It wasn’t the kind of public hearing notice that would have attracted a lot of attention. I was looking for it and still almost missed it. The notice was a single sheet of white paper taped to the door of a room to the left of the entrance to the Mission Memorial Building, a low red brick structure tucked behind Honolulu Hale, our City Hall. If you didn’t have a special interest in the hearing, and hadn’t been there before, you wouldn’t have noticed the meeting room or the agenda posted on the door.
I arrived about 20 minutes early. The lights were on, but the door was locked, so I cooled my heels for a while. It wasn’t a very auspicious beginning.
The posted agenda was brief. Except for a vote on two prior cases, our case would take up the entire hearing.
City and County of Honolulu
Department of Planning and Permitting
BUILDING BOARD OF APPEALS
Meeting of the Building Board of Appeals
NOTICE IS HEREBY GIVEN of a hearing to be held by the Building Board of Appeals (BBA) of the City and County of Honolulu under Chapter 16 (Building Code), ROH 1990, as amended, for the following requests on the date and at the time specified or soon thereafter.
DATE: Friday, March 6, 2020
TIME: 1:30 p.m.
PLACE: Mission Memorial Hearing Room, 1st Floor (Conference Room)
Mission Memorial Building
550 South King Street
Honolulu, Hawaii 96813
A G E N D A
1. Hearing before the Building Board of Appeals of the City and County of Honolulu:
Case No. 2117
Applicants: Mr. Ian Y. Lind and Mrs. Meda C. Lind
Location: 934 Kealaolu Avenue, Honolulu, 96816
Tax Map Key: 3-5-009:011
Action: Request to Appeal Notice of Order No. 2018/NOO-490
“Our” hearing came at the tail end a two-year saga dealing with the Department of Planning and Permitting over our failure to obtain a building permit before replacing a relatively small section of our driveway that might have been a total of 125 square feet, followed by our efforts to correct the violation.
Long story short–we were cited for rebuilding that section of the driveway without a permit. It was, as they say, a fair cop. We hadn’t realized a permit was necessary for a small job like this. We were wrong. The problems came as we tried to make our way through the department’s bureaucratic process to correct the violation. Initially we thought an after-the-fact permit would resolve the issue. It turned out there was more to deal with than that, although it was quite a while before we got a fuller picture of things.
Along the way, the inspector who issued the original Notice of Violation decided to escalate our case by referring it to the department’s Code Compliance Branch for issuance of a “Notice of Order.” An NOO starts the clock ticking with daily fines accruing once its deadline passes, at least on paper, until the violation is finally corrected. It put us there alongside the monster home builders and operators of illegal vacation rentals.
We felt the decision to move to active enforcement was unfair, and procedurally improper, not because being cited was unfair (we had already acknowledged our error) but because of the context. At the time our driveway case was referred to DPP’s enforcement arm, we were awaiting a decision on an application for a driveway variance which had been pending with the director’s office for just over 60 days. If the variance had been granted, the entire problem would have been resolved, and we could have kept our driveway as-is after payment of some small fines. While we awaited the director’s decision, we were stuck. It was that decision that would tell us what we had to do next. Without it, we were in limbo. By the way, that limbo continued for another five months before we got a decision on the variance request. For the record, it was denied. That wasn’t the whole story, but it will do for now.
I’m not going to get into the gritty details here. Instead I’ll share a few general impressions about the Building Board of Appeals and the hearing. Then, in a later post this week, I’ll explain what I think are the key things the board is going to have to struggle with in order to reach a decision. And, if it still seems relevant, I’ll circle around to more of the details of how we got mired in the quest for a permit to rebuild our driveway to comply with the city’s current driveway standard.
Friday’s public hearing was scheduled to begin at 1:30, and members of the board started trickling and and taking their places five or 10 minutes before that.
The first thing I noticed was that their meeting packets were waiting for them on the tables in the front of the room, with each place designated by name. As the members drifted in, it was pretty clear they were seeing the written materials for the first time. Some looked at the first couple of pages, others thumbed quickly through the stack. It didn’t appear that any had seen the paperwork in advance, and none had the time to read it in the few minutes before the hearing started. That surprised and immediately concerned me. I had assumed, obviously wrongly, that board members would know at least the very basic outline of the case and the issues raised in our written statement (submitted two weeks previously) as well as our original appeal submitted last year. I had planned my presentation at the hearing to build on those basic elements. Instead, I had to retool on the fly and hope that I could capture most of those basic arguments along with what I had intended to tell the board.
This despite submitting documents at least 14 days before the hearing, as required. They included a Position Statement, a statement of “facts,” a list of witnesses (if any) and any exhibits we wanted to present. I did my best and hand-delivered 11 copies before the deadline. A deputy corporation counsel submitted a similar document on behalf of the Director of Planning and Permitting, which included an affidavit by the building inspector and copies of about 13 documents, all nicely organized and tabbed, giving it a nice, official appearance. All apparently unseen by board members until the hearing itself.
Luckily, there was a delay at the get-go. The sound system wasn’t working. The microphones were set up in front of board members, and on tables where the appellants (us) and the department’s legal representatives would sit. The board chair, a civil engineer with extensive professional experience, suggested we could all just speak louder, but the board’s staff assistant reminded everyone a recording was needed for a proper official record of the proceedings. She spent a while on the phone quietly pleading for someone to come over to troubleshoot the problem, and at each stage had to explain the building board of appeals to other city employees who had likely never heard of it. It seemed like we were there awkwardly waiting for a long time, but it was probably only 15-20 minutes before help arrived and quickly were able to correct the problem. “Testing, testing, testing…” All the mics checked out, and we were ready to roll.
The members of the board are professionals, with backgrounds in architecture, engineering, contracting, etc. I began my presentation by recognizing that their technical experience and expertise would go mostly underutilized because our appeal concerns process and procedure.
Board members seemed attentive as I presented our case, and then a deputy corporation counsel came up responded with the department’s position. She said it was her first such hearing. She also brought the building inspector involved in our matter, and questioned him about an affidavit that was submitted with the department’s paperwork. There was a back and forth, as we each had opportunities to respond to the other side.
I think the entire hearing took about 90 minutes, including a few minutes when the board met briefly in executive session.
There weren’t a lot of questions asked. Several board members did raise questions, but I think the majority were silent. Almost all questions were directed to the deputy corp counsel.
I have to admit this was difficult not only because I’ve not been in such a proceeding before, but also because the inspector is truly a nice, soft-spoken guy. That left me feeling uncomfortable about some parts of the adversarial proceeding.
My impression is that a couple of board members “got” what I was arguing, but it wasn’t possible to get a fix on the majority. A separate deputy corporation counsel represented the board, but said nothing during the hearing, so it wasn’t possible to get a read on what he might have advised the board about the issues I had pointed out.
The next step is that the Board of Appeals will issue a decision, along with separate findings of fact and conclusions of law. I doubt that will be a quite turnaround.
Outside the meeting room, the deputy corporation counsel tried to assure me that once we get a permit and bring the driveway into compliance with the city standards, we will have an opportunity to ask the director (“a very reasonable person,” she said) to waive all or part of those fines accruing on paper now for the 273 days we’ve been waiting for our building permit application, to be approved. Yes, you read that correctly. Our original application for a permit allowing us to correct the violation was filed before the deadline. But the department’s policies hold us accountable for the lengthy time our permit application and plans have been “in review.”
Taken literally, we would be facing over $13,600 in fines at this point, even though none of the 273-days-and-counting delay was our fault.
There’s something basic wrong with that picture, and I have to hope the members of the Building Board of Appeals will agree.
