Musings: Abuse Chronicles 5

Following the planning department's unauthorized inspection of his house, Councilman Tim Bynum filed a police report, in which he asked the cops to conduct an investigation into whether inspectors Sheila Miyake and Patrick Henriques had trespassed onto his property. I checked with the cops, asking what ever happened with the report, and got this response:

[T]his report remains under police investigation so details cannot be released at this time. Once the investigation is complete it will be sent to OPA. KPD has no timeline of when this might occur.

Meanwhile, the statute of limitations has expired.... I guess they were unable to find probable cause despite Sheila's own admission —secretly taped by former first deputy prosecutor Jake Delaplane — that  former deputy planning director Imai Aiu and county attorneys had raised concerns about her trespassing. As you may recall, Tim faced misdemeanor criminal charges, which were later dismissed, based on Sheila's claim that a rice cooker, as opposed to an installed range, comprised a kitchen, and thus created an illegal multifamily dwelling.

In 2009, planning inspector Bambi Emayo found an illegal multifamily dwelling when he inspected Hale Pohaku, a luxury vacation rental in Wainiha. He noted the following use violations: two kitchens and lockout separating single family residence into two dwellings. One of those units was on the ground floor, which had been enclosed within the flood zone. The violations were confirmed in a subsequent inspection a month later.

But the owner, Tom Brooks, was not charged with any crimes. Instead, he was rewarded with a nonconforming use permit for his vacation rental — a permit that was initially denied, based on the violation. A permit that was later quietly granted,  even though the current web ad for the vacation rental, which has been renamed Pohaku House, makes no bones about it still being a multifamily dwelling:

Totally brand new, this wonderful home features a large living room with a big screen satellite TV and surround-sound speakers, open kitchen with breakfast bar, hardwood floors, and large windows facing the magnificent mountains. A dining area for 6, two bedrooms, and two bathrooms round out the spacious upper living floor plan.   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 shower stall completes the downstairs.

How is such a thing possible? It seems that when it comes to inspection and enforcement, the county has several categories: regular folks, regular folks with connections, political enemies, and rich people who want to operate a vacation rental.

In April 2011, I published an extensive two-part series on Hale Pohaku on my other site, PIKO. In part one, I outlined how Brooks miraculously transformed a 30-year-old beach house into a luxury vacation rental — an entirely new use with a now fully enclosed downstairs and an additional bedroom, bath and kitchen — using a building permit issued for $60,000 worth of “unsubstantial improvements.” As a result of that “unsubstantial designation,” Brooks never had to upgrade to a septic, and the beachfront TVR, which sleeps 8, continues to use its original cesspool. Here's the photographic evolution of that “unsubstantial” construction:

In part two, I detailed how planning staff had recommended the planning commission grant non-conforming use permits to operate transient vacation rentals to Hale Pohaku and 29 other properties. When citizens presented details about the Hale Pohaku violations — information that had been submitted to the department months earlier — it resulted in a conversation between staff and commissioners that is quite revealing, and well worth a read.

As a result, Hale Pohaku's permit TVNC-1914 was denied, as well it should have been. Aside from the use violations, the owners had failed to submit documentation that the house was in use as a TVR for 30 days prior to 2008. Under the law, such documentation was to include proof of paying general excise and transient occupancy taxes, reservation lists and payment receipts.

The only “proof” offered was a lease showing cash payment for rental Jan. 9-20, 2007 — a time when the house was under construction. In the original sales listing, it was disclosed that the house previously had not been used as TVR. Brooks' application also presented it as a three-bedroom house with "work space," though it was being advertised on the Internet as having either four bedrooms and four baths or a "lower suite" with two twin beds, kitchen and bath.

In 2010, the County Council amended the TVR law it had adopted in 2008. Brooks re-applied. An unsigned, July 13, 2010, field inspection report references a meeting with Brooks' representative. It notes:

Previously existing cabinets and appliances have been completely removed. Note: workroom furnished as a bedroom.

On April 12, 2011, Brooks submitted an affidavit in support of his application in which he swears there “were no expansions, alterations, improvements, or uses contrary to State and County land use and planning laws” — despite the record of violations noted in Bambi's October 2009 inspection.

In May 2011, the planning department acknowledged receipt of Brooks' “completed” application for TVNC-4291, though full documentation of prior use had not been provided. No reference was made to TVNC-1914, and its previous denial. 


An undated investigation report by planning inspector Vill Balisacan noted that a field inspection of Jan. 14, 2009 was recorded on the county TVR log, though no records of that inspection or its report were found. Vill also noted the first application was considered denied on March 30, 2009. Yet he goes on to write:

Based on the applicants prior use as a vacation rental and permit history it is recommended that the nonconforming use certification (TVNC-4291)...should be issued and the use continued....

The permit was issued on Dec. 9, 2011. The house, with its ground-floor, kitchen-equipped "suite,” is now renting for $400 per night.

Musings: Dig Deeper

So the Hawaii Tourism Authority is spending $500,000 on a month-long “blitz” to attract more tourists from urban areas like Chicago and New York. Wonder how much Kauai County spent rescuing those 54 people from Hanakapiai last weekend, where a woman from New York drowned in a flash flood? Not to mention the risk posed to our fire rescue guys, or the damage to the trail from having dozens of clueless tourists tromping through it in the mud.

“Having images of Hawaii and being able to show what the weather is like here is, I think, very powerful,” enthused David Uchiyama, HTA vice president of brand management.

Yes, I can imagine that televised images of dirty, scared, rain-drenched hikers returning to their vandalized cars at the Kee Beach parking lot prompted a lot of folks to book trips.

Obviously, we can't save tourists from themselves. As this video shows, even a Seattle fireman, someone who should know better, was among those who foolishly kept crossing the stream in the rain.

But we can be more honest about the reality of this place, about the risks they face in nature and at their vacation rentals.

Like remember the professional wedding photographers who had $30,000 worth of gear, and images from a couple's recent wedding, stolen from their Anahola vacation rental two weeks ago? And how the owner offered to put up $1,000 for a reward?

It might possibly have been more meaningful for the owner to advise renters that three burglaries had been reported at that particular house since Jan. 1, 2012, according to Kauai police.

And within that little cluster of oceanfront Anahola vacation rentals, at least nine incidents  — burglary, assault, criminal property damage, disorderly conduct, unauthorized entry into a motor vehicle and trespass — have been reported since Jan. 1, 2012, according to police.

As the “blog” on one of the Poha Street TVRs notes, “It pays to stay in Anahola.”

For the guy who are doing the ripping, that is.

I noticed the ad for another rental advised: “All Weddings or party guests must park at the Anahola Beach Park and stroll along the beach to the home.”

Encouraging off-site parking at a public beach is one of myriad ways that the proliferation of TVRs adversely impacts our island.

And as I've been reporting in the Abuse Chronicles — the four covered thus far are only the very tip of the iceberg — many of these TVRS were approved by the county planning department even though they did not meet the legal requirements.

We've seen building permit violations, flood ordinance violations, no inspections, inspections that failed to note violations. We've seen these valuable permits approved, and renewed, even though the owners provided no proof of prior TVR use or other required documentation. We've seen Realtors urging people to apply for permits for which they were not eligible, and possibly engaging in fraudulent representations to help owners secure permits.

In the process, we've seen a dramatic intensity of use as small beach bungalows are transformed into mini-resorts that sleep 12 to 14, often while using the original cesspool. 

Council Chair Jay Furfaro has asked Planning Director Mike Dahilig to attend tomorrow's Council meeting and give an update on the department's TVR enforcement initiatives.

They might want to dig a little deeper, like inquire about how the inspectors are trained, what sort of review is conducted when these nonconforming use certificates — some of them adding up to $1 million to the value of a house — come in for renewal. Because they're rife with what appears to be fraud, and some of the permits should be revoked.

And since these questionable permits were issued under the reign of former Planning Director Ian Costa and his deputy, Imai Aiu, why not invite them in to explain what the hell happened under their watch? After all, they're still working for the county, thanks to the mayor, who transferred them to other administrative jobs, without explanation.

Surely, when you consider the way TVRs have totally consumed the North Shore, and other communities, and the tremendous value these permits carry, we have a right to know why things went down the way they did — and what the county plans to do to set things right. And that includes the prosecutor's office, which is charged with investigating crimes.

Musings: Abuse Chronicles 4

How can something so bold be hidden? I wondered at dawn upon finding the night's brilliant moon totally obscured by clouds. The same question could be asked of the process that has resulted in numerous ineligible properties getting transient vacation rental permits (TVR) from Kauai County.

Today we shine the light upon a three-bedroom, 2.5-bath house that was built, in 1997, for $240,000 and purchased by Geoffrey and Sadie Barish for $1.925 million on Aug. 3, 2005. It is located just off the beach, in Wainiha Subdivision II, which has very specific Covenants, Conditions and Restrictions (emphasis added):

“No owner shall subdivide or re-subdivide his Lot, nor shall any Owner seek a zoning amendment, use permit, variance or any other type of approval which would allow a use of his Lot for other than single family residential use. No commercial activities shall be allowed on any Lot.”

In keeping with that restriction, the Barishes did not use their house as a vacation rental. In fact, they went so far as to pay off agent Gary Fischer, who had been renting it out as a TVR prior to their purchase and had future reservations booked. They didn't give their house a cutesy name, or take out any advertisements. But when Barish went to sell the house, North Shore Properties (NSP) reportedly advised him to apply for a TVR permit under the county's newly passed ordinance for regulating TVRs in continuous use before 2008.

In support of his application, Barish submitted a letter, dated Aug. 19, 2008, from Roberta Haas and Mimsy Bouret of NSP. The letter said NPS had been the property management company for the Barishes since Nov. 1, 2007, and the house, known as Hula Hale, had been part of their vacation rental inventory from that date. The letter goes on to state:

“Mr. and Mrs. Jeffrey Barrish [sic] have had transient guests occupying the subject property in exchange for compensation prior to the effective date of the Transient Accommodation Rental Ordinance with a pattern of consistency that evidences an ongoing and lawful enterprise.”

In further support of that “ongoing and lawful enterprise,” Barish submitted a GE tax license — though it had been closed on Sept. 5, 2005. He submitted no other documents required by law to prove previous TVR use, such as general excise, transient accommodation or Hawaii state tax returns, reservation lists or receipts for rental payments.

But he did include the mandated floor plans for the house, which showed three very small enclosed units had been added to the ground floor — without county building permits, in violation of federal flood laws.

Although the county's TVR log and the property's nonconforming use (NCU) form indicate the house was inspected on March 18, 2009, there is no inspection report. Nor is there any explanation of how it could have passed with such an obvious violation. Nevertheless, and despite the complete lack of documentation to prove prior TVR use, then-deputy planning director Imai Aiu approved NCU Certificate 1059 for the structure in June 2009.

Meanwhile, the Barishes had sold the house to David and Karen Burse, of Los Gatos, Calif., for $1.7 million on March 31, 2009. FEMA also had begun investigating reports that some Kauai County houses were not compliant with federal flood regulations. The Barish-Burse house was one of them, and on May 7, 2010, the county wrote to FEMA:

“Cited by building division for non compliance with the flood ordinance. Property will not receive a renewed NCU certificate for the next year.”

An initialized, handwritten note, dated 6-8-10, is attached to the file stating, “cannot renew because TVR ceased. Since 2009. Has permit submitted.”

On Aug. 26, 2010, then-county engineer Donald Fujimoto sent Barish a notice of apparent flood violation.

On Oct. 12, 2010, after the county had passed a second ordinance liberalizing the TVR permitting process, Burse sought a TVR permit for the “Burse Residence.” As “proof” of former use, he submitted a notarized affidavit that states “On information and belief the former owner operated a transient vacation rental,” and says he is remedying the unpermitted ground floor units. He also includes a copy of the NSP letter that Barish had originally submitted, and a reservations report from NSP that purports to show “arrivals for all complexes between Jan. 1, 2001 and Dec. 31, 2009." However, it lists just 12 arrivals and shows no income to the Barish account.

On Dec. 8, 2010, the National Flood Insurance Program conducted a site visit and noted numerous flood violations on the property.

On Jan. 10, 2011, county planning inspector Vill Balisacan sent Burse a letter advising him of “actions required to complete the TVR registration and NCU form” he had submitted the previous October. The “missing documents” included proof of payment of TAT and GET taxes, and as-built plans for the structure.

On Feb. 8, 2011, Burse sent planning inspector Bambi Emayo a fax, thanking Bambi “for your call and your explanation that we can still apply for renewal of NCU certificate 1059 for the renewal periods of 2009-10 and 2010-11.”

Now remember, this is the same NCU permit that had not been renewed because of the flood violation and also because, according to the initialized, handwritten note in the file, “TVR ceased. Since 2009.”

As has been noted previously, under the county zoning ordinance:

“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.”

With that fax, Burse retroactively submitted a 2009 renewal form, and followed it up with a 2010-11 renewal form. He also submitted GE and TAT licenses that showed a business start date of 11-4-2010.

On Aug. 15, 2011, Burse sent Balisacan another letter, in which he confirmed his Aug. 4, 2011 telephone conversation with Vill and Bambi and writes:

“Mr. Emayo informed me that (1) our application for TVNC 4280 was complete; (2) no further inspection is required because of the previous inspection done in conjunction with the approved (now expired) TVNC 1059; and (3) final approval of our TVNC 4280 application will be granted as soon as we can provide a 'clearance from the Kauai Co. Public Works Dept. which [sic] respect to the Noticed 'FEMA Audit' Flood Violation.”

On Oct. 11, 2011, county engineer Larry Dill sent the Burses another letter advising them of what must be done to bring the ground floor units into compliance with the county's flood ordinance.

Remember that handwritten note? At some point, these words were added: “Renewal affect 10-14-11. Meeting.”

And at some point, Burse apparently got the original 1059 permit renewed — a permit that should not have been issued because it never met the original requirements, a permit that  was out of use for more than a year, a permit that had expired.

On Sept. 24, 2012, his newly authorized representative, Realtor Jane Abramo, submitted the NCU renewal form for “Hale Koaniani.” (She and Coldwell Banker are now in the business of handling these pesky renewals for absentee owners.) Abramo included a note that read:

“We hereby withdraw NCU application no 4280, which was originally filed on your recommendation because of uncertainty at the time of the renewal status of certificate 1059. However, as you explained during our conversation on June 27, certificate 1059 is now “active” and eligible for renewal, and application 4280 was rejected because there cannot be two active certificates for the same property.

To avoid public confusion due to there being both an “active” permit and a “rejected” permit listed for the same property (TMK 5-8-9-052), we ask that you please delete the public listing of NCU application 4280, or at least change the status to “withdrawn” instead of “rejected.”

Musings: Abuse Chronicles 3

Remember Billie Jean King, the tennis star? She had one of the first “fancy” houses on North Shore Kauai, though even with its tennis court and satellite dish, it was relatively modest compared to the mansions that crowd the white sand beaches of Wainiha now. In the years since King sold it, the house has grown, too, tripling in size, with a partially enclosed and furnished "basement." The value grew, too, from a sales price of $1.85 million in 2006 to $4.4 million in June 2012.

In the process, the property skirted federal flood regulations and a shoreline certification and somehow managed to get two TVR permits.  Yes, the former King Hale has become, in vacation rental parlance, the King and the Princess, as in a multi-family rental, each with a separate nonconforming use permit. It's unclear how this could happen, since multi-family vacation rentals outside the Visitor Destination Area (VDA) have always been illegal, and still are.

But let's back up a little, to 1980, when the Kings divided the house into a horizontal — as in side-by-side — two-unit CPR. By the early 1990s, it had morphed, without the aid of permits, into four illegal vacation rentals. Neighbors clamored for enforcement against the mutli-family rental, and the county began investigating. Meanwhile, the structure, and its price, continued to evolve.  Developer Craig Maas bought Unit B in 1998 for $300,000. After putting it through an extensive remodel, for which no building permits are listed, he sold it for $700,000, just 18 months later.

Murray Charlton, an Australian with a misnamed LLC called My Bungalow, bought both units for $1.85 million in 2006. The sales listing identified it as a five-bedroom, three-bath unit, with the caveat, “Property not in VDA, buyer should check with the county on vacation-rental issues…”

On Oct. 31, 2006, Charlton applied for a county building permit to add 4,350 square feet to the structure and make the house whole again. The value of the permit was listed at $256,000. On Aug. 3, 2007, the application was denied as a “substantial improvement” that would require the house to comply with federal flood standards. On Aug. 15, Charlton submitted a second application for a $243,000 remodel — just under the "substantial" threshold — and on Oct. 23, 2007, he got his building permit.

So began the “unsubstantial improvements,” which are also detailed on architect Glenn Forman''s website, that resulted in a much grander house.

Now prior to construction, in July 2007, the county had directed Charlton to conduct a shoreline certification, which is used to determine the structure's setback. The state surveyor came and discovered a revetment of rock and telephone poles fronting the house, on the public beach. He set the shoreline, which marks the extent of the public beach, at the red line marked on this photo.

The owner rejected the recommended shoreline, which would have made him remove the revetment as an illegal encroachment and restore the public beach. He appealed to the county, which inexplicably waived the shoreline requirement. The revetment was left in place, and the beach has since been heavily cultivated with naupaka, causing the once broad expanse to become narrow and steep.

In 2008, the county adopted a bill regulating vacation rentals. Charlton applied for two TVR permits: one for the King Hale and the other for the Princess Hale, which was identified as the ground floor of the King Hale, even though the application noted a remodel project in which "two halves of house joined together."

Neighbors objected, pointing out that it was still under construction, and if it was to be treated as a multifamily dwelling, then a special management area (SMA) permit should have been required for the renovation. Their primary concern, however, was that it would allow ground floor habitation in the flood zone, on a lot with no setback in a hazardous coastal area. But both TVR permits were approved, though planning inspector Bambi Emayo noted “SFR (single family residence) under construction” on his 2009 inspection report.

Meanwhile, the state Department of Health, acting on a tip, cited the owner for installing the new septic tank without a permit on the previously identified public beach seaward of the red line. DOH required the tank be dug up and moved to the mauka side of the house. The resulting hole on the makai side was filled with dirt, rather than sand, and the red clay now leaches onto the white sand of the public accessway and beach.

The house got its final building inspection on August 19, 2009. This picture, taken on July 11, 2008, shows the gutting of the house is well under way, and it is obviously not in use as a vacation rental.

As noted in Abuse Chronicles 2:

“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.”

But since it had been operating as an illegal multifamily TVR, it should not have qualified as a previous nonconforming use.

On June 1, 2012, Charlton sold the property to Hale King LLC, of Berkeley, Calif., for $4.4 million. Curiously, 2013 county tax records  still show the house at its original 1,880 square feet,  and it is described as one building and one dwelling. Even more telling, the property's assessed value is just $2.775 million, which indicates people are willing to pay a substantial premium for permits that allow them to operate commercial enterprises on prime beachfront land. 

Advertisements for the vacation rental, which sleeps eight and rents for $1,450 to $1,750 per night, with a seven-night minimum stay, depict it as having three bedrooms, three baths, a kitchen and living area on the main floor, as well as a first floor guest suite, with a bedroom, sitting area, full kitchen and separate entrance. In short, it is operating as a multi-family vacation rental, which is an illegal use outside of the visitor destination area. So how did they get not just one, but two permits for this illegal use?

The property is also described as a “stone's throw” from the ocean, which may not prove to be such a selling point for the unsuspecting ground floor inhabitants during the next big wave event or tsunami.

Abuse Chronicles 2

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.

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.

Musings: Abuse Chronicles

Have you ever wondered how, exactly, the North Shore of Kauai has been transformed from an enclave of small beach homes to a resort destination crowded with multi-million commercial properties operating under apparently fraudulent vacation rental permits? Here's a story that chronicles that evolution:

Once upon a time — June 16, 1972 to be exact — Miki Kaipaka got a building permit valued at $21,000 to construct a 1,456-square-foot house with three bedrooms and two baths on the Wainiha River.

Twenty years later, Peter Vollman bought the house for $490,000. It was advertised in the MLS listing as:

“AFFORDABLE OCEANFRONT, JUST REDUCED FROM $750K TO MEET RECESSION MARKET!! MUST SEE TO BELIEVE THIS DELIGHTFULLY LIVEABLE WITH OUTRAGEOUS VIEWS! OWNER FINANCING! FIREPLACE!

In 2002, Vollman Limited Partnerships sold the house for $600,000 to Craig and Karen Mills. Though county records show permits had been issued only for a fence and minor hurricane repairs in 1993, the sales listing indicated that other changes had been made (emphasis added):

Oceanfront 3bd/2ba home completely renovated enjoy spacious living room w/sliding glass windows & private deck. Fireplace, A/C, 6 ft wood fence, elec gate. Big ocean views.

Over the next three years, the house went through an even more dramatic transformation, though again, county records show no building permits were issued for any of the work. When Victoria Anne Leadley bought it for $1.475 million in 2005, it was described in the sales listing as having three bedrooms, three baths and a 560-square-foot lanai:

Remarks: Sometimes oceanfront, this home was completely rebuilt--inside and out--with the very best of everything. Travertine floors (including the lanai), marble baths, fantastic kitchen with granite countertops and stainless steel appliances. Two master suites, each with double lavatories and oversize doorless walk-in shower. A truly luxurious property in a unique location. Wonderful artist neighbors on both sides. On the Wainiha River with a spit of sand between you and the ocean. A dock for your kayak, and a large lanai for enjoying it all! Furnishings are separate from sale.

Private Remarks: Call for viewing instructions. House is in vacation rental. This is not the house you remember. The new floor plan, renovations, and decor will astonish you and your clients. Plan to spend a bit of time sitting on the lanai to appreciate the ever-changing view.

Today the house is again for sale — for $2.579 million. So why, you may ask, has it increased so substantially in value, even though the market is down? Well, it's got a bona fide vacation rental permit now. And as Realtor Jane Abramo discloses in her current listing, it has some new structures, too, though again, no record could be found of any permits: 

Remarks: Kauai Paradise House. This lovely home is a must see. This is a very successful and fully permitted vacation rental. TVNC-1266. All vacation rental reservations, preferential VRBO status, plus separate targeted website are being sold with the property. 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. Discover the relaxing elegance of Kauai, where hectic modern life is a remote memory and tropical splendor is your reality. Lovingly refurbished on a private, fenced lot nestled at the edge of the breath-taking Pacific, Kauai Paradise House boasts its own exclusive beach, panoramic views, elegant Tommy Bahama furniture, opulent travertine tile floors, 3 suites with 3 marble bathrooms (1 in each bedroom for the ultimate in intimacy), gourmet stainless-steel and granite kitchen with bar seating, built in convection oven and microwave, plus trash compactor. A vaulted-ceiling soars over the great room with wrap around sofas and hidden armoire entertainment center. The living room and separate dining area lead out to a covered lanai for the BBQ with couches for intimate conversations, and seating and table for alfresco dining, lush tropical backyard landscaping with coconut, ginger, avocado and palm trees, a secluded sun deck, and your own boat dock. Soak in unparalleled views of the river, the sandbar and the deep blue of the Pacific Ocean from every room. There's nothing left to do but take possession. All showings subject to 48 hour notice if the home is occupied by vacation guests.

As an aside, the “exclusive beach” that Jane is falsely hawking — all beaches in Hawaii are public, which she surely must know — just so happens to be the same little sand spit where the county bulldozed fishing shacks belonging to Native Hawaiians three years ago. 

Though the house was being used as a vacation rental when Leadley bought it in 2005, the county did not pass a law authorizing TVRs until 2008. In order to qualify for a permit, a house had to be in compliance with federal flood rules and the county Special Management Area law. Owners were also required to prove they had a General Excise license, and had been paying taxes on the rental. Furthermore, all building permits had to be up to date, and the property was supposed to be inspected to ensure that everything was kosher.

However, that property's TVR application included no records of “occupancy and tax documents, including all relevant State of Hawai‘i general excise tax filings, all relevant transient accommodation tax filings, federal and/or State of Hawai‘i income tax returns for the relevant time period, reservation lists, and receipts showing payment,” as required under the county ordinance.

Instead, an unsigned lease was submitted as “evidence” of rental history, even though the document clearly states, “This lease is not valid unless signed by tenant and agent.” Leadley also submitted a signed and notarized affidavit swearing that building permits were issued for all the structures on the property, and “there were no expansions, alterations, improvements or uses contrary to State and County land use and planning laws.”

And though the county TVR log shows an inspection date of March 18, 2009, no inspection report was included in the file.

Yet somehow, Leadley got her TVR permit. Former deputy planning director Imai Aiu approved her application, using the same form letter that appears in numerous other TVR files.

Curiously, though an inspection report was included in Leadley's most recent renewal application, it was blank.

Now, bear in mind that this house is still served by a cesspool, and it also sits in the flood plain. Under federal law, if a house is significantly altered, it must be brought into compliance with the 1981 federal flood standards. But since no building permits were issued for the complete re-do — not even the bogus “unsubstantial improvement” permits that I exposed previously on PIKO — it still does not meet flood standards.

Yet the property has a TVR permit for life, so long as the subsequent owners continue to send in their renewal applications — a benefit that added a cool $1 million to the value of the house.

It's worked out great for Leadley, and the realtors. But about what the community, the natural environment? Are either well-served by having a non-conforming commercial use too close to the ocean and a river? And what about the unsuspecting tourists who rent it, including the Canadian man who recently jumped to his death off that unpermitted deck?

After I first reported the lack of building permits for the property, I sent an email to planning director Mike Dahilig asking what actions his department was going to take. He replied, “I have cc-ed [county spokeswoman] Beth Tokioka on this e-mail and she will be heading our response.” Beth replied, “The Planning Department is investigating the situation and has no conclusions to report at this time.”

Since then, I had a chance to dig into the TVR file, where I found these additional irregularities. Perhaps it's time for county Prosecutor Justin Kollar to launch his own investigation. Because it sure seems like something fraudulent is happening here. And as I will show in upcoming posts, this is not an isolated incident.

Musings: Sighs

I love this wild and windy weather, when the albatross and iwa soar effortlessly and the curls are shorn from the tops of waves and the ironwoods murmur and sigh.

So much to sigh about, like Senate Bill 1342, which would allow the state government to seize your assets — including land — for conviction of petty misdemeanors like harassment, attending a protest or having a couple of joints. Here comes da clampdown. As Big Island Now reports:

“S.B. 1342 expands asset forfeiture to petty misdemeanors, which means that individuals who commit minor crimes, such as trespassing on private property or staying in a park after hours, are subject to asset forfeiture,” said Laurie Temple, a staff attorney and legislative program director for the ACLU of Hawaii.

The way forfeiture works is they snag your stuff and you've gotta prove it wasn't used in a crime. Sen. Malama Solomon, one of the architects of the PLDC, introduced this crappy bill, which is so bad that even Hawaii Island Prosector Mitch Roth labeled it “Draconian.” Yet it's still headed for the Judiciary committee. Ever get the feeling lawmakers aren't really working for you?

Meanwhile, Hilo High School librarian Amy Okuyama doesn't want Big Island peace activist Jim Albertini to say anything bad about the military or give information on how to protest its activities when he speaks to students there next month. In an email sent to instructor Joseph Watts, Okuyama writes:

I respect Mr. Albertini and the freedom of speech, but within the library, I want assurance that he will be objective and factual. I'm concerned that this will not be the case for the simple fact that Mr. Albertini not known for his objectivity and is very out-spoken about his views. If the presentation will be strictly informational with zero negative slants, I will be fine with having the speaker. However, if it turns into a forum of Mr. Albertini's personal negative views/examples to our students, I will be against library use for the subsequent presentations. Again, I welcome him, providing he remains objective and dispassionate, just present the facts of the "history of military presence in HI. etc...." without diversion into any negative viewpoints.

Of course, just the facts is pretty damn damning, as I've reported at length. But since when does a school librarian get to be an arbiter of campus free speech? Is she, a self-described “military mom,” even able to determine what is truly a "negative viewpoint" or "objective?" Meanwhile, the recruiters and JR-ROTC get to present their propaganda unchecked. And we wonder why kids don't learn any critical thinking skills....Not that we actually want them to have any.

The St. Regis Hotel made some new enemies on Friday night when it set off fireworks from the beach for a private party, creating a din that folks as far away as Haena and Wainiha likened to military bombs or continuous loud thunder. One resident termed it “Totally rude and intrusive.” But since when has that stopped any activity that caters to the North Shore tourists?

As a beekeeper — and human who likes to eat — I'm getting very nervous about the future of honey bees. The most recent alarm was sounded by San Francisco Gate, which reports there's a shortage of crucial pollinators for the soon-to-bloom California almond crop. Some 2 million bee colonies are trucked to the Central Valley from all around the nation, but even that's not enough to meet the demand. Already reeling from drought, colony collapse disorder, loss of forage due to ethanol production, transit shock and pesticide exposure, the poor bees must work faster and harder.

You know, the highly efficient industrial model, applied to animals and agriculture. As UC Davis bee specialist Eric Mussen so astutely notes:

"When you stress them far enough, the bees just give in."

Meanwhile, the slave laborers are fed sugar and GMO high fructose corn syrup because their keepers steal all the honey. Not surprisingly, some beekeepers lost 75 to 99 percent of their hives this past winter, and many of the surviving hives are weak. But instead of saying, OK, let's step back a minute and change this sick scene, the high-pesticide-using almond growers are looking at ways to ace honey bees out of the picture, as in developing a "self-compatible" almond tree, which can set nuts using pollen transferred among its own flowers, thereby needing fewer bees.

But in the meantime, the almond industry still depends on bees, so they'll pay the beekeepers more to work their bees harder and then kick 'em all aside when they've sucked every last drop of honey and energy from them.

Because who the fuck needs nature, anyway? We've achieved better living through chemicals. Or so the seed-mutilating chemical companies would like us to believe.

Not everyone, however, is drinking that Kool-Aid. It's really good to see the younger generation, and especially the local kids, speaking out against pesticides and GMOs, as in this rap video by Hood Prince, "Monsanto, You Gotta Go." And Syngenta, DOW, DuPont, BASF and all the rest.

If you'd like to get up to speed on the whole GMO issue, check out the primer I did for Honolulu Magazine back in 2005. I posted it over on my other site, PIKO. At the time it was published, Hawaii had hosted more than 4,500 open-field tests for experimental GMO plants — more than any place in the world — and the seed industry was valued at about $50 million in Hawaii. It's now worth $220 million, as in quadrupled in eight years, as in getting more and more entrenched. 

As I reported then, people were asking such questions as:

What is being grown, and where? Will transgenics harm people, animals, the environment? Do the potential benefits outweigh the possible risks? Are existing regulations adequate, or properly enforced? Can GMOs be prevented from going places where they're not supposed to be?

Sadly, we're still asking the same questions, because nobody — not our lawmakers, not state or federal regulators — are making them cough up any answers. Sigh....

But eventually, it's all gonna come out.

Musings: Bee Love

I like Valentine's Day because it's always great to put the emphasis on love. I just can't understand why it's so often celebrated with such unloving commodities: blood diamonds, chocolate harvested with child labor, gold extracted in toxic ways and flowers raised in South America through practices that exploit women and use heavy applications of pesticides.

Unfortunately, we have heavy applications of pesticides happening right here, in the GMO fields that now stretch from Lihue to Mana. And as National Geographic reports, some of those very same pesticides, particularly imidacloprid, are apparently contributing to the demise of honey bees, a crucial pollinator:

A new study shows that long-term exposure to a combination of certain pesticides might impair the bee's ability to carry out its pollen mission.

"Any impairment in their ability to do this could have a strong effect on their survival," said Geraldine Wright, a neuroscientist at Newcastle University in England and co-author of a new study posted online February 7, 2013, in the Journal of Experimental Biology.

This study shows that when pesticides are combined, the impact on bees is far worse than exposure to just one pesticide.

Opposition to the pesticides used in the GMO fields is just one reason why folks rallied against GMOs yesterday. It was a sizable and lively crowd that lined the sidewalks on both sides of the Safeway intersection in Kapaa during the crush of pau hana traffic.

You can check it out in a video set to Makana's anti-GMO song, which has such salient lyrics as these:

Here comes the story of the GMO
 It’s on your plate and you probably don’t know 
And no real tests were ever done 
Just a big PR push and one company controls the food of all the world

The regulators ain’t workin’ for you 
They sold you out and you ain’t got a clue 
“It must be safe” I heard you say 
“I don’t believe they’d ever play with the health of our children,
would they?”

Monsanto and the others all make great claims
 Of feeding the world… and pests they overcame 
But yields are shrinking and the pests are getting bigger
 And no one knows what’s coming cause they pulled an early trigger

Remember the butterflies and bees that all died
 And the quarter million farmer suicides 
You think you might start asking why? 
So many living things would die from a thing that’s meant to feed the world

And all the cheerleaders talk of ending world starvation
 But it ain’t from lack of food, it’s from economic segregation
 They say Genetic Engineering is old as growing food 
But we know it ain’t the same in fact it’s way more crude

It ain’t science when you’re aiming a gun
 And praying the DNA don’t come undone
 They’re playin’ cowboy with our genes 
Ignoring all the unforeseen risks, they made a laboratory of Kauai

50 nations label transgenic food
  But out here in the US the consumer’s gettin’ screwed 
It didn’t change the price of food to label it elsewhere
 Now they’re spending millions just to keep us unaware

This is the story of the GMO 
It’s on your plate and you probably don’t know
 There never was a dry run 
Put on a grocery shelf, not one test to prove the safety of the food

Wake up, everybody. Time to bee love, before it's too late.

Musings: Speaking and Silence

It speaks volumes that the owners of Coco Palms didn't even bother to request a permit extension until Feb. 6, nearly two weeks after the permits had already expired. The county has cut that property so much unwarranted slack over the past two decades that it's no surprise the owners were still expecting latitude. The question now is how long the county will dither before ordering the owner to take down those decaying, decrepit buildings.

Speaking of revoking expired permits, I was chatting with a Honolulu attorney yesterday, and he was wondering how the county thought it could get away with its unprecedented interpretation of the SMA permit for the Wailua Beach portion of the Path. The permit, which was issued in 2007, specified work must begin in two years and be pau in four, which the mayor's team is interpreting to mean a total of six years. “I've never heard of anything like that,” said the attorney, who does a lot of land use work. “Boy, are they opening a can of worms.”

Speaking of worms, the County Council today is being asked to approve $25,000 for special counsel's “continued services” to represent former Prosecutor Shaylene Iseri-Carvalho in the civil suit filed by Councilman Tim Bynum, and another $50,000 to represent planning inspector Sheilah Miyake.

So is this gonna be the one lawsuit against Shay that the county will actually fight rather than settle? Not that I wouldn't enjoy the spectacle of court proceedings, or learning more about the role that former Councilman Kaipo Asing planned in this whole debacle and the planning department's uneven application of the inspection process.

Shifting gears, I recently ran across an intriguing and poignant essay entitled, ““Hawaiian at Heart” and Other Fictions.” Posted on the Facebook page "Huna is not Hawaiian," which you can read about here if you're not on FB, the essay gets right to the core of some key issues, as these excerpts reveal:

The most widespread American mythology about contemporary and historical Hawai‘i revolves around the vision of the melting pot, a multicultural paradise where elements from every group combine into a rich whole that all can share.

The pleasure of this vision erases a violent, coercive, and tragic history. The multiplicity of races and cultures in contemporary Hawai‘i was born in the deliberate attempt by plantation owners to divide and conquer their workforce. Differences in language and culture were meant to prevent cross-racial organizing and solidarity among workers. This multiplicity of culture was also built on the bones of dead Hawaiians. By the most conservative estimates, the importation of diseases from Cook’s men and all the westerners who followed killed 90 percent of the Native Hawaiian population within a hundred years. The population collapse, from 300,000–800,000 Hawaiians in 1778 to fewer than 40,000 in the 1890s, created a gaping emptiness that was filled with non-Hawaiian immigrants

Hawai‘i has been sold endlessly as a place of exotic escape from real life. As a direct consequence of overexposure in the tourist market, Hawai‘i and all things Hawaiian have become kitsch.

Some Hawaiian-culture aficionados cross a line and begin to claim a Hawaiian identity, either as Hawaiians who mysteriously cannot locate or discuss their families, or as “Hawaiians at heart,” an ultimate appropriation, which has unfortunately been supported by too many Hawaiians concerned about others feeling left out. Being Hawaiian for non- Hawaiians carries no history of pain and loss.

“Hawaiians at heart” are joined by “Hawaiians of the spirit” in the New Age spiritual industry’s marketing of “huna” practices. Like the American Indian–focused plastic shamans, it never seems to occur to these Huna practitioners that if their “Huna” was secret ancient Hawaiian healing, perhaps it should be directed first and foremost to Hawaiians, who have among the worst health demographics in the United States.

The disrespect, exploitation, and cultural distortion and appropriation of Hawaiian culture and identity would be hard enough to deal with in the best of times—but these are not the best of times for Hawaiians.

The ignorance of the US public about issues of sovereignty and the trust lands of the Hawaiian people, the miscategorization of indigenous issues as “racial,” and the right-wing resistance to “minority rights” have brought us to a point where Hawaiians are in great danger of losing the limited entitlements that already exist, much less the immensely greater resources and rights to which we are legally entitled and do not currently receive. We are Hawaiian at heart, history, and bone, in ancestor and child. Moke Kupihea has reminded us, “The past does not disappear, it is merely silenced” (2001, 124). As contemporary Hawaiians we are charged with filling that silence because others are too willing to fill it for us.