Musings: Say No

As the Kauai County Council takes up the contentious homestay/B&B issue this afternoon, the planning commission has already denied one application.

The commission voted last week to reject an application for a Hanalei B&B submitted by Eddie and Joan Ben-Dor. As I previously reported, the Ben-Dors were the first to try and pass off their illegal Transient Vacation Rental (TVR) as a B&B after it was shut down for operating without a permit. Ben-Dor ultimately was ordered to pay civil and criminal fines for his zoning violation.

The planning department initially — and quite properly — rejected his TVR-cum-B&B application. He then appealed to the commission, which also turned him down since he wouldn't be living on-site. That's because — doh! — it's a TVR, not a B&B or homestay.

It's that requirement — the owner living on-site, and declaring the homeowner's exemption — that distinguishes a B&B/homestay from a vacation rental under the ordinance that was approved by the commission, and is now before the Council.

Though the commission did tell Ben-Dor he could come back in six months, an observer noted:

at least planning commission has learned a new word, one hardly ever even whispered there, one every little kid needs to learn: NO.

But what about the Council? Will it be able to say “NO” when all the illegal TVR owners and B&B operators come before them, begging for a quick permit, a loosening of the language in the ordinance, by virtue of “economic hardship?”

As in, if they aren't allowed to offer visitor accommodations, they might have to — gasp — leave the island. You know, like all the kanaka who already moved to Las Vegas because they couldn't afford real estate prices that have been driven up, in part, by the still largely uncontrolled business of house-based tourist rentals.

If the county is going to start using economic hardship as a basis for zoning decisions and granting special use permits, it had better prepared for dealing with a can full of writhing worms.

And what about the question of homestays/B&Bs on ag land? The ordinance says nothing, but since that's where many of these operations can be found, it's a pertinent issue. It's especially relevant because some of these units began life as a farm building, or shed, and have been illegally converted into dwelling units.

Oh, and let's not forget how former Councilman Tim Bynum promised, when pushing through the ordinance allowing TVRs on ag land, that they would be the last visitor accommodations allowed in the ag district. Yet here we are....

Right now, the ordinance says the visitor(s) must share a house with the homeowner or occupy “a guest house.” As in singular, one.

So what about Hale Kua, which is owned by Bill and Cathy Cowern? It advertises five “self-catering” accommodations, all private and completely self-contained, each with occupancy for four, except one, which can take six guests. In other words, four guest houses, one of which is split into two. Isn't that a multi-family dwelling? Those were not allowed under the TVR ordinance, so will they be permitted under the B&B/homestay bill?

I've got nothing against the Cowerns, but he already managed to get the Council to pass an ordinance exempting tree farms from property taxes until they're cut down. How many more subsidies should one person get? 

And if you can't make it farming without multiple TVRs/homestays/B&Bs, is that actually taking us any closer to the “sustainable ag” that so many idealize?

Councilwoman JoAnn Yukimura has noted several times that she has a problem with allowing just 10 homestay/B&B applications per year, as the ordinance proposes. But before the Council starts meddling with that number it needs to consider how expanding this use will impact the longterm rental market, which is already tight, and whether the department can process more than 10 per year without resorting to the mass rubber-stamping of applications that allowed so many unqualified TVRs to get lifetime permits.

The Council also needs to remember that homestays/B&Bs are a special use — a perk given to landowners. No one is entitled to such a permit, and the county is under no obligation to hand them out enmasse or quickly. Folks still have the option of using their dwelling units (provided they're legal) for longterm rentals, so they can continue to derive income while their permits are processed.

And who's to say 10 isn't a reasonable number? If the planning department has issued just 93 cease and desist orders, and estimates just 10-15 are bonafide homestays, then 10 per year sounds like enough.

Though some folks have made me out to be anti-homestays, I'm not. I think they're appropriate in limited numbers in residential neighborhoods. But they need to be regulated, and the ordinance before the Council is a good place to start.

I realize it's hard for the Council to stand firm when they've got all those folks a-cryin' and a-whinin' and a-beggin' them to open the door wider than the ordinance allows.

But sometimes, like the planning commission, they just have to say no.