Musings: Commercializing Conservation Lands

I went out in the night with the dogs to see a sky as wild as the wind that moaned through the trees, sent small sticks skittering, swept the black and gray clouds into odd shapes, swirls. I wouldn’t have been surprised to see a witch on her broomstick fly past the yellow half-moon, which was sinking toward Waialeale, but none did — at least, none that I could see.

It’s not the kind of weather that most tourists want, though yesterday I saw them bravely viewing Opaekaa Falls, their hair blowing sideways, like the waterfalls must have been. The tourist brochures teach them that it’s always sunny and dry, which is what they learn to want, even though that’s often not what they get.

The Board of Land and Natural Resources (BLNR) today will take up the issue of what a certain group of landowners in the Haena conservation district want — to continue using their homes as vacation rentals — as it begins an arduous contested case hearing to determine what they’ll get.

The issue before the Board today is to choose an officer to conduct the hearing, which will decide whether the 14 landowners should be allowed to deviate from certain conditions imposed on the Conservation District Use Permits they received some 15 to 40 years ago in order to build their homes along the coastline there.

While not all of the owners are currently renting their homes out to visitors, they all did agree, in obtaining their permits, that they would not rent out their homes. The permit conditions were based on state rules that prohibit single family home rentals in the conservation district without specific approval from the BLNR.

According to the staff’s report to the Board, the owners were told to cease and desist from the prohibited use by June 30, 2007, or face fines of up to $2,000 per day, plus possible penalties.

In the approach that has become so standard, the errant owners then sought to get approval for their wrongdoings after the fact by filing a “petition for deviation,” in which they asked the Board to drop the no-rental condition. The Board considered the petition at two meetings in late 2007, and rejected it. The owners then asked for a contested case hearing, which the Chair denied. The owners appealed that to Circuit Court, and Judge Kathleen Watanabe upheld the denial. They then appealed to the Intermediate Court of Appeals, which ruled the Board must be consulted on contested case requests.

The matter went back to the Board on Nov. 12, 2010, and the staff asked the Board to deny the contested case. But with Kauai's always disappointing representative Ron Agor making the motion, the Board voted to allow it. So here we are, again facing the question of whether commercial uses should be permitted in the conservation district, and whether people who willingly agreed to a condition should be allowed to drop it because there’s so damn much money in rental fees at stake.

In case you’re wondering, the landowners seeking this special privilege – that is, beyond the privilege of being allowed to build in the conservation district — are Mark Moran, Edwin Cryer, Murcia-Toro Inc., Micael Tiernan, Barbara Baker, Gary Stice, Caroline Simpson, Earl . Bart Trust, Pieter Myers, Diane G. Faye Trust, Helferich Family Trust, James Greenan and the Ive Revocable Trust, with a lot of et als thrown in.

Those opposing it are the same ones who have fought the trend toward turning their community into a resort: the people who live there fulltime. They raised their concerns at the Dec. 14, 2007 meeting where the Board rejected the petition for deviation.

At that same meeting, Sam Lemmo of the state Office of Coastal and Conservation Lands, did an excellent job (scroll down to page 16 of the above PDF) of explaining why the Haena conservation district was never intended for short-term vacation rentals, and why the petition failed to take into account the longterm impact of TVRs on environmental and cultural resources. As he noted so eloquently:

I’ve always thought that getting approval to use conservation land is a privilege, not a right. Now they’ve gone and turned these into a quasi-resort use, short term vacation rentals. We are simply trying to enforce the spirit of the rule. This change has potential to place tremendous strains on the...natural and cultural resources of the area including Haena State Park — the marine resources, reefs, and the cultural resources of the area. Tourists behave differently in terms of how they perceive and interact with our natural environment. The impact of tourism on natural and cultural resources results not only from the development of tourism infrastructure, but also from the tourists themselves possibly overusing or misusing the resources.

Lemmo also noted that his office had tried to deal with the landowners reasonably and amicably, and so instead of going for a revocation of their permits, had simply asked them to cease and desist. Running a TVR constitutes a new use of the property, for which there should be an application and Environmental Assessment, he said, and none of that was done.

Lemmo also noted that the landowners’ attorney, Roy Vitousek, had claimed TVRs were not a commercial use, which led to a discussion between Lemmo and Board member Tim Johns, who questioned at what point a use becomes commercial. Lemmo replied:

I defer to the Chairperson. I thought that if you were exchanging money, that you’re taking money from someone using your home, that would constitute – that would meet the definition of commercial use under our rules.

Johns noted that anything greater than a month is considered residential and not commercial.

Vitousek said that he wasn’t looking to create a statewide precedent, “we’re trying to say Haena is different and just deal with this specific issue.” Ironically, the reason he and the landowners think it’s different is because they’ve pursued uses that have turned it into more of “an urban or suburban area” than the conservation district it is.

Caren Diamond testified at the 2007 meeting that 12 guests often stay in a Haena TVR, which is far higher than the number in a typical family, and so has greater impact.

Wendy Wichman testified that her family has lived at Haena for 60 years and the reason why it’s so beautiful and still special is because it’s in the conservation district, which has rules regarding its use. She went on to say:

It seems wrong that a property owner can agree to conditions that make their property valuable in the first place and then turn around and disregard those same instructions. These property owners are wealthy, educated individuals with access to first rate realtors and lawyers. They know or should have known about these restrictions when they purchased their property. And they should not be above the law just to make a profit.

The Board apparently agreed, because it voted unanimously to reject the petition for deviation. But the owners wouldn't give up, so here we are, treading the same territory over three years later, for one simple reason: the landowners want to maximize the amount of money they can make off their houses. It has nothing to do with a taking issue, as they were allowed to build. But that wasn’t enough. Like so many others who see Kauai as an investment opportunity rather than "home," they want more, more, more.

They agreed to the conditions. But Vitousek is now arguing, in some cases decades after the fact, that their property rights were unfairly restricted by an undefined condition in their permit, and that the condition is illegal and unconstitutional and should be removed or modified.

Vitousek also claims his clients have been trying to deal with the issue for years, but DLNR and OCCL keep throwing up roadblocks. He seems to conveniently forget that they are the ones who were engaging in an illegal use and are now seeking special treatment, and so it is up to them to prove their case.

The state is often criticized for failing to adequately protect conservation lands. But in this case, the staff has done the right thing all along. Unfortunately, we are seeing yet another example of people who do not care about the rules or values associated with fragile lands in the conservation district. All they can see are the dollar signs.