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Communication 1077 <br /> Bill 265 <br /> Page 2 of 3 <br /> Planning Director Yuen explained that typically what happens when the Department receives a <br /> complaint is that an inspection is performed, and if a violation is found to exist, a written notice <br /> is mailed advising the person to cease and desist the illegal activity by a certain date. The letter <br /> also advises the person that if the violation does not cease, a tine will accrue. The letter also <br /> informs the person of his right to appeal the Director's order to the Board of Appeals. Director <br /> Yuen said that under the current language of the code, the Director's order is stayed until a final <br /> decision is made by the Board of Appeals which allows the activity, determined to be an illegal <br /> activity, to continue throughout the entire Board of Appeal process. <br /> Council Member Ford expressed her concern regarding how the Department ensures that once a <br /> notice to cease and desist is issued, the violation does in fact cease and stated that she felt the <br /> cost of pursuing an appeal should be reimbursed in the event the appeal is won. Director Yuen <br /> responded that typically, filing fees and application fees are non-refundable. Mr. Yuen also <br /> stated that inspectors from his Department conduct follow-up inspections to determine if a <br /> violation has in fact ceased after a notice has been issued. Council Member Jacobson stated his <br /> support for this important measure, and noted that in his experience, the Planning Department <br /> has done an excellent job in addressing complaints and conducting follow-up inspections. <br /> Council Member Yagong felt that a fine should be levied at the time the Board of Appeals <br /> determination confirms a violation. Mr. Yagong stated he sincerely believes that a substantial <br /> amount of anxiety would be inflicted on a person upon being informed that if he chose to appeal <br /> and was unsuccessful, a substantial amount in potential fines will have accrued and become due. <br /> Mr. Yagong's concern was that this may in fact deter people who feel they have a valid claim <br /> from appealing and not pursue their right to due process. <br /> <br /> Corporation Counsel Amy Self explained that the Hawaii Supreme Court has upheld that the <br /> amendment being proposed in Bi11265 is not a due process violation. Ms. Self explained that the <br /> current trend and practice has been to conduct and operate an illegal business until a complaint is <br /> filed and a notice of violation issued. Ms. Self also noted that the current code has been utilized <br /> by individuals to obtain permits "after-the-fact" while continuing to operate anon-conforming <br /> business without being penalized. <br /> Director Yuen stated that the proposal is not meant to be a disincentive to appeal but rather <br /> intended to discourage the violator from continuing the illegal activity during the appeal. <br /> Council Member Yoshimoto noted that initially Bill 265 seemed to be a good proposal, however, <br /> after hearing comments of Council Member Yagong, he stated that his concern was for the <br /> <br /> person who may in fact have a legitimate claim. Mr. Yoshimoto stated that for those who clearly <br /> <br /> circumvent the process and obtain after-the-fact permits, then the proposal is fine, however for <br /> <br /> the people with legitimate claims, the possibility of having to pay a substantial amount if the <br /> appeal results in an unfavorable decision, the proposal may work against them. <br /> Corporation Counsel Amy Self explained that the Corporation Counsel as well as the Planning <br /> Department diligently works with the parties to resolve violations and that the main concern is <br /> not how much fines can be collected, but rather their focus is on the need to stop circumvention <br /> of obtaining required permits and illegal operations. In fact, Ms. Self noted that even if a person <br /> PC Report No. 78 <br /> <br />