. LOVELL: I think you need to break that
24 down. Each memo has numerous things in it. You are
25 asking for --
0017
1 MR. FOSBINDER: Is that an objection?
2 MS. LOVELL: Yes.
3 MR. FOSBINDER: It doesn't sound like one.
4 MS. LOVELL: Your question is compound and
5 overbroad.
6 BY MR. FOSBINDER:
7 Q. Can you answer the question?
8 A. No.
9 Q. Okay. Have you read these?
10 A. As I stated earlier, I read them at some
11 point in time as a Council member.
12 Q. Would you read them now, please?
13 A. They basically state the same thing --
14 Q. We agree with that.
15 A. -- in the enumeration of the home-based
16 business being considered incidental. The points are, I
17 believe, the same in both memos.
18 Q. And doesn't the statement, "As such, our
19 existing ordinances greatly overregulate the home-based
20 businesses at a considerable cost to our County's
21 economy," combined with the rest of the letter, make it
22 clear that they are making a policy that for certain
23 home-based businesses, which are described in greater
24 detail on the second page, that they will not be
25 enforcing the statute even though they know the statute
0018
1 appears to apply?
2 MS. LOVELL: That completely misstates both
3 documents. You may answer though.
4 THE WITNESS: As I said before, that second
5 paragraph represents Mr. Foley's opinion.
6 BY MR. FOSBINDER:
7 Q. Well, Mr. Min's apparently, too.
8 A. And Mr. Min's.
9 Q. And apparently the Planning Director, but --
10 since he told me this was the policy.
11 A. They are both the Planning Directors at
12 their time.
13 Q. So, is it your testimony that if a Planning
14 Director wishes to have a written policy not to enforce
15 a particular County regulation or law, that that is
16 improper and that they cannot do that lawfully?
17 A. Yeah, well --
18 MS. LOVELL: That calls for a legal
19 conclusion.
20 BY MR. FOSBINDER:
21 Q. I want to know what her understanding is. I
22 am trying to understand how the County government works.
23 I want to know what she understands. I don't know
24 whether it's true or not. I just want to know what
25 principle she's working on. Can they do that or not do
0019
1 that?
2 A. I think they cannot do that.
3 Q. Okay.
4 A. Not as alone. They have to have a basis in
5 law and with -- like I said, with the opinion or
6 interpretation based upon Corporation Counsel's opinions
7 on what it is. They can call anything a policy, but
8 if -- it's not up to the Planning Director to say he's
9 going to have this policy that's contrary to other parts
10 of our laws.
11 Q. I mean, as I understand it, the Planning
12 Directors apparently felt that they had limited
13 resources and some things were worth enforcing and some
14 things weren't. Is it your perception that the County
15 Planning Director must attempt to enforce every zoning
16 ordinance equally with equal effort?
17 MS. LOVELL: Before you answer, Mayor, I
18 object to the form of the question and particularly to
19 the preamble. But you may -- as assuming facts, and it
20 makes it a compound question. But you may answer.
21 THE WITNESS: It is similar to expecting the
22 police department to tag every speeder on the highway.
23 BY MR. FOSBINDER:
24 Q. I agree.
25 A. So that when it comes down to enforcement,
0020
1 given your personnel, there are certain ones that will
2 receive priority over others as far as enforcement of
3 like zoning infractions.
4 Q. Okay. And assuming that your Planning
5 Director said this was the current policy, can you
6 explain to me why it is that no effort is being made to
7 enforce the laws regarding home-based businesses other
8 than home-based businesses that involve vacation
9 rentals?
10 MS. LOVELL: I object to the form of the
11 question. It assumes facts and it misstates the
12 testimony of Mr. Hunt. You may answer.
13 THE WITNESS: What was the question?
14 MR. FOSBINDER: Can you read it back?
15 THE REPORTER: "Question: Okay. And
16 assuming that your Planning Director said this was the
17 current policy, can you explain to me why it is that no
18 effort is being made to enforce the laws regarding
19 home-based businesses other than home-based businesses
20 that involve vacation rentals?"
21 THE WITNESS: When you said this is the
22 policy, which policy was he referring to?
23 MR. FOSBINDER: The most recent one.
24 MS. LOVELL: Well, that again misstates his
25 testimony.
0021
1 MR. FOSBINDER: 2003, Foley.
2 MS. LOVELL: Mr. Hunt testified that it was
3 an interpretation.
4 MR. FOSBINDER: He said it was the policy.
5 MS. LOVELL: Well, the transcript will say
6 what it says, but --
7 BY MR. FOSBINDER:
8 Q. Can you answer the question?
9 A. Not until I see Mr. -- actually,
10 Mr. Foley's -- I mean, what Mr. Hunt said, because if
11 he's saying the policy as described by Mr. Foley's memo
12 and similarly Mr. Min's memo, I think the part they were
13 talking about is part two, the interpretation and
14 enforcement, which lists what's considered -- what
15 wouldn't be considered a home occupation.
16 Q. I'm sorry. Are you stating that you
17 understand this document to be saying that under the
18 existing statutes, that if a business meets
19 characteristics one through 10, that, as a matter of
20 law, they don't require a permit or a variance?
21 MS. LOVELL: That's not what she said.
22 THE WITNESS: No.
23 MR. FOSBINDER: I asked. There is no reason
24 for you to tell me that's not what she said. I'm asking
25 her if that's what she said.
0022
1 MS. LOVELL: Well, my objection is you
2 misstated testimony.
3 MR. FOSBINDER: I am asking her. I am not
4 misstating anything. I am asking her if that's what she
5 meant. You are just harassing. That doesn't make any
6 sense to say that's not what she said if I am asking her
7 if that's what she meant.
8 MS. LOVELL: It's my duty to make objections
9 to questions that are objectionable as to form and
10 that's what I am doing.
11 THE WITNESS: I would want, first of all, to
12 check in our codes if this part two interpretation and
13 enforcement is actually stated as part of our County
14 Code. It doesn't have a reference to it, but it must
15 have come from somewhere.
16 BY MR. FOSBINDER:
17 Q. Yeah, John Min.
18 A. Because the first one has eight or seven.
19 John Min's one has eight, and this one has 10. So, I
20 would want the opportunity to check in our County Code
21 to see if this is stated in that code.
22 Q. Okay. We will come back to that later
23 presumably then. Is there any reason that you can think
24 of that all of the other home-based businesses, which
25 would be covered by these policy memos, would not be
0023
1 having any enforcement action at all, if they are not
2 legal, if they are clearly -- if you read the law, the
3 understanding, apparently, of both Planning Directors
4 were they weren't legal, but they were going to allow
5 it. Why is it that they are not the subject of any
6 apparent enforcement action at the moment at all?
7 MS. LOVELL: I object to the form of the
8 question as assuming facts, and it's also a compound.
9 You may answer.
10 THE WITNESS: You are assuming that there
11 has been no enforcement of other than illegal transient
12 vacation rentals.
13 BY MR. FOSBINDER:
14 Q. I'm assuming it's not any sort of
15 significant effort at the moment. Is it your
16 understanding it is or do you just not know?
17 A. I do not know specific cases, but I can
18 recollect some of the -- it didn't come in Council, but
19 some of the home occupation businesses were shut down
20 other than transient vacation rentals.
21 Q. Is it your -- have you discussed enforcement
22 of laws regarding vacation rentals directly with
23 Mr. Hunt?
24 A. Yes.
25 Q. Okay. And approximately how much time have
0024
1 you spent, since you became Mayor, discussing that issue
2 with Mr. Hunt?
3 A. Approximately? I would say at least a
4 couple hours a month.
5 Q. Okay. And have you made any suggestions to
6 Mr. Hunt as to what should be done?
7 A. We have discussed various processes.
8 Q. Have you made any suggestions to Mr. Hunt as
9 to what should be done?
10 A. I don't know if I made the suggestions, but
11 what he is doing now is a joint -- he's not on his own,
12 in other words. What he has as his -- laid out his time
13 lines and all that was discussed.
14 Q. Have you, to the best of your recollection,
15 made any suggestions to Mr. Hunt as to how or in what
16 manner or what time vacation rental laws should be
17 enforced?
18 A. I can't speak specifically to any specific
19 recommendation. They are all part of a discussion that
20 involves Mr. Hunt and others. So, the answer is no, if
21 you are saying did I make a specific recommendation, and
22 that's why we have this enforcement. It was not done
23 unilaterally.
24 Q. Did you make a general suggestion to
25 Mr. Hunt?
0025
1 A. Yeah, the general suggestion was to outline
2 what was going to happen with the applications, what was
3 going to happen with time lines for closing -- closing
4 down illegal operations. They were given deadlines.
5 The calendars were set. Yes, those all happened.
6 Q. And did you make suggestions as to what the
7 calendar should be?
8 A. Well, you're assuming that because I'm Mayor
9 I do a unilateral, "it shall be this."
10 Q. I am asking.
11 A. I don't do that. That's not how I operate.
12 I operate in an atmosphere, an environment where
13 everyone has an opportunity to discuss and have input.
14 And through people's input, we come up with what we
15 think is the best solution, or process, or whatever it
16 may be. And this applies across all departments, not
17 just the Planning Department. So, I don't -- you know,
18 I am not the pound-your-fist-on-the-table kind of
19 person.
20 Q. Does Mr. Hunt serve at your pleasure?
21 A. Yes.
22 Q. Does Mr. Hunt understand that you can fire
23 him at any time for any reason?
24 A. I'm sure he does. Even for no reason.
25 Q. Did Mr. Hunt come to you and propose
0026
1 changing the policy regarding the enforcement of the TVR
2 regulations, laws, or did you bring the matter up to him
3 or something else?
4 A. Let's see. I took -- we took office on
5 January 2nd. And by that time, the former bill for an
6 ordinance had gone to the Planning Commissions and come
7 back to the Council, and the new Council was acting on
8 it.
9 When the new Council filed that, then we met
10 to determine what it is we would do, because I
11 believe -- and I don't have the minutes in front of me,
12 but I believe that the conversation or discussion was
13 that now that this bill has failed, we don't want to see
14 any other moratoriums, or in abeyance, or that kind of
15 stuff. The County Council's message to the
16 administration was to enforce the laws.
17 Q. Okay. First of all, you say there was a
18 message from the County Council. How did you receive
19 that message?
20 A. Through the minutes of the meeting.
21 Q. And the County --
22 A. In their discussion, in their discussion on
23 the County Council.
24 Q. And so the County Council didn't vote to
25 send you a message?
0027
1 A. No, no.
2 Q. You are interpreting what the County Council
3 members said that was recorded during the meeting?
4 A. I'm interpreting that they said enforce the
5 law. Yes, I am interpreting that.
6 Q. And did Mr. Hunt tell you that he thought
7 that had happened, or did you tell him you thought that
8 had happened?
9 A. I don't remember.
10 Q. Okay. Did you or anyone at that time
11 suggest that it might be desirable to make some sort of
12 analysis of what the economic impact of shutting down
13 all of the vacation rentals might be?
14 A. If there was a suggestion to do that? No.
15 Q. Okay. Do you think that is an issue worth
16 considering what the economic impact may be?
17 A. No. You want the economic impact of an
18 illegal operation? Does that mean that every illegal
19 operation in the country should have an economic impact
20 study done before it's shut down?
21 Q. Well, perhaps everyone that was encouraged
22 by every branch of the County for a decade to go ahead
23 and do it should.
24 A. Not based in law though.
25 Q. You have indicated that you have heard from
0028
1 many members of our island community who were dismayed
2 about losing a sense of security in their rural
3 neighborhoods.
4 A. Uh-huh.
5 Q. How many people have contacted you to
6 express a lack of feeling of security in their rural
7 neighborhoods?
8 A. That used the exact word security?
9 Q. Well, we will start with that.
10 A. Okay. Who might have used the exact word of
11 security, I think two.
12 Q. Okay. And do you remember who they are?
13 Are they people you know personally before they
14 expressed their concern?
15 A. No, no.
16 Q. Okay. How many people have communicated a
17 concern about the economic impact of closing down all
18 the vacation rentals?
19 A. There's been a number of them.
20 Q. Hundreds?
21 A. No. I would say a few dozen.
22 Q. Okay. And the people who expressed concern
23 about their sense of security, what was that based on as
24 you understood it? Were they concerned about crime
25 or --
0029
1 A. No.
2 Q. What were they concerned about?
3 A. The concern was about -- from one of them
4 was that they were not feeling good about the traffic
5 that was in their neighborhood, and this one particular
6 person lived on a cul-de-sac where the kids, as local
7 kids do, play in the street.
8 She was afraid for their safety and did not
9 allow them to play on the street anymore. The lack of,
10 I guess, the feeling that they didn't know who the
11 people are, these strangers that show up every so many
12 days was a concern.
13 Q. That's one, and what's the other?
14 A. The other was the feeling that they didn't
15 know their neighbors. They lost their sense of a little
16 neighborhood, like so many of us do on our -- in our
17 communities. And you know, several people have said
18 that, not just one or two.
19 But when you ask specifically about
20 security, I would have to point to the security part
21 being safety of the children as being their concern. I
22 don't believe anyone talked about crime.
23 Q. Okay. And you understand that the Planning
24 Director can initiate enforcement action against any
25 particular vacation rental if there's a complaint,
0030
1 right?
2 A. Yes.
3 Q. And had these people complained to the
4 Planning Director?
5 A. No.
6 Q. And why not, if you know?
7 A. Because they are local. Local people
8 usually don't do that.
9 Q. They complain to you?
10 A. They complain to people they know or they
11 feel that will listen.
12 Q. Were you someone they knew?
13 A. They knew me in my position as Council
14 Member and then as Mayor.
15 Q. Presumably, they would know the Planning
16 Director in the same way?
17 A. No, the Planning Director is new.
18 Q. Ah, okay. So, am I correct that no one has
19 expressed to you a concern that tourists who stay in
20 vacation rentals are more likely to commit crimes
21 than --
22 A. No, no one has expressed that to me
23 personally.
24 Q. Okay. And do we agree that that probably
25 has something to do with the demographics, the average
0031
1 age of vacation rental people, or do you have any
2 opinion as to what that --
3 A. Well, I don't think that's what tourists
4 come here for, to rip off their neighbors.
5 Q. Well, we will agree on that. That's fine.
6 It's not a headline we see very often, is it?
7 A. No.
8 Q. So, the next issue is whether or not
9 vacation rentals have an impact on affordable housing.
10 Is it your position that vacation rental businesses had
11 a negative impact on the availability of affordable
12 housing? And I am limiting this question to within the
13 Paia-Haiku Community Plan area.
14 A. That's something that has not been studied
15 in particular, because, as you well know, some of those
16 vacation rentals, if they were on the open market for
17 long-term rental, would be way out of the reach for
18 affordable. So, we don't know, and we haven't studied
19 that part.
20 Q. Do you have an opinion, in the absence of a
21 study, on whether it may have affected the affordability
22 issue?
23 A. I don't have an opinion.
24 Q. Okay. I guess the core question that most
25 of the people I have talked to would like to know is why
0032
1 not wait to shut down people until their permits are
2 processed? Do we -- I will start with a separate
3 question. Let me lay a foundation.
4 Do we agree that there are approximately 70
5 pending permits in front of the Planning Department for
6 TVRs?
7 A. That's the number I have heard from the
8 Planning Department.
9 Q. And why not wait until they are processed to
10 shut them down?
11 A. They have been on notice since, I believe,
12 even last year or earlier, earlier in the year. Yeah,
13 not last year. I am sorry. I thought we were in 2008
14 already. This year, after the bill failed.
15 Q. Close.
16 A. A few days off.
17 Q. Once the Christmas shopping --
18 A. When the first bill failed or that bill
19 failed, then that's when the notices kind of went out to
20 everyone. So that would have, in effect, given them
21 almost a year to make accommodations for their
22 reservations they had already incurred for beyond
23 whatever period of time, and they were given, I believe,
24 January 1st.
25 Q. Have I forgotten something?
0033
1 A. Next year.
2 Q. I thought the change in enforcement policy
3 wasn't until the middle of February, and that it was
4 kept secret for two months. Is that not your
5 understanding?
6 A. No, no. When the bill failed? The bill
7 failed, I think, in February.
8 Q. But the failure of the bill didn't
9 necessarily mean that the enforcement policy would
10 change?
11 A. No, but if the bill had passed, the
12 enforcement policy would have changed because of the way
13 the bill was crafted, and that they would then be legal,
14 the ones in ag district.
15 Q. But they still had to apply for permits,
16 didn't they?
17 A. I don't recall the details of the bill. I
18 am sorry.
19 Q. Well, if it did require that they get a
20 permit, it was just easier to get?
21 A. Yes, yes.
22 Q. So, they still would have had to get a
23 permit?
24 A. Yes.
25 Q. So, why not wait -- some of these people --
0034
1 do we agree that some of these people have applied as
2 much as more than four years ago for permits?
3 A. Yes.
4 Q. And that the permits were held up in the
5 County Council for some cases for years?
6 A. There are many things held up in the County
7 Council for years. I have been there.
8 Q. Happy to agree with you about that.
9 A. Ten years I was there.
10 Q. Everything is held up or close to it. No,
11 but do you agree that many of these permits were stuck,
12 if you will, in the County Council for over a year?
13 A. I would say they were on the Council agendas
14 for over a year.
15 Q. Without action?
16 A. Without action for some of them. Some of
17 them did receive action. That's shown in your -- one of
18 your papers over here.
19 Q. Correct.
20 A. So, there was not an outright we are not
21 going to process applications.
22 Q. But there was, in fact, a failure to process
23 most of those 70 applications for more than a year?
24 A. Well, we don't have deadlines in Council.
25 Q. I understand that. Is it your understanding
0035
1 that when the Council was voting on these permits, that
2 they were acting legislatively or administratively?
3 A. Legislatively.
4 MS. LOVELL: That calls for a legal
5 conclusion, but you may answer.
6 THE WITNESS: Legislatively of course. What
7 else would it be? Administratively?
8 BY MR. FOSBINDER:
9 Q. In light of the Laki Kaahumanu decision --
10 MS. LOVELL: Well, now you are clearly
11 asking for a legal conclusion.
12 BY MR. FOSBINDER:
13 Q. Not just responding but asking a question.
14 A. That's their role. They are the legislative
15 branch. They make the laws. Through the laws, the
16 policies of the County are established. Then it is up
17 to the administration to carry out those policies.
18 Q. Is it your belief that every single thing
19 that the County Council does that it says is passing a
20 law is legislative action and not administrative?
21 MS. LOVELL: Again, that calls for a legal
22 conclusion, and it's overbroad.
23 MR. FOSBINDER: I am asking her what her
24 understanding is.
25 MS. LOVELL: Your question is entirely
0036
1 overbroad, but you may answer.
2 THE WITNESS: I don't understand what you
3 are getting at.
4 BY MR. FOSBINDER:
5 Q. Well, there was --
6 A. How can it be administrative?
7 Q. You are not aware of the decision the Ninth
8 Circuit made regarding Sandy Barker?
9 MS. LOVELL: Mr. Fosbinder, the Mayor is not
10 here to provide legal interpretations of Ninth Circuit
11 opinions.
12 MR. FOSBINDER: I don't want her to
13 interpret anything. I just want to know what she's
14 aware of and what she isn't. I am trying to find out
15 how this decision got made.
16 Q. Are you aware -- do you know what I'm
17 talking about, Sandy Barker?
18 A. I know about the case. I was the Park's
19 Director at the time.
20 Q. Didn't the Ninth Circuit rule that sometimes
21 when the legislative branch of the County Council votes
22 on an ordinance, that actually they are acting
23 administratively?
24 A. No.
25 MS. LOVELL: When you ask the Mayor to
0037
1 respond to what the Ninth Circuit ruled, you are asking
2 for a legal conclusion.
3 BY MR. FOSBINDER:
4 Q. Well, isn't that your understanding that
5 that's what happened?
6 A. No, I don't know what happened after that.
7 Q. Okay. That's fine. So, getting back to the
8 core issue, why not wait until these people who applied
9 for permits in good faith years ago had their permits
10 processed? What happened that necessitated that
11 enforcement action begin before they get their permit or
12 don't get their permit?
13 A. Well, normally, people get their permits or
14 whatever's required before they even start something. I
15 didn't drive a car until I had a permit.
16 Q. I agree with all of that. However, do we
17 not agree that the County of Maui, in terms of both
18 previous Mayors, Mr. Arakawa, and Mr. Apana, and the
19 Planning Department encouraged people to go into the
20 vacation rental business?
21 A. I can't -- I can't comment on that.
22 Q. You don't have any recollection of anything
23 happening that was looking like encouraging people to go
24 into the vacation rental business?
25 A. No, I do not.
0038
1 Q. Okay. I mean, you are aware, of course,
2 that Mr. Min signed the document with Mr. Dantes that
3 said that no one would be prosecuted until their permit
4 was reviewed?
5 MS. LOVELL: Well, that's an incomplete
6 description --
7 THE WITNESS: Is that here?
8 MS. LOVELL: -- of the document.
9 MS. STOUT: It's toward the bottom.
10 BY MR. FOSBINDER:
11 Q. Toward the bottom.
12 A. Oh, maybe I have part of the bottom here.
13 MS. LOVELL: There itself.
14 THE WITNESS: This bottom belongs on this
15 bottom.
16 BY MR. FOSBINDER:
17 Q. I'm referring to the November 1st, 2001,
18 document.
19 A. Uh-huh. This looks like a document that
20 reiterates or captures what happened in a meeting.
21 Q. I accept that characterization. Do you know
22 that it was signed by John Min, Planning Director, and
23 David Dantes?
24 A. Uh-huh, I see that.
25 Q. Does this -- have you read this document
0039
1 previously?
2 A. Previously, although a while back.
3 Q. Would you be so kind as to read it again?
4 (Ms. Stout left the deposition.)
5 A. Okay.
6 Q. Can you see where someone who saw this
7 document might reasonably believe that they could
8 continue to operate a vacation rental business without
9 any enforcement action being taken against them until
10 the time that their permit application was processed?
11 MS. LOVELL: That calls for speculation.
12 You may answer.
13 THE WITNESS: Is that stated in here
14 somewhere?
15 BY MR. FOSBINDER:
16 Q. Yes.
17 A. Which one?
18 Q. The paragraph numbered two.
19 A. And there was no subsequent communication
20 from Mr. Min regarding this? I mean, my comment is that
21 Mr. Min -- this doesn't serve as a legal and binding
22 document. It's not a contract. It's not a unilateral
23 or bilateral agreement.
24 But I could see that a common person or a
25 person who -- not knowing could be led that way. And
0040
1 that was, I think, pointed out during the -- some of the
2 earlier discussions.
3 Q. Do we agree that people without relatively
4 sophisticated knowledge of County government would
5 presume, based on this signed document, that they could
6 rely on it, that they would not be prosecuted while the
7 permit was being processed if they had already applied
8 for one at that time?
9 MS. LOVELL: That calls for speculation.
10 THE WITNESS: No, it doesn't say anywhere in
11 here that they would not be prosecuted that I see unless
12 you see it someplace.
13 BY MR. FOSBINDER:
14 Q. It says -- paragraph two, "You have given
15 your assurance that any property owner who submits a
16 conditional use permit application will be allowed to
17 continue their business while the application is
18 pending. However" -- skip the next sentence. "However,
19 filing the application will place a moratorium on zoning
20 enforcement until the permit process has concluded."
21 Isn't that pretty darned explicit?
22 A. For November 1, 2001, yeah, but this is a
23 new day.
24 Q. But my question, the one I started out with,
25 having read this now, doesn't it seem as though the
0041
1 average person reading this would believe that they
2 could, if they made an application, make that
3 application and that they would not be prosecuted or in
4 any other way enforced against until their permit was
5 processed?
6 MS. LOVELL: I object to the form of the
7 question. You are asking the Mayor to speculate about
8 what someone else might think. You may answer.
9 THE WITNESS: I would hope that anyone who
10 was going to spend a whole lot of money in a business
11 would check with what is a more proper authority and
12 based on a document that is a legal document before they
13 jumped into spending any kind of a money on a business.
14 BY MR. FOSBINDER:
15 Q. Who would be a more proper person to check
16 on Planning Department enforcement policy than the
17 Planning Director?
18 A. If they made their application, on the
19 application, did it say that they will not be prosecuted
20 or that they will not be -- it will not enforced until
21 their permit is approved? Does that appear on the
22 permit application itself? I don't know that.
23 Q. No, it doesn't.
24 A. Okay.
25 Q. I mean, this is after the fact obviously.
0042
1 A. Uh-huh.
2 Q. It couldn't have been before.
3 A. Well, I don't think that that is a legal
4 document. It's documents like this that got us where we
5 are now.
6 Q. What about it isn't legal as you understand
7 it?
8 A. That I don't believe that the Planning
9 Director or any Director or even the Mayor can say I'm
10 going to set aside a law.
11 Q. I agree with you that they can't set aside
12 the law. The question, as I understand it, is whether
13 they can agree not to enforce it for a period of time
14 while someone's permit application --
15 A. No.
16 Q. -- is being processed?
17 A. Actually, only the County Council has that
18 authority. It's called a moratorium.
19 Q. Okay.
20 A. And if that were the case, that should have
21 been processed as moratorium.
22 Q. Okay. And is it your belief that the
23 average resident of Maui would know that?
24 MS. LOVELL: Again --
25 THE WITNESS: I can't speculate.
0043
1 MS. LOVELL: That calls for speculation.
2 THE WITNESS: I can't answer that for the
3 average. I don't even know what average is these days.
4 You know, I have an appointment in 10 minutes, so we
5 have got to wrap up.
6 MR. DANTES: Don't let that happen. We're
7 not wrapping up.
8 MS. LOVELL: You asked for one hour.
9 MR. FOSBINDER: No, I didn't.
10 MS. LOVELL: You did.
11 MR. FOSBINDER: I said I thought that I can
12 be done in an hour, but I didn't agree to an hour.
13 MS. LOVELL: Well, let's move it along.
14 MR. FOSBINDER: Let me take a short break.
15 MS. LOVELL: Sure. Why don't we go outside.
16 (Recess, 2:55 p.m. Resumed 2:57 p.m.)
17 THE WITNESS: I have rescheduled that
18 appointment. That is changed to 7:30 tonight.
19 MR. DANTES: Thank you.
20 BY MR. FOSBINDER:
21 Q. We will keep you till 7:29.
22 A. No, I mean I had to put her after the last
23 appointment.
24 Q. Just kidding. Okay. Given what you have
25 told me about the problems with vacation rentals, my
0044
1 understanding is that your voting record, during the
2 eight years you were on the Council, is that you voted
3 to approve nine out of nine permits that were processed?
4 A. Uh-huh. Yeah, the record shows that.
5 Q. Okay. Given that history that nine out of
6 nine were approved and that you voted for nine out of
7 nine, is there any reason to believe that if the other
8 70 permits that are pending were processed, that all 70
9 wouldn't be granted?
10 A. I can't --
11 MS. LOVELL: That calls for speculation.
12 THE WITNESS: I can't say that, because the
13 reason that it goes through this process is each one is
14 a case-by-case situation. The process allows input by
15 the community, you know, at the Planning Commission, at
16 the County Council.
17 BY MR. FOSBINDER:
18 Q. Okay.
19 A. So, there's that input that's necessary
20 before we make a decision.
21 Q. I understand the process as do you. My
22 question is, are you aware of anything that's changed,
23 anything that's different than it was before the nine
24 were approved?
25 A. Changed in what way?
0045
1 Q. Well, if in fact all of the tourists were
2 causing a massive crime wave, I assume that -- we were
3 all laughing. I agree. That's not something we worry
4 about.
5 But if it were true, I assume that if that
6 were on the front page of the paper every day, that you
7 would say that, well, given the massive crime wave
8 caused by tourists, I doubt if another one would be
9 approved.
10 I am asking you, is there any fact like that
11 out there that you can think of, anything different?
12 A. No, no. What's different is the process,
13 that we don't know what's out there until it goes
14 through the process.
15 Q. Okay. Do you have any idea how long it
16 would take to process the 70 pending permits?
17 A. I have no idea.
18 Q. Okay. And an estimate that I have been
19 given by a former Mayor is that it would take years, at
20 least five years to process -- no, I am sorry. That's
21 wrong.
22 For 70, it would take at least a year. I am
23 sorry. Do you have any reason to believe that it could
24 be done in substantially less than a year?
25 A. No, I cannot predict what the Council does
0046
1 with the things on their agenda.
2 Q. So, essentially, what you are telling me is
3 it could be -- the outside is it could take forever if
4 the Council just sits on it, is that correct?
5 A. The Council doesn't sit on things.
6 Q. Okay. What's the longest it could possibly
7 be?
8 A. I don't know. It depends on the situation,
9 depends on what other priority items are in that
10 committee. I mean, you said you understood the process.
11 Q. I do, I think, and we are just disagreeing
12 on the phrase "sit on it," I think. The County Council
13 might just not act on it for an indefinite period, which
14 could be something approaching forever, is that true?
15 MS. LOVELL: Well, that's argumentative.
16 You may answer.
17 THE WITNESS: You mean forever?
18 BY MR. FOSBINDER:
19 Q. Ten years.
20 A. I can't think of anything that took 10 years
21 to do.
22 Q. Well, so far some of these are five years
23 old, right?
24 MR. DANTES: Some of them are nine years
25 old.
0047
1 BY MR. FOSBINDER:
2 Q. I'm sorry. Some of these are nine years
3 old. Is that your understanding?
4 A. I don't know the dates of when things came
5 in.
6 Q. If I tell you some of them are nine years,
7 does it seem quite possible that it might take 10 years
8 for some of them?
9 A. Well, what did these take? Did you look at
10 that? When were they submitted and when were they
11 approved?
12 Q. I think it's there.
13 A. I don't know if we can tell. Oh, we can
14 tell from the years, '98.
15 Q. That would be nine years ago.
16 A. '98, and it was approved in '98, unless I
17 don't know the coding. I don't know. That would be --
18 when you get down to the third one, it says 2001. The
19 Herlot vacation rental was approved in 2002. It doesn't
20 have the month in 2001, but it has when it was approved.
21 But, you know, I would --
22 Q. I'm not sure whether that document explains
23 it. My understanding is there's one that has been --
24 which was the nine years?
25 MR. DANTES: I couldn't name it.
0048
1 BY MR. FOSBINDER:
2 Q. Okay. Do you have any reason to believe
3 that it might not take more than five years?
4 MS. LOVELL: That's an incomplete
5 hypothetical.
6 THE WITNESS: I don't know.
7 MS. LOVELL: And it calls for speculation.
8 You may answer.
9 THE WITNESS: Yeah, I can't predict anything
10 that has to do with the County Council.
11 BY MR. FOSBINDER:
12 Q. Okay.
13 A. I can't even predict when something will go
14 to the Planning Commission. It depends on their
15 schedule.
16 Q. If everything went as fast as it possibly
17 could, do you have an understanding as to how long?
18 A. No, I don't.
19 Q. Okay. That's fine.
20 A. I often asked that question when I was on
21 the Council.
22 Q. What's that?
23 A. I often asked that question when I was on
24 the Council. What's the shortest period of time to
25 process a permit for X, and never did get an answer.
0049
1 Q. Who were you asking?
2 A. Whichever Department had the issue.
3 Q. Have you studied the economic impact of
4 shutting down all of the --
5 A. You asked me that already.
6 MS. LOVELL: You did. The legal objection
7 is asked and answered.
8 BY MR. FOSBINDER:
9 Q. Yeah, thank you.
10 A. Oh, I am sorry. Okay.
11 MS. LOVELL: You are doing a good job.
12 THE WITNESS: Okay.
13 BY MR. FOSBINDER:
14 Q. Did you at one time tell John Rapaz and
15 David Dantes that no one in their right mind seriously
16 thinks vacation rentals are causing the housing
17 shortage?
18 A. I don't recall that conversation.
19 Q. Do you deny saying it?
20 A. I'm not -- I'm saying I didn't recall saying
21 it.
22 Q. So, you may have and you may not; you just
23 don't remember?
24 A. I would doubt that I would say it that way,
25 but I have been noted to be taken out of context a lot
0050
1 lately.
2 Q. Okay.
3 A. That if it was a concern, it is not the
4 major concern.
5 Q. Okay. If your Corporation Counsel were to
6 tell you that many, many hundreds of home-based
7 businesses were, in fact, illegal and had been allowed
8 simply because of these enforcement memos, but that
9 actually they were illegal, will you take any action on
10 that?
11 MS. LOVELL: That's an incomplete
12 hypothetical. You may answer.
13 THE WITNESS: If -- I am sorry. Did you say
14 if Corporation Counsel --
15 BY MR. FOSBINDER:
16 Q. Yes.
17 A. -- informed me --
18 Q. Yes.
19 A. -- that -- what was the rest of it?
20 Q. Well, we read those two memos regarding
21 policy and enforcement, right?
22 A. Uh-huh.
23 Q. And in there it seems to say that we are
24 going to not enforce even though it is against the
25 statute.
0051
1 MS. LOVELL: No, that's not what they say.
2 BY MR. FOSBINDER:
3 Q. Okay. I will read it again.
4 A. April 28th.
5 Q. The April 28th, 2003. "In our existing
6 codes, home-based businesses are not permitted within
7 the County's residential, apartment, rural, or
8 agricultural districts without first obtaining a County
9 special use permit, conditional use permit, or use
10 variance. As such, our existing ordinances greatly
11 overregulate home-based businesses at a considerable
12 cost to our County's economy."
13 MS. LOVELL: Right, and then the document
14 goes on in the interpretation section to say the
15 following things are not a home-based business.
16 MR. FOSBINDER: It doesn't say that. It
17 says we are not going to enforce against these.
18 MS. LOVELL: It says interpretation.
19 THE WITNESS: Interpretation on enforcement.
20 BY MR. FOSBINDER:
21 Q. Okay. I am sorry. Where are we? Did you
22 refuse to meet with the MVRA prior to the lawsuit being
23 filed?
24 A. Yes.
25 Q. Why?
0052
1 A. Because it wasn't in my hands. It would be
2 a waste of their time and mine.
3 Q. When you say it wasn't in your hands, what
4 do you mean by it wasn't in your hands?
5 A. It's at the Council's hands.
6 Q. The County Council?
7 A. The County Council has the bill -- had a
8 bill -- another bill that was going through the process,
9 and meeting with me, prior to an outcome on that bill,
10 was not, you know, worth a meeting.
11 Q. Okay. It's my understanding that you have
12 said that you can't have a moratorium. That that's
13 illegal?
14 A. No, I said a moratorium can only be issued
15 by the County Council.
16 Q. Right. I am sorry. Yes, I accept that
17 that's correct. That's what you said.
18 A. Thank you.
19 Q. That the Planning Director cannot have a
20 moratorium.
21 A. Right.
22 Q. Okay. So, in that case, why was there an
23 eight-month moratorium that you permitted to the
24 vacation rental people?
25 MS. LOVELL: That question is argumentative
0053
1 because it assumes facts.
2 BY MR. FOSBINDER:
3 Q. Didn't you give a moratorium in February?
4 The moratorium was cancelled you said, but then there's
5 a new moratorium that people could stay in business
6 until January 1st; isn't that a moratorium?
7 A. Well, if you want to throw those kind of
8 words around, but a moratorium that is an official
9 moratorium has to come from the County Council. The
10 plan -- the plan to say when people were going to get
11 letters or when they could operate, when they should
12 shut down, was an agreement in consideration of what
13 folks had already been told from the past.
14 I mean, I appreciate the position I am in,
15 where I had two mayors before me that chose not to
16 enforce the law. And so it seemed reasonable at the
17 time, and it still seems reasonable to me, that they
18 have at least some time to shut down.
19 Q. So, 10 months -- so, 10 months was
20 reasonable to you?
21 A. Uh-huh.
22 Q. But not anything longer than 10 months?
23 A. We agreed on 10 months, the Planning
24 Department and I.
25 Q. We being who?
0054
1 A. The Planning Department and myself through
2 our meetings.
3 Q. Did one side lobby for a longer enforcement
4 moratorium?
5 A. No, it was just all discussed.
6 MS. LOVELL: I am sorry. The question
7 assumes there was an enforcement moratorium. That's
8 argumentative.
9 BY MR. FOSBINDER:
10 Q. Well, you agreed that even though it was
11 illegal to have a moratorium without approval by the
12 County Council, that you would have a new shorter
13 moratorium, isn't that true?
14 MS. LOVELL: That question --
15 THE WITNESS: No.
16 MS. LOVELL: -- is argumentative.
17 BY MR. FOSBINDER:
18 Q. Well, didn't you agree not to enforce
19 against people until January 1st?
20 A. There was no moratorium.
21 Q. Didn't you agree not to enforce against
22 people until January 1st?
23 A. Yeah.
24 Q. Even though you were aware that they were
25 operating technically an illegal business back in
0055
1 February, right?
2 A. Yes.
3 Q. But you are not willing to call that a
4 moratorium?
5 A. No.
6 Q. Because?
7 A. Because a moratorium is a term used to
8 describe an action taken by the Maui County Council.
9 Q. What would you describe the action taken by
10 John Min when he signed the document with David Dantes?
11 What was that?
12 A. That was his interpretation of something and
13 his opinion.
14 Q. But didn't you just do the exact same thing?
15 MS. LOVELL: That is a -- that question is
16 argumentative, but you may answer if you understand it.
17 THE WITNESS: No, I'm not sure, since I
18 didn't put anything in writing.
19 BY MR. FOSBINDER:
20 Q. So, the difference between what Mr. Min did
21 and what you did was yours wasn't in writing?
22 A. No, no.
23 Q. What else is the difference?
24 A. The difference is that we were trying to be
25 reasonable in light of all of the conditions that
0056
1 occurred previously.
2 Q. Isn't that what --
3 A. With people being told that they are not
4 going to be enforced, don't bother to apply, because,
5 you know, it doesn't matter, all of those kinds of
6 things. We were trying to be understanding of the
7 situations that people were placed in. And through our
8 discussions, it came to the dates that 10 months was
9 sufficient time, we felt, for vacation rentals to cease
10 their operation until they became legal or were turned
11 down.
12 Q. But why not process at least the permits for
13 the people who had already applied?
14 A. They are being processed.
15 Q. So, if you don't -- am I correct you don't
16 know of any specific reason to think that any of those
17 70 will be turned down?
18 A. No, I didn't say that.
19 Q. Do you know of a specific reason that one of
20 those --
21 A. No.
22 Q. -- or more will be turned down?
23 A. Because I told you, as I stated before, each
24 case is different. And through the process is when we
25 learn whether or not something should be considered,
0057
1 what conditions should be put on each one, and there are
2 probably no two alike. Each one has a unique situation
3 depending on where they are, how big it is. There's all
4 kinds of factors in there.
5 So, as each one comes up through the
6 Planning Commission and through the County Council,
7 conditions of the permit are placed upon each individual
8 one.
9 Q. If the law requires you to enforce the law,
10 then what legal authority did you have for allowing a
11 10-month period of time without enforcement?
12 MS. LOVELL: Are you suggesting that we
13 should have had a shorter time?
14 BY MR. FOSBINDER:
15 Q. I am asking a question.
16 A. I answered that already.
17 Q. I don't -- would you please answer it again?
18 A. I said because we were trying to be
19 considerate, and now --
20 Q. And where is the considerate section in the
21 law?
22 A. The considerate section is -- in the law?
23 Q. Yeah.
24 A. There's not a considerate section in the
25 law.
0058
1 Q. So --
2 A. Trying to make it -- not make it a worse
3 situation than it already was.
4 Q. So, if you are trying to make it not a worse
5 situation --
6 A. I was talked out of shutting them down
7 January 2nd when I took office.
8 Q. By who?
9 A. Okay.
10 Q. By who?
11 A. By the Planning Department through our
12 discussions with Planning and others.
13 Q. When you say the Planning Department --
14 A. Jeff Hunt, whoever else was in the meeting
15 from Planning.
16 Q. Do you remember anybody else in the meeting?
17 A. No, it changed from time to time. Different
18 folks came to the meetings.
19 Q. Do you recall, during the period before your
20 election, disseminating any information that would lead
21 a reasonable voter to come to the conclusion that you
22 intended or wanted to shut down all the vacation rentals
23 on January 2nd?
24 A. I don't recall that, saying that or doing
25 anything like that.
0059
1 Q. What happened? At what point did you decide
2 that you wanted to shut down all the vacation rentals on
3 January 2nd?
4 MS. LOVELL: That misstates the testimony.
5 You may answer.
6 THE WITNESS: When I took my oath of office,
7 January 2nd.
8 BY MR. FOSBINDER:
9 Q. So, prior to taking your oath of office, you
10 didn't have it in your mind to shut down the vacation
11 rentals right away?
12 A. No.
13 Q. This was like an epiphany?
14 A. No.
15 MS. LOVELL: Argumentative.
16 THE WITNESS: I wasn't the Mayor before the
17 election.
18 BY MR. FOSBINDER:
19 Q. Okay. But you knew that you had a chance of
20 being the Mayor. Okay. I am not going to ask that.
21 A. You know, when the question came up during
22 the campaign, and my answer always had been, I believe
23 it was pretty consistent, that the process should work
24 itself out. That the laws, at the time of the election,
25 those -- that bill, the proposed bill, which had been in
0060
1 my Planning Committee, had gone to the Planning
2 Commissions.
3 Okay. They weren't -- I don't think they
4 were back yet from the Planning Commissions before the
5 election. So, it was let it go through the process,
6 which was now the Planning Commissions would have their
7 hearings. They would make their recommendations. It
8 would come back to Council, and Council would act
9 whichever way they wanted to act.
10 Q. Did the two people who complained about not
11 feeling safe in their neighborhood, did they complain
12 before the election or after the election?
13 A. After.
14 Q. I know I tried to ask this before, but I
15 don't think I worded it sufficiently artfully. I will
16 try again.
17 If you are informed by the Corporation
18 Counsel that other home-based businesses in ag zones are
19 illegal, but have been tolerated just because of the
20 Planning Department's memo regarding enforcement, will
21 you require the Planning Department to enforce the
22 restrictions on home-based businesses?
23 MS. LOVELL: That question was asked
24 previously. I made objections to it previously. I have
25 the same objections. It's an incomplete hypothetical,
0061
1 it is compound, and it assumes facts.
2 And I believe it was already answered, so I
3 will throw in asked and answered. Do you have any
4 different answer you want to give to that question than
5 what you gave before?
6 THE WITNESS: I will have to see what the
7 Corporation Counsel, in their hypothetical opinion, how
8 they are notifying me of what. I do value very much the
9 opinion of Corp Counsel, and it would depend on what
10 they said in their communication to me about something
11 that they became aware of.
12 BY MR. FOSBINDER:
13 Q. Did you tell an audience in Hana last
14 November 19th that when enforcement is carried out,
15 maybe Hana will not be high on the list?
16 A. In a meeting in Hana?
17 Q. Uh-huh, yes. Sorry if I missed that.
18 A. Which meeting was that?
19 Q. I don't know.
20 MR. DANTES: November 19th.
21 BY MR. FOSBINDER:
22 Q. Sorry. November 19th, I understand.
23 A. The community meeting we had in Hana?
24 Q. Yes.
25 A. I don't think I said Hana was, you know, low
0062
1 on the list. There was going to be a meeting the
2 following Monday with the Hana Advisory Committee to the
3 Maui Planning Commission, that was going to be there
4 specifically to hear concerns about transient vacation
5 rentals. And I had encouraged all of them that were
6 there at my meeting to go to that meeting.
7 Q. The Community Plan for Haiku specifically
8 says that one of the goals is not to have hotels on the
9 North Shore.
10 A. Uh-huh.
11 Q. Yet the new proposal by the Planning
12 Department would allow in Paia 20-unit combinations,
13 correct?
14 A. Correct.
15 Q. Is it your contention that 20 units is not a
16 hotel?
17 A. I don't know what the definition of a hotel
18 is.
19 Q. Do you think most people would think that 20
20 units was a hotel --
21 MS. LOVELL: That's argumentative, and it
22 calls for speculation.
23 BY MR. FOSBINDER:
24 Q. -- or a motel?
25 MS. LOVELL: Why do you keep asking the
0063
1 witness --
2 BY MR. FOSBINDER:
3 Q. Do you support the Planning Department's
4 proposed law with regard to changes to be made to the
5 code regarding 20 units in areas such as Paia?
6 A. I supported their submitting the bills to
7 Council to go through the process to get the facts, or
8 not the facts, the feelings of the community, as it
9 would go through from the Council, to the Planning
10 Commissions, back to the Council, and see what the
11 Council was going to do with it.
12 Q. And do you support that change?
13 A. It doesn't matter if I support that change
14 or not.
15 Q. Do you support the change?
16 A. No. I mean, I'm not supporting it or not
17 denying it. I think it should be discussed. The
18 community should have a say in what happens in their
19 community.
20 And it's like any law. If you have a law
21 that doesn't fit the time or is outdated, antiquated,
22 whatever, then there's a process to change that law.
23 And there have been many amendments, as you well know,
24 to all kinds of laws, all kinds of sets of laws. This
25 is an attempt to find out have conditions changed enough
0064
1 so that the people in Paia and Haiku community would
2 want to say, okay, this is fitting in a Commercial
3 District. That's to put it out there for the discussion
4 and to get input from the communities.
5 Q. Do you personally recommend that that be in
6 a new law?
7 A. I don't have a recommendation, and for that
8 matter, I don't have personal opinions anymore. As a
9 Mayor, I don't have personal opinions.
10 Q. Do you have a Mayoral opinion on whether or
11 not there should be 20 unit --
12 A. It's not up to me.
13 Q. -- rentals? I understand it's not up to
14 you. Do you have an opinion?
15 A. No.
16 Q. Okay. Do you have any opinion on whether or
17 not the law should be changed to make it easy -- I will
18 use that term -- to have vacation rentals in ag zones?
19 A. I have no opinion on that.
20 MR. FOSBINDER: One other short break, and
21 we will be done.
22 (Recess, 3:20 p.m. Resumed, 3:23 p.m.
23 MR. FOSBINDER: My understanding is we are
24 under time pressure here, and also there are some
25 questions that I may move to compel answers to. So, I
0065
1 am taking that into account. We are through for the
2 moment at least and maybe we are through for all time.
3 MS. LOVELL: No, I am sorry. You noticed
4 this. Let's keep going until you are finished. And
5 there have been no instructions not to answer, and there
6 have been no questions that haven't been answered.
7 MR. FOSBINDER: There are some questions
8 that haven't been answered, and if I am wrong, we are
9 not going anywhere.
10 MS. LOVELL: If you have more questions, the
11 Mayor is here, why don't we keep going. You said you
12 would be about an hour. You have gone now an hour and a
13 half. She does have other time pressures, but you don't
14 get two bites at the apple, so let's just keep going.
15 MR. FOSBINDER: Well, I may and I may not,
16 depending on what's in the record. We will look at it
17 later. That's all.
18 MS. LOVELL: Well, I am not agreeing to
19 adjourn. I'm agreeing that the deposition is concluded.
20 MR. FOSBINDER: I don't have to say
21 anything. We are not going to ask any more questions
22 now period. That's all I am going to say.
23 MS. LOVELL: All right. Thank you.
24 (Adjourned, 3:25 p.m.)
25
0066
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
0067
1 SIGNATURE PAGE
2
3 I, MAYOR CHARMAINE TAVARES, certify that I
4 have
5 read the foregoing transcript pages, and corrections,
6 if any, were noted by me. The same is now a true and
7 correct transcript of my testimony.
8
9
10 _____________________________
11 MAYOR CHARMAINE TAVARES
12
25 REF NO. 3241A
0068