Planning Department Damage Control

SUBHEAD: Planning Director Mike Dahilig won't appear in public with County Council concerning TVRs.

By Joan Conrow on 23 May 2013 for Kauai Eclectic -
(http://kauaieclectic.blogspot.com/2013/05/musings-damage-control.html)


Image above: Mike Dahilig at the time he was appointed Kauai Planing Director. From (http://thegardenisland.com/news/local/planning-commission-confirms-dahilig/article_5413a092-0208-11e1-a58f-001cc4c03286.html).

Planning Director Mike Dahilig was a no show at the County Council, and the Council wasn't pleased.

“The Administration has decided to say let's do damage control and not give anyone an opportunity to expose more,” Councilman Mel Rapozo said. “That's what it is. It's clear and plain.”

The Council was scheduled to question Mike about about his plans for TVR enforcement — a presentation Mike cut short two weeks ago when he dashed off to catch a plane.

Instead, the Council got County Attorney Al Castillo, who said he had advised Mike to skip the session. If Mike did attend, Al said, he might need to invoke the Fifth Amendment.

Councilwoman JoAnn Yukimura hotly contested whether Mike could refuse to answer any questions, even those that didn't deal with a possible Council investigation into TVR abuses.

Mel said he had never before seen a department head fail to show up. “That to me is disrespectful, to say I'm not coming to talk about anything.”

Chairman Jay Furfaro advised Al to confer again with Mike. But though the agenda item was postponed for a few hours, Mike came.

Instead, the Council got Deputy County Attorney Ian Jung, who pressed for an executive session (ES) to “explain the legal complexities of the TVR law” before the Council engaged in open discussion on enforcement.

Mel was dubious. “The appearance is like we're kind of hiding something.”

Ian said that anything discussed in public could be used against the county, which is currently being sued for denying one TVR permit on ag land, and holding contested case hearings on other denials. “We have to formulate a valid position before we engage in open discussion so we have a strategy for litigation,” Ian said.

Councilman Gary Hooser noted that litigation was always going on. Typically, the County Attorney typically sits next to whomever is being questioned and interjects if things start to stray. “Why can't we do it that way?” Gary asked.

To which Ian replied: “I want you to understand there are concerns here and I would rather do that in private.

Ian said it was important for the Council to be aware of the all the legal issues “before engaging in open dialog and criticism of the planning director and criticism of the Administration for not going after TVRs. Because we are. We're enforcing to the point of pending applications, getting through that batch before we move on. Things move in steps.”

Mel said the day's events “make it clear the 3.17 (Council investigation) is needed. This problem is bigger than I think we all even imagined. It bothers me tremendously that this body would be disrespected.”

“It's sad we can't talk to our planning director about a front-burner issue in the community,” Gary said. “It seems something big is out of whack in this county. We should ask the mayor to come forward and take responsibility and brief us in the future.”

JoAnn also expressed disappointment at how things had unfolded. “I'm very bothered by the way the Administration has been responding. It's both disrespectful and not very artful and not very diplomatic.”

Mel said the Council had merely wanted to ask Mike, “What's your plan? When's it going to happen?” Instead, Mike "went running to the county attorney" and the discussion was moved to a closed session. “And in the meantime, the public gets left out.”

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Kauai Heroes

SUBHEAD: As David Bowie sang “We can be heroes, just for one day.” Maybe in a month or so our County Council can be, too.

By Joan Conrow on 16 May 2013 for Kauai Eclectic  -
(http://kauaieclectic.blogspot.com/2013/05/musings-heroes.html)


Image above: As a result of the intense illegal landscaping, erosion is consuming the public access to the beach. From (http://kauaieclectic.blogspot.com/2013/04/musings-abuse-chronicles-14-a.html).

Given the reactions, you would've thought the Kauai County Council had proposed The Inquisition rather than an investigation into just how, exactly, the vacation rental issue got so damn messed up.

I mean, nobody was gonna be burned at the stake or anything. Just a few subpoenas, some interviews, a little fact-finding, perhaps a wrist-slap, or in the best county tradition, an assignment to another job where your incompetence isn't quite so noticeable.

Absolutely no investigation is needed, but if one must be done, let the Administration do it, pleaded HGEA union rep Gerald Ako, who admitted he had not even read the resolution he was testifying against.

Aw, come on, give the Administration another chance, begged managing director Gary Heu. We'll get it right this time. After all, the mayor has formed an “oversight committee at an executive level...to get our arms around this issue.”

When was it formed? Oh, about two weeks ago.

“We should really pull back and take a much broader look at the issue,” Heu advised.

You mean as in whether we want Mayor Bernard Carvalho to represent us for another four years, seeing as how all this ineptitude and inaction happened under his watch? Or just who, exactly, does benefit from blanket approvals of non-qualifying TVRs? Or how much this boondoggle has — and will — cost the taxpayers?

What the county really requires is a re-engineering study, “a big picture, long-term kind of thing,” Heu said. But the Administration knows nobody wants to wait around six months to a year for that. So instead, “a short term plan is being developed, such as taking some of these [years old] violations into enforcement.”

Be still, my heart.

The planning department has actually formed a four-person task force “to take a look at a few of these violations and a find a way to move them forward,” Heu said.

Can we expect in three months to see at least one case brought to a hearings officer, civil or criminal charges, fines? wondered Councilwoman JoAnn Yukimura, ever the optimist.

“We would like to move as soon as possible,” Heu hedged, following the county maxim of never let yourself be pinned down.

By the afternoon, that “few” had somehow mushroomed into 30 cases that Planning is investigating or enforcing against, or maybe looked at the files or something. It wasn't totally clear, but the number sounded big. Or at least, bigger than “a few,” and hopefully big enough to head off a Council investigation at the pass.

More obfuscation was provided by County Attorney Al Castillo, who was flanked in this most serious matter by deputy county attorneys Maunakea Trask and Ian Jung. The three of them offered a lot of mumbo jumbo about adjudication, due process for TVR owners, county rights, 20 contested cases, Council overstepping its bounds, duplicate investigations. It all boiled down to the same message: butt out and let the Administration handle it.

“I would've liked to be able to review the resolution first for its legality,” Castillo sniffed. No one sent it to his office with that specific request, though surely he knew about it, since it was publicly noticed a week ago, and he could have shown some initiative in checking it out.

But then, initiative is apparently not a county value, or we wouldn't have a planning department that waits until it receives a formal complaint before investigating, even when it has been made publicly aware of zoning violations.

“Can we get an attorney who can help us?” asked Councilman Mel Rapozo in frustration.

One thing the Council and Administration did agree upon, aside from wanting to “get to the same place” — a destination that was not precisely defined, and appears to have several routes, depending on who is steering and how much they wish to keep hidden— was the county's tremendous liability exposure. Then there's its unspoken counterpart: how much that exposure might increase if the county's dirty laundry is hung out on the line.

Caren Diamond, a longtime beach advocate and member of Protect Our Neighbor Ohana, discussed the dangers of allowing visitors to keep sleeping in ground floor units within the flood zone.

“Every morning that visitors wake up in these units exposes the county to liability, especially that morning when a tsunami comes,” she said.

After her testimony, Councilman Ross Kagawa praised her contribution to the investigation and evidence laid out in the 16-and-counting “Abuse Chronicles” series on this blog: “You and Joan and Barbara Robeson [Caren's fellow PONO member] are heroes.”

“You are only heroes if the Council takes action to rectify,” said Councilman Gary Hooser, who with Rapozo introduced the resolution to investigate.

About seven hours later, the Council voted to defer the issue for a month.

Oh.

Well, as David Bowie would sing: “We can be heroes, just for one day.”

And maybe in a month or so the Council can be, too.
.

Abuse Chronicles 2

SUBHEAD: Ignored by Kauai county, continued use and improvements to illegal house rentals persist on North Shore.

By Joan Conrow on 21 February 2013 for Kauai Eclectic -
(http://kauaieclectic.blogspot.com/2013/02/abuse-chronicles-2.html)


Image above: Promotional photo of Rainbow's End. From (http://www.napaliprop.com/Rainbows-End.html).

As we continue our investigation into idiosyncratic North Shore Kauai transient vacation rental (TVR) permits, our attention turns to two tiny A-frames that were built in 1972, right across the street from windswept Kepuhi Point.

Though they are no longer tiny, having experienced the vacation rental-induced mushrooming effect of so many houses in these parts. One of the A-frames is called Rainbows End, and is owned by Joseph and Patricia Gernard of Texas. The other is called Ka Hale Poo O' Kauai and is owned by Ron Seiple of Oahu and his wife, Mary Elizabeth.

In his Oct. 6, 2010, application to the Kauai County Planning Department for a nonconforming use (NCU) permit to operate a TVR, Seiple submits a notarized affidavit in which swears that he has operated a vacation rental on the property since 1972. Under the county ordinance, a unit must have been in use as a TVR prior to 2008 to qualify for a permit. Seiple also added a note that read, in part:

We have owned this property since 1972. It was a legal [sic] vacation rental managed by Kauai Real Estate and Vacation Rentals, Napali and Prosser from that time until it was seriously damaged by hurricane Iniki [in 1992]. After Iniki we rented this property as a long term rental unit until a few years ago. Two years ago we began a major re-building of our property as it was long overdue.

The “major re-building” he is referencing was a $243,000 expansion that added 2,111 square feet to the existing 1,178-square-foot house. It was allowed under a building permit that was first issued in 2007, revoked on June 24, 2008 and then re-issued on Aug. 14, 2009.

The county zoning ordinance states:

“If any nonconforming use ceases for any reason for a continuous period of 12 calendar months or for 1 season if use be seasonal, then the use should not be resumed and any use of the building or property thereafter shall be in full conformance with the provisions of this chapter.”

Yet despite acknowledging that his property had not been in vacation rental use for the previous 18 years, and had been under construction for the past two years — two admissions that proved the nonconforming use had ceased for more than a year — Seiple was still given a TVR permit. Curiously, the TVR permit was issued before the final building inspection on June 30, 2011.

Seiple clearly had, by his own admission, ceased his non-conforming use for more than a year, yet still he was allowed to resume it. What's more, a review of county tax records show his property taxes are calculated according to the original square footage, not the expansion.


Image above: Promotional shorebreak view from Rainbow's End. From (http://www.napaliprop.com/Rainbows-End.html).

Meanwhile, after the county adopted the first TVR ordinance in 2008, the Gernards applied for an NCU permit to legally operate Rainbows End, which they had purchased in September 2000 for $600,000. In his notarized affidavit, Gernard claims the house had been used as a vacation rental since Jan. 1, 2001, and swears:

“No building permits have been issued since then [the original in 1972]. The house has not been modified since it was built. A previous owner modified a garage storage area to accommodate an “Ohana Unit”. It is not known to us if these modifications were permitted by the county. This “Ohana unit” is presently unused and is being reverted to storage in accordance with the regulations for TVR.”

The county conducted an inspection, as the initial TVR ordinance required, and found that the “ohana unit” was an illegal dwelling unit with a full kitchen — as in an installed range, not just a rice cooker.

The county ordered the Gernards to cease and desist TVR uses on the property, and stop using the storage shed as a living unit. The Gernards also were ordered to “submit plans and applications along with filing fees for review by the department for all illegal construction additions and alterations. Such construction, additions and alterations without proper approval shall be demolished and removed.”

The Gernards responded by getting a building permit valued at $54,000 on May 28, 2009. The Planning Department reviewed the permit and made the comment, “Violation exists.” That permit was subsequently closed. On July 26, 2010, the Gernards were issued a building permit for a lanai, garage and bedroom addition that essentially encompassed the illegal structure into the original 1,577-square-foot residence, enlarging it by 1,234 feet.

However, it appears that even more work was done, as a current ad for Rainbows End states, emphasis added: "Everything in the 3 bedroom 3 bath house is new." The original house had just one bath. The property is served by a cesspool.

In 2010, the county revised the TVR ordinance, removing the mandatory inspection and other requirements, and allowing agricultural properties to apply. On Sept. 23, 2010, when the house was still under re-construction, the Gernards resubmitted their application. This time, it was granted, on April 5, 2011, even though, like Hale Poo, the non-conforming use had ceased for more than a year. Like Hale Poo, the permit was approved months before the final building inspection, which took place on Sep. 21, 2011, when the certificate of occupancy was also granted.

And like Hale Poo, Rainbows End was able to accommodate many more guests than in the original structure. Non-conforming uses are supposed to be brought into compliance, not expanded.

A review of the TVR files shows no record of either owner submitting any documentation to prove the houses had been used as vacation rentals prior to 2008, such as leases or a record of paying general excise or transient occupancy taxes.

Furthermore, it appears that Seiple is currently not using his house as a TVR, which raises the question: are people allowed to “bank” these valuable permits until they're ready to sell the property and take advantage of the higher prices that can be gained by having a lifetime TVR permit? As we saw in the first installment of "Abuse Chronicles," a TVR permit can add $1 million to the value of a house.

Next, the King and the Princess.

See also:
Kauai Eclectic: Abuse Chronicles  2/19/13
Ea O Ka Aina: Ominous Omissions 2/7/13
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Ominous Omissions

SUBHEAD: The owner signed an affidavit stating no alterations, improvements, or uses contrary to law were made.

By Joan Conrow on 7 February 2013 for Kauai Eclectic -
(http://kauaieclectic.blogspot.com/2013/02/musings-ominous-omissions.html)


Image above: View from lani of "exclusive private" beach across Wainiha River. From rental ad (http://www.vrbo.com/128547#).

A search of Kauai County documents finds no record of any permits authorizing extensive improvements to a Wainiha vacation rental, including the riverside deck/dock where a Canadian visitor, Mark McLean. drowned on Tuesday.

According to a county press release, McLean “was found face down and unresponsive after jumping from a platform into the shallow water below.”
 
An online advertisement for the Kauai Paradise House transient vacation rental (TVR) suggests:

"Rent a kayak (a local vendor offers 7 days for the price of 5!) and paddle right from the private dock to the private and peaceful white sandy beach, or paddle up the quiet Wainiha River to explore the lush green island."

Of course, we all know there are no private beaches in Hawaii, and that Wainiha River is far from quiet. In fact, the name means “raging waters.”



Image above: Renovated living room of rental house with new flooring, lighting and fan fixtures. From rental ad (http://www.vrbo.com/128547#).
 
But that's not the only eyebrow-raising claim. The ad also states, emphasis added:

"This entirely renovated private oceanfront retreat on the North Shore of Kauai in Wainiha on the edge of Hanalei is perfect for short- or long-term getaways for family or friends seeking luxurious accommodations with breathtaking views.

The Vacation Home: Newly renovated on the stunning blue Pacific Ocean, Kauai Paradise House is a truly unique oceanfront and riverfront property featuring its own private beach, oceanfront views, 3 king-bed suites (the third of which can be converted to 2 twin beds if desired), gourmet kitchen, travertine tile floors, 3 marble bathrooms, great room with entertainment center, covered lanai, lush backyard, and private deck and dock.
 
This sophisticated home with a resort feel boasts thoughtful touches throughout, including Tommy Bahama furniture, luxury linens, dual master suites with king-size beds and walk-in showers, new gourmet kitchen with top-of-the-line stainless-steel appliances
 
(including toaster oven, blender and coffee maker), marble guest bathroom with large walk-in shower, spacious family room with TV and DVD/CD player, high-speed Internet, telephone, TVs and DVDs in every bedroom, gas BBQ on the covered lanai overlooking the deep blue sea, and private oceanfront deck with steps down to your own boat dock."

Sounds pretty flash. Realtor Jane Abramo's current sales listing for the house reiterates the “all new” verbiage:

"Recent upgrades include a new 200 square foot front lanai, expanded 600 square foot covered back lanai with travertine tile, 150 square foot deck above the river, a brand new roof, fresh paint inside and outside, new fencing and tropical landscaping. 

This meticulously renovated private oceanfront retreat on the North Shore of Kauai in Wainiha is perfect for short or long-term getaways for family or friends seeking luxurious accommodations with majestic views. Lovingly refurbished on a private, fenced lot nestled at the edge of the breath-taking Pacific, Kauai Paradise House boasts its own exclusive beach."

[WTF? Exclusive beach?]

Yet a review of real property tax records shows the property as having four bedrooms and two baths, not three suites. And an online search of county building permits shows that aside from the original 1972 construction permit, and some post-Iniki 1993 permits for a fence and minor electrical and plumbing work, there is no record of any permits for these recent upgrades and additions.


Image above: New granite topped kitchen counters and stainless steel fixtures. From rental ad (http://www.vrbo.com/128547#)

So when was this property transformed from a modest hale into a lavish “entirely renovated” vacation rental with a “resort feel” that is now on the market for $2.579 million, after having sold for $1.475 million in 2005? How much of that increased value is due to the TVR permit? And why are the property taxes just $ 2,133.80 per year?

More importantly, why did the county issue a vacation rental permit for this property when its building permits apparently aren't in order? Especially when these substantial improvements were made without complying with federal flood requirements, as is the case with a number of North Shore TVRs.

This is the kind of stuff that slips by when you don't conduct actual site inspections before issuing TVR permits. Yes, that inspection requirement was stricken from the most recent TVR bill, which was introduced by Councilman Tim Bynum and adopted by the Council after the infamous “beer gate.”

Of course, the owner is required to sign a notarized affidavit stating “Building permit number(s) were approved on ____ for all structures on the property and there were no expansions, alterations, improvements, or uses contrary to State and County land use and planning laws.” But how meaningful is that if the county doesn't check? Apparently about as meaningful as the farm dwelling affidavit.

Sadly, it's the visitors who end up suffering from the lack of oversight and full disclosure. In the comments left on the Kauai Paradise House ad, one visitor noted:

"Last, a suggestion; the step from the deck to the river was long, and slippery, especially at low tide. I would suggest one last step or a platform closer to the water.
Another visitor wrote:

We would definitely stay here again, especially when our infant daughter is old enough to go into the river on a floatie too. We put our toddler into her floaties and took her across [the river] to the beach and she loved it"

Meanwhile, the Jan. 12, 2013 Surfrider Kauai Blue Water Task Force report on enterococcus bacterial concentration per 100 ml showed Wainiha River at 173 for single day results and 369.9 for the winter geomean. The geomean should be less than 35, which means this is hardly the place where you'd want your young children to frolic.

So who does bear responsibility for ensuring our visitors are fully informed of the risks they face, and that the houses they rent for their vacations are safe and in full compliance with county laws?

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Kauai TVR Whine-A-Thon

SOURCE: Kenneth Taylor (taylork021@Hawaii.rr.com)
SUBHEAD: After listening to wealthy people play the victim and whine about how they need more, more, more, I’d had a belly full.

By Joan Conrow on 22 July 2010 in Kauai Eclectic -  
(http://kauaieclectic.blogspot.com/2010/07/musings-whine-thon.html)


 
Image above: "Haena Treehouse in Hanalei" TVR promo stating "This Haena vacation rental is fully furnished including linens, games, videos and music, with an ipod friendly stereo system." Is it lega? From (http://haenatreehouse.com).  

I didn’t plan to testify at yesterday’s meeting of the County Council’s planning committee. But after listening to the comments made by people who want transient vacation rentals (TVRs) to continue on ag land, I just had to speak up. Like the testimony from Warren Doi, who said that in this current economic climate, “we cannot choke off any potential source of economic activity. Any source of jobs needs to be promoted rather than restricted.” OK, green light for ice dealers.

Then there was Elizabeth Freeman, who started out by saying she usually appears before the Council asking them to recognize one of the volunteers who work so hard on her Festival of Lights. But this time, she was there for herself. Oh, but not really herself. She was there on behalf of the people she employs, and it sure would be a shame if she couldn’t donate the money she makes off her TVR to one of the many community causes she supports. Later, her gardener and maid were trotted out to beg the Council for the opportunity to keep their jobs.

One can only hope that in addition to writing their testimony, Elizabeth also paid them for the indignity. In between was Harvest Edmonds, who talked of how the TVR she and her husband operated for the last 17 years “supplemented our ability to keep that land.” One would have thought the money they derived as Realtors selling off the North Shore would have paid the bills, but apparently not. Then Carol Conley told of how the revenue from her rental “makes it possible for me to live on Kauai,” and she just might not be able to stay if she couldn’t do a TVR, and that would be hard on her kids.

Of course, she could have bought something she could afford, like a condo in Puhi rather than a parcel on the North Shore.... Next up was the guy who proudly told of how his “homestay” employs seven people. Some of them only work an hour or three a week, but hey, it’s a job, right? One of my favorites was a lady named Susan, who unwittingly laid out how this whole boondoggle gets started: “Lucy [Kawaihalau]from Kauai Vacation Rentals was kind enough to set us up with vacation rentals.” Yes, so kind. The Realtors sell people land they can’t afford and tell them no worries, they can just vacation rental to make the mortgage and they’ll even handle the property management and bookkeeping. Such a deal. “What’s wrong with it?” Susan asked. “How is it hurting anyone?”

 She apparently was oblivious to such aspects as the way non-ag users result in higher property taxes that drive bonafide farmers out of business, ala Sherwood Conant, and push the cost of farm land out of reach of farmers, much less the fact that it’s illegal under state law. Most of the people, including Michele Hughes, the developer from Aspen who created Kealia Kai and owns 50 acres with TVRs above Anini and Kauapea beaches – now there’s some top dollar real estate – complained that their land wasn’t really suited to farming.

Surely developers like Michele know they could always go before the state Land Use Commission and seek a reclassification of their land to take it out of agriculture. But it’s so much cheaper to just sneak on through. Michele, who is really too akamai about the development process to play dumb, claimed, “All these years we’ve done what we thought was right. We went to our lawyers [former deputy county attorney Lorna Nishimitsu among them] and said are we legal and they said yes.”

Which might explain why Michele’s website cleverly describes her units as “farm dwellings.” Great cover -- except they aren’t on a farm or dwelt in by farmers. She also spoke of how she was expecting that there would be “some re-zoning going on” when the Important Ag Land study is completed, with the implication that her land would be among the acreage moved out of ag. How sweet.

And yet we keep hearing that no, the IAL designations won’t result in the second Mahele. Nearly all of the speakers were for the bill, and all who spoke in favor had financial interests in it being passed. But there were a few who spoke against it, including Mel Rapozo and westsider Arthur Brun, who said, “This bill is wrong. What about the local families that had farm land for generations and followed the law? You’re making our families that followed the law suffer. I don’t think you should be punishing the people who followed the law.” And that’s a very good point.

Because under the bill, only those who were already operating will have the chance to apply for the permits. Anyone who waited and followed the law is aced out. Or as an observer noted: "Once again, the local people who follow the law get screwed while the rich haoles who know how to get around the law make out." Brun concluded: “Do what is right for the 60,000 people of Kauai, not the 26 people of Kauai.” But the Council, as Jay Furfaro and bill author Tim Bynum noted more than once, was looking for “closure.” And since they acknowledged, following my testimony, that this bill wasn’t likely to stave off lawsuits from anyone who might be affected by this issue, the closure they’re apparently looking for is to get it off the Council agenda before the election.

Before approving it, they did add an amendment that requires applicants to be engaged in bonafide farming, as evidenced by state and federal tax returns or -- and here's the giant loophole that's big enough for a sleeps 12 mansion -- if the planning commission finds the shape, size, topography or surrounding land uses (you know, like other TVRs) inhibits intensive agriculture. Ladies and gentlemen, let the influence peddling begin. Anyway, after listening to wealthy people play the victim and whine about how they need more, more, more, I’d had a belly full. And besides, it was time for me to get back to work, where it was a refreshing to man the food pantry and serve people who are truly in need, and grateful for what they get.

See also:
Ea O Ka Aina: Musings on TVR Hatred 8/24/09 .