Thursday, January 29, 2015

Musings: Rat Pack

As the Kauai County Planning Commission considers a string of new bed and breakfast — or “home stay” — permits, it needs to remember this quote: “If it looks like a rat and smells like a rat, by golly, it must be a rat.”

By which is meant, if a property has been operating as an illegal transient vacation rental — and in some cases, the owners have even been cited and/or fined for that unpermitted use — it is still an illegal TVR, despite an attorney's attempts to disguise it as a B&B so the owners can get a permit to which they are not entitled.

Eddie and Joan Ben-Dor were the first to pull this trick for their Hanalei TVR, which they were forced to shut down because they'd never even bothered to apply for a TVR permit. Eddie ultimately was ordered to pay civil and criminal fines for his zoning violations.

But in true never-say-die fashion, the Ben-Dors came in for an after-the-fact permit to operate their Weke Road property as a B&B. County planners initially quite rightly denied their request. It then went to the planning commission, which in its usual fashion is waffling because it has a problem saying no, even to folks who are so obviously trying to game the system.

In the meantime, other scofflaws are now coming in for B&B/home stay use permits in an attempt to legitimize activities that should not be allowed because the county is no longer issuing TVR permits. Many of them are represented by attorney Jonathan Chun. As outlined in the Abuse Chronicles, he previously helped a number of landowners obtain TVR permits without the documentation required by law, which makes me wonder how he ever got approved as a per diem judge.

In denying the Ben-Dor application, county planner Dale Cua correctly found that a special management area (SMA) permit was required for the proposed use. He also referenced the General Plan, which calls for preserving Kauai's rural character by limiting resort development in residential neighborhoods. The GP also finds urban uses in the Hanalei and Wainiha-Haena area to be undesirable because of limited infrastructure and environmental factors.

Perhaps most importantly, the General Plan states that development standards for B&Bs and TVRs should consider a number of factors, including “the total number of vacation rentals in the neighborhood and the cumulative impacts on the neighborhood.”

Cua also found that Hanalei town is designated a residential community, “and introducing B&Bs as well as vacation rentals in this area would significantly change the character of the neighborhood and cause unwanted impacts” counter to a residential designation. Furthermore, the town lacks a sewage treatment system, so wastewater is treated by septic systems and cesspools.

Unfortunately, the County Council ignored those elements of the General Plan, as well as the SMA law, when it passed an ordinance that allowed a slew of landowners to get TVR permits for big houses that are the occupancy equivalent to several small hotels in Wainiha and Hanalei.

The Council compounded that injustice and rewarded bad behavior by allowing only those who had been operating illegally to apply for TVRs. And though many did not qualify, as evidenced in the Abuse Chronicles, they got “for life” permits that greatly increased the value of their properties, anyway.

But even that big permit give-away didn't resolve the problem. In his October 2014 power point presentation to the Council, Planning Director Mike Dahilig reported that landowners self-identified 320 properties as TVRs for real property tax purposes, even though they do not have TVR permits. But since they can't legally get TVR permits, many are now claiming to be B&Bs.

Among them are Greg Allen, one of the principles in the controversial HoKua Place housing project near Kapaa Middle School. He was cited for illegally operating his 6,000-square foot, seven-bedroom, sleeps-18 Anini Beach property as a TVR, but is now claiming in his VRBO ad that it's a B&B. Oh, come on!
What's more, from the reader comments left on his VRBO site, it sounds like it operates as an illegal multi-family rental, with people saying they rented “both levels” and “all the units.” The ad itself states:

Low Season Rate: $795/night 5 night minimum, up to 6 people, Main level, 3 Suites; $1500/night up to 12 people includes Main and Top levels, 6 Suites; Add the Studio Suite $250/night Ground level.

A previous ad also speaks to its use as a multi-family vacation rental, which is not allowed under the TVR law.

Some of those now seeking B&B use permits operate legit home stays, where the owner actually lives on site and the neighbors have no objections. Their applications should be considered.  But people who have been cited for illegally operating as a TVR should not even be in the running for a B&B use permit.

The county made a lot of mistakes with the TVR permitting process. Now that it has a chance for a “do-over” with B&Bs, it needs to make sure it doesn't blow it again. In other words, don't reward bad behavior by granting permits to scofflaws. 

And don't further compound problems by approving B&Bs in areas that are already heavily saturated by TVRs that never should have been allowed there in the first place, like Hanalei-to-Haena and North Shore agricultural lands.


Anonymous said...

Here we go again....

Anonymous said...

Agreed. TVR's have potential for abuse and disrupting neighborhoods, but the allowing people who live here to use a guest house for housing guests seems obvious and appropriate. The general plan recognizes that homestays are beneficial on many levels.
TVR has been a mess, but homestays can be good for residents and guests alike. Doesn't the TVR law exempt homestays?

Anonymous said...

Thanks for your diligent investigation and reporting on this problem... I'm not sure how you find the time but it's a huge problem and our County doesn't seem to be interested in enforcing the laws. TVR's have inflated home values and pushed residents out of Princeville, Hanalei & Haena. It's no longer for the kamaaina.

Anonymous said...

Joan - Can they approve of B&Bs and home stays in Conservation Land?!

Anonymous said...

Pretty slick. The Planning Commission is a good group of people. Community members who put in a ton of work for excruciatingly complicated proposals.
They are supposed to be a reflection of the average Joe on the street.
Hopefully, they will deny ALL B&Bs. Joan, you are spot on in your "rat is rat" comparison.
The Ben-Dor and Allen situations are good examples of scofflaws. The County finally is putting teeth into enforcement. The "800 units in Kapaa" Greg Allen character and Ben-Dor's have both been sticking a big middle finger at the County for a long time. How Greg Allen thinks anyone on Kauai or the LUC will look kindly on his planned Kapaa ghetto is unlikely, since he shows he does NOT obey laws and has been belligerent to the County regarding his giant Anini mini-hotel.
The Planning Commission has in it's POWER to deny ALL B&Bs. They will rely on County Attorney advice. Maybe the County Attorney can talk to the new State Attorney General for advice. Oahu is on the verge of blowing up on this TVR issue as well. It is destined for the courts.
On another issue....Da Hoos in his no mo' chimney law keeps bringing up "Maui does it" Well Gary I say F*ck Maui. Kauai over the decades has been proud of our Kauai ways. We can rely on other Counties for some knowledge, but to copy outright a BS Maui law that clearly is NOT being enforced, but CLEARLY says that any fireplace or Imu can be cited as illegal is so much Horsesh^t....Gawd Almighty, think I'll smoke a big fat doobie....I am sure Gary will agree that this smoke is "good" smoke. Stand downwind.

Anonymous said...

I wonder why there's always a shortage of rental housing. I guess it local renters don't pay as well as tourists.

Anonymous said...

The "shame" culture of Kauai of the good 'ole days is gone. Kauai is no longer a cohesive community. Can't totally blame the scofflaws, when "locals" accommodate their misdeeds.

Joan Conrow said...

5:09-- No, home stay, TVR and B&B uses are not allowed in the conservation zone.
However, the county has been accepting owners' property tax declarations of TVR uses in conservation zones, even though they aren't allowed.

Anonymous said...

Isn't that house in the flood zone?

Anonymous said...

If the county Is accepting property tax declarations and changing "homestead" to "commercial homestead" does that make the rental legal or does that make the county co-conspirators in an illegal activity by profiting from it?

Anonymous said...

Eddie did not build the house He paid others to build it They get a pass ? Have you ever wondered how many buildings would not be built IF the locals did not build them ? Yet you always blame the person writing the check As my Pops says. Responsibility cast a big shadow...... Hey wanna buy a Diamond ?

Anonymous said...

With apologies to Sly Stone, don't call me local, haole.

Anonymous said...

Wow! Talk about a pathetic group of whiners grumbling about how unfair life is.

I am sure you all appreciate the 100's of thousands of dollars that the property owners pay in property taxes.

Here is an idea, the tax payers could all go away, you entitled POS 'locals' could continue to not pay for your share of county services, then, when school funding plummets, you would have a legitimate excuse for your lack of cognitive skills and poor understanding of the English language, brah.

Most of you are hapa haole anyway, so your whining really boils down to petty jealousy, or self loathing... No surprise, I would probably hate myself too if I had sunk to the scuzzy depths that the majority of you have.

I do agree with you though Joan!!

The only people who should be able to rent rooms out are the multi-national hotel franchises! They deserve to have a monopoly on room rentals on the Garden Isle..... Just one question, how much do they pay you to rabble rouse the dumb locals into protecting their corporate profits???

What a Shill.

Anonymous said...

Here's an idea. Learn what property taxes pay for before insulting others. Also, it would help if you actually read Joan's blog. Then you'd know that the people who are pushing for control of tvrs on the north shore are neither local nor connected to the hotel industry. But nice racist assumptions on your part, mein fuhrer.

Anonymous said...

It is wrong to single out one individual owner for wanting what other home owners around him or her have. The way the TVR process was handled was inconsistent. The problem is bigger than just one home. Take a look at the largest company on Kauai...Kauai Vacation Rentals. Here is the owners mission statement. "It all began with a vision. A desire to share the magical island of Kauai with the world. And, founder, Lucy Kawaihalau, has dedicated her life to that goal through Kauai Vacation Rentals & Real Estate, Inc." Translation - I AM GETTING FILTHY RICH PIMPING HOMES ON KAUAI. She has 24 homes in Hanalei alone some of which operate illegally. Several have multiple owner occupied units which I will refrain from specifics as this problem is bigger than targeting a few home owners. Lucy's many rentals in Haena include homes built over ancient burial grounds. Perhaps if she wanted to set an example as the oldest and largest company on Kauai, she would consider the local families in Haena and Hanalei over the families in California, Oregon, Canada and "The World" as she stated. These are the people you are displacing under the pretense of being a lover of Kauai. Just another South Park Local...that's all. And this is just one company of many.

Take this website for example, The company is TBD or Travel By Design. They have over 300 homes advertised, not one single home showing a TVNC # or on island contact. They show just about every home on the beach in Haena, Hanalei, Anahola, Aliomanu, Kekaha, etc...most of which do not have a TVR. They have over 20 homes on VRBO as well, not one displaying a TVR. In a few they are advertising 5 bedroom homes that sleep 14 or 15 people. Having 14 people in a home meant for a family of 5 or 6 has to strain the resources of Kauai which may be an even bigger problem down the road then the TVR's permits. Sources I spoke with in Kauai GOV can not find any record of this company being on Kauai nor have they paid any GET or TAT taxes. Further investigation uncovered a substantial amount of accusation into shady business in Trip Advisor forums. My point being, why single out one individual owner on Anini Beach or elsewhere when right under our noses are companies capitalizing on loop holes in our laws. Makes me wonder if there is some nepotism within the system, perhaps even on the part of the blogger. I guess we will know if this response gets posted.