Friday, April 10, 2015

Musings: Twists and Turns

The Kauai County planning department has dramatically scaled back its proposed ordinance regulating homestays/B&Bs prior to Tuesday's public hearing on the hotly debated topic.

And the gist of it is this:

Residents will have to accept either 10 homestays per year, or a possible flood of illegal transient vacation rentals (TVRs) seeking legitimacy before the law is changed. 

Why? Because the county has taken so damn long to deal with TVR enforcement and homestay rules.

The new proposed ordinance has eliminated all references to major and minor permits, census district allocations, complaints, enforcement, inspections and prohibitions on homestays in the agricultural district.

Instead, it simply states:

On a first-come-first-served basis of applications deemed complete by the Planning Department, no more than ten (10) applications for homestay operations shall be reviewed by the Planning Commission each year.

The proposed ordinance also amends the zoning code's current definition of homestay to read:

“Homestay” means an owner occupied dwelling unit in which overnight accommodations are provided to transient guests within the same dwelling unit in which the owner resides or in a guest house and the primary residential structure(s) used for homestay operation is the owner's primary residence, and the respective owner currently benefits under Sec. 5-A-11 of this Code for a homeowner's exemption for the homestay site.

According to the director's report that accompanied the revised ordinance, the department believes the new definition will make it clear that the homestay operator is the actual resident property owner, “which should act as a self-regulating mechanism” on the noise and other disturbances that often plague transient vacation rentals (TVRs).

The department also noted the 10-per-year limit was imposed to “ensure there is not an overage of applications...both for land use carrying capacity as well as departmental processing capabilities.”

The report said the initial proposed ordinance, which was already meeting public resistance, had to be amended in light of “recent developments” within the department's enforcement division “in order to expedite the adoption of a clear and specific standard and review parameters under which homestay applications can be processed.”

In other words, the department can't muck around too long, because people who are getting busted for operating illegal TVRs are now trying to pass them off as B&Bs in order to keep operating. The report acknowledges that some of the scofflaws have discovered the “possible loophole in applying for psuedo-TVR operations outside of the VDA (visitor destination area) and resort zoning district.”

The VDA and resort district are the only places where new TVRs can legally operate. All other TVRs are required to have transient accommodation certificates, which are no longer being issued.

So the department has to close the loophole with a simple, hopefully more palatable, ordinance before it gets choked with a flood of fake B&B/homestay applications by the illegal TVRs.

The B&B/homestay/illegal TVR folks are already staging a serious pity party, with websites, newspaper articles and letters to the editor from displaced tourists decrying the county's mean, arbitrary and completely unexpected order to cease and desist.

They're claiming through crocodile tears that they either never knew they had to have a permit to operate, and/or there was no way to get such a permit — neither of which are true. They were always required to have a use permit.

Though some have tried to pretend that homestays are the sole purview of aunty and uncle, trying to make a few bucks to supplement their social security — and no doubt that's true in a few isolated cases — for many more B&Bs/homestays are a very lucrative business, just like the TVRs that they really are.

For example, Sheila Heathcote, the owner of Hale O Nanakai, laments that upon receiving the cease and desist notice:

I took down my beautiful $7000 website, said good-bye to a young lady who was going to help me with the daily operation (and who had quit her $45,000/year job at a large Vacation Rental firm to come help me), canceled my listings on Air B&B, Kauai Vacation Resorts website and the Hawaii Visitor's Bureau gohawaii.com website.

Now, that ain't no mom and pop operation. It's a sleeps-14 mini hotel, which would not have been allowed even as a TVR because it's a multi-family dwelling unit.

Still, the county also must shoulder blame for this mess because the general plan update noted way back in 2000 the need for a “clear policy” regarding TVRs and B&Bs. It wasn't until 2008 that the Council adopted a law regulating TVRs, with B&Bs/homestays to be addressed separately.

After that wholesale giveaway of TVR permits to people who didn't deserve them, followed by a second handout to folks running TVRs on ag land, the county sat on its hands for several years. 

When this blog's 2013 Abuse Chronicles documented how many folks got TVR permits without providing the required documentation, the Council and administration decided not to crack down on them, but instead go after the “low-hanging fruit” — the zillions of TVRs, homestays and B&Bs that never even bothered to apply for a permit.

Once enforcement finally began, with the planning director and county prosecutor working in tandem, lawyers came up with a new scam: pass off the illegals as B&Bs/homestays so they can get a permit. Suddenly, planners realized they needed to tighten up the language regarding home stays right quick.


And here we are. 

Better lawyer-up folks. It's gonna be a long, hard ride.

41 comments:

Anonymous said...

That proposed ordinance will be found illegal.

Anonymous said...

On Oahu ever since the Council punted in 80's and repealed the old vacation rental law it's been scofflaws and lack of enforcement everywhere. Councilman Anderson, my esteemed representative, came up with this stinker of a reso proposing a bill:
http://www4.honolulu.gov/docushare/dsweb/Get/Document-162835/RES15-072.htm

http://www4.honolulu.gov/docushare/dsweb/Get/Document-162832/dspage07715327809893714702.pdf

Which contains hilariousness such as:
"City-wide limit. The total number of permits in the city cannot exceed onehalf of one percent of the total number of properties classified as residential by the director of budget and fiscal services pursuant to Section 8-2.2 for the 2009-2010 fiscal year. This 2009-2010 number is the permanent city-wide limit for purposes of this subsection."

-and-

"Limit in each council district. The number of permits issued for properties located in each council district cannot exceed one-third of the city-wide limit established in subdivision 1. The council districts in existence on the effective date of this ordinance will hereafter be used for determining these limits, notwithstanding subsequent reapportionment."

Talk about trying to hide the ball, and this guy is supposed to represent areas that are heavily infiltrated by illegal TVRs. If you run the math, it would allow an absurd amount of TVRs in any one district.

Meanwhile he votes against a bill that might actually help!

http://www4.honolulu.gov/docushare/dsweb/Get/Document-162454/BILL022(15).htm

This despite a veritable firehose of constituent complaints and requests for him to get on the right side of this issue.

Anyway, good luck to Kauai on getting a handle on this issue. Looks like Oahu is just gonna keep twiddling its thumbs.

Anonymous said...

Did President Obama stay in an illegal TVR in Kahala during hos last few Christmas Vacations?
The TVR and BB issue is huge.
Most operate quietly with no ill effects.
This is a property rights issue.
In fact, ALL of the tarp/tent car awnings are illegal. There are thousands of of illegal structures etc.
This TVR issue is selective enforcement. Even the County's Planners in referencing Lihue, realize that Hanamaulu has so many illegal structures and illegal additions that it was suggested more than once in Council chambers that a law should be passed to allow these clear outright violation of all building/planning/health codes.
Where does the County start or end in the any enforcement?
If the BBs/TVRs show clear compliance with GET/TAT leave them alone.
Get the government out of our lives. Deny entry to any government official. Let 'em get a search warrant.

Anonymous said...

If you think that the owners of any of these TVR's or homestay/B&B properties are getting rich off the income ask them and they will tell you that most are just keeping their heads above water-taxed at a resort rate, paying for permit renewals etc, paying the many people who work for them-ie: cleaners, gardeners, maintenance, property managers and on and on-you are surely mistaken if you think otherwise

Anonymous said...

Interesting to listen to the NPR radio program today heralding the entrance of Airbnb to Cuba as a advance in individual freedom and property rights.
A citizen being allowed to rent out a room in their house! Incredible!
Here there is the state/county crackdown on this right/liberty/crime?
Mr Lee makes his case but property bought for 350,000 10 years go is now worth 3.5 million.
Those homeowners not endowed with favorable govt pension/ health endowments have a tough nut to crack. The thought of renting out a room in ones own high tax home for $100 /night is criminal?
The current regulations favor the real estate companies as the once secure property owners are bought out by the multi millionaires who do not have to resort to commerce to finance their properties.
Mr Lee will have a nice quiet neighborhood as it is bought out by investment trusts and non profit absentee owners that do not have to rent out.
Then his heirs will sell for big bucks.
This is more a political push to support the resort hotel industry over the individual homeowners.
Its fine for the off the grid moloaa /kilauea property owners to exploit their squatter populations but to rent to that nice couple from Oregon for $500/week to help your property tax is a outrage?

Homeowners have legal recourse to noise and parking complaints be it short term or long term rentals.

Question, why are mobile homes prohibited on Kauai? Why is the not r-4/6 zoning per acre in areas adjoining town areas made available?
Interesting to see costly shipping container conversion research when there already is a solution to low cost housing with component pre fab homes.
These exist already in hurricane/tornado prone areas as low cost housing alternatives.

No major land owner wants to give away acreage for low cost housing that in another ten years will be worth twice its present amount.
Also the general population doesn't want 250 new neighbors or traffic in their back yard.

Anonymous said...

Justify what you're doing any way you want. But the big BUT is what you are doing is ILLEGAL. Got that? ILLEGAL. Obviously you folks don't care about the law, so the County is stepping up and FINALLY doing its job. Anybody feel sorry for you guys? Not me.

Anonymous said...

4:07

If its as bad as you say - then why in the hell are you doing it? Do us and yourself a favor and quit. Common sense, right?

Anonymous said...

White Blight.

Sam Lee said...

Just had a chance to read the new version of the Homestay Ordinance. Its a lot less wordy than the original, but packs a bigger punch. We who have waited for the County to uphold the integrity of the zoning code by doing something about the run away numbers of non permitted visitor rentals popping up around homes, are saying, "At Last"

While the ordinance is not the do all to end all we'd hoped it would be, it standardizes the application process, exposes it to resident oversight and sets a limit on the number of applications that can be filed per year. Thankfully, mass grandfathering will not be allowed.

What this ordinance is, is a compromise. The operators will have a way to seek legal status; with controls on process and numbers. The residents will be able to be a part of the application review and have a say in the outcome. Most important is control over the number of permits issued. Sensibly, this number should be based on demonstrated NEED for additional visitor rentals; rather than a number created by an endless stream of applicants.

sincerely, Sam

Anonymous said...


No homestays!
We've already compromised!
TVR's outside the VDA have been forced down our throats!
There's been outspoken residents speaking out against this illegal invasion for years!
Yes, we may have grown weary, seeing our complaining (kicking and screaming actually) as futile against realtors who do this for a living.
That some locals managed to keep their toe in the door, continuing this fight, while trying to raise their families, is nothing short of a miracle. If you add up all the antis...we're still here...just worn out.

Funny, no realtors or TVR owners worried about good ole mom and pop way back then.
And now? Now it's "where's the compassion" for our kapuna, who just want to "rent out a room."
What a guise to bring more visitors into our neighborhoods. Mom and pop should have been the ONLY visitor accommodation ever allowed. As someone said "we did it back asswards!"

TVRs / 4 parking spot B&B's / and now homestays?
It's shameful.
What would really be shameful is if the already fined, illegal, (Ben Dor) house in Hanalei - gets a homestay permit....
That would just be the icing on one big turd of a cake.

Anonymous said...

to 4/10 at 6:03pm-we are doing it to save the property for our family instead of getting behind on taxes etc and then letting it be purchased by the mega-rich-We pay our taxes, follow the laws (even though they are frequently changed) and provide a service to the many visitors who have been coming to stay for many years and can't afford to pay the high price of putting their family into a hotel and spending lots of $$ eating out but instead spend that $$ at the many locally owned businesses on Kauai -what have you done for your community lately?

Anonymous said...

to 6:03 - I think that 4:07 meant that having paying guests allows the owner to be able to afford to own the property. He or she is not getting rich by doing so. On the other, the owner can afford to keep the property.

As for noise\disruption, there are plenty of long-term rentals on the islands that have a half dozen surfers (oh, yes, lets not forget the barking dogs) living in them. Of course, no one will ever call that kind of situation a "mini-hotel." Not sure noise\disruption is really the issue it's made out to be.

Anonymous said...

8:39 and 11:38

stop with the crying, already. Read what 5:59 had to say. ILLEGAL. Understand?

Anonymous said...

8:39 and 11:38

stop with the crying, already. Read what 5:59 had to say. ILLEGAL. Understand?

Anonymous said...

Sam Lee you hit the nail on the head with two key components NEED and CONTROL. Which we have neither right now.

Anonymous said...

Yes, and laws that were passed on the basis of unfounded beliefs that certain uses somehow cause more noise\disruption than a half-dozen surfers would make should be changed from illegal to legal. The real crying is done by those claiming that a few guests in a b&b or a tvr constitutes a community-destroying, noisy, environmentally destructive, mini-hotel.

Anonymous said...

5:46

You still either don't get it or refuse to accept reality. The residential zone created by the CZO, reserves land for people's homes. Commericial uses like tourist rentals are not allowed in the residential zone, unless one has a non conforming use permit. If you are operating a tourist rental in the residential zone without a permit, you are illegal and will be closed down. Noise or the lack thereof has nothing to do with why the residential zone was created nor should it be used a reason to change.

Anonymous said...

Our residential neighborhoods are not supposed to be turned into income producing sectors.

Anonymous said...

Sam Lee said, “Sensibly, this number should be based on demonstrated NEED for additional visitor rentals….”
Sam, how do you “demonstrate NEED” for a B&B? To me that is not a “sensible” requirement. It is a BS impossible road block. How do you “demonstrate” a need for any service? This bill too will fail judicial review.


PS – Up to now B&B/Homestays have only needed a Use Permit if they were on State-controlled ag land. That was STATE law; not County. If they were on County-controlled urban-zoned land, they were entirely legal and unregulated. This is why the County is negligent in only now trying to pass a law to regulate and limit them. The State only recently changed its stance and on smaller ag parcels gave the County the power to regulate their use. So the only B&B/Homestays that are ILLEGAL, are those that were/are on STATE-controlled ag land and which don’t have a STATE use permit.

Anonymous said...

so if you're right 7:34, why is the County sending out gobs of shut down notices? One would think with all the firepower the County has, including a department full of attorneys, they would not act unless they are on solid ground. I guess we'll see who's right, very shortly. wanna bet?

Sam Lee said...

Well, let me think. How might the County determine need? Start with a look at current and projected numbers of visitor units in place or planned, including legal TVRs, B&Bs and Homestays. Ask the question; do we need more? Examine current and projected visitor arrival data. Use the detailed information contained in the island wide series of Community development plans; ( for instance, the South Kauai plan predicts a surplus of visitor units by the year 2035). Ask residents how they feel. etc. etc. Require Homestay applicants to justify the need for the operation. The flip side result of your question could be this. If you can't demonstrate need, then why allow it?

Respectfully, Sam

Anonymous said...

Tourism, whether it's hotels, timeshares, TVRs or homestays, needs limits. If it's only driven by economics, Kauai will be loved to death.

Sam Lee said...

Right on the button 9:31.

IMO, what the County has failed to do is assess need for visitor rentals in neighborhoods with a wider view then just what the B&B operator wants or what the tourists want. Set amongst homes, you would think that equal or greater weight would be given to what the residents think and whether the need for another rental next to families is really justified.

Best, Sam

Manuahi said...

Sam Lee - Looking at visitor arrivals shows that you lack understanding of how the visitor business works. How many tourists would you think arrive on Kauai without reserving their accommodations in advance. So the number of arrivals is entirely dependent upon the number of accommodations that exist. To be better stated, the question should be, "How many tourists do we want here at any given time?" When do the economic benefits lag behind the quality of life issues. This is a question that can never be answered as it is a moving target and dependent entirely upon current whim, "We need more jobs so we and our children can stay here," or "We don't want there to be any change whatsoever to Kauai as we now know and love it." Like it or not, the main drivers of our economy, which pay for our government services, are
tourism, construction, commercial agriculture and federal government spending. So what we really have here is a war between those whose livelihoods do not depend on the status of the local economy (retirees and wealthy part-timers) and those whose do (the rest of us).

Sam Lee said...

What Happened at the Hearing Today?

My wife and I arrived early, signed to speak, testified then left for breakfast and decaf lattes. Delicious. By the number of people on the list, the meeting must've been a long one.

While there I had the pleasure to speak with Caren and Barbara, two women whom I 've admired for their tenacity, smarts and long time commitment to protecting Kauai for its people. I am in awe of these ladies.

Aloha, Sam

Joan Conrow said...

Yes, Barbara And Caren are amazing!!
So akamai, and they really know their stuff and do their homework.

Anonymous said...

so Manuahi.

Did you read the article in today's paper? What Sam Lee and many others having been saying for a long time came to a head yesterday at the Planning Commission. Control and Limits. For us residents, local, haole. whatever, maybe finally we are going to get a fair shake against the invasion of no permit rentals. You talk about war? The war is residents against invaders who really don't give a crap about zoning. Just move in and takeover.

You say, no way to set limits. So look what you got. No more than 10 applications per year. Could it have been 15 or 5 ? Hope you happy with 10 and the shutdown of all of the others.

Using your own words "when do the economic benefits lag behind quality of life issues" gives me a idea where you are coming from. Economic benefit over quality of life should never be considered in a neighborhood. Residents come first, economic benefit dead last. Thats our beef. Guys like you see neighborhoods as money mills, not a place to call home. That's Bull shit.

Anonymous said...

Unfortunately, many see Kauai as a commodity and not as a home. They want to share the aloha but only for the right price.

Anonymous said...

That B&B sleeps 14? 14 more people generating rubbish and sewage, using electricity and water and putting 2, 3, 4 more cars on our roads? No impact?

Anonymous said...

You are so right, 9:10.

Back in the day Kamaaina rarely sold their homes. Where you lived was kept for family. Renting rooms to strangers was unthinkable. Sadly times have changed. Money rules and everything is for sale. Does anyone wonder how this affects the young ones who see their home sold like a used car or rented out like a hotel?

Auwe !

Kauai people are waking up and fighting back. If we don't , our island will end up like Oahu and Maui. Cherish your land and your house. Do not sell or rent to tourists. Every illegal rental out there is another is a step in the wrong direction for our island people.

Anonymous said...

Can anyone cite for me the actual place in Kauai County law that says B&B's must have special use permits? People keep saying they're illegal, but I have yet to find the document and section that states that. Joan?

Anonymous said...

Did you see John Hoff's letter to the editor about exporting aloha? Aloha is freely given. If you're selling it, it's not aloha.

Anonymous said...

See the boo hoo (another) letter in the paper? Good riddance, go to Maui. The only guys who do care are the illegal businesses you helped fund all these years. Don't care if you support illegals, do you? As long as you have a good time.

Anonymous said...

Another boo hoo letter; this one from the lady who operates a illegal 14 guest rental. Because she's been busted she's on a hate trip blaming everyone but herself. Jeez, the feel sorry for me-urs are coming out of the wood work. Lady, please continue to tell the world what a lousy, unfriendly place Kauai is. Maybe we'll get lucky and fewer tourists will come to stay at illegal places like yours. BTW, I'm sure the many other illegals yet to be caught really appreciate what you are doing for them.

Sam Lee said...

Reading Sunday's paper reminds me how fortunate we are to have a County committed to dealing with the proliferation of illegal visitor rentals. Considering the odds and the money involved, this a brave thing to do. Residents are appreciative.

Contrast Kauai's exemplary effort with the lip service being given the subject in other Counties. Kauai is the envy of the State. Not only that, Kauai is the only County displaying a willingness to administer the law for the benefit for ALL its citizens.

Thank you, Kauai County.

Aloha, Sam

Sheila Heathcote said...

I wondered where you disappeared to after leaving the legitimate press. Just what we always needed — another Andy Parx howling away in cyberspace.

Seems that you've also thrown out your Journalism degree with last year's trash. Real journalists check the facts before they publish defaming rants about innocent people.

For the record, let it be known that Hale O Nanakai B&B was NEVER a 14-guest mini-hotel or an illegal TVR. It has been a legitimate Bed and Breakfast, located in my Kalaheo home, where I have lived for the past 21 years. I rented out three bedrooms and a tiny ohana. I NEVER had more than 6 guests staying at any one time.I served daily breakfast to my guests and catered to their needs 24 hours a day, seven days a week.
Once I opened my doors, I did not even take a vacation for eight years.

I moved into my home in 1995, and purchased it in 1996. I have had a home owners exemption for the past 20 years, and I have never lived on another island or anywhere else except Kauai since 1992.

Twice I was told I did not need a Use Permit or any other type of permit; first when when I opened the B&B in 2008, and again in 2012 during TVR debacle.

I never followed your blog prior to being slandered in it. I prefer to read publications like the New York Times, Smithsonian and the Nation. I certainly won't waste anymore time here because your feeble attempt at providing social commentary about the island we live on is nothing more than a litany of gossip, yellow journalism and unsubstantiated blather.

Joan Conrow said...

Gosh, Sheila, if only you'd been reading my blog instead of all those high falutin' periodicals you would've known you needed a permit. And you could've saved yourself a shutdown and all the grief you pored into this and your bitter letter to the editor.

If your place doesn't have a permit, it's not legit, which is why you got a cease and desist. Which means you aren't "innocent."

Anonymous said...

EXACTLY

Anonymous said...

I could feel the pain as I read the sad letter from the guy who found his north shore TVR closed down. Now he has a red ass and won't come to Kauai and spend his money. BIG DEAL. If he expects to hear wailing and the gnashing of teeth because he's going somewhere else, he's in for along wait.

Really, who cares?

Anonymous said...

I read the same letter too. He is pissed because he cannot come and stay at his favorite (illegal) north shore TVR. His anger is totally misdirected, as always is the case when the rug gets yanked. He should be pissed at himself for being so stupid; booking an illegal accommodation (3 times) and should be more pissed at the owner who advertised a illegal TVR, took his money , then had to cancel ONLY because he got caught.

Just like kids. Don't own up when you get busted. Act surprised and indignant, Shift the blame as quickly as possible. Happens every time.

Anonymous said...

I am new to the island and new to the subject of TVRs and BnBs. I am amazed at what I am reading! Correct me if I'm wrong, do I understand that many of the people who are renting rooms and homes to visitors are doing so without permits? Yes, I understand no one likes to be told to stop especially if money is involved, but for heavens sake! If you begin making exceptions, you will satisfy no one and anger everyone.