City attorneys worry that a bill designed to ban commercial activity at two beach parks in Kailua might violate the separation of powers doctrine and be vulnerable to legal challenges.
The concerns are spelled out in a confidential attorney-client communication that Corporation Counsel Robert Carson Godbey and Deputy Corporation Counsel Dawn Spurlin sent May 7 to the nine members of the City Council.
The Council Parks Committee, which refused to discuss the letter’s contents, citing attorney-client privilege, voted 3-2 Tuesday to postpone a vote on the hotly debated Bill 11 until June.
The bill seeks to ban companies that operate tour buses as well those that conduct kayaking, windsurfing and other activities from operating at Kailua and Kalama beach parks. Scores of Kailua residents have testified for the bill, saying what was once a tranquil community beach has become overrun by tourists and rented recreational vehicles.
While no Council members referred directly to the May 7 letter, their discussions indicated the warning of city attorneys figured in the committee’s decision to hold off on a vote on the bill.
Council Chairman Ernie Martin and city attorneys declined to discuss the letter, and Martin would not release it to the Star-Advertiser.
But according to a copy obtained by the Star-Advertiser, city attorneys said the bill — and, by extension, the Council — instructs the parks director on maintenance and operation of specific parks, a responsibility reserved for the administrative branch.
"Bill 11 seeks to exercise an executive function by prohibiting (the parks director) from issuing commercial permits for two specific city parks," the letter said.
The letter suggests "an alternative approach" that establishes a process for the parks director to allow commercial activities at city parks. The proposed draft bill spelled out in the letter allows the director to issue approvals for certain activities under a strict series of rules.
Parks Chairman Tom Berg tried unsuccessfully to persuade his colleagues to incorporate the language suggested by city attorneys in their letter into a new version of Bill 11, saying it would represent a good compromise to meet the concerns the administration raised as well as those of the community.
But Councilman Ikaika Anderson, who sought the ban at the request of his constituents in Kailua, said there are aspects of the city attorneys’ proposal that residents could not live with. He declined to go into specifics, but noted that it would not require the parks director to adhere to the demands of any community beyond holding a public hearing.
Earlier Tuesday, Parks Director Gary Cabato asked Council members to defer the bill to give him another month to come up with a new plan that would allow a set number of permits for selected commercial activities at Kailua Beach Park.
A frustrated Anderson, however, said he first approached the administration a year ago about rectifying the worsening situation at Kailua. "How much time are we going to give him? It’s already been a year," Anderson said.
Anderson said he wants to hear from residents about what should be done next.
An earlier bill passed by the Council and introduced by Anderson prohibits commercial activity at Kailua and Kalama beach parks from 1 p.m. Saturdays through 6:30 a.m. Mondays beginning July 1.
