Thursday, March 17, 2016

Musings: Mis-Match

Ladies and gentleman!

In this corner, we have reigning champion Mauna Kea Trask, our suave County Attorney, representing the Kauai planning director in his recommendation to DENY a permit to an illegal TVR now trying to pass itself off as a home business cum homestay. Trask is joined by intervenors Caren Diamond and Barbara Robeson, still fighting to keep the North Shore residential.

And in this corner we have challenger Jonathan Chun, the fidgety former deputy county attorney and state Senator who now specializes in helping people turn their houses into money-making machines. He's representing scofflaws Kirby Guyer and Toby Searles in their bid to LEGALIZE their long illegal visitor accommodation in Wainiha.

Showing amazing fortitude, and deep pockets, Guyer-Searles remain in the match some 19 months after submitting an application for a use permit. They're still hoping to recover from the body blow that planning delivered to the idea of legitimizing an illegal TVR that had already been cited for zoning infractions.

Will a hearings officer be more sympathetic to the Guyer-Searles-Chun plea that a five-bedroom, six-bath structure — built in 2005 specifically for the purpose of offering visitor accommodations, but never permitted — should now be legitimized as a home business? (Even though the Planning Commission already decided on April 27, 2015 that a homestay is not a home business.) Or barring that, a bed and breakfast/homestay?

Will the planning department's attempt to reign in illegal visitor operations, and deny permits to folks who are now trying to pass off their illegal TVRs as B&Bs, be upheld? Or will greed, dishonesty, a total disregard for the law and the continued resortification of rural neighborhoods prevail?

It's too early to call, with proceedings continuing tomorrow and again on March 28. But all contenders weathered the punishing first-day bout of hot air, hard chairs and flaring tempers, with one spectator calling Barbara a “fucking haole” and the contested case hearings officer issuing numerous calls for order and decorum.

Chun planned to call no fewer than 25 witnesses. Amusingly, some were people who got dinged by the county for operating illegal B&Bs, but were nonetheless supposed to testify “as to how a proper B&B operation is conducted.” However, the hearings officer disqualified anyone with an appeal before the commission.

The challengers have already tried to throw the fight, with their supporters contacting the intervenors and telling them, in a heavy-handed way, to drop it. But the intervenors aren't about to bow out, knowing that if the Guyer-Searles permit is approved it will be followed by a flood of illegal TVRs trying to get homestay permits.

Here's what's uncontested: Guyer-Searles began operating a series of unpermitted B&Bs in rented North Shore properties in 1981. They then built Hale Ho'o Maha, a 3,568 square-foot duplex — a main house and ADU, connected by a covered walkway — in Wainiha. They've been renting its four suites to visitors since at least 2005, without a permit.

In July 2014, the planning department cited Guyer for establishing TVRs in four separate units without the proper TVR permits, and for using a single family residence as four separate rental units without the proper zoning permits. Guyer was ordered to cease and desist TVR operations, and demolish any unpermitted structures, or face hefty fines.

In August 2014, Chun submitted an application on behalf of Guyer-Searles, seeking a use permit to operate a homestay. Planning Director Mike Dahilig said the application “may be considered for approval,” with final recommendation dependent on a Jan. 13, 2015 public hearing and presentation of the full record. At that hearing, Caren and Barbara filed a petition to intervene, which the commission granted, and the contested case hearing began this last Tuesday.

In his prehearing documents, Trask notes, “The facts are not entirely the same as those presented by the petitioners in their application. The County is not confident in the credibility of the Petitioners.”

The intervenors were more direct (emphasis in original):

Application is misleading or disingenuous and attempts to portray the proposal as far less significant a development than it actually is. The application erroneously states… “The Applicants will reside within the attached ADU on the Subject Property and the main house will be rented to only one family or group.” This conflicts with testimony given by the applicants as well as all the advertisements that clearly state they rent four (4) individual Suites with four (4) individual baths, the Suites are individually rented as Papaya Suite, Guava Suite, Pineapple Suite and Mango Suite. It also conflicts with the Calendar for Hale Ho’o Maha which shows separate units available for individual rental.

They submitted a handy dandy document that shows the discrepancies between the application and the facts.

The county is taking the position that it's illegal for the couple to live in the ADU and rent out the main house, since the homestay rules require the hosts to reside in the same house as their guests. Chun said in that case, the couple will remove the kitchen in the ADU, thus making it all one structure.

The intervenors further noted:

This application comes 10 years after operating without the required permits. The Special Management Area (SMA) Rules and Regulations require an SMA permit for Development, only exempting Single Family Residences; an SMA permit was not applied for previous to the applicants using their property to establish a business which has increased the intensity of use and cumulative impacts within the project and project area.

The County also argues that the house, which “is two bedrooms short of being considered a hotel with an attached ADU,” is “grossly oversized to be considered as anything like a single family residential structure,” fails to provide adequate parking; the structure is in violation of flood plain management; its septic system is undersized and it does not have county trash pick up.

Chun claims there is adequate parking and septic, the structure isn't in the tsunami zone and it's compatible with surrounding uses, seeing as how there are “only about eight registered TVRs within the same tax map plat; in the neighboring tax map plat, there are only seven registered TVRs.”

The intervenors note there are also numerous illegal TVRs in the neighborhood.

Ultimately, it will be up to the hearings officer to decide who is telling the truth, though his ruling is not binding on the planning commission. 

While it's impossible to know whether Guyer-Searles will get their after-the-fact permit, this action puts other operators on notice that it will cost serious time and money if they now try to pass off their illegal TVRs as homestays.


Anonymous said...

Good to see the county enforcing the laws finally.

Anonymous said...

Yay Mauna Kea!!!

Anonymous said...

the amount of lying was ridiculous. swearing at Barbara was a haole. My fave moment was M.T. calling the wannabees on the PASH law when the non kumu is just sharing and not teaching. Most were newbies cleaning the houses. The elevator was hilarious. hats off to hearings officer who wasn't falling for any of it

Anonymous said...

Its about time the county crack down on all these illegals....hope they dont give up the fight!!!

Anonymous said...

Keep up the fight against illegal tvr bnb and homestays especially on ag land!

Anonymous said...

So glad the County is putting up a fight and not allowing more and more transient uses in residential areas, especially ones that have been operating illegally for years without even bothering to get the proper permits. Our residential areas are completely overburdened by transient accommodation uses that belong in the VDA. Thank you County for taking a stance against these illegal transient uses!

Anonymous said...

Come on Mr. Chun.
This hotel IS in the tsunami zone.

Anonymous said...

I wish Diamond and Robeson had been as zealous in 2008' I guess realtors are more intimidating and have deeper pockets. Hard to praise the torturind the elderly. I was there, no one called Barbara a fucking hole.

Joan Conrow said...

Diamond and Robeson have been active in this issue since before 2008. And just because you didn't hear the slur didn't mean it wasn't made. Barbara doesn't lie.

Anonymous said...

Bring back the Brownies Diamond...

Anonymous said...

Barbara is capable of not hearing what was actually said. Her back was to the speaker. I was in the same row when the comment was made and I assure you that was not what was said.

Joan Conrow said...

Barbara turned around and saw and heard the guy say it to her directly. It was not said behind her back; hence, your assurances mean nothing.

Anonymous said...

Do you really receive such pleasure in seeing others potentially lose their source of income and home where they've been hosting grateful guests who contribute to the economy? Would you rather the money go to the big resorts than to families who have made their lives here on Kauai for over 3 decades? To my understanding, Kirby & Toby have been paying their dues for a permit as a legitimate bed and breakfast for years. I find that this kind of scolding and energy put into taking down the "little guys" slightly disturbing for our community.

Anonymous said...

So our community is suppose to sacrifice for Toby and Kirby?
We all knew that their so called B n B hotel was ILLEGAL!
It's no surprise they say they didn't.

Anonymous said...

Why would anyone support having a small hotel in a residential area? Seems like the wrong place for that kind of business.and I suspect paying taxes on the money they earned does not entitle them. Keep commercial uses in places zoned for it.

Anonymous said...

Of course she takes pleasure in ruining peoples lives. After you have done it for so long you become desensitized to it. She never actually has the pleasure of knowing who gets screwed over, at least not on a personal level. Look, we all know laws are made up on whims and ideas conjured up and often times when people are sitting around drinking. At the forefront of every law, someone is looking to either capitalize or project a personal vendetta. You can't stop the production of 5 million dollar homes along the Prince Golf Course nor can you block the Coco Palms. So Joan targets individuals making a living, supporting kids in college and doing their best to comply. Her facts are often inaccurate but her targets do not fight back. They know she will move on to her next article and their name will quickly disappear from her pages. They could sue her but she is most likely a "Broke Ass Bitch". I can't imagine Joan has a conscious. I personally would be torn apart being labeled a "RAT". Joan rides the coatails of the law and because it is law, she feels just in her actions. Laws are not always correct. I say live and let live Joan...

Joan Conrow said...

11:21 -- Let me guess: You did or do run an illegal TVR/home stay. Perhaps the reason you can't imagine I have a conscience is because you don't, which is why you're making all sorts of excuses for not following the law. If people's lives are ruined it's from their own bad choices, not my reporting. What a crybaby! Come on! Take some responsibility for your actions -- and your words. I do.

Joan Conrow said...

Dear Anonymous who left three long comments,

No, I'm not going to print them. But it has nothing to do with my integrity, and everything to do with your lack of it. I'm not going to let someone lecture me about my writing and take nasty pot shots at Mauna Kea under cover of anonymity. I really don't care if Kirby and Toby dance hula and restore cars. All of that is irrelevant to the facts at hand: they've been operating illegally for years and now that they're trying to get legal, they're running into resistance. You make comparisons to HCR while failing to understand HCR went through the permit process and did everything that was required of a legit operation. If Kirby and Toby had done the same they wouldn't be in this position now.

I agree that the county has handled all this horribly -- until Mauna Kea stepped up to the plate -- and that mostly mainlanders have profited. So were you out there fighting against the TVR laws when they were passed?

Anonymous said...

My identity is not special in any way, it is truly unimportant to my prespective. Your writing is not accurate in the facts and it is not conscious because it does not take responsibility for its possible errors and certainly the damage your opinions could cause.

B&B’s are undefined in this county and thus TO THIS DAY require no permit. A dog is not a cat…and it won’t become a cat either.

It is undemocratic to “cease and desist” something that is undefined…and also to ruin the lives of long term residents doing business above board with the careless stroke of a pen.

The fact that you even know a personal local history about the owners is a testament to the fact that they are not a TVR by any figment of imagination. If they were you wouldn't know them by name nor would they likely HAVE a local history in the community.

Hale Ho’omaha is one of 6 traditional heritage B&B’s on Kauai offering an experience of heartful human connection and the perpetuation of Hawaiian culture albeit "non kanaka maoli". It has maintained visibility and payed taxes with no word from the county for 3 decades. Our laws are set on precident...30 years of interacting with the county, this is hardly an illegal operation.

Glad we are in agreement on the county’s mishandling…for starters…its definitions are simply absent! So you are accused of breaking a law that is not yet made and you have to hire and lawyer and get dragged through the mud because you didn't know they were going to make it! You are 75yrs old and this process is very hard on your health and you will be out of a home and are 75 and you are still working and paying more taxes than most 35 yrs olds. Oh and by the way the lawyer of the opposition tells you that your cultural contribution for the last 30 years isn't important because you are not "kanaka maoli"! Mauna Kea is bringing his passion for sovereignty to the wrong arena.

I saw zero wisdom in creating vacation rental permits, they have a heavy negative impact on both those who live here and those who visit. What feasibility studies were done to decide if this was a viable course for our island! It's not the even the impression we want to give people who visit here...its empty! What aloha is experienced in some mainland owned building with Costco groceries and a Kauai guide book in your hand while you are driving all over the road!!

Anonymous said...

i guess it is easy for those that don't know what they are talking about to spew bs that suits their outcome. b&b use has always needed a use permit, no mystery there except why businesses that were set up failed to follow the law and apply for a use permit before operating.

And the cease and desist letters were sent out to people operating quasi vacation rentals without permits. Not one company used the word HOMESTAY before . Call it what you will, transient uses belong in the visitor destination area.

Joan Conrow said...

11:28 pm It seems that you are the one whose "writing is not accurate in the facts and it is not conscious because it does not take responsibility for its possible errors," starting with this claim: "B&B’s are undefined in this county and thus TO THIS DAY require no permit."

They've very clearly defined, and they have always required a use permit.

Anonymous said...

Hula is beautiful, and dancing gives us a happy feeling, it doesn't entitle us to break laws and do business in residential areas. Sharing is caring, sharing hula with your paying customers should make everything ok.

Anonymous said...

Unfortunately the one spinning their views without benefit of getting the facts straight is yourself. You can't call it what you will THAT is the problem! The definitions set up by the county are classifications for a reason. It's a dog, a cat or a bird...dogs do not fly, period.

B&B's are defined in other counties across our island but not here...look it up in the county definitions. B&B's are ambiguously lumped under alternative accommodations and the definition was tabled to be defined at another future date.

It was the county who did not require permits for B&B's even though several applicants attempted to apply over the decades and the VDA was defined AFTER these businesses were long established and because it was TVR's that needed to be in the VDA...B&B's did not need to comply. Different species, hello! Not only bad form...unequal targeted enforcement!

The handful of traditional B&B's who I am pointing to all have been in operation 15-30yrs and should be preserved. I agree that a vacation rental is not a B&B. There is no either advertize, serve breakfast, pay taxes and live on property or you do not and by the way B&B's are NOT homestays...look that up too. Even in Wikipedia whose's definitions are not necessarily textbook...the three animals..vacation rentals, homestays and B&B's are different breeds.

B&B's contributing more to the culture because of the relationship cultivated between the patron and the host. A resident host would share safety, folklore, news, culture and make suggestions. Who does the vacation rental guest talk to? A B&B in the islands is much different experience from a hotel, vacation rental, homestay or camping on the beach. B&B's have been in business all over the world as it is a form or style of travel some people prefer. They want an experience that includes relating to those who live where they are visiting..

Joan Conrow said...

If permits were never needed, there is no definition and the county told people they never needed permits, how do you explain the fact that the county issued permits to nine B&Bs between 1988 and 2004?

Also, the VDA has been around since 1982, so it predated all these businesses.

We understand you're a big supporter of B&Bs. But that doesn't mean you get to make stuff up to support your point of view.

Anonymous said...

The VDA(visitor destination areas), were mandated by State law, and required the counties to identify the areas visitor accommodations were allowed in . It was a way of having the islands open for more tourism and protect the traditional lifestyle of the residents.
The only one who benefits from having 10 new people in a house everyday is the proprietor.It's really not that much different from a vacation rental or hotel.

Anonymous said...

TO your questions Joan about the 12 use permits issued. These permits were not required at the time. They were not specific to B&B's they were general alternative use permits and while the owners of Hale Ho'omaha were conducting business for over 32 years the building they had built in Wainiha which was completely approved and permitted was not built by 2004. To my research the last general permit issued in 2000 and even then no one had a crystal ball telling them building after that time would deny a B&B. As you remember the big push for TVR's came in around 2008 and at THIS time the B&B's and other alternative home use owners were told they were NOT TVR's and that THEIR application process had not yet been defined.
I can understand after being exposed to a neighbourhood filled with vacation rentals that this is not a good thing for surrounding residents other than the few labor job it creates but the fact remains it was the county's responsibility to create specific processes for each classification and not shut down resident businesses after the fact by lumping them into a group that was now considered a detriment.
You are supporting a general idea with out specific fasts. These specific details are affecting long term residents, not criminals. In the case of Hale Ho'omaha we are talking about kupuna.
The VDA did not predate the business these applicants established albeit it the discussions held community by community to decide what was wanted were taking place island wide for a very long time.
Perhaps 1982 would have been the appropriate time for the county to create a specific process for B&B's and other types of uses and contact all of the known businesses or those intending on staying in business to alert them that there would be a needed process to protect the community in this regard along with their business.

Even 2004 would have been as you as suggesting that was the end date ( my research says 2000). The terms could have been mitigated and in this instance the above applicants may have made a different choice. Why is it okay for the county to accept 30 years of taxes for something and then say we have decided you are a different animal and we are going to fine you. This is not democractic way of operating our county.

To the comment that no one benefits from a B&B which has guests coming and going besides the owners and not distinguishing this from a vacation rental...big difference in the every day experience AND in the over all affect on housing of all types. Ask those who are neighbours as the ordinance defines them ( within 300ft), ask their long returning patrons who become a source of anticipated tax for the county and local employees and vendors. In these groups we have only supporters

The complainants in this case are not neighbours but activists who have an ax to grind and by the guidelines that are already set up defining 'intervenors" they do not qualify ( within 300ft and with a specific negative impact). Seems the county turns a blind eye at will regardless of what is regulated and what is not. Any bright attorney who is truly wanting to sort out the mess would help to set a fair and grounded guideline and not sacrifice principle at the expense of a few. Go after the real problem...the vacation rentals...rescind permits to non residents.

The VDA is a good idea and yet it needs to allow for grandfathering to protect small businesses whose neighbours are content to have them there.

Joan Conrow said...

Please stop talking about "facts" when you obviously don't have any, starting with this "TO your questions Joan about the 12 use permits issued. These permits were not required at the time. They were not specific to B&B's they were general alternative use permits."

No, they were use permits issued specifically to run a B&B. You are wasting my time with your idiocy. Nuff already.

Anonymous said...

Anonymous 11:28

Well said however if the next few long winded comments are yours as well, then you are as misinformed as Joan. To demonstrate how inept the county is, here is an email sent out by Mike Lauretta to legal TVR's that work very hard to comply, us included. Every year they change the rules but do not tell you. Have you ever tried navigating the bi-laws online to learn what is new. Then MR. Lauretta treats you like a criminal and refers to you and your attorney using racist comments because you"No from Here". In any other part of our country, he would be fired or at a minimum, disciplined for this email below. Not withstanding, he sent this to groups of 25 owners, agencies or lawyers at a time and did not blind copy anyone. What ever happened to confidentiality. These are the rants of someone who clearly has venom and zero tact.

Here is his email.

Subject: 2016 TVR Renewal

For the past several years, the Department has strongly encouraged the submittal of complete TVR renewal packets at least 2 months prior to the renewal date. Last year, there were 6 who missed the deadline, and submitted their renewal packets within 1-30 days after the renewal date. This cost them $1,500 + 750. There were 2 who completely forgot to renew, and are now appealing the forfeiture.

By this email, I am giving fair warning – Ordinance No. 950, Sec. 8-17-10 (h)(1) removed the ability to reapply for renewal if you failed to timely renew. This means – from here going forward, if you’re 1 day late, the Department will issue you a forfeiture notice. If you don’t run your business in a professional manner and forget to timely renew, no excuse will be good enough.

If the renewal packet is incomplete beyond the renewal date, the Department will issue a Forfeiture notice. It’s incumbent on the certificate holders to provide all the documents listed on the renewal form – we will no longer chase you for missing documents. At the time you submit your packet, it had better be complete. You should all know what is expected during the renewal process, especially those with Special Permits. This includes a hard copy of all the websites you advertise on, reflecting at a minimum, your TVRNCU number and 24/7 on island contact.

I will be sending this email to all, in groups of maybe 25. So if you get this more than once, you really better not miss a renewal date……

That was his email sent to hundreds of people who now all have the names and email of those being harassed. I guest this makes banding together pretty easy now.

My point is, much more time and energy is being applied to picking on the folks who operate legally than those that do not. The problem is so multidimensional and not just about B & B's.

And Joan...your information is not always correct. People just don't challenge you because they are not combative like you are. They just want want peace in their lives and at 11:28 said, these issues are hard on a persons health.

Joan Conrow said...

Oh, poor little 12:24. You have to comply with the renewal regulations for a permit that gives you special privileges and increases your property values and which you most likely got improperly to begin with. Waaaaa. You guys are pathetic. Be grateful you got a heads up so you don't get fined. Your permit is a privilege, not an entitlement. The least you can do is follow the rules.

Quit whining, and when you've got some actual corrections, present them. If you're too chicken to do so, even anonymously, that's your problem. I've always made a correction when it's warranted.

Anonymous said...

the same excuses from the same people.. don't you guys get it? no one believes you and nobody feels sorry for the predicament you've put yourselves in. suck it up people, justice is finally being served. good to see Planning is doing something about the casual attitude many TVR/BNBs have,come renewal time. Last year we got ahold of a list of TVU permit renewals that were late; years late, in some cases. so good news that planning is cracking down on the nonchalant. If one of us is charged with DUI, you're booked go to jail, are fined heavily and could have driving privileges revoked.. no mercy. same should apply to tardy TVU renewals. maybe a few slaps will make the scofflaws understand renew on time or say bye bye to your permit.

Anonymous said...

HI 12:24

here's how you can live in peace and in good health; get a legal permit, which in the near future will require you be located within the VDA. If you are one of the lucky ones who already has a permit inside or outside the VDA, cherish what you have and comply with the requirements, on time. The rest of us do. common sense.

for peace and health