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Home My WebLink AboutCOM 0773.002 1998-2000 June 1, 2000 r RR14VE5 'I Members, Hawaii County Council Committee on Finance 25 Aupuni Street ~--,;,,,N Coen<~~ Hilo, Hawaii 96720 NOTICE SUBJECT MATTER: Comm. 773: Bill 255; Comm 774: Bill 256; Comm 775 Bill 257, but not limited too. Aloha Members of the Committee, It is with great pleasure that the Native Hawaiians have been given an opportunity to seek clarification of the Hawaii County's role insofar as today's agenda amending Chapter 21, Article 4 and it's possible impacts upon lands having the status of Hawaiian Home lands. I am Patrick Kahawaiola'a, a Native Hawaiian, as defined under the Hawaiian Homes Commission Act, 1920, as amended July 9, 1921 and the Director of the Native Hawaiian organization called Aupuni 0' Hawaii. Before I begin, may I just see if the ground-rules are equal for all the players. That would be, are these codes a direct results of actions dictated by the Council, pursuant to the County Charter?? Is there another document, other than the County Charter, which affects the outcome of the actions of the Council, on Bills, Ordinances?? For instance, if these Bills, 255, 256, or 257 is passed, will it affect those residential, agricultural, aquaculture, and pastoral lessees on Hawaiian Home lands?? If the answer is YES, than why did Deputy Corporation counsel Gerald Takase, in answering a direct question from Council member Tyler, in dealing with another sewer issue, the question being, "...does the County have jurisdiction on Hawaiian Home lands..", to which he (Takase) responded with a "NO"! I would want the members to look at the charter at Article I, §1-1. Incorporation and §1-2 Geographical Limits "...shall be the county of Hawaii". 1. Does that include the lands having the status of Hawaiian Home lands??, and if it does than; 2. Does the county's building codes and related rules and regulations, incorporated within the codes and ordinances become applicable?? 3. Does the county have the authority and jurisdiction to issue a county building permits on those lands? 4. Does the county have authority and jurisdiction to inspect and enforce compliance, to any violations of those codes, ordinances? Comm. No. 773. CO.- File No. I~CC l sC I ~IFc Kef. To: Ref. Date dUN j 4 2000. The reasons for those questions today is because a comprehensive review of the county's authority and jurisdiction on lands having the status of Hawaiian Home lands, is again necessary to be included and/or excluded from your charter. I do not believe any amendments to your County codes, can and/or should be passed to comply with your Charter, unless all the parties are involved to reach resolution. A charter commission has been formed and is reviewing the charter, as we speak, they've opened their public hearing, in accordance with the Sunshine law, I have presented testimony and have so far been denied input, based on the Charter Commission's Attorney, Christopher Yuen, who has represented to that Commission members that the County INDEED HAS JURISDICTION ON HAWAIIAN HOME LANDS. (Sae. Yuen's letter dated April 18, 2000). THAT REPRESENTATION IS CONTRARY TO YOUR CORPORATION COUNSEL'S OPINION. (Sae. Opinion No. 96-06). NATIVE HAWAIIANS NEED TO KNOW... DOES YOUR CHARTER, AND THEREBY YOUR RESOLUTION, ORDINANCES, BILLS, CODES, APPLY ON LANDS HAVING THE STATUS OF HAWAIIAN HOME LANDS?? A. Your pending actions, I believe will in effect increase the encumbrances on Hawaiian Home lands, by NOP-AZ*J=1STRAT0RS of the HHCA; (Sae. Opinion of Richard Wurdeman 96-06) B. I believe your general laws and policies, through your charter are encroaching again upon Hawaiian Homes lands. (Sae. Attorney-General Opinion 72-21); C. I believe this County lacks the fundamental document (the consent) and you are doing this WITHOUT THE CONSENT OF THE UNITED STATES; (Sae. Admissions Act §4 and State Constitution, Article XII, §3, compact, adopting the HHCA, as a compact with the U.S.) D. I believe that you're in violation of the Hawaii Constitution Article XII, §3, compact, implementation §4 of the Admissions Act, P.L. 86-3, 73 Stat.4; and E. Lastly, I believe if you continue and refuse to address the concerns of Native Hawaiians and the status of their lands, relative to your Charter, in which lies your Codes and Ordinances, you are and will be individually responsible for your own actions. (Sae. John H. Alden v_ Main. 67 U.S.W. 4601, 46, 4632, (1999) A timely response in this matter will be greatly appreciated, from the Chairman of the Council Mr. Arakaki, or I must believe and assume that the prejudicial and discrimina ry actions, against Native Hawaiians will continue. I Mahalo for your attention: 4C] 6L Patrick L. Kahawaiola'a 260 King Ave Hilo, Hawaii 96720 (808) 961-5707 2 March 17, 1998 Steve Yamashiro Mayor, County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Subject Matter: Again confusion abounds with the Authority/Jurisdiction of the Hawaii County charter, in which lays the Department of Water Supply, County of Hawaii. As recent accounts in the local newspaper intimates, by the State Deputy Attomey-General Lee Crowell states, "...At this point we have to show solidarity with the Department of Water Supply. DHHL's position is that these lessees have violated the terms of their leases which mandate that they follow State and County laws. We're making sure that it's clear that lessees have to comply with County ordinances." Aloha Mayor Yamashiro, I am Patrick Le'o Kahawaiola'a, a Native Hawaiian as defined under the HHCA, 1920, as amended. I am also the Director of a Native Hawaiian organization called Aupuni `O Hawaii, who for years, have being trying to resolve the burning question that seems the Deputy Attorney-General Crowell, has finally answered. What is confusing about the statement of Crowell, Deputy Attomey-General, is when he states these lessees" have violated the terms of their leases and have to comply to county ordinances", is that the position of the County of Hawaii?? Your building department believes differently, that we have an "option" to be issued a permit. Your planning department endorses plans as "N/A". Your public works department won't accept for "dedication" our street, now their terms is to "accept of maintenance only". Your gal gyp= tax de Armen according to your corporation counsel, Wurdeman, are without authority to enforce a tax lien on lands having the status of Hawaiian Home lands. Confusion again when the same Attorney-General's Office issues an "opinion" that questions the "applicability of county ordinances" on Hawaiian Home lands, in so far as the work being done by Waiakea Center, Inc. (Wal-Mart), and the County of Hawaii, "acquiesces" to the AG's opinion. Reasonable people would maintain that seems like a double standard exist and the DHHL and the County of Hawaii, both are conspiring to squeeze the Native Hawaiian lessees, but not the Corporate lessees, such as Chevron, Boarders, Office Max, Wal-Mart, except the granting of a permit after the fact to Natural Deli Market, so they can sell alcohol, according to the Liquor commission. 1 Please, Steve, if I may call you by you first name, we would like a letter to the effect that indeed the native Hawaiians are mandated to comply to your ordinances and that the County of Hawaii has the Authority/Jurisdiction to enforce their county charter ordinances on Hawaiian Homes lands, so we know once and for all how to proceed in the future. I request a response in a timely manner as we are facing eviction from our homes as a direct result of having our leases cancelled for violating the rules and regulations of the Department of Water Supply, County of Hawaii. Sincerely; atrick L 'o Kahawaiola'a 60 King Ave Hilo, Hawaii 96720 (808) 961-5707 cc: Hawaii County Council Corporation Counsel Attorney-General, State of Hawaii Governor 2 February 16, 1999 Members, Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 NOTTCE SUBJECT MATTER: Public Hearing Hawaii County Zoning Codes; Attorney-General opinions 72-21; but not limited too. Aloha Members of the Council, It is with great pleasure that the Native Hawaiians have been given an opportunity to seek clarification of the Hawaii County's role insofar as tonight's agenda of Zoning Codes would effect lands having the status of Hawaiian Home lands. I am Patrick Kahawaicla'a, a Native Hawaiian, as defined under the Hawaiian Homes Commission Act, 1920, as amended July 9, 1921 and the Director of the Native Hawaiian organization called Aupuni O'Hawaii. Before I begin, may I just see if the ground-rules are equal for all the players. That would be, are these codes a direct results of actions dictated by the Council, pursuant to the County Charter?? Is there another document, other than the County Charter, which affects the outcome of the actions of the Council, on Bills, Ordinances?? For instance, when this Bill 250 was passed, was this body relying on another process?? The Court has held that Ordinance 96-160, was passed in "willful violation" of the State's Sunshine law. Is the Sunshine law reflected within this charter?? If not, I see where in 1990, Proposal 16, (Amends sections of the Charter to be consistent with State law). I believe that Article XIII, General Provisions, §13-20, Records and Meetings Open to Public, subparagraph (b), (c) and (d), addresses the Sunshine law and ramifications of non conformity. 1 It's funny to Native Hawaiians that we are here discussing among other things, the Sunshine law at night is funny to me, it's like the old joke of who was going to land on and explore the Sun first, well the Hawaiians said it would be them, because they were going to go there at night. I would want the members to look at the charter at Article I, §1-1. Incorporation and §1-2 Geographical Limits "...shall be the county of Hawaii". 1. Does that include the lands having the status of Hawaiian Home lands??, and if it does than; 2. Does the county's building codes and related rules, incorporated within the zoning code and ordinances become applicable?? 3. Does the county issue a county building permits? 9. Does the county inspect and supervise compliance? The reasons for those question tonight is because that comprehensive review of the county's authority and jurisdiction on Hawaiian Home lands, are necessary to be included and/or excluded from your charter. I do not believe a zoning code can and should be passed to comply with a court order, unless all the parties are involved to reach resolution. A charter commission has been formed to look at the charter, so when they have their open public hearing, in accordance with the Sunshine law, I will present that testimony also, for tonight agenda, since it's the zoning ordinances in question, DO THEY APPLY TO LANDS HAVING THE STATUS OF HAWAIIAN HOME LANDS?? Mahalo for your attention: Patrick L. Kahawaiola'a 260 King Ave Hilo, Hawaii 96720 (808) 961-5707 2 CHRISTOPHER J. YUEN HILO LAGOON CENTRE, SUITE 108 101 AUPUNI STREET ET ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)9354429 FAX (808)935-1844 e-mail: chrisyuenz@hotmail.com April 18, 2000 Hawaii County Charter Commission John Ray, Chairman Re: County Jurisdiction over Hawaiian home lands Dear Chairman Ray and Members of the Commission: There has been testimony at the commission meetings about county jurisdiction over Hawaiian homelands, most recently, police jurisdiction. Rather than take time at the meeting to discuss these issues point-by-point, I thought it might be helpful to mention that the two individuals offering this testimony have had these same arguments rejected by the Hawaii Supreme Court. In State v. Jim, 80 Haw. 168, 907 P.2d 754 (1995), Mr. Jim and Mr. Kahawaiola'a claimed that their arrest and conviction for trespassing at Prince Kuhio Plaza (which is on a lease from the Dept. of Hawaiian Home Lands) was illegal because the county police had no jurisdiction to make arrests on DHHL property. The Hawaii Supreme Court disagreed. The court held that county police could exercise their ordinary powers on DHHL property because the Hawaiian Homes Commission Act contains no express language denying these powers. To put it briefly, the county boundaries do properly include DHHL property. The county charter may not exclude any part of the island from the county because the county's boundaries are set by state law and must include the entire island. I have, many times, advised the charter commission that certain legal issues involved a "gray area," a point on which a court's ultimate decision could go either way. This is not one of those issues. Chairman Ray and Members of the Commission April 18, 2000 Page 2 There were also a suggestion that the charter contain some mention of native Hawaiian rights under Art. XII of the state constitution. This would add nothing to those rights and could be no more than a source of confusion. The county government's powers are affected by native Hawaiian rights, but its powers are also affected by scores of other constitutional and statutory rights, such as freedom of speech, protection of private property, due process of law, and so forth. It would not be possible to list all of these in the charter, and it is unnecessary, because the charter only sets out the structure and organization of county government. Yours truly, C~~ Christoph er J. Y~ CJY/np WOMCOuI TRCO% me izs ,4V(kUSVI0'JfAWAI'I (PatrickG. Kgfiawaiora'a 260 KING AVE, HAWAIIAN HOME LANDS HILO, HAWAII 96720 May 31, 2000 Christopher J. Yuen Attorney at Law 101 Aupuni Street Hilo, Hawaii 96720 To: Christopher J. Yuen and Members of the Commission: Christopher J. Yuen ("Yuen") has failed to rebut or address the Hawaii Constitution Article XII legal principles as well as the historical evidence propounded by the member of Aupuni O' Hawaii ("Aupuni") in their arguments that the county lack of jurisdiction upon Hawaiian Home lands. Yuen derogation of those argument as being frivolous, without any supporting basis for that remark is unfortunate. Yuen uses one of the avoidance technique employed by those in positions of dominance against those on the ethical and moral high ground, "The Native Hawaiians". In the face of this failure to contest such principles of Hawaii Constitution Article XII or historical evidence when the opportunity to do so was available, this failure must be taken as a concession to these principles and evidence. Among those principles set forth in Aupuni earlier arguments on this subject was that the County my not excuse itself for violation of Hawaiian Homes Commission Act or Hawaii Constitution compact, implementing Congress pre-emption (Admission Act) on the basis that its County Charter or law permitted such violations. It is clear why the Yuen would like to have the Commission accept this principle as frivolous. It is by Yuen use of the Hawaii County Charter and State v_ Jim that Yuen is now i Hawaii Constitution provided in Article XII 1 "Anything in this constitution to the contrary notwithstanding, the Hawaii Homes Commission Act, 1920, enacted by the Congress; 2. Acceptance of Compact "The State and its people do hereby accept, as a compact with the United States" and;' 3 Compact Adoption. The encumbrances authorized to be placed on Hawaiian home lands by offices other than those charged with the administration of such Act, shall not be increased, except with the consent of the United States, also see Article IT Sec. 2-1 Powers of the County, "prohibited by such constitution or by this charter"; also see Article XIII. Sec. 13-25. "Separability" and Article XVI. 16-3. Existing Laws and Conflicting Laws. 1 ,41)(Y JNI 0'0,4 WAIT (PatnckG. 7(ahawawfa'a 260 KING AVE, HAWAIIAN HOME LANDS HILO, HAWAII 96720 attempting to justify the violations in Hawaii Constitution compact, by Congress pre-emption. Beware the thief in judgment of itself! Let us address Yuen's restricted view of law as being only those which arise out of the Hawaii Supreme Court. At the least, we should go one step further and bring into Hawaii's and U.S Constitutions. Certainly, Yuen would not consider it frivolous too. Let us consider Yuen's reference to the Hawaii Supreme Court, in light of the Hawaii and the U.S. Constitutions. Yuen's "authority" is the case of State v. Jim, 80 Haw. 168, 907 P.2d 754 (1995), in which Yuen attributed a quote by the Hawaii Supreme Court regarding the county police could exercise their ordinary powers on DHHL property because the Hawaiian Home Commission Act contains no e4press language denying these powers. The subject of the propriety is the 67th Congress' construction of law or Construction Trust (showing of fraud overreaching, or other wrongdoing to impose constructive trust) invasion and overthrow by Hawaii County Charter, or of the *t of County jurisdiction over the Hawaiian Homes Commission Act. The Courts would not admit it is bound by obligations imposed, by Hawaii's Constitution, Article XII, Compact that federal statutes that comport with the constitution design." John H. Alden v. Maims, 67 U.S.W 4601, 4632 (199) at (3] 4402, further, stated, "the State is barred by the scheme of American Federalism." at 4617. Apparently, by Yuen's silence on this point, as an attorney at law, he must have conceded the existence of Hawaii's Constitution "prohibition" and it's violation by the Charter Article II, §2-1 Powers of the County (prohibited by such constitution or by this charter.) Thus, this Commission should give no validity to that Charter, (powers of other officials "county" over Hawaiian homes lands is restricted. Id. HHCA §206) under the U.S. Constitution.2 It is questionable whether Yuen took the time to read Hawaii's or the U.S. Constitution as well! The ISSUE IS Congress' authority to extend the protection of the Admission Act under Hawaii's or U.S. Constitution compact, 2 The State or County government cannot change Hawaii's compact unilaterally, given the constitutional "prohibition" in Article I, Section 10, against the impairment of contracts. SPP. Federal-State Compact: A New Experiment in Cn-o]p;-ratiyP Fedraii.am, 63 Columbia L.R. 825848 (1963), in this case the United States would probably violate the due process clause if it under took to act alone. Lynch v_ U.S., 292 U.S. 571, 579 (1934) 2 ,4VP 5VI0'1fA'WAI1 PatrickL.'1ljthawaiofa'a 260 KING AVE, HAWAIIAN HOME LANDS HILO, HAWAII 96720 ra:t2~,t * Hawaii County and its' Charter, axsjt with the cona~nt of the United States. CONCLUSION Yuen's opposition memo is completely off the mark. Not one of the Aupuni's points on why this Charter is in violation or grounds has been controverted. Yet the cavalier air in which Yuen addresses this issue suggests another reason for his confidence. It must be because there's another game being played upon Hawaiian citizens. That is, that their claims to Hawaii Constitution Article XII, compact, by Congress' pre-emption as a matter of custom which now underlies an implicit judicial policy and not law, must be simply be shunted aside, demeaned as frivolous, lest it shakes the very foundation upon which the Hawaii County, through it's Charter, has established themselves as legitimate in Hawaii. To that extent, Aupuni is a mere puppet, a victim of a State Commission's game of hypocrisy, in a society where Hawaii County's words and creed, counts for noting if it interferes with entrenched County interests, (such as no fair compensation, for improper past use of water, taxes; diversion of income and proceeds from Hawaiian Home lands into the County funds.) We hope this NOTICE again gives you a history of the 67th and 86th Congress' Law's a hor; v over the boundaries within The Hawaiian Homes Commission Act and not within this County! May Th ea Ones Bles Y for who you are. HA o d han atrick K awai la'a cc: Steve Yamashiro, Mayor Members of The Hawaii County Council Richard Wurderman, Corporation Counsel 3 Stephen K. Yarnashira .2 . ' Itic)red Wardzmen Mqw Y Ggz.,.w C,...d f9I1unfy of ?"azi OFFICE OF THE CORPORATION COUNSEL 101 A.pu furs, idtr 223 • W1.. Hewt7 947204363 . (sea) %142:1 • Fitz Ifa1 %146:2 September 25, 1996 OPINION No. 96-06 Mr. Cary Kiyota Real Property Tax Administrator County of Hawaii 865 Piilani Street Hilo, Hawaii 96720 Dear Mr. Kiyota: Re: Taxation and Lions on Hawaiian Homes Lands This is in response to your memo dated August 29, 1996, in which you posed a number of questions regarding taxation and liens on Hawaiian Homes Lands. 1. Does the County of Hawaii have legal authority to levy real property taxes against lessees of Hawaiian Homes Lands? Yes, under 6208(7) of the HHCA. In r¦ Ainea, 60 Haw. 487 (1979). Under kinQ,S, it is the value of the underlying fee interest that is assessed, not the leasehold. Improvements also are taxable. we understand, however, that Maui County does not tax the fee, only the improvements. 2. Does the County of Hawaii have legal authority to enforce the lien for real property taxes against 1089003 of Hawaiian Home lands? Probably not. we find no definitive caselaw on the issue. However, S4 of the Admission Act, and Article XII Section 3 of the State Constitution, which adopted the Hawaiian Homes Commission Act as a compact with the United States, provide that 'the encumbrances avthorised to be placed Mr. Cary Kiyota Page 2 September 25, 1996 on Hawaiian home lands by officers other than those charged with the administration of such Act, shall not be increased, except with the consent of the United States.' The HHCA did not authorize the State or local government to apply tax lions to Hawaiian Homes Lands. To the extent that a real property tax lion is an encumbrance on the property created by non-administrators of DHHL, an act of Congress would be required to attach it to Hawaiian home lands. The HHCA also embodies express previsions that the Governor and the board of land and natural resources not exercise their powers and duties over Hawaiian Homes Lands. 5106. These provisions evidence a strong intent that Hawaiian Homes Lands not be controlled by state or local government, but by DHHL. The disposition of Hawaiian Homes lands by County tax sale would seem to be in contravention of this intent. In addition, 519-37 states that the tax lien is upon 'the property assessed.' Under In to Ainea, the property assessed is the State's fee simple interest. Under 519-89, 'the tax shall not become a liens against leased State property. As you are aware, foreclosure attempts would also pose practical problems in that the leases can only be given to qualified Native Hawaiians, according to priority determined by DHHL. Also, lessees get their interests for nominal rents. One wonders what bids would be received; taking substantial bids for these leases also would conflict with the HHG policy of providing the losses for nominal rents. Note that under 5216(d) of the HHCA, DHHL (not the County) has a first lion against the lessee's interest for taxes and other expenses paid by the Department. Under HHG 5210, DHNL can cancel the lease for nonpayment of taxes. Thus, it is DHNL which has the primary tax collection/enforcement authority under the HHCA. Section 210 mandates that when the Department has reason to believe that a lease condition such as that requiring the lessee to pay taxes has been violated, the Department 'shall give due notice and afford opportunity for a hearing to the lessee. s if upon hearing the department finds a violation, the department -mays cancel the lease. The foregoing indicates that 7HHL has a mandate to pursue payment of taxes, with some discretion as to when and how the payments will be obtained. Thus, the County's primary effort to collect taxes on Hawaiian Homes Lands should be through DHHL. Mr. Gary Kiyota Page 3 September 25, 1996 We should provide DHHL with detailed statements of delinquencies and request that they follow through with their collection mandate. Should DHHL fail to take action to get the taxes paid, we might consider filing suit for a mandatory injunction ordering DHHL to carry out its statutory mandate. This would probably be far more efficient than proceeding with a multitude of personal actions against the individual lessees. Sincerely, RICHARD D. WURDEMAN Corporation Counsel SY IVAN M. TORIGOE Deputy Corporation Counsel APPROVED: RICHARD WURDE4AN Corporation Counsel APP:ch 23001