Musings: Abuse Chronicles 15

Push a little, get a lot, seems to be the MO of Kauai TVRs, and it's no different at "Haena Heaven," which sits on a sweet stretch of shoreline that many did consider heaven.

Before it became this:

Haena Heaven — aka Makua Kai — sits on the Hanalei side of the beach access at Camp Naue. It's part of the Teri Tico subdivision, the only lot to get guest house rights. But owner David Smith pushed for more. After building the main and guest houses, he asked to build a third house, which prompted a special management area (SMA) hearing. Residents, leery it would be a spec vacation rental, said no, the neighborhood was dense enough already. But in 2002, the planning commission said OK.

Smith started building the third house in September 2004, with no new shoreline certification required.  Yet as this 2004 photo shows, the debris left  by the high wash of the waves, which delineates the public beach, extends to the supporting columns. So much for the subdivision's 80-foot setback requirement: 

In February 2005, the property went through a CPR. Ed Ben-Dor, who built the mega-house that hovers at the edge of Haena County Beach Park, put up the cash.

Meanwhile, Smith was cutting down the big old kamani and ironwood trees fronting his property.

The work was clearly taking place on the public beach, as evidenced by this wave wash photo:

In July 2004, the county issued Smith a violation notice for violating his SMA permit by illegally cutting trees, planting landscaping and installing sprinklers, which he was ordered to remove. The state also weighed in on the public's behalf.

But by that time, the pesky trees were gone, allowing Smith to install a spray paint lawn and naupaka seedlings on the dune:

In December 2005, the property looked like this:

New violations were recorded in January 2006, when Smith built a chain link fence in the conservation area without a permit:

In June 2006, both the state and county issued violation notices. The state also ordered Smith to “stop any further activity seaward” and recommended removing the fence, or risk $2,000-per-day fines. Smith resisted, claiming through his attorney, Bernard Bays, that “incidents that have occurred” that justify his need for a fence.

Meanwhile, naupaka was being planted within the fenced area, and watered:

In November 2006 the issue went to the state Board of Land and Natural Resources. Staff recommended a $2,200 fine, and removal of the fence within 30 days, with additional fines of $2,200 per day for non-compliance. Thus began a protracted administrative proceeding, with Bays given three deferrals. Smith further prolonged the process, requesting a contested case hearing to challenge DLNR's ruling.

Through it all, Smith claimed the fence and landscaping were on his property. But that tattle-tale surf debris line told the real story:

In November 2007, when Smith had achieved his desired objective of establishing a naupaka hedge on the public beach, he dropped his contested case, removed the fence and sent in $2,200 in payment of his fine. The vegetation remained.

Smith next moved to secure two TVR certificates for the houses. This might have caught the county's eye, given that both the SMA and CPR documents specified residential uses only for the units. The shift to a commercial use might even have triggered an SMA hearing, by a planning department more finely attuned to protecting coastal resources. But it didn't. 

Instead, the county accepted Smith's TVR application, though it lacked proof that he'd paid general excise and transient accommodation taxes or rented the property for 30 days annually prior to 2008. And while Smith swore in his affidavit that he began TVR use in 2004, the GE and TAT licenses he provided say the business began on May 25, 2005.

Despite the discrepancies, the county's web TVR log showed both certificates were approved in June 2009. And all subsequent renewals were approved.

Meanwhile, Smith has kept on pushing. His two permitted TVRs, which together sleep 16, are promoted as a package for "small business conferences," His guest house, which has no TVR permit, is openly advertised for rent. It is offered as part of the property's resort package, which can include a personal chef and extra maid service. All tucked away behind that thick hedge of naupaka that encroaches onto the public beach — a beach falsely advertised as Tunnels, no less.

Still, nothing is more ironic than this advertising gimmick: promising guests the beach the way it was —  before he planted it thick to create "beachfront luxury" for his paying customers.

Instead, what they get is this, a completely vegetated beach: