Musings: Abuse Chronicles 14-B

At what point does a vacation rental become a resort? On the westside, for example, we have the Waimea Plantation Cottages, while in Wainiha, there's Hale Makai Beach Cottages. Both are oceanfront properties that rent restored houses. Yet only the former is designated a resort, while the latter is classified as a vacation rental.

Or actually, five separate vacation rentals, each with its very own TVR certificate and cesspool. 

Yet for all intents and purposes, Hale Makai functions like a single resort property.

The units are grouped together on two acres within a secure, walled compound, and share parking.

They also  share trash cans, which are lined up against a wall that blocks both the ocean view and a state easement. 

Blocked view, road and easement.

They advertise on a single website that uses the shared trademarked slogan of  "Live like a local." And they are rented as a group for "secluded weddings, family reunions, small company functions and small business retreats." Just like Waimea Plantation Cottages (WPC).  

Hale Makai special event.

Like the old camp houses that became WPC, the cottages at Hale Makai also had humble beginnings. Three rustic hale, each under 500 square feet, and a shed, were constructed in 1968 as a fishing camp by McBryde Sugar Co.

In September 1980, the property (parcel 34) was sold for $421,500 to Realtor George Blake and investors George Caras and John Fado. In February 1989, their attorney Patrick Childs sent Planning Director Tom Shigemoto a letter inquiring about the permissible uses for the property. Shigemoto replied, emphasis added:

“…The existing density we note has been nonconforming or “grandfathered” over the years in that the parcel size only allows a maximum of (3) dwelling units. Therefore only 1 or possibly 2 of the units are limited only to repairs in accordance with article 23, section 8 of the Kauai County Code of Ordinances. In order to determine the number of dwelling units that are “grandfathered” on the parcel, the owner must obtain a certified shoreline survey and submit it for our review. The shoreline survey will in effect, will recognize the actual parcel size as it exists today.”



“Please note that a 400 square foot parcel (TMK: 5-8-8:36) and a 6 foot wide easement in favor thereof is situated within the subject property. Any new development proposed by the owner of parcel #34 should not include the use of the State Property.”



Meanwhile, the cottages were expanded and upgraded, anyway, and the shed was converted into a full house — work that was done without building permits. By 1994, the cottages were back on the market, advertised as a business and “deluxe vacation rental properties.” The asking price was $1.75 million, but no buyers were forthcoming.

In April 2002, Coldwell Banker Realtor Michael Schmidt sent a letter to then deputy planning director Sheila Miyake asking about building heights, setbacks, flood zone and zoning for the property. Miyake replied, emphasis added:

The lot is 39,000 sq. feet in size… and outright qualifies for (2) houses and a guest house.

In May 2002, Takako Ferry of Coldwell Banker sold the property for $2.35 million to Klaus Burmeister, a California attorney. By then it was a residential listing, the square-footage of the original structures had increased and the fourth house was openly advertised, though it had no building permit:

“4 classic beach cottages on expansive property offers one of a kind experience and oceanfront setting. 1 BR cottages are permitted and detached for privacy. A true Hawaii rarity! Bedrooms: 5 Baths: 4 [Full] Living Area : 2,894 Ext Area: 562.”

In June 22, 2004, Burmeister expanded his holdings by buying the adjacent property (parcel 39) for $1.325 million. It included the 816-square-foot fishing hale built in 1968 by the late Eduardo Malapit, former Kauai mayor. 

On June 24, 2004, planning inspector Bambi Emayo visited parcel 34 and issued a zoning compliance notice for unpermitted structures, additions and alterations, as well as non-conforming structures and uses. Burmeister was directed to cease and desist use of the non-conforming structures as single-family dwellings, provide construction plans to the planning department, and provide a certified survey locating all structures and distances from property lines.

Undaunted, the very next month Burmeister erected a wall around his properties without a permit. The wall also blocked the state easement Shigemoto had referenced in his 1989 correspondence, as well as the neighborhood's view of the beach. The easement was traditionally used to access the shoreline and channel, and was wide enough for fishermen to launch small boats. It was listed in both the county's 1984 beach guide and the state's 1993 Na Ala Hele Beach Access Inventory.

The easement before the wall.

In response to neighborhood complaints, the planning department conducted a zoning and special management area (SMA) inspection and noted violations of SMA and shoreline setback rules, including filling and planting within the setback and building the wall without a permit.

Gary Hooser, then a state Senator, sent an Aug. 6, 2004, letter to the Peter Young, director of the state Department of Land and Natural Resources (DLNR), advising that the wall appeared to violate Act 169, a recently passed bill that made it a misdemeanor offense to obstruct public access to the sea and the shoreline, with possible fines of $1,000 to $2,000.

In August 24, 2004, the Office of Conservation and Coastal Lands sent DLNR a letter advising that vegetation and compost had been placed on the beach, makai of the shoreline and apparently within the state conservation district, without any county SMA permits. Burmeister was ordered to “Immediately stop all landscaping activities within the shoreline area.” (See Abuse Chronicles 14-A for more on Burmeister's unauthorized coastal landscaping.)

In September 2004, the county issued Burmeister a zoning compliance notice for erecting the fence and installing fill and landscaping without an SMA permit. He was directed to stop landscaping and “submit a zoning permit and SMA assessment application along with appropriate plans indicating all areas landscaping activity (parcel 34), all existing structures (parcel 34 and 39). Any development without proper permits/ approval shall be demolished and removed from the subject property.”

In March 2005, Walton Hong applied for an SMA minor permit, on Burmeister's behalf, to bring the fence into compliance. This was followed by a letter from Burmeister to Planning Director Ian Costa seeking a zoning permit for the five existing structures (the four cottages and wall).

Costa responded with a Dec. 1, 2006, letter reminding Burmeister of all the outstanding violations and requiring a shoreline certification for the property. The owners stalled and stonewalled, perhaps because a certification would have determined that some of the structures were within the setback, dangerously close to an eroding shoreline — or perhaps actually seaward of the shoreline.

The stalemate lasted until January 2008, when Costa and Deputy County Attorney James Tagupa signed an enforcement agreement with Hong — an agreement that was never signed by the mayor, as required under the County Charter.

In our next installment, we'll take a look at what was given away under that enforcement agreement, and how it paved the way for the cottages to apply for vacation rental certificates.

(TMKs 5-8-8:34 and 5-8-8:39)