Musings: Crying and Wailing

The sky was dense with quilted clouds that streamed thickly over a moon on the full side of half when Koko and I went walking this morning. No one was out but the neighborhood cats, which lurked in bushes, flattened down to avoid detection as we passed, then scurried across dark, wet pavement beneath street lights that inexplicably went off as we passed.

I hadn’t planned to get up quite so early this morning, but decided I might as well after listening to a neighbor’s baby cry for 45 minutes, its wailing and evident distress increasing with each passing minute.

It’s not unlike the situation the county now faces with its transient vacation rental (TVR) ordinance. Property owners, accustomed to their privilege of bringing in hefty revenues, are crying over the prospect of having that use — even when illegal — denied, while citizens, weary of having their neighborhoods commercialized, are wailing over the county’s bizarre implementation of the law.

And the planning commission, it seems, is becoming increasingly distressed at having to sort out this mess in a piecemeal fashion in the form of blanket reversals of TVR permits that county inspectors initially denied, but now — for reasons not made public — county planners are seeking to allow.

The most recent batch of what one participant termed “32 more flips for the TVR travesty” came before the commission yesterday, but while they’ve approved 33 such reversals in the past, this time the members balked.

According to an article in today’s The Garden Island:

Barbara Robeson of Wainiha, a former planning commissioner now with the group Protect Our Neighborhood ‘Ohana, argued against “blanket approvals,” saying there are many problems with some of the parcels in question, including five where owners are receiving homeowner exemptions for property-tax purposes (where owners pledge their homes are their principal places of residence) and also submitted signed, notarized documents saying their residences are vacation rentals.

To make their case, Barbara and Caren Diamond used a Haena vacation rental known as Pohaku House as an example. Its web advertisement clearly states:

The Lower level features a suite with 2 twins, separate kitchen, and bathroom with Jacuzzi tub and shower combination. A separate bedroom with queen bed, flat screen satellite TV and detached bath with showerstall completes the downstairs.

Yet this is a house in the flood zone, which means no permanent improvements are allowed on the ground floor. And that’s not all. The PONO folks also presented Commissioners with documentation that showed the house had no history as a vacation rental, even though approvals are supposed to be limited to “grandfathered” uses. Further the county's website showed the application was received past the deadline.

This is also one of those houses that was totally redone — its own website boasts “newly built” and “Totally brand new” — under the ”unsubstantial improvement” scam with a building permit valued at just $60,000 and numerous waived inspections.

When confronted with such facts, Deputy Planning Director Imai Aiu didn’t know quite what to do, except claim the property was inspected and passed and the county can't be responsible for things that happen after it’s inspected. Caren countered that the property had, in fact, looked like that ever since it was rebuilt and PONO had submitted that information even before the inspection supposedly occured.

So either the county didn’t actually inspect the property, or it ignored the violations.

Well, after hearing all this, the Commissioners thought it might be nice to actually have some documentation from the planning department to back up their request to reverse the denials, or delays in approval, or whatever they were, exactly. The planning director's letter to the Commission did not say that all 32 were denied, but that "the delay in approval stemmed from the Department's need for further investigation into compliance with the qualification requirements enumerated in the TVR Ordinance."

According to the Garden Island story:

Commissioner Herman Texeira asked if there are other potential violations on the list.

[Deputy County Attorney Ian] Jung said once NCU [non-conforming use] certificates are approved, owners have certain vested rights.

Commissioner Hartwell Blake, a former county attorney, asked if permits are supposed to be revoked if new violations occur.

Jung said that is a “gray area,” to which Blake responded, “This is a blatant poke in the eye,” adding that he is not surprised many residents are upset about how the new law is being implemented and interpreted.

Blake said he’s not anti-TVR, but argued that if a county ordinance is going to be implemented, interpreted and enforced, it should be done right.

“It’s just wrong,” Blake said.

Anyway, two of the 32 items were withdrawn and the Commission voted to defer action pending more information. It also voted to deny approval of a TVR on ag land — a use expressly not allowed under the ordinance — because the owner didn’t file his appeal of the denial in a timely fashion.

So now we have a landowner and his attorney, Dan Hempey, arguing not just that the TVR should be allowed, but that the land in question shouldn’t even be zoned ag because, according to an article in The Garden Island, “one-fifth of the land is brackish marsh and a 10,000-square-foot lot is too small to allow farming.”

And then Dan used the words that always instill deep fear in the county:

”Overall, we’re talking about a pretty significant property right,” Hempey said at the commission’s regular meeting at the first-floor meeting room of the Lihu‘e Civic Center’s Mo‘ikeha Building here.

But wait. If the state law only allows farm dwellings on ag land, how does the landowner have the “right” to operate a TVR? And if you're halting an illegal use, is that truly a taking?

Meanwhile, planning director Ian Costa, his deputy Imai and the mayor’s brain, Beth Tokioka, apparently had an interview with The Garden Island’s Michael Levine last week in which they attempted to justify the reversals the department has been seeking.

Beth reportedly noted that 200 of the original 500 applications had been denied. But 33 of those were already reversed, another 32 are pending and more are planned. So how many of these denials will actually stick remains an open question.

Ian Costa reportedly claimed the ordinance and its deadlines had “created resource and timing issues,” but as I recall, the Council did approve two new positions specifically for TVR inspections.

Anyway, Dan Hempey reportedly said the next stop for his client might be court, which is where the PONO folks are also headed, and if Prosecutor Shaylene Iseri-Carvalho has her way, those people who are illegally operating TVRS may be going there, too.

Whew.

It seems like a good time to put a freeze on this entire process, conduct a thorough audit of the approval and inspection procedures, see what emerges and take it from there. Otherwise, the county will just continue to dig itself deeper into what is already shaping up to be an expensive and complex hole that will have taxpayers crying over the hefty legal bills and wailing about the county's incompetence.