Musings: A Right to Know

While driving to an appointment this morning, I became aware of something strange in the sky. It was yellow and bright and warm — oh yeah, the sun! I’d almost forgotten what it looked and felt like, and how it could do cool things, like illuminate patches of vibrant green atop Makaleha and cast long shadows across the road.

But despite the sun’s reappearance, a distinctive gray area remains, most notably on the topic of whether Kauai folks should be allowed to know whether someone is operating a mini hotel in their neighborhood.

Last year, as you may recall, the County Council finally passed a bill to regulate transient vacation rentals (TVRs), saying they were “occurring at a greater rate and inflicting a larger impact on the community than was ever anticipated.”

The bill also recognized that the “uncontrolled proliferation” of these rentals was “causing significant negative impacts to certain residential neighborhoods…” especially on the North Shore.

OK, so it was clear the units were out of control and causing harm. Now comes the slippery, shadowy part: regulating them. The bill includes a “grandfathering” clause — in other words, those who did the wrong thing, and did it long enough, will be allowed to legally continue. Meanwhile, those who obeyed the law all these years have lost their chance to operate a vacation rental cuz by the time all the illegal guys are grandfathered in, going be too much already. Sorry!

Anyway, in order to receive that gift of being able to forever rent out their homes for commercial purposes, the illegal guys must register their TVRs and obtain a non-conforming use (NCU) certificate from the county.

The bill includes another provision, too, which states: “any member of the public may initiate proceedings to revoke a non-conforming use certificate or to stop an unpermitted use.”

Sounds reasonable, yeah? Unless, of course, members of the public are not allowed to know who has registered a vacation rental, who has applied for an NCU or who has been granted an NCU.

Since the vacation rental bill does not specifically state that such information should be made available to the public, some Council members feel it should not be disclosed. The Council’s planning committee is set to discuss an amendment requiring the info be made public at its Wednesday morning meeting.

Under the law, the county’s real property division is tasked with handling the registration, while the planning department is supposed to check out and approve the applications.

In typical obstructionist fashion, the planning department balked at a request for a list of TVR applications and approvals, citing the size of the file and the busyness of its staff.

The real property office was more forthcoming, providing copies of its registration log, which totaled 13 pages and included some 323 registrations. It’s unclear whether that’s a complete list.

(Larry Geller at Disappeared News kindly posted links to the 13 PDF files for me since I don't know how to do that: list 1, list 2, list 3, list 4, list 5, list 6, list 7, list 8, list 9, list 10, list 11, list 12, list 13)

Now in reviewing this list, quite a few interesting things came to light, including several applications to register TVRs in the ag district, where they are expressly prohibited. The list also includes some homes in the Wainiha-Haena area where the state currently is citing owners for illegally operating vacation rentals in the conservation district.

Also on the list are some properties that are currently under construction, as well as others that never were used previously for vacation rentals. And then there are some homes where the bottom story, which is supposed to be open because they’re located in the flood zone, has been illegally enclosed to create a TVR.

I was also intrigued by the names, among them former Judge Clifford Nakea (who has four units on Anini Road) and per diem Judge Joe Kobayashi, guys you’d expect to follow the law. Not so surprising was architect and land speculator Stephen Long, who submitted choke applications on behalf of unnamed owners, perhaps former clients whose homes he designed precisely for that purpose. Then there is Gaylord Wilcox, who despite his millions is seeking to legitimize four rentals on Hanalei Bay. Heck, even Michele Hughes, who added to her fortune by selling off Kealia Kai, is getting into the act with her vacation rental above Kauapea (Secret) Beach.

And then there are a bunch of LLCs and something called The Parrish Collection — you know, the average folks next door.

Most were registering just one unit, but a man named Klaus Bermeister has 16 units on the same TMK. That seems kinda like it’s edging into the realm of a hotel use, doncha think?

While it galls me to think that our beaches have been developed so mainland LLCs and folks who are already loaded, like Gaylord and Michele, can run profitable business ventures, I’m deeply troubled by the possibility that the public might be denied its right to know who is getting these perks and where these TVRs are.

Given what we know about the planning department’s slack and lax attitude toward inspections, and the county’s tendency to give certain people a great deal of latitude when it comes to following regulations, it’s imperative that the public have access to this information so it can challenge the improper granting of NCU certificates.

Don’t we have the right to know if the county is grandfathering illegal structures, or grandfathering structures illegally?

Shouldn't we have the right to demand the county hold public hearings before approving commercial uses in the Special Management Areas, like the beaches at Haena and Hanalei?

And what possible purpose could the Council have in denying us that information, that right to know, other than it really doesn’t want to get serious about cracking down on TVRs?