Musings: Mis-Match

Ladies and gentleman!

In this corner, we have reigning champion Mauna Kea Trask, our suave County Attorney, representing the Kauai planning director in his recommendation to DENY a permit to an illegal TVR now trying to pass itself off as a home business cum homestay. Trask is joined by intervenors Caren Diamond and Barbara Robeson, still fighting to keep the North Shore residential.

And in this corner we have challenger Jonathan Chun, the fidgety former deputy county attorney and state Senator who now specializes in helping people turn their houses into money-making machines. He's representing scofflaws Kirby Guyer and Toby Searles in their bid to LEGALIZE their long illegal visitor accommodation in Wainiha.

Showing amazing fortitude, and deep pockets, Guyer-Searles remain in the match some 19 months after submitting an application for a use permit. They're still hoping to recover from the body blow that planning delivered to the idea of legitimizing an illegal TVR that had already been cited for zoning infractions.

Will a hearings officer be more sympathetic to the Guyer-Searles-Chun plea that a five-bedroom, six-bath structure — built in 2005 specifically for the purpose of offering visitor accommodations, but never permitted — should now be legitimized as a home business? (Even though the Planning Commission already decided on April 27, 2015 that a homestay is not a home business.) Or barring that, a bed and breakfast/homestay?

Will the planning department's attempt to reign in illegal visitor operations, and deny permits to folks who are now trying to pass off their illegal TVRs as B&Bs, be upheld? Or will greed, dishonesty, a total disregard for the law and the continued resortification of rural neighborhoods prevail?

It's too early to call, with proceedings continuing tomorrow and again on March 28. But all contenders weathered the punishing first-day bout of hot air, hard chairs and flaring tempers, with one spectator calling Barbara a “fucking haole” and the contested case hearings officer issuing numerous calls for order and decorum.

Chun planned to call no fewer than 25 witnesses. Amusingly, some were people who got dinged by the county for operating illegal B&Bs, but were nonetheless supposed to testify “as to how a proper B&B operation is conducted.” However, the hearings officer disqualified anyone with an appeal before the commission.

The challengers have already tried to throw the fight, with their supporters contacting the intervenors and telling them, in a heavy-handed way, to drop it. But the intervenors aren't about to bow out, knowing that if the Guyer-Searles permit is approved it will be followed by a flood of illegal TVRs trying to get homestay permits.

Here's what's uncontested: Guyer-Searles began operating a series of unpermitted B&Bs in rented North Shore properties in 1981. They then built Hale Ho'o Maha, a 3,568 square-foot duplex — a main house and ADU, connected by a covered walkway — in Wainiha. They've been renting its four suites to visitors since at least 2005, without a permit.

In July 2014, the planning department cited Guyer for establishing TVRs in four separate units without the proper TVR permits, and for using a single family residence as four separate rental units without the proper zoning permits. Guyer was ordered to cease and desist TVR operations, and demolish any unpermitted structures, or face hefty fines.

In August 2014, Chun submitted an application on behalf of Guyer-Searles, seeking a use permit to operate a homestay. Planning Director Mike Dahilig said the application “may be considered for approval,” with final recommendation dependent on a Jan. 13, 2015 public hearing and presentation of the full record. At that hearing, Caren and Barbara filed a petition to intervene, which the commission granted, and the contested case hearing began this last Tuesday.

In his prehearing documents, Trask notes, “The facts are not entirely the same as those presented by the petitioners in their application. The County is not confident in the credibility of the Petitioners.”

The intervenors were more direct (emphasis in original):

Application is misleading or disingenuous and attempts to portray the proposal as far less significant a development than it actually is. The application erroneously states… “The Applicants will reside within the attached ADU on the Subject Property and the main house will be rented to only one family or group.” This conflicts with testimony given by the applicants as well as all the advertisements that clearly state they rent four (4) individual Suites with four (4) individual baths, the Suites are individually rented as Papaya Suite, Guava Suite, Pineapple Suite and Mango Suite. It also conflicts with the Calendar for Hale Ho’o Maha which shows separate units available for individual rental.

They submitted a handy dandy document that shows the discrepancies between the application and the facts.

The county is taking the position that it's illegal for the couple to live in the ADU and rent out the main house, since the homestay rules require the hosts to reside in the same house as their guests. Chun said in that case, the couple will remove the kitchen in the ADU, thus making it all one structure.

The intervenors further noted:

This application comes 10 years after operating without the required permits. The Special Management Area (SMA) Rules and Regulations require an SMA permit for Development, only exempting Single Family Residences; an SMA permit was not applied for previous to the applicants using their property to establish a business which has increased the intensity of use and cumulative impacts within the project and project area.

The County also argues that the house, which “is two bedrooms short of being considered a hotel with an attached ADU,” is “grossly oversized to be considered as anything like a single family residential structure,” fails to provide adequate parking; the structure is in violation of flood plain management; its septic system is undersized and it does not have county trash pick up.

Chun claims there is adequate parking and septic, the structure isn't in the tsunami zone and it's compatible with surrounding uses, seeing as how there are “only about eight registered TVRs within the same tax map plat; in the neighboring tax map plat, there are only seven registered TVRs.”

The intervenors note there are also numerous illegal TVRs in the neighborhood.

Ultimately, it will be up to the hearings officer to decide who is telling the truth, though his ruling is not binding on the planning commission. 

While it's impossible to know whether Guyer-Searles will get their after-the-fact permit, this action puts other operators on notice that it will cost serious time and money if they now try to pass off their illegal TVRs as homestays.