Monday, February 25, 2013

Musings: Abuse Chronicles 4

How can something so bold be hidden? I wondered at dawn upon finding the night's brilliant moon totally obscured by clouds. The same question could be asked of the process that has resulted in numerous ineligible properties getting transient vacation rental permits (TVR) from Kauai County.

Today we shine the light upon a three-bedroom, 2.5-bath house that was built, in 1997, for $240,000 and purchased by Geoffrey and Sadie Barish for $1.925 million on Aug. 3, 2005. It is located just off the beach, in Wainiha Subdivision II, which has very specific Covenants, Conditions and Restrictions (emphasis added):

No owner shall subdivide or re-subdivide his Lot, nor shall any Owner seek a zoning amendment, use permit, variance or any other type of approval which would allow a use of his Lot for other than single family residential use. No commercial activities shall be allowed on any Lot.”

In keeping with that restriction, the Barishes did not use their house as a vacation rental. In fact, they went so far as to pay off agent Gary Fischer, who had been renting it out as a TVR prior to their purchase and had future reservations booked. They didn't give their house a cutesy name, or take out any advertisements. But when Barish went to sell the house, North Shore Properties (NSP) reportedly advised him to apply for a TVR permit under the county's newly passed ordinance for regulating TVRs in continuous use before 2008.

In support of his application, Barish submitted a letter, dated Aug. 19, 2008, from Roberta Haas and Mimsy Bouret of NSP. The letter said NPS had been the property management company for the Barishes since Nov. 1, 2007, and the house, known as Hula Hale, had been part of their vacation rental inventory from that date. The letter goes on to state:

Mr. and Mrs. Jeffrey Barrish [sic] have had transient guests occupying the subject property in exchange for compensation prior to the effective date of the Transient Accommodation Rental Ordinance with a pattern of consistency that evidences an ongoing and lawful enterprise.”

In further support of that “ongoing and lawful enterprise,” Barish submitted a GE tax license — though it had been closed on Sept. 5, 2005. He submitted no other documents required by law to prove previous TVR use, such as general excise, transient accommodation or Hawaii state tax returns, reservation lists or receipts for rental payments.

But he did include the mandated floor plans for the house, which showed three very small enclosed units had been added to the ground floor — without county building permits, in violation of federal flood laws.

Although the county's TVR log and the property's nonconforming use (NCU) form indicate the house was inspected on March 18, 2009, there is no inspection report. Nor is there any explanation of how it could have passed with such an obvious violation. Nevertheless, and despite the complete lack of documentation to prove prior TVR use, then-deputy planning director Imai Aiu approved NCU Certificate 1059 for the structure in June 2009.

Meanwhile, the Barishes had sold the house to David and Karen Burse, of Los Gatos, Calif., for $1.7 million on March 31, 2009. FEMA also had begun investigating reports that some Kauai County houses were not compliant with federal flood regulations. The Barish-Burse house was one of them, and on May 7, 2010, the county wrote to FEMA:

Cited by building division for non compliance with the flood ordinance. Property will not receive a renewed NCU certificate for the next year.”

An initialized, handwritten note, dated 6-8-10, is attached to the file stating, “cannot renew because TVR ceased. Since 2009. Has permit submitted.”

On Aug. 26, 2010, then-county engineer Donald Fujimoto sent Barish a notice of apparent flood violation.

On Oct. 12, 2010, after the county had passed a second ordinance liberalizing the TVR permitting process, Burse sought a TVR permit for the “Burse Residence.” As “proof” of former use, he submitted a notarized affidavit that states “On information and belief the former owner operated a transient vacation rental,” and says he is remedying the unpermitted ground floor units. He also includes a copy of the NSP letter that Barish had originally submitted, and a reservations report from NSP that purports to show “arrivals for all complexes between Jan. 1, 2001 and Dec. 31, 2009." However, it lists just 12 arrivals and shows no income to the Barish account.

On Dec. 8, 2010, the National Flood Insurance Program conducted a site visit and noted numerous flood violations on the property.

On Jan. 10, 2011, county planning inspector Vill Balisacan sent Burse a letter advising him of “actions required to complete the TVR registration and NCU form” he had submitted the previous October. The “missing documents” included proof of payment of TAT and GET taxes, and as-built plans for the structure.

On Feb. 8, 2011, Burse sent planning inspector Bambi Emayo a fax, thanking Bambi “for your call and your explanation that we can still apply for renewal of NCU certificate 1059 for the renewal periods of 2009-10 and 2010-11.”

Now remember, this is the same NCU permit that had not been renewed because of the flood violation and also because, according to the initialized, handwritten note in the file, “TVR ceased. Since 2009.”

As has been noted previously, under the county zoning ordinance:

If any nonconforming use ceases for any reason for a continuous period of 12 calendar months or for 1 season if use be seasonal, then the use should not be resumed and any use of the building or property thereafter shall be in full conformance with the provisions of this chapter.”

With that fax, Burse retroactively submitted a 2009 renewal form, and followed it up with a 2010-11 renewal form. He also submitted GE and TAT licenses that showed a business start date of 11-4-2010.

On Aug. 15, 2011, Burse sent Balisacan another letter, in which he confirmed his Aug. 4, 2011 telephone conversation with Vill and Bambi and writes:

“Mr. Emayo informed me that (1) our application for TVNC 4280 was complete; (2) no further inspection is required because of the previous inspection done in conjunction with the approved (now expired) TVNC 1059; and (3) final approval of our TVNC 4280 application will be granted as soon as we can provide a 'clearance from the Kauai Co. Public Works Dept. which [sic] respect to the Noticed 'FEMA Audit' Flood Violation.”

On Oct. 11, 2011, county engineer Larry Dill sent the Burses another letter advising them of what must be done to bring the ground floor units into compliance with the county's flood ordinance.

Remember that handwritten note? At some point, these words were added: “Renewal affect 10-14-11. Meeting.”

And at some point, Burse apparently got the original 1059 permit renewed — a permit that should not have been issued because it never met the original requirements, a permit that  was out of use for more than a year, a permit that had expired.

On Sept. 24, 2012, his newly authorized representative, Realtor Jane Abramo, submitted the NCU renewal form for “Hale Koaniani.” (She and Coldwell Banker are now in the business of handling these pesky renewals for absentee owners.) Abramo included a note that read:

We hereby withdraw NCU application no 4280, which was originally filed on your recommendation because of uncertainty at the time of the renewal status of certificate 1059. However, as you explained during our conversation on June 27, certificate 1059 is now “active” and eligible for renewal, and application 4280 was rejected because there cannot be two active certificates for the same property.

To avoid public confusion due to there being both an “active” permit and a “rejected” permit listed for the same property (TMK 5-8-9-052), we ask that you please delete the public listing of NCU application 4280, or at least change the status to “withdrawn” instead of “rejected.”


Anonymous said...

The county should begin an investigation right now into the implementation of the TVR ordinance. Uh, and those who administered it.

Anonymous said...

Joan, what's this about a FEMA audit?

Anonymous said...

Most of us go to work because we enjoy the work or we need the money. If we need the money, we know that the job must be executed to a certain standard to maintain our good status within that organization.

Government however, works on a different level. They look at their positions as opportunities to make extra money (bribes, kickbacks, etc.), or get county property for free (gas, fertilizer, etc). They all know it will take a congressional declaration to get them fired, let alone disciplined.

Govt employees as a whole are pretty useless. "I'm sorry we seemed to have lost your application, you'll need to resubmit your forms. Curious this never happens to tvr forms. Must be a well greased (bribed) highway. There's just no money in standard county transactions.

Of course if you want the good money you need to be an inspector or administrator.

We need politicians that will turn ALL govt. agencies upside-down and start over.

Don't even start me on the useless police revenue generators!

Anonymous said...

Time 4 some bambi stew. have with a Vil-lian.

Anonymous said...

Excellent investigative reporting plus skillful sequencing of details, Joan.
Remember "Dragnet?" You're giving us the facts, Ma'am!

Now that the Prosecutor and the Council Members, the County Attorney, and the Mayor have the facts, shouldn't heads roll next? IF these perpetrators are given the option of either RESIGN OR PRISON...wouldn't the county start seeing some savings off the trough?

I would like to see the Board of Realtors address these unethical and
unlawful actions of their members! This collusion between realtors and planning must stop! Enough already, this makes our whole island stink!

Anonymous said...

Aren't Government employees subject to disciplinary action?

And isn't that information available to the public?

I'm guessing that none of the people in the planning department have ever been disciplined.

Anonymous said...

FRAUD. Those realtors should be sent to jail. These lies have got to stop. They are all greedy liars who are raising the price of homes for those of us who have to live on the island. Send them all to jail!

Anonymous said...

Since our local paper won't do any investigative reporting that might cast a pall over local government, would like to see your "train of evidence" leaked to the Honolulu paper. Perhaps an authoritative state or Federal agency would then get involved?

Anonymous said...

The hnl star advertisement owns tgi.

Don't look for light there.

Maybe civil beat

Anonymous said...

The Feds have been notified.

Remember to audio, videotape or photograph them when they are on your property or shopping in Kmart, Walmart, Times, Big Save, Safeway, Foodland, the mall or anywhere a government vehicle should not be on personal business.

Anonymous said...

Right on 1:50 PMT

Also photograph state and county vehicles in senter petroleum gas lines. Be aware of portable fuel containers!

Report all incidents to FBI, obtain receipt of evidence.

Revolution and change come from the bottom.

Anonymous said...

This type of abuse is ridiculous and completely unacceptable.

I've seen that former hairdresser/inspection supervisor at Foodland in a County vehicle - should have taken a picture!

BTW so that's why her hair has all that hairspray in it. Good to know she can be retired and still have a professional career.

Anonymous said...

Civil Beat?? Nathan Eagle and Michael Levine are both Cowards. They left Kauai because they were scared to report real news about how corrupt Kauai is.

All of you chicken shit people who fear this big multinational organization of criminals that run Kauai are cowards!!

Anonymous said...

Are these considered white collar crimes?
Is there a way to present this to our new prosecutor who said a lot of things on how he will do things differently or is he still in respite? Or is he already corralled?

This needs to be prosecuted and county personnel involved, are complicit.

Anonymous said...

Joan, please come to the Waimea Theater on Sunday, March 3rd at 2 pm. Dr. Tyrone Hayes, Harvard graduate, professor at Berkley, Walter Ritte of Molokai and Dr. Lorin Pang, Princeton honor graduate--Maui resident, will be here! Dr. Hayes will speak on the dangers of atrazine, chemical used by the gmo companies and found in our drinking water. Aloha and mahalo!

Anonymous said...

All the west side residents have to do is file complaints to the EPA.

Have them investigate the clean water act, the clean air act, resource conservation and recovery act, and additional investigative examples.