Musings: Abuse Chronicles 20

The sea is close at Swaying Palms, a “sleeps 14” vacation rental that sits on Kepuhi Point in Haena. So close that TVR ads liken it to “being on a yacht,” and waves rush under the house with enough force to move lounge chairs.

As one visitor gushed: 

Our feet were always on the sand, and the water was only a few feet away. There is no view from any house like this one.

The sea is also close to Swaying Palms' cesspool, which was dug in 1958 for a 320-square-foot, two-room cottage. It now serves five bathrooms — each with a Jacuzzi tub — in a seven-bedroom TVR that is 10 times larger the original house.

Building permits on file at the county do not correlate with all that expansion, including a second story that was apparently added after 1995. Much of the work was done in the 1990s by Craig Maas, a builder associated with other North Shore houses that were similarly grown into TVRs without recorded permits.

A Jan. 15, 2010 comment in county records indicates the building division helpfully adjusted the actual construction costs on one 1998 permit downward from $141,000 to $112,900 — the amount needed to ensure the work qualified as an “unsubstantial improvement” not subject to flood requirements. Yet records still show the value of the permit issued remained at the original $141,000.

For a time, the house was illegally used as a multifamily TVR, renting out as many as four distinct units — Kapua, Moana, Wainanai and Kamakani, each with a kitchen. This was first documented in a 1992 appraisal and later reiterated in an Anini Aloha ad that was verified by the August 2009 FEMA audit of Kauai properties in the flood zone.

Planning inspector Bambi Emayo also found and photographed evidence of this misuse when he checked out the property earlier that year, after Krouse applied for a TVR certificate.

“The use of the Single-Family Dwelling as a Multi-Family Dwelling are [sic] a violation of density,” Emayo wrote in an April 20, 2009 violation letter. “The existing Dwelling contains (3) three units.” 

Krouse was ordered to immediately cease and desist TVR and multi-family uses immediately and remove all overhead cabinetry and cooking appliances from the unpermitted kitchens.

In a May 7, 2009 letter, Krouse denied using the property as a multi-family rental, even though he acknowledged that each “suite bedroom” had a coffee pot and microwave. Attorney Jonathan Chun apparently filed an appeal on May 21, 2009, though no copy was included in the file.

Chun's appeal and Krouse's letter are acknowledged in a June 26, 2009 letter from then Planning Director Ian Costa, who said his office had decided to recommend the Planning Commission approve the certificate after all at its July 14, 2009 meeting.

This recommendation was questionable, due to both the zoning violations and the incomplete application. Though Krouse submitted copies of his general excise and transient accommodation tax licenses, the file included no proof that taxes were actually paid. 

Interestingly, a 2006 real estate listing  claimed the property earned net profits of $90,000 in 2005 alone. Krouse also submitted documentation showing just 21 days of rental history in 2008, not the 30 days required under the ordinance.

Although the Planning Commission was supposed to scrutinize all applications that were initially denied, it unanimously approved a TVR certificate for Swaying Palms. There is no record of any new information being provided to dispute Bambi's inspection report. Indeed, approval was granted with the caveat that it was not evidence of zoning compliance.

With his certificate  in hand, Krouse continued renting out the house, which is frequently occupied by 12 to 16 persons. Four-to-six rental cars are typically parked out front, and a beach with extremely dangerous waves and currents is now frequented by tourists with small children.

However, it appears the multi-family use was retained. A February 2011 real estate listing  described it as having four bathrooms and “Spacious living area includes a private lock off guest studio with its own laundry and kitchenette.”

After submitting his 2011 TVR renewal, Krouse received an Oct. 12, 2011 letter from planning inspector Vil Baliscan — sent with Planning Director Michael Dahilig's concurrence — that referenced the old violations. Krouse was again ordered to cease and desist operations, and told his renewal would be held until he came into compliance.

A month later, Krouse wrote back, saying the denial was a “complete surprise” because the violations were the same ones that had been raised in 2009 when the planning department later “reconsidered their error....and proceeded to issue the TVR permit.” Though the file shows receipts for his payments, there's no indication of whether renewals were actually granted for the years 2009, 2010 and 2011.

On March 6, 2012, Vil sent Krouse another letter, saying a November 2011 inspection indicated that the violations apparently had been rectified.

Yet a June 2011 on-line sales ad for the house, posted by Hawaii Life, seemed to indicate the continued potential for multi-family use:

The main house consists of a spacious living area with 5 bedrooms. Across the breezeway, there are two exterior suites that have private entrances for a total of 7 bedrooms.  TVR approved, sleeps 14 people.

The MLS played up the value of the TVR certificate and absence of shoreline setback:

Built back in the 60's, so home is located closer to the ocean than is allowed now! Several owners since then have remodeled and upgraded, making this a typical Hawaiiana beach house. FINANCIALS AVAILABLE. EXCELLENT INCOME. TVR APPROVED WITH HIGH INCOME.

In December 2012, Realtor Roberta Haas sold the house for $1.9 million to California-based Tenir LLC, whose principals are Krouse and his wife. 

And so another owner is being allowed to profit from first operating an illegal multi-family vacation rental and then receiving a TVR certificate that he never proved he was eligible to receive.

As a result, on any given day, a dozen or more unsuspecting visitors are staying in a house that has absolutely no shoreline setback on one of the island's most dangerous and dynamic coastlines,

But let's just pretend it will always be calm and sunny. And try not to think about all the shishi, doodoo and wastewater generated by 14-16 people using a 55-year-old tiny cesspool, just a stone's throw from the sea.