Musings: Not Rocket Science

Though there's been quite a bit of hysteria about the Kauai County planning department's crackdown on illegal visitor accommodations, the numbers tell the real story.

The department began by reviewing records in the county's Real Property Division, where it identified approximately 320 properties that were assessed and paying taxes for a self-declared transient accommodation, without having the proper permits.

The planning department’s enforcement division then investigated the sites to determine if they were in fact operating without the required zoning permits. As of last Thursday, it had completed its investigation into approximately 160 of these properties, and issued approximately 93 “cease and desist orders.”

According to an email from Planning Director Mike Dahilig:

The vast majority of these operations are illegal TVRs. The Department is reviewing each case to determine the specific type of operation, but of the 93 cease and desist orders, a handful of these operations (we anticipate approximately 10 to 15) are homestays where the actual owner occupies the dwelling.

Besides the homestay/bed and breakfast operations, the Department is seeing many TVR operators (owners not living within the dwellings) attempting to apply under the CZO’s current definition of Homestay. Because of a loophole within the CZO’s definition of Homestays, we do have to process these applications; however, the Department is taking a firm stance against these types of applications before the Commission.

So the reality is exactly as suspected: Some 90% of the cease and desist orders have been properly issued to illegal TVR owners who can no longer get permits, but are trying to game the system.

Do they deserve mercy? Pity? Special treatment? A blanket grandfathering of each and every operation? Should they be allowed to bring down the legitimate homestay/B&B operations by slipping in on their coattails?

After my last two blog posts on the the issue, where I identified a number of questionable operations in Kilauea, I got some emails from owners who wanted to meet so I could explain the law to them, which is definitely not my kuleana. Others wanted to plead their case and have me visit their operations.

One of them was Hilary Ferris-Chandler, who operates the Kauai Retreat Center, which I characterized as a hotel because it has six bedrooms, each with “private outside keyed entrances.” It's on an ag CPR in Waipake, next to the ginger/tumeric farm operated by Hilary's brother, Ben Ferris.

Though it is listed on BedandBreakfast.com, it began life as an unpermitted TVR. Or as Hilary described it:

My father bought the secluded property and then built the house in year 2000 because his wife was an artist who wanted to have art groups accommodated for on the north shore and there was no art retreat accommodations around at that time.

I am the manager/owner and directly went to the planning commission for a permit for this use in 2001. I was told by Ian Costa the then planning director that there was no permit for this use available at that time and people “just did it”.  So we built specifically for this purpose and since it is very secluded with only family as neighbor and not bothering anybody we have offered it as a “retreat center” to many groups seeking seclusion with a venue to have group activities.

When the “grandfathering” permit for TVR became available, we were among the very first to apply. Our application was deemed complete. Then the planning commission added another condition that on Ag land 75% of CPR owners needed to sign.

They were unable to get 75 percent of their co-owners to sign, and so were unable to secure a TVR use permit. While appealing that decision in court, they have continued to operate.

Hilary then went on to say:

I believe that if our house was under ANY other use it would impact … the neighborhood far more. Again, please know that we try our utmost to be extremely sensitive PONO neighbors and believe that we do not bother anyone at all.

In my reply to her, I wrote:

I am glad to hear your story. But still, it troubles me, because you were essentially told you are not eligible for a TVR, since you couldn't get 75% of your CPR to agree (for whatever reason) but you have continued to operate it, knowing it does not have a permit, and are now treating it like a homestay/B&B, which it isn't, because you aren't there living under the same roof.

It does seem like you got bad advice from Ian Costa, who certainly should have known better, and I think it's great that your brother is farming. But it seems there is no denying that it is an unpermitted TVR on ag land. And given that it has six bedrooms, all with private outside keyed entrances, it does seem to function as a small hotel.

I'm not sure how all this will ultimately be resolved, but certainly you can see the problems that would start to arise, and the impact on agricultural land values, if everyone were allowed to open their own 6-bedroom resort-type accommodation.

I'd be interested to hear your thoughts on how you think this type of activity could be nipped in the bud in a fair way. Or do you think that there should be no restrictions on this kind of use?

Though she thanked me for my reply and “mana’o,” she did not answer my questions.

And this is where Kauai County now stands. It has 455 approved and active TVR certificates, hundreds of illegal TVRs and perhaps a few dozen unlicensed homestays/B&Bs.

According to Mike:

The Department currently has 14 accepted applications for homestay operations. Of the 14, 10 are owner-occupied and four are not. There are at least 20 more (a number that grows almost daily) that are in pre-application review with the Department. Of these, no applications have been officially accepted; however, the majority of them, it appears, are not owner-occupied operations. The Department is also receiving daily phone calls requesting information regarding the Use Permit process for homestays. The Department can only resolve this matter upon the submittal of an application, and pre-consultation with the applicant.

The department's response has been to submit an ordinance, approved by the Planning Commission and now before the County Council, that defines homestay/B&B as having a live-in homeowner. Mike writes:

This is why the proposed definition before the County Council is so important; it will essentially close the door on non-owner occupied transient accommodations from applying for homestay use permits.

Councilman Ross Kagawa has predicted that passing an ordinance will be a long, painful process. Of course, the longer it's dragged out, the more applications get in the hopper, and the problem just mushrooms.

If the Council just accepts that simple definition — a live-in homeowner — shouldn't it be pretty easy to separate out the real homestays/B&Bs from the TVRs that are masquerading as such?

And then wouldn't it be easy to say no to all those who don't meet the definition, regardless of their pleas and tears?