Musings: Abuse Chronicles 9

Unlike other vacation rentals profiled in this series, the owners of Hale Ono didn't scheme to avoid flood rules by lowballing construction costs. Instead, they secured vaguely-worded Kauai County building permits to enclose the downstairs in the flood zone. And though county planning inspectors discovered in October 2009 that the ground floor was being used for habitation, no known enforcement action has been taken. Instead, the property has openly operated as a multi-family vacation rental — a violation of the North Shore plan — with no TVR permit.

Indeed, numerous Internet ads for Hale Ono boldly showcase its zoning violations as amenities: (emphasis added):

The downstairs includes 2 bedrooms/1 bath and has its own separate entrance. This would be ideal for the in-laws or nanny. The lower level is very simply decorated.

Rental options: You can rent the upstairs and downstairs separately. The rates start from $2200 - $4000/week depending on season.

Another ad includes photos of “some of the fine appoinments [sic] of the downstairs living area:” 

 It also proclaims (emphasis added):

This completely remodeled home with exotic Balinese carvings/furniture has 2 bd/rms, 2 full baths/jacuzzi tub, ocean/mt. lanais, soothing pool/spa, outside hot shower, barbeque, cable TV/VCR, surround sound, fax/tele, WIFI Internet, W/Dryer, Dishwasher, & queen sleeper sofa. An additional downstairs space is also available for bigger groups. This includes another large living area, plus two bedrooms and two baths. It is located 25 steps to the OCEAN.

Two Bedrooms, Two Baths, $2100-$2500/wk, $750 deposit, $200 outclean.

Four Bedrooms, Four Baths, $3000-$3500/wk, $1000 deposit, $375 outclean

Now that we know what it currently is, let's look at how it started out.

The house was built in 1991 as an additional dwelling unit (ADU) on the Nishimoto parcel, which is located on the makai side of Kuhio Highway, just before the Hanalei Colony Resort. It was elevated, with an open downstairs, in compliance with flood laws, as you can clearly see in the photo below:

In 2004, the old Nishimoto house was substantially renovated and turned into the Hale Haena TVR, a process detailed in Abuse Chronicles 7. The lot was subdivided, and the ADU was assigned its own TMK and sold.

The owner is a Nevada-based foreign limited liability company known as Alta Management Services LLC. According to the state Department of Commerce and Consumer Affairs website, “This business is not in good standing.” Toni Sutherland is listed as the agent.

In September 2005, Sutherland applied for a $37,200 building permit to “enclose new storage.” The submitted plans showed an enclosure of the entire ground floor and the application claimed, “The bottom floor will be enclosed and used for storage (non-habitable area). Breakaway construction shall be used.” The permit was cleared by county flood engineer Glenn Okamoto and planning inspector Vil Balisacan.

On April 12, 2006, Sutherland applied for another permit, valued at $37,200, to alter the two-bedroom, two-bath house. Though the scope of work was vague — “Ground floor= Add Sto [sic], add 550 under residence.” — the permit was approved on Aug. 16, 2006.

On April 19, 2006, Sutherland applied for two more permits, both of which were approved. One was for a 2,352-square-foot ADU valued at $285,200. The status of this structure is unclear, as there is no record of any inspection after Mervin Rapozo approved the foundation on Dec. 31, 2008.

The other permit added another 852 square feet, at a cost of $65,000, to the existing house, which is described as a “dwelling/lodge.” Mario Antonio, previously a flood inspector with the county's engineering division, commented on the permit: “No habitable space allowed below BFE permitted.” Specifically, federal flood laws state that any ground floor use, such as storage, must be unfinished, with break-away walls and no windows or electricity. Yet as these pictures show, that is clearly not the case at Hale Ono:

In 2009, Sutherland applied for two vacation rental certificates for Hale Ono. One was for “5709A KUHIO AV MASTER;” the other for “5-7094 A Kuhio Hwy.” The applications prompted a site visit by planning inspector Bambi Emayo, who sent the following inquiry to Antonio on Oct. 29, 2009:

“We have a single family dwelling with a lower floor enclosed and used as habitable space (dwelling or some kind or studio) have you given out a permit for both the enclosure and the habitable use?”

The next day, Antonio replied:

“Bambi, there is not supposed to be any living space or equipment servicing the house below BFE [below flood elevation].”

According to the county TVR log, both applications were “withdrawn” and there is no record of any non-conforming use permits being issued for Hale Ono. Yet county tax records classify the property as a vacation rental. Tax records also describe the property as two bedrooms and one bath, with a total living area of 2,016 square feet.

Meanwhile, numerous Internet ads reveal Hale Ono offering its services as a four-bedroom, four-bath “bed and breakfast” that sleeps 10-13.

One ad includes this description (emphasis added):

This new completely remodeled custom home with exotic Balinese carvings and furniture has 2 bedrooms and 2 Master Bathrooms upstairs and 3 rooms and 2 Master Bathrooms downstairs. Room for up to 12 people.

The upstairs is private and is accessed by a stairway overlooking the ocean. It is not connected to the downstairs which provides secluded separation. The new downstairs area is accessed through the main front door to the right of the Antique Balinese gate/pool area; and also independently through custom teak/screened sliders from each room below to the pool area. The fourth exit is through a tall, glass/screen slider that looks out over the ocean (downstairs in the large Flat Screen media room) that steps out onto another lanai (great for lounging/reading/etc. This leads directly to the secluded beach which is on the property about 30 steps away.

Though the ad describes Hale Ono as a “BED AND BREAKFAST ONLY for FAMILY AND FAMILY FRIENDS,” it's clear from comments left by guests that this is an active commercial enterprise. As a couple who rented the downstairs on Jan. 23, 2013 noted:

Nothing about this rental is what the owners have posted. Once arriving you feel that the mgmt/owners would of said anything to rent out this unit. They noted my wife would be able to access the lower unit with 2-3 steps. This was very important since they were told she still uses a walker and wheelchair, their were no less then 5-6 steps. The pool was broken down,no heat and the jets were broken. The house fans barely worked and there were a lot of wiring problems with the unit. We put up with construction workers that left nails all over the lawn causing us a flat tire. We even repaired the downstairs toilet seat. The mgmt/owner made no effort to apologize for our inconveniences. Instead they changed there listing to "no handicaps". A very callous and insensitive move.

To which the “owner” (Sutherland?) replied, while simultaneously acknowledging the property's longstanding use as an unpermitted TVR:

Our family at Hale Ono do our absolute best with excellent service to help all who have stayed and have only received 5 STAR RATINGS over the last 9-10 years at Hale Ono on the beach in paradise.

Another guest, who rented the property on Sept. 9, 2012 for her “dream beach wedding,” revealed additional construction was under way:

We drove up the driveway, parked in the yard next to the most perfect little Balinese tiki hut being built for future renters

The “hut” is described in the same ad as:

There is a small Hale Bali with ocean view, barbeque, Tahitian hot/cold shower; micro wave; refrigerator; wet bar; bathroom, etc. near the home that also may be available. It accomodates [sic] two for sleeping in the loft and a futon/sofa on the lower floor and is completely enclosed by bamboo/teakwood fencing for privacy, etc. Pricing: $245 per night + cleaning, etc. and may be rented separately or with the main home.

It's unclear whether this property, which can now apparently accommodate 16 persons, exceeds its wastewater system, which is limited to 800 gallons per day, according to the state Department of Health.

It's also unclear how an ADU could become what Bali Hai Realty's Michael Schmit described as:

The property includes both units of the two-unit CPR. With one beach house already built and another that could be built next door (the home may be purchased separately).

Or how Schmidt can treat the enclosed downstairs as a selling point, when it's a blatant violation of federal flood laws:

This Tropical Balinese home has two bedrooms and one bath upstairs and as well as three rooms downstairs along with two full baths, totaling more than 2,000 square feet of living area.

What is clear, however, is the tremendous impact of these apparently fraudulent activities on the community and its fragile resources. What began as a residential lot with two small houses, each occupied by one longterm renter, has become a commercial resort with three vacation rentals that together sleep 26 people. The guests, meanwhile, are allowed to sleep in the flood zone and hold weddings on the beach. They are also directed for recreation to Kee, which is described as a “long calm bathtub protected by a long reef,” and told the rough, reefy shoreline in front of the property is "ideal for children" and "great for snorkeling."

As a Hale Ono ad chortles:

JUST BECAUSE is the phrase for HALE ONO and our beloved beach neighbors.

But just because the county lets you get away with something doesn't mean it's right.