Musings: Abuse Chronicles 14-D

As we detailed in the last installment, the former county planning director made Hale Makai Cottage's zoning violations magically disappear — just in time for the owners to apply for transient vacation rental certificates. Today we'll look at how the owners scored five certificates to operate what is essentially a resort in a residential neighborhood, without any sort of public hearing.

On March 31, 2009, owner Klaus Burmeister faxed the county just one affidavit — with a cover letter stating “...this affidavit is filed under protest…” — to cover five cottages on two separate lots. In it, he claims to have operated the five units as TVRs since 2002, even though he didn't purchase one of them until 2004. His attorney, Walton Hong, signed and submitted an identical notarized affidavit. Both men swore general excise and transient accommodation taxes had been paid, but the files contained no documentation of such payment, as required under the ordinance.

Both men also swore that no legal improvements to the structures had been made after March 7, 2008, though some of the building permits they referenced for structures on the property were not issued until April 1, 2009. No reference was made at all to the building permit for cottage #4 — perhaps because it was, and apparently still is, in limbo.

Despite the irregularities, and the fact that the affidavits were filed after the application deadline, former deputy planning director Imai Aiu approved all five permits between June 12-19, 2009. No special management area (SMA) permit was required, though Protect Our Neighborhood Ohana, had requested one to "evaluate the overall and cumulative adverse effects” of having a five-unit, sleeps 19+ resort in their single-family residential neighborhood.

No septic tank was required, either. Instead, each cottage is served by a separate cesspool dug in 1967, including two that were just 50 and 75 feet, respectively, from the ocean and no doubt are much closer now, given erosion.

Then FEMA started digging into North Shore Kauai properties with apparent flood zone violations, including five building permits associated with Hale Makai Cottages. Under a 2008 enforcement agreement, former planning director Ian Costa had allowed Burmeister to apply for after-the-fact permits to bring the cottages into zoning compliance.

Though work on three of the cottages was approved as “unsubstantial improvements,” thus exempting the additions from flood law compliance, cottage #4 ran into a snag. It reportedly was built in 1994, after the federal flood law was passed, but it had not been elevated.

Following its August 2009 audit of county records, FEMA questioned the missing building permit and the cottage's use as a TVR. In its 2010 response to FEMA, the county replied:

“County to issue violation notices and will not receive a renewed NCU certificate for the next year. Building permit 06-00000783 reveals a denial by building division. County to investigate whether structure was illegally built.”

It does not appear the building permit issue has been resolved. An on-line review of county permits includes this note:

Bldg.#4; COASTAL HIGH HAZARD ONE VE 24'MSL 35E; Permit Denied  Report by Betty Zapata (OEP/FEMA) states Bldg.#4 was destroyed by Hurricane Iniki. Building was rebuilt without going through building permit process that would have required Bldg#4 to be built in compliance with flood requirements. Existing building is in violation of flood requirements.

It's unclear whether the county did renew Hale Makai's TVR permits in 2010, as no renewal applications were in the file and no approvals were shown on the TVR log. If the use did cease for a year, those certificates should have been lost forever. 

The log shows just one cottage as approved in 2011. Four were shown as approved on the  Nov. 15, 2012 and  Feb. 7, 2013 logs, while #4 has remained in the still “pending comments” category. Yet the owners have continuously advertised its availability on their website, which pitches the property under the trademarked slogan “live like a local.”

Indeed, one March 8, 2013, Trip Advisor review speaks to spending two weeks in cottage #4. 

Other reviews speak to the cottages' close proximity to the beach, the extensive landscaping that now consumes the sand and their encounters with the typically rough ocean facing the property, which the owners tout as “the ideal playground for guests of all ages, for swimming, snorkeling, kite surfing, beachcombing and sunbathing:”

The surf was large, but...I did dare to venture out one day and was delighted by the fish and coral. You will need to be a strong swimmer and have fins to make it past the rip current that is at times between you and the coral in the winter months....

My wife and I stayed in cottage #2 for our honeymoon. We ate our meals on the back deck which is literally 15 feet from the ocean. Or it's like living in a luxurious porch right on the beach.

Room Tip: All units are a stone throw to the private beach, so you really can't go wrong.

Cottage #3 is situated the best (at least in my opinion). Only 30 - 40 steps from the deck to the beach, yet far enough away that surrounding vegetation deflects much of the frequently blowing tradewinds. Given how the reef configuration sometimes causes a fair amount of chop, the water may not look too inviting. But don't let that deter you. The snorkeling at Hale Makai is almost as good as at Tunnels and Ke'e beaches, and much more convenient. Not to mention you have a reserved parking spot.

We were literally 20 yards from the beach, with a lovely view.  We snorkeled right there, and saw lots of fish (but the Trade Winds were blowing, and the waves were pretty rough).

We just returned from a fantastic Anniversary stay in Cottage #2 - RIGHT ON THE BEACH! The porch is separated from the beach by some bushes that give you privacy, but still unobstructed views of the sand and surf.

Also, the current in front of Hale Makai was very strong. I consider myself a strong swimmer but I barely moved when I tried to swim against the current. Maybe these conditions are common only for this time of year (October)…

...the cottage itself is steps from the beach, and the porch is basically on the beach (separated by some plants). We were nervous because we had been warned of rough water, but my husband swam/snorkeled in the water nearly every day (he is a strong swimmer) and even took our 3yo into the shallow section. And we weren't the only ones - there were a number of people/families snorkeling and playing in the water throughout our stay.

No doubt all the other swimmers were also tourists. Is it any wonder we have so many drownings when the TVRs dump people onto dangerous beaches with no lifeguards?

Meanwhile, the owners continue to advertise the whole property as ideal for “….weddings...family reunions....small company functions and small business retreats" — services more typically provided by a resort. A wedding site promotes it under “group accommodations:”

While you can always plan to stay in the same motel, there is a far more intimate option.  Hale Makai Cottages has 5 cottages scattered in a private garden right on the edge of the beach. This allows guests to have the privacy of their own beach cottage while still being only a few yards away so that the group can enjoy the Kauai Together. Accommodations can even be made to allow the wedding to take place in their private gardens.

The closest cottage has a deck that overhangs the beach. The furthest cottage is probably less than a 30-40 yard walk across their garden. This Kauai Vacation Rental property is literally beach side!

Which brings us to this Trip Advisor review, which is chilling in its naievete, given Hale Makai's minimal setback on a coastline annually visited by monster surf:

We will miss waking up to hear the ocean and sitting up in bed to see the waves crashing just past the sliding glass door.