Thursday, February 9, 2012

Musings: Navigating the Fjords

I spent some time with planning director Mike Dahilig recently, trying to penetrate the opaque world of transient vacation rentals (TVRs) on Kauai. After reading The Garden Island's article, “Planning commissioners frustrated over TVR issues,” it seems like a good time to share some of what transpired.

First, though, I'd like to address two comments that were left on Tuesday's post because they speak to the underlying problem with Ordinance 904, which allows TVR owners on ag lands to apply for permits to legitimize their operations. One person wrote: "You can't "grandfather" in an illegal use." 
This was followed by the reply: “You can render it legal by granting it a special use permit.”

That's false, but certain council members and the mayor, driven by fear that we'd be sued for a “taking,” pretended like it wasn't so they could pass 904. And the county attorney's office was right there, pounding that drum.

Under 904, ag land TVR owners must obtain both a special use permit and a non-conforming use certificate. However, a non-conforming use certificate assumes an operation or activity was legal up until the time the law changed. So all those people who had no special use permit for their ag vacation rentals were operating illegally, and thus are not qualified for a non-conforming use permit.

Yet here they are, applying for and getting those very same permits. Is it any wonder that planning commissioners are frustrated, and justifiably feeling, in the words of Commissioner Hartwell Blake, that these resort uses in the middle of an ag district are “spot zoning?”

Nor is it any wonder, given the underlying contradiction within 904, that its implementation has been accompanied by a mish-mash of conditions that have not been uniformly imposed on all applicants.

Under current state law (Chapter 205), all dwellings on ag land must be associated with farming activities. As Mike noted:

“If we had a definition of a farm dwelling under 205, we wouldn't have this issue of what is a farm. We're dealing with attorneys that try to pass off a couple of papaya trees in the front yard as a farm. I would love the Legislature to give us a definition of a farm.”

The way the county has decided to handle this pesky need for a farm is not to require one outright, but to impose a condition for an agricultural easement. But this doesn't kick in until the applicant comes in for renewal. At that time, if the county determines there's no farm they may assign a farmer to come in and work the land. The process of assigning a farmer, however, hasn't been fully worked out.

As Mike explained it:

The discussion we've had is to look at this as a deterrent. If the county says you've got to let a stranger on your land, you may not want to do TVRs. You've got to get going on a farm or you may have some stranger on your property.

It could be said we're ruling with a stick, rather than a carrot on this one. They're supposed to do ag activities. Our position is you have to have legitimate ag activity. That's what we would look at in terms of enforcement down the road.”


Some applications with this ag easement have been approved, Mike said, though the applicants' attorneys have gone on record objecting to what they consider an arbitrary and capricious condition. “It's up to them to challenge it.”

The department only came up with that condition fairly recently, so it wasn't imposed on some of the first applicants. “It's been a constant adjustment as we get new ideas,” Mike said.

Questions also have been raised about the uniform wording of the TVR applications, and the lack of any critical analysis in the staff report. As The Garden Island reported:

Commissioner Caven Raco found it “disturbing” that two applicants represented by two different attorneys from two distinct firms had applications which were written almost identically. He was referring to an application by Bruce and Cynthia Fehring being written almost identically to a previous application.

Raco questioned if the department was even reading the applications, which prompted planner Michael Laureta to take offense and answer that he does read all applications.

Dahilig defended his staff, saying they do their reports independently and have no control over the product that comes to them.

“If the applicant chooses to pay a consultant, it’s his choice,” Dahilig said.


Actually, what Mike Dahilig told me is that applicants are using a template developed by the planning department. But even though all the applications may look the same “it behooves my department to do a separate set of due diligence. We want to make sure there is an inspection, rather than just take an applicant's word for it.”

So is Mike Laureta, who used to be colleagues with so many of the attorneys who represent ag TVR owners, performing that due diligence well? His boss, Mike Dahilig, seems to think so:

We've rejected a number of applications. We've bounced a lot for i's dotted and t's crossed. Then we look at how legitimate are you. In some cases, we talked them down and they withdrew. We're left with a pool of 60-odd applicants. Our office has done a pretty diligent effort to require them to meet the very high standards of a special use permit.

When asked whether he thinks all those operating TVRs on ag lands have applied for permits, Mike said no. When asked what the county planned to do about it, he replied, “It's one of those on the to-do list items. We know who the culprits are out there.”

In the meantime, since the county conducts enforcement primarily on a complaint basis, citizens are placed in the position of having to observe and rat out neighbors. This becomes especially crucial in regard to TVRs, which must come in for renewals. As Mike explained:

Our authority to withhold [a permit] is based off of my discretion of whether there are land use violations. As the year goes along, we catalog complaints and determine if there is enough to do an investigation. If it is in violative fashion, they won't get their [TVR] certificate back.

Mike said the department has been scrambling to process the 904 applications by the mid-March deadline, while also trying to interpret some of the more “gray areas” in state law:

It really is like navigating a tanker through the fjords. You get close to running up on a reef. Or who knows, we may already be spilling oil.

43 comments:

Anonymous said...

Please READ Jesse Souki (director of the state office of planning) comments on the Ag bill. Shows specifically how he county is wrong in there interpretation of state law!!

You have until 2:30 TODAY (Thursday) to submit comment or support the State Director of Planning's position.

Maybe Mike should have called Jesse, he seems clear in the state's position.

Anonymous said...

We should just rid of all "dwellings" on Ag land and be done with it. All of these fancy houses are contrary to the intent of the law. I am sick & tired of these people who have "turf farms" or a few papaya trees and call it a farm. We need food for Kauai. That is the intent of the law. Give me a freakin' break.

Anonymous said...

"The department only came up with that condition fairly recently, so it wasn't imposed on some of the first applicants. “It's been a constant adjustment as we get new ideas,” Mike said."

denial of equal protection - random.

Anonymous said...

Heard Mayor Beth's boyfriend just got a new county job. Lucky is his name.

Anonymous said...

less than an hour to tell your elected representatives how you feel about Senate Bill that will convert Agriculture zoning to DEVELOP ME FIRST zoning.

Sustainable, nah. not here.

Anonymous said...

The fatal flaw of you argument is 205-6. Interesting you should ignore it. It is referenced numerous times in 904.

Joan Conrow said...

I am not ignoring 205-6. As I stated:

Under 904, ag land TVR owners must obtain both a special use permit and a non-conforming use certificate. However, a non-conforming use certificate assumes an operation or activity was legal up until the time the law changed. So all those people who had no special use permit for their ag vacation rentals were operating illegally, and thus are not qualified for a non-conforming use permit.

Anonymous said...

And that is the crux of it. Prior to 2008 there was no county process to even ask for a special use permit. 205 says a citizen can apply for one but when citizens went to planning to try - "uh we no can do those".
So for years people who were entitled to ask for such a permit were denied the right to even try.....
So COK goti. The pickle is was in in 2008 when it fixed this. When politics forced the issue to a head the county wisely grandfathered in the ones who should have been able to ask for a SUP before but weren't allowed to even ask. Whichever way the county went it was gonna have to take it's medicine either grandfather in a few or get sued for all those years where it had no process available to even apply for a special use permit. Of course for the angry mob, well it's all just black and white good versus evil...when it's reallly just the sausage of law

Anonymous said...

How many people did come in and try to get SUP prior to 2008? Hard to believe any did when you hear people now applying saying they never knew anything about need for permit, thought they were always legal, etc etc.. blah blah blah

Just because people expose the BS fraud under this system doesn't mean their an "angry mob." Angry --maybe, and justifiably. Mob -- save that for the gangsters in planning, the lawyers working it for their big legal fees and the people who took advantage

Joan Conrow said...

To February 10, 2012 8:53 AM

Sorry, but I gotta call bullshit on that one. The county has had an SUP process in place since 2000. Check Chapter 13 of the planning commission's rules of practice and procedure.

So if you're an attorney who left that comment, might want to ask for a refund from your law school. And if you're an applicant, might want to ask for a refund from your attorney.

Anonymous said...

I think you missed the point of February 10, 2012 8:53 AM (and, no, I am not that person)

I took the comment to mean that you could not get a single family TVR special permit before 2008.

That's because, there was no such thing as a single family TVR before then. The definition of TVR in the county code was specific. It referred to multi-family dwellings.

Joan Conrow said...

To February 10, 2012 1:05 PM:

I can only go by what was written in the comment:

Prior to 2008 there was no county process to even ask for a special use permit.

Anonymous said...

Joan, do the CZO UPDATES include bed and breakfasts? If no, wonder why not. Maui County has specific zoning laws to address them.

Anonymous said...

OK, well: Prior to 2008 there was no county process to even ask for a special use permit for a single family TVR on ag land.

Joan Conrow said...

To February 10, 2012 2:26 PM:

It doesn't matter that there were no single family TVRs prior to 2008. There has always been a process under 205-6 for getting an SUP for an "unusual and reasonable use" in ag district, with no special provisions outlined for TVRs in particular.

So it goes back to my original point: if you did not have an SUP you were operating illegally and thus should not be eligible for a non-conforming use certificate.

To February 10, 2012 2:23 PM

The county's position has been you need a use permit for a B&B, and I don't think that's changed in the CZO update.

Anonymous said...

The county wouldn't give special permits for single family TVRs. That would be like getting a special permit for a long term rental house on ag. Planning just wouldn't entertain it. They told you you didn't need one. short term renting your house was the same thing as long term renting your house. Or living in your house even if you weren't a farmer.

Then, they passed Ordinance 864 that said if you don't have a special permit for your ag land TVR, you can't be grandfathered in. But that's unconstitutional. You can't require someone to have a license or permit but not have provided some way of getting it.

So they rewrote 864 into 904 giving everyone who had been operating before 2008 the right to apply for the special permits they wouldn't let you apply for before.

Anonymous said...

Why did the County need to provide a mechanism to apply for a use that wa prohbited by chapter 205? The spineless politicians who caved instead of doing what is constitutionally mandated should be kicked out of office.

Anonymous said...

So they rewrote 864 into 904 giving everyone who had been operating before 2008 the right to apply for the special permits they wouldn't let you apply for before.

February 10, 2012 4:03 PM

Hard to argue with that. Nicely stated February 10, 2012 4:03 PM

Anonymous said...

Doesn't matter what it doesn't say, in Zoning Ordinances, it matters what is specifically defined. So in other words, bed and breakfast is not defined in the new CZO. Much like Dahilgo claims, no definition for things like farms leads is directly into this knundrum

Anonymous said...

What an effing joke this county is. We are making this sh%t up as we go along. Might as well have kids running it, they might do a better job.

Anonymous said...

What other planning departments write templates of applications for applicants?are those templates available on their website? Sounds pretty fishy.

Anonymous said...

Interesting that the haters wait until the last month of the last of the process for the last few permits to start squawking. Planning Commission has been granting permits every two weeks for a year. Why suddenly now the big interest after almost all the applications are through the process?

Anonymous said...

The LUC always has been available for landowners who want a permit for the unusual and special use of AG land. If your land is in the Agriculture SLUD,you go to the Land Use Commission for permits, and lacking that how can the county "grandfather", which relates only to a previously legal use.It is disingenuous to say you could not get a permit. And if you think your property should not be designated agriculture, the LUC has always been there for you to apply for a change.
And these landowners signed Farm Dwelling Agreements which allowed the farm dwelling to be built in the first place. Landowners who purchase ag land without doing due diligence, why is that our problem? but i doubt the landowners did not know, they just were told by the real esnakes that they can do whatever they like, as they sign on another AG property for a high end vacation rental.
This is sick. Oh, and only those that broke our laws get the benefit. Great planning. Can't imagine why people are complaining.

Anonymous said...

So, the county must be granting permits for TVR's on agriculture lands illegally, if the leg is proposing to change the language to allow it,nust not be allowed now. Quit Dahilig, he's not standing by the existing laws, just coming up with excuse after excuse to make plannings actions appear legit.
Mayor needs to do the same thing to planning as he did to the police . What good is it to have a lawyer for a planning director if his job is to dis the laws?

Anonymous said...

Fehring was the first applicant to come before the PC looking for this permit , he told the planning commission Mike Laureta wrote his application, and now it's clear that is Mike's standard practice. PC should be replaced by people who actually do do their job. Why did it take them until last week to finally realize the applications are the same? Amazing grace, why do we pay Mike's salary/ he should be getting paid by the developers if he is doing their applications/ oh silly me/

Anonymous said...

Not only are you paying for Mr Laureta's salary, you are ALSO paying (at the same time) his retirement pay. It's called double dipping and it an identifiable source of corruption.

Anonymous said...

Mayor, hire someone with real planning director experience. Not someone who makes it up as they go along.

Anonymous said...

Who in the PC was I suppose to give the liquor? I was told scotch but my buddy said tequila. Anyone know?

Anonymous said...

"Interesting that the haters wait until the last month of the last of the process for the last few permits to start squawking."

We're not "haters" and we've been fighting this since the start. where the hell have you been? off raping the aina?

Anonymous said...

Fearing was not the first to come before the PC for a permit by a long shot, and he did not say Laureta wrote his application. You are misinformed.

If the haters think Fehring was first then that explains why they waited until the last month of the year and a half permitting process to start squawking. I guess they weren't aware of all those permits being granted last year.

Anonymous said...

"I guess they weren't aware of all those permits being granted last year."
How could they have been aware? Where does the public get to find out about the department giving permits?
Shrouded and clouded, cloaked, opaque process, you can shove it down our throats, but don't be surprised we are choking.

Anonymous said...

except that its on television

Anonymous said...

except that its on television


And noticed in the paper, and on the planning website before hand.

What do you want, an engraved personal invitation?

Anonymous said...

Copies of the planners report, agency comments, and the actual permit with conditions issued are not posted. We get to beg for them and pay for paper copies.

Anonymous said...

The state constitution has required the state to protect ag land and identify and restrict development of important ag land since 1978. The state is now, some 34 years later, embarking on the process. Kauai county has, in those 34 years, let all kinds of non ag activities and non ag structures be developed. I don't think Mike Dahilig was even born 34 years ago, so give him a break. This thing has been a mess for decades and he has to deal with a lot of issues that others ignored.

Anonymous said...

Th planning commission could do their jobs and hire someone who is old enough to know how to deal with what will be an outrageous amount of development on agricultural land.

Instead of a grove farm drinking buddy.

Joan Conrow said...

Then, they passed Ordinance 864 that said if you don't have a special permit for your ag land TVR, you can't be grandfathered in. But that's unconstitutional.

So they rewrote 864 into 904 giving everyone who had been operating before 2008 the right to apply for the special permits they wouldn't let you apply for before.


Well, that's one interpretation of events. I think this discussion underscores why land use law remains a thriving trade!

Anonymous said...

Instead of (or in addition to) bashing those who have hearings coming up and have tried to legally get their permits - who is questioning the hundred or so permits that were issued in 2009 - without any hearing? That was done in a totally closed process - under Ordinance 864. There were a whole lot of people who got their permits with no public input - and without conditions. How was the determination of who got these "easy permits" in 2009 decided? It was not done in any order, other than on a who is connected basis.

Anonymous said...

The applicants whose properties weren't located in the ag district got nonconforming use certificates, not permits. If the tvr is in the ag district, they need a special permit. If they didn't have one, they were operating illegally, but the county never enforced the law and let a bunch of illegal tvr operations establish a "vested" right. Totally fucked up and probably bullshit, but someone is making good money.

Anonymous said...

What do we do from here? Start treating ag cprs like subdivisions, limit density, strictly define ag structures (no "barns" or "garages" that double as residences), do not let the gentlemen farmer build his estate on ag land --- keep him segregated in Kukuiula or Princeville where he rightfully belongs. We should encourage more B & Bs where the innkeeper is held responsible for the sins of the guests and the tourist money lines resident pockets instead of some off island company. No stand alone second home part time resident tvrs!

Anonymous said...

You would have to change state law on CPRs and the CZO which allow 50 units to be permitted WITHOUT public hearing.

Anonymous said...

You would have to change state law on CPRs and the CZO which allow 50 units to be permitted WITHOUT public hearing.

Anonymous said...

When have we had a food shortage on Kauai? That fear arose out of the Peak Oil arguement which has died a quiet death due to the massive resources we have such as natural gas, etc.