Monday, May 6, 2013

Musings: Abuse Chronicles 15

Push a little, get a lot, seems to be the MO of Kauai TVRs, and it's no different at "Haena Heaven," which sits on a sweet stretch of shoreline that many did consider heaven.

Before it became this:
Haena Heaven — aka Makua Kai — sits on the Hanalei side of the beach access at Camp Naue. It's part of the Teri Tico subdivision, the only lot to get guest house rights. But owner David Smith pushed for more. After building the main and guest houses, he asked to build a third house, which prompted a special management area (SMA) hearing. Residents, leery it would be a spec vacation rental, said no, the neighborhood was dense enough already. But in 2002, the planning commission said OK.

Smith started building the third house in September 2004, with no new shoreline certification required.  Yet as this 2004 photo shows, the debris left  by the high wash of the waves, which delineates the public beach, extends to the supporting columns. So much for the subdivision's 80-foot setback requirement: 

In February 2005, the property went through a CPR. Ed Ben-Dor, who built the mega-house that hovers at the edge of Haena County Beach Park, put up the cash.

Meanwhile, Smith was cutting down the big old kamani and ironwood trees fronting his property.
The work was clearly taking place on the public beach, as evidenced by this wave wash photo:
In July 2004, the county issued Smith a violation notice for violating his SMA permit by illegally cutting trees, planting landscaping and installing sprinklers, which he was ordered to remove. The state also weighed in on the public's behalf.

But by that time, the pesky trees were gone, allowing Smith to install a spray paint lawn and naupaka seedlings on the dune:

In December 2005, the property looked like this:

New violations were recorded in January 2006, when Smith built a chain link fence in the conservation area without a permit:

In June 2006, both the state and county issued violation notices. The state also ordered Smith to “stop any further activity seaward” and recommended removing the fence, or risk $2,000-per-day fines. Smith resisted, claiming through his attorney, Bernard Bays, that “incidents that have occurred” that justify his need for a fence.

Meanwhile, naupaka was being planted within the fenced area, and watered:

In November 2006 the issue went to the state Board of Land and Natural Resources. Staff recommended a $2,200 fine, and removal of the fence within 30 days, with additional fines of $2,200 per day for non-compliance. Thus began a protracted administrative proceeding, with Bays given three deferrals. Smith further prolonged the process, requesting a contested case hearing to challenge DLNR's ruling.

Through it all, Smith claimed the fence and landscaping were on his property. But that tattle-tale surf debris line told the real story:

In November 2007, when Smith had achieved his desired objective of establishing a naupaka hedge on the public beach, he dropped his contested case, removed the fence and sent in $2,200 in payment of his fine. The vegetation remained.

Smith next moved to secure two TVR certificates for the houses. This might have caught the county's eye, given that both the SMA and CPR documents specified residential uses only for the units. The shift to a commercial use might even have triggered an SMA hearing, by a planning department more finely attuned to protecting coastal resources. But it didn't. 

Instead, the county accepted Smith's TVR application, though it lacked proof that he'd paid general excise and transient accommodation taxes or rented the property for 30 days annually prior to 2008. And while Smith swore in his affidavit that he began TVR use in 2004, the GE and TAT licenses he provided say the business began on May 25, 2005.

Despite the discrepancies, the county's web TVR log showed both certificates were approved in June 2009. And all subsequent renewals were approved.

Meanwhile, Smith has kept on pushing. His two permitted TVRs, which together sleep 16, are promoted as a package for "small business conferences," His guest house, which has no TVR permit, is openly advertised for rent. It is offered as part of the property's resort package, which can include a personal chef and extra maid service. All tucked away behind that thick hedge of naupaka that encroaches onto the public beach — a beach falsely advertised as Tunnels, no less.

Still, nothing is more ironic than this advertising gimmick: promising guests the beach the way it was —  before he planted it thick to create "beachfront luxury" for his paying customers.

Instead, what they get is this, a completely vegetated beach: 


Anonymous said...

WOW.... love those orbs in that one picture and what GREAT, factual reporting, Joan! The evidence of corruption, collusion and abuse is striking! Keep 'em coming, Joan! You gott'em by the you know WATS in your Abuse Chronicle series!!!

Anonymous said...

The pictures are worth a thousand words. They're stealing our beach! The buildings should be removed from the property! Mr. Smith should go to jail for tax evasion, falsifying records, and non-payment of fines.

Anonymous said...

It would be GREAT to see a list of the Mayor's campaign contributors and TVR owners.

Anonymous said...

So Big Bernard, what are YOU going to do to fix the problem?

Anonymous said...

can't wait to hear/see how Dahilig points his little finger at someone else...instead of taking any responsibility.

Anonymous said...

Big Bernard is part of the problem. Do you really think he didn't and doesn't know the full story behind this corruption? The BIG question is will anything good come from this? I.E. Will there be actual and real prosecution including those in the county government? Will the TVRs be revoked and those paying the bribes prosecuted up to and including jail time? This is a deep root of corruption and there's a lot of money on the line in more ways than one. Big Bernard is feverishly working to ensure none of this sticks to him.

Anonymous said...

i wonder where we will be at abuse chronicles #50 as far as enforcement? seems that if dahilig wants to get everything in order the dept will have to site inspect every tvr on record as well as the paper trail. how much time is allowed between the app and the inspection/review, and all at once, they will be inundated w/ a workload that they are not prepared to expedite in a timely manner. maybe thats why costa was over his head, but the root problem is why did he get the job in the first place when it seems obvious that he didnt have the skills to perform/oversee his dept and instead bent against the law to allow this shit to pile up just so it would get done and look like he was 'doing his job' and avoiding drawn out legal paper wars. i hope those complicit, including lawyers, realtors, builders and owners past and present are prosecuted for fraud, conspiracy, tax evasion by the county, state and feds then hit them in the wallet .....make them pay for being liars and thieves.....return the aina to pre adulteration.....they may have a lot of money but the public has more voice and thats where the the politics comes in, you want to serve the public? get elected? then its the people that make the big choice, not the big money, but it takes an informed electorate to work...sadly lacking ...thanks joan for pure investigative JOURNALISM

Anonymous said...

Bernard wanted the TVR ordinance to pass that contained the grandfather we know why. Dickie Chang was pressured to vote for it by Bernard's cronies who showed up at his house, beer in hand to persuade him. Got to give Kaipo cudos for fighting against it. Now all of us who were against it are left with the dissatisfaction of knowing we were right, at the expense of our beaches and turning the north shore into a full-fledged resort from Hanalei to Haena. It's no wonder there's no love lost on the people who have profiteered at our expense, including all the realtors, investors, lawyers and politicians. I want to throw up.

Anonymous said...

the wave and wind will come---akua sabe!

Anonymous said...

Well guess what folks....
We the people will have to pay "for legal services" or already have paid, for both the paychcks and the retirement funds for all the public "servants" involved, for the rest of their lives. Guess who is laughing all the way to retirement.

Anonymous said...

Not mention the burials found there.
At least they have a modern septic systems and a burial ground.

Anonymous said...

Hey if the naupaka is on public beach is there any reason the public can't rip it out?

Anonymous said...

Here's hoping that the Hawaii Supreme Court decides that a single snapshot of the location of a certified shoreline is an inaccurate depiction of reality.

Anonymous said...

The voters of our island need to stop electing mayors who do not have the college education and experience for the position. It just continues the "good ol' boy" politics, because those mayors go on to appoint their inept relatives/friends/supporters to County jobs.

Anonymous said...

Whoa. No way! Those fences are screaming illegal!

Ok, Kollar, how bout it? Thatʻs an encroachment on public property. Itʻs using public resources for private gain.

Why do we have to tell the enforcers the law?

Anonymous said...

If the naupaka is on public beach then the naupaka is public vegetation.

Isnʻt there something in the law that refers to something changeable/mutable that cannot be considered a permanent/fixed status such as plants? Unlike a tree that been there for a hundred years.

Anonymous said...

Those kamani tree are "false kamani".An invasive trash tree that needs to be cut.
They disturbed more burials then a hundred septic systems

Anonymous said...

ANY and ALL of the public officials, etal, could and SHOULD be penalized to the absolute FULLEST extent of the law including, but not limited to, future retirement funds to offset legal expenses as well as ALL of their real estate and ALL of their personal property, their bank accounts and holdings, etc...., AND, to YOU, JUSTIN KOLLAR, you should be ashamed of yourself letting this shit fly by... these PROVEN crooks have colluded at the expense of the public and this should AND COULD be properly dealt with poste haste with the proof that is ALL RIGHT HERE, buddy boy, and it APPEARS that you consent to this with your INACTION, Justin Kollar! Joan's excellent AAA+ journalism consistently and CLEARLY shows the inadequacy of ALL of the newspapers in these islands, exposing ALL the cronies AND YOU , Justin! SHAME, SHAME, SHAME on you ALL!!! Howz about a public petition since our public officials have proven inadequate at best. How much more are we the people going to continue bending over for ALL your pleasures? Is this what YOU want OUR children to learn, that it is OK to LIE, CHEAT and STEAL at EVERYONE'S expense while the few "regulars" continue their crimes against ALL of us? THee are just a questions that we all are wondering...... and just look what is obviously happening while "we the people" wait.... WTF...???????!!!!!! Justin, YOU have a job to do. We are ALL watching and right now you are not looking to good, either!!!

Anonymous said...

Axe to grind or what? Let's give Kollar some time before jumping all over his case.

Dawson said...

> Let's give Kollar some time before jumping all over his case. <

Good idea.

But how much time, exactly? A month? Two months? Six months? A year?

How long, exactly, should it take him to call a press conference and announce his intention to prosecute these perps to the maximum of the law?

How long, exactly, should it take him to write an email to the Garden Island announcing the same intention?

How long?

Anonymous said...

Which other crimes should Justin take his staff off of to work on these? If you read this blog much you would know he's gone and already asked Council for resources to take on these cases.

Anonymous said...

May 7, 2013 at 7:05 PM
I agree.
How much time?

But if Kollar has requested funds to do this, then guess what? Does anyone really think yukimura and bynum are not going to do their filibuster to see that it never gets funded? Oh man the stupid questions that woman asks! And bynum, the red faced drunk feeding off the contention. Any of you out there that voted for either one of these idiots, donʻt complain. Just shut up.

That is the root of many of the failures to enforce.

I agree with another commenter that Joan has done such an in-depth research that - well - the initial work is already laid out for a prosecutor to bite into. Too bad Joan isnʻt getting paid one of the famous whopping county salaries of the ʻroyaltyʻ here. uhh, they make me sick. So smug.

Anonymous said...

As far as Justin taking his staff off work to focus on this, in case you havenʻt noticed, Kauai is not the bustling crime center like most places and the monkey prosecutors fresh out of law school should at least be able to handle Kauaiʻs workload. God forbid they have to apply their skills in a real city. And the salaries theyʻre getting they should get off their fat asses and hustle.

Anonymous said...

May 7, 2013 at 4:47 PM

Shayme - good to see you back in action...

Anonymous said...

TO: May 7, 2013 at 4:47 PM

are you that ignorant, small minded and obsessed with Shaylene to think that out over 80,000 residents on Kauai, my comment was Shayleneʻs comment?

I am not putting down Shaylene in this response but I am putting down you.

And if it is the likes of someone that thinks on your level of pettiness that got her ousted, then maybe she should be back in that office.

Anonymous said...

Yes, May 7, 2013 at 4:47 PM all you do is take people off the train of thought here kind of like Bynum does. So stop distracting from important issues.

Anonymous said...

Back to Kollar and the County ʻCouncilʻ about getting those funds available so he can move on these crimes.

Anonymous said...

so dahilig sez he wants to bring these properties into 'compliance' w/ the codes...i think it should be added that all of the money they took in ILLEGALY starting from the start of their LIE til the time they got CAUGHT should be forfeit and charges for fraudulent docs after that .....and wtf is up w/ the county not heeding community suspicions/complaints 12 FUKING YRS ago... north shore was a laid back place but last time i went it seems that from hanalei town on became unattractive as far as traffic and the amount of people .good for business..not so good for peaceful community...and btw joan...whats going on w/ those transplant squatters down at annini??

Anonymous said...

so dahilig had 'another meeting' he had to attend to at todays council meeting which he was compelled to attend by fufaro from the last time....would one think that you would make time out of your schedule to be available especially w/ this issue or at least have someone in planning for backup?? obviously hiding, im seeing resignation soon, but then who will be the 'interim' director??also i wasnt too happy w/ furfaros suggestion to consider throwing more money into a dept that isnt being administered effectivly...kinda like the last item a few pages back (pp) "you cant depend on the people who created the problem to find the solution"

Anonymous said...

8:58 AM

what? I'm sorry are you trying to reference a different time other than the one you are claiming to write at 4:47 PM or are you directly your 'I'm not Shayme' statement at 9:55 PM, either way good to know you are not Shayme, just a sound alike.


Anonymous said...

Joan Please take a look at the Aliomanu seawall.High tide would go to Aliomanu road. A house next to the wall has already been taken by the ocean and another was moved towards the road to save it.