Musings: Abuse Chronicles 6

Crank up the B-52s, because “we're looking for the Love Shack, the love getaway....” How do you get away with running a vacation rental, one that is advertised in at least a dozen places on the Web, and booked into December, even though you haven't renewed your Kauai County TVR permit since it was issued in 2009? Or even get the TVR permit at all, without supplying the necessary documents?

The same way you get away with transforming a plain Jane studio into the Love Shack — a “sleeps four” luxury vacation rental — through the use of “unsubstantial improvement” building permits, thus skirting flood and septic requirements. 

And the same way you turn the Love Shack's tar paper-roofed shack — built without a permit — into a single-family residence. All in the flood zone, sandwiched between the narrow road in Haena and the sea. “Just steps to the ocean,” the ads extoll, though they don't mention those big north swells.

That's when, as the B-52s would wail, “The whole shack shimmies! The whole shack shimmies...”

But let's back up for a bit, to 1980, when a 1,088-square-foot studio — the future Love Shack — was built. The Department of Health found the cesspool was 50 feet from the water, and so allowed it, though with a dye test to determine it wouldn't pollute the ocean. 

In 1983, a slab was poured and a tiny structure placed atop it — the future Love Shack's shack.

“Funky little shack! Funky little shack!”

Now the building department had identified it as an illegal structure — “existing storage” — as early as 1994, and issued a citation, in part because it wasn't elevated 21 feet, as the flood zone required. But years went by, with no change.

Nick Michaels bought the property in 2002. In 2004 he submitted an application for some building improvements in which he identified the illegal shack cum existing storage as a “one-bedroom, one-bath cottage,” built in 1983, when the flood standards were in existence. The county told him to get a certified shoreline, so he pulled back, and the next year put in another application to do some work on the future Love Shack. In these plans, the “cottage” is now being called a “carport.”

In 2007, Michaels submitted yet another application, this time to re-roof the future Love Shack and enclose the 200-square-foot “carport.” The county again said it was an illegal structure, and engineering commented: “Note toilet, etc., this is not just garage and storage.”

Meanwhile, the county engineering department ruled the storage, though built after the flood law, was “grandfathered” from its regulations, and so could remain on the ground. Next followed some wrangling over whether the work Michaels proposed was substantial, meaning he would have to meet flood laws, or unsubstantial, in which he got a pass.

Michaels hired appraiser Dennis Nakahara to weigh in. Nakahara described the carport-storage as an “existing cottage,” one that had somehow grown to 320 square feet, though retaining its T&G walls and tarpapered plywood roof. Nakahara used new construction replacement costs, rather than the structure's appraised value, to make the work fit into the “unsubstantial” category.

Permits in hand, Michaels went to town, first gutting the Love Shack's still-unpermitted funky little shack, and then doing the remodel literally under cover. And of course he had to cut the trees to open up the view even more.

Just about the time he gets finished, the county passes an ordinance regulating vacation rentals in existence prior to 2008. Michaels lines up, like so many others, and submits his application for a two-bedroom, two-bath TVR, as in the Love Shack and its still unpermitted, but much enhanced shack. On his application, Michaels claimed he had used it as a TVR since Feb. 4, 2003 – except he didn't buy it until Sept. 9, 2003. He didn't provide any of the required documentation showing prior rental, either.

Planning records show it was inspected on March 18, 2009, though there's no report, and no inspector is named.   Inspector Bambi Emayo recommends approval, and the county agrees. Meanwhile, the illegal shack, still with no building permit, has somehow become "SFR-2" — as in single family residence #2 — with an approval date of July 9, 2003. Or at least, that's what Michaels claimed in his affidavit, and apparently no one checked, because he got his TVR permit on March 25, 2009.

Michaels never renewed his permit for 2010, 2011, 2012 or 2013. But the Love Shack was rented anyway, to happily oblivious tourists. Well, aside from those who left disgruntled comments on TVR ad sites: 

Comment: Great house but...

Guest: Anonymous (Carlsbad, NM)Date of Stay: 06/12/11 Review Submitted: 10/21/11

…My final issue with the Love Shack is that we stayed there in the middle of June and I am still waiting on my security deposit to be returned, near the end of October. This is not a huge issue but more of an annoyance.

Guest: David & Leigh1 (Phoenix AZ)
Date of Stay: 08/19/10 Review Submitted: 12/12/10

…The Love Shack is as described in the listing. It was the perfect location for us & we thoroughly enjoyed our stay there in August. Would have rated it an Excellent, but it is now December & we still have not received our deposit back even though we've been assured that we would.

We'll let the B-52s weigh in here: "Sign says, Woo, stay away fools, 'cause love money rules at the Love Shack!”

Oh, one last thing: Back in 2004, Michaels applied for a permit to install a 6' 3” high fence along the entire makai side of the property, effectively cutting off public beach access. Citizens fought it, and when the county required him to do a certified shoreline first, he dropped it. But recently, a fence was put up — with no permit.

“Love baby, that's where it's at....

Huggin' and a kissin', dancin' and a lovin' at the love shack....”