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.