Wednesday, April 27, 2011

Pile of Pohaku

As was detailed in ”Winners and Losers,” Southern California developer Nicky Michaels pioneered the scam of transforming modest beach bungalows along Kauai’s North Shore into lavish mini-resorts under building permits ostensibly issued for “unsubstantial improvements.”

But though Michaels was the first, he certainly wasn’t the only Kauai real estate speculator to lowball the cost of renovations to avoid complying with 1981 National Flood Insurance Program rules that required new, or substantially improved, buildings in the flood zone to be elevated.

Tom Brooks, an Orange County, Calif., builder, spotted a similar opportunity when he purchased a three-bedroom, three-bath house at 4445 Alamoo Rd., Wainiha — just around the corner from Michaels’ Blue Lagoon vacation rental — in January 2006.

Brooks, who is also a director of the stalled Kulana ag subdivision in Kapaa, paid $1.1 million for the 2,640-square-foot house, which was built in 1977 — prior to the more stringent flood rules.

The MLS listing offered two photos of the house and a description:

Remarks: Spacious and bright cedar home enjoys beach access steps away. Permitted ground floor living areas offer lots of potential and multiple living arrangements. Huge covered lanai is bright and breezy. Hear the surf while gazing at the mountain view. Open beam ceiling upstairs complement the thick 3" cedar single wall construction. Upgrades are due as downstairs and some exterior areas reflect deferred maintenance.

Private remarks: Sold "as is" only. Original owner occupant seller, no vacation rental history.

Brooks quickly got to work, and within four months of purchasing the house got a building permit for alterations and repairs valued at $60,000 on a house that had inexplicably expanded to 2,900 square feet.

Although the scope of work detailed in the permit was limited to “Replace Roof, siding, windows, cabinets, drywall, and Repair Electrical,” it wasn’t long before the house looked nothing like its former simple self:

County records show that the house passed all of its inspections. But half were waived, and the rest were done on the same day — April 25, 2007 — raising the question of how framing and final inspections could be conducted concurrently.

In August of that year, Brooks got a building permit for the 178-square-foot porte cochere that is evident in this photo, which was taken prior to issuance of the permit:

The planning department allowed the porte cochere to be built under an amended previous SMA minor permit. County records show no inspections were conducted.

County records also show how both the renovation and porte cochere were determined to be “unsubstantial improvements,” based on their purported combined value of $73,800 and the house’s assessed value of $159,000.

Its transformation complete, the former three-bedroom, three-bath structure was renamed “Hale Pohaku” and turned into a luxury vacation rental — an entirely new use with a now fully enclosed downstairs and an additional bedroom and bath.
The Jean Abbott Properties website advertised it as renting for $4,000 per week, with detailed photos of the interior and this description (emphasis added):

Fabulous, newly built 4 bedroom, 4 bath home n Haena on Kauai’s famous north shore near Tunnels Beach. Privacy is not an issue at this gated, two story custom built home, perfect for your families vacation.

Totally brand new, this wonderful home features a large living room with a big screen satellite TV and surround-sound speakers, open kitchen with breakfast bar, hardwood floors, and large windows facing the magnificent mountains.

Even more intriguing were the references to two kitchens, where previously there had been just one, and the suggestion of a multifamily dwelling, which is prohibited under the North Shore Plan:

High ceiling, hard-wood floors, A/C and a gourmet kitchen are just a few things that add to the elegance of this property. The upper level is complete with two separate lanais furnished with comfortable furniture to bar-be-cue and take in the views of the majestic mountains. Both bedrooms with queen beds are equipped with flat panel TVs.

The Lower level features a suite with 2 twins, separate kitchen, and bathroom with Jacuzzi tub and shower combination. A separate bedroom with queen bed, flat screen satellite TV and detached bath with shower stall completes the downstairs.

Here’s a photo of that downstairs kitchen, which was posted on a vacation rental website:

Remember, this total makeover — including the addition of living quarters on the newly enclosed ground floor — was presented by Brooks as an “unsubstantial improvement” valued at just $78,000.

And because it was determined to be unsubstantial, the Department of Health did not require Brooks to install a septic tank. Instead, it allowed him to keep using the original cesspool, even though the house is now a multifamily dwelling sleeping eight.

On Sept. 8, 2009, Pohaku House was one of 30 properties that went before the county Planning Commission for a non-conforming use permit to operate a transient vacation rental. Under the newly enacted county ordinance, Brooks had to sign an affidavit swearing the house was used as a TVR prior to March 7, 2008.

The county planning department recommended blanket approval of the entire batch. Caren Diamond and Barbara Robeson of Protect Our Neighborhood `Ohana objected, in part because planners had offered no details on why the applicants, some of whom had been previously denied, were now getting the green light.

The  Planning Commission considered a communication from then Planning Director Ian Costa recommending that Hale Pohaku and 29 other properties be given non-conforming use permits to operate transient vacation rentals. The communication included very little information about the applications.

According to the meeting minutes,  Robeson pointed out that five of the applicants had claimed an owner-occupied real property home exemption. This caused her to wonder how “they were living in the house, but according to their affidavit, the structure had been a vacation rental for some time.”

Diamond provided commissioners with a packet that offered details about how Brooks had used building permits issued for “unsubstantial improvements” to transform the structure into a luxury vacation rental — an entirely new use for the property. Furthermore, he had fully enclosed the downstairs and made it into living quarters for tourists, even though it’s located in the flood zone.

Diamond then posed several questions to Commissioners and planning staff:

So I want to ask you, how this was inspected and how it passed the Planning Department’s criteria and how it now conforms to the [TVR] ordinance because you have a house that is now advertising the downstairs. And if you look at this house and go by it today, you will see the entire house, top to bottom is enclosed. It has made a two-story house, the entire downstairs is stone.

We ask you how this is happening and we are asking you to not give your approval and stamp this and if you do we want to know how you are going to say that this is just fine. And I would like you to use this as an example for the rest of them and ask planner to do their homework and see why we have this problem where we have these structures getting built over and over and over again in Wainiha for their ridiculously low valuations. They are being made flood noncompliant. They are being approved for vacation rental use. I don’t understand it and I hope you won’t give your consent to approve these, thank you.

When then-Commission Chair Caven Raco questioned then-deputy planner Imai Aiu about Diamond’s presentation, he got this response:

Staff: What it appears to me is going on is that there were permitted expansions downstairs, any living was probably not in place when we went out and inspected and saw permitted expansions. If any living has taken place downstairs that may be a question we need to address, however it has just come up recently. So this is new information that we have and it does give grounds to, I would say, address this particular TMK because they may have started since we have gone through this process. So basically in this case what we have is kind of a new violation, basically, or a new possible violation, a new complaint to look in to.

[Commissioner Hartwell] Blake: So the way this looks they have a duplex on the property?

Aiu: I can’t say that it is a duplex.

Mr. Blake: Well that is what they are saying isn’t it? Upstairs and two separate kitchens downstairs, bathroom, Jacuzzi, well those are…but the presence of the kitchen would seem to make it….

Aiu: The presence of the kitchens would seem to make it a duplex.

Mr. Blake: And those aren’t permitted.

Aiu: No.

Mr. Raco: So would it be your recommendation to pull this one off of the consent agenda?

Aiu: Considering new information today, yes, my recommendation would be to pull this one off and have another inspection on site considering improvements made that may or may not be permitted.

However, as Diamond later pointed out to commissioners, the information presented that day about Pohaku was not “new;” indeed, PONO had given it to the planning department some months earlier. She continued:

I really just want you to know that we did complain to the Planning Department when the house was being enclosed on the ground floor and we wondered how this was happening. It shouldn’t be new to them that the ground floor got enclosed.

As the panel deliberated, Commissioner Herman Texeira asked Aiu if other applicants may have the same or similar situation as Pohaku. Aiu replied:

I honestly cannot without going in the field every day and seeing if somebody has done [sic] illegal. We all know people have violations. We all know people have illegal properties on there but to say, this is, when we inspected, it was okay. When we inspected for this particular list we found issues we had to look in to. Sometimes there were lot coverage issues. Sometimes there were permitting issues. Those have since been rectified. I imagine this was one of them. Our guys went out, saw enclosures downstairs going up, found building permits for it and said it was okay. Subsequently the owners turned that in to living space that is not necessarily okay. That is why I would now recommend for this to be re-inspected. Since our inspection and what people have done on theirs [sic], without going out there we cannot say. We can only say what happened at the time of our inspection and at the time of checking our records.

However, the building permit, as you may recall, specified the work as “Replace Roof, siding, windows, cabinets, drywall, and Repair Electrical.” No mention was made of enclosing and finishing the downstairs, which is clearly visible in this construction photo and certainly should have been evident at both the April 25, 2007 final inspection and the planning department’s inspection, which was done prior to March 30, 2009.

Deputy County Attorney Ian Jung then jumped in to explain that if the house was being operated as a TVR before March 7, 2008, that non-conforming use would be “vested” and “if anything happens subsequent to then it is subsequent zoning violation and not subject to the TVR ordinance.”

That prompted this exchange between Commissioner Blake and Jung:

Mr. Blake: If it is a subsequent zoning violation, that means their TVR certificate gets jerked, doesn’t it?

Mr. Jung: That is a grey area that we are trying to flush out right now.

Mr. Blake: I mean gee, how mean how many bites of the apple are they going to get. And in this case, if this is true, this is not like a bite of apple, this is like cutting off half the apple. I mean, multiple bites and again, if it is true, we can understand why residents get upset, because this is just blatant, in your face, poke you in the eye.

Commissioner Camilla Matsumoto piped up to say she had appreciated the packet that Diamond presented, and wondered if it was possible to require the other owners to provide similar information about their properties.

Jung replied that the TVR ordinance had already placed “ a huge burden” on the Planning Department, but Mastumoto could impose more requirements.

Matsumoto backpedaled, saying the owners “should be made accountable and not just wait to see what the inspections provide… Put a little bit more responsibility on the owners.”

Aiu said that particular batch of applications initially had been denied precisely because the owners had not provided sufficient information to show they were in compliance, but had since proven they were, prompting the department to seek approval of their non-conforming use certificates.

Raco then asked how, exactly, the commissioners could be sure of that since there were no details provided about each application. He said “some kind of brief on each one” would be useful “[f]or the public and help us know what is the reasoning.”

“We can do that,” Aiu replied. “That is entirely possible.”

Blake also supported such an approach, saying:

I am not anti-TR, but if you’re going to be doing something like this then you need to do it the right way or don’t do it at all.

[Aiu] I understand your frustration with this particular [sic] and it’s good that it was brought up to us because subsequently after receiving their permits they have apparently, I don’t want to, I don’t think it’s my place to without proper inspections and checking their permits to say guilt or not, but they have apparently, violations.

Mr. Blake: It doesn’t bother me to say they have, they advertised it. So what am I going to do, keep giving them the benefit of the doubt? Come on.

[Aiu] I can understand the frustration of Commissioner Blake but without inspecting every property, every day, we cannot verify compliance every day. It’s just not humanly possible.

Blake then suggested that the department could go through the web page advertisements of the TVRs to spot “situations where it’s blatant,” and Matsumoto proposed requiring applicants to provide copies of all their advertising materials.

But Jung said that wouldn’t be possible, because the TVR ordinance was simply regulating uses that previously were not regulated. “So we are stuck with that, we can’t impose new conditions on grandfathered certificates. It gets very complicated, legally very complicated, to do that.”

So what, Blake wanted to know, could the county do if someone “starts to do what they should not be doing” once they get a permit?

Jung replied that it would become an enforcement issue, but whether that would cause the permit to be yanked “is a legal question that I am completely unprepared to answer on the floor. It is an untested area in Hawaii law.”

Texiera then asked “how can we make a decision if these issues are not clarified?”

Jung advised the panel to trust the information presented by the department, and if it turned out to be wrong, the public could contest it. But if the inspection was satisfactory, “then they should be getting their nonconforming use certificates.”

Aiu again maintained that the inspections had been conducted properly and “the downstairs came into being after our inspections.”

Mr. Texeira: So couldn’t you require another inspection?

Aiu: We can require another inspection, yes. We can go out and inspect it again and in fact that is what I would recommend at this time considering new information that has been brought up.

But as noted earlier, PONO had provided planners with exactly that same information months before, giving them ample opportunity to conduct another inspection before recommending Commission approval.

In the end, Commissioners voted to defer action, pending more information on the applications — specifically, details on why the department initially denied the application, and the steps taken to resolve those concerns.

Robeson then asked if the Commissioners also were going to look into the issue of TVR operators simultaneously claiming the homeowner property tax exemption.

Aiu said that was the kuleana of the Real Property and Finance Department, and since the ordinance didn’t address it, “I don’t know that we can legally say that that is grounds for denial.”

Robeson replied:

I guess my concern is once you give an approval it is harder to take it away so I am suggesting and hoping that you find out more about this and the legal ramifications… since Mr. Aiu said there was no deadline for taking action, that you solve that problem before you give an approval. Again, back to their affidavit, they swear and it is notarized and they sign that they have been operating it as a vacation rental… So if it has been a vacation rental, how can they live in the house? How can they take the homeowner’s exemption? It affects all of us by the way on the amount of property taxes that are raised for the County so I think it ought to be an important issue.

Mr. Raco: Chair, the Deputy just explained it. It is not our jurisdiction… it is not in the ordinance.

Ms. Matsumoto: Even if it is not in the ordinance… I think we need to get as much information as possible in order to make a good decision and all the departments need to work together to help us make that decision.

But by the time the matter came back to the Commission on Jan. 26, 2010, its members seemed to have forgotten all about their earlier concerns and engaged in only the scantest discussion about the applications.

According to meeting minutes, the original 32 applications had been pared down to 20 because the other 12 had been, to quote Aiu, “either found to still have violations and so should not be approved or there were a number or two that due to mistakes with the log and paperwork had already been subsequently approved.”

Blake asked how many of the 12 taken off the list would be denied, and Aiu said three, but only because they had not been approved by March 30, 2009.

Commissioners voted unanimously to approve the 20 TVRs on the list.

Pohaku was not among then, and page six of the TVR log on the Planning Department’s web page shows it as denied.

But as this recent picture shows, the property is being actively marketed as a vacation rental:

When Diamond sent a Sept. 26, 2010 email to then Planning Commission Chairman Nishida asking how that was possible, and if the permit number on the sign was real, she got this response:

The last bill passed by the council corrected a fatal flaw in the original bill which was it tied denial to the building violations. The new bill removed that and is essentially a "registration" of vacation rentals in existence before the passing of the original bill, The Commission does not need to approve the applications for non Ag, non VDA tvrs. The Planning Department has power to approve those. My understanding is that the new bill allows for the applications of all tvrs in operation before the date stated in the original bill. Violations need to be resolved by the renewal date of the TVR.

My guess is that the denial of the [Pohaku] application was based on a zoning or building violation which was clarified in the new bill. I asked the county attorney if people needed to reapply under the new bill and he said the he is recommending reapplication. The county web site has the requirements for application for tvrs as well as the process for application. My understanding is that zoning or other violations must be resolved.

I hesitate to investigate an individual complaint regarding a single application but I will ask the department how will the public know if a permit number is real.

That was the last Diamond heard.

Meanwhile, the HomeAway website shows that Pohaku, which rents for $945 - $1,445 per night or $3,295 - $6,295 per week, is booked through August and over the Christmas holidays.

Comments accepted at Kauai Eclectic.

Construction photos by Caren Diamond

Wednesday, April 6, 2011

The Sacred and the Profound

With the first lane of the new Wailua cane haul bridge opening, following a blessing by Rev. Ipo Kahaunaele-Ferreira and coinciding with a weather forecast for heavy rain, lightning and even hail, it seems an appropriate time to revisit an article I first published in Honolulu Weekly on Aug. 4, 2010.

There was a period, last November, when unremitting lightning brought day to the night skies over windward Kauai, as thunder boomed, cracked and rolled. Brisk winds swept in rains so heavy and insistent that streets ponded, mud slid and streams rose, flooding buildings, forcing evacuations, closing bridges and breaking water lines. When it was over, Mayor Bernard Carvalho surveyed the damage and issued a disaster proclamation.

The dramatic display by the elements coincided–though Kumu Hula Kehaulani Kekua would say it was no coincidence — with an aha hoano, a sacred ceremony, that she and other cultural practitioners were engaged in at the mouth of the Wailua River, whose source is Waialeale, the wettest spot on Earth. Every hour on the hour, from noon on Nov. 13, 2009, to noon the following day, they carried out a set practice of protocol with the intent, Kekua said, of “petitioning the natural world, the ancestors, the guardians, the gods, who are still much alive and real. When you recognize that, and make that connection, profound things happen.”

The site of the vigil, which remained calm and dry as the storm raged around it, was not selected at random. Instead, it was chosen both to call upon its inherent cosmological powers and call attention to the construction projects that some feel are intruding too heavily upon it. The aha hoano was conducted as a culturally based response to those threats, a deliberate attempt to bring the sacred and the profound into the debate over development.

“Wailua is one of the two most important places on Kauai and one of the most sacred places in Hawaii,” Kekua said recently, as we sat at a breezy picnic table overlooking the Wailua River as it emptied into the ocean, our backs to the Aloha Kauai Beach Hotel, not far from where the aha hoano was held some six months before. “It was the birthplace of alii, a religious center, while Waimea, on the other side of the island, was the political center. It has a high concentration of major heiau [sacred structures] still in existence and many moolelo–stories, myths and legends — that take place here. In the ancient chants and hula, even the gods and goddesses entered Kauai through Wailua.
“I’ve come to see Wailua as important not only for Kauai, but all of Hawaii, and it has to do with where it is and what it’s aligned to,” she explained. “When you look at all the heiau, from makai all the way up to the top of Waialeale, they represent conduits to higher sources of mana and power that our ancestors clearly understood. They knew how to manipulate the elements through practices of prayer, meditation and ceremony.

“Each of the heiau has a specific function, protocol and ceremony, and they were all strategically chosen by kuhikuhi puu one, which means one who points to the sand dunes. They were master architects who chose where sacred sites and temples are constructed, and it all has to do with alignment with the different cosmic movements in the heavens.

“Wailua is on the eastern end of an east-west corridor, directly opposite the Waimea district. Wailua is a portal. The sun, moon, stars, all rise here, and the heiau all correlated with that. This kind of understanding is global. Native peoples everywhere understand the importance of pulling in that mana, that energy, from the heavens.”

Although some of the heiau have been damaged since Western contact, even reduced to mere skeletal remains, Kekua said Wailua has lost none of its power.

“It’s not necessarily the structure, it’s the place, the land upon which these heiau were built,” she said. “No matter if it’s scattered or fully restored, it still has the mana; it’s still sacred. Our job as kumu is to perpetuate and animate the mana of these places today.”

As we spoke, we heard the steady shush-shush of surf hitting sand, the steady clang-clang of hammers hitting metal; the clatter of wind-touched palm fronds, the whirring of a giant mechanical crane. Over the past year, the Wailua corridor has been greatly disrupted by a major construction project that calls for widening an old cane haul bridge across the river and adding a fourth lane to Kuhio Highway where it runs between Wailua Bay and the decaying Coco Palms Resort.
Especially controversial was a county plan to build a boardwalk for a bike path across the beach itself, which would involve drilling augers into the sand and perhaps disturbing burials. Mayor Bernard Carvalho eventually agreed to move the path slightly mauka, straddling the highway shoulder and crest of the dune, but many remained opposed to the path, the projects and the process.

Native Hawaiians claimed federal, state and county agencies had not properly consulted with them before proceeding, and that environmental and archaeological reviews were rushed, inadequate and segmented so as to avoid considering the cumulative effects of the various projects. Waldeen Palmeira, a Native Hawaiian and Wailua resident, mounted a pro se legal challenge against the state Department of Transportation to halt the work, but did not prevail.

“The judge said the area has long been impacted,” Kekua recalled. “We realize that, but now we’re at a place where as Native Hawaiians we can speak against it. When they put the railroad in back in the 1920s, Hawaiians had zero voice to speak out. What has happened in the past should not provide an excuse in this 21st century when we have laws that are supposed to protect our iwi kupuna and our ancestors.

“We’ll always be at a disadvantage fighting the fight in a Western system,” Kekua said, which is why she and others chose to conduct the aha hoano. “The only way I personally feel comfortable about going up against these issues is in a very Hawaiian way–to gain more knowledge about the place, and nurture and strengthen one’s connection with that place, culturally and spiritually, through the ceremonies, the pule, the chants to the original gods and ancestors. Because they hold the mana, which is why the iwi in the land are so important.

“It has to do with burying the kupuna strategically along the coastal areas, facing the horizon, so they’re able to continue their own migrations into the spiritual realms, where life continues,” Kekua explained. “The manao [thinking] of politicians and developers is just move the bones, but the mana, the spirit, lives in the bones. It’s not a one-way trip; it’s a cyclical movement, which is why Hawaiians feel obligated to protect the iwi kupuna. When we hala, die, we leave our bodies, but in places like Wailua, that are sacred portals, our ancestors can always come back and we can mingle with our kupuna. Now days we are accused of using the word sacred as an excuse to deter or stop any form of development, which is not true. I do see all land as sacred, and some places as more sacred than others.

“In a very messed up way, when they encroach upon and pave over sacred burial places, like this one, it doesn’t cut off that mana completely, but it makes the connection much more difficult. The pule become even more important because you have to work much harder to make the connection, and unfortunately, a lot of people give up. Many have disconnected from the traditional practices. As a Native Hawaiian, I believe it’s our responsibility to continue them, even in these modern times, because sacred places are only in history books unless you’re practicing.”

Kekua became fascinated with Wailua as a very young child, when she listened with rapt attention to the stories that her grandparents told about the far-reaching significance of the place. Her grandmother, Kumu Hula Helen Kaipuwai Kekua Waiau, taught her hula and chants about the region, as well as legends that recounted its ancient history. In the summertime, she often rode her bicycle from the family home in nearby Kapaa to the sandy beach fronting Wailua Bay.
“For Kauai, Wailua was a major attraction for visitors and I grew up around it,” she recalled. “My grandfather was a musician, and he played at the different hotels. But there were very few hotels. Tourism was pretty controlled back then, and people didn’t just go out on their own. They were taken to various sites by Native Hawaiian tour guides who were born and raised here, who knew the stories and didn’t have to make things up.”

As she grew into adulthood and was appointed by her grandmother to carry on the family lineage as a kumu hula in her own right, Kekua observed with some concern the development-driven changes that were occurring on Kauai, first slowly, in the 1970s, then picking up speed in the ’80s.

“People were arriving with different values and lifestyles,” she recalled. “With the advent of rental cars, tourists went off on their own and began to impact different places. The guidebooks exposed sacred and hidden places, and before you knew it, the whole island and its sacred places were infiltrated by curious visitors. I began to worry about those significant places.

“But ‘progress’ didn’t stop,” she continued. “We started getting more visitors, more roads, more businesses started by [mainland] transplants who began to exploit the island, its sensitive places, its sacred places. All of that has contributed to what we’re seeing in Wailua today.

“And at the foundation of all this is 200 years of a suppressed culture with native people needing to assimilate into a Western culture and a Western mindset and set aside the cultural practices to work three or four jobs to support their families and try and survive in a time when it was just not cool to be Hawaiian.”

As a result, Kekua said, many ancient cultural practices came to be seen as old-fashioned, superstitious, even evil–a view reinforced by Christian religions.
As kumu hula of Halau Palaihiwa O Kaipuwai, the hula school her grandmother founded in 1945, Kekua seeks to erode that perception, loosen the stranglehold of Western mindset, Western culture. Although she offers formal instruction in dance and chant, hers is not a performing halau, or one that participates in hula competitions. Kekua, a self-professed proud pagan, instead emphasizes the traditional study of Hawaiian protocol and cultural perspectives, including beliefs that revere nature as a living being.

“Hula is much more than dancing,” she said. “It’s about maintaining the life-giving source. All of the ancient practices have to do with nature. They hold you accountable to that resource in nature that you access and take from. The rituals and practices are how we give back and replenish nature, and there’s nothing spooky about that.

“When I teach halau, I have absolutely no inhibitions. Nothing keeps me from speaking to the sacred and the profound. I have amazing trust and confidence in the power of the land and the gods and the ancestors. That’s been a major support system for dealing with all of this,” she said, making a sweeping gesture toward the bustle of construction at the Wailua Bridge. “It’s sad that even with the 24-hour vigil and the animation of the elements–the rain, the flooding, the washed out beaches at Wailua — that people see that as coincidental.”

Others, including Kekua and her students, saw it as a life-shifting experience. “During the entire 24 hours, when Kauai was literally rocking and rolling with the elements, this area remained dry. It was like we were in a bubble. We could see the wind pushing the rain, we could observe the river flooding, trees and picnic tables floating by, and literally yards away we were warm, comfortable and protected.

“At midnight we chanted the kumulipo and the lightning and thunder were so synchronized. While we were beating on the pahu here, the heavens were holding the same rhythm and timing, even the crackling of the lighting. I’ve never experienced anything like that. We came away from this energized, inspired, motivated and totally convinced the natural world guides and directs our well-being.”

During the vigil, Kekua said, she was given “a guidance and direction to teach and share the history of the sacred and profound about Wailua,” prompting her to launch a nine-month public lecture series on Wailua that concludes with the fall equinox next month. Topics have included its heiau, fresh water resources and cosmological significance. “Every month I’m learning to see Wailua from different perspectives,” she said. “It’s been humbling.”

Although construction was not halted as a result of the vigil, Kekua remains convinced that petitioning the gods did have an effect, and that such practices reflect a culturally based approach to activism.

“I haven’t given up hope for Wailua,” she said. “Sometimes what appears to be a lost battle is really not. It’s an illusion. The natural world will always shift things back into balance. Some of the development, unfortunately, we’ll have to live with. But in no way, shape or form should it stop us from elevating the sacredness of Wailua.

“When I look at the development in Wailua, when I see the greed, the carelessness, the irreverence for nature and other life forms, it saddens me, because humanity will suffer as a result,” said Kekua, her eyes brimming with tears. “I always pule for a shift in consciousness, that people will be reconnected somehow. We need to be fully conscious of the decisions that we make, because the power of this land will hold us accountable.”

Comments accepted at Kauai Eclectic.

Monday, March 28, 2011

Winners and Losers

Once upon a time there was a tidy, simple little one-story cottage of 1,080 square feet sitting on a 20,000-square-foot lot in Wainiha on Kauai’s north shore. It had two bedrooms and two baths, a sandy back yard and a tall ironwood hedge that served to screen it from a broad, white sand public beach.

It was described in the MLS property listing posted by Realtors Roberta Hass and Mimsy Bouret as “Classic home from a bygone era, a historic charmer. They don't make 'em like this anymore! Ambience of ‘Old Hawaii’....A walk back in time.” Sweet.

But it was most likely the reference to "Zoned for two residences, but with restrictions" and “Long vacation rental history” that caught the attention of Nicky Michaels, a Southern California developer whose North Shore Development LLC purchased the property for $1.9 million cash in 2002.

Nicky knew about CPRs, which he promptly did to the mauka side of the lot.

He also knew there was a way to transform the small, modest house into the kind of palatial mini resort that would command really big bucks — without going to the expense and bother of meeting current National Flood Insurance Program rules for building safely in the flood plain. Or in other words, elevating the house.

How? By claiming he was making “unsubstantial improvements” to the property.

According to Kauai County’s Flood Review Policy which was derived from the County Floodplain Management Ordinance, the state flood ordinance, and 44 CFR:

If a structure is in a special flood hazard zone but was built before November 4, 1981, it is Pre-FIRM or “grandfathered.” Building permits for “grandfathered” nonconforming structures can be approved if the improvement is unsubstantial.

When calculating for substantial improvement, the value of the improvement is determined by the County’s Building Division according to their valuation policy. The market value of the structure is as assessed by the County’s Real Property Assessment Division.

The value of the improvements must be less than 50 percent of the structure’s assessed value to qualify as “unsubstantial.” For this purpose, Nicky’s newly purchased house was assessed at $254,000.

The Building Department, under Doug Haigh, went along, and on June 30, 2003, granted Nicky a permit for what were supposed to be “unsubstantial improvements” valued at $122,300.

Soon, the “unsubstantial improvements” were well under way, with Callahan Construction serving as general contractor.

The lawn got expanded right along with the house, which took it well out onto the public beach.

Even Nicky helped water to ensure that the newly planted vegetation flourished.

And indeed it did, sprawling well onto the public beach, as you can see from these two recent photos taken from vacation rental websites.

As for the house, well, here’s an aerial view after the “unsubstantial improvements” were completed. Amazing what just $122,300 can buy.

This vacation rental ad describes its palatial transformation — right down to the putt-putt golf course on what used to be public beach:

Upon arriving to this 5 star luxury retreat and sanctuary; you will soon discover where heaven and earth meet. This home as stated by many is "the nicest home on the North Shore." Each of the four bedrooms has its own private entry and exit with a clear view of either the ocean or a water fall. We incorporated only the best materials available. Cedar exterior, Brazilian marble counter tops, and bathrooms, interior Jacuzzi bathtubs in both oceanfront suites, Brazilian mahogany floors, spacious Ipe decks, all the windows capture mystical magical views, Koi ponds, waterfalls, flowers o plenty encompass this compound.

For those golfers, Seashore Paspalum grass surrounds the house, the same kind of grass found on the greens at the Prince Golf Course in Princeville, rated the #1 golf course in all of Hawaii, only 15 minutes away. The grass feels like carpet for the feet. We’ve set up a fun miniature golf course with plenty of putters and golf balls supplied.

Entertainment features include: 42” HDTV, cable internet service, wireless modem, Pool table/ping-pong table, indoor Mango wood smoothie Bar with refrigerator, Large Gas BBQ, Outside Hot Springs Jacuzzi surrounded by Fragrant flowers, three Kayaks (2 singles, 1 Double) and miniature golf greens.

If you’re wondering "is there going to be a crowd?” The beach directly in front of the property is mostly a private beach. People have to know how to find the beach and beach access is limited.

This vacation rental ad references it as Orchid Beach Villa, and eliminates the possible presence of the general public in extolling its exclusivity:

This fabulous, elegant, and serene 3+BR, 4BA home is on the beach and steps from your own private, protected blue lagoon. Imagine having enough money to purchase a piece of property anywhere in the world, imagine that perfect place. A perfect location, a perfect dream realized, within the Unites States of America, where people with unlimited capital want to live and vacation with their loved ones. This place is the real “Blue Lagoon”, a newly built home on the North Shore of Kauai, Hawaii.

Yet another ad offers a similar revelation about the amount of work done, which seems to exceed the scope permitted by the county:

This place is the real “Blue Lagoon”, a newly built home 4 bedroom 4 bath home on the North Shore of Kauai

Which is it? “Newly built” or “unsubstantial improvements?”

Decide for yourself. Go ahead, take a virtual tour. (Click on the photo and drag your mouse.)

Now compare that to what it looked like when Nicky bought it nine years ago.

The public beach has also undergone a marked change, thanks to all that planting, fertilizing and watering.

Now it’s difficult for folks to walk the beach when the surf is up, which helps the vacation rental live up to its much-touted promise of exclusive seclusion.

So what’s the cost of all this luxury and privacy?

From Price (per week): (Plus 11.42% tax not included) $8500 Security Deposit:(Refundable) $1800.00 Cleaning Fee: $525.00 Reservation Fee $50.00

But even rates like that — and the benefits reaped from the charade of an “unsubstantial improvement” — weren’t enough to keep Nicky from crashing. Now Blue Lagoon is in foreclosure.

Yes, Nicky's about to lose the house, one of several he purchased on the North Shore and transformed through "unsubstantial improvement" permits. More on them later.

But in the meantime, the public has already lost a big chunk of beach to Nicky’s speculative dream: a gated resort for 10 “people with unlimited capital…and their loved ones” — right smack in the tsunami zone.

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