Fallen Fruit Chronicles 1

After the Abuse Chronicles exposed the tangled, rotten roots of Kauai's “legal” vacation rentals, a complaint was repeatedly lodged in comments that went something like this: 

Why aren't you exposing the “real” culprits, the illegal TVRs that fly under the radar, the folks who didn't even bother to apply for one of the county's now discredited permits?

Weary, I urged a persistent commenter to begin his/her own documentation. The response was a snarl: “So you want everyone else to do the work that you should be doing yourself.”

Really. What was I thinking?

Though I understand the county has to prove an illegal use through a little sting operation, it's easy enough to red flag some renegades. All ya gotta do is surf airbnb.com. Heck, TVR inspector Bambi Emayo could even do it on his smart phone while he's checking out the waves.

Right off the bat I found this gem, which I'm pretty sure not even Imai Aiu would have approved with one of his undated, unsigned form letters that gave people a lifetime TVR, no questions asked.

Billed as a Japanese teahouse, it has no walls — and yikes, no bathroom, either. A *note* warns on the website:

Guest will not have any access to home or any other homes on property. THIS MEANS NO RESTROOM ON PROPERTY BESIDES USING THE YARD!!! Guest [sic] are encouraged to use ocean or YMCA camp restrooms located down street.

Fortunately, they won't have to hold it long, as they're assured “Guest will also have total beach access within 100 yars [sic] of hale” — which conveniently takes them right to the swath of sand privatized by the exclusive “Banana Beach House" TVR (Abuse Chronicles #12). 

Though the ad says the platform accommodates three — at $100/per — its description hints that many more could crash there, which is not far-fetched, considering the place caters to Kalalau Trail hikers:

Within the "teahouse" there is a Californian king size bed, two swinging hammocks, single sleeper couch and outdoor style table/chairs. Guest have access to "teahouse" area, lawn.

The ad promises that a 5 a.m. hot breakfast and trailhead drop off is included. Rides to the airport are offered for an additional fee. Hmmm. I wonder if they have a taxicab driver's certificate, issued by the county via lottery. But then again, why bother?

The sad demise of Wainiha-Haena as a residential community is reflected in this verbiage from the ad:

Our Neighborhood is made up of most vaction [sic] style rental homes and scattered within that is small Hawaiin [sic] style bungalow homes as the one we live in.

So who da guy? The ad identifies “James,” and includes this profile:

School: Cadillac High School, go fuck yourself university Work: Kayak Kauai About: Chill family full of Aloha spirit.

Yes, take heart, the aloha spirit does live on, as reflected in the "house rules," if not a willingness to share toilets:

Live Aloha. This means live true agape or basically love. We feel we are though we are giving up our space in order to have travelers of all types come, be blessed and move on towards their hiking adventure. Please be respectful of us and our family. This is our home and it is very apart of us and who we are as a family. We invite you and others to be apart of our kinship, have a sat, talk story and be blessed. Aloha.

Aw. You know it's true aloha when there's no extra charge for talk story. Still, that respect bit kinda rings hollow. 

It's gotta be a parody, I tell a friend. No way that funky setup can be for real, even on Kauai.

Surfing, surfing — wow, 394 listings. That's kinda plenty.

Hey, I know that beach. It featured prominently in the Abuse Chronicles. It used to be so fabulous — before the vacation rentals took it over.

Odd, it's being used to advertise a “beachfront studio in Haena.” Wait, that's Leila's place. You know, Leila, the woman who lives next door to Kaulana Haena — Abuse Chronicles #18 — and manages it, but is always late with the renewals. Hope she got it in on time this year, or #18 is gonna be tagged as “low-hanging fruit” under the county's radical new enforcement plan.

Gee, it looks like she's enclosed her own downstairs and turned it into a little rental studio, right there in the flood zone. Wonder where she came up with that idea? 

Well, I know for sure that place doesn't have a TVR permit.

But at least it has a bathroom. And I hear Leila works very hard to keep it nice and clean.

One guest review detailed the accommodations, which luckily for Leila do not include a rice cooker, or the county would really clamp down hard:

Leila is a very thoughtful host, she sent us detailed driving directions and prepared the room with lovely ocean theme decor, beach and bath towels, coffee maker/small fridge, and many other charming details.

A few other things I really like about the place -- 
- Privacy - there is plenty of privacy, the room is downstair (host's family living upstairs ), with it's own bathroom/outdoor shower. 
- Hammock - as shown in leila's pictures. I like chilling there

Oh, yes, the hammock. The one that's permanently strung on the public beach. Does that mean we can lie in it, too? 

Based on the reviews, the other guests seem happy, if deluded:

Leila's guest house is just lovely and she is an excellent host. The property is truly magnificent, private oceanfront, magical part of the island just down from tunnels beach. If u want to stay away from tourists and pricey resorts, this is a welcome oceanfront hideaway.

Except, of course, the tourists actually are right there, in the other vacation rentals — “legal” and otherwise — that line that entire stretch of coastline, which was never supposed to be a resort. The TVRs have literally consumed the public beach with their vegetation and lawn furniture:

We put our bags down, grabbed the bottle of wine we bought on the way to the place and enjoyed the moonlit beach on the hammock just steps from the waves.

Gushed Leila in reply:

I love where I live and I am so stoked to be able to share it with fabulous people like you!!!! Please come back soon!!!!!

But if you can't make it right away, no worries. It took the county five years and the threat of a special Council investigation to organize a TVR enforcement action that plucks the “low-hanging fruit” of late renewals.

It could be decades before it stumbles upon the fruit that has already fallen in its long-neglected and overgrown orchard.

Musings: Abuse Backstory 1

It occurred to me, while reading the article “TVR probe stalls” in today's edition of The Garden Island, that we need another series to run concurrently with the Abuse Chronicles. This new series will include the backstory that helps people understand how and why this vacation rental mess came to be.

Let's start with County Attorney Al Castillo. As TGI reports, Al raised concerns about costs, legalities and jurisdiction in his attempt to derail the Council's proposed investigation into the abysmal failure of the 2010 TVR law. 

So where was Al when the Council passed the 2010 TVR law? You know, Ordinance 904 — the law that cemented all the problems created by the 2008 TVR law, dug the county's legal hole that much deeper?

Al didn't pinpoint the failings in 904 because he was too busy lobbying for it. Remember when the bill was up for a vote, in July 2010, and former Councilman Dickie Chang was on the fence? And Al and Deputy County Attorneys Ian Jung and Mike Dahilig (who is now the planning director)  visited Dickie at home and plied him with beer to secure his vote on the TVR bill? Yeah, that's the kind of lobbying I'm talking about.

Maybe "beer gate" wasn't technically illegal, but it sure seems unethical – especially since the County Attorney's office is supposed to represent the Council, the Administration and the county as a whole, which presumably includes the poor taxpayers who are footing the bill for all these missteps.

And it certainly raises the ethical and practical question of whether Al, after actively pushing the bill, should now be advising the Council on how to deal with it's utter failture. A failure has been documented in 16 Abuse Chronicles that cover 24 separate TVR certificates, and that's barely scratching the surface.

Al and his office are so badly conflicted on this issue that ethically, he should have recused himself at the last Council meeting and suggested they hire special counsel. Instead, with Council Chair Jay Furfaro's complicity, he bought a 30-day delay — time that he and Mayor Bernard Carvalho (who hired him, let's not forget) can use to head off any investigation into these wrong doings.

You know, the same way a proposed Council investigation into Public Works was sidelined – an investigation that might have prevented some of the Building and Engineering transgressions uncovered by the Abuse Chronicles. Things like allowing tiny houses to be remodeled into mini-resorts without meeting flood or septic requirements.

If Bernard, Al, Ian and Mike had actually checked into how the planning department was implementing the 2008 law, they would have found that it was in total shambles. Instead, they pushed the Council to amend the law in 2010, which compounded the problems from 2008 while eliminating inspections, proof of tax payments, proof of prior TVR use and all the other teeth.

With the passage of Ordinance 904 in 2010, they threw open the door to pretty much anybody who could put a pencil on paper. And for those who couldn't, well, remember how Bruce Fehring admitted to the Planning Commission that planner Mike Laureta had actually written his TVR application for him?

Al also claimed the mere presence of HGEA union rep Gerald Ako at the Council meeting “raised a red flag” that should be heeded. If Al had been paying attention he would have known that Ako actually raised a red herring. Ako later admitted to the Council that no matter who did investigation, employees would still have union representation and all the protection it entails.

The red flag I saw was Ako arguing for the Administration, rather than the Council, to conduct the investigation. He obviously knows, like the rest of us, that if it's left to the Administration, absolutely nothing will happen.

Finally, I've got to say something about Council Chair Jay Furfaro. I'm talking about his feigned shock and indignation that the Council resolution hadn't been sent to the County Attorney's office for review. 

Curious how Jay, a supposed stickler for process, has never implemented a procedure for what goes to the County Attorney's office for review, and when.  That's right. It's totally ad hoc, hit and miss, whatevahs. Seems awfully inefficient. But oh so convenient when you want to stall something while pretending that you're moving it along.

Musings: Abuse Chronicles 14-C

If you have a chance to play poker with former Kauai Planning Director Ian Costa, grab it. Because as the owners of Hale Makai discovered, you can win the pot, even if you have a lousy hand.

As recounted in Abuse Chronicles 14-B, landowners Klaus and Ulrike Burmeister seemed to have a very bad hand indeed in 2004. They were facing a number of zoning and special management area (SMA) violations associated with Hale Makai Cottages, a four-unit Wainiha property they'd purchased two years earlier for $2.35 million. These included structures that had been built and/or remodeled without the proper permits, nonconforming structures being used as housing, an unpermitted coastal wall blocking a state easement and unauthorized landscaping of the public beach.

“Cease and desist use of the non-conforming structures as single-family dwellings,” directed the county. “Immediately stop all landscaping activities within the shoreline area,” the state ordered. “Any development without proper permits/ approval shall be demolished and removed from the subject property,” warned the county.

It was all a bluff. The game kept going until late 2006, when the Burmeisters finally sought a zoning permit for the four houses and wall. 

Costa upped the ante, and told them to get a certified shoreline.

It was another bluff, and Walton Hong, the Burmeister's attorney, called it. 

Costa folded on Jan. 7, 2008, and let the Burmeisters walk away with all the winnings — save for the cut paid to Hong. Specifically, Costa signed an enforcement and settlement agreement that legitimized all the violations. What's more, the agreement was not signed by the mayor, as required under the charter.

Costa could have required an SMA major permit, which includes a public hearing, to determine the project's full impact. He knew the property was being operated as an unpermitted mini-motel in concert with an adjacent parcel, and that the community was outraged over the blocked easement.

Costa could have required a certified shoreline. He knew that at least one of the cottages was within the setback, if not the shoreline, and that Burmeister had ample acreage to move the cottages back from a dangerously eroding shoreline, as shown in this 2007 photo: 

Costa could have required the Burmeisters to remove their vegetation from the shoreline. He knew, from a state report, that the Burmeisters were landscaping the beach:

Costa could have ordered the fourth cottage torn down, and the other cottages returned to their original condition. He knew the lot is zoned for just three houses and that there were no building permits issued for the property after 1968 — even though the original three cottages and shed had somehow become “four luxury vacation rentals” by the time the Burmeisters bought it.

Costa could have limited the agreement to just the Burmeister's ownership, rather than allowing it to run with the land. And he could have negotiated public use of the easement, which was listed on both the 1993 Na Ala Hele beach access inventory and the county's 1984 beach guide.

Instead, he made just one demand of the Burmeisters: remove a section of the laundry building to meet the 5-foot sideyard setback. Oh, and once the cottage does fall into the sea, they can't rebuild it.

As a result, an easement that looked like this in 1994:

Has been allowed to remain totally blocked to the public, like this:

And a lot that looked like this in 2004, all nice and open with very little coastal vegetation:

Has been allowed to remain like this, thickly planted well onto the public beach:

So why did the Burmeisters finally get religion, and decide, after all those years of blowing off the county and state, that they needed to get their permits in order? Well, it may have had something to do with the fact that the county was preparing to adopt an ordinance regulating vacation rentals, and the Burmeisters wanted to be sure that Hale Makai got TVR permits. We'll cover that process in the upcoming Abuse Chronicles 14-D.

Their motivation is perfectly clear. What's puzzling, even inexplicable, is why Costa gave them everything — and got nothing for the public in return.

Musings: No Good From Bad

Kauai landowners who got vacation rental certificates improperly will be allowed to keep them, under a directive from County Attorney Al Castillo's office.

Planning Director Mike Dahilig yesterday told a stunned County Council that he must renew TVRs approved by his predecessor, even if the original applications were flawed or incomplete. Some 84 percent of the files are missing documents required by law. 

But Mike said he can move to revoke the improperly issued certificates only if he has evidence they were fraudulently obtained.

Though many people never proved they were eligible for the valuable life-of-the-property permits — as exposed in the 20-part Abuse Chronicles — the flawed applications were essentially legitimized when former Planning Director Ian Costa and his deputy, Imai Aiu, approved them in 2008-10, according to the county attorney's directive.

“Anything after a bad application, how can it be good?” asked an incredulous Councilman Mel Rapozo.

Deputy County Attorney Ian Jung said technically it wasn't a bad application because the former director had signed off on it.

Councilman Tim Bynum said a fundamental component of the TVR law was requiring applicants to prove use prior to 2008. “The most key thing, they didn't even bother, they didn't even ask for it,” he said of Ian Costa and his staff. “This is not incompetence. This is a decision to fail to implement the law. That is unacceptable and now look at the consequences we're dealing with.”

Though Costa and Aiu were never named, both Councilwoman JoAnn Yukimura and Chair Jay Furfaro referenced their shockingly poor performance.

“The damage that bad managers do sometimes is irreversible,” JoAnn said. “I hope the mayor is listening, because it's not only in planning, it's in all parts of county government. There is no substitute for a good manager.”

Jay said he plans to write a performance evaluation and will put it the personnel jackets of the former directors “as a documentation of the poor management that got us where we're at.”

The Council also got irritated when Mike prevaricated about numbers. In a power point presentation, he said the department had compiled 657 unique TVR files: 158 are considered “inactive,” 75 are appealing the loss of their permit because they renewed late, and 413 are “active without issues.”

Mel asked how many of the 413 had incomplete files. “It's not overwhelming, but it is significant,” Mike hedged. After Mel repeatedly pressed him, Mike finally replied that “upwards of 84 percent” were missing one or more documents.

“I would encourage you to be forthright and just put it on the table when we're asking,” said Councilman Gary Hooser, who with JoAnn had also been given the run-around by Mike. “When you know 84 percent are incomplete and others ask about the numbers and you say you'll get back to us, that bothers me.”

Mike also told the Council the department was “going after the low-hanging fruit” by issuing cease and desist notices to 101 TVRs that missed their annual renewal deadlines. Ian Jung said the tardiness ranged from a few days to two years, but all would be treated the same. Mike said those that have not appealed “are ripe” for a second level of enforcement: “tighten the screws.” The owners could be fined, or referred for criminal prosecution if they keep operating.

Mel asked whether Mike had pursued the photos of a bare lot with no house that had been given a TVR certificate. “Not yet,” Mike said, prompting JoAnn to ask why that wouldn't be a low-hanging fruit case.

Several Councilmembers expressed dismay that the law was passed five years ago, but the department is only now creating a system for managing the TVR certificates. And even that action was prompted largely by the Abuse Chronicles and a threatened Council investigation.

“They are moving, but to where?” Mel said. “The concern is that the illegals will be allowed to continue and I disagree with that entire rationale."

Tim, Mel and Gary said Mike's report on the depth of the TVR debacle underscores the need for a Council investigation.

“It's clear the Administration does not want to look at what happened, at least not publicly,” Gary said. "In my opinion, past actions are being swept under the rug."

"I think that discussion's important, not just to us, but the public," agreed Councilwoman Nadine Nakamura.

Many of the TVR certificates were approved after Mayor Bernard Carvalho took office. In late 2010 he moved Costa and Aiu to other county agencies, and put Mike, a former county attorney, in charge of planning. As documented in the Abuse Chronicles, some of the improper permits were signed by Bambi Emayo and Vil Baliscan, who continue to work as TVR inspectors.

The question now is whether Ian, Imai and Bambi just decided on their own to blow off the TVR law, or if they were acting at the direction of others.

Musings: Political Wills and Ways

Political will was the catch phrase at yesterday's Kauai County Council meeting, with members asking why Mayor Bernard Carvalho's administration hasn't enforced the transient vacation rental law, as detailed in this blog's “Abuse Chronicles” series.

Council members made it clear they do have the political will, and will soon consider a resolution authorizing a special investigation “to find out how and why this could've happened,” said Councilman Gary Hooser.

Though special investigations are permitted by the County Charter, the Council has invoked that privilege only once, in a police matter, and it was resolved before the inquiry got under way. Council Chair Jay Furfaro said an investigation is “a pretty dramatic move” but may be warranted “because we have a mess on our hands.”

“I hope we set a precedent,” Councilman Mel Rapozo said. “We need to tell the mayor if you keep screwing up we will investigate your butt because I'm fed up with it already.”

“I would not support anything that would be characterized as an investigation,” said Planning Director Mike Dahilig, noting the problems were “more systemic” and he hadn't seen any indication of “malfeasance.”

Rapozo said it's time for “an independent party to take a look at the process and see what the heck is going on.”

The Council had asked Dahilig and Prosecutor Justin Kollar to attend yesterday's meeting to present a plan for cracking down on the island's numerous TVR violations. But the Council quickly became irritated when Dahilig said that enforcement was hindered by an inadequate data base, poorly trained inspectors and “un-understood relationships” with other county departments and the state Health Department.

Dahilig further irked the Council when he had to leave the meeting in mid-discussion to catch a flight for another event, prompting a two-week deferral of the matter.

“They [the Administration] need to understand it's a priority,” Furfaro said “There is an urgency here. We have rules. We have ordinances that I have worked on for 12 years. It's the law of the land. They need to get us to the point where the law is obeyed.”

Kollar said he's ready to go once the Council funds a deputy prosecutor position that will be assigned part-time to zoning enforcement. Still, he said, his office is part of a “multi-pronged enforcement effort” that will be ineffective "if one of those prongs isn't working right.”

Councilmembers were displeased with Dahilig's three-page enforcement handout, which essentially said the planning department will try to get its act together this year with the idea of cracking down on violations for the 2014 renewal cycle. The TVR law was passed in 2008, but the planning department failed to implement it properly, approving TVR applications that lacked the proper documentation and houses with zoning violations.

“A year ago we had the same discussion,” Rapozo said, with Dahilig promising then to go after violations in the next round of renewals. “Every year we get excuses.”

Councilman Tim Bynum said he felt “a lot let down” by the department's failure to make applicants “comply with even the most basic aspects of the law.”

Dahilig, who took the job in late 2010, said that as he dug into the matter he discovered “more systemic issues that I wasn't aware of. I'll be candid about the limitations from a human resources standpoint and infrastructure. The fundamentals aren't there.”

But Councilmembers seemed to feel that Dahilig, the mayor and TVR owners had been given adequate time to assess the problem and devise a clean up plan. Some of the violations were reported to the planning department back in 2008, but the owners were issued TVR certificates, anyway. FEMA also identified shortcomings in the law's implementation in August 2009, identifying TVRs that were operating with illegal ground floor units in the flood zone.

“The exposure to the county is huge,” Hooser said, questioning whether the county would have increased liability if someone were to be killed or injured in a unit that had violations the county knew about. County Attorney Al Castillo said he couldn't answer without doing “an analysis.”

Councilman Ross Kagawa said the TVRs profiled in the Abuse Chronicles “are restricting access to the beach and damaging the shoreline.” He asked Dahilig if he could use the posts as a starting point for enforcement. “It was almost like you were handed all this evidence. If we don't do anything, in time the community is going to get frustrated.”

Some Councilmembers suggested Dahilig and Kollar enforce first against the “low-hanging fruit” to send a message to other TVR owners that the county is getting serious about a crack down. Others said he should pursue one or two cases to get a handle on what it will take to work through the list.

“I”m not looking for enforcement on one or two,” Furfaro said. “Why not cast a net that goes after those 16 that are the most serious?”

Councilwoman Nadine Nakamura said she believes the TVR violations outlined in the Abuse Chronicles “are only the tip of the iceberg.”

Councilwoman JoAnn Yukimura said she'd heard Realtors are selling agricultural land under the false promise that owners can develop TVRs. She wondered whether the real estate organizations could do more to crack down on unethical members.

Former Prosecutor Shaylene Iseri-Carvalho also weighed in, saying her office had tried to enforce against TVRs in 2010, but the planning department refused to provide any of its investigative reports, which are public, anyway. The OPA had to file a motion to compel the department to turn over the files. 

Hooser asked Dahilig if the county had followed up on any of the abuses profiled in the blog series. Dahilig said he had looked into the first report, which found no record of building permits for the Wainiha River dock where a visitor drowned in February. Dahilig said he sent out inspectors, but “the work product was problematic.”

When asked what that meant, Dahilig said the inspectors “still require more training. We are going to be following through once we are able to ascertain the files we are referencing were correct.”

“So it's still operating?” Hooser asked.

“That I don't know,” Dahilig said. “We did issue a cease and desist order.”

The $2.589 million property is currently listed by Realtor Jane Abramo as “a very successful and fully permitted vacation rental. All showings subject to 48 hour notice if the home is occupied by vacation guests."

Musings: Forbidden Fruit II

Following the Forbidden Fruit I post, several commenters asked why Kauai County allows the illegal vacation rental trade to flourish. Others questioned whether corruption or graft is at play.

Though I've been regaled with tales of applicants plying planners with food and liquor, paper sacks of cash changing hands, and county workers demanding that applicants use certain contractors in order to gain permits, I haven't been able to verify any of it, or get anyone to go on the record.

What seems more likely is that Kauai County allows illegal vacation rentals to continue because it directly profits in the form of higher real property taxes paid by landowners who are claiming a TVR use, even though they lack permits.

A limited review of county tax records shows that in Wainiha-Haena alone, 11 property owners are currently claiming a vacation rental use, or have recently switched from such a use to “commercial home business,” even though they lack valid TVR or homestay permits.

Another six are operating blatantly in the state conservation district, even though such uses are prohibited in that district and they lack county permits.

This is in addition to the 87 active and licensed TVRs in Wainiha-Haena, including four that were issued cease and desist notices for violations, though they continue operating pending their appeal.

.

And how many more, do you suppose, are running completely under the county's radar? Well, that's easy enough to find out. Just take a gander at the AirBnB site.

This is how a rural North Shore community — one with no services and serious flood exposure — turned into a de-facto visitor destination area and lost nearly all of its longterm rental housing, as the county deliberately looks the other way.

It's gotta be deliberate, an intentional inertia of political will. Because surely at least a few of these properties are sufficiently easy-pickings to catch the eye of the planning department. Especially when the County Council ordered it to go forth and harvest the low-hanging fruit.

The 11 property owners include: Patricia McConnell's Song of the Jungle; Lindon Keeler's Affordable North Shore Cottage; the Stocksdale 2000 Trust's River House; Bomun Bock-Chung's multiple TVRs, known variously as Pinao (currently on the market for $1.29 million), Rainbow Views, Lily Pad, Dawn and Moon; Martha Fritsch Trust's Halehanu Studio; Marcus Pettini's Hale Haena Vacations, with two B&Bs in the same house; Andrea Smith's TVR; David Rees' The Cottage; Steven “Esteban” Rogers, who rents Haena Hideaway, Haena Hale and one advertised as “New! Haena Haven,” and the Guyer-Searles' Revocable Trust's Hale Ho'o Maha.

Even though they have declared themselves as TVRs for tax purposes, many play coy or lie outright on their websites to avoid obvious detection. Take Halehanu:

Taxes & Cleaning are included in the nightly rate. Payment information is detailed in the initial quote given to our perspective guest from their inquiry here on VRBO. This studio is 'permitted' with a Transient Accommodation Registration Certificate Hawaii Tax ID#. Our Tax ID # is posted by law is: W91663365-0. This is a "Transient Accommodation Certified Registration".

Perfect for a couple, for long term not less than 180 days. If you're staying for less time as a guest of the owner, and have been invited to this site, welcome!!

Yeah, right. Because people always direct their personal guests to commercial websites.

Or the Lily Pad, Dawn and Moon studios, whose website with PayPal buttons reads:

Natural Kauai by private invitation only

Not for public use You are Booked :)

Others that previously claimed a TVR use switched to “commercial home use” to remain under the radar or to begin preparations for seeking approval as a homestay.

So why do people voluntarily pay far more taxes when they're already running an un-permitted visitor accommodation? If they're ultimately busted, will they claim they thought it was legit because they were paying taxes all along? This seems to be an attitude the county tacitly endorses.

How else to explain why Hale Ono remains in operation? As I reported back on March 18, 2013, in part six of the Abuse Chronicles, it has an illegal ground floor bedroom in the flood zone. Its first application for a TVR permit was denied, and the second was withdrawn. But all this time it's made like it did get a permit: paying TVR taxes, openly advertising on-line, renting for an average of $471 per night.

Isn't that rather ripe — a low-hanging morsel just waiting to be plucked? Especially since it was pointed out to planning two and a half years ago. Heck, it must be rotten by now.

Or Hale Ho'o Maha, which has been operating an illegal multifamily TVR since 2004, and only last year got DOH approval of its septic system. It's never ever had a permit. Yet it continues to operate as area residents and the county contest its bogus application for a homestay permit. But even if the contesters win, the owners' attorney, Jonathan Chun, can appeal, dragging citizens with no resources into court while he gets paid and his clients continue to generate income from their unpermitted use.

It's a dispiriting fight, let me tell you.

To put the property taxes in perspective, Nick Michaels — whose Blue Lagoon TVR was also featured in the Abuse Chronicles — can pay his half-year tax assessment in just 10 days with his $1,500-per-night rental fee. Though he never bothered to renew his TVR permit for several years, and the county recently sent out a cease and desist notice, he'll be allowed to keep operating while the appeals process drags on. 

In short, there are few to no serious consequences for either permitted or illegal TVR operators who flout the ordinance — perhaps because the county allowed so many of them to improperly obtain their lifetime permits in the first place.

There's another force, besides filling its own coffers, that compels the county to ignore all these illegal TVRs. It's called the high-end real estate market. Take, for example, that little cluster-fuck known as Haena Cove. It comprises three vacation rentals — Hale Kamani, Lihi Kai and Hale Mahana — on one oceanfront lot.

As I reported in part 11 of the Abuse Chronicles, the county initially denied applications for Lihi Kai and Hale Mahana because of zoning violations. Two years later, after the new owner hired Jonathan, the county approved the TVR permits, even as it re-issued the zoning violations. Meanwhile, the property had sold for $7.5 million. Now, despite receiving just two very questionable TVR permits, all three houses are listed as vacation rentals on their real property taxes.

I don't hold out much hope that Kauai County will get serious about TVR enforcement. As one commenter admonished:

Everybody should know by now especially Joan that THEY DON'T WANT IT!

But still, it's important to keep shining a light on this issue. 

I mean, just in case you were wondering why the county was able to strong-arm some of the mom-and-pop B&Bs into shutting down, even as the well-heeled illegal guys keep operating like it's business as usual.

Because it is.

Musings: Sob Stories

Though The Garden Island has done a great job of printing B&B/homestay sob stories, it hasn't touched on the real tragedy: illegal TVRs trying to slip in under the wire and totally unsuitable B&Bs.

Take, for example, these AirBnB ads. One offers an airbed in a beachfront tent at Haena for $245 per night, while the other is a futon in a tent at Haena Beach Park for $40/night. So we've got folks pimping public beaches and facilities for profit.

Then there's simple greed, like the Haena house that offers two units, one of them an illegal B&B on the ground floor in the flood zone. The property is owned by Leila Kawaihalau and others. It's right next to a permitted TVR that made the Abuse Chronicles, and which Leila  also operates, so she can't exactly make like she never knew the rules.

Though she knew the county was no longer issuing TVR permits, Leila converted half of her house into one "B&B," then enclosed the downstairs to make a studio, with refrigerator, microwave, coffee-maker and separate entrance. 

While her ads hype the beautiful beach:

Tourists stay in this funky, illegal ground-floor enclosure:

Totally oblivious to the tsunami and wave inundation risks that come with being "less than 50 yards from the beach:"

And this is an area of big waves:

That do wash up onto the house lot:

Despite all the vegetation that's been planted on the public beach:

So is the Council, as it ponders the B&B/homestay ordinance, preparing to let stuff like this slide? 

Even as it endangers flood insurance for the entire island? Because the county is still under investigation by FEMA for allowing ground-floor bedrooms in the flood zone.

The Garden Island has portrayed the planning department as a heavy-handed bully destroying the livelihood of old folks and those simply pursuing a means to live on Kauai. 

But with its recent enforcement action, the planning department is doing exactly what the County Council ordered it to do when we exposed the TVR mess through the Abuse Chronicles. Though a Council majority declined to conduct an investigate, it directed the department to go after the “low-hanging fruit.” Or in other words, the guys operating illegally, with no permits.

The B&B/homestays were caught up in the sweep, prompting many of them to claim they'd tried to get permits, but failed because there was no process. But that doesn't jibe with the fact that some B&B permits were indeed issued in the past, though they're no longer in business.

And in reality, very few B&Bs were affected by the crack down. As of early May the county had issued just 93 cease and desist orders, of which only about 10-15 went to actual B&B/ homestays.

I discussed this issue with Beth-Ann Kozlovich on Hawaii Public Radio's “The Conversation” yesterday morning. She opened the segment with this:

When does your spare room become a business and who should regulate it? How those questions are answered on Kauai is splitting the community as they are debated in the County Council.

I reframed it to this:

The question many residents are asking is how much of the island should be in resort uses?

And this:

It all comes down to whether the Council has the political will to cut off all those illegal vacation rental owners. Many of them have a sense of entitlement since they've been paying the higher TVR property tax rate, even though they don't have TVR permits.

We'll just have to wait and see.

Musings: Sewage Seepage

With news that coral reefs in Hawaii are experiencing a severe bleaching episode — and yes, it's happening across the state, though The Garden Island makes it sound like a Kauai-centric phenomenon — it becomes even more important to crack down on coastal cesspools.

Because as Kim Hum, Hawaii Director of Marine Programs for The Nature Conservancy, noted in an article by the Associated Press:

The corals are animals, right, they're not rocks. So what bleaching is, it's a sign of distress. [People need to] make our coral as healthy as possible ... so that they can respond and they don't bleach and they don't die because of these additional stressors.

Sewage is a major stressor of coral reefs. Now, as part of a new overall water quality plan, the state Department of Health has proposed ending the use of cesspools in new housing and requiring existing homes to convert to septic systems upon sale.

As West Hawaii Today reported, emphasis added:

Hawaii is the only state in the nation that still allows construction of new cesspools. There are currently 90,000 cesspools in the state. The majority, some 50,000, are located on the Big Island. In addition, almost 14,000 are on Kauai, more than 12,000 are on Maui, more than 11,000 are on Oahu and more than 1,400 are on Molokai. Each year an additional 800 new cesspools are approved for construction, according to the Health Department.

Though the Board of Realtors has opposed the change, claiming it will make housing more expensive and unduly burden local people, they've said nothing about the numerous high-end oceanfront homes that operate on cesspools.

Many of these houses, as I've previously reported in the Abuse Chronicles, are used as transient vacation rentals. And that means three things: they're generating a helluva lot of waste; they're regularly flipped, so this new rule would force them to upgrade, and they can certainly afford it.

For a vivid illustration of what's at stake, check out this graphic (click to enlarge), which shows just the Wainiha subdivision:

As I reported in the Abuse Chronicles, the defacto resort known as Hale Makai has five separate TVRs, each with its own cesspool. They were dug in 1967, including two that were just 50 and 75 feet, respectively, from the ocean. No doubt they're much closer now, given erosion. Between them, they can accommodate 19 people per night. 

Then there's Swaying Palms. Its cesspool was dug in 1958 for a 320-square-foot, two-room cottage. It now serves five bathrooms — each with a Jacuzzi tub — in a seven-bedroom TVR that is 10 times larger the original house.

Other houses, though not right on the beach, expanded without converting to a septic tank. Rainbows End, for example, was upgraded to three bathrooms — using the original cesspool that was designed to accommodate one bathroom.

How can they possibly be allowed to continue operating on cesspools?

Hanalei Bay is another toilet, as this map depicts (click to enlarge):

No doubt the situation is the same at Anini, Kalihiwai, Moloaa, Aliomanu, Anahola, Kapaa and everywhere else that TVRs cluster along the coast.

So not only did most of these TVR owners acquire their permits improperly, they're now being allowed to degrade the ocean and groundwater with impunity. 

Yet curiously, the North Shore crowd that lives in the thick of this shitty situation has become obsessed with GMOs/pesticides on the westside rather than screaming about the crap, literally, that they surf and swim in daily.

Uh, hello, Ohana O Kauai? Is anybody home? Mayoral candidate Dustin Barca and sidekick Fern Rosenstiel — is this even on your radar? I saw nothing on your website. Don't you folks think that e-coli is a threat to the keiki and fisheries? Not to mention all the other stuff that people flush down the toilet. Or are the donations from the richy-riches and North Shore Realtors blurring your vision?

What about North Shore Council candidate and "red shirt" Felicia Cowden, who weighed in on everything from GMOs to cat licensing? Nothing but crickets on this important issue. Instead, she emphasizes only the impact of agriculture on water quality.

Yes, this new rule may be a hardship for some. But those crocodile tears shed by the Board of Realtors aren't for the poor peons. They're for the well-heeled clients who might find it costly or impossible to locate a septic system on some of these expensive coastal lots. 

If you care about Hawaii's reefs and coastal resources, take a few moments and submit your testimony to wqpcomments@doh.hawaii.gov. You have until Friday, Oct. 17, to weigh in. 

To borrow a slogan from Ohana O Kauai and the rest of the "red shirts," since they obviously aren't using it anymore: "Protect What You Love."

(Cartoon from the Big Island Chronicle.)