In
this case, it's Lorna Nishimitsu, who successfully appealed —
stretching the truth and threatening “a taking” in the process —
when the planning department quite properly denied her client's
application for a TVR certificate.
Her
client was William Morgan, a Realtor from Del Mar., Calif., who
developed two other TVRs in the same Wainiha neighborhood — Hale
Hina and Banana Beach, previously detailed in Abuse Chronicles 10 and
12, respectively. In June 2004, Morgan and three others bought the
property they later named Pulelehua for $1.47 million. He then
proceeded to flip it several times through a series of tax-free
property exchanges involving numerous tenants in common, the same
timeshare-type investment strategy he employed with the other two
properties.
When
Morgan initially bought the Pulelehua property, the structures were
not fully legit. In 1997, the county's engineering department had
issued a violation notice for illegal ground floor alterations and
additions to the main house and guest house. The files also state
“elevation certificate has not been submitted to date.”
Photos
published on the 2004 real estate listing document the continued
existence of those violations. This picture of the illegally enclosed
ground floor bedroom actually bore the caption “downstairs
storage:”
Another
photo shows the guest cottage's illegal full kitchen with stove:
In
October 2004, Morgan, through his agent, Matt Hunter, sought a
$71,000 building permit ostensibly to remove the illegal downstairs
enclosures and replace them with “breakaway walls.” The previous
month, prior to any alterations being done, architect Ron Agor had
helpfully provided an elevation certificate for “finished
construction.” The work got its final approval in July 2005.
On
Sept. 30, 2008, Morgan applied for a TVR certificate, claiming the
use started on April 1, 2006. Though the law required him to document
TVR use prior to March 2008 through a rental reservations log, proof
that general excise and transient accommodation taxes had been paid,
and a sworn affidavit, his application included none of this.
Instead, he submitted only copies of a GE and TAT license for an
unnamed business that was started April 1, 2005.
On
April 24, 2009, planning inspector Bambi Emayo sent Morgan a letter
informing him of several violations, including a full kitchen within
the guest house, constructing the kitchen without proper permits and
use of the guesthouse as an additional dwelling unit. Morgan was
ordered to immediately cease and desist all vacation rental
activities and use of the guest house as a dwelling unit. He was
directed to remove cabinets, cooking appliances and the electrical
and gas supplies to cooking appliances. He was also directed to
submit an “acceptable plan for compliance.”
On
May 7, Lorna Nishimitsu sent a letter to the planning department on
Morgan's behalf in which she submits a “plan for compliance” that
is essentially a denial that anything is wrong. In one section she
claims (emphasis added):
Having
expended approximately $100,000 to bring the guest house into
compliance with the Planning Department's directions so that the
registration of the single-family dwelling as a transient vacation
rental could proceed, our client would not have placed the coffee
maker and microwave oven within the guest house structure such that it
would result in denial of the nonconforming use certificate for the
dwelling (i.e., the main house.)
Curiously,
the building permit on record for the guest house renovations was
valued at just $28,000.
Lorna
also argued that only the main house needed to be in compliance to
get a TVR certificate, not the entire property. Under this reasoning,
you could be running an auto wrecking yard in a residential zone, but
never mind, so long as the house itself is in compliance.
On
May 12, Lorna submitted a formal appeal to the planning department.
In it, she makes at least two spurious claims. One is that Morgan had
shown “by a preponderance of the evidence” that the house was
being used as a TVR prior to March 2008, and he had “satisfied all
the requirements” of the TVR ordinance. In fact, as I noted
earlier, his application was missing nearly all of the requirement
documentation.
Another
is that Morgan had been unable to bring the cottage into compliance
because it was being occupied under a rental agreement issued by the
previous owner — an agreement that he could not terminate until its
term expired on March 1, 2008. In fact, the house was being rented
under a month-to-month agreement, one that had begun in March 2006, under Morgan's ownership. He ultimately gave the tenant a vacate notice effective
March 1, 2008, even though the woman was just about to give birth and
had nowhere else to go.
Lorna
then goes on to claim that denial of the TVR certificate “will
result in a substantial decrease in the value of the subject
property,” even though it wasn't a TVR when Morgan bought it. As a
result, Lorna claims, the “denial represents a taking without just
compensation” in violation of the state and U.S. constitutions.
That's
right. Not being given something you wanted, but never actually had —
and never even proved you were qualified to receive — amounts to “a
taking” in Lorna's world.
Worse,
the planning department caved and went along. In a June 26, 2009
letter, former planning director Ian Costa advised Lorna his office
had reviewed her appeal and decided that Morgan's application “will
now be recommended for approval before the Planning Commission.”
The
planning commission affixed its rubber stamp on July 14, 2009, with
the staff-recommended caveat that the TVR certificate “is not
evidence of compliance with any and all pertinent zoning and use
regulations.”
So
Morgan got his TVR certificate.
And though multi-family rentals are
illegal on the North Shore, Lorna continues to submit the renewal applications as if the owner is also entitled to rent out the cottage
that she previously claimed was not part of the original application:
“The
SFR is rented either independently of the guest house or with the
guest house. The guest house is not a stand along rental.”
The
internet ads, meanwhile, tell the real story, that this is an illegal
multi-family rental:
We
had two families for a total of 10 people and we had plenty of room
in the kitchen and living area. We also used the "tree house"
which was nice as well. The tree house is detached from the main
house and you can feel a little disconnected from the main house.
Internet ads also tell of visitors using the “tree tunnel” — a
dedicated beach access that Morgan has heavily landscaped to
discourage public use — to reach “Banana Beach” so
they can swim, body surf, boogie board and snorkel in waters that are
extremely dangerous and lacking any lifeguard:
We
were so excited to "discover" the "tunnel"
leading to the almost private beach where we spent almost all of our
time.
A beach that many residents no longer want to use, because it's now filled with the visitors from the three mini-resorts that Morgan developed and all the other TVRs along that stretch of sand.
Oh, and btw, do those look like "break -away" walls on the "downstairs storage" to you?
liars, stealers and cheaters! how shame!
ReplyDelete"Not being given something you wanted, but never actually had — and never even proved you were qualified to receive — amounts to “a taking” in Lorna's world."
ReplyDeleteThose words define not only the core of Abuse Chronicle 17, but the collective mindset of all those involved in the TVR abuse industry -- property owners, agents, realtors, lawyers, local contractors and government officials. And it is indeed an industry.
In their minds, what they want from Kaua'i is theirs for the taking. Laws and regulations are annoyances to be worked around; fines and punishment are part of the cost of doing business.
What is being chronicled on this blog is nothing less than the chronic corruption that has resulted from the de facto collusion of business and government.
Send them to jail! Shame on Lorna Nishimitsu. Shame on Morgan. Shame on Ron Agor. Shame on Ian Costa. TAX Evaders! Fraudsters! Putting people in danger. Polluting the North Shore with inadequate septic tanks.
ReplyDeleteThere should be multiple checks to ensure compliance & not circumventing of the laws and rules.
Save our beaches for the people!
How do Lorna, Jonathan Chun, Walton Hong etc sleep at night? Is the $ worth selling out the island for sleaze bags? Have another drink Lorna. You won't feel a thing.
ReplyDeleteHow about reporting this to the Hawaii BAR? If this is the type of crap we can expect from 'attornerys', they should be disbarred. Bernard, stop singing and starting acting. Or, are you hands too dirty? It's very interesting, Bernard, how silent you've been through this series. These are air-tight, in-your-face violations. Many of these happened on your watch by your lackies, I mean managers. Do something or move out of the way and fade into the sunset.
ReplyDeleteso if I hire an attorney and threaten a lawsuit - I can get whatever I want...
ReplyDeletegood to know.
You have to hire the 'right' attorney, they probably won't hand you the list at the planning department but ask anyway.
ReplyDeleteA "taking" is a legitimate claim when govt action causes the lack of ANY use of the property. It does NOT mean when the value decreases because of govt action. I.E., govt action that takes a house for a road is a taking by imminent domain and deserves fair compensation. A neighbor's property value effected by more road noise from this road is not a taking because there is still use of the property.
ReplyDeleteWhich house had the long term renter? The cottage with the illegal kitchen or the main house?
ReplyDeleteI tried to told you all that all of these scum bag GOBAGs are terrorists in a multinational criminal organization on Kauai.
ReplyDeleteJoan, would you put on your list to investigate:
ReplyDeleteGreg Smith's "Ag vacation rental" in Wailua Rise, Koumoo Road?
Greg lives in Arkansas, has a web site for his "TVR" that he claims as Ag land.
Ask A. Bandmann, who is a cop, what it's all about, too. He guards Greg's property like his life depends on it.
Smith is from Little Rock, Arkansas. Being a good ole boy himself, has no problem bragging about who he knows on Kauai--from inspectors, county workers to cops, to firefighters.
Been going on since I can remember--maybe 15 years now. I'm tired of watching the years of these county workers, inspectors and cops cozing up to this Mainlander who seems to do as he pleases...line those pockets.
Smith's got advertisements on YouTube with spots about the "Smith Hale" Ranch.
ReplyDeleteYeah, I remember when Smith convinced a woman to put her 2 horses in one of the pastures so the land could pass as Ag land--that's exactly what he said, heard it with my own ears.
Which is it Ag land or TRV? Smith's making out like a bandit @ $1,500/week. Check out web sites.
Here's a listing for the Smith Hale Ranch TVR: http://www.squidoo.com/KauaiVacationRentalByOwner
ReplyDeleteAnd here's the youtube listing:
ReplyDeletehttp://www.youtube.com/watch?feature=player_embedded&v=VFjIHw-WU38
i watched the council meeting and heard Alfred Castillo and Maunakea Trask---what are they doing? Seems like they want to stop any action that will look into the abuses that have occurred. I just don't understand what their motives are, so with Ako! There must be people they need to protect---or something close to that. It's just outrageous that they are not attempting to assist the council to get things going---don't they understand that wrongdoings must be stopped. The County of Kauai will be paying out a lot of $ if people get hurt or lose their lives due to floods and huge waves! What's with Castillo, what kind of county attorney is he--seems like he isn't qualified for the job!!!!!!
ReplyDelete"There must be people they need to protect" - yup their friends, it just sucks when they try to use the law to protect the guilty.
ReplyDeleteWhy attack the private attorney here? Looks like Lorna was just doing her duty to zealously represent the client through this mess.
ReplyDeleteThe real culprit yet again, would be whatever deputy county attorney, most likely Mike Dahilig, who decided that the planning department should cave-in to Lorna's demand letter. Like Hoosier said...its either malfeasance or misfeasance - but with all this monkeybusiness...I'm leaning toward the former.
How could this ever have been considered a taking? There was never complete loss of use.
ReplyDeleteWhat kind of lawyer is this guy? Hope his next employer has or will read all about his exemplary service his has done for this county.
Or Ian Costa just made the decision on his own.
ReplyDeleteJetplanes and the internet are to blame. On another topic, notice how nice the weather's been? http://raisingislands.blogspot.com/2013/04/another-study-predicts-drier-future-for.html
ReplyDeleteYou think it's bad here? Watch this:
ReplyDeletehttp://www.huffingtonpost.com/2013/05/22/too-big-to-jail-obama-justice_n_3322824.html
Elizabeth Warren is a hero! A smart politician who is going after the really big crooks on Wall Street.
as far as I know...Smith Hale has been sold to the Hindu Monestary for some time now...
ReplyDeleteAnonymous said...
ReplyDeleteas far as I know...Smith Hale has been sold to the Hindu Monestary for some time now...
May 23, 2013 at 8:14 AM
Last I heard, Smith is leasing the land to the monks.
http://money.cnn.com/2013/05/21/technology/innovation/airbnb-illegal-new-york/
ReplyDeleteIs airbnb illegal on Kauai? - no law against it yet it causes the number of vacation rentals to exceed the number recommended in the comprehensive plan...
These abuse chronicles are very important as they are starting to get the county's attention. Great work to all !
ReplyDeleteI am a 20 year resident on Kauai and agree that this
Unenforced TVR system is truly a pathetic example of our local government at its WORST !. So to help our elected official do their job here are a few easy steps that will eliminate illegal TVR's.
1. Hire 3 summer interns to identify all the vacation rentals on Kauai. Generally they are numerous listings under the local realtors , VRBO and rental agencies. Simply cross reference them to the existing permits and contact the agents and owners and issue cease and desist orders via mail and post them on the properties. The Real estate agents are licensed and can't aid and assist these violators or risk loosing their license.
2. To make sure these "agents" are providing all the nessesary information regarding their activity the county should review the rental booking logs and commissions which will provide all the info one needs to solve the problem.
While the "musings" makes for interesting reading about individual properties the solution to the problem rests with the people who benefit financially by assisting home owners in breaking the law. Put them on notice along with the individual owners and this ongoing illegal activity will come to a pretty quick stop.
So... it's disgraceful that visitors are using a beach that is treacherous and has no lifeguard, but it's also the case that residents don't want to use the beach anymore because it's used by visitors. Really... there are legitimate concerns about improperly granted NCU Certificates, but why pretend that beaches without lifeguards are a problem? Why suggest that a tsunami would create a liability in a TVR but not pose a grave threat to everyone else?
ReplyDelete