Musings: Forbidden Fruit I

In early February 2013, a visitor drowned after jumping off an unpermitted dock at a Wainiha vacation rental. That incident, which I wrote about here, led to the Abuse Chronicles, a 20-part investigative series that detailed the illegal shenanigans associated with transient vacation rentals (TVRs) on Kauai.

Following the series, the County Council threatened to investigate the county planning department. The administration of Mayor Bernard Carvalho Jr. promised to reform. Both sides were loath to go after the people who gotten their TVR permits improperly. Instead, the department was told to get its act together and go after the “low-hanging fruit” — the folks who were running totally illegal TVRs.

Fast forward to last week, when the Council began its review of a proposed law regulating homestay/B&B operations on Kauai.

As Council Chair Mel Rapozo noted:

This is an opportunity to craft legislation going forward. The TVR issue … really was an embarrassment. It's just horrible what has happened. The low-hanging fruit that has been promised, what has been done? It makes it difficult trying to pass B&B legislation when owners say you cannot even enforce the TVR law. There's violations everywhere you look in the TVR neighborhoods. It's horrific what we're finding, and where's the enforcement? It's not there.

He then asked Planning to attend a January meeting to update the Council on its TVR enforcement efforts.

Though I hate to spoil the surprise, the answer is simple: Not very much. In fact, it's pretty much same-old, same-old. Business as usual, and all that.

The Kauai Paradise House — the TVR where the visitor drowned, and which I revealed as having been fully renovated without permits — remains open.

According to county documents, owner Victoria Leadley was issued a cease and desist order for “failure to meet ordinance requirements.” But she's appealing that order, and continues to operate in the meantime. The house is booked through the holidays.

In fact, the county has yet to revoke a single TVR certificate, even though it's sent out 13 cease and desist letters for a range of violations. These include: failure to renew, some of them for years; failure to meet ordinance requirements; failure to meet special management area requirements; illegal conversion of a guest house; and failure to meet ownership authorization requirements.

All of the owners are appealing the cease and desist orders, which apparently were not issued until FY 2015, even though the violations occurred much earlier.

Another seven TVR owners voluntary relinquished their certificates.

Meanwhile, it appears that problems remain with the Planning Department's record keeping. For example, in response to my public records request, Planning sent me a list that included all the TVR certificate holders who had been sent cease and desist letters. The list included the owners' names, TMK numbers and TVR certificate numbers.

That list includes Aloha Kai Beachfront Rentals, a Haena house owned by Laura and David Bancroft. Problem is, they never actually got a TVR certificate. The county's TVR log listed the TVR application for that property as denied on June 27, 2009, denied on Sept.18, 2009, denied on Nov. 2, 2012 and closed on Nov. 15, 2012. It was designated a “dead file” on Sept. 17, 2013.

So if they never even got approval, why are they being allowed to appeal the cease and desist order?

The owners know they aren't legit, because they don't post a TVR number on their Internet ads. Instead they misleadingly advertise “Hawaii Vacation Rental Registration Number W87848647-01,” which is their general excise tax number.

And if they aren't legit, how come they can continue to operate, with bookings through the Christmas holidays?

The Bancroft property tax records also tell an interesting story. The property was classified “homestead” in 2010, 2011 and 2012. That changed to “vacation rental” in 2013 and 2014. For 2015 and 2016, it's designated “commercialized home use.”

Tax records also describe the property as having three bedrooms, three bathrooms and a half bath, with the only additions a deck and solar panels. Yet Aloha Kai variously bills itself as a 5-bedroom, 5-bath, sleeps-12 vacation rental “just 20 feet from the sand and a “charmingly rustic home … with 4 bedrooms and 3 baths.“ It's actually a main house and what appears to be an unpermitted cottage with its own kitchen. The “romantic upgraded” cottage is rented separately, which makes this an illegal multifamily vacation rental.

And according to FlipKey reviews, not everyone is happy with the arrangement:

We couldn’t figure out what was going on with the house that this studio is attached to. The house is above and next door, basically surrounding the studio. Sometimes it seemed like a local family was staying there with all the local vehicles parked behind the house. Lots of chatting and some work seemed to be going on. At the end of our stay a huge wedding party moved in. About 15 young people with 5 cars and they kept blocking us in. We lost all privacy and it became very loud. You could hear every foot step above and the toilet flushing down the wall. They even set up a tent in the front yard right in front of our patio. The worst part was that the property management company gave this group the key code to our unit instead of the attached house and they walked right in to our unit by mistake while we were there. I felt unconformable knowing that 15 20-somethings had access to our studio. There was no additional deadbolt or chain to secure the front door. I wouldn’t recommend staying here if the attached house is occupied. And I wouldn’t take the gamble staying here again.

An October guest was similarly displeased:

I wouldn't recommend this place to most people, but if you aren't super picky, want to be steps from the beach and don't want to be in the condo world this place might be worth a try.

Other reviewers dissed the main house, too:

We gave property 4 stars overall because of location, but dirty towels were folded on towel racks for our use, 3 lights out in one bathroom making it very dark & light fixtures very dirty, old junk left around property making it look shabby. It is obvious owners use this as a rental property lacking personal loving care. FYI - there is no hammock as shown in photo.

FYI: There's still something very fishy going on with Kauai TVRs. Will the Council finally press more vigorous enforcement? What will it take to clean up this mess?