{"id":12262,"date":"2020-03-01T21:40:08","date_gmt":"2020-03-01T21:40:08","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=12262"},"modified":"2020-09-24T17:33:00","modified_gmt":"2020-09-24T17:33:00","slug":"board-talk-land-board-fines-two-more-owners-for-illegal-vacation-rentals-in-kona","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=12262","title":{"rendered":"BOARD TALK: Land Board Fines Two More Owners For Illegal Vacation Rentals in Kona"},"content":{"rendered":"\n
\"\"
Sheri Parish-Hamilton\u2019s Honaunau home before (top) and after (bottom).<\/figcaption><\/figure>\n\n\n\n

At its February 14 meeting, the Board of Land and Natural Resources continued to levy fines against landowners in Kona who had been using their houses in the Conservation District as vacation rentals.<\/p>\n\n\n\n

The board fined Sheri Parish-Hamilton, who owns a beachfront home on kuleana land in Honaunau, $10,000, which is $5,000 less than the Department of Land and Natural Resources\u2019 Office of Conservation and Coastal Lands (OCCL) had recommended.<\/p>\n\n\n\n

The OCCL had also recommended fining her $15,000 for building a single- family residence in the Conservation District without a permit and another $15,000 for constructing the home within the standard district setback of 15 feet on all sides of the property. The Land Board ultimately voted to reduce the former fine to $1,000 and eliminate the latter fine altogether.<\/p>\n\n\n\n

In total, the board fined Hamilton $13,000, including $2,000 in administrative costs.<\/p>\n\n\n\n

Hamilton\u2019s attorney, Onaona Thoene, had argued that the home the OCCL claimed was built without a permit actually existed on the property before Hamilton bought it from her cousin in 2003. She had sought to expand the house in 2005, which would have required a Conservation District Use Permit (CDUP), but later decided simply to repair the existing home.<\/p>\n\n\n\n

Thoene also pointed out that the house existed before the establishment of county or state setback rules, and was, therefore, a nonconforming structure.<\/p>\n\n\n\n

With regard to the OCCL\u2019s proposed $15,000 fine for the illegal vacation rental, Thoene argued that only owners who have had to apply for and receive a CDUP would be barred from such use.<\/p>\n\n\n\n

\u201cBecause the restriction against transient rentals apples to a \u2018permittee\u2019 and Ms. Hamilton\u2019s nonconforming use does not require a CDUP, it is improper for the Board to impose a fine based on a violation of a permit condition that Ms. Hamilton is not subject to,\u201d Thoene wrote in testimony to the board.<\/p>\n\n\n\n

Land Board member Chris Yuen noted that in the OCCL\u2019s report, the photo of the original house shows it was pretty run down. \u201cWas it habitable?\u201d he asked.<\/p>\n\n\n\n

Hamilton said it was and that it had been used as a transient rental.<\/p>\n\n\n\n

Yuen asked whether the house was demolished to build the current house, noting that a surveyor Hamilton had hired years ago called the structure a shack.<\/p>\n\n\n\n

\u201cWe actually used each wall. We reused the same materials in that house. Windows, trim. We used a lot of it. We slowly repaired it, but did not demolish,\u201d she replied.<\/p>\n\n\n\n

\u201cIs the house of the same design?\u201d Yuen asked.<\/p>\n\n\n\n

\u201cPretty much,\u201d Hamilton said.<\/p>\n\n\n\n

Land Board chair Suzanne Case asked whether the house was there in 1964, which is when a structure had to exist to be considered nonconforming.<\/p>\n\n\n\n

\u201cIt looks like it could have been there since 1864,\u201d Yuen joked.<\/p>\n\n\n\n

Maui Land Board member Jimmy Gomes seemed skeptical that all Hamilton did was repair and replace things on the house. \u201cLooking at this new home, it\u2019s completely revamped. It seems to be way larger than the original footprint,\u201d he said. Hamilton, however, assured him that it was not.<\/p>\n\n\n\n

\u201cEverybody would agree the original house is nonconforming. It looks like it\u2019s been there forever. I think we can all safely assume it was there since 1964,\u201d Yuen said. \u201cThe question is, is this old structure here that we\u2019re looking at in the pictures had that been … damaged or destroyed to the extent of more than 50 percent of its replacement cost?\u201d he asked. If it had, the department\u2019s rules do not allow it to be rebuilt without a permit, he argued.<\/p>\n\n\n\n

Thoene countered that the house was not destroyed and that the rules allow for repair and maintenance without a permit.<\/p>\n\n\n\n

\u201cMy gut feeling [is] it had lost more than 50 percent of the cost to replace it by the time these pictures were taken,\u201d Yuen said, referring to the photos of the home as it was in 2003. \u201cThe rules say the burden of proof to establish a legally nonconforming structure is on the applicant. The rule doesn\u2019t say whose burden it is to establish whether the replacement cost is more than 50 percent,\u201d Yuen said.<\/p>\n\n\n\n

He said he was very sympathetic with reducing the proposed fines.<\/p>\n\n\n\n

OCCL administrator Sam Lemmo said that the home was a single-family residence. \u201cIf you change that use to a commercial use, a transient vacation rental, it then becomes something different from what it was intended for. Therein lies the reason we\u2019re seeking a penalty for that,\u201d he explained. With regard to the fact that the house was unpermitted, Lemmo said he thought Hamilton seemed amenable to applying for an after-the-fact CDUP. Lemmo also said he did not have a problem with eliminating the proposed setback fine. \u201cThat could have been an overreach on our part,\u201d he said.<\/p>\n\n\n\n

\u201cAt the end of the day, I\u2019m interested in compliance. I\u2019m not interested in people\u2019s money, per se,\u201d Lemmo said, adding that<\/p>\n\n\n\n

his main focus was getting the maximum \u2014 $15,000 \u2014 for the illegal vacation rental to maintain the department\u2019s credibility with regard to enforcement. Hamilton said she stopped as soon as she received a letter from Lemmo\u2019s office informing her it was illegal. \u201cIf you want to fine them for the construction of a home, that\u2019s up to you. I\u2019m trying to get through this without a contested case,\u201d Lemmo said.<\/p>\n\n\n\n

Yuen said he thought the reconstruc- tion of the house was a violation based on the fact that the old house lost more than 50 percent of its value beforehand, but recommended only a $1,000 fine.<\/p>\n\n\n\n

With regard to the illegal vacation rental, Yuen proposed a $10,000 fine because \u201cthere is this possibility there is an argument they had a legal TVR … in the preexisting nonconforming structure.\u201d<\/p>\n\n\n\n

In addition to the fines, Yuen recom- mended that Hamilton apply for an after- the-fact CDUP within 180 days.<\/p>\n\n\n\n

The board approved Yuen\u2019s recommendations and Thoene indicated that Hamilton found them acceptable.<\/p>\n\n\n\n

Full Fine<\/strong><\/p>\n\n\n\n

Later in the meeting, the board did impose the maximum fine of $15,000 for an unauthorized transient rental near Ke\u2018ei Beach, plus a fine of $2,000 for administrative costs. The property is owned by Hugh Wilson, Ke\u2018ei Beach, LLC, Hubert Richards, and Elizabeth Richards.<\/p>\n\n\n\n

In this case, the home was fully permitted, but, according to the owners\u2019 attorney Veronica Nordyke, they were unaware of the permit conditions prohibiting short-term rentals when they inherited it.<\/p>\n\n\n\n

Once OCCL informed them of their permit conditions, the Wilsons immediately stopped all rentals and have been in compliance ever since, she said. She added that the family disagreed with the fines, since it was a first violation and no harm was done to the environment. She asked that the board reduce the fine to somewhere in the zero-to-$1,000 range.<\/p>\n\n\n\n

With regard to the proposed administrative expenses, Nordyke suggested that should be reduced as well, since the violation case was essentially the result of self-reporting to the county while trying to obtain a county TVR permit.<\/p>\n\n\n\n

Nordyke said the home had been in the family for more than 100 years and the recent vacation rentals helped fund needed repairs.<\/p>\n\n\n\n

\u201cThe fine should be measured based on harm to environment, not on any alleged profit. That is not a factor staff should be looking at,\u201d she said, adding, \u201cThere was no profit. They were receiving income, but it was to offset [repair costs].\u201d<\/p>\n\n\n\n

\u201cThat\u2019s still income,\u201d board chair Suzanne Case said.<\/p>\n\n\n\n

Board member Yuen added that by Nordyke\u2019s logic, someone could make $300 a night renting the home \u201cand as long as the guests were nice people and didn\u2019t break any coral or throw beer bottles around, there\u2019s no harm to the resource.\u201d The family could make $300,000 in income \u201cand no fine should be levied. That\u2019s your position,\u201d Yuen said.<\/p>\n\n\n\n

\u201cYes, that\u2019s part of our position,\u201d she replied.<\/p>\n\n\n\n

Board member Sam Gon explained that the fine was not so much for damage, but inappropriate use of the Conservation District.<\/p>\n\n\n\n

Nordyke suggested that the board update its penalty guidelines to reflect that. She also cited a January 2019 Hawai\u2018i Supreme Court decision that she said backed up her recommendations.<\/p>\n\n\n\n

After an executive session, the board unanimously voted to approve the $17,000 fine OCCL had recommended.<\/p>\n\n\n\n

\u2014Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

At its February 14 meeting, the Board of Land and Natural Resources continued to levy fines against landowners in Kona who had been using their houses in the Conservation District as vacation rentals. The board fined Sheri Parish-Hamilton, who owns a beachfront … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":12263,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,466],"tags":[3],"class_list":["post-12262","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-march-2020","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12262","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12262"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12262\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/12263"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12262"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12262"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12262"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}