Tuesday, May 19, 2015

Musings: Say No

As the Kauai County Council takes up the contentious homestay/B&B issue this afternoon, the planning commission has already denied one application.

The commission voted last week to reject an application for a Hanalei B&B submitted by Eddie and Joan Ben-Dor. As I previously reported, the Ben-Dors were the first to try and pass off their illegal Transient Vacation Rental (TVR) as a B&B after it was shut down for operating without a permit. Ben-Dor ultimately was ordered to pay civil and criminal fines for his zoning violation.

The planning department initially — and quite properly — rejected his TVR-cum-B&B application. He then appealed to the commission, which also turned him down since he wouldn't be living on-site. That's because — doh! — it's a TVR, not a B&B or homestay.

It's that requirement — the owner living on-site, and declaring the homeowner's exemption — that distinguishes a B&B/homestay from a vacation rental under the ordinance that was approved by the commission, and is now before the Council.

Though the commission did tell Ben-Dor he could come back in six months, an observer noted:

at least planning commission has learned a new word, one hardly ever even whispered there, one every little kid needs to learn: NO.

But what about the Council? Will it be able to say “NO” when all the illegal TVR owners and B&B operators come before them, begging for a quick permit, a loosening of the language in the ordinance, by virtue of “economic hardship?”

As in, if they aren't allowed to offer visitor accommodations, they might have to — gasp — leave the island. You know, like all the kanaka who already moved to Las Vegas because they couldn't afford real estate prices that have been driven up, in part, by the still largely uncontrolled business of house-based tourist rentals.

If the county is going to start using economic hardship as a basis for zoning decisions and granting special use permits, it had better prepared for dealing with a can full of writhing worms.

And what about the question of homestays/B&Bs on ag land? The ordinance says nothing, but since that's where many of these operations can be found, it's a pertinent issue. It's especially relevant because some of these units began life as a farm building, or shed, and have been illegally converted into dwelling units.

Oh, and let's not forget how former Councilman Tim Bynum promised, when pushing through the ordinance allowing TVRs on ag land, that they would be the last visitor accommodations allowed in the ag district. Yet here we are....

Right now, the ordinance says the visitor(s) must share a house with the homeowner or occupy “a guest house.” As in singular, one.

So what about Hale Kua, which is owned by Bill and Cathy Cowern? It advertises five “self-catering” accommodations, all private and completely self-contained, each with occupancy for four, except one, which can take six guests. In other words, four guest houses, one of which is split into two. Isn't that a multi-family dwelling? Those were not allowed under the TVR ordinance, so will they be permitted under the B&B/homestay bill?

I've got nothing against the Cowerns, but he already managed to get the Council to pass an ordinance exempting tree farms from property taxes until they're cut down. How many more subsidies should one person get? 

And if you can't make it farming without multiple TVRs/homestays/B&Bs, is that actually taking us any closer to the “sustainable ag” that so many idealize?

Councilwoman JoAnn Yukimura has noted several times that she has a problem with allowing just 10 homestay/B&B applications per year, as the ordinance proposes. But before the Council starts meddling with that number it needs to consider how expanding this use will impact the longterm rental market, which is already tight, and whether the department can process more than 10 per year without resorting to the mass rubber-stamping of applications that allowed so many unqualified TVRs to get lifetime permits.

The Council also needs to remember that homestays/B&Bs are a special use — a perk given to landowners. No one is entitled to such a permit, and the county is under no obligation to hand them out enmasse or quickly. Folks still have the option of using their dwelling units (provided they're legal) for longterm rentals, so they can continue to derive income while their permits are processed.

And who's to say 10 isn't a reasonable number? If the planning department has issued just 93 cease and desist orders, and estimates just 10-15 are bonafide homestays, then 10 per year sounds like enough.

Though some folks have made me out to be anti-homestays, I'm not. I think they're appropriate in limited numbers in residential neighborhoods. But they need to be regulated, and the ordinance before the Council is a good place to start.

I realize it's hard for the Council to stand firm when they've got all those folks a-cryin' and a-whinin' and a-beggin' them to open the door wider than the ordinance allows.


But sometimes, like the planning commission, they just have to say no.

39 comments:

Anonymous said...

"Though some folks have made me out to be anti-homestays, I'm not. I think they're appropriate in limited numbers in residential neighborhoods."

Exactly.

Manawai said...

The same legal principles that applied to, and resulted in, the grandfathering of existing TVR's in 2008 have not changed nor miraculously vanished. Existing B&B owners, if they can show that they have paid all taxes and their properties adhere to all building codes and requirements, will have the advantage in court if the County tries to take away what was heretofore a legal operation. I refer you (the Council) to all of the conversations that took place and legal advice you received leading up to the enactment of TVR regulations of 2008. The only exception to this are those B&B's on State-regulated ag lands that did not get a State use permit. I think they're out of luck because they are the only ones that have been operating illegally. Those on residential-zoned land regardless of whether it’s in a VDA or not, are currently legal and the County will not prevail in court if it attempts to prohibit their operations. What surprises me is the apparent failure of bureaucratic memory regarding the TVR issue.

Anonymous said...

Well, Cathy Cowern flat out lied to council regarding how many units her and her husband have available...what a sleeze!! Yukimura asked her how many she had, and she said" 2"... her pants should be on fire.

Anonymous said...

The Ben-Dors got rejected because they are essentially dishonest. It takes a week at most to change Property Title thru State Conveyance Department and maybe, 5 f*ckin' minutes to make a lease. Even their attorney, God Bless his attempts, stated that the "Lease" with the Ben-Dor kids was a verbal month to month,,,,welp folks, "month to month" is a short term lease, so by the Counselor's own words - he wanted a Transient Vacation Use AKA BnB to be based on a "Transient" lease...total Horseshit, and the Commission got it right. The Ben-Dor's BnB quacked like a TVR and is a TVR. Good comedy. By the Way, The County's attorney Ian Jung is a smart guy. Patirnt and smart.
I am surprised that you brought up former Council Member Bynum. Tim will always be remembered as a total disgrace and a Greedy M^^herfucker, pure and simple. Now Timmy wants to be the Drug King Pin on Kauai with his legal Marrywanna Clinic? Poke my eye out with Gary Hooser's former coke spoon...Since when are the locals going to allow a man who lies and steals from the people to run a Dope Shoppe? I say bring back the real Primo Warriors and let the locals run their own dope business.
Can you beleeb it? A F*ckin' Hoale runnin' Colas? After all the years we spent in Kokee and other areas making Kauai Weed the best product in the world...;the 70's are gone. The Buds of the past are gone...and now the Dope King Pins are former politicians, who never used f*ckin' Osmocote or Promix in their life. oh well time to schmoke another Fattie.
Gotta love the life as I still dance to the music no one else hears. (Nietzsche)

Anonymous said...

lost all respect for the cowerns. 2 rental units on their property? how about 5? if you want to know how much they do for kauai, all you gotta do is listen to cathy. she'll tell you. meanwhile, shes' also a great liar.

they don't deserve a permit. close em down danno.

Anonymous said...

Cowerns are nice people. yes.

Still, it amazes me the impact nice people can have, in this instance how much of the taxpayer's dime is going to go to trying to control and keep the highway clear with the relentless albizia moving downwind from the Cowern tree farm. HUGE environmental impact and a longterm significant county cost when we're talking decades of cleaning up after an essentially uncontrollable introduced tree species. Not to mention all the other other landowners without the resources or time to keep ahead of this scourge while watching their land getting gobbled up.

Lots of nice people out there thinking they are somehow special and smarter than the rest of us impacting us all.

Anonymous said...

How do 2491 supporters who rail against the environmental damage caused by ag feel about the carbon footprint of tourism, including these tvrs and b&bs? And how can some of these businesses that rent out 4-5 bedrooms claim that having ten plus additional people does not impact our traffic, rubbish, water, police, fire, sewer, etc.? So we're going to ignore our zoning laws to accommodate tourists who want an authentic experience provided by people who were themselves tourists not so long ago? What a joke.

ed and joan ben-dor said...

For all the cowards that leave their comments under the name " anonymous", be brave and Identify yourself. We are in small community and its not cool
to talk stink about someone unless it’s to their face. Please live aloha and communicate your feelings.

Joan , we have not read your blog until our name was mentioned. Calling us dishonest without knowing the story is insulting. Alleging that we are pulling something sleazy is total BS. Our home is prominently displayed on google maps as the Hanalei Villa . We were not hiding as we thought we were grandfathered after paying taxes for almost 30 years and living in the home for at least part of the year in each of those years. Our friends know that we have not been to the mainland in 10 years and are at the home daily. We are not some off island family who use the house for enrichment. Our 3 daughters spent their entire lives in this home and sharing it with tourists is the only way to be able to keep it.

The Planning Director reads your blog and he knows that we legitimately shared our home for compensation, that is $$ for some of you anonymous people who may not get it. That means we had a TAT license since 1987and always payed our taxes. We did fail to get the County's new license simply because we did not know we needed it as we never received a notice from the County. Some of you say that’s bullshit but if you think about it you may change your mind. Ask yourselves, why did we apply in 1987 and then not 20 years later if we knew.

What would we gain by not applying ?

Our application for a home stay was completely honest in that we said that our daughter would live downstairs and rent the upstairs. We have parking , a modern septic system, and a 28 year history with no complaints in an area completely surrounded by vacation rentals. Some of those vacation rentals actually do have long term tenants managing the home who live in a separate unit, a violation, but who cares if the people within 300 feet of home are cool with it.

FYI , our application for home stay was rejected because our "ducks were not in a row". What that means is that our daughter should have been named as an applicant since the County needed proof in writing that all that we said orally was true. She also needs to be on a written lease. We ask all of you anonymous fans of Joan's : has any one of you ever written a lease to your kids?

Joan, we have no clue where you live. Nor do we care what you do in your home, Why do you care about our lives and why do trash talk our family when we have never met? Please respond..

You know that your friend Caren Diamond did not speak against our application. She and her daughters know us personally for many years Maybe she can enlighten you. You need to get a life of your own Joan. !!

If all those within 300 feet of our home are OK then whats the problem? Hanalei town is a visitor destination area as it has 100 shops catering to tourists. Princeville only has 40 shops.

Does anyone really believe that forcing us to sell our home will bring long term affordable housing to Hanalei?

Why is Hanalei town and the area in front of the Pavilion being classified in the same context as Wainiha and Haena, which are clearly residential?

We have asked questions and would really be stoked if all those participating in the conversation were to identify themselves. Be brave .. Live aloha !!

Joan Conrow said...

Well, aside from that monstrosity that you built right on Manoa Stream my primary objection to you is your desire to increase resort uses in an area that was never intended for visitor accommodations.

What you do in and with your home becomes a topic of public interest when you violate zoning laws, thus entering the very public criminal justice system, and seek a special permit to engage in a money-making activity.

Tell us, why should the public subsidize your Hanalei house? If you can't afford to keep it with renting to tourists, perhaps you shouldn't have spent so much building your Haena house. You're really not very sympathetic characters.

I'm sorry you don't like the scrutiny, or my skepticism about your sincerity, but when you've been cited for running an illegal TVR, and then apply as a B&B, well, it comes across as disingenuous.

It's nothing personal, which is why I don't need to meet you to form opinions about your activities. It's all right there in the planning dept. applications and court records.

Btw, keep Caren out of this. I'm a big girl and I make up my own mind about things.

Anonymous said...

Is this the same people who dredged the Hanalei River for their development?

Anonymous said...

Wow, another one
http://encinitasundercover.blogspot.com/2010/08/suzy-brown-resurfaces-as-suzy-tesla-at.html

Anonymous said...

Once you give a license and a permit for a B&B in a residential district the door has been opened. It just became legal. Residential Zoning requirements are there for a reason. To protect all! No to any type of residential/ tourist opperations in any residential district. Kauai as we know it will be a thing of the past if and when the first b&b residential permit gets issued.
Maui, Honolulu, Kona here we come. Kauai is next.

Manawai said...

@ 1:21 PM said, "Residential Zoning requirements are there for a reason. To protect all! No to any type of residential/ tourist opperations in any residential district."

Please enlighten us all about where you found that a B&B is illegal on residential-zoned property. You make this claim but I have yet for anyone to cite the actual document, paragraph & sentences that state this. I have looked myself and can find none. Not in the CZO nor in any another County regs. This is why the Planning Dept has up to now told (non-ag land) B&B owners that they are not illegal (and therefore legal) and to just wait until the County addresses them. If I'm wrong, prove it!

Anonymous said...

http://www.bubbleinfo.com/2009/12/02/crazy-suzy

The crazy lady that is featured on the today's GI and was making ridiculous accusations against the county planning dept at yesterdays B&B hearing...Apparently she has quite a bit of history (and some name changes) before coming to Kauai to run an illegal B&B...

"The former owner of an Olivenhain mansion who is accused of stealing $1 million worth of fixtures from the bank-foreclosed home repeatedly refused to identify herself at her arraignment Tuesday, prompting a Vista judge to handcuff her in the middle of the proceedings and finally order her to jail."

"Suzy Brown, 45, eventually pleaded not guilty to one count of grand theft and one count of felony vandalism, but not until the hearing had been postponed several times because of the unusual actions of the short-haired woman in a pantsuit who, to the amusement of many in the courtroom, wouldn’t admit she was the defendant."

"Brown was charged in November after a seven-month investigation into a $1 million theft from the 16,000-square-foot home at 3225 Fortuna Ranch Road. The theft occurred days after Brown moved out of the house and a bank took possession of it in March.

While she at first said she had no idea who took imported doors, opulent fixtures and electronics, Brown recently admitted removing most of the property, saying she wanted to protect it from vandals until the bank could hire a security guard."


"Using her own money and money from investors, the retired electrical engineer built the mansion with plans to run it as a luxury recovery center. Neighbors in the posh, semirural community who dubbed the project the “Monster House” complained, and the city ruled the plans were illegal."

"Brown had not been arrested or ordered to jail until Tuesday. Deputy District Attorney Robert Eacret said he had informed her of the charges in a letter and had intended to request she be allowed to remain free. But instead, he told Hockett that because of “some of her unwillingness to comply with court orders, the people do have some doubts as to whether she should be.”

Hockett agreed, calling Brown a “danger to the community,” and ordered her booked into jail on $30,000 bail."

One crazy lady...

Anonymous said...

2:29 PM ManaWai might be right.

Several years ago our lawyer looked and looked and said well the County says they are illeagal on its web site, but she cannot find any law that renting a bedroom long term is OK and renting it out short term is not. She said if long term was allowed, then no leagal reason short term is not.

All these opinions - would be good to see the actual law.

Anonymous said...

we agree 10:03.

Its just not about cowern trees. Its about the mindset of all people like them, who do their thing (rentals, trees) without regard for others. Its called selfishness.

Anonymous said...

10;35

WE HEAR YOU, WE AGREE WITH YOU. THE LAW AND THE ZONING CODE ARE ON OUR SIDE. NEW TVRS OR BNBS CANNOT BE PUT ON RESIDENTIAL LAND. SO WHY ARE WE FIGHTING A LOSING BATTLE? COME TO THE COUNCIL MEETING MAY 27TH AND ASK THEM THIS QUESTION. MORE AND MORE BROTHERS AND SISTERS ARE SHOWING TO LEND THEIR SUPPORT. IF WE DON'T PUSH BACK, GUESS WHATS GOING TO HAPPEN.

Anonymous said...

I nominate Suzy Brown as spokesperson for all the homestayers on the island. While blatantly vulgar, beyond rude and out of control, what she said was no different than what dozens of other speakers said; which was, " get out of my fucken way and while you're at it, shove your ordinance where the sun don't shine"

Anonymous said...

So, Manawai, following your line of thought. Why has the County sent out 93 Cease and Desist letters? Because they are legal?

and for you, 4:33. Is your lawyer going to defend you for free after giving you such bad advice? Hope so.

Anonymous said...

You are so right 10:35.

We are expected to keep our mouth shut, roll over and give everything for tourism. Even if it means allowing TVRs and BnBs as neighbors. It IS a big frickin joke. But you know what? The joke is on US.

Anonymous said...

Totally agree 1:21

now we gotta get you to tell the Council this on May 27th. com'n we need the help!

Sam Lee said...

Thanks to all who turned out to speak on the Homestay Ordinance. The conversation was lively at times, while also being educational
I was shocked by the numbers of TVAs both permitted and unpermitted in Hanalei. More than 300 in such a compressed area? OMG!
I know the feeling. We have a 50% TVR saturation rate where I live.
The Council has much to ponder. I thought Council members asked some good questions. eliciting answers to be used as they deliberate.

I was encouraged by the number of people who turned out to speak for control and limits on BnBs. While still small, I sense a growing awareness and willingnes to participate from island residents . This is a very good thing for Kauai

Respectfully, Sam

Anonymous said...

@2:29 Manawai,

Residential zoning is based on a single family dwelling on a residential lot.. A single family dwelling being rented to a dozen tourists on a day to day basis in a residential district would becomes a retail rental business which would require a special use permit and a public hearing. Don't look into the laws for B&B's because you are right you will probably find nothing since the acronym became popular only in the past few years. Now they call it home stay. Next week it will be tourists heaven.

Anonymous said...

"A single family dwelling being rented to a dozen tourists on a day to day basis in a residential district"

A b&b/homestay does not do that

Anonymous said...

@ 6:38 "Residential zoning is based on a single family dwelling on a residential lot" Your right. I guess the county should also crack down on all the illegal rentals of lock outs, studio's, or even room mates. According to our counties definition of the above those uses are also not in compliance. I think the mentality here is we prefer to see our neighborhoods with tons of cars and illegal lock outs, as long as it is not tourist. The county should not pick and choose which laws they want to enforce and which they choose to ignore. It is the same issue, people choosing to rent out part of their home to offset their cost of housing. The tourist are drawn to the BNB is areas that have a higher price point for real estate so the owner looks at this option with higher revenuer to offset cost. The homes in Kilauea or Kapahi have a lower price point and the ownes are also renting out portions of their homes to offset. I recently compared a owner operating a BNB on a home with a high price point compared to a owner renting out multiple rooms 'lock outs" for a home with a lower price points. Both owners ended up in a similar profit to loss percentage (CAP) based on their investment. The difference is the public sees the BNB owner as making a TON of money, or bringing in a type of resident that they deem unacceptable. This is targeting, and discrimination and the county should tread lightly. Both situations are breaking the same basic concept. Yes one is for shorter stays, but some room mates turn over on a monthly basis and that is also considered short term. We are always so antibusiness, rather than opening up our minds to new ways that our people can move up. If the BNB law is carved up to allow for owner occupants to have these operations, it may allow for an opportunity for some of our own Kauai people to buy back into these more expensive areas with a way to offset the price point. If you close this door, places like Hanalei and other locations close to the beach are never going to be affordable again and you are just setting up the system for these areas to only make sense for the wealthy. What if we had people making as much noise about how their neighbor in Kilauea or Kapaa has a lock out and it is a single family home, I wonder what we would do, and I wonder how much we would mess up affordable housing by attempting to fix that problem.

Anonymous said...

You are misinformed 5:13,Mrs Hoff testified they rented 6 rooms now 5, with 2 in each, another testified they rent 4 rooms to 2 each and her family too, another said they rent 6 rooms to 2 people each, ohe one little room to a local family to make money is a myth, no local family wants a tourist sleeping in their house or bed.

Anonymous said...

renting long term is not a commercial use, does not advertise on the world wide web constantly to bring in more outsiders to the neighborhood, and with the increased value of a commercial operation, we will only grow more tourists on ag land if B&B's are allowed. Residents have had to squeeze in to less housing and crappy housing while the houses are all rented to visitors.

Anonymous said...

Oh really 5:13?

read Joans latest post and say again - b&bs don't do that.

Anonymous said...

@ 6:08 Really "renting long term is not a commercial use, does not advertise on the world wide web constantly to bring in more outsiders to the neighborhood" Really what is the definition of commercial is it exchanging something for a monetary value, if so all rents are considered commercial, and by the way even long term rentals are advertised on the WORLD WIDE WEB, so that is not a accurate statement. Anyone from around the world can look at rentals from craig list or the garden island. Basically what you saying is if you rent local it is acceptable and we can ignore zoning rules and not enforce if it is to local people, if you rent to tourist, watch out! So you would rather people come and live than visit and leave.

Anonymous said...

Oh really 5:13?

read Joans latest post and say again - b&bs don't do that.

Anonymous said...

long term renting is a residential use for residents, sorry pal, not the same as a commercial rental that is not a residence.

Anonymous said...

Why all the back and forth? Its as if these haoles have rights, or something. The plain truth is these guys have no permits =s illegal; no matter what anybody says. Stop wasting time. Enforce the law. Close em down. The Council got no balls?

Anonymous said...

What in the hell is the County trying to do? Is there such a thing as a "Good" illegal and "Bad" illegal?

Illegal is Illegal.

Is Yukimura's apology to Cowern a sign of things to come?

Represent the majority, for once.

Anonymous said...

Oh Please JoAnn

Don't screw us again

Anonymous said...

... and again and again.

Anonymous said...

She will because she's a lifetime politician who thinks her fut no smell stink

Anonymous said...

If this weren't so sad, it would be funny. The GI headline will read; VOCAL MINORITY DEFEATS SILENT MAJORITY AGAIN ON KAUAI - LOCAL HOMES and FARMS UNDER ASSAULT BY TVRS AND BNBS.

When you read this in the paper, it'll be game pau - too late.

Anonymous said...

3:39

Add this to the beginning of the headline. ENCOURAGED BY MISGUIDED LOCAL POLITICIANS ....

Sam Lee said...

Hearing the PC agenda for June is loaded with a dozen or so Homestay applications. Interested to see what happens as these are processed. Be informed, neighbors.

Good Luck, Sam