Musings: No Defense

The Kauai County Council yesterday passed a bill limiting homestays/B&Bs to the visitor destination area (VDA), where other resort uses are allowed.

It also limits the number of homestay applications that will be considered to 10 per year in 2015 and 2016, with the cap expiring at the end of 2016. Other restrictions include no more than three guest rooms in any house. 

The owner must live on the premises and be “physically available for the needs and concerns of their respective homestay guests.” Each bedroom must have a paved parking spot and the house must be on a septic system.

The bill effectively halts the legal proliferation of homestays on ag lands and in residential neighborhoods, as many residents requested. It was opposed by Councilmembers JoAnn Yukimura, Gary Hooser and Mel Rapozo.

“This is my fourth year and I don't believe I ever advocated on enforcement against homestays and B&Bs, it was more TVRs,” Hooser said.

So tell us, Gary, how can you possibly justify enforcing the law against some people, but not others?

And Mel, since you “feel sorry for these people” operating without permits, and are “so conflicted” about how the Council never dealt with the B&B issue back in 2009, why didn't you act to address the issue in the seven years since? Why wait until now to whimper, when the public is finally fed up and the situation is out of control? Worried about re-election?

Alexis Boilini and Lorna Hoff, who are operating B&Bs in the agriculture district, argued for relief, claiming their rights had been violated when the planning department moved to shut down people who were operating B&Bs and TVRs without permits. 

Hoff and her husband John, along with Bill and Cathy Cowern, Darcy Summer and Patricia Enderlin, are facing misdemeanor criminal charges for zoning violations and unsworn falsification stemming from their unpermitted accommodations.

Councilman Ross Kagawa asked whether the Council could consider amendments that would grandfather in existing unpermitted B&Bs.

“There's nothing this body can do to grandfather them in,” said Kaaina Hull, deputy planning director. “If they don't have a use permit, they're not operating legally. And if they're not operating legally, they can't be grandfathered in.”

Such uses on ag land also require a special permit under state law, he said.

County Attorney Mauna Kea Trask also spoke of the challenges that arise when the law is changed while his office and the planning department are in the midst of litigation and contested case hearings on homestay applications.

He also said the Council cannot pass a law that exempts certain individuals, such as those who claimed they didn't know they needed a permit. “Ignorance of the law is never a defense.”

So what is the defense, other than self-righteousness, of those who took it upon themselves to illegally erect signs, impersonating the state Department of Health and embedded in concrete no less, on the public beach at Mahaulepu? 

Bridgette Hammerquist and Jay Kechloian, two vigilantes from Friends of Mahauelpu, don't seem at all bothered by the fact that it's illegal to post signs on state land without permission. They've vowed to keep posting their “contaminated water” signs because they think the public has a right to know.

Is anybody even swimming in that murky little trickle?

Robert Zelkovsky, membership coordinator of Surfrider, thinks the illegal signs are just fine, too. Because Surfrider, with its publicity-seeking water testing program, knows more and better than DOH, doncha know? And since they declare it contaminated, then it must be so.

DOH has already said it's going to conduct a study of the area, at the urging of the EPA, to determine whether people, or plants and animals, are the cause of the high bacteria counts. The agency only posts when the e.coli comes from a human source.

But FOM and Surfrider can't wait for that. They have to drum up some publicity, and keep sticking it to Grove Farm and the proposed dairy, by posting their illegal signs.

Well, here's the end result: DOH wants Grove Farm to close access to Mahaulepu for four months this summer so the agency can study the stream.

Good work, Surfrider and FOM. I'm sure closing down Mahaulepu will help you win a lot of converts.