LIHU‘E — When the Kaua‘i County Council last year passed Ordinance 904 — allowing certain owners of transient vacation rentals on ag lands to apply for a permit — those opposed to the bill feared the new law would allow
LIHU‘E — When the Kaua‘i County Council last year passed Ordinance 904 — allowing certain owners of transient vacation rentals on ag lands to apply for a permit — those opposed to the bill feared the new law would allow hundreds of new tourist units on lands zoned agriculture.
But Planning Director Michael Dahilig said only 81 TVR owners applied by the Aug. 16 deadline. And not all of them met the necessary requirements.
On Tuesday the county Planning Commission granted his motion to deny an appeal by the owners of three TVRs who had been denied a permit on the basis of an incomplete application. Dahilig’s reason was that the appellants’ attorney, Charles Foster, appealed the denial more than 21 days after the planning director’s decision.
However, as in most legal matters, interpretation of the law and of the events is key.
The crux of the matter here is what really set the hour-glass for the deadline: Was it Dahilig’s signature or the postmarked date?
Foster said he would have met the deadline had the department considered the starting date as the postmarked date on the certified letters that contained the information on the denials.
Deputy County Attorney Ian Jung said the date that matters is when the denial was signed. And if that date would count, Foster would have missed the appeal deadline by a few days.
The denials signed by Planning Deputy Director Dee Crowell are all dated Aug. 17, a day after the deadline to apply for a permit. But Foster had copies of the certified letters, postmarked Aug. 24. He said he received the letters Aug. 25.
Dahilig said even if the deadline was met, the conditions which caused the denial were still not met.
In one of the cases the owners sent wrong documentation, and in two of the cases the TVRs are in two distinct properties divided by a condominium property regime. In order to meet all requirements, owners of TVRs in a property divided by CPR must obtain approval from at least 75 percent of the CPR owners of the given property. Or they have to own at least 75 percent of the property.
Neither was met, according to Dahilig.
This was exactly the criteria Foster was fighting against — the 75 percent requirement. But he didn’t get a chance due to missing the deadline to appeal.
After the meeting Foster said he wasn’t sure if his clients would appeal. It was up to them, he said, but they would have a “pretty good argument” if the case goes to Fifth Circuit Court.
Stiglers
In the case of James and Lisle Stigler, residents of Thousand Oaks, Calif., the County Attorney’s Office argued the appellants had one year to apply for the permits for their Halaulani Road, Kilauea, property, and despite the attempts to file the application within that period, the application was incomplete. It did not contain the required 75 percent approval from all CPR owners.
The letter from Crowell informing the appellants of the incomplete application was dated Aug. 17. An appeal to the decision had to be made by Sept. 8, the 21st day after the decision, according to Jung.
Foster said he was informed of the Aug. 17 decision — which was made behind closed doors — on Aug. 25. The department received Foster’s appeal on Sept. 14, too late in the eyes of the department yet within the deadline to Foster.
But before the Aug. 17 decision, Crowell had informed the Stiglers and Foster on May 31 — 2.5 months prior to the Aug. 16 deadline to apply for a permit — that the only remaining item missing to issue a provisional permit was the 75 percent CPR/owner authorization for the application.
Crowell also said in that communication that the Stiglers are not to operate their TVR until obtaining a provisional permit.
Davidson, Valentine
Robert Davidson and Julie Valentine, from Carson City, Nev., purchased their Moloa‘a Road, Anahola, property in June 2010, as an ongoing TVR rental, according to Foster.
Foster said the property is on a lot that existed before June 4, 1976, and the dwelling has operated as a TVR prior to and after March 7, 2008, set by Ordinance 904 as the cut-off date to grandfather TVRs on ag land. Because of this, Foster said the applicant’s right to continue the use of the property as a TVR exists as a matter of law.
Davidson and Valentine may have bought the property well after March 7, 2008, but the law does allow great-grandfathering. New owners, however, still have to prove the former owners were operating as a TVR prior to that date.
According to Crowell, the packet provided by the new owners contained information — GE taxes, TAT, reservations and income tax records— from 2010, but not from operations prior to March 7, 2008.
“This does not satisfy the requirements of Ordinance 904,” said Crowell in a certified letter dated Aug. 17 and addressed to the new owners and their attorney.
Crowell also asked Davidson and Valentine to cease and desist TVR operations on the property. Failure to do so could result in criminal prosecution, he said.
Foster said the date on the letter head, Aug. 17, set as the countdown for the deadline to appeal, violates the applicants’ due process rights under the state and federal constitutions. He said the director only sent the letter on Aug. 24, and that he received it the next day, giving the TVR owners only two weeks to appeal the decision.
Unkrich, Century
The case of Lee Unkrich and Laura Century family trust was similar to the Stiglers: The department said the application is incomplete because it lacks approval from 75 percent of the owners of the other CPR lots on the property.
The Kentfield, Calif. residents own a property on Kauapea Road, Kilauea. They too have been denied an appeal because the department says the deadline has been missed.
As in the other cases, Foster said the certified letter was sent on Aug. 24 and received on Aug. 25, but the date the department is counting as the triggering date for the 21-day deadline is Aug. 17, when the department deemed the application incomplete.
