LIHUE — The former owners of a vacation rental property in Haena are suing the County of Kauai over an emergency order restricting visitor access to North Shore neighborhoods following severe flooding in the area last April.
According to a federal lawsuit filed last week in U.S. District Court in Honolulu by California residents Susan and Geoffrey Flint, Kauai County officials used a series of emergency mayoral proclamations issued in the wake of the floods as a “convenient cover” to further their goal of eliminating legally permitted, short-term vacation rental operations in the area.
On April 14, 2018, former Mayor Bernard Carvalho signed an emergency proclamation in response to increasingly dangerous conditions on the North Shore caused by sudden torrential rains, flash flooding in Hanalei River and landslides near Lumahai.
The 60-day emergency proclamation allowed the county to receive emergency relief funding from the state and gave the mayor’s office broad legal authority to respond to the developing crisis. The mayoral proclamation has been extended nine times since then, most recently by Mayor Derek S.K. Kawakami in late August.
Using his expanded executive powers, Carvalho issued “Mayor’s Emergency Rule #1,” prohibiting visitor access and the operation of transient vacation rentals, or TVRs, in the Lumahai-Wainiha-Haena area. Violating the emergency order was a misdemeanor offense, punishable by up to a year in jail and a fine of $5,000.
The TVR ban took effect in early May 2018 and lasted nearly a year, until it was modified by the Kawakami administration to allow visitors with reservations at permitted TVRs to access the area.
According to a written statement accompanying Carvalho’s
announcement of the emergency rule on social media, the executive action was aimed at maximizing the county’s limited available resources.
“The safety of our residents and visitors is of our utmost priority, and we must be patient as our work in the affected, isolated areas continues,” Carvalho said in the May 4 statement. “We are focusing our efforts to assist our local residents, so that they have access to the resources they need now.”
But in their lawsuit, the Flints claim that Carvalho and other county officials seized the opportunity provided by the disastrous flooding and subsequent emergency proclamations to further their goal of driving TVRs off the North Shore.
“The flooding and rain events provided the county with convenient cover to maintain an ‘emergency’ pretext to continue and extend the ban,” the civil complaint says. “The county and its officials and employees intend to eliminate legal, nonconforming transient rentals including through the use of the Emergency Proclamation and the Mayor’s Emergency Rule #1.”
The complaint also alleges that racial or geographical bias is at least one of the driving factors behind the county’s purported anti-TVR campaign, stating that “the county and its officials and employees are motivated, in whole or in part, by an animus against plaintiffs and other transient vacation rental owners, on the basis of race or residency.”
In a guest commentary submitted to The Garden Island in July 2018, Geoffrey Flint called for Carvalho to end the daily convoys that served as the only vehicle access for North Shore residents beyond Waipa for the better part of a year until the road reopened in June.
“The convoys between Waikoko and Wainiha on the North Shore have gone from an initial necessity to an ongoing, unnecessary headache for those living in Haena and Wainiha,” Flint wrote. “This is an avoidable situation and a waste of taxpayer money to man the convoys.”
In the second half of his open letter to Carvalho, Flint moved on to the subject of vacation rental owners, which he said “have suffered tremendously,” alongside other North Shore businesses.
“There should not be discrimination against TVR owners,” Flint wrote. “TVR owners have been left out in the cold and need to get back to some sort of normalcy, too. I would ask you to end the emergency proclamations and stop the convoys.”
The Flints purchased a single-family home in Haena in early 2017 but, according to their lawsuit, were forced to sell in February of this year, after losing out on at least $75,000 in uncollected rental payments due to the mayor’s rule, plus additional costs associated with canceled reservations caused by numerous unexpected extensions of the emergency proclamation that kept their potential customers away.
Among the numerous counts in the civil complaint are claims that the county violated the Flints’ civil and due-process rights and failed to provide them equal protection guaranteed by state and federal constitutions. They are seeking damages and compensation “for the taking of their property interests in an amount to be proven at trial.”
Kauai County spokespeople did not respond Wednesday afternoon to TGI’s requests for comment in time for publication of this article.
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Caleb Loehrer, staff writer, can be reached at 245-0441 or cloehrer@thegardenisland.com.
