As the Kauai County Planning Commission considers a string of new bed and breakfast — or “home stay” — permits, it needs to remember this quote: “If it looks like a rat and smells like a rat, by golly, it must be a rat.”
By which is meant, if a property has been operating as an illegal transient vacation rental — and in some cases, the owners have even been cited and/or fined for that unpermitted use — it is still an illegal TVR, despite an attorney's attempts to disguise it as a B&B so the owners can get a permit to which they are not entitled.
Eddie and Joan Ben-Dor were the first to pull this trick for their Hanalei TVR, which they were forced to shut down because they'd never even bothered to apply for a TVR permit. Eddie ultimately was ordered to pay civil and criminal fines for his zoning violations.
But in true never-say-die fashion, the Ben-Dors came in for an after-the-fact permit to operate their Weke Road property as a B&B. County planners initially quite rightly denied their request. It then went to the planning commission, which in its usual fashion is waffling because it has a problem saying no, even to folks who are so obviously trying to game the system.
In the meantime, other scofflaws are now coming in for B&B/home stay use permits in an attempt to legitimize activities that should not be allowed because the county is no longer issuing TVR permits. Many of them are represented by attorney Jonathan Chun. As outlined in the Abuse Chronicles, he previously helped a number of landowners obtain TVR permits without the documentation required by law, which makes me wonder how he ever got approved as a per diem judge.
In denying the Ben-Dor application, county planner Dale Cua correctly found that a special management area (SMA) permit was required for the proposed use. He also referenced the General Plan, which calls for preserving Kauai's rural character by limiting resort development in residential neighborhoods. The GP also finds urban uses in the Hanalei and Wainiha-Haena area to be undesirable because of limited infrastructure and environmental factors.
Perhaps most importantly, the General Plan states that development standards for B&Bs and TVRs should consider a number of factors, including “the total number of vacation rentals in the neighborhood and the cumulative impacts on the neighborhood.”
Cua also found that Hanalei town is designated a residential community, “and introducing B&Bs as well as vacation rentals in this area would significantly change the character of the neighborhood and cause unwanted impacts” counter to a residential designation. Furthermore, the town lacks a sewage treatment system, so wastewater is treated by septic systems and cesspools.
Unfortunately, the County Council ignored those elements of the General Plan, as well as the SMA law, when it passed an ordinance that allowed a slew of landowners to get TVR permits for big houses that are the occupancy equivalent to several small hotels in Wainiha and Hanalei.
The Council compounded that injustice and rewarded bad behavior by allowing only those who had been operating illegally to apply for TVRs. And though many did not qualify, as evidenced in the Abuse Chronicles, they got “for life” permits that greatly increased the value of their properties, anyway.
But even that big permit give-away didn't resolve the problem. In his October 2014 power point presentation to the Council, Planning Director Mike Dahilig reported that landowners self-identified 320 properties as TVRs for real property tax purposes, even though they do not have TVR permits. But since they can't legally get TVR permits, many are now claiming to be B&Bs.
Among them are Greg Allen, one of the principles in the controversial HoKua Place housing project near Kapaa Middle School. He was cited for illegally operating his 6,000-square foot, seven-bedroom, sleeps-18 Anini Beach property as a TVR, but is now claiming in his VRBO ad that it's a B&B. Oh, come on!
What's more, from the reader comments left on his VRBO site, it sounds like it operates as an illegal multi-family rental, with people saying they rented “both levels” and “all the units.” The ad itself states:
Low Season Rate: $795/night 5 night minimum, up to 6 people, Main level, 3 Suites; $1500/night up to 12 people includes Main and Top levels, 6 Suites; Add the Studio Suite $250/night Ground level.
A previous ad also speaks to its use as a multi-family vacation rental, which is not allowed under the TVR law.
Some of those now seeking B&B use permits operate legit home stays, where the owner actually lives on site and the neighbors have no objections. Their applications should be considered. But people who have been cited for illegally operating as a TVR should not even be in the running for a B&B use permit.
The county made a lot of mistakes with the TVR permitting process. Now that it has a chance for a “do-over” with B&Bs, it needs to make sure it doesn't blow it again. In other words, don't reward bad behavior by granting permits to scofflaws.
And don't further compound problems by approving B&Bs in areas that are already heavily saturated by TVRs that never should have been allowed there in the first place, like Hanalei-to-Haena and North Shore agricultural lands.