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.