As the Kauai County Planning Commission prepares to consider a law regulating homestays, a number of red flags are being raised.
First, how can we confidently believe the planning department will properly issue and enforce homestay permits when it absolutely botched implementation of the vacation rental (TVR) law? Yeah, there's a different director, and hopefully the filing system is improved, but they've still got the same inspectors and other staff who screwed up.
And it's still the Carvalho Administration, which let the TVR shit slide until their noses were rubbed in it via the Abuse Chronicles and they couldn't ignore it any more. (Btw, I'm just using that as a figure of speech. Rubbing a dog's nose in its mess is not an effective or recommended method of house-training.)
Given the way illegal TVRs flourished in the wake of the TVR law, will a homestay ordinance similarly open the flood gates for yet another wave of largely unregulated visitor housing?
Second, shouldn't people who have been cited and/or fined for operating illegal TVRs be prohibited from applying for a homestay permit? This is crucial, because they're the first ones coming in, trying to beat the ordinance and pass off their illegal TVRs as homestays, B&Bs or whatever. Two of these after-the-fact permits are now being challenged in contested case proceedings. One involves Eddie Ben Dor, who was ordered to pay civil and criminal fines for running an unpermitted TVR in Hanalei. The other is a Wainiha property, Hale Hoomaha, that has been operating as an illegal multifamily TVR since 2004.
It really grates at my sense of justice to think that scofflaws will once again be rewarded — just like they were when the Council passed the TVR law, which made it possible only for those who had been operating illegally to apply for a permit. At the minimum, these post-citation permit applications should be on hold until the ordinance is approved.
Third, the proposed ordinance prohibits homestays in the agricultural district and requires them to be on an approved septic system. These are both good things. But why aren't TVRs subject to similar requirements? How can you allow a sleeps-14 TVR on the ocean to operate on a cesspool, but not a one-bedroom homestay? It's time to amend the TVR law to require permit holders to convert to a septic system prior to renewal, and get them out of the ag district. A homestay on a working farm, which could help a real farmer pay the mortgage, is far less objectionable than the mansions approved as TVRs on ag land.
On a positive note, the homestay ordinance proposes to use a quota system, based on census data, which seems to reflect concerns about the proliferation of TVRs in rural areas. It would allow one homestay per every 300 residences in districts that have a population of at least 1,000 residents. But you could drive a truck through the loophole: homestays approved with a use permit, rather than a zoning permit, are not counted toward the quota. And if the quota is already met, you can simply apply for a use permit.
The proposed ordinance also allows homestays only when the house is the owner's primary residence. The owner must be on-site, and no one else can act as their designee or representative. This is a good thing, though it could prove very difficult to enforce.
The ordinance separates homestays into two categories: minor — no more than two bedrooms — and major — no more than five bedrooms. Five bedrooms seem like a lot in the residential district, especially when separate parking spaces are required for each unit. All of a sudden you could have something very much like a boarding house or mini-resort among single-family homes.
And like the TVR law, the homestay ordinance requires no inspection to ensure the house is properly permitted or safe. It's also mute on whether such uses are allowed in the flood zone.
The draft homestay ordinance, which was slated for a public hearing at yesterday's planning commission, was deferred until April, which is another good thing, since it was flying in well under the radar.
And that leads to another question: why aren't planning staff reports and proposed ordinances posted on line, with the commission agenda, so that people can access them prior to meetings, and without having to drive into town or make a public records request? We know the county's computer system is capable of providing such a service, because it's doing it for the County Council.
The planning commission is the place where robust discussions are supposed to occur, before proposed ordinances are sent to the Council. But this can only happen if people are properly informed and given access to key county documents. It's time for the planning department and commission to improve transparency and accessibility by making more documents available on-line.