HomeMy WebLinkAbout2020-07-14_pc_agenda INDEX OF Correspondence
File No.
Assigned Deputy: Deputy
Case No.: CC-2017-4
Case Name: Patricia D. McConnell vs. Planning Department
Case Description: TMK: (4)5-8-005:5, Hā‘ena, Kaua‘i
Appeal Decision of Planning Director related to Notice of Violation and
Order to Pay Fines for the Operation of Illegal Transient Accommodation
Use
Page 1
DATE
DESCRIPTION
PARTY INDEX
7/6/17 Letter memorializing actions taken by Planning Commission Michael A.
Dahilig
A
7/24/17 Letter to Gregory Kugle regarding assignment as Hearings
Officer
Nadine Y.
Ando
B
10/4/17 Request for additional information from Hearings Officer Nadine
Ando
Gregory W.
Kugle
C
7/31/18 Referral Letter to Boards and Commissions Michael A.
Dahilig
D
11/1/18 Referral Letter from Boards and Commissions to Hearings
Officer
Nicholas
Courson
E
7/22/19 Ltr to Hearing Officer re continuance of contested case hrg Gregory Kugle F
INDEX OF PLEADINGS
File No. 2
Assigned Deputy: Deputy
Case No.: CC-2017-4
Case Name: Patricia D. McConnell vs. Planning Department
Case Description: Appeal Decision of Planning Director related to the Notice of Violation and
Order to Pay Fines for the Operation of an Illegal Transient Accommodation
Use
TMK: (4) 5-8-005:5, Hā‘ena Kaua‘i
Page 1
DATE DESCRIPTION PARTY INDEX
6/9/17 Petition for Appeal of Planning Director’s Decision Gregory Kugle 1
12/14/18 Schedueling Order; Certificate of Service Harlan Kimura 2
7/5/19 Amended Scheduling Order, Certificate of Service Harlan Kimura 3
7/9/19 Respondent Planning Dept. of the COK's Motion for Summary
Judgment
Maryann
Sasaki
4
7/19/19 Second Amended Scheduling Order Harlan Kimura 5
8/14/19 Petitioner Patricia D. McConnell’s Memorandum in Opposition
to Respondent Planning Department of the County of Kauai’s
Motion for Summary Judgment; Declaration of Joanna C.
Zeigler; Exhibit “1”; Certificate of Service
Gregory Kugle 6
8/15/19 Agency Hearing Notice (McConnell; CC-2017-4) Harlan Kimura 7
8/20/19 Planning Dept Reply to Petitioner s Memorandum in Opposition Maryann
Sasaki
8
8/23/19 Respondent's Prehearing Statement; Certificate of Service Maryann
Sasaki
9
8/23/19 Respondent's Witness List; Certificate of Service Maryann
Sasaki
10
8/23/19 Respondent’s Exhibit List; Certificate of Service Maryann
Sasaki
11
8/23/19 Petitioner’s Pre hearing Statement; Certificate of Service Gregory Kugle 12
8/23/19 Petitioner’s Witness List; Certificate of Service Gregory Kugle 13
8/23/19 Petitioner’s Exhibit List; Certificate of Service Gregory Kugle 14
9/3/19 Minutes of Contested Case Hearing Harlan Kimura 15
10/9/19 Minute Order Regarding Pending Matters; Certificate of Service Harlan Kimura 16
11/4/19 Second Minute Order Regarding Pending Matters; Certificate of
Service
Harlan Kimura 17
11/18/19 Notice of Appearance of Counsel for Planning Dept.; COS John Mackey 18
INDEX OF PLEADINGS
File No. 2
Assigned Deputy: Deputy
Case No.: CC-2017-4
Case Name: Patricia D. McConnell vs. Planning Department
Case Description: Appeal Decision of Planning Director related to the Notice of Violation and
Order to Pay Fines for the Operation of an Illegal Transient Accommodation
Use
TMK: (4) 5-8-005:5, Hā‘ena Kaua‘i
Page 2
DATE DESCRIPTION PARTY INDEX
12/30/19 Transcription of 08/30/19 Contested Case Hearing Anela Segreti 19
01/21/20 Petitioner’s Closing Arguments; Proposed Hearing Officer
Report and Recommendation; Certificate of Service
Gregory Kugle 20
01/22/20 Planning Department’s Supplemental Exhibit List; Exhibit G;
Certificate of Service
John Mackey 21
1/31/20 Planning Department’s Closing Argument_ Proposed Findings of
Fact and Conclusions of Law_ Certificate Of Service
John Mackey 22
2/7/20 Petitioner's Reply to Respondent Planning Department of the
County of Kauai’s Closing Arguments & Proposed Findings of
Fact & Conclusions of Law, Certificate of Service
Gregory Kugle 23
4/1/20 Hearings Officer’s Report and Recommendation of a Contested
Case
Harlan Kimura 24
PLANNING COMMISSION
CONTESTED CASE INFO SHEET
Case Name: Patricia D. McConnell vs. Planning Department
Case No.: CC-2017-4 TMK: (4)5-8-005:5, Hā‘ena, Kaua‘i
Assigned Deputy: SELECT Choose an item.
Planning Contact: INSERT Planning contact person
Case Description: Appeal Decision of Planning Director related to the Notice of Violation
and Order to Pay Fines for the Operation of Illegal Transient
Accommodation Use
Prehearing Conference
INSERT Enter date @ 9am
Contested Case Hearing INSERT Enter date @ 10am
Prehearing (Position) Statement INSERT Enter date by 4:30pm
Witness List INSERT Enter date by 4:30pm
Exhibit List and Exhibits
INSERT Enter date by 4:30pm
Prehearing Motions INSERT Enter date by 4:30pm
Responses to Prehearing Motions INSERT Enter date by 4:30pm
Replies
[Due 3 business days upon receipt of Responses]
INSERT Enter date by 4:30pm
Hearing on the Prehearing Motions (if applicable) to be held immediately prior to
the Contested Case Hearing
PARTIES
Attorney for Applicants/Petitioners:
Damon Key Leong Kupchak Hastert
Gregory W. Kugle
Joanna C. Ziegler
1300 Bishop Street, Suite 1600
Honolulu, Hawai‘i 96813-6452
Tel. No. (808) 531-8031
Fax. No. (808) 533-2242
Hearings Officer:
Harlan Y. Kimura, Esq.
Central Pacific Plaza
220 South King Street, Suite 1660
Honolulu, HI 96813
Tel. No. (808) 521-4134 (Office)
Tel. No. (808) 564-0811 (Direct)
Tel. No. (808) 226-2225 (Cell)
Fax No. (808) 521-0361
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
HEARING OFFICER’S
SCHEDULING ORDER;
CERTIFICATE OF SERVICE
HEARING (Scheduled):
Date: August 6-7, 2019
Time: 9:00 a.m. on both days
HEARING OFFICER’S SCHEDULING ORDER
On December 12, 2018 at 1:30 p.m. the Prehearing Conference was
held herein by telephone pursuant to Rule 1-6-7 of the Rules of Practice and
Procedure of the Kaua‛i County Planning Commission (“Commission Rules”).
Gregory W. Kugle and Joanna C. Zeigler appeared on behalf of Petitioner
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PATRICIA D. McCONNELL (“Petitioner”) and Maryann S. Sasaki appeared on
behalf of the PLANNING DEPARTMENT OF THE COUNTY OF KAUA‛I
(“Planning Department”). No other parties appeared.
Based upon the Prehearing Conference the following schedule shall
apply:
1. Contested Case Hearing to be held on August 6-7, 2019,
2019, commencing at 9:00 a.m. on both days;
2. Prehearing Statement due no later than July 29, 2019 at 4:30
p.m.;
3. Witness List due no later than July 29, 2019 at 4:30 p.m.;
4. Exhibit List and Exhibits due no later than July 29, 2019 at
4:30 p.m. Petitioner shall use Numbers to identify her Exhibits and the Planning
Department shall use Alphabets to identify its’ Exhibits;
5. Prehearing Motions as deemed necessary by any party shall be
due no later than July 8, 2019 at 4:30 p.m.;
6. Responses to any Prehearing Motions due by July 22, 2019 at
4:30 p.m.;
7. Replies due by 4:30 p.m. no later than three (3) business days
after service of the Response; and
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8. Hearing on any Prehearing Motions to be held immediately
prior to the commencement of the Contested Case Hearing, unless an Order
ruling on the same is issued prior thereto.
Any and all of the above-described pleadings shall be served by email
or facsimile transmission, with a hard copy served by regular mail, postage
prepaid, to all the parties and the Office of Boards and Commissions for the
County of Kaua‛i. The times set forth above are based upon Hawaiian Standard
Time (“HST”).
A Further Prehearing Conference may be requested by either party to
address any issues or concerns related to this Contested Case.
DATED at Honolulu, Hawaii, December 14, 2018.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on December 14, 2018.
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U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: gwk@hawaiilawyer.com
Attorneys For Petitioner
PATRICIA D. McCONNELL
MARYANN SASAKI, ESQ.
Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: msasaki@kauai.gov
Attorney for Ka‛āina S. Hull, Director,
County of Kaua‛i, Department of
Planning
MATTHEW M. BRACKEN, ESQ.
County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: mbracken@kauai.gov
ncourson@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
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U.S. Mail Hand
Delivery
Email
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
lagoot@kauai.gov
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DATED at Honolulu, Hawaii, December 14, 2018.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
HEARING OFFICER’S FIRST
AMENDED SCHEDULING
ORDER; CERTIFICATE OF
SERVICE
HEARING (Scheduled):
Date: August 7, 2019
Time: 9:00 a.m.
HEARING OFFICER’S FIRST AMENDED SCHEDULING ORDER
On July 5, 2019 at 1:30 p.m. a Prehearing Conference was held herein
by telephone pursuant to Rule 1-6-7 of the Rules of Practice and Procedure of the
Kaua‛i County Planning Commission (“Commission Rules”) at the request of
Maryann S. Sasaki, Counsel for the PLANNING DEPARTMENT OF THE
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COUNTY OF KAUA‛I (“Planning Department”), because she has a scheduling
conflict with the present Contested Case Hearing Date of August 6, 2019. Counsel
for Petitioner PATRICIA D. McCONNELL (“Petitioner”), Gregory W. Kugle, also
has a scheduling conflict with that date. Ms. Sasaki and Joanna C. Zeigler
participated in the Prehearing Conference. No other parties appeared.
Based upon the Prehearing Conference the Hearing Officer’s
Scheduling Order dated December 14, 2018 is hereby amended as follows:
1. Contested Case Hearing to be held on August 7, 2019,
commencing at 9:00 a.m.;
2. Prehearing Statement due no later than July 30, 2019 at 4:30
p.m.;
3. Witness List due no later than July 30, 2019 at 4:30 p.m.;
4. Exhibit List and Exhibits due no later than July 30, 2019 at
4:30 p.m. Petitioner shall use Numbers to identify her Exhibits and the Planning
Department shall use Alphabets to identify its’ Exhibits;
5. Prehearing Motions as deemed necessary by any party shall be
due no later than July 9, 2019 at 4:30 p.m.;
6. Responses to any Prehearing Motions due by July 23, 2019 at
4:30 p.m.;
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7. Replies due by 4:30 p.m. no later than three (3) business days
after service of the Response; and
8. Hearing on any Prehearing Motions to be held immediately
prior to the commencement of the Contested Case Hearing, unless an Order
ruling on the same is issued prior thereto.
Any and all of the above-described pleadings shall be served by email
or facsimile transmission, with a hard copy served by regular mail, postage
prepaid, to all the parties and the Office of Boards and Commissions for the
County of Kaua‛i. The times set forth above are based upon Hawaiian Standard
Time (“HST”).
A Further Prehearing Conference may be requested by either party to
address any issues or concerns related to this Contested Case.
DATED at Honolulu, Hawaii, July 5, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on July 5, 2019.
2
U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: gwk@hawaiilawyer.com
JCZ@hawaiilawyer.com
Attorneys For Petitioner
PATRICIA D. McCONNELL
MARYANN SASAKI, ESQ.
Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: msasaki@kauai.gov
Attorney for Ka‛āina S. Hull, Director,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA‛I
NICHOLAS COURSON, ESQ.
First Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: ncourson@kauai.gov
DNakamatsu@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
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U.S. Mail Hand
Delivery
Email
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
asegreti@kauai.gov
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DATED at Honolulu, Hawaii, July 5, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
MATTHEW M. BRACKEN 10267
County Attorney
MARYANN SASAKI 10458
Deputy County Attorney
Office of the County Attorney, County of Kaua'i
4444 Ptice Street, Suite 220
Lrhu'e, Hawai'i 96766
Telephone: (808) 241-4930
Email: rnsasaki@kauai.eov
Attorney for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL.
Petitioner,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
cc-20t7-4
TMK: (4) 5-8-005:005
RESPONDENT PLANNING
DEPARTMENT OF THE COUNTY OF
KAUAI'S MOTION FOR SUMMARY
JUDGMENT; MEMORANDUM IN
SUPPORT OF MOTION FOR SUMMARY
JUDGMENT; DECLARATION OF MIKE
LAURETA; EXHIBITS A-E;
DECLARATION OF BRITNI
LUDINGTON-BRAUN; EXHIBIT I ;
DECLARATION OF COUNSEL;
CERTIFICATE OF SERVICE
HEARING:
Date: August 7,2079
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura, Esq
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Respondent.
vs.
RESPONDENT PLANNING DEPARTMENT OF THE
COUNTY OF KAUAI'S MOTION FOR SUMMARY JUDGMENT
Respondent, PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I (the
"Planning Department"), by and through its undersigned attorneys, hereby submits this Motion
for Summary Judgment on the Petition to Appeal Decision of the Planning Director Relating to
the Petitioner's failure to comply with Kauai County Code $ 8- l 8. I (b) on the grounds that there
are no genuine issues as to any material fact or matter of law in the above-entitled case.
This motion is made pursuant to the Rules of Practice and Procedure of the Kaua'i
Planning Commission Rule l-6-16 and is supported by the attached Memorandum in Support of
Motion for Summary Judgment; Declaration of Mike Laureta, Declaration of Britni Ludington-
Braun, Declaration of Counsel, Exhibits, the record and files herein, and such other matters as
may be presented at the hearing and considered by the Hearing Officer.
DATED: Llhu'e, Kaua'i, Hawai'i, July 9, 2019
MATTHEW M. BRACKEN
County Attorney
B
MARYANN SASAKI
Deputy County Attorney
Attomeys for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
2
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitior-rer,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
Respondent.
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
cc-2017-4
TMK: (4) 5-8-005:005
MEMORANDUM IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
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MEMORANDUM IN SUPPORT OF M OTION FOR SUMMARY JUDGMENT
I. STATEMENT OF FACTS
Much as Ordinance 864 was implemented because the County found a compelling need
to regulate family transient vacation rentals on Kaua'i to visitor designated areas ("VDA"),
because their unregulated growth was causing significant negative impact to certain residential
neighborhoods [Ordinance 864, enacted March 7,2008], Ordinance No. 1002 was passed to
address the same issues regarding homestays and prohibiting any homestays from operating
outside of VDAs.
In bringing the instant appeal, Patricia D. McConnell ("Petitioner") owner of the subject
property located 4813 Ananalu Road, Hanalei, Hawai'i TMK No. (5) 8-005:005 (the "Subject
Property") seeks to flout the explicit provisions regarding homestays in the Kaua'i County Code
("KCC" or the "Code") by operating a homestay transient vacation accommodation outside a
VDA absent any permits and in direct violation of the Comprehensive Zoning Ordinances
Chapter 8, KCC, 1987 as Amended (CZO.) There are no mitigating circumstances here.
As set forth in the Air BnB Evidence Checklist - TVR Inspections and the Investigation
Report ofRespondent dated January 28,2076 and January 10,2017, respectively, prepared by
the Planning Department, the Petitioner has never possessed a homestay zoningpermit, a
nonconforming use certificate and operates outside a visitor designation area in violation of KCC
$ 8-18.1(b).
On January 71,2017 , the Respondent via a Cease and Desist Letter from the Planning
Department, notified the Petitioner that she ought to stop operating the Subject Property as a
transient accommodation and cancel all transient accommodation commitments for the Subject
Property. The Cease and Desist Letter also informed the Petitioner that she would be subject up
to a $ 10,000 fine, and $ 10,000 for every day the violation should persist.
On May 23,2017,via a Notice of Violation & Order to Pay Fines, the Planning
Department informed Petitioner that she was in continued breach of the ZoningCompliance
Notice, and fines could continue to accrue up to $ 10,000 per day.
On or around Aprll 12,2017 , a memorandum was prepared contemporaneously with a
meeting with Petitioner in which Petitioner stated that she did not see how she was violating the
law.
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On June 9,2017 another Investigation Report was prepared by Respondent indicating the
Petitioner was continuing operations of her illegal homestay.
III. STANDARD OF REVIEW
The purpose of a motion for summary judgment is to expedite matters where there is no
genuine issue of material fact. Flint v. Mackenzie,53 Haw. 673,672,501 P.2d 357,357 (1972).
Here, the Planning Commission should expedite this case and resolve the Petitioner's challenge
to the Zoning Compliance Notice and the Notice of Violation and Order to Pay Fees. The
Petitioner's argument cannot present a genuine material issue of fact. She is operating her
homestay outside of every parameter of the law. There is no factual dispute with respect thereto.
IV. LEGAL ANALYSIS
Where the terms of a statute are plain, unambiguous and explicit, a Court is not at liberty
to look beyond that language for a different meaning. Instead, their sole duty is to give effect to
the statute's plain and obvious meaning. State v. Stan's Contracting. Inc.. I 1 1 Hawai'i 17,24,
137 P.3d 331, 338 (2006). Here the Code could not have been clearer. "Homestay operations are
prohibited outside of the Visitor Destination Area (Ord. 987, June 19,2015; Ord. No. 1002. May
18,2016). Incidents of continued violation of the law seem to extend from at least
January 28,2016 to March 16,2017 .
V. CONCLUSION
Petitioner must be compelled to cease operations of this homestay, and perhaps more
effective than a threatened injunction would be an appropriate fine. In this matter where the
behavior has gone on for years and Petitioner persists on flouting the law and admits she is doing
so despite all efforts by the Planning Department, Planning Department, pursuant to KCC $ 8-
aJ
3.5(bXlXB)-(C), seeks ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) in
fines and an order that the Petitioner Cease and Desist the operation of the her homestay.
DATED: Lrhu'e, Kaua'i, Hawai'i, July 9, 2019.
MATTHEW M. BRACKEN
County Attorney
ilW,{nil//ti
MARYANN SASAKI
Deputy County Attorney
Attorneys for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
4
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
cc-2017-4
TMK: (4) 5-8-005:005
DECLARATION OF MIKE LAURETA;
EXHIBIT A - E
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PATRICIA D. MoCONNELL,
Petitioner,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
Respondent.
DECLARATI ON OF MIKE LAURETA
I, MIKE LAURETA, based upon personal knowledge, do declare under penalty of law,
that I have personal knowledge that the following is true and correct:
1. I am employed by the County of Kaua'i, Planning Department as a Program
Manager.
2. I am in charge of inspecting for and enforcing violations of the Comprehensive
Zoning Ordinance.
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3. Pursuant to Hawai'i Rules of Evidence Rule 803(b), I am custodian of records of
the Planning Department.
4. The annexed documents were made at or near the time by someone with
knowledge thereof.
5. Making the record is a regular practice of that activity.
6. Annexed hereto as Exhibit A, is a true and correct copy of a Planning Department
Air Bnb Evidence Checklist - TVR Inspections dated January 28,2016.
7 . Annexed hereto as Exhibit B, is a true and correct copy of a Planning Department
Investigation Report dated January 1,2017
8. Annexed hereto as Exhibit C, is a true and correct copy of the Zoning Compliance
Notice dated January 11, 2017.
9. Annexed hereto as Exhibit D is a true and correct copy of Notice of Violation &
Order to Pay Fines dated May 23,2017 .
10. Annexed hereto as Exhibit E, is a true and correct copy of a Planning Department
Investigation Report dated after March 12.2017.
I I . The Subject Property is located outside of the visitor designation area, and does
not possess a valid permit or non conforming use certificate.
I declare under penalty of perjury under the laws of the State of Hawai'i that the
foregoing is true and correct.
DATED: Lihu'e, Hawai'i, July 9, 2019.
2
Program Manager
AlRbnb Evidence Checklist - TVR lnspections
Date:1ngtrcTMK: saoosoos
lnvestigation Type: RequestI Complaint f]
Homestay EJtirgl" fimily or I multi-familyorTVR
Owner Name:pATRlClA D, MCCONNELL
Operation Name:"THE SONG OF THE JUNGLE" TVR
Property Address:4813 ANANALU RD
Researched by:Bambi
AlRbnb #:
Site Manager's Name:
Contact Phone:
Contact Email Address
Was the TVNC & SP #'s listed on AlRbnb?
NCUC/ TVR permit# /
Plannin g Dept
TVNC if a
ows17o7oa9-01Dept. Taxation GET rnr[4
#
lnternet Advertisi list all found
Personalweb e
BREG- Business Registration
{Other vrbo.coml481 1 78 & vrbo.com/'l 30810
Are the TVNC & SP # listed on web?Yes No
ffi neal Property Assessment / Classification VACATION RENTAL
fl nentat Cars- COK DMV (List License & Date)Verified?
I Zoning (ie. VDA, Commercial, Residential)
Open - North Shore Special Planning Area dev. plan
Comments:
Attachments/ Exhibit f
Version 7 AlRbnh
EXHIBIT A
Requirements
vesf rvolJ
ves[_l r.ro[-l
I ON REPORT
S:T
:580 5005
ON :o
,PATRICIA D
WEB SITE: airbnb rt
t-ac ()uts v
DATE: 1l1ill17
1. Research of online "com found the su transient
matchi the 262248
the noted with Realwithand
lwas able to determirrerecords
CONTACT:
EXHIBIT B
:.
::
:
::
..j'
I
Rernard ['. Carvalho, .fr.
Iv,[ayor
Wallace G. Rezentes, Jr.
Ivlanaging l)irector
Michael
Dirdctor of
Ka'[ina S. Hull
Dcputy Dircctor of Planning
PLANNING DEPARTMENT
I!nforcement Division
Countl' of K:rua'i, State of Hawai'i
{.1-14 Rice Strccr. Suire A-47i, Lil'ru'e. Hawai'i 96766
l'Er- ({,t08) 21r-4050 Ftu\ (S08) ?1t-6699
ZONING COI\,IPLIANCE NOTI CIi
CI'ITTIFIEI)rJAit 1 1 l}fi
Prtricia D. N{cConnell
104 llndlich Dr.
Santa Cruz, CA 95060
SIIB.IECT: Zaning Yiolation for Transient Accommodation flse at:
.{813 Ananalu Rd
TMK: 5-8-005:005
l'he Plaming Department conducted an investigation of the subject property and found the
establishrnent of a vacatiotr rental operation. This is considered a violation of the following
provisions of the Comprehensive Zoning Ordinance, Chapter 8, Kaua'i County Code, i987, as
Amended (CZO):
OI{DINANCE and VIOLATIONS
t. Section 8-8.1(b) Gcneral Provisions for Homestays
Homestay'operations ure prcthibitecl ctutside of the k'isitor De stinution,4rea (1/D.4).
2. Section 8-17.8 Singlc Famill'Transient Vacation Rentals.
ilolu'ithstantling em1' untlerly'ing zoning designation uncl w'itlt the exception oJ'properties
on the Natianal or State Resister of ltistoric Places, single family transient yac{ttion
renluls cre prohibited in all areos not designatecl as llisitor Destination Areas.
Violation;
Thc unauthorized use of the subject propertl, for Transient Accommodation outside
of the designated visitor Designation Area constitutes a vioration.
EXHIBIT C
:.\
Pursuant to Chapter 8, Kaua'i Count-v Code, you are tlirected to complv rvith the follorving
requircmen ts immediatell':
I. Ce:rsc and desist the use of the subject property as a 'I'ransient Accommodation(s);
2. Cancel rll 'l'ransient Accomnrodations commitrnents for the propertv.
Please lind attached Count-r,Ordinance No. 1002 ibr y'our ret'erence. lncluding but not linrited to
Section 8-17.8 citerl above, Orclinance |io. 904 specifically regulates the use and prohibition of
homestays on Kauai. (Chapter 8, Kaua'i County Code, 1987. as amended).
Pursuant to Coung Ordinirnce *-o. 919 (also attached), any' violation(s) of the Comprehensive
Zoning Ordinance (C.ZO) may result in a line of up 1r: $ 10,000.00 andior up to $ 10,000,00 per day,
should the violation(s) persist. (L-haplcr 8, Kaua'i Countv Code, 1987, as anrcnded).
Please contact the Planning Departmefit at 741-4051, or ernail Bambi Einayo of my staff at
aemayo@kauai.gor', u,ithin 14 calendar days uporl receipt ol this letter to provide an
acknorvledgenrent ol the termination of the subject TVR. Failure to do so provides us rvith no
other altenrative but to pursue enlorcement action.
KA'
l)cputy l)irector of Plaming
cc: County Attome,v
Attachrnents
Bcrnard P. Carvalho, Jr.
\ [al or
Wallace G. Rezentes, Jr
I\lanaging f)irector
CERTIFIED IVI;\IL
Patricia D. llcConnell
10.{ Entllich Dr.
Santa ('nrz, CA 95060
PI,ANNING DEPARTMENT
Enforcement Division
Coun$' of Kaua'i, State of Harvai'i
414.1 Ricc Street, Suite A-,17J, Lrhu'c, Harvai'i 96766
rBr- (80E) 24r-4050 FAX {808} 24t-6699
l\{ichucl A.
Dircctor of
Ka'Iiaa S. I{ull
[)cputl Director of Plinning
I'IAY 2 3 ZAfi
NO'TICE OF YIOLATION & ORDER TO PAY FINES
Patricia D. il{cConnell
.1813 Annnalu Rd.
Hanalei, HI96714
SUIiJECT: Zoning Violation for Transient Acconrmodation Use at:
4813 Ananalu Rd'tllK: 5-8-005:005
On March 31,2017, you rcceived the Depanment's Zoning Compliance Notice (ZCN). The ZCN
instructed you to immediately Cease and Desist the use of the subject property lbr transienl
accommodations. You were instnrcted to cancel all transient accommodation conrmitments for
the property.
On April 12.2017. the Department met with you (Patricia N{cComell). o\\,ner and administrator
o['the transient flccommodation operation. The Planning Departrnent cont']rmed that the continued
transieut accommodation operation (Homestay) use at the subject property is a violation of the
Cornprehensive Zoning Ordinance, Chapter 8, Kaua'i County Code, 1987, as Amended (CZO):
ORD INAIiCE :rnd VI OL;\'l I 0.r*
1. Scction 8-18.1(b) General Provisions for Homestays
I'lomestul'tstrterations are prohibitecl oulsicle of tke L'isitor Destination Area (l/DA)
An Equal Opportunit;,* Enplol'er
EXHIBIT D
PY
Notice
201 7
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Violation:
The Planning Department has confirmed that the subject property is currently bcing
used for a llomcstay operation. The continued use of the subject property for a
Homestay operation outside of the designated Visitor Designation Area constitutes a
violation,
Pursuant to:
Sec.8-3.5 Enforccment, Legal Procetlures and Penalties
(b) Civil Fines
(l) If the Director of the Planning deternine that any person, firm or corltoratiort is
not complying with a nolice of violation, the Direclor may have the party responsible for
lhe violctliott served, by matl or dcliv,ery, vith an order purntant to this section. The order
ma1, require the part.v respansihle ./br the violation to clo uny or all of the following:
(A) Correct the violation v,ithin lhe time specified in the order;
(B) Pay a civil fine not to exceed 810,A00 in the nunner, at tlze place, and before
the clate specified in the order;
(C) Pa)'a cinilfine up to 510,000 per drrr--fo, each day in whtch the violation
persists, in the rnanner and ut the time and place specified in the order.
(2) l'he order shall actvise the party respansible for the violatian th$t the order .shall
become final 30 days after the clqte of its de[ivery. The order shcll alsa advise tlrut the
Director's aclion may be appealed lo lhe Planning C'ommission.
(3) The provisions o.f the order is.suecl by the Director under this sectian shall become
final 30 culendar clays after lhe sertice <tf the order. The purties responsible for the
violation nuy ultpeul the oreler lo the Planning Commtssion pursucurt to its nies. The Jbrnt
af this appeal rnusl confornt to the PlanningComnissiort's rules, However, anappettl to
the Plunning Commission shall not stay unlt provision of order.
(4) T'he Direclor nray inslitute u civil aciion in any court oJ'cornpetent Jurisdiction for
erlforcement oJ'any order issued pursuanl to this section. LVhere the ciyil action has been
in.ttituted to enJbrce the civilfine imposed by said order, lhe Director need only shot, that
the nolice of violatiott ancl order v'ere served: thol a civilfine y,as imposed; the amount of
the civil fine imposed has not been paid; thttt either has not heen appealed or that il'
appeoled, the order was sustained by the Commissian wtd/or any Court action.
You are herein levied and ordered to pay a fine of te:r thousand dollars ($10,000.00) for the
aboye notetl violations to thc Planning Department.
You are hereby' ordered to cease and dcsist the illegal activities being conducted/performcd
on and from the premiscs as requircd b.v- larv.
You rrre hereby ordered to correcl the above use violations(s) rvithin 14 days of the date of
this notice. Should the violations not be remcdied rvithin 14 days from the date cf the Notice
of Yiolation .t Ortler to Pa.v Fines:
r This mattcr will be fonvarded to the Office of the Prosecuting Attorney;
r An additional fiae of S10,000 per violation, per d:ry, for cach day in ryhich sueh
yiolation prrsists sh*ll be levied.
A i.vtitten response to the Planning Department rvithin 14 days fiam the date cf this Notice of
Violation & Order to Pay Fines to address this issue is mandatory.
Payment of the $10,000 civil fine is also due rvithin 14 days from the date of this notice. Failure
1o address this issue rvill provide the Department rvith no other choice but to continue lelying li:res
each day the violaticn persists.
This detern:ination n"ray be appealed to the Planning Commission pursuant to Chapter 9 of the
Rules of Praslice and Procedure of the Planning Commission (R.PPPC), The time for any appeal
olan action of the Planning Director commences 21 days from the rlate of the adverse deeision
(RPPPC Ruiel-9-Z). An appeal of any action of the Planning Director must contain the
requiremenls oiRPPPC Chapter 9 to he considered by the Planning Commission.
l'he Rules of Practice and procedure of thc Planning Commission (RPPPC) are available online
lluough thc Planning Department's u,ehsite at:
http://r+rru,.kauai,gov/Goraernrnent,{)epanrnents/PlanningDepartnlent/tabirV6l lDeftrult.aspx.
Should you have any que:ticns, please leel free to contact Supervising lnspector Bambi Emayc
(808-241-4051), emailat rcmayo@kauai.gav or call Enforcernent Program Manager h{ichael
Laureta (808-24 I -407 I ).
I(A'AINA S. HULL
Deputy Director of Plaming
Cc: Otfice of the Ivlayor
Cor:nty Attorney
LJ
INVESTIGATI
ST
BUS
T
NAME:tr?HE SONG OF fHE JUNG],E"
(X) Web Re
?1r*:TMK:58005005 I,AND AREA
LoC: WailapaDi5": Hanalei
ZONING: O OWNER: MCCONNETL, FA?R.ICIA D
MNGR Co.SLUC DIST
SITE ADDR:48 3LOC #
}4&}IAGIHG COMPAIiIY;OWNER:
NAME: PATRICIA D, MCCONNELL
A}DIT:.BDDR: 104 ENDLICH DR
sAlsrA cRUz, cA 95060
HaIe'lan"I,ani oLFHONE:
of tshe Jungle"WEB SITE:
v sit,orgent ac t on opera tion
INSPECTOR: Bambi
Notice Of Violation Repo* 5116|17
1. Zoninq Compliance Notice (ZCN) dated V1y17 was issued to Patricia D. McConnell
forthe establishment of the Transient Accommodatian Operation on 4813-Ananalu Rd.,
TMK: 5-8-005:005, outside of the designated Visitor Desigll ation Area
2. Meetinq response at the Planning Dept. on 4/1417
a. Met with Patricia D. McConnell (owner) who crnc€ded to operating a Translgn!
Accommodation at $275 a night.
b. The Planning Dept. has offered a remedial aetion plan to rectrfy the violation
EXHIBIT E
rl
U
ri,
{
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In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitior-rer,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
Respondent
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
cc-2017-4
TMK: (4) 5-8-005:005
DECLARATION OF BRITNI LUDINGTON.
BRAIIN; EXHIBIT 1
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DECLARATION OF BR LUDINGTON-BRAUN
I, BRITNI LUDINGTON-BRAUN, do declare under penalty of law declare that
the fbllowing is true and comect
l. I am an ADU/TVR Enforcement Specialist with the County of Kaua'i
Planning Department.
2. On April 12,2017, the Planning Department met with owner Patricia D
McConnell regarding the operation of her illegal home stay located at 48 13 Ananalu Rd
Wailapa, Hawai'i
3. Despite being informed orally and in writing that the operation of a
homestay outside a visitor designated are is illegal, Ms. McConnell could not see how she
had a violation.
4. Although Ms. McConnell made the representation she would comply with
the Planning Department, as of the date hereof, she has not
5. No remedial action plan was agreed upon; Ms. McConnell appeared
reluctant to correct the noted violations
6. Annexed hereto as Exhibit l, is a memorandum drafted contemporaneously
with the meeting, it accurately and fairly reflects the meeting
I declare under penalty of perjury under the laws of the State of Hawai'i that the
foregoing is true and correct.
DATED: Lrhu'e, Kaua'i, Hawai'i, July 9, 2019.
Britni
CZM Permit T
Declarant
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Patricia D, NlcConncll
TMK: 58005005 4813 .4nanalu ltd. !\/ailapa
RE: l\{ecting to rectifl'violations on subject propertl
D*u1ll22Al7
On April L2,2OL'7 the Planning Department met with the property owner (Patricia D,
McConn ell) in response to the complia nce notice dated Jan ua ry 1l,2OL7 . The following
attended; Bambi Emayo, Patricia McConnell, and Britni Ludington-Braun.
The following are notes and observations of said meeting:
r ln the meeting Patricia told us that she will be running her operations till March
2018.
r Patricia doesn't see how she has a violation because according to her, the
Sovernment keep changinS the laws.
, On a couple accounts in the meeting Patricia threated, "if we stop her from
operating she's going to take off her clothes, leave them on the beach, and swim
out to the sharks and let them eat her."
. Patricia also made a racist remark implying that the Planning Department are
trying to get rid of the haole people.
. Patricia nrade a conrment to Bambi Emayo that he is heartless for stopping her
from oPerating.
r Patricia said she is going to work with the Planning Department toward zoning
cornpliance
o lt is noted, no remedial action plan has been agreed upon. The violator (Patricia
McCcnnell) is reluctant to correct the noted violations.
These are my observations noted.
BITITNI llIL,\.U.r-
ADU/TVR En{orcement Specialist
EXHIBIT 1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in H6'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
cc-2017-4
TMK: (4) 5-8-005:005
DECLARATION OF COUNSEL
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PATRICIA D. MoCONNELL,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I.
Respondent
DECLARATIO OF COUNSEL
I, MARYANN SASAKI, do declare under penalty of law that the following is
true and correct to the best of my knowledge and belief.
1. I am an attorney licensed to practice law in all courts of the State of
Hawai'i and the United States District Court for the District of Hawai'i. I am a member
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in good standing of all of the aforementioned courts
Petitioner,
I declare under penalty of perjury under the laws of the State of Hawai'i that the
foregoing is true and correct.
DATED: Lrhu'e, Kaua'i, Hawai'i, July 9, 2019.
Nfifffi,{n"
MARYANN SASAKI
Deputy County Attorney
Declarant
2
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
cc-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
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PATRICIA D. MoCONNELL,
Petitioner,
PLANNING DEPARTMENT OF THE
COLINTY OF KAUA'I,
Respondent.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date set forth below, a copy of the above
cited document, was duly served by email and depositing the same in the U.S. mail, postage
prepaid, upon the following:
VS.
GREGORY W. KUGLE, ESQ,
JOANNA C, ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, Hawai'i 96813-6452
Email: ewk@,ha waiilawver.corn
jcz@hawaiilawycr.com
Attomeys for Petitioner
PATRICIAL MCCONNELL
Attorney for Planning Commission
of the County of Kaua'i
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua'i
4444Ptrce Street, Suite 150
Lrhu'e, Kaua'i, Hawai'i 96766
Email: eching@kauai.eov
asegreti@kauai.gov
HARLAN Y. KIMURA, ESQ.
Central Pacific Plaza
220 South King Street, Suite 1660
Honolulu, Hawai'i 968 I 3
Email : hlrk@harlankimuralar,v.corn
Hearing Officer for the
Planning Commission of the
County of Kaua'i
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NICHOLAS R. COURSON, ESQ.
Deputy County Attorney
County of Kaua'i
4444 Rice Street, Suite 220
Lrhu'e, Kaua'i, Hawai'i 96766
Email : ncourson@kauai. gt-rv
DATED: Lrhu'e, Kaua'i, Hawai'i, July 9,2019
B
MATTHEW M. BRACKEN
County Attorney
tywffij,^
MARYANN SASAKI
Deputy County Attorney
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
J
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
HEARING OFFICER’S SECOND
AMENDED SCHEDULING
ORDER; CERTIFICATE OF
SERVICE
HEARING (Scheduled):
Date: August 30, 2019
Time: 9:00 a.m.
HEARING OFFICER’S SECOND AMENDED SCHEDULING ORDER
On July 19, 2019 at 10:00 a.m. a Prehearing Conference was held
herein by telephone pursuant to Rule 1-6-7 of the Rules of Practice and Procedure
of the Kaua‛i County Planning Commission (“Commission Rules”) at the request
of Gregory W. Kugle, Counsel for Petitioner PATRICIA D. McCONNELL
2
(“Petitioner”), because Petitioner will be unavailable on the present Contested Case
Hearing Date of August 7, 2019 due to her Goddaughter’s Wedding. At the
Prehearing Conference Petitioner was represented by Mr. Kugle and Joanna C.
Zeigler, and Respondent PLANNING DEPARTMENT OF THE COUNTY OF
KAUA‛I (“Planning Department”) was represented by Maryann Sasaki. No other
parties appeared.
Based upon the Prehearing Conference the Hearing Officer’s First
Amended Scheduling Order dated July 5, 2019 is hereby amended in its entirety as
follows:
1. Contested Case Hearing to be held on August 30, 2019,
commencing at 9:00 a.m.;
2. Prehearing Statement due no later than August 23, 2019 at
4:30 p.m. (1 week before);
3. Witness List due no later than August 23, 2019 at 4:30 p.m. (1
week before);
4. Exhibit List and Exhibits due no later than August 23, 2019 at
4:30 p.m. (1 week before). Petitioner shall use Numbers to identify her Exhibits
and the Planning Department shall use Alphabets to identify its’ Exhibits;
5. Prehearing Motions as deemed necessary by any party shall be
due no later than August 1, 2019 at 4:30 p.m.;
3
6. Responses to any Prehearing Motions due by August 15, 2019
at 4:30 p.m.;
7. Replies due by 4:30 p.m. no later than three (3) business days
after service of the Response; and
8. Hearing on any Prehearing Motions to be held immediately
prior to the commencement of the Contested Case Hearing, unless an Order
ruling on the same is issued prior thereto.
Any and all of the above-described pleadings shall be served by email
or facsimile transmission, with a hard copy served by regular mail, postage
prepaid, to all the parties and the Office of Boards and Commissions for the
County of Kaua‛i. The times set forth above are based upon Hawaiian Standard
Time (“HST”).
A Further Prehearing Conference may be requested by either party to
address any issues or concerns related to this Contested Case.
DATED at Honolulu, Hawaii, July 19, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on July 19, 2019.
2
U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: gwk@hawaiilawyer.com
JCZ@hawaiilawyer.com
Attorneys For Petitioner
PATRICIA D. McCONNELL
MARYANN SASAKI, ESQ.
Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: msasaki@kauai.gov
Attorney for Ka‛āina S. Hull, Director,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA‛I
NICHOLAS COURSON, ESQ.
First Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: ncourson@kauai.gov
DNakamatsu@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
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U.S. Mail Hand
Delivery
Email
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
asegreti@kauai.gov
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DATED at Honolulu, Hawaii, July 19, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
PLANNING COMMISSION HEARING OFFICER
AGENCY HEARING NOTICE
APPLICANT/PETITIONER: PATRICIA D. McCONNELL
APPLICATION NO. PETITION TO APPEAL DECISION OF THE PLANNING
DIRECTOR’S DECISION RELATED TO THE NOTICE
OF VIOLATION AND ORDER TO PAY FINES FOR THE
OPERATION OF AN ILLEGAL TRANSIENT
ACCOMMODATION USE FOR PROPERTY SITUATED
IN HĀ`ENA, KAUA`I, HAWAI`I, IDENTIFIED BY
KAUA`I TMK NO. (4) 5-8-005:005 CONTAINING 26,092
SQUARE FEET; CC-2017-4
DATE OF AGENCY HEARING: August 30, 2019, 90:00 a.m., Līhu‘e Civic Center, Moikeha
Building, Conference Room 3, 4444 Rice Street, Līhu‘e,
Kaua‛i, Hawai‘i 96766
NOTICE IS HEREBY GIVEN pursuant to Section 1-6-5 of the Rules of Practice and Procedure of
the Planning Commission, and Hawai`i Revised Statutes §91-9, that the following is scheduled for a
contested case hearing before Hearing Officer Harlan Y. Kimura, Esq.:
In the Matter of the Petition To Appeal the Decision of the Planning Director’s Decision
Related to the Notice of Violation and Order to Pay Fines for the operation of an Illegal
Transient Accommodation Use for Property Situated in Hā‛ena, Kaua`i, Hawai`i, identified
by Kaua`i TMK No. (4) 5-8-005:005 containing 26,092 square feet; CC-2017-4.
This matter concerns an Appeal of the Decision of the Planning Director to issue the Notice of
Violation and Order to Pay Fines for the operation of an Illegal Transient Accommodation Use for
property located in Hā‛ena, Kaua`i, Hawai`i.
The particular sections of the statutes and/or rules involved include, but not limited to: (1)
Ordinance Nos. 904, 919, and 1002; (2) Sections 8-1.5, 8-2.4, 8-17.8 and 8-18.1(b) of the
Comprehensive Zoning Ordinance for the County of Kaua‛i (“CZO”); and (3) Chapter 8, Article 17,
of the CZO.
Any party may retain counsel if the party so desires, and an individual may appear on his own
behalf, or a member of a partnership may represent the partnership, or an officer or authorized
employee of a corporation or trust or association may represent the corporation, trust, or association.
NOTE: Special accommodations and sign language interpreters are available upon request
five (5) days prior to the meeting date, to the County Planning Department, 4444 Rice Street,
Līhu‘e, Hawai‘i 96766. Telephone (808) 241-4050.
MATTHEW M. BRACKEN 10267
County Attomey
MARYANN SASAKI 10458
Deputy County Attorney
Office of the County Attorney, County of Kaua'i
4444 Rice Street, Suite 220
Lrhu'e, Hawai'i 96766
Telephone: (808) 241 -4930
Email : msasaki(@kauai.gov
Attorney for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
) cc-2017-4
) TMK: (4) 5-8-005:005
)
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) RESPONDENT PLANNING DEPARTMENT
) OF THE COUNTY OF KAUA'I'S REPLY
) TO PETITIONER PATRICIA
) MCCONNELL'S MEMORANDUM IN
) OPPOSTTTON TO RESPONDENT
) PLANNING DEPARTMENT OF THE
) couNTY oF KAUAI'S MOTION FOR
) SUMMARY JUDGMENT; CERTIFICATE
) OF SERVICE
)
) HEARING:
) Date: August 30,2019
) Time: 9:00 a.m.
) Hearing Officer: Harlan Y. Kimura
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Respondent.
Petitioner,
RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF
KAUA'I'S REPLY TO PETITIONER PATRICIA MCCONNELL'S
MEMORANDUM IN OPPOSITION TO RESPONDENT PLANNING DEPARTMENT
OF THE COUNTY OF KAUAI'S MOTION FOR SUMMARY JUDGMENT
It is irnpossible not to envy thc man u.ho can disrniss reason,
although we know how it must tum out at last. - Charles Sanders Peirce
I. INTRODUCTION
Patricia McConnell ("McConnell") has been operating an illegal bed and breakfast or
homestay for many years. As of January 28,2016, according to the Planning Department's
Investigation Report attached as Exhibit A to the Declaration of Mike Laureta, the Planning
Department ascertained that McConnell was operating an illegal homestay that was listed on Air
BnB in violation of KCC $$ 8-l7.ll and 8-17.8. The violation notice dated May 23,2017 gives
McConnell notice she is violating KCC $$ 8.18.1(b) and 8.35 levies a f,rne of $10,000 plus
$ 10,000 per day for continued violation. It is incontrovertible that McConnell operated January
28, 2016 through May 16, 2017 . McConnell herself conceded that she was operating an illegal
vacation rental at $27 5 per night on March 12, 2017. This stretch of illegal activity alone subj ects
McConnell to a $150,000 fine, ie a continuing violation subject to penalties of $10,000 per day.
There is no evidence that Ms. McConnell has ceased operations. There is no evidence that she
plans to cease operations.
II. ANALYSIS
A motion for summary judgment must be granted when there is no genuine issue of
material fact. In this case there is no dispute regarding the facts or the law. Here were
McConnell herself admitted guilt and the Code regulates transient rental stays outside of the
visitor destination area, it is impossible for the Hearing Officer to find other than McConnell was
operating an illegal transient rental and to fine her accordingly
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McConnell's memorandum in opposition contains a litany of petty complaints which do
not alter these facts. We will briefly review some of the "issues" raised by McConnell.
A. Admission of Evidence.
Petitioner misunderstands the legal standard regarding the admissibility of evidence in this
matter. The documents appended to Mr. Laureta's declaration are subject to the following.
(6) Records of regularly conducted activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made
in the course of a regularly conducted activity, at or near the time of the acts, events,
conditions, opinions, or diagnoses, as shown by the testimony of the custodian or
other qualified witness, or by certification that complies with rule 902(11) or a
statute permitting certification, unless the sources of information or other
circumstances indicate lack of trustworthiness. Haw. Rev. Stat. Ann. $ 626-1, Rule
803 (West).
The Br.rsiness Exception rule further provides
(l l) Certified records of rezularly conducted activity. The original or a duplicate
of a domestic or foreign record of regularly conducted activity that would be
admissible under rule 803(b)(6), if accompanied by a written declaration of its
custodian or other qualified person, certifying that the record was:
(A) Made at or near the time of the occuffence of the matters set forth by, or from
information transmitted by, a person with knowledge of those matters;
(B) Kept in the course of the regularly conducted activity; and
(C) Made by the regularly conducted activity as a regular practice. Haw. Rev.
Stat. Ann. $ 626-1, Rule 902 (West)
The "someone" named "Bambi" in McConnell's motion is Bambi Emayo a senior
investigator for the Planning Department. McConnell was notified in the Notice of Violation that
he should be contacted with respect to the fines levied on McConnell. Mr. Laureta is Bambi
Emayo's supervisor and the custodian of such records.
Moreover, the investigative report is sufficient to establish that the instant homestay was
outside the VDA. The following hearsay exception applies.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
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(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law-enforcement
personnel; or
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness. Fed. R. Evid. 803
(ernphasis added),
In this case, the declaration authenticates factual findings from a legally authorized investigation
McConnell has not indicated any reason the source of this information might be untrustworthy.
The Planning Department has no motive to misrepresent the location of the subject property
within the VDA.
[C]onsidering whether the sources of information recorded are trustworthy, a trial
court should also consider whether the sources had a motive to rnisrepresent the
information. Faqan v. Newark, 78 N.J.Super. at320,188 A.2d al 441. Warshaw v
Rockresorts. Inc., 57 Haw. 645, 652, 562 P.2d 428, 434 (1977)
The weakness of McConnell's case is also highlighted by McConnell's insistence that a
minor inconsistency between the documents taints all the evidence produced. Indeed, it is not
material whether or not McConnell signed a remediation agreement. It is clear that in either case,
she did not remediate the problem. In any case, Hawai'i courts disagree with McConnell that
such irregularities void all evidence.
[N]ot all mistakes, or allegations of mistake, in a company's business records will
render that company's record-keeping practices untrustworthy, and therefore
render their records inadmissible. In State v. Forman, the ICA held that "the vague
testimony that [a company] 'kept bad paperwork,' without more, [did] not warrant
a conclusion that the company's records as a whole were untrustworthy[,]
Nationstar Morte. LLC v. Kanaheh , 144 Haw . 394, 404, 443 P .3d 86, 96 (2019).
Moreover,
The Rule 56(e) requirement of personal knowledge and competence to testify may
be inferred from the affidavits themselves. See Barthelemy v.Lines Pilots
Ass'n, 897 F.2d 999, 1018 (9th Cir.1990) (holding that it was proper for court to
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rely on affidavits of defendant's representatives in negotiations because their
"personal knowledge and competence to testify are reasonably inferred from their
positions and the nature of their participation in the matters to which they swore");
Lockwood v. Wolf Corp. , 629 F .2d 603, 6l I (9th Cir.1980) (holding that because
attorney negotiated and handled legal transactions, it was "reasonable to assume
that he had personal knowledge of nonpayment).
Consequently, [the defendants] could attest to facts as to which it could be
reasonably inferred they would have personal knowledge as a result of their
"positions and the nature of their participation[.]" Barthelemy, 897 F.2d at 1018.
fDefendant] stated that he had "been President of Marine Planning International,
Inc. the developer of the Maui Isana Resort from 1987 to the present" (declaration
signed December 2, 1998). He made the declaration "from personal knowledge."
As the president of the development company, it may be reasonably inferred that
he had personal knowledge of the operation of the Resorl. fDefendant] stated that
he "was the Deputy Planning Director of the County of Maui from 1980 to
1984." He also ctated th4t he ty4s "Plauning Director from 1986 to 1991."
Thus. from his position as Deputv Planning Director and Planning Director of
theleOunty of Maui, it nq.ay lealsonabl-y be inferred that Hart had personal
knowledge of the policy with respect to hotel districts. Stallard v. Consol. Maui.
Inc., 103 Haw. 468, 47 5-7 6, 83 P.3d 731, 738-39 (2004).
We also note that according to the Rules of Practice and Procedure I -6-9, the Presiding
Officer shall not order or approve civil style discovery between parties. HRCP 56(f) says that the
court pqgy order discovery - discovery is not an imperative.
B. Reliable Probative Evidence.
Aside from McConnell's own admission against interest that she was, in fact, conducting an
illegal homestay, the Investigation Report dated January 10,2017 sets forth the evidence
determining McConnell's violation. She was found to be advertising on Air BnB and an
examination of Pictometry confirmed the property was indeed McConnell's. Thereby, and as
usual custom and practice, the investigator was able to determine that McConnell was in
violation of the law. That Investigation Report also indicates the specific provisions of the Code
that McConnell was violating. Equating that investigation with the statement of an unidentified
man (as McConnell does in her motion) is a puerile attempt to ignore the actual evidence.
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Discussions with neighbors, discussions with renters and proof of monetary transactions are not
necessary. In addition, we note that McConnell does not have a nonconforming use certificate
and the Planning Department does not know if she has been paying taxes on her transient
vacation rental. McConnell is simply operating outside the law.
Indeed,
aparty moving for summary judgment under Federal Rules of Civil Procedure Rule
56 need not support his or her motion with affidavits or similar materials that negate
his or her opponent's claims, but need only point out that there is [an] absence of
evidence to support the opponent's claims. For if no evidence could be mustered to
sustain the nonmoving party's position, a trial would be useless. Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Haw.277 ,301, 172
P.3d 102r,1045 (2007)
C. The Law.
It is very clear from the Motion for Summary Judgment, particularly the exhibits, which
laws McConnell is violating. The Planning Department does not have McConnell's penchant for
lugubrious verbiage. Verbatim citations are anathema to a succinct statement of the law and
issues. Considering McConnell's own admission, the investigation reports and the various letters
addressing her violations, the citation "Homestay operations are prohibited outside of the Visitor
Destination Areas pursuant to Ord. 987, June 19, 2015 and Ord. No. I 002, May I 8, 201 6" should
suffice. However, if McConnell requires the text of the laws violated, that is easy to provide. To
wit: KCC $8.18(b) provides.
A property owner that has obtained a homestay zoningpermit shall apply to renew
the zoning permit annually on the date of issuance of the homestay zoning pennit
in accordance with the following regulations:
(a) Each application to renew shall include proof that there is currently a valid
State of Hawaii general excise tax license and transient accommodations tax license
for the homestay operation. Failure to meet this condition will result in the
automatic denial of the application for renewal of the homestay zoning permit(s).
The applicant may reapply for renewal within the annual time allotment by
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presenting a currently valid State of Hawaii general excise tax license and transient
accommodation tax license for the homestay operation;
(b) Each application to renew shall include proof that the primary residential
structure(s) used for the homestay operation is the owner's primary residence, and
the respective owner is benefiting under Sec. 5,A.-l I of this Code for a homeowner's
exemption for the homestay site in the year preceding the date of renewal;
(c) Upon renewal, the Planning Department may initiate re-inspection of
properties for compliance with other provisions of this chapter or other pertinent
land use laws, and may withhold approval of a renewal application and issue cease
and desist notices to the applicant until all violations have been resolved;
(d) The applicant shall pay a renewal fee of seven hundred fifty dollars ($750.00)
to the Director of Finance. All renewal fees shall be deposited to the Transient
Accomrnodation Enforcement Account within Fund 251; and
(e) Enforcement of this section shall be subiect to Section 8-3.5 of the Kauai
CounW Code 1987. as amended. (Ord. No. 1002. May 18. 2016) (emphasis
added)
Synopsis: A homestay zoningpermit is required. The owner shall provide: a valid GET,
proof of primary residence, be subject to inspection; submit a renewal fee. McConnell is in
non-compliance with all these provisions. Moreover, enforcement is subject to the following:
KCC $ I 8-l 8. I (b) provides:
(b) Homestav operations are outside of the Visitor Destination
9 20t5 Ord. No. 1002 M I 2
(emphasis added).
McConnell is not in compliance with this provision either.
D. Fines.
KCC $8-3.5(b) gives the Planning Department the right to impose fines up to $10,000 per
day. The argument that only the Planning Department can impose such fines is specious given
the fact that the Motion for Summary Judgment is by the Planning Department. The Planning
Department seeks to enforce the fine by obtaining a recommendation from the Hearing Officer
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that $150,000 is appropriate given the continuous, willful violation of the law. Moreover, the
County could have, and still may, seek injunctive relief from the Fifth Circuit.
III. CONCLUSION
Irrespective of the inappropriate editorial comments and vituperative epithets included by
McConnell in her memorandum in opposition, McConnell still fails to make her case. By skirting
every detail and ignoring the obvious issue, McConnell seeks to continue to operate her illegal
homestay outside the law. That is why McConnell must be ordered to cease operations and pay a
fine of $ 150,000 that shall be levied against her by the Planning Department.
DATED: LIhu'e, Kaua'i, Hawai'i, August 20,2019.
MATTHEW M. BRACKEN
County Attomey
B
MARYANN SASAKI
Deputy County Attorney
Attomey for Respondent
PLANNING DEPARTMENT OF THE
COLINTY OF KAUA'I
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Mxtg{,:,
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
cc-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
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PATRICIA D. McCONNELL,
Petitioner,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
Respondent.
The undersigned hereby certifies that on the date set forth below, a copy of foregoing
document was duly served by email and depositing the same in the U.S. mail, postage prepaid,
upon the following:
Gregory W. Kugle, Esq.
Joanna C. Zeigler, Esq.
DAMON KEY LEONG KUPCHAK HASTERT
1003 Bishop Street, Suite 1600
Honolulu, Hawai'i 96813-6452
Email: ewk@hawaiil awver.cotll
VS
j cz@thawai ilawyer. com
CERTIFICATE OF SERVICE
Attorneys for Petitioner
PATRICIA D. McCONNELL
NICHOLAS R. COURSON, ESQ
Deputy County Attomey
County of Kaua'i
4444 Rice Street, Suite 220
Lfhu'e, Kaua'i, Hawai'i 96766
Email : ncourson@kauai. gov
Attorney for Planning Commission
of the County of Kaua'i
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua'i
4444 Rice Street, Suite 150
Lrhu'e, Kaua'i, Hawai'i 96766
Email : echine(Dkauai.eov
lagoot(Dkauai.gov
HARLAN Y. KIMURA, ESQ.
Central Pacific Plaza
220 South King Street, Suitel660
Honolulu, Hawai'i 968 I 3
Email : hyk(L0harl ankirnuralaw.corn
Hearing Officer for the
Planning Comrnission of the
County of Kaua'i
DATED: Lrhu'e, Kaua'i, Hawai'i, August 20,2019
MATTHEW M. BRACKEN
County Attorney
B ftfu*,lrtb t, ,.,
MARYANN SASAKI
Deputy County Attorney
Attomey for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
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MATTHEW M. BRACKEN 10267
County Attorney
MARYANN SASAKI 1.0458
Deputy County Attomey
Office of the County Attomey, County of Kaua'i
4444 Ptice Street, Suite 220
LIhu'e, Hawai'i 96766
Telephone: (808) 241 -4930
Ernail : rnsasaki({ikauai. gov
Attorney for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAIJA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
McConnell,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
cc-2017-4
TMK: (4) 5-8-005:005
RESPONDENT PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I'S
PREHEARING STATEMENT;
CERTIFICATE OF SERVICE
HEARING:
Date: August 30,2019
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura
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Respondent.
VS.
PLANNING DEPARTMENT'S PREHEARING STATEMENT
Respondent PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I
(the "Planning Department"), by and through its undersigned attorneys, respectfully submits its
Prehearing Statement in response to Petitioner PATRICIA D. McCONNELL's ("McConnell"),
Petition to Appeal Decision of the Planning Director's Decision Related to the Notice of
Violation and Order to Pay Fines for the Operation of an Illegal Transient Accommodation Use
for Property Situated in Ha'ena, Kaua'i, Hawai'i, identified by Kaua'i TMK No. (a) 5-8-005:005
containing 26,092 square feet. The Notice of Appeal was received by the Planning Commission
on June 13,2017. The contested case hearing on the matter is scheduled for August 30, 2019, at
9:00 a.m. The Department respectfully submits its Prehearing Statement pursuant to Chapter 6
of the Rules of Practice and Procedure of the Kaua'i County Planning Commission, Rule 7 of the
Hawai'i Rules of Civil Procedure ("HRCP"), Rule 7 of the Circuit Courts of the State of Hawai'i
("RCCH"), and the exhibits, records, and files herein.
I. INTRODUCTION
In 2008, the Kaua'i County Council concluded that there was "a compelling need to
regulate single-family transient vacation rentals on Kaua'i" because "the uncontrolled
proliferation of vacation rentals in residential and other areas" outside of designated Visitor
Destination Areas (VDAs) "is causing significant negative impacts to certain residential
neighborhoods."l Accordingly, the Council enacted Ordinance 864 to establish a regulatory
framework for the operation of single-family transient vacation rentals (TVRs). 2
I Ordinance No. 864, Bill No. 2204,Draft 4, adopted by Council February 21,2008, and approved by
Mayor March 7,2008.
2 As set out in Kaua'i County Code ("KCC") S 8-1.5, "Transient Vacation Rental" means a dwelling unit
which is provided to transient occupants for compensation or fees, including club fees, or as part of
2
Pursuant to Ordinance No. 864 beginning on March 7,2008, TVRs "are prohibited in all
areas not designated as Visitor Destination Areas."3 Notwithstanding this general prohibition,
any TVR outside a VDA in lawful use prior to March 7,2008, was allowed to continue operation
"subject to obtaining a Nonconforming Use Certifi cate."4 After March 30, 2009, no TVR
operations are permitted outside the VDA without a Nonconforming Use Certificate.
Ordinance 864 was implemented because the County found a compelling need to regulate
family transient vacation rentals on Kaua'i to VDAs because their unregulated growth was
causing significant negative impact to certain residential neighborhoods IOrdinance 864, enacted
March 7 ,20081, Ordinance No. 1002 was passed to address the same issues regarding homestays
and prohibiting any homestays from operating outside of VDAs fOrdinance 1002, enacted
June 3, 2006). After December 3 7,2076, unpermitted homestays were not permitted outside the
VDA. The Kaua'i County Code 1';KCC" or the "Code') $ 8-18.1(b) explicitly sets forth the
connection between homestays and TVRs. To wit:
(b) Homestay operations are prohibited outside of the Visitor Destination Area
(VDA). (Ord. No.987, June 19,2015; Ord. No. 1002, May 18,2016)
McConnell owns and operates a homestay outside of the VDA. McConnell's operation is
therefore unlawful. Once notified that she was in violation of the CZO, McConnell openly
disregarded the Planning Department's notice to cease and desist operations and continues to do
interval ownership involving persons unrelated by blood, with a duration of occupancy of one hundred
eighty (l 80) days or less.
3 The provision of Ordinance No. 864 barring TVRs outside of the VDA is now codified, as amended, in
KCC $ 8-17.8 et seq.
4 The provisions of Ordinance No. 864 relating to the continued operation of lawful TVRs outside the
VDA subject to Nonconforming Use Certificates are now codified in KCC $ 8-17.10.
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so. The Planning Department justifiably issued a Notice of Violation and Order to cease and
desist her homestay operations.
II. STATEMENT OF THE CASE
In bringing the instant appeal, McConnell, owner of the subject property located
4813 Ananalu Road, Hanalei, Hawai'i TMK No. (a) 5-8-005:005 (the "Subject Property")
seeks to flout the explicit provisions regarding homestays in the Code by operating a homestay
outside a VDA absent any permits and in direct violation of the Comprehensive Zoning
Ordinances Chapter 8, KCC, 1987 as Amended (CZO.) There are no mitigating circumstances
here.
As set forth in the Air BnB Evidence Checklist - TVR Inspections and the Investigation
Report ofRespondent dated January 28,2016 and January 10,2017, respectively, prepared by
the Planning Department, McConnell has never possessed a homestay permit and operates
outside a visitor designation area in violation of KCC $ 8-18.1(b). (See Exhibits A and B,
annexed hereto.)
On January I I , 2017 , the Respondent via a Zoning Compliance Notice from the Planning
Department notified McConnell that she ought to stop operating the Subject Property as a
transient accommodation and cancel all transient accommodation commitments for the Subject
Property. The Zoning Compliance Notice also informed McConnell that she would be subject up
to a $ 10,000 fine, and $ 10,000 for every day the violation should persist. (See Exhibit C,
annexed hereto.)
On May 23,2017 , via a Notice of Violation & Order to Pay Fines, the Planning
Department informed McConnell that she was in continued breach of the Zoning Compliance
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Notice, and fines could continue to accrue up to $10,000 per day. (See Exhibit D, annexed
hereto.)
On May 23,2017, another Investigation Report was prepared by the Planning
Department indicating McConnell was continuing operations of her illegal homestay. (See
Exhibit E, annexed hereto.)
On or around April 12, 2077, a memorandum was prepared contemporaneously with a
meeting with McConnell in which McConnell stated that she did not see how she was violating
the law. (See Exhibit F, annexed hereto.)
UI. POSITION STATEMENT
By McConnell's own admission, she was conducting an illegal homestay, the
Investigation Report dated January 10,2017 , sets forth the evidence determining McConnell's
violation. She was found to be advertising on Air BnB and an examination of Pictometry
confirmed the property was indeed McConnell's. (See Exhibit B, annexed hereto.) Thereby, and
as usual custom and practice, the investigator was able to determine that McConnell was in
violation of the law. That Investigation Report also indicates the specific provisions of the Code
that McConnell was violating.
As to the constitutionality of County ordinances relating to the designation of VDAs and
TVRs, state law expressly grants County's the zoning authority to regulate the use of land within
the County. See HRS $ 46-4. Zoningis "a legislative act subject to the deference given to
legislative acts," including a "presumption of validity " Save Sunset Beach Coal. v. Citv & Ctv
of Honolulu, l02Hawai'i 465,474,78 P.3d 1, 10 (2003). McConnell cannot overcome the high
bar required to show unconstitutionality of this provision. Under KCC $ 8- l7.l I (b),
"Advertising of any sort which offers a property as a transient vacation rental shall constitute
5
prima facie evidence of the operation of a transient vacation rental on said property and the
burden of proof shall be on the owner. . . to establish that the subject property is not being used as
a transient vacation rental or that it is being used for such purpose legally."
Here, it is undisputed that McConnell was advertising her homestay. This constitutes
prima facie evidence of unlawful transient vacation rental activity. Having received a Notice of
Violation ordering McConnell to cease homestay use of the property, McConnell took no action
to carry her burden in establishing that her property was not being used as a TVR.
HRS $ 46-a@) grants the counties the zoning power to enact ordinances governing the
areas in which various land uses may take place or otherwise be subject to restriction. This
zoningpower is to be "liberally construed in favor of the county exercising" it. Id.
Act 186, 1980, provided that "the several counties shall, by amendment of their zoning
ordinances, limit the location of time share units, time share plans and other transient vacation
rentals, within such areas as are deemed appropriate." 1980 Haw. Sess. Laws Act 186, $ 4 at
306.
Pursuant to Act 186, the County Council enacted Ordinance 436 "for the purpose of
designating locations, referred to as 'Visitor Destination Area,' in which transient vacation
rentals, time share units and time share plans are to be allowed." By extension, following the
enactment of Ordinance 436 transient vacation rentals, time share units and time share plans
were prohibited outside designated Visitor Destination Areas (VDAs). Maps delineating the
boundaries of VDAs in Po'ip[, Lrhu'e, Wailua-Kapa'a, and Princeville were incorporated into
Ordinance 436. Additionally, Zoningmaps containing designated VDAs are available for public
viewing at the Planning Department.
6
In creating these VDAs the County Council enumerated eight specific factors that were
considered:
1. The General Plan, Development Plan andZoning designations for such areas.
2. The suitability of such areas for visitor related uses.
3. The existence in such areas of lands designated for Resort use in the General Plan
or having Resort zoning.
4. The availability of public services and facilities in such areas.
5. The potential for conflict with other uses in such areas
6. The availability in such areas of large numbers of hotel and multifamily dwelling
units suitable as accommodations by temporary visitors.
7 . The availability in the areas of outdoor or commercial recreational facilities, such
as beaches, golf courses, tennis courts, and other facilities.
8. The availability in the areas of tourist related comrnercial facilities, such as gift
shops, food stores, recreational equipment and service shops, tour and
transportation service terminals, restaurants, bars, night clubs, cabarets, shopping
centers, theaters, auditoriums, and other similar facilities.
[ord.436]
When initially enacted in 1982, VDAs only related to the operation of multi-family
transient vacation rentals. In 2008, however, Ordinance 864 established a regulatory framework
barring the operation of single-family transient vacation rentals outside of established VDAs.
To constitute a deprivation of due process, a civil statute must be "so vague and indefinite
as really to be no rule or standard at all." Paul v. Dep't of Transp.. State of Hawai'i, I l5 Hawai'i
416, 431, 168 P.3d 546, 561 (2007). Uncertainty in a statute "is not enough for it to be
unconstitutionally vague; rather, it must be substantially incomprehensible." Id. at 431,168
P.3d at 561 (intemal citations and brackets omitted) (emphasis added).
7
There is nothing "substantially incomprehensible" about the designation of VDAs by the
Kaua'i County Council. They are clearly set out in Ordinance 436, and are currently defined in
KCC $ 8-1.5 as "those areas designated as Visitor Destination Areas on County of Kaua'i
ZoningMaps," which are available to the public at the Planning Department. Even if McConnell
never availed herself of the opportunity to view the Zoning Maps containing VDA designations
at the Planning Department, persons owning property within a State are charged with knowledge
of relevant statutory provisions affecting the control or disposition of such property." Texaco.
Inc. v. Short, 454 U.S. 516,532 (1982), see also Hawaiian Bell Tel. Co. v. Oriental Telephone
Co., 6 Haw. 393,401 (1883) ("Everyone is presumed to know the law."). Moreover, McConnell
received direct notice that her home was outside the VDA in the Zoning Compliance Notice she
received shortly in January 2017. She chose to ignore this notice and continued homestay
operations.
The Hawai'i Supreme Court has held that section 9l-10(l), "is intended to direct
administrative agencies to admit any and all evidence presented to thern 'limited only by
considerations of relevancy, materiality and repetition."'Chock v. Bitterman, 5 Haw. App. 59,
65,678 P.2d 576,581 (1984). The purpose of section 91-10(1) is to "free administrative agencies
from the bounds of any technical rules of evidence, and its intent was to require agencies to
admit evidence that would have been inadmissible in common law trials." Chock v. Bitterman,
5 Haw. App. 59, 65,678P.2d.576,581 (1984) (internal quotes and citations omitted).
Accordingly, the Hawai'i Rules of Evidence, and in particular, the hearsay rules within
the Rules of Evidence, do not apply to contested case proceedings. The Hearing Officer is free to
admit and consider "any oral or documentary evidence," and it was up to them as the triers of
fact to weigh the evidence received.
8
V. CONCLUSION
McConnell must be compelled to cease operations of this homestay, and perhaps more
effective than an injunction in the Fifth Circuit would be an appropriate fine. In this matter where
the behavior has gone on for years and McConnell persists on flouting the law and admits she is
doing so despite all efforts by the Planning Department, the Planning Department pursuant to
KCC $ 8-3.5(bXlXB)-(C), seeks ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000)
in fines and an order that McConnell Cease and Desist the operation of the her homestay.
DATED: Lrhu'e, Kaua'i, Hawai'i, August ?? ,2019.
MATTHEW M. BRACKEN
County Attorney
-tW
MARYANN SASAKI
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
9
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
cc-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
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PATRICIA D. MoCONNELL,
McConnell,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
Respondent.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date set forth below, a copy of
RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I'S
PREHEARING STATEMENT, was duly served by email and depositing the same in the
U.S. mail, postage prepaid, upon the following:
Gregory W. Kugle, Esq.
Joanna C. Zeigler, Esq.
DAMON KEY LEONG KUPCHAK HASTERT
1003 Bishop Street, Suite 1600
Honolulu, Hawai'i 96813-6452
VS.
Email : gwk({Dhawaiilawver. corn
j cz({0hawai il awyer. com
Attorneys for McConnell
PATRICIA D. MCCONNELL
NICHOLAS R. COURSON, ESQ
Deputy County Attomey
County of Kaua'i
4444 P.ice Street, Suite 220
Lrhu'e, Kaua'i, Hawai'i 96766
Emai I : nco r.rrso nf(Dkauai. qov
Attomey for Planning Commission of the County of Kaua'i
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua'i
4444 Rice Street, Suite 150
LThu'e, Kaua'i, Hawai'i 96766
Email: cchine@kauai.eov
aseereti@kauai.gov
HARLAN Y. KIMURA, ESQ.
Central Pacific Plaza
220 South King Street, Suite1660
Honolulu, Hawai'i 96813
Email : hyk(@harlankimuralaw.corn
Hearing Officer for the Planning Commission
of the County of Kaua'i
DATED: Lfhu'e, Kaua'i, Hawai'i, August 9b ,rOrg
MATTHEW M. BRACKEN
County Attomey
a
fV/n4/vUn
MARYANN SASAKI
Deputy County Attorney
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
2
MATTHEW M. BRACKEN 10267
County Attorney
MARYANN SASAKI 10458
Deputy County Attorney
Office of the County Attorney, County of Kaua'i
4444 Price Street, Suite 220
LIhu'e, Hawai'i 96766
Telephone: (808) 241-4930
Emai I : rnsasaki@kauai.qov
Attorney for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
cc-2017-4
TMK: (4) 5-8-005:005
RESPONDENT PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I'S WITNESS
LIST; CERTIFICATE OF SERVICE
HEARING:
Date: August 30,2019
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura
VS.
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Respondent.
PLANNING DEPARTMENT'S WITNESS LIST
Respondent PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I (the
"Planning Department"), by and through its undersigned attorneys, respectfully submits its
Witness List regarding the above-referenced matter.
WITNESSES
Ka'aina S. Hull, Director
Planning Department, County of Kaua'i
Clerk to the Planning Commission
c/o Office of the County Attomey
4444 Rice Street, Suite 220
LIhu'e, Hawai'i 96766
This witness is expected to testify as to the processes and procedures of the Department,
in general, and as related to this specific case, including, but not limited to, zoning map
designations and the practice and procedures of the Department. This witness is expected to
testify with regard to the Petitioners' witnesses and/or rebuttal testimony
Mike Laureta, Program Manager
Planning Department, County of Kaua'i
c/o Office of the County Attorney
4444 Pttce Street, Suite 220
LIhu'e, Hawai'i 96766
This witness is expected to testify as to the processes and procedures of the Department,
in general, and as related to this specific case, including, but not limited to, zoning map
designations and the practice and procedures of the Department. This witness is expected to
testify with regard to the Petitioners' witnesses and/or rebuttal testimony.
Andres (Bambi) Emayo, Senior Investigator
Planning Department, County of Kaua'i
c/o Office of the County Attorney
4444 Rice Street, Suite 220
Lrhu'e, Hawai'i 96766
1
2.
-')
2
This witness is expected to testify as to the processes and procedures of the Department,
in general, and as related to this specific case, including, but not limited to, zoning map
designations and the practice and procedures of the Department. This witness is expected to
testify with regard to the Petitioners' witnesses and/or rebuttal testimony.
Joan Ludington-Braun, Inspector
Planning Department, County of Kaua'i
c/o Office of the County Attorney
4444 Plice Street, Suite 220
LThu'e, Hawai'i 96766
This witness is expected to testify as to the processes and procedures of the Department,
in general, and as related to this specific case, including, but not limited to, zoning map
designations and the practice and procedures of the Department. This witness is expected to
testify with regard to the Petitioners' witnesses and/or rebuttal testimony.
The Department reserves the right to call and hereby name (l) any and all witnesses
named, identified or called by the Petitioners in this matter; (2) any and all witnesses named
and/or identified as a result of discovery or investigation conducted by any party; and (3) all
rebuttal witnesses, as necessary, at the hearing hereof.
DATED: Lthu'e, Kaua'i, Hawai'i, August A,7', ,2)lg.
MATTHEW M. BRACKEN
County Attorney
4
M
MARYANN SASAKI
Deputy County Attorney
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
3
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
cc-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
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PATRICIA D. MoCONNELL,
Petitioner
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I,
Respondent
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date set forth below, a copy of
RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I'S WITNESS
LIST, was duly served by email and depositing the same in the U.S. mail, postage prepaid, upon
the following:
Gregory W. Kugle, Esq.
Joanna C. Zeigler, Esq.
DAMON KEY LEONG KUPCHAK HASTERT
1003 Bishop Street, Suite 1600
Honolulu, Hawai'i 96813-6452
VS
Email: gwk@hawaiilawyer.corn
icz@hawaiilawyer.com
Attorneys for Petitioner
PATRICIA D. MoCONNELL
NICHOLAS R. COURSON, ESQ.
Deputy County Attomey
County of Kaua'i
4444Rice Street, Suite 220
Lrhu'e, Kaua'i, Hawai'i 96766
Email : ncourson@kauai. gov
Attorney for Planning Commission of the County of Kaua'i
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua'i
4444Piice Street, Suite 150
Lfhu'e, Kaua'i, Hawai'i 96766
Email: eching@kauai.qov
aseqreti@,kauai. gov
HARLAN Y. KIMURA, ESQ.
Central Pacific Plaza
220 South King Street, Suitel660
Honolulu, Hawai'i 968 1 3
Email: hyk@harlankimuralarv.corn
Hearing Officer for the
Planning Commission of the County of Kaua'i
DATED: Lrhu'e, Kaua'i, Hawai'i, August 29 ,ZOtg
MATTHEW M. BRACKEN
County Attomey
i
B
MARYANN
Deputy County Attorney
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
2
MATTHEW M. BRACKEN 10267
County Attomey
MARYANN SASAKI 10458
Deputy County Attorney
Office of the County Attorney, County of Kaua'i
4444 Rice Street, Suite 220
LThu'e, Hawai'i 96766
Telephone: (808) 241-4930
Email: rnsasaki@kauai. gov
Attorney for Respondent
PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (a) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
PLANNING DEPARTMENT OF THE
COLINTY OF KAUA'I,
cc-20t7-4
TMK: (4) 5-8-005:005
RESPONDENT PLANNING DEPARTMENT
OF THE COUNTY OF KAUA'I'S EXHIBIT
LIST; EXHIBITS A - F; CERTIFICATE OF
SERVICE
HEARING
Date: August 30,2019
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura
VS
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Respondent.
PLANNING DEPARTMENT'S EXHIBIT LIST
Pursuant to request of Hearing Officer Harlan Y. Kimura ("Officer"), Respondent
PLANNING DEPARTMENT OF THE COLINTY OF KAUA'I ("Department"), by and through
its undersigned attorneys, respectfully submits its Exhibit List containing Exhibits A - F, in
response to Petitioner PATRICIA D. McCONNELL ("Petitioners"), Petition to Appeal Decision
of the Planning Director's Decision Related to the Notice of Violation and Order to Pay Fines for
the Operation of an Illegal Transient Accommodation Use for Property Situated in Hd'ena,
Kaua'i, Hawai'i, identified by Kaua'i TMK No. (a) 5-8-005:005 containing26,092 square feet,
received by the County of Kaua'i Planning Department on June 13,2017 . The contested case
hearing on the matter is scheduled for August 30, 2019, at 9:00 a.m.
DATED: LIhu'e, Kaua'i, Hawai'i, August 23 ,2}lg.
MATTHEW M. BRACKEN
County Attomey
Ytt8tfr,/^,1tu1
l
B
MARYANN SASAKI
Attomey for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
2
COUNTY OF KAUA'I
PLANNING COMMISSION
EXHIBIT LIST cc-2017-4
TMK: (4) 5-8-005:005
PETITIONERS
PATRICIA D. McCONNELL
PETITIONERS' ATTORNEY (Narne, Address and Tel. No.)
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, Hawai' i 96813 -6452
Telephone: (808) 53 l-8031
RESPONDENT
PLANNING DEPARTMENT OF THE COLINTY OF KAUA'I
RESPONDENT ATTORNEY (Name, Address and Tel. No.)
MARYANN SASAKI, Deputy County Attorney
Office of the County Attorney, County of Kaua'i
4444 Rice Street, Suite 220
LrhtLe, Hawaii 96766
Telephone: (808) 24 l -4930
DATE OF HEARINC
August 30,2019
HEARINC TIME
9:00 a.m.
PREPARING CLERK DEPARTMENT
EXHIBIT NO.
IDENTIFY
NO. CODE
PETITIONER
iRgspoNoENr
lI!oFtazdPztr=o
Ld,t'lL-<
U!LU
Z
o!!
!J.,] U>z
r^
u..l >d.a
z
!
IF DESCRIPTION OF EXHIBIT
DATE
R=RETURNED
D:DESTROYED
OTHER
COMMENTS
A AIRbnb Evidence Checklist - TVR Inspections
dated January 28,2016
B Investigation Report dated January 10,2017
C Zoning Compliance Notice dated January 1 1,
20t1
D Notice of Violation & Order to Pay Fines dated
May 23,2017
E Investigation Report dated }llay 23,2017
F
Memorandurl re Meeting between Planning
Department and Property Owner dated April 12,
20t7
FOR OFFICE USE ONLY
PAGE oFl_
\J
AlRbnb Evidence Checklist - TVR lnspections
TMK: 5g0osoo5 Date: 1tZBl16
I lHomestay I Asingle family or [-J multi-familyorTVR
Owner Name: pATRICIA D, MCCONNELL
Operation Name:,'THE SONG OF THE JUNGLE" TVR
Property Address:4813 ANANALU RD
Researched by:Bambi
AlRbnb #
Site Manager's Name:
Contact Phone:
Contact Email Address:
Was the TVNC & SP #'s listed on AlRbnb?
Planning Dept
[-l r,rcuc/ TVR permit# / TVNC if any
Dept. Taxation cET rarffi ows17o7oa9-01
[_J f neC- Business Registration #
lnternet Advertising (list all found )
Personalwebpage
{Other vrbo.com/481 1 78 & vrbo.com/130810
Are the TVNC & SP # listed on web?Yes No
ly'lJ neal Property Assessment / Classification VACATION RENTAL
I I nental Cars- COK DMV (List Licenie S. O.tei Verified?
Open - North Shore Special Planning Area dev. plan
Comments:
Reguirements Attachments/ Exhibit S
Version 7 AlRbnb
EXHIBIT A
lnvestigation Type: RequestI Complaint f,
ves[-J r'rolj
Yes[-l ruo [-l
fl Zoning (ie. VDA, Commercial, Residential)
INVESTIGATION REPORl
58005005
DIST: Hanale:.LOC: Wailapa
ZONING: O OWNER: MCCONNEI,L, PATRICIA D
$LUC DTST:
LOG #SfTE ADDR:{813 ANANALU RI)
CWNER:
NAME: PATRICIA D, MCCONNELL NAME: airbnb
ADDR: IO{ ENDLICH DR
SAN?A CRUZ, CA 95060
WEB SITE: airbnb "Lani O1i HaIe"
WEB SI?E:"The Song of the Jungle'r
TransienL accornmodation operation outside of lhe visiLor
INSPECTOR; Bambi
ARRIVE:DATE: 1110117
DEPART
INFORMAL CONTACT:
OESCRIPTION OF INVESTIGATION:
1. Research of online website www.airbnb.com found the subject transient accomrnodation:
2. By matching the airbnb's website (hfips:/Arww.airbnb.comlrooms/12622481) and
piclures with Pictometry and cross checking the noted parcel with Real Property Division
records (Tax Classification - Vacation Rental) , lwas able to determine the
Tax Map Key and Property Owner of the transient accommodation operation.
rMK 58OO5OO5, PATRICIA D, MCCONNELL
EXHIBIT B
3. Research Findi
accommodationT on is located outside of the VDA
Transient accommodation Useration does not have and active Non-Conformi
orana iticableCertificate
as a TVR shallsort which offers aofaAdvertis4. KCC Sec 8-17,11
on of a TVR on saidfacie evidence of theconstitute
n Found: K.C.C. Sec'8-17.8:5. Violatio
rohibited in all areas not d inated as VDATVRs arele fami5l
6. Violation Found: K.C.C. 1.Sec- 8-8.1 b
bited outside of theVDA.rations areHomestao
/ ,o/,tDate'. /Signature:
Iteal Property Division ltecorcl
I'itgc I ol'l
Owner Name/ Type
Mailing Address
Locatlon Address
Tax Classific.tion
Neighborhood Code
Legal Informatioo
Recent Sal6 ln Neichborheell
BerenlsdeiitrIrsa Pravioue Parcel Nert Parael
Owner and Parcel Information
LlYlng Ar€
164
Retlro- ta -I'taiLssarcLPncE frualHffn-e
:.:|:
:.fr ,ri.v F :r c t I lr/ tp I
MCCONNELL,PATRICIAD / TeOwneT
to4 EtlDt tcH DR
5AN-rA CRUZ, CA 95060
.1813 ANANALU RD
VACATIOI{ RENTAL
582r'1
LOT 272 RP 71 LC AW r1216:5 0.599 AC DES
Today'5 Date
Parcel Number
Project Name
Parcel Map
Land Area (acres)
Land ar€, (approximate sq tt)
Assessment Information ltliM Htdortol atmdtr
Total Assess6d
value
t 709,400$ 709,400
Improvem6nt lnformataon
Liylng Ar@ Bedrms,/full Bath/H.lt Bath
1,887 2/lit.
Y@r
2017
fax
Clarslfication
Total Market
Value Total E!emption
sc
0.599
26,O92
Y@r Built
1993
fotel
Nct Tarable' value
$ 709,400
Y@r Built
1987
EfiEtive Y@. Built
1 995
Yaar Built
r995
EftetlYG YG.r Bullt
r 995
VACATION RENTAL
Dcicrlptron
FRAME UTILITY SHED
Other Euilding and Yard lmprovements
Quantity
1
Permit Information
Sketch
BGdl'Ms/f ull B.th/Half B.th
Illio
Sketctr Building I I
Sketch
:i.:i ir ii r l r,,1 .' ]
PGmit anount
$ 61,000
t 30,000
$ 100
t 280
t 168
$ 55.000
15
Drt€
06t05/2002
06t0512002
09/301r993
09la2/1993
09t0211993
oy2alt9al
Pemlt Numbcr
0200000847
0200000845
9310002295
93 l 0004 746
9310004745
25474
Ro16
RENOVATION
RELOC^NON
P2
DEMOLITION
DEMOLITION
DWELUNG
Sales Information
Sale Date Price tnstrument ,, Instrum€nt Type tdstrument D6cription Oate Recorded Oocument # Cert # gook/Page ConveYance T.x Dcument TyP€
05/01/2004 $ 830,000 04-127502 FEE CONVEYANCE 06l24l2OO4
2016 lri P.ffitr
8t0
Tax Pariod
2016-2
2016-2
Tar
Cr€dit5
$000
I 0.00
$ 0.0o
t 0.00
t 0.00
$ 0.00
$ 0.00
f 0.00
t 0.00
Amount
DUG
13,3r4.77
t 108,00
t 3,422 ']'t
current Tax Bill Information
Dcsc.lPtlon origintl
DUG Drte
Real Prop€rty Tar 02/2012417
. TRASH: BASE &/OR COLL FEE 02/20/2017
Tlr bill cmput€d lo OLI?l/lotl
Taxaa
Aas6rmant
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Ka u a'i
Listing Location
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$245 Por Nrshr Requcctto Book
r TMK: saoosoos
lnvestigation Type: Request Complaint f
Date: 1l21l16
V single family or Llrulti-family
t--
Homestay or TVR
Owner Name: pATRICIA D. TVICCONNELL
Operation Name:"THE SONG OF THE JUNGLE" TVR
Property Address: 4813 ANANALU RD
Researched by:Bambi
AlRbnb #
Site Manager's Name:
Contact Phone:
Contact Email Address:
Was the ryNC & SP #'s listed on AlRbnb?Ye No
0w51707089-01
vrbo.com/481 178 & vrbo.com/130810
#
Plannin g Dept
lnternet Advertisin list all found
NCUC/ TVR permit# / TVNC if an
Dept. Taxation
BREG- Business Registration
{
Personal webpage
Other
Yes
,/VACATION RENTAL
Are the TVNC & SP # listed on web?
Real Property Assessment / Classification
Rental Cars- COK DMV (List License & Date)
No
Open - North Shore Special Planning Area dev. plan
Comments
Ye
Verified?
Requirements Attachments/ Exhibit f
Zoning (ie. VDA, Commercial, Residential)
Vcrsion 7 AIRbnb
AlRbnb Evidence Checklist - TVR lnspections
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n.4at S.la In i.Lhborlrdd
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OwnET I{.mC MCCONNEL|,PATRICIA LI
Mairins addrcss ;?ifi'?il? ?l nrouo
Locatlon Addr6s 4813 aNANALU RD
Trx ClaBslflotlon VACATION RENTAL
Prdi.ous Parel Xa{ PrrcC
Owner and Parcel Infotmation
Today's Date
Parcel Number
Projact Namc
Parcel MaP
Land Area (acr6)
l,and A.et (.pproxlmatc sq ft)
Assessment Information t{EnEfdlr.frf{3sl.
$ 749,1 00 $ 749,100
Improvemnt lnformation
livlng Ar@ lcdrcms,/Full grth./Hall trth
r.887 212/0
Ertr|.[-fr-fta|asr.Irtlrrt Lol l5.rr.
lanuary 27, 20r6
580050050000
.I HE SONG O; THE ]UNCLE" TVR
shm Prc6l MrpJ
nGlghborhood Cod. 5821 1
Laeal tntomition LOT 272 RP 7194 LC aW 1r216.5 0.599 AC DES
Totrl Ermption
$0
0 599
26,O92
Ycrr Euilt
1993
Total
Net T.x.blc
v6luG
$ 749,100
Yar
20r6
T,x
Clarsitiatiod
Total Market
V.lue
Tot!l Acaersed
value
Yer Built
l98/
E''6tiY€ Yar Built
1995
Y@r Bullt
1995
Crr6tlvc Ycar Built
t995
VACATION RENTAL
DGriPtion
FRAME UTILIT} SHED
Other Suilding and Yard Improvemsta
Quantity
1
Permit Information
Living Arca BGdrooms/Full Aath/Hrlt B€th
tirl0
Sketch
Sketch Eurldrng 1 I
Sketch
Skelch Building 2 |
Ara
DatG
06/0s/2002
06l05/2002
091301199)
09l02/r993
09/02/1993
ay2al19a7
Pmn t{umbs
0200000847
0200000845
93 10002295
9310004746
93 I 0004745
254?4
Ruil
RENOVATION
nrlcicrnon
?2
DEMOLINON
DEMOTITION
DWELUNG
Pcmlt Am@nt
I 51,000
t 30,000
t 100
$ 280
t 168
$ 66,000
Srl€ Oate PrlcG lnrtrumant ,' Instrumant fypG Instrumcnt Dc$rlptlon DatG Rctrded OocumGnt, Cert t AooL/PagG Conveyance Tax Dcsmsnt Typ€
06/0r/2001 t 830,ooo 04.127502 FrE coNvEYANcE 06/24/2004 830
Current Yax Bill lnf*matlon
r.x pcriod D6crrpdon
"',ilt*?L ^*tjlff"*2015-2 Real Property Tar 0212012Ot6 t 1,162 99
2Ot5-2 'TRASH FEE" O2l2Ol2OL6 S 0 00
rlx blll cmputod to 01/1112016 I 3.162 99
Irllrlrrnrr aar-*rrElllr
.,I,i." lr"l p.n.ny
$ 0.00 $ 1,162 99 t 0.00
l0o0 t10800 t0.00
I 0 00 $ 1.270 99 t 0.00
Intffit
J000
,000
t000
Oth€r
I 0.00
t 0.00
$ 0.00
Amount
Du€
$ 3,162.99
$ 108.00
t 3,270 99
Ricant Sala in ildghborhood
REdt SrlGr in Ars PIffiosllilrll llrxl P..cal Raturn to lllln Sarch Paoc Xruai Homa
Th€ (auai County Tar As*s's Ofiice ruk6 every efftrt to prodwe the m6t Murate informatron 9G$ble. No warrant€s, exored or lmplied, Ere groYided for the data
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ft Department of Taxation (http://tax.hawaii.gov)
Tax License Search
Hawaii Department of Taxation
License Details
Taxpayer Name:
PATRICIA D. McCONNELL
DBA Name:
Taxpayer lD:
w51707089-01
Former Taxpayer ID:
Business Location:
Tax Type:
Transient Accommodations
Tax Status.
Closed
Business Began:
07t01t2007
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Tax License Search
Hawai'i Department of Taxation
Deoartment of Taxation (htto.//www hawaii.oov/tax) State of Hawaii (http://www.hawait.oov)
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State of Hawai'i. All rights reserved.
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'l ax l.iccnst Sctrch - [)o.l ar l)agc I ol'2
$ Department of Taxation (http.//tax hawaii.gov)
Tax License Search
Hawaii Department of Taxation
License Details
Taxpayer Name:
PATRICIA D. MCCONNELL
DBA Name:
Taxpayer lD.
w51707089-02
Former Taxpayer lD.
Busrness Location:
Tax Type:
General Excise and Use
Tax Status:
Open
Business Began.
12104t2015
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Tax License Search
Hawai'i Department of Taxation
Deoartment ot Tax;tion (htto:/Al/ww.hawaii.oov/tax) State of Hawaii thttD,//www hawali.oov)
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Exotic jurygle sanctuary
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I travel to Kauir a co{rp€ !,ft€s a year and tirs rs oae d my favoctle fpot6 so far, Its
seauded but doae to llanare'. nrcely furniafed, end surroundcd by a lush prqle prcrrcltl
Il'6. m.grcd tracc, Tha re6 turtle o'erlookcd thc lunglc valley, was cozy aod ciean, ard I
:uct fe{t well ta}cr, carc o{ a g+cct ov*rall" I dar.'t trelally wntG rev:ews but I iusn t.arted ts
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VRBO #t181178
This li*ing was first published here in 2013,
Date last modified - Tuesday, lanuary 26, 2016
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Secluded Hillside Abode with Unobstructed Jungie and
Valley Vrews
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Th. Song of th. Jungl€ is bu{lt high up on thc hi!l$d. that ovarlookr tha runglas. mountllns and vrliay. tt
16 !t tocatcd ,t the Gnd of r county llnc rnd rr raroundcd by thoutrnd3 ot !<r.6 of troplcll rornfiorast !t
It 1,/4 milG oF thG matn road so li rrac of trdTl< nolsa rno thc acncial hum of paopla noita. Yo! crn hear
tha rlvar balow , tha ocaan wtvG3 brOaklng and tha Jungla rcng blrd3.
Tha Song of tha JunglG ti radud.d , prtvrts and very qui€t. Ir is 6n ohanr' cott ga unit bullt rt thc far
stda of tha mrtn hou'. ro t3 tuckad !tray, rtfa and cr,3y. It h't lt'r ot{n antranca lnal Prlvrcy lndudlno
prlv.t. glrdan r[a3. It looka out orto tha JurEl., garr,anr uid a]rtarulva umbstrudad mountlln and
vrllry vl.wr. lt i3 ld.al br onc or t!.vo pGrion or r flmlly yvfth r drlld. It lr comPn..d of tbcxn 10m !q ft
cnd har 6orrr roomr plut 2 kirlir. Thar. i3 a lrgo brdroom/rtttlrB !rt. wlth ! qua.n b.d. Fr.nch doort
l.ad toryl tha badroo.n ot.c onto r n?.rat andoaad t nrl th& ovarlooks tha vrllay lnd rungla' Thls
anclomd lrn.t h!6 a illtro tlui for romrnttc dlnlng lnd d.yb.d fior thot r,yho wtrh to d..P wrtchlng ttr.
rt rt. Th. kttch.n rr.a 13 rfl.dium rlad w{th a full frldgn, h@l.t lnd to.rt r ovxl. lt hat !n .ndorld
outdoor lu'ru !ru. !t wall wtn r BBQ lrd propam cook rtoya/ovan. Tha hdoor bathroom hat r Showal
but no tub, Thar. l| ,lso ! privat ly locrt d orrtdoor Ogarf,lod strmet ln th.glrdan rr.!' Thc ktEhrfl
lookt out onto tha axtanttva galdan tral.
Th. 'Song' 13 l1a mll. from r groc.ry ;tor. hub, !t rhl glrl t k.out, 91ft *ora rnd baacfifront.
The Song of tl|. lunglr ls ! qsLt tnd p..drrl world Bi.t llvr. up to lts nattl.. You wrk. up to !
ryrnphory of tropkll birdt mlngld witr th. dlstar* r.xrMr of th. rly.r b.lof, cnd tn. o.atn r{tvs
bnoklng . Thr rnlcord lanlt lt r wonrtrrful dac. to injoy your momlng b...kfatt 3urroun&d by thr
trodc.l gErdafir rrd unobrtn {t d mot,rt ln rnd valby vl.rYt wh.m whlt .gr.tr glld! mld3t thc P.lrm,
A 1/{ mtla walk down tha county lrna tak.3 yOU to Uta cornar grocry dor. , aJshl glrl takrrut' lnd
b.rudful Wllntha Ba.ch. A quH drsr. or . 20-30 minw. wDlk wtll g.t ydi to 3om. ot th. b.!t b.!dr.! ln
th. wortd: Tunndr, Xa'a, Lumrhlf! ar w.ll !a thr famour h{aLLu Trrll. Thrx mllB !w!y It ll.illd totf,n
whrr. chopplng, th. r.ttaurrnts, lnd .v.n a lltda nlght a{ton Grn ba found ln a @ry baodltown
.tmo.ph.r.. Thlr proP.fty lr r hom.stlY. t9/t81 TAT hr02658273-01
Kayworcl3: hvlta ,ungla Ohrna w{rt rwcso.TL ralnlorcd lnd mountrln vle}'rg
Prop..ty Typ.
Bunglrlos StlO 3q. Q.
Ac.omdrod.tion Typ{
Vaeatlon P'..tal
x.r}|
Gsdtr Provl& Trrdr Orrn Flcolr
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Houxkaapar O*lonll l.1!3r!g!
Suitrbillty
Childr.n W.kom r5n Srnoklrg Onty P.tt t{ot Allo*.d
wh.dcr[lr Acc.tclbla
ledroonrr: 1 Eadroom, sl-pt 3, 8.dt for 3
Badrodn I
slrPlno Ln.i: I tldn/ 1'l0h
Tlrar. ir ! t*tn day bad h U,!.dldo.- ldr.i 3nEr qt l dt Od (l), Dorroar ldl (1) s,Ittll &uU.
b.d ln k td.'l ril, E b, Crib (11 lloE out crlbl Pl.yP.n
Oth.r A,'roiti6
Tha propartii i3 ! callcd !n Ohana Eungalo which in H!#aii 19 simrlar to a moth€r ln lar, unlt. lt functlont
compl€taly on its own tiough rnd saparata from thc riain portion of fha hom.. It i5 6t thr back portior:
of the mrln horfte io hag rtl own ancloSad lanrr tL, 15'arall a3 lts own grrd€n arca, bbq araa, outdoor
thowar and wlshar and dryar
Entart inmGra
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5!t llit. / c.bl.
Thom.
Advcntura
Away Frorr It All
Attr.diont
Botrnlcal Garoan
Churchs3
Clnrmrt
Local sG{Yio* t Suairanar
ATFr/8rnk
Groccdai
Lrigrr Activiticr
Arillqul(,!9
B..cfic6r',btng
8lrd watching
Bo.ung
Eco Touri3rn
Locatioo Typo
Hountrln Viar{
Spo.t f Adrrrrtrr. Advttir
Cyclint
D..p..! Rthhg
Flrhlng
Fr..hw*ar n.hlng
@rl
Hlking
J.t S{lng
XayoUr.be
Talavl3lon
vcn
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SporB e Activtti..
H.rlth/8.rrry 5p.
Ub..ry
i4!r|nr
Hodpltrl
Mlrlaer Thcr.plst
Horxb.d( Rdlng
Llrut
HinlGirra Golf
Pr.rdt Boring
Scnlc Drlva3
Rur!l
mountlln Biklng
Mount in cllmblng
Hdlrt tn-dng
Por!0,idlng
hr! dling
Rrftn9
tod( Oimung
s!lllng
Vldco Ubr.ry
Tourlst Attractlons
Pl!yground
Rart6ur!nts
Medical sarvlc.i
Sh.lllng
Shopplng
Sight S.Ci69
W.lklm
Wh.l. Wrtchlng
wldlif. Vl.win0
S.rrb! Olvhg Or Snork.lhg
Snork.llng
Snort(.lln9/Uvhg
SoundlBcy Flrning
+dunklng
surfirtg
SwlmmlrB
Wlnd-5urflng
Dlnlng
Dlning:s.dng lor 4 pooPl!
Out id.
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Galf :
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Outdoor 6rlll Ga5K.yak I Crno.:
I{evi€iws
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falaphon.
Wathlng Flachln.;
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Stov.
lor'fi.(
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Unscr.anad Porch / V.randt
wood o.ck
GanGral
Air Condltioning:
Brordband Accass
Clothct Dry.r:
Fr.e Lrng Olstanca
Kitdffr
Coff.s I'bk.r
Cootlng UtGnrlls
Dieh.f & [rton3il5
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6rrad fB&r,
BC, Cta.d.
lntamGt
Iron & Boa.d
LlnGns Providrd
uvhg Room
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*****
Strycd: Hrrll 2ol5 3.rioltt di Hry 9. 2ol5 sdrcG: vRflo
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a-.*id1 F.orls Fls y6ne olak$, g€naaaa,^e, at gff.*.r' a{. 3r+, h.*. el<tr.v
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Additional infornratiorn nbout .etrtnl rttte{
Fces:
cl€anlng fe€
booking fee
Tax Rate
Cr$c.f.tbn po[cr:
1000,5 r€lund lt cancded at l€agt 90 days be{ore arrival date.
a- rr{tef}d'y ( onver$ion
E.rtdrd.rqror.dh !l usP -
xoourty' Evant
$175
$3s
13.4 50a
@ P"V with Confidence
Payrnf through this fte€ s€rvicr proteds yorir peym€ftt up to ,10.000 a0ainst ll6tio0 f6ud. lt Yoi, ere not paylno through
HomeA*ay Payileots alrrays call the owner at the number tisted on our vrebsite and never us€ instant mofley tranS€r
services ruct a5 lvestem union and I'loney(rram.
Ilon't forgrct yorr vacallon protoctlon! Get protected nosr
Addlng our Vacation prctection services can make sure y6{rr getaway goer crnoothly, no rnittter vrhrt. We offer
Cancellatioo Prot€{ilon, Carefree Rental Guarantee, and Oamage Protection 5t} you can trulY relax.
g protecr yo{Ir payments in case M Guarantee the rental me€t5 [ Ensure you'rc prep,dred in case
- yo, need to cancel. your expeclattons. - of accidental damage.
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Yeir P$!dBcd! 2004
f&on &c ornen .l movd t0 Kiua, m$ rry dar.$na n 2004 fN kdh reron,
tly hrilth greasy mpoved ( (en u good for tlut) rd my da$iler ffflt bad t0
the mdnhnd h univasty. This lurne searnd a ht hg for rc alorc so I began
$anng n f,[h travelers , gues h0use $yle, I rErl am Uesd ts rE€t amaang
peopb from dl around tlr wsld. Peryle rrio dose th6 pla{e teld t0 be uuql€, gatdf rerle rtu fit into
ttrc locd dmocphcre vith ease and grace. It hrs been a lot d fun for rne.
mt 0E ofrltr chorc tlanalel:
I rxrrer &ose a vacatl00 refitd hoxefsr I dtoct t E h0(6e hele be(ause I am a wryld tnvdls and &n
flace rs ure of tlre m0st amathg places, on many lerels , ftat I hate e{K0r.mtered in my l,fe. [s tt]e
bcals sy, lt has' good mafla'
TIE U& lrrrcfrr al tidr ilr$r:
I am a nflte{ aod a pfffographer ,Ihe posstht{ret are d rrlU ca be ciptued on ftlm and h ilords rrfe
are , eo& day, mdcsly, trflEles$y fre$. Ihe o{tan, SE Jstgl€ md fE nyers ae all f{lt tiefe. Atld
0rc redtrer, rell, tretty &rn e0sy to hke,
Cmlrclr
sgerts Engkh
C[d Here to sce AII iry Renhl tisting
- . ,. :. $195
Save to my favontes
Om€r
ileinbr since: 1007
Se1d email
Resffns€ trme Within l2 ho{trs
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r"aiendar Eq uF*ed oli t5l1016
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This listing ',.las first puhlished h'ere in 2O07.
Date last rnodrfiled - Thursday, January ?fl, 2&16
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Andres Emayo
From:
Sent:
To:
Craig Arzadon
Thursday, May 07, 2015 11:40 AM
Andres Emayo
TMK s-8-00s 005Subject:
htto:/lwww.vrbo.com/481178 This a link from VRBO for the Round hexagon unit on her property
htto:/lwww.vrbo.com/130810 This a link to the main house from VRBO.
Thank you,
C.raig kzadon
Real Estate Appraisal ll
County of Kauai- Finance Division
Real Property Assesment Divion
carzadon@kauai.ggy
808-241-4231
CONflOfl{TlAl COMMITNICATI(}N: Thi\ messats (and any altarhments} ii int€nded only for the ure ot the deliBnated recipient named above. It the r*ader of thi!
message it not lhe intended re(ipt€nt, you aro hereby notitied that you have received this dorum€nt tn errot, and that any ;evtew, dissemination, diJtrlbution o(
copyirtg, o{ this morilge is stnctly prohibned. ll you receive this communication rn error, please nolrfy us rnrmedrately by telt'phonc and delete thls message and any
attachmentr. MAHAto.
I
f
Bernard P. Carvalho, .Ir.
N{ayor
Wallace G. Rczcntes, Jr.
illanaging [)irccior
Michael A.
Director of
Ka':lina S. Hull
f)cpuq' f)ircctor of Planning
PLANNING DEPARTII{ENT
Enforcement Division
County of Kaua'i, State of Ha*'ai'i
1.144 Rice Srruct. Surte A-l?i. Lihu'e. Harvri'i 96766
TEL i808) l.l l-.r0i0 t"A-\ (808i 2.1 r -6699
ZONIN(; CONTPLTANCB NOTICE
c[,R]'rFuir)IJAlll I I 2rI7
P:rtricia D. NlcConnell
l0-1 lindlich Dr'.
Santa Cruz, CA 95060
StiBJIIC'I': Zoning Violation for Transient Accommodation Use at:
.l8l3 r\nnnalu ltd
TMK: 5-8-005:005
The Plaming Department conducted an investigation of fie subject property and found the
establishment 01'a 'r,acation rental r.rperation. This is considered a violation of the following
provisions of thc Conrprehensivr' Zoning Ordinance. Chapter 8. Kaua'i Countl,' Code. 1987, as
Arnended (C7.Cr):
ORDINT\NCE and VI0L.i\TIONS
1. Section 8-8.1(b) General Provisions for Homestays
tlrtmesttty'ope ruliotts ura prohihited outside af the L'i.sitor Destirtulion Arect (VD,4)
2. Section 8-17.8 Singlc Family'Transicnt Yacation llentals.
Nottyitlulonding etny' unclerll,ing zrsning clesignalion uncl witlt the exception of properties
on the i'rtational or Stctte Register of lltstori<: Plcces, single family transient vctcctlion
rentals are prohibited in all oreas ,'tot designurecl as llisitar Destination Areas,
Violation:
Thc unauthorized use of the subject proper3_v for Tr:rnsient Accommodation outside
of the designatcd Visitor Designation Area conslitutes a l'iolation.
,MPPY
EXHIBIT C
\
\.1'
Pursuant to Chapter 8, Kaua'i Countv Code, you are directed to comply with the follorving
requirements immediately:
1, Cease and desist the use of the subject properfu' as a Transient Accomnrodation(s);
2. Cancel all Transient Accommodations commitments for the propert-v.
Please t-rnd attaehed County Ordinance No. 1002 for your reference. Including but not limited to
Section 8-17.8 cited above, Ordinance No. 904 specifically regulates the use and prohibition of
homestays on Kauai. (Chapter 8, Kaua'i County Code, 1987, as amended).
Purstunt to County Ordinance No. 919 (also attached), any'violation(s) of the Comprehensive
Zoning Ordinance (CZO) may,result in a fine of up to $10,000.00 an#or up to $10,000,00 per day,
should the violation(s) persist. (Chapter 8, Kaua'i County Code, 1987, as arnended).
Please contact tire Plaming Departmenl at241-4051, or email Bambi Einayo of my staff at
aemayo@kauai.gov, within 14 calendar days upon receipt of this letter to provide an
acknowledgement of the termination of the subject TVR. Failure to do so provides us w'ith no
other altemative but to pursue enforcement action,
Dcputy Director of Planning
County Attomey
Attachments
f
Bernard P. Carvalho, .Ir.
N{ayor
Wallace G. Rczcntes, Jr.
illanaging [)irccior
Michael A.
Director of
Ka':lina S. Hull
f)cpuq' f)ircctor of Planning
PLANNING DEPARTII{ENT
Enforcement Division
County of Kaua'i, State of Ha*'ai'i
1.144 Rice Srruct. Surte A-l?i. Lihu'e. Harvri'i 96766
TEL i808) l.l l-.r0i0 t"A-\ (808i 2.1 r -6699
ZONIN(; CONTPLTANCB NOTICE
c[,R]'rFuir)IJAlll I I 2rI7
P:rtricia D. NlcConnell
l0-1 lindlich Dr'.
Santa Cruz, CA 95060
StiBJIIC'I': Zoning Violation for Transient Accommodation Use at:
.l8l3 r\nnnalu ltd
TMK: 5-8-005:005
The Plaming Department conducted an investigation of fie subject property and found the
establishment 01'a 'r,acation rental r.rperation. This is considered a violation of the following
provisions of thc Conrprehensivr' Zoning Ordinance. Chapter 8. Kaua'i Countl,' Code. 1987, as
Arnended (C7.Cr):
ORDINT\NCE and VI0L.i\TIONS
1. Section 8-8.1(b) General Provisions for Homestays
tlrtmesttty'ope ruliotts ura prohihited outside af the L'i.sitor Destirtulion Arect (VD,4)
2. Section 8-17.8 Singlc Family'Transicnt Yacation llentals.
Nottyitlulonding etny' unclerll,ing zrsning clesignalion uncl witlt the exception of properties
on the i'rtational or Stctte Register of lltstori<: Plcces, single family transient vctcctlion
rentals are prohibited in all oreas ,'tot designurecl as llisitar Destination Areas,
Violation:
Thc unauthorized use of the subject proper3_v for Tr:rnsient Accommodation outside
of the designatcd Visitor Designation Area conslitutes a l'iolation.
,MPPY
EXHIBIT C
\
\.1'
Pursuant to Chapter 8, Kaua'i Countv Code, you are directed to comply with the follorving
requirements immediately:
1, Cease and desist the use of the subject properfu' as a Transient Accomnrodation(s);
2. Cancel all Transient Accommodations commitments for the propert-v.
Please t-rnd attaehed County Ordinance No. 1002 for your reference. Including but not limited to
Section 8-17.8 cited above, Ordinance No. 904 specifically regulates the use and prohibition of
homestays on Kauai. (Chapter 8, Kaua'i County Code, 1987, as amended).
Purstunt to County Ordinance No. 919 (also attached), any'violation(s) of the Comprehensive
Zoning Ordinance (CZO) may,result in a fine of up to $10,000.00 an#or up to $10,000,00 per day,
should the violation(s) persist. (Chapter 8, Kaua'i County Code, 1987, as arnended).
Please contact tire Plaming Departmenl at241-4051, or email Bambi Einayo of my staff at
aemayo@kauai.gov, within 14 calendar days upon receipt of this letter to provide an
acknowledgement of the termination of the subject TVR. Failure to do so provides us w'ith no
other altemative but to pursue enforcement action,
Dcputy Director of Planning
County Attomey
Attachments
Bernard P. Can alho, Jr.
Itlayor
Wallace G. Rezcntes, Jr
fvlanaging Dircctor
CERTII-IED IVIAIL
Pnlricia D. l{cConnell
l0{ Endliclt l)r.
Santn Cruz, CA 95060
PLANNING DEPARTI\I EI.IT
Enforcement Division
County of Kaua'i, State of Harvai'i
41.14 Rice Sreet, Suite A-471. l.ihu'c, llarvai'i 9(1766
IEL (808) 2.{ l-{050 F"\X (808) 24 l-6699
llich:rel A.
Director of
Ka'*ina S. Hull
Dcputy Director ol Planning
tlAY 2 3 20tl
NOTTCE OF VIOLATION & ORDEII TO PAY FINES
Patriciir D. NlcConnell
-1813 Ananalu Rd.
Hanalei, HI 96714
SUS.IECT: Zoning Violation for Transient Accommoclation Use at:
48t3 Ananalu Rd
TMK: 5-8-005:005
On March 3l, 2017. you received lhe Department's Zoning Cornpliance Notice (ZCN). The ZCN
instructecl you to imnrediately Cease and Desist the use ot' thc subject property tbr transient
acconrmodations. You rvere inslructed to cancel all transient accornmotlation commitnrents lbr
lhe properl.y.
On April 12,2017. the Department met rr.ith yrou (Patricia N'lcConr]ell), o\vner and admitristrator
of the transient accommodation operation. J'he Planning Departnrent confirured that the continucd
transient accor:rmodation operation (Homestay) use at the subject property is a violation of the
Comlrrshsnsive Zoning Ordinance, Chapter 8. Kaua'i Cor:ntv Code. 1987. as Ameuded GZA):
ORI)lN,\l{C[- ;rntl VI0L.\'tlO\
l. Scction 8-18.1(b) General Provisions for Homestays
I-{omestul,operations are prohibited outside of the L'isitor Destination Area (7'DA)
An Equcl Opportunig Enrytlaver
EXHIBIT D
Violation:
The Planning Department has confirmed that the subject property is currently being
used for a [Iomestay operation. The continued use of the subject property for a
Homestay operation outside of the designated Visitor Designation Area constitutes a
violation.
Pursuant to:
Sec. 8-3.5 Enforcement, Legal Procedures and Penalties
(b) Civil Fines
(1) If the Director of the Planning determine that any person, firm or corporation is
not complying wtth a nottce of violation, the Director moy have the party responsible for
the violation served, by moil or delivery, y,ilh an order pursuant to this section. The order
may reqttire the party responsible for the violation to do any or all of the following.
(A) Correct lhe violatian witltin the time specified in the order;
(B) Pay a civil fine not to exceed 810,000 in the manner, at the ploce, and before
the clate specified in the order;
(C) Pay a cinil fine up to 510,000 per day for each dalt in v,hich the violation
persists, in the manner and at the time and place speci,fied in the order.
(2) The order shall arlvise the party responsible for the violation that the orcler shall
became final 30 days after the dale of its delivery. The order slnll also advise thqt the
Director's actiott may be appealed lo the Planning Cornntissiotr.
(3) The provisions o.f the order i.ssued by lhe Director under this section shall become
.final 30 cslendar days after the service of the order. The parties responsible for the
violation ftitt), oppeal the order to lhe Planning Comrnission pursuont to its nileg The fornt
of this appeal must conform to the Planning Commissiort's rules. However, an appeal to
the Plunntng Cornntission shall not slay any provision of order.
(4) The Director moy institute a civil action in ony court of competent Jurisdiction for
enforcement oJ'any order issued pursuant lo this section. IYhere the civil action has been
insttfuted to enforce the civil fine imposed by said order, the Director need only show that
the notice af violation and order v,ere served: that a civil fine was imposed; the amount of
the civil fine imposed has not been paid; that either has not been appealed or that if
appealed, the order was sustained by the Commission and/or any Court action.
You are herein levied antl ordered to pay a fine of ten thousand dollars (S10,000.00) for the
ahoye noted violations to the Planning Dcpartment.
You are hereby ordercd to ceasc and dcsist the illegal acfivities being conducted/performed
on and from the prcmises as required by larv.
You are hereby ordered to correct the above use violations(s) rvithin 14 days of the date of
this notice. Should the violations not be remedied within 14 days from the date of the Notice
of Violation & Ordcr to Pay Fines:
o This matter will be forryarded to the Office of the Prosecuting Attorney;
o An additional fine of S10,000 per violation, per day, for each day in rvhich such
violation persists shall be levied.
A written response to the Planning Deparlment rvithin 14 days from the date of this Notice of
Violation & Order to Pay Fines to address this issue is mandatory.
Payment of the $10,000 civil fine is also due r.vithin 14 days from the date of this notice. Failure
to address this issue r.vill provide the Department rvith no other choice but to continue levying tines
each day the violation persists.
This determinalion may be appealed to the Planning Commission pursuant to Chapter 9 of the
Rules of Practice and Proeedure of the Planning Commission (RPPPC). The time for any appeal
of an action of the Planning Director commences 21 days from the date of the adverse decision
(RPPPC Rulel-9-2). An appeal of any action of the Planning Director must contain the
requirements of RPPPC Chapter 9 to be considered by the Planning Commission,
The Ruies of Practice and procedure of the Planning Commission (RPPPC) are available online
tkough thc Planning Department's website at:
http://wrvw.kauai.gov/Governrnent/Departments/PlanningDepartrnentltabid/61/Def-ault.aspx.
Should you have any questions, please feel free to contact Supervising Inspector Barnbi Emayo
(808-241-4051), email at aemayo@kcrucri.gov or call Enforcement Program Manager lv{ichael
Laureta (808-24 1 -407 1 ),
KA'AINA S. HULL
Deputy Director of Planning
Cc Office of the lvtayor
County Attorney
I NVF S I'IGAI'ION R E PORT
Drsr Hanal-e i
58005C05
I,iai lapa
SLUC DTST:
NAI\,IE: PATRICIA D, MCCONNELL
".lEB
SITE: ai.rbr:b "f,Erli 0Ii llale"
Transier"rt accomrnodatioil operaLicn outside of t.he Visitor
Notice Of Violation Report 5116/17
1. Zoning Compliance Notice (ZCN) dated 1111117 was issued to Patricia D McConnetl
for the eslablishment of the Transient Accommodation Operation on 4813 Ananalu Rd",
ation
2. Meeting response at the Planning Dept on 4112117
Accornmodation at $275 a night
llanning Dept. has offered a remedial action plan to rectify the vrolationb. The
nnell has accepted and signed the terms to remediat* (Schedule
EXHIBIT E
1-rl.\.i.i
c. Althouqh the owner has agreed to the ternr to renrediate, she has arliculated that she
will continue the transient accommodation operation until March of !0!Q
The owner has made comments that she doesn't intend to cease and desist the use
of the subiect property as a Transient Accommodation
3. Letter response on meeting 4113117 from Patricia McConnell
a. No documentation submitted to demonstrate that website ads have been terminated.
b. No doc umentation submitted to demonstrate that allfuture commitments for use of
the property as Transient Accommodation have been terminated.
4. Research of online website www.airbnb.com found the subjecllt?!sient
accommodation still in operation on 5/18/17
n m/rooms/1
5. Research Finding
a. Ongoinq Homestay operation is located outside of the VDA
b. Ongoing Homestay accommodation operation does not have an applicable pery!!-
5. Violation Found: K.C.C. 1. Sec- 8-18.1(b)
Honrestay operations are prohibited outside of the VDA.
/l ----a
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Letter Response
meeting 4/13/17
April 13th,2017
1? N713 /? z
Dear Bambi.
RECrr . -- '
On April 1st , 2017 your currier came to my home at 4813 Ananalu Boad,
Hanalei, Hi and delivered a letter to me that was lrom your planning deparlment
regarding county ordinances for TVR;s and Homestay B&B's on Kauai and necessary
compliance issues,
I'm writing this to acknowledge receipt ol that letter and the date it was
delivered.
I wish to say mahalo for meeting with meApril 12th regarding lhat letter and
the new county ordinances therein. I appreciated the time you gave to me over this
issue.
It is my beliel , however, thal lhave not, and have never, been in violation of
any of the older county ordinances.
However it is now my understanding that there have been some recent new
changes in those county ordinances that may eflect my life and property, and that may
also require me to make some changes in how I share my home with others.
I have yet to fully research and comprehend all the new ordinances , which I
undersland are in transition and are still subiect to possible ongoing ammendments.
I wish to assure you that i am, and will, make every atlempl possible to assure
I am in compliance with ordinances that would apply to me and my home here in Kauai
My Kauai home at 4813 Ananalu Road has been my principle residence
since I boughl it in 2004.
I will check with the county property tax department in case, as you have
inlormed me, they do not have the correct inlormation regarding my homeowner
exemption status and my mailing address.
I did notice that my property taxes have undergone a large increase of late so
it is possible they are not applying the appropriate home owner tax exemption lor which
lqualily,
I am presently seeking advise lrom sources such as the Mayor's otlice as lo
what is required ol me and what the procedure is in regards to obtaining use permits
and applications lor these.
ln further inlormation and assistance on this that you can offer would be
welcomed and appreciated,
Mahalo Nui Loa
Aloha, Patricia McConnell
t
k
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/ l/t I/r, dtt,l,
saru^l 3uqaa11
Schedr-rlc' Meeting
l)atc ,1 IL t1
ItlrSI'}ONSl: 'l'0:
Zoning Compliance Notice (ZCN), Date
Notice of Violation and Order to P ay'Fines. Datc:
l-iVIK: (.1)o
Property r\ddress: _
Writtcn co cc plan
t7 iPfr 12 Ali :2:
RErrc:r'y';.;'
.1
t,,
I
p
otlt e
t
o tD
L
IRemoval]
l'irnc tablc Datc-
[Schc'dulc]Sitelnspection IDatc]
ISubmission] Zoning Applicatiorr/ plansil'ccs
IWrittenl Cornpliance Plan. pending acccptance
l-1 ot-0
['fime]
Tinrc table Datc
Time tahle Dirtc
Pcr your signature, failure to comply rvith your rvritten compliance plan gives this Department
no altemative but to issue a Notice of Violation and Order to Pay lrines and refer this matter to
the County and Prosecuting Attorney's Office.
?x(*rc,,, e Mc 9--,-l.L*r)
/<
Sierrature
t7
I)
n
Date
/'7
I
{o-
I
l)ursuant to Counh Ordinancc \o.919. r'ou are hcl'cbr notilictl that lailurc 1u rcnrcdr the
violatiorr rnav rcsult in a fine of ull to S10,000.00. irnd/or ull to Sl(1.(10[).(X) nc.r tlav thc
violittion pcrsists. rvhich nr:rvhe :rlrlrcirlahlc. Dtrrsuiurt lo thc rulcs ol thc l)lanning
Conrnrission. I'ou nrav also be suhicct to crilninal Drosccution.
\---=
I':rtricia [), NI cC--on ncl I
'l'NlK: 580051105 {lilJ Aurtnrrlu Ikl. \\'ailapa
IlF.: Ilcctillg to rectif.l r iolrtions olr subje ct llrollcrtr'
l)rte : -lll2t21ll7
On April L2,201-7 the Planning Department met with the property owner (Patricia D,
McConnell) in response to the compliance notice dated January 1"1.,2017. The following
attended; Bambi Emayo, Patricia McConnell, and Britni Ludington-Braun.
The following are notes and observations of said meeting:
r ln the meeting Patricia tolo us that she will be running her operations till March
201.8,
r Patricia doesn't see how she has a violation because according to her, the
government keep changing the laws.
r On a couple accounts in the meeting Patricia threated, "if we stop her from
operating she's going to take off her clothes, leave thern on the beach, and swim
out to the sharks and let them eat her."
o Patricia also made a racist remark implying that the Planning Department are
trying to get rid of the haole people.
r Patricia made a comment to Bambi Emayo that he is heartless for stopping her
from operating.
r Patricia said she is going to work with the Planning Department toward zoning
compliance
r lt is notecl, no remedial action plan has been agreed upon. The violator (Patricia
McConnell) is reluctant to correct the noted violations'
These are my observations noted
I}t{ITNI I,III)N - lt tt.\tr\
ADU/TVR Enforcement Specialist
&r-(_
Patricia D, McConnell
TMK: 58005005 4[ll3 Arranalu Rd. Waitapa
RE,: IHecting to rcctifl'violations on suhject propert]-
I)*e:4ll2l20l'7
On April L2,2OL1 the Planning Depafiment met with the property owner {Patricia D,
McConnell) in response to the compliance notice dated Janua ry 17,2017. The following
attended; Bambi Emayo, Patricia McConnell, and Britni Ludington-Braun.
The following are notes and observations of said meeting:
r ln the meeting Patricia told us that she will be running her operations till March
2018.
r Palricia doesn't see how she has a violation because accordingto her, the
government keep changing the laws,
. On a couple accounts in the meetin8 Patricia threated, "if we stop her from
operating she's going to take off her clothes, leave them on the beach, and swim
out to the sharks and let them eat her."
r Patricia also made a racist remark implying that the Planning Department are
tryingto get rid of the haole peop[e.
. Patricia made a cornment to Bambi Emayo that he is heartless for stopping her
from operating.
r Patricia said she is going to work with the Planning Department toward zoning
compliance
r lt is noted, no remedial action plan has been agreed upon. The violator {Patricia
McConnell) is reluctant to correct the noted violations.
l'hese are my obse rvalions noted
BRITNI I,TlI)-I}RALT\
ADU/TVR Enforcement Specialist
EXHIBIT F
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA 'I
In the Matter of:
Petition to Appeal Decision of the
Planning Director's Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Ha'ena,
Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PA TRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'!,
Respondent.
) CC-2017-4
) TMK: (4) 5-8-005:005 ) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) -----------)
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date set forth below, a copy of
RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF KAUA'l'S EXHIBIT
LIST; EXHIBITS A -F, was duly served by email and depositing the same in the U.S. mail,
postage prepaid, upon the following:
Gregory W. Kugle, Esq.
Joanna C. Zeigler, Esq.
DAMON KEY LEONG KUPCHAK HASTERT
I 003 Bishop Street, Suite 1600
Honolulu, Hawai'i 968 I 3-6452
Email: gwk@hawaiilawyer.corn
i cz@,hawai ilawyer. com
Attorneys for Petitioner
PATRICIA D. McCONNELL
NICHOLAS R. COURSON, ESQ
Deputy County Attorney
County of Kaua'i
4444 Piice Street, Suite 220
LIhu'e, Kaua'i, Hawai'i 96766
Ernai I : ncourson(dkauai. qov
Attorney for Planning Commission
of the County of Kaua'i
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua'i
4444Rice Street, Suite 150
LThu'e, Kaua'i, Hawai'i 96766
Email: echine@kauai.eov
asegretif@,kauai. eov
HARLAN Y. KIMURA, ESQ.
Central Pacific Plaza
220 South King Street, Suitel660
Honolulu, Hawai'i 968 I 3
Email : hlzk@,harlankirnuralaw.com
Hearing Officer for the
Planning Commission of the County of Kaua'i
DATED: LIhu'e, Kaua'i, Hawai'i, August 7 3 , ZOtg
MATTHEW M. BRACKEN
County Attorney
fng^tuil^B
MARYANN SASAKI
Deputy County Attorney
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA'I
2
ORDINANCE NO.1002 BILL NO.2619 Draft 2
A BILL FOR AN ORDINANCE AMENDING CHAPTER 8,
KAUA’I COUNTY CODE 1987,AS AMENDED,
RELATING TO HOMESTAYS
(County of Kaua’i,Applicant)
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUA’I,STATE
OF HAWAI’I:
SECTION 1.Findings and Purpose:The Council finds the 2000 Kaua’i
General Plan recognized the need “to develop a clear policy regarding B&Bs and
vacation rentals.”The General Plan recommended an implementing action to
amend the CZO to facilitate the permitting of existing,nonconforming alternative
visitor accommodations.The Council complied with the policy of the General Plan
and grandfathered existing single-family transient vacation rentals (SFTVRs)that
registered and met the prior use requirements established in Article 17 of the CZO.
In Ordinance No.864,the Council further found that:
This bill does not apply to a bed and breakfast unit
(“Home stay”).It is the intention of the Council to address
these units as a separate matter after establishing a
regulatory framework for single-family transient vacation
rentals.Homestays are presently regulated through the
use permit process.
Although the Council bifurcated the issues of homestays and SFTVRs,it is
now appropriate to adopt a clear and specific standard and review parameters
under which homestay applications can be processed.
The purpose of this bill is to restrict homestay operations to the Visitor
Destination Areas (VDAs)and to establish additional standards under which
homestays operate.
SECTION 2.Chapter 8,Article 2,Section 8-2.4 of the Kaua’i County
Code 1987,as amended,is hereby amended by adding two uses to the “Table of
Uses” to read as follows:
1
“ARTICLE 2.DESIGNATION OF DISTRICTS,METHOD AND EFFECT OF
ESTABLISHMENT OF DISTRICTS,AND ZONING MAPS
Table 8-2.4 TABLE OF USES
ZONING DISTRICT
Sec.USE Residential Commercial Industrial
R-1 IR-lo
to to
R-6 j R-20 RR CN CG IL j IG AG 0
8-2.4(u)(1)Homestay
Homestay located in the
Visitor Destination Area8-2.4(u)(2)P p p P P”VDA),pursuant to Article
18 of this Chapter
SECTION 3.Chapter 8,Article 18,Section 8-18.1 of the Kaua’i County
Code 1987,as amended,is hereby amended to read as follows:
“Sec.8-18.1 General Provisions for Homestays
[On a first-come-first-serve basis of applications deemed complete by the
Planning Department,no more than ten (10)new applications for homestay
operations shall be accepted for review by the Planning Commission in each of the
calendar years 2015 and 2016.The limitation on the number of applications shall
expire on December 31,2016,or upon passage of an amendment to this section,
whichever occurs first.No homestay may be operated on land located in the State
Land Use Agricultural District unless the owner obtains a special permit pursuant
to Section 205-6 of the Hawai’i Revised Statutes.]
A homestay operation shall operate under the following regulations:
ifi Transient accommodations are provided for visitors for
twenty-nine (29)days or less:
Homestays shall be limited to no more than three (‘3)guest
rooms per homestay operation:
2
During homestav operations,the owner(s)benefiting under
Sec.5A-11 of this Code for a homeowner’s exemption for the homestay site
must be physically within the County of Kaua’i,residing at the home stay
operation site,and physically available for the needs and concerns of their
respective homestav guests:and
No other individual or designated representative may act on the
owner(s)behalf to meet the requirements of Sec 8-18.1(a)(3).
Q Homestay operations are prohibited outside of the Visitor Destination
Area (VDA).”
SECTION 4.Chapter 8,Article 18,of the Kaua’i County Code 1987,as
amended,is hereby amended by adding a new Section 8-18.2 to read as follows:
“Sec 8-18.2 Development Standards for Homestays
Development standards for homestav operations shall be the same as those
for residential dwellings in Section 8-4.5 through 8-4.8 of this Code,inclusive,with
the following additions:
Each bedroom used for homestav purposes shall require one (1)
additional paved and designated off-street parking stall:
)At a minimum,the residential structure(s)used for the homestay
operation shall be serviced by a septic system approved by the State Department of
Health:
ç)The owner(s)benefitting under Sec. 5A-11 of this Code for a
homeowner’s exemption for the respective homestay site shall be available on a
24-hour,7-days-per-week basis during homestay operations.The owner(s)shall
provide the name and contact information to neighbors adjacent to and directly
across the subject homestay,the Planning Department,the Kaua’i Police
Department,the Kaua’i Civil Defense Agency,and the Kaua’i Visitors Bureau upon
issuance of a homestay zoning permit:
One (1)outdoor sign no larger than one (1)square foot shall be posted
in a visible place on a wall,fence,or post immediately inside or on the front
boundary of the property where it is easy to see,for the purpose of providing the
current homestay zoning permit number and the 24-hour contact information.No
other signs shall be allowed and there shall be no direct illumination of the reciuired
sign.The numbers on the sign shall be no smaller than two inches (2”)in height:
3
The homestay operator shall provide a list of requirements and
information entitled “For the Safety and Comfort of You and Your Neighbors.”This
shall provide essential information to the visitor and shall seek to reduce negative
impacts on the surrounding neighborhood.This information piece shall be provided
to the Planning Department at time of application and shall be posted in a
conspicuous place in the guest’s sleeping quarters along with a copy of the zoning
permit number.The list shall include,but not be limited to,suggested curfews,
guidance with respect to the character of the neighborhood and gatherings and
noise,and what to do in cases of emergency and natural disaster.For those
homestavs located in the tsunami evacuation zone,renters must be informed that
the homestay is located in the tsunami evacuation zone and of the corresponding
evacuation procedures:
ffi All print and internet advertising for homestay operations,including
listings with a rental service or real estate firm,shall include the zoning permit
number and give notice that the homestav operation is located in the tsunami
evacuation zone where applicable:
A copy of the zoning permit shall be displayed on the back of the front
door of the sleeping quarters:and
)A site and floor plan shall be filed with the application.”
SECTION 5.Chapter 8,Article 18,of the Kaua’i County Code 1987,as
amended,is hereby amended by adding a new Section 8-18.3 to read as follows:
“Sec.8-18.3 Renewal of Homestay Zoning Permits
A property owner that has obtained a homestay zoning permit shall apply to
renew the zoning permit annually on the date of issuance of the homestay zoning
permit in accordance with the following regulations:
Each application to renew shall include proof that there is currently a
valid State of Hawaii general excise tax license and transient accommodations tax
license for the homestay operation.Failure to meet this condition will result in the
automatic denial of the application for renewal of the homestay zoning permit(s).
The applicant may reapply for renewal within the annual time allotment by
presenting a currently valid State of Hawaii general excise tax license and transient
accommodation tax license for the homestay operation:
Each application to renew shall include proof that the primary
residential structure(s)used for the homestay operation is the owner’s primary
residence,and the respective owner is benefiting under Sec.5A-11 of this Code for a
4
homeowner’s exemption for the homestay site in the year preceding the date of
renewal:
ç)Upon renewal,the Planning Department may initiate re-inspection of
properties for compliance with other provisions of this chapter or other pertinent
land use laws,and may withhold approval of a renewal application and issue cease
and desist notices to the applicant until all violations have been resolved:
The applicant shall pay a renewal fee of seven hundred fifty dollars
($750.00)to the Director of Finance.All renewal fees shall be deposited to the
Transient Accommodation Enforcement Account within Fund 251;and
)Enforcement of this section shall be subject to Section shall be 8-3.5 of
the Kauai County Code 1987,as amended.”
SECTION 6.Chapter 8,Article 18,of the Kaua’i County Code 1987,as
amended,is hereby amended by adding a new Section 8-18.4 to read as follows:
“Sec.8-18.4 Transient Accommodation Enforcement Account
There is hereby established and created an account to be known as the
“Transient Accommodation Enforcement Account”within Fund 251.The fees
collected pursuant to Section 8-18.3 are hereby deemed appropriated upon receipt
and may be expended to retain independent contractors to assist in the enforcement
of illegally operating transient accommodations.The fees may also be expended for
materials,supplies,equipment,and training that facilitate inspection and
enforcement of such violations.Council notification is required for any single
expenditure from this account which exceeds $10,000.Any fines collected when the
account has an excess of $250,000.00 in uncommitted funds shall be transferred and
deposited into the General Fund at the close of the fiscal year.The Planning
Department shall annually report to the Council,as part of the Mayor’s budget
submittal on March 15 of each year,the expenditures and outcomes of said
account.”
SECTION 7.If any provision of this Ordinance or the application
thereof to any person or circumstance is held invalid,the invalidity does not affect
other provisions or applications of the Ordinance which can be given effect without
the invalid provision or application, and to this end,the provisions of this
Ordinance are severable.
SECTION 8.Ordinance material to be repealed is bracketed.New
ordinance material is underscored.When revising,compiling,or printing this
ordinance for inclusion in the Kaua’i County Code 1987,the brackets,bracketed
material,and underscoring need not be included.
5
SECTION 9.This Ordinance shall take effect upon its approval.
Introduced by:Is!MASON K.CHOCK
(By Request)
DATE OF INTRODUCTION:
March 9,2016
Lihu’e,Kaua’i,Hawai’i
V:\BILLS\2014-2016 TERM\Bill No.2619,Draft 2 PM_cy.docx
6
CERTIFICATE OF THE COUNTY CLERK
I hereby certify that heretofore attached is a true and correct copy of
Bill No.2619,Draft 2,which was adopted on second and final reading by the Council of
the County of Kaua’i at its meeting held on May 18,2016 by the following vote:
FOR ADOPTION:
AGAINST ADOPTION:
EXCUSED &NOT VOTING:
RECUSED &NOT VOTING:
Lihu’e,Hawai’i
May 19,2016
Chock,Kagawa,Kaneshiro,
Kuali’i,
Hooser,Yukimura,Rapozo
None
None
TOTAL -4,
TOTAL-3,
TOTAL-0,
TOTAL-0.
Mel Rapozo
Chairman &Presiding Officer
DATE OF TRANSMITTAL TO MAYOR:
May 19,2016
Approved this1Zi day of
u.-,‘/2016.
b’rnard P.(arvalh ,
Mayor
County of Kaua’i
Jade Fountain-Tanigawa
County Clerk,County of Kaua’i
ATTEST:
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
MINUTES OF CONTESTED CASE
HEARING; CERTIFICATE OF
SERVICE
HEARING (Held):
Date: August 30, 2019
Time: 9:00 a.m.
MINUTES OF CONTESTED CASE HEARING
The Hearing on the above-entitled Contested Case were held on
August 30, 2019 commencing at 9:00 a.m. in the Līhu‘e Civic Center, Moikeha
Building, Conference Room 3, 4444 Rice Street, Līhu‘e, Kaua‛i, Hawai‘i
96766-1300 (“Contested Case Hearing”). Gregory W. Kugle appeared on behalf
2
of Petitioner PATRICIA D. McCONNELL (“Petitioner”), who was also present.
Maryann Sasaki appeared as Counsel for Respondent PLANNING
DEPARTMENT OF THE COUNTY OF KAUA‛I (“Planning Department”), along
with its duly authorized representative Andres “Bambi” Emayo.
Petitioner’s Request For Records.
During the Contested Case Hearing testimony was presented by the
Planning Department indicating it did not receive Petitioner’s Request for
Government Records dated July 10, 2019 made pursuant to Haw. Rev. Stat.
§§ 92F-11 and 12 (“Request For Records”). A copy of the Request For Records is
attached as Exhibit 1 to Petitioner Patricia McConnell’s Memorandum In
Opposition To Respondent Planning Department Of The County Of Kauai’s
Motion For Summary Judgment dated August 14, 2019 (“Memorandum In
Opposition”). Therefore, Petitioner requested leave to submit another Request For
Records to the Planning Department, and depending upon the response thereto,
may further request the Contested Case Hearing be resumed to receive evidence
related to that Request For Records.
Based upon above, and pursuant to Rules 1-6-1(b) and 1-6-3 of the
Rules of Practice and Procedure of the Kaua‛i County Planning Commission
(“Commission Rules”), by 4:30 p.m. on September 30, 2019 Petitioner shall file a
Status Report on the Request For Records and whether she requests the Contested
3
Case Hearing be resumed for further evidence to be taken regarding the same
(“Status Report”). Thereafter, a Minute Order will be issued by the undersigned
Hearing Officer either: (1) scheduling a Telephone Conference to discuss whether
the Contested Case Hearing will be resumed to receive further evidence; or
(2) setting forth a briefing schedule for the submittal of Closing Arguments and/or
Proposed Findings Of Fact And Conclusions Of Law.
Continuance Of Contested Case Hearing.
Based upon the above, and pursuant to Rule 1-6-3 of the Commission
Rules, the Contested Case Hearing is hereby continued until further order of the
undersigned Hearing Officer.
Any and all of the above-described pleadings shall be served by email
or facsimile transmission, with a hard copy served by regular mail, postage
prepaid, to all the parties and the Office of Boards and Commissions for the
County of Kaua‛i. The times set forth above are based upon Hawaiian Standard
Time (“HST”).
DATED at Honolulu, Hawaii, August 31, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on August 31, 2019.
2
U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: gwk@hawaiilawyer.com
Attorneys for Petitioner
PATRICIA D. McCONNELL
MARYANN SASAKI, ESQ.
Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: msasaki@kauai.gov
Attorney for Ka‛āina S. Hull, Director,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA‛I
NICHOLAS COURSON, ESQ.
First Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: ncourson@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
X
X
X
/ /
/ /
3
U.S. Mail Hand
Delivery
Email
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
asegreti@kauai.gov
X
DATED at Honolulu, Hawaii, August 31, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
MINUTE ORDER REGARDING
PENDING MATTERS;
CERTIFICATE OF SERVICE
HEARING (Held):
Date: August 30, 2019
Time: 9:00 a.m.
MINUTE ORDER REGARDING PENDING MATTERS
Based upon the Status Report1 from Counsel for Petitioner PATRICIA
D. McCONNELL (“Petitioner”) received on September 30, 2019 concerning the
1 All capitalized terms shall be as defined in the Minutes Of Contested Case Hearing dated
August 31, 2019.
2
Request For Records, Petitioner is directed to provide another Status Report by
4:30 p.m. on October 30, 2019 regarding the compliance by Respondent
PLANNING DEPARTMENT OF THE COUNTY OF KAUA‛I (“Planning
Department”) with respect to the same. Thereafter, further instructions will be
provided to the parties by the undersigned.
DATED at Honolulu, Hawaii, October 9, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on October 9, 2019.
2
U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: gwk@hawaiilawyer.com
JCZ@hawaiilawyer.com
Attorneys for Petitioner
PATRICIA D. McCONNELL
MATTHEW BRACKEN, ESQ.
County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: mbracken@kauai.gov
Attorney for Ka‛āina S. Hull, Director,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA‛I
NICHOLAS COURSON, ESQ.
First Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: ncourson@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
X
X
X
3
U.S. Mail Hand
Delivery
Email
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
asegreti@kauai.gov
X
DATED at Honolulu, Hawaii, October 9, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
SECOND MINUTE ORDER
REGARDING PENDING
MATTERS; CERTIFICATE OF
SERVICE
HEARING (Held):
Date: August 30, 2019
Time: 9:00 a.m.
SECOND
MINUTE ORDER REGARDING PENDING MATTERS
2
On November 1, 2019 Counsel for Petitioner PATRICIA D.
McCONNELL (“Petitioner”) submitted a Status Report1 advising that although the
Respondent PLANNING DEPARTMENT OF THE COUNTY OF KAUA‛I
(“Planning Department”) has rejected her Request For Records in its entirety, she
is inquiring as to the basis of that action. Based upon the Planning Department’s
rejection of Petitioner’s Request For Records presumably pursuant to
Rule 1-6-9(b) of the Rules of Practice and Procedure of the Kaua‛i County
Planning Commission (Codified May 2014) (“Commission Rules”), Petitioner is
directed to submit a Final Status Report by 4:30 p.m. on December 2, 2019
regarding her Request For Records. In that Final Status Report Counsel for
Petitioner shall also provide three (3) dates and times they available to participate
in a Telephone Conference to be held no later than December 16, 2019 to
determine the briefing schedule for submittal of Closing Arguments and/or
Proposed Findings of Fact And Conclusions of Law. Within forty-eight (48) hours
of submission of that Final Status Report, Counsel for the Planning Department
shall advise of their availability with respect to those three (3) dates and times.
Thereafter, the undersigned Hearing Officer will advise the parties of the date and
1 All capitalized terms shall be as defined in the Minutes Of Contested Case Hearing dated
August 31, 2019.
3
time for that Telephone Conference, or provide further instructions to the parties
based upon the Final Status Report.
DATED at Honolulu, Hawaii, November 2, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on November 2, 2019.
2
U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: gwk@hawaiilawyer.com
JCZ@hawaiilawyer.com
Attorneys for Petitioner
PATRICIA D. McCONNELL
MATTHEW BRACKEN, ESQ.
County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: mbracken@kauai.gov
LISA A. BAIL, ESQ.
Goodwill Anderson Quinn & Stifel
999 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: lbail@goodsill.com
Attorneys for Ka‛āina S. Hull, Director,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA‛I
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U.S. Mail Hand
Delivery
Email
NICHOLAS COURSON, ESQ.
First Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: ncourson@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
asegreti@kauai.gov
X
X
DATED at Honolulu, Hawaii, November 2, 2019.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP
JOHN S. MACKEY
jmackey@goodsill.com
CHRISTOPHER P. ST. SURE
cstsure@goodsill.com
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, Hawai'i 96813
Telephone: (808) 547-5600
Facsimile: (808) 547-5880
Attorneys for Respondent
7006-0
10001-0
PLANNING DEPARTMENT, COUNTY OF KAVA 'I
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNT OF KAUA 'I
In the Matter of:
Petition to Appeal Decision of the Planning
Director's Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Ha'ena, Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAVA 'I,
Respondent.
7759680.1
CC-2017-4
TMK: (4) 5-8-005:005
NOTICE OF APPEARANCE OF
COUNSEL FOR PLANNING
DEPARTMENT OF THE COUNTY OF
KAUA'I; CERTIFICATE OF SERVICE
CONTESTED CASE HEARING:
Date: August 30, 2019
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura
NOTICE OF APPEARANCE OF COUNSEL FOR THE
PLANNING DEPARTMENT OF THE COUNTY OF KAVA ~I
NOTICE IS HEREBY GIVEN of the entry of appearance of JohnS. Mackey and
Christopher P. St. Sure of the law firm of Goodsill Anderson Quinn & Stifel, A Limited Liability
Law Partnership LLP, as counsel for Respondent PLANNING DEPARTMENT OF THE
COUNTY OF KAUA 'I ("Respondent") in the above action. Notice and copies of pleadings,
papers and other material relevant to this action should be directed and served upon:
JOHN S. MACKEY
jmackey@goodsill.com
CHRISTOPHER P. ST. SURE
cstsure@goodsill.com
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, HI 96813
DATED:
2
Attorney for Respondent
PLANNING DEPARTMENT, COUNTY OF
KAUA'I
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNT OF KAUA 'I
In the Matter of:
Petition to Appeal Decision of the Planning
Director's Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Ha'ena, Kaua'i, Hawai'i, identified by Kaua'i
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA 'I,
Respondent.
CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date and by the method of service
noted below, a true and correct copy of the foregoing was served on the following at their last
known address:
7759680.1
GREGORY W. KUGLE
gwk@hawaiilawyer.com
JOANNA C. ZEIGLER
JCZ@hawaiilawyer.com
Damon Key Leong Kupchak Hastert
1 003 Bishop Street, Suite 1600
Honolulu, HI 96813
Attorneys for Petitioner
PATRICIA D. McCONNELL
NICHOLAS R. COURSON
ncourson@kauai.gov
First Deputy County Attorney
County of Kaua' i
4444 Rice Street, Suite 220
Lihu'e, HI 96766
Attorney for Planning Commission,
County ofKaua'i
ELLEN CHING, Administrator
eching@kauai. gov
asegreti@kauai. gov
Office of Boards and Commissions
County of Kaua' i
4444 Rice Street, Suite 150
Lihu'e, HI 96766
HARLAN Y. KIMURA
hyk@harlankimuralaw.com
Central Pacific Plaza
220 South King Street, Suite 1660
Honolulu, HI 96813
Telephone: (808) 564-0811
Hearing Officer
Planning Commission, County ofKaua'i
U.S. MAIL
2
HAND
DELIVERY
EMAIL
X
X
X
X
DATED: Honolulu, Hawai'i, November 13,2019.
3
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA 'I
KAUA‘I PLANNING COMMISSION
CONTESTED CASE HEARING
MINUTES
August 30, 2019
The contested case CC-2017-4 hearing of the Planning Commission of the County of
Kaua’i was called to order by Hearings Officer Harlan Y. Kimura at 9:00 a.m., at the Lihue Civic
Center, Liquor Control Conference Room 3. The following were present:
Harlan Y. Kimura, Hearings Officer
Greg Kugle, representing the petitioner Patricia McConnell
Patricia Dawn McConnell, petitioner
Maryann Sasaki, representing the Planning Department of the County of Kaua‘i
Petition to Appeal the Planning Director’s Decision Related to the Notice of
Violation and Order to Pay Fines for the operation of an Illegal Transient Accomodation
Use for Property Situated in Haena, Kaua‘i, Hawaii, identifeied by Kaua‛i TMK No. (4) 5-
8-005:005 containing 26,092 square feet.
CALL TO ORDER
Mr. Kimura: It is now 9 o’clock. We’ll begin the contested case hearing. Patricia D.
McConnell vs. the County of Kaua‘i Planning Department. CC-2017-4. Ms.
McConnell is appealing the decision of the planning director’s decision
related to the notice of violation and ordered to pay fines for the operation of
an illegal transient accommodation used for property situated in Ha‘ena,
Kaua‘i, Hawaii identified as Kaua‘i TMK Number Island (4)5-8-005-parcel-
005. Containing 26,092 sq. ft. May I have your appearances for the record
beginning with council for Ms. McConnell.
Mr. Kugle: Good morning, Your Honor. Greg Kugel on behalf of the petitioner, Patricia
Dawn McConnell, and Ms. McConnell is present with me this morning.
Mr. Kimura: Okay. Thank you. Mrs...
Ms. Sasaki: Maryann Sasaki, on behalf of the Planning Department of the County of
Kaua‘i.
Mr. Kimura: Ms. Sasaki will there be a representative from the planning...
Ms. Sasaki: Yes, there should be two witnesses. I was going to text them but then the
buzzer went off so I didn’t.
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
MINUTES
August 30, 2019
Page 2
Mr. Kimura: You will have two witnesses for the planning department but …
Ms. Sasaki: Right.
Mr. Kimura: Will there be a representative that will be sitting at your table during the entire
course...
Ms. Sasaki: I don’t know. I would say no, nobody’s said that they were going to come.
Mr. Kimura: Okay. So, uh, we can proceed without a representative present?
Ms. Sasaki: Yes.
Mr. Kimura: Okay. Now, before the evidentiary portion of the hearing takes place, there is
the planning department’s motion for summary judgment that we need to
address. In this regard I do have the motion from the planning department,
Ms. McConnell’s memorandum and opposition, as well as the reply from the
planning department. Are there any other documents that need to be reviewed
for the motion?
Ms. Sasaki: No I don’t have any.
Mr. Kugle: No.
Mr. Kimura: Mr. Kugle?
Mr. Kugle: No.
Mr. Kimura: Okay. That being the case I will receive brief arguments on the more salient
points starting with Ms. Sasaki.
Ms. Sasaki: I think there’s really only one salient point in this matter and that is that Ms.
McConnell has been operating an illegal homestay over at least the course of
the past 9 years. And despite notices from the planning department and
meetings with the planning department apprising her of her situation, she
continues to operate this transient vacation unit. There’s no dispute that that - I
don’t think there’s a dispute in facts, that she met with the planning
department, the planning department sent her an NOV. She continues to
operate without the requisite permit. So it’s the argument.
Mr. Kimura: Okay. Mr. Kugle?
Mr. Kugle: To clarify some of Ms. Sasaki’s statements and then I will very briefly argue.
The notice of violation was issued in May of 2017. So there is no 9 year
history of illegal use, or anything like that. I guess the, you know, we - other
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
MINUTES
August 30, 2019
Page 3
than that, I think our memorandum and opposition set out a number of
arguments about why the summary judgment should be denied. I’m not going
to repeat those because I know you, you ’ve read that material, but there were a
host of reasons why summary judgment should be denied. And then finally as
a practical matter I would point out, that one of our arguments is that Ms.
McConnell is actually entitled to a contested case hearing under the statute.
That’s what we’re here today to do and therefore, I think, as a practical matter,
if for no other reason, the motion should be denied because we’re here ready
to take testimony and conduct the contested case hearing.
Ms. Sasaki: May I just briefly reply?
Mr. Kimura: Yes Ms. Sasaki
Ms. Sasaki: Okay. I just, I didn’t indicate that Ms. McConnell had 9 years of illegal
operation. I merely indicated that she’s been operating a homestay without a
permit for at least 9 years. And I find that information in the petitioner’s
papers. So that’s something Mr. Krugle misstated. She’s just been operating
without a permit since before the ordinance was passed.
Mr. Kimura: Anything further Ms. Sasaki?
Ms. Sasaki: Nothing.
Mr. Kimura: Mr. Kugle?
Mr. Kugle: I have nothing further other than I think to say that it will be one of the issues
that will be decided by the planning commission is the fact that there wasn’t a
permit requirement before a certain period of time in 2016. So, uh, again, you
know, that’s the underlying issue.
Mr. Kimura: Okay. Now, as far as the ruling, unlike the contested case hearing where the
burden is upon the petitioner, in this motion for summary judgment it’s the
planning department’s burden. And the planning department must establish
that there are no genuine issues of material facts and it is entitled to judgment
as a matter of law. There are two material facts that need to be established.
One is that petitioner’s operating a homestay defined in Kaua‘i County Code
Section 8-1.5 which is defined as quote, “Means an owner occupied running
unit in which overnight accommodations are provided to transient guests
within the same dwelling unit in which the owner resides and a respective
owner currently benefits from Section 5A-11 of the comprehensive zoning
ordinance from homeowners exemption for the homestay site,” closed. The
second point that the planning department is required to establish and that
there will be no general issue on is that the property is operated as a homestay
in a location that is not in a visitor destination area. Now, the planning
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
MINUTES
August 30, 2019
Page 4
department has submitted declarations of the program manager in charge of
inspecting and enforcing violations of the comprehensive zoning ordinance,
Mr. Mike Laureta, and also the EVU - I’m sorry, the AVU TVR enforcement
specialist, Ms. Britni Lud ington-Braun. Now these declarations must
affirmatively show that the declarants are competent to testify to the facts
stated in them and they have personal knowledge of these facts. The
declarations that were submitted met both of these requirements. The planning
department has not met its burden establishing there are no general issues of
material fact and it is entitled to judgment as a matter of law. Now with
respect to the Laureta declaration, Mr. Laureta does not state that he is
competent to testify. So this requirement in Hawaii rules of civic procedure
Rule 56B is not met. Second, there are many conclusively facts in the Laureta
declaration which cannot be utilized in support of the planning department’s
motion for judgment. According to the GECC Financial Court case reference
in petitioner’s memorandum in opposition. For instance, the Laureta
declaration concludes the subject property is located outside of the visitor
designation area and does not possess a valid permit or non-conformity use
certificate. I presume it should’ve been, and this is a typo, graphical error,
should’ve been visitor destination area, instead of visitor designation area.
Ms. Sasaki: That’s correct.
Mr. Kimura: Nonetheless, in Mr. Laureta’s declaration there is no address of the property.
There is no determination of a visitor destination area. There is no reference to
what ordinance determines the visitor destination area. And there is no
specific facts as to what is a valid permit of a non-conforming use certificate
which the petitioner purportedly does not have. Lastly, there are no maps to
indicate and identify the visitor destination areas and where the subject
property is located in reference to those visitor destination areas to determine
whether or not the subject property is in or out of those visitor destination
areas. Alternatively, there is no request by the planning department for
mandatory judicial notice to acknowledge those visitor destination areas as
well as where the subject property is located in reference to those areas. So all
of these are genuine issues of material fact. Similarly, the Ludington-Braun
declaration does not state that she is competent to testify to the facts set forth
in her declaration. So, for those reasons, the planning department’s motion for
summary judgment is denied. Now there are a few more preliminary matters
before the evidentiary portion of the contested case hearing begins. The first
order of business is whether there are any interveners and I note for the record
none are present in the hearing room. Next, whether there are any members of
the general public wishing to be heard on this appeal. And also note for the
record there are no individuals from the general public present in this
contested case hearing. Now before we begin there is the issue regarding the
exhibits that were proposed by petitioner and also the planning department.
Beginning with petitioners Exhibits 1 through 5, is there an agreement that
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
MINUTES
August 30, 2019
Page 5
they be stipulated into evidence? Or will there be testimony?
Mr. Kugle: We don’t have a stipulation admitting anything into evidence so I presume
that we will go ahead and authenticate them and admit them in the normal
course of the testimony.
Mr. Kimura: Ms. Sasaki, response?
Ms. Sasaki: Well, I’m fine, if he wants to stipulate to the exhibits but...
Mr. Kimura: Okay. So, Mr. Kugle then would Ms. McConnell be willing to stipulate
Exhibits 1 through 5 into evidence?
Mr. Kugle: Um, we...
Mr. Kimura: And, I mean part of your case in chief you can make reference to them.
Mr. Kugle: Yeah, we would stipulate 1 through 5. I have some problems with some of the
county’s exhibits. Um...
Mr. Kimura: Okay. Well let’s take one thing at a time. So...
Mr. Kugle: Okay.
Mr. Kimura: ...first of all, plain- petitioner’s Exhibits 1 through 5 will be admitted into
evidence by stipulation. Now for the planning department’s Exhibits A
through F, I presume there’s also no agreement, so Mr. Kugle you mentioned
that you have objections to one or more of those exhibits?
Mr. Kugle: Yes. So I should, let me eliminate the ones that I don’t have an objection to. I
don’t have an objection to D, and would stipulate that into evidence. I think
that’s the same as petitioner’s Exhibit 1. That is the only that I don’t have a
problem with. And let me just explain what the problem is. There are, um...
Mr. Kimura: Okay. Well - well first of all...
Mr. Kugle: Sure.
Mr. Kimura: ...okay so, Exhibit D, petitioners of the planning department’s exhibit will be
admitted into evidence by stipulation and as stated by Mr. Kugle Exhibit D is
virtually identical with Exhibit 1. Okay. Now Mr. Kugle starting with Exhibit
A, your objection?
Mr. Kugle: Yeah. So my objection is we were not given the opportunity to do discovery
in this case. And the remainder of the exhibits, the county Exhibits A, B, C, E
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
MINUTES
August 30, 2019
Page 6
and F, appear to be documents out of the planning department files I presume.
We did not get those until August 23, despite the fact that we had submitted a,
um, we’ve been forced in these cases when the county will not - or, the
planning department will not agree to do discovery, we’ve been forced to use
the Uniform Information Practices Act request process to obtain a copy of the
pertinent county files. And there has been no response to our UIPA request
yet. So we’ve never seen these documents. Portions of some of these
documents were attached to the summary judgment motion that was filed a
few weeks prior. But there are significant portions of these such as, apparently
internet ads and other things in some of the exhibits that we’ve never seen
before. And I think it is, you know, it is unfair and it’s trial by surprise to,
despite having requested these formally through the UIPA process and not
having gotten a response, and no documents being produced through that
process, that’s my concern with these exhibits.
Mr. Kimura: Okay. Ms. Sasaki?
Ms. Sasaki: Well as Mr. Kugle well knows, discovery in these contested case hearings is
by stipulation of the parties. And, uh, he not only has he not made a motion to
do discovery, but he’s never even suggested to me that he wanted certain
documents or he needs certain documents. So, his discovery argument is, uh,
come short of the mark I think. As with respect to the element of surprise,
these documents were probably available online. Uh, most of the - the ones
that he’s taking specific issue with. The internal reports are - I believe were
attached to the motion for summary judgment, which was filed, uh, well
before, uh, look - I’m just see the date. I don’t know the, uh, oh okay. So the -
it was filed on July 9. So he well had opportunity to examine this material and
be aware that this material was going to be introduced into this contested case
hearing. And finally evidentiary rules in contested case hearings are flexible.
They’ve been drafted so the maximum amount of information to be used by
the hearing officer in determining the cases so I believe that these exhibits are
absolutely proper and admissible.
Mr. Kimura: Okay. Mr. Kugle? Any...
Mr. Kugle: I...
Mr. Kimura: ...reply?
Mr. Kugle: Yes. Just real briefly. So, you know, our opposition to the motion for
summary judgment on Page 9, we explained that discovery was needed and
that was a separate reason for not granting the motion. And we also attached
as Exhibit 1, the UIPA request that was served on the planning department on
July 10. Seeking exactly the type of documents that were submitted as
exhibits for this hearing. Um, and - and I, uh, would just note that one of the
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issues that we preserved for appeal, notwithstanding the fact that the planning
commission changed its rules to prohibit discovery for which the planning
department would never stipulate and never has in any case I’ve handled, I
believe that deprives parties of due process. And so strict adherence to the
rules, the rules are what the rules are, but it deprives a party of the ability to
defend the allegation and the notice of violation. And so, you know, that’s
probably an issue for appeal. But, that is one of our arguments.
Mr. Kimura: Okay. So, as far as my ruling, what I am going to be ruling is that the planning
department as the present their case in chief, you know, can offer any of these
exhibits that they wish to do so, and then appropriate objection at that time
can also be made by Mr. Kugle. However, as the parties fully are aware, the
rules of evidence do not apply necessarily in a contested case like this
according to the commission rules. However I will note that if Mr. Kugle does
state a valid reason why possibly this case may need to be continued because
there’s exhibits that would be admitted that would require additional research
or preparation to counter them, I will entertain a request at that time from Mr.
Kugle for a continuance if need be. Okay. Now, anything further before we
begin the contested case hearing?
Mr. Kugle: Not from us.
Ms. Sasaki: Nothing.
Mr. Kimura: Okay. Now knowing that there were no other parties in the contested case
hearing room we did not invoke the witness exclusionary rule. But, if
someone does come in during the course of the hearing we will invoke it at
that time. So, now we will begin the evidentiary portion of the contested case
hearing. Beginning with the petitioner’s case in chief followed by the planning
department’s case in chief. Then if deemed appropriate the petitioner may also
have a brief rebuttal case. Now Mr. Kugle, you ready to proceed with your
first witness?
Mr. Kugle: We are.
Mr. Kimura: Okay. Mr. Kugle.
Mr. Kugle: Petitioner calls to the stand, Dawn McConnell. Dawn take...
Mr. Kimura: Mr. Kugle?
Mr. Kugle: Yeah.
Mr. Kimura: Please proceed anytime you’re ready.
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Mr. Kugle: Oh, do you want to put the witness under oath?
Mr. Kimura: Yes, thank you for reminding me. Ms. McConnell could you please stand and
raise your right hand? Do you solemnly swear to tell the truth, the whole truth
and nothing but the truth?
Ms. McConnell: I do.
Mr. Kimura: Okay. Please be seated.
Mr. Kugle: Good morning Dawn. Just for the record would you state your full name?
Excuse me.
Ms. McConnell: Patricia Dawn McConnell.
Mr. Kugle: Okay. And you go by Dawn?
Ms. McConnell: Yes.
Mr. Kugle: Okay.
Mr. Kugle: Dawn, when did you first purchase your home?
Ms. McConnell: 2004.
Mr. Kugle: Okay, and where is it located?
Ms. McConnell: It’s located in Wainiha.
Mr. Kugle: Okay, and in, pardon my poor understanding of Kauai geography but is that
basically at the end of the road, Kuhio Highway way out toward, um, uh, the
end of the road?
Ms. McConnell: It’s probably two and a half miles from the end of the road, It’s right by the
(unintelligible) grocery store.
Mr. Kugle: Okay. Uh, but it’s past - you drive through Hanalei to get there?
Ms. McConnell: Yes.
Mr. Kugle: Okay. Now do you reside in the home?
Ms. McConnell: Yes.
Mr. Kugle: And that’s your permanent residence?
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Ms. McConnell: Yes.
Mr. Kugle: Do you have mail delivery out there?
Ms. McConnell: No we have rural - we have PO box.
Mr. Kugle: Okay. Now when did you begin, um, we’re going to use some terms and I
want to make sure that - that we all kind of understand and use them the same.
So what’s your understanding of a homestay?
Ms. McConnell: Uh, that the owner is in the home.
Mr. Kugle: Okay. And that’s, a lot of people will refer to that also as a bed and breakfast
or B&B. Is that your understanding?
Ms. McConnell: Yes.
Mr. Kugle: So if I use either one of those terms, homestay or B&B or bed and breakfast,
I’m referring to the same thing.
Ms. McConnell: Yes.
Mr. Kugle: And - and your understanding for all is that the homeowner lives in the home?
Ms. McConnell: Yes.
Mr. Kimura: Okay. So Ms.McConnell can you speak into the microphone so it picks up?
Ms. McConnell: Is it - the mic’s not on. Is it on?
Mr. Kugle: Um, so Dawn when did you begin, um, renting your home as a homestay?
Ms. McConnell: In 2005.
Mr. Kugle: And, um, did you, um, get a transient accommodation tax license?
Ms. McConnell: Yes.
Mr. Kugle: And that’s from the State of Hawaii, Department of Taxation?
Ms. McConnell: Yes.
Mr. Kugle: Okay. And did you also get a general excise tax license?
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Ms. McConnell: Yes.
Mr. Kugle: Also from the State of Hawaii, Department of Tax?
Ms. McConnell: Yes.
Mr. Kugle: Now when you started this, um, renting in 2005 did you ever speak to
anybody at the planning department about what you were doing?
Ms. McConnell: Yes.
Mr. Kugle: Uh, tell me about that.
Ms. McConnell: I just remember going down, to find out what I was supposed to do and, uh, it
was a - it was a really nice man, Mario, had told me where to go to get the
TAT license and the GE license.
Mr. Kugle: Okay. So Mario told you, um, you explained to Mario that you were wanting
to operate your home as a bed and breakfast or a homestay?
Ms. McConnell: Yes.
Mr. Kugle: And you asked Mario whether there was any county permit associated with
that?
Ms. McConnell: I asked him what I was supposed to do to be able to do that. And he said get a
TAT and a GE.
Mr. Kugle: Okay. And he didn’t tell you that there was some county permitting process
associated with that?
Ms. McConnell: No.
Mr. Kugle: Did he tell you basically that yes it’s legal in Kaua‘i to operate a homestay at
that time?
Ms. McConnell: I don’t really remember the full conversation. I just was going to rent and I
needed to know what to do. So I went down. I was talking to him, um, and -
and that - that’s what I wanted to do. And then he said, “Okay. You have to
get the TAT and then directed me where to get them.
Mr. Kugle: Okay. And then so as a result of that conversation you got the TAT and the
GET tax licenses and you began...
Ms. McConnell: Yes.
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Mr. Kugle: ...to rent?
Mr. Kimura: Ms. McConnell, can you move the, um, microphone I guess to your right so
when you’re facing Mr. Kugle...
Ms. McConnell: Oh.
Mr. Kimura: ...you would be speaking into the microphone?
Ms. McConnell: Okay.
Mr. Kugle: And so, um, just kind of an overview so between 2005 and 2016 you ’ve been
continuously operating your homestead?
Ms. McConnell: Yes.
Mr. Kugle: Do you have a name for your homestay? Uh, do you call it something?
Ms. McConnell: Not really.
Mr. Kugle: Okay. Um, now during that time period, 2005 to 2016, did anybody from the
county planning department ever tell you that what you were doing was not
legal?
Ms. McConnell: No.
Mr. Kugle: Now did it come to your attention that in 2008 the county passed a bill related
to transient vacation rentals?
Ms. McConnell: Yes.
Mr. Kugle: You’ve paid attention to those things?
Ms. McConnell: Yes.
Mr. Kugle: Um, and did you take any action in 2008 to determine, and I’ll call that
ordinance 864, did you take any steps in 2008 to determine whether
Ordinance 864 applied to you and whether you had to go in and get the
nonconforming use certificate?
Ms. McConnell: Yes.
Mr. Kugle: What did you do?
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Ms. McConnell: I hired, um, a draft person who did the paperwork and came back and said I
was homestay and it didn’t apply to me.
Mr. Kugle: Okay. So he went down to the planning department and they said, well this is
a homestay, so Ordinance 864 doesn’t apply to you?
Ms. McConnell: Yes.
Mr. Kugle: And so after that you continued to operate just as you had prior to 2008?
Ms. McConnell: Yes.
Mr. Kugle: Now, did you do you recall when it was in time that you received the first
correspondence or communication from the planning department questioning
your use of the property?
Ms. McConnell: Yes I recall that.
Mr. Kugle: And do you remember when that was?
Ms. McConnell: Yes. It was April 1st and the server came to my door and, um, 6 in the
morning or something. So it’s easy to remember ‘cause he was bashing the
door and then delivered a piece of paper to me.
Mr. Kugle: Okay. And that was April 1, 2017?
Ms. McConnell: Yes.
Mr. Kugle: And let me, um, just have you, um, flip in the exhibit binder in front of you
toward the back half there’s an Exhibit C.
Ms. McConnell: Yes.
Mr. Kugle: And is that the paper that was delivered to you on April 1st?
Ms. McConnell: Yes it is.
Mr. Kugle: Ms. McConnell I note that it’s dated, January 11, 2017. You didn’t get it in
January did you?
Ms. McConnell: No.
Mr. Kugle: Okay.
Mr. Kugle: First time you saw it was when it was handed to you?
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Ms. McConnell: Yes.
Mr. Kugle: I see they sent it certified mail according to the words above your name. Um,
did you have to sign for something on - on April 1st when they delivered it?
Ms. McConnell: No it was a server.
Mr. Kugle: Oh.
Ms. McConnell: He just bashed on my door and then just handed it.
Mr. Kugle: Okay. And, um, looks like your mailing address that the county was using is
104 Endlich Drive, Santa Cruz, California.
Ms. McConnell: Yes.
Mr. Kugle: But that’s not where you live.
Ms. McConnell: No.
Mr. Kugle: Um, you live at this property in Wainiha?
Ms. McConnell: Yes.
Mr. Kugle: Now, and so you got this paper and you obviously read it.
Ms. McConnell: Yes.
Mr. Kugle: I was confused by reading this, because it says that there’s violations of both
homestay and single family transient vacation rental. And it refers to two
different code sections at the bottom of the page. Do you see that?
Ms. McConnell: Yes.
Mr. Kugle: Did that cause you to wonder what you were being accused of?
Ms. McConnell: Yes.
Mr. Kugle: And what did you do in response to receiving this letter in April?
Ms. McConnell: I made an appointment and went into the planning department.
Mr. Kugle: Okay. Do you remember what day that you went down to the planning
department?
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Ms. McConnell: Yes. It was, uh, Ap-April 11, 2017.
Mr. Kugle: Okay. And, did you meet with at the planning department?
Ms. McConnell: I met with a man named Bambi and a woman, uh, named I think Joan.
Mr. Kugle: Okay. Joan Ludington Braun?
Ms. McConnell: I remember she had a long last name so that would...
Mr. Kugle: Okay. And, um, just if - if you can kind of tell us in summary how that
meeting went or what happened at that meeting?
Ms. McConnell: Well, they take you to the back room. And basically it’s like an interrogation.
First Bambi was there, just him. And then went out and got the lady. And they
just told me I had to give them $10,000 because I was in violation.
Mr. Kugle: And so were they saying that that was a fine or - or they just said you got to
pay - pay them or pay the planning department $10,000?
Ms. McConnell: You know, it’s hard to remember exactly because it was - it was quite
traumatic to be truthful because it was, uh, it was intim- it was so intim- there
was a - there was an in- I felt there was an intent to intimidate. So I was
intimidated. And so, um, I think it seemed I was being accused of something
that I - that I did not believe I - I had done. And I was supposed to give this
money.
Mr. Kugle: And did you tell Bambi and Joan that you, um, had been renting your house
legally prior to that April meeting?
Ms. McConnell: I told them I was - I was legal and that I was paying all my taxes.
Mr. Kugle: Okay. And after that meeting did you then send a letter to the planning
department?
Ms. McConnell: Yeah I took it in the next day.
Mr. Kugle: Okay. And can you just flip in the exhibits to Exhibit 3 which is more toward
the front of the binder? Uh, and is that the letter that you, you had - excuse
me, hand carried to the planning department on the 13th?
Ms. McConnell: Yes.
Mr. Kugle: And this is your summary in response - summary of that meeting and response
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to the zoning compliance notice?
Ms. McConnell: Yes.
Mr. Kugle: And so in kind of the middle of that first page of that letter you say, “It is my
believe however that I, um, have not and never have been in violation of any
of the, excuse me, older county ordinances.” You see that?
Ms. McConnell: Yes.
Mr. Kugle: And by that you meant that, you had been operating a homestay legally before
the law was changed to prohibit it in certain areas. Is that - is that what you
were conveying with this letter?
Ms. McConnell: Yes.
Mr. Kugle: Um, and then you go on to - to mention in the next paragraph that there’d
been some changes in the law. Um, that, uh, so that - that was - is that in
reference to, um, the ordinance that the planning department was pointing out
and saying that you’d violated?
Ms. McConnell: Yes.
Mr. Kugle: And that was what we’ll call the Homestay Ordinance, Ordinance 1002.
Ms. McConnell: Yes.
Mr. Kugle: Did you in that meeting with the planning department clarify with them that
you were not operating a single family transient vacation rental where the
owner doesn’t live on the property?
Ms. McConnell: Yeah I was really clear about that.
Mr. Kugle: Okay.
Ms. McConnell: Because I talked with Bam about the island. We talked - we talked a little
about the island and my, you know, my life on the island.
Mr. Kugle: Okay. Now when you went to that meeting and when you wrote this letter,
were you represented by an attorney?
Ms. McConnell: No.
Mr. Kugle: Okay. That was just Dawn McConnell from Wainiha goin’ down to the
planning department and trying to explain things?
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Ms. McConnell: Exactly.
Mr. Kugle: And did you think that by going down there and explaining the situation to
them that this would resolve everything?
Ms. McConnell: Yes.
Mr. Kugle: Did you get any letter or phone call in response to your April 13th letter?
Ms. McConnell: Nothing. Nothing ever came.
Mr. Kugle: Eventually though you did get a notice of violation, an order to pay fines
letter. Do you recall that? A second letter from the planning department?
Ms. McConnell: No I don’t recall that actually. I don’t recall getting a second letter.
Mr. Kugle: Okay. And...
Ms. McConnell: But I - I just don’t remember.
Mr. Kugle: Okay. Let me have you turn to, um, Exhibit 1 in that binder, the very first
exhibit. So this is the letter that I was referring to, um, and you say you just
don’t actually have an actual memory of receiving it.
Ms. McConnell: No, I don’t.
Mr. Kugle: Unlike the earlier letter that had been sent to California, this one indicates that
they were sending it - it has two addresses for you. Both the Santa Cruz,
California address as well as 4813 Ananalu Road, Hanalei, 96714. Correct?
Ms. McConnell: Yes.
Mr. Kugle: But again, you don’t get mail delivered down there.
Ms. McConnell: No. It would have to have a PO box or it gets sent back.
Mr. Kugle: Okay. Let me have you, in that same binder in front of you turn to Exhibit 4.
And can you just describe for the hearings officer what Exhibit 4 is?
Ms. McConnell: Uh, it’s a copy of my tax return reconciliation.
Mr. Kugle: Okay. And so, the first page of Exhibit 4 is for calendar year 2005?
Ms. McConnell: Yes.
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Mr. Kugle: And although it has sums, actual numbers blocked out, does that reflect rental
income from your homestay operation?
Ms. McConnell: Yes.
Mr. Kugle: And then how about the second page of Exhibit 4? Turn to that one. It says in
handwriting up at the top it says, “Tax Year Ending 2006,” written in there.
Do you see that?
Ms. McConnell: Yes.
Mr. Kugle: And so this, does this also reflect the payment of taxes from rental income
from your homestay operation?
Ms. McConnell: Yes.
Mr. Kugle: Third page same thing right? That’s a general excise tax, use tax return for
2006.
Ms. McConnell: Yes.
Mr. Kugle: And that also reflects rental income.
Ms. McConnell: Yes.
Mr. Kugle: And do you have similar records for all the years that you were operating?
Ms. McConnell: Yes, I do.
Mr. Kugle: Okay. And ever since you went to the planning department in 2005 and they
told you get a GET and TAT license from the state and pay that tax, that’s
what you ’ve been doing?
Ms. McConnell: Yes.
Mr. Kugle: And so we didn’t want to clutter the record with all of that but let me have you
turn to Exhibit 5. Um, and the first and second page of Exhibit 5 is a State of
Hawaii income tax return for a resident for 2015. Is that right?
Ms. McConnell: Yes.
Mr. Kugle: And this is your tax return.
Ms. McConnell: Yes.
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Mr. Kugle: State tax return for 2015. Um, this has underneath your name in the middle of
the page it has PO Box 641 Hanalei. Is that your PO Box?
Ms. McConnell: Yes.
Mr. Kugle: So that’s where you receive mail?
Ms. McConnell: Yes.
Mr. Kugle: Um, and on the second page of this it shows that you’re paying tax, income
tax, and it notes the business as property manager. Is, um, I note that this was
prepared by Stephen Ching. Who’s Stephen Ching?
Ms. McConnell: That’s my accountant.
Mr. Kugle: Okay. Um, and so that was his description or your description of what you do
when you manager your property?
Ms. McConnell: It’s his, it’s how he described it.
Mr. Kugle: Okay. And the third and fourth pages of Exhibit 5, is that, um, tax, um, GE tax
and TAT tax reconciliation totals for a number of years?
Ms. McConnell: Yes.
Mr. Kugle: Okay. And so, as I look down the columns on the left hand side, there are
entries for years ending ‘07, ‘08, ‘09, ‘10, ‘11, ‘12, ‘13, ‘14 and ‘15.
Ms. McConnell: Yes.
Mr. Kugle: Okay, and just so I’m clear, were you continuously using your property as a
homestay from 2005 through 2017 when you had your interactions with the
county?
Ms. McConnell: Yes.
Mr. Kugle: And, had you ever abandoned or discontinued that use during those years?
Ms. McConnell: No.
Mr. Kugle: You never stopped doing it for 12 months or more?
Ms. McConnell: No.
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Mr. Kugle: You were telling me about the location of your house in relation to Hanalei.
So you have to drive on Kuhio Highway through Hanalei. Is that correct? And
that’s the only way to get in.
Ms. McConnell: Yes.
Mr. Kugle: Do you recall the floods and landslides that began in April of 2018?
Ms. McConnell: Yes.
Mr. Kugle: And it’s my understanding that the county actually restricted vehicular access,
beyond Hanalei for about 14 months. Is that correct?
Ms. McConnell: Yes.
Mr. Kugle: And do you know what a - so you had to have a sticker or a permit to get out
there to get to your house. Is that correct?
Ms. McConnell: Yes.
Mr. Kugle: And do you know what agency was administering those permits, those access
permits?
Ms. McConnell: The planning department.
Mr. Kugle: The planning department. And did, um, so you obviously had a sticker on
your car and you were able to get access?
Ms. McConnell: Yes.
Mr. Kugle: Did the planning department, was it issuing stickers or permits for people who
were gonna be staying in transient vacation rentals or homestays out beyond
the road closure?
Ms. McConnell: No. They did not.
Mr. Kugle: Okay. And so, you didn’t have any rentals during that time period that the
highway was closed from April of 2018 until about June of 2019?
Ms. McConnell: No I had no rentals...
Mr. Kugle: Okay.
Ms. McConnell: ...during that time.
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Mr. Kugle: Because the planning department wouldn’t let anybody come through.
Ms. McConnell: Exactly.
Mr. Kugle: Dawn I have no further questions. Thank you.
Mr. Kimura: Thank you. Ms. Sasaki?
Ms. Sasaki: I have a question about the letter that you sent to the planning department?
The return address on that letter was your post office box?
Ms. McConnell: Um, I’d have to look at that (unintelligible). I - I - I actually delivered it to
them.
Ms. Sasaki: So they would really have no way of knowing - since you didn’t - okay. So...
Ms. McConnell: Yeah but I put the phone number on it too.
Ms. Sasaki: Okay. What is your understanding, I know you said you were, uh, when the
TVR ordinance was passed you came down and you asked whether you had
to, um, comply with, uh, and - or do any paperwork or get a permit or not with
the - when the - when Ordinance 864 is passed. That’s correct right?
Ms. McConnell: In 2008.
Ms. Sasaki: Mm-hm. Okay. When Ordinance 1002 is passed, what was your
understanding of what you needed to do that time?
Ms. McConnell: I - I didn’t - I never even knew it was passed.
Ms. Sasaki: Well how did you know that Ordinance 864 was passed but you didn’t know
Ordinance 1002 was passed?
Ms. McConnell: Because when they passed Ordinance, what is it, 84...
Ms. Sasaki: 864.
Ms. McConnell: 864, everyone knew. They told us all. They - they gave the information to
everyone. They told us who - who - how to go about the process...
Ms. Sasaki: They personally s- told you?
Ms. McConnell: It came...
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Ms. Sasaki: Who’s th...
Ms. McConnell: ...I...
Ms. Sasaki: First of all let’s say who’s they?
Ms. McConnell: Um, the - the county planning somehow or another we all knew. Because...
Ms. Sasaki: Well...
Ms. McConnell: ...we got le- certain people got letters I think. And then we passed...
Ms. Sasaki: But did you get a letter?
Ms. McConnell: Um, you know, I don’t remember in that time. But I do remember that, um,
they told us that - that we all knew. It was either coconut wireless or some -
some people got letters and spread the word. And so it was very prevalent and
- and who we went between each other. Who do you get to help you with
this...
Ms. Sasaki: So is it your position...
Ms. McConnell: ...(unintelligible)...
Ms. Sasaki: ...that the Coconut Wireless failed with respect to Ordinance Number 1002?
Ms. McConnell: Absolutely. It totally failed us.
Ms. Sasaki: And - and do you rely on your, um, obligations under the law with respect to
your business on the Coconut Wireless exclusively?
Ms. McConnell: No absolutely not.
Ms. Sasaki: So how do you - how do you - how do you determine whether you’re in
compliance or not?
Ms. McConnell: Well, you just...
Ms. Sasaki: No.
Ms. McConnell: ...you c...
Ms. Sasaki: ...but you. Not one. You.
Ms. McConnell: Well, I, you know, I would assume that the same process would be in place in
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2016 as it was in place in 2018 where - where it was in the paper, it was
everywhere that we knew. And it was not like that in 2016.
Ms. Sasaki: Would you be dis- surprised to discover that with respect to Ordinance 1002,
um, people who had been operating homestays were permitted to obtain
permits at that time?
Ms. McConnell: I remember reading in the paper where the - there - where it said was very
obscure and there was nothing specific that he was - I remember it was titled
something - or someone told me about the thing that, um, homestays were
fine. It was the word was always out homestays were fine. We just always
believed we were safe and fine. And not doing anything wrong. And then
suddenly I got this.
Ms. Sasaki: So when you were informed that you were in fact in violation of the
ordinance, you ceased operations?
Ms. McConnell: When - when Bambi...
Ms. Sasaki: Well when you got the original - when you got the original cease and desist
letter, zone - the zone and compliance notice, which that da- well dated
January 11th but you said you didn’t receive it ‘till May?
Ms. McConnell: April 1st.
Ms. Sasaki: April 1st. Okay. At - on April 1st when you had actual notice of that letter, did
you cease and desist from renting your property pursuant to the notification of
the planning department?
Ms. McConnell: I believed they were in error so I made an appointment and went down and
talked to them.
Ms. Sasaki: But you continued renting.
Ms. McConnell: I went and - I went down and talked to them and continued renting because I...
Ms. Sasaki: You continued renting.
Ms. McConnell: ...thought it was in...
Ms. Sasaki: Okay. So despite a zoning compliance notice from the planning department
that directed you to stop and provided the sections of the code which you
could’ve then looked up to b- assure yourself you were correct, you continued
operating because you thought well, they’re not right.
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Ms. McConnell: No you ’re - you’re incorrect. Because there was still nothing for homestays.
Ms. Sasaki: Well, let - why don’t you turn to - I guess it’s my Exhibit C. Um, I’m not sure
is it you r Exhibit 1? The zoning compliance notice? Is that right?
Mr. Kugle: No.
Ms. Sasaki: Memory serves?
Mr. Kugle: No. Uh, Exhibit 1 was the May cease and desist letter.
Ms. Sasaki: Okay. Well - well then I’d like to show, uh, the witness Exhibit C. The zoning
compliance notice if I may?
Mr. Laureta: Oh this is the place. Bambi.
Ms. Sasaki: Uh, Mr. Kimura?
Mr. Kimura: Yes.
Ms. Sasaki: Okay. I’d just like to show you our Exhibit C, respondent’s Exhibit C, and
perhaps you could read the first paragraph and the second paragraph? Out
loud.
Mr. Laureta: Oh thank God.
Ms. McConnell: The planning department conducted investigation...
Mr. Kimura: O- okay, um, could - could we, um, hold on a second okay? So now, let the
record reflect that we have Mr. Mike Laureta and his - his...
Mr. Laureta: And Bambi’s coming too.
Mr. Kimura: ...well is Mr. Laureta the duly authorized representative of the planning
department?
Ms. Sasaki: He’s here as a witness today.
Mr. Kimura: Well even though...
Mr. Laureta: Okay.
Mr. Kimura: ...if - even though he’s a witness, if he is the duly authorized representative, he
can remain.
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Ms. Sasaki: Well...
Mr. Laureta: Yes.
Ms. Sasaki: Okay.
Mr. Laureta: Um...
Mr. Kimura: Okay. But - but...
Mr. Laureta: And Bambi too.
Mr. Kimura: ...Bambi - Bambi who is a witness would not be permitted to be...
Ms. Sasaki: I couldn’t have two duly appointed...
Mr. Kimura: No. You can...
Ms. Sasaki: ...authorized representatives?
Mr. Kimura: ...only have one.
Mr. Laureta: Um...
Ms. Sasaki: It’s Bambi.
Mr. Laureta: Yeah Bambi.
Ms. Sasaki: Yeah.
Mr. Laureta: Okay. Okay, you ’re gonna be - you’re gonna be the (unintelligible) witness.
Okay.
Ms. Segreti: Representative.
Mr. Laureta: Yeah representative. Okay.
((Crosstalk))
Mr. Kimura: Okay. So let the record reflect that Mr. Emayo will be the authorized...
Ms. Sasaki: Representative.
Mr. Kimura: ...representative.
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Ms. Sasaki: …of the planning department, yes.
Mr. Laureta: Bambi get your phone. No?
Mr. Emayo: Go bring em.
Ms. Sasaki: Okay. Um, just could you read the first two paragraphs of the zoning
notification letter?
Ms. McConnell: Uh, the planning department conducted an investigation of the subject
property and found an establishment of a vacation rental operation. This is
considered a violation of the following provisions of the comprehensive
zoning ordinance of 1987 of Chapter Hawaii Code 1987 as amended - as
amended CZO Section 8A, General Provisions of Homestay operations are
prohibited are prohibited outside the visitor designation area.
Ms. Sasaki: So when you received this letter you thought the planning department was
incorrect with respect to the law?
Ms. McConnell: I thought that their process was incorrect because when 2008 everyone was
given the chance to file for a permit...
Ms. Sasaki: Well you said the...
Ms. McConnell: ...and (unintelligible)...
Ms. Sasaki: ...Coconut Wireless w- I mean do you think the planning department is in...
Mr. Kimura: Okay. Ms. - Ms. Sasaki, let, um...
Ms. Sasaki: Her speak.
Mr. Kimura: ...Ms. McConnell...
Ms. Sasaki: Yeah.
Mr. Kimura: ...finish her answer and you can ask your next question.
Ms. McConnell: Um...
Mr. Kimura: Go - go right ahead Ms. McConnell.
Ms. McConnell: Um, where - what was she...
Mr. Kimura: Okay. So, um, Ms...
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Ms. Sasaki: You...
Mr. Kimura: ...Sasaki can ask...
Ms. Sasaki: Okay.
Mr. Kimura: ...the question again.
Ms. Sasaki: What, were you under the impression that when the planning department sent
the zoning compliance notice and cited the specific provision with respect to
homestays outside the visitor destinar- destination area, you - did you th- think
- what was your position that they were incorrect?
Ms. McConnell: It was my position that I didn’t think they knew what they were doing and the
process did not seem appropriate, uh, because I had followed through the 2008
both with myself and with my friend down the road. And, um, that process
was kind of pretty cohesive. Whereas this process was suddenly being thrown
that oh, some point or another, s- perhaps maybe this ordinance had been
changed or was in the process of being changed. And a new system was in
place. But it could apply to TVR but maybe not homestay. It - there was
nothing very clear and furthermore, the process in 2008 it allowed for people
to be grandfathered in. So it wouldn’t make any sense whatsoever that you
would then say that time in 2008, oh, well later we will deal with homestays
later on.
Ms. Sasaki: Did you...
Ms. McConnell: And then suddenly...
Ms. Sasaki: ...(unintelligible).
Ms. McConnell: Excuse me. And then suddenly all of a sudden the homestays weren’t even
given an opportunity to be grandfathered in. That didn’t seem the process to
me. Uh, from what I know of the world and the laws, it - this did not make
any sense. And it was - even when I talked to, um, one of the people at the
planning department besides Bambi, I said, “What - what’s the permitting
process if we want to apply to get a permit? If we need to apply for the permit
like we did in 2008?” “Oh there is none.” So everybody tells you something
different.
Ms. Sasaki: Are you an attorney?
Ms. McConnell: I don’t think you need to be an attorney...
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Ms. Sasaki: Are you - are...
Ms. McConnell: ...to understand.
Ms. Sasaki: ...you an attorney?
Ms. McConnell: Excuse me?
Ms. Sasaki: Are you an attorney?
Ms. McConnell: No.
Ms. Sasaki: Did you consider consulting an attorney when you...
Ms. McConnell: I did. I - right away.
Ms. Sasaki: You consulted an attorney when you got the zoning compliance notice?
Ms. McConnell: I - I consulted an attorney after I met with Bambi and then gave the letter to
the planning department and they said that there’s no permitting process. We
don’t have one. So then I consulted an attorney to figure out what is going on
because there was so many gray areas and so much unclarity and non-clarity.
Ms. Sasaki: S- well, the, uh, I think the gray area - it - gray areas, uh, the law is ver- very
clear actually. Homestay operations are prohibited outside of the visitor
destination area. I don’t know how much clearer that could be.
Mr. Kugle: Objection. Argumentative.
Mr. Kimura: Sustained.
Ms. Sasaki: But, you did it in fact when you re- s- ordered by the planning department to
stop operations, in - in 2017, you di- you - although you weren’t a lawyer,
although you didn’t consult a lawyer, you determined that i- this law was
inapplicable to you.
Ms. McConnell: It wasn’t like that. When I talked to Bambi, he - they just told you give you
the $10,000 and go underground. Like don’t advertise. But I said what I’m no-
but I’m legal. I’m a homestay and I’m legal.
Ms. Sasaki: So is it your testimony that when you met with the planning department, they
sought $10,000 from you and for...
Ms. McConnell: No they didn’t - I didn’t pay.
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Ms. Sasaki: They sought. Yeah sought $10,000 from you. And their recommendation was
that you continue to operate illegally?
Ms. McConnell: It was - it was like, you just can’t ha- you just - yeah. S- I guess. It was kind of
like that. But then I was legal in my mind. I was legal. And I also thought that
I had every right because all these years here - here I was believing that if the
law, if they decided to do homestay down the road, which they said they were
going to at some point, that we would be given the same, um, process that
they were given in 2008. Which was I believe that, you know, you ’d be
notified, you have a right to - to apply for a permit, and you would be
grandfathered the same as everyone else. I mean the idea - I understood that
the idea for the visitor destination area. And I went through paperwork and
read it. And the idea is to build on a community. To build the community. To
allow people to have their homes and live in their community and not be
inundated by a bunch of homes that are not occupied by anyone other than
those outside of the community. And so my - we all believed that th- this was
- this ordinance was for us, to protect us, to keep us safe, to keep us in our
homes, to keep us with building our community. It never occurred to me for a
minute that there would be anything other than that, that would occur. So I
never thought that - I thought I should be grandfathered in. Of course. Like
everyone else was.
Ms. Sasaki: Well, I ha- what is your understanding of how everyone else was
grandfathered in?
Ms. McConnell: Um, when everyone in our community applied in 2008 with the TVR’s there
was - they - they got the draft persons and helped with all the paperwork, who
helped them do the applications, then the place then - then they got to buy the
permit and then the permit gran- I mean I think out of our community of 400,
80 were grandfathered in as TVR’s and they don’t live in - in the area.
Ms. Sasaki: Where - where - how do you derive at this system?
Ms. McConnell: That was through a flood independent information. During the flood
information that we had meetings and how many people are TVR’s that - of
people who live outside the island.
Ms. Sasaki: Are you aware that when - when Ordinance 1- 1004 was passed that
homeowners had an opportunity to obtain licenses pursuant to that - or, sorry,
Ordinance 1002 was passed that o- that homestay owners were - had the
opportunity to obtain the necessary permits to - to have a homestay?
Ms. McConnell: Can you repeat that?
Ms. Sasaki: Okay. When - when Ordinance 1002 was passed, were you aware that
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homestay owners had the opportunity just this TVR owners had the
opportunity when 864 was passed to obtain necessary permitting for them to
continue their business?
Ms. McConnell: When I asked the county planning after meeting with Bambi they said there
wasn’t permit. That I couldn’t apply. There was no application.
Ms. Sasaki: Because?
Ms. McConnell: They just said there is none. There was a tall guy, 6’1”, (light hair).
Ms. Sasaki: Um, okay. So you testified that from June - April 2018 to June 2019, uh, you -
there was no rental owing to, uh, flood damage or - or a consequence of the
rain in April?
Ms. McConnell: As a consequence of the federally declared disaster.
Ms. Sasaki: Yes. The rainstorm. Um, in - so now let me ask you, uh, between June ni-
2019 and the present, have you been renting your homestay and advertising
your homestay?
Mr. Kugle: Objection. Irrelevant. This, uh, purpose of this hearing is on the May, uh,
2017 notice of violation.
Ms. Sasaki: I disagree. I disagree because the - the clearly the petitioner doesn’t
understand what the law is and - and - and continues to flout it because she
thinks it’s wrong. So I mean this just goes to the fact that she’s continuing -
despite the best efforts of the planning department and they’ve taken
enormous efforts with her, she insists on continuing this - this - this, uh,
behavior. And they’ve been taking enormous efforts to notify her, to give her
an opportunity to mediate, to no avail.
Mr. Kimura: Okay. Mr. Kugle, any...
Mr. Kugle: Um, yeah. This is a single violation that was issued, uh, on May of 2017.
There’s no violation for any continuing violation or anything like that.
Ms. Sasaki: Well the...
Mr. Kugle: So we’re - what we’re litigating is the May 2017 notice of violation.
Ms. Sasaki: The notice of violation says that you can pay a civil fine not to exceed
$10,000 and your liable to pay a civil fine up to $10,000 per day. So that’s not
a facture there was a single violation. The petitioner was warned not only in
person by the planning department personally, but by a letter that ongoing
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behavior would be subject to continued - continued fines. And she still didn’t
believe that that was the law.
Mr. Kimura: Okay. Objection overruled. So you may proceed...
Ms. Sasaki: Okay.
Mr. Kimura: ...Ms. Sasaki.
Ms. Sasaki: Okay. So, between tw- June 2019 and the present, have you been renting out
of your homestay?
Ms. McConnell: Um, presently? Um...
Ms. Sasaki: Not presently. From June 2019 to the present, have you ever rented out - have
you rented your homestay?
Ms. McConnell: 2019 when they opened the road in June?
Ms. Sasaki: To the present.
Ms. McConnell: Now if it’s friends that come can I have friends come stay at my home? I
mean am I allowed to have visitor in my home?
Ms. Sasaki: I’m not here to answer the questions. You’re here to answer the questions.
Have you rented out your o- your house as a homestay or advertised it as a
homestay between June 2019 and the present?
Ms. McConnell: I had some friends stay (unintelligible) because I’m still under - I’m still in
recovery phase from this federal declared disaster. I have tremendous
expenses that have to take care of. So I do have friends who stay with me. Uh,
right now no. No not right now.
Ms. Sasaki: So you have. So the answer is yes I’ve had friends and people stay with me.
Ms. McConnell: I’ve had friends and people stay with me, um...
Ms. Sasaki: So you - no so you...
Ms. McConnell: ...(unintelligible).
Ms. Sasaki: ...can defray the costs of the damage of the storm.
Ms. McConnell: Yeah. I have to.
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Ms. Sasaki: Okay. So that - so then the answer is yes.
Ms. McConnell: Mm-hm.
Ms. Sasaki: Okay. Um, so you’ve got notice by mail that your operation is illegal. You
had notice you were in a meeting with the planning department that your
operation is illegal. There was a finding by the planning department that
you’re subject to $10,000 fine and $10,000 per day because your operation
was illegal. What - what will stop you from operating an illegal bed and
breakfast? I mean...
Mr. Kugle: Objection. Badgering a witness.
Ms. Sasaki: I - I - I don’t think it’s badgering but...
Mr. Kimura: It’s, um, sustained.
Ms. Sasaki: Okay. What - when will you - okay. Do you currently believe that there’s a
law in place preventing homestay operating outside a visitor destination area?
Ms. McConnell: Um, it appears that the planning department is putting something in place to
prevent people who live in their home from being able to rent their home out
as they please. That’s my understanding. I...
Ms. Sasaki: Okay. So you disagree...
Ms. McConnell: ...(unintelligible).
Ms. Sasaki: ...with the law. You...
Ms. McConnell: I...
Ms. Sasaki: ...disagree with it.
Ms. McConnell: You know, also do you disagree with the law that we should have the right to
be grandfathered if we’ve been doing business for many, many years? Is that a
law? You’re a lawyer. Is that a law?
Ms. Sasaki: I’m not here to answer the questions. You’re here to answer the questions.
Ms. McConnell: Well you ’re asking me if I’m disagreeing with the law. And I’m asking you if
you are. Because I’m understanding that I have the right to be grandfathered
in.
Ms. Sasaki: What - how...
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Ms. McConnell: At least given that choice.
Ms. Sasaki: Yeah. The planning department has sent you a notice of violation. The
planning department has sent you a - a zoning compliance notice. The
planning department has had a meeting with you indicating that this is not
against the - this is against the law. So what leads you to think it’s not against
the law?
Ms. McConnell: Because I have the right to be grandfathered in. Everyone else did. Everyone
else had that right. Why wouldn’t I?
Ms. Sasaki: Okay. So is it your intention to continue renting out your homestay?
Ms. McConnell: I have a lot to think about because like I said, we just went through 14 months
of being traumatized with a financially and psychologically with a disaster. I
don’t know if you ’ve ever read the international laws around that. But there
are guidelines to be followed to help us during recovery. I don’t see any help
coming for recovery. I have to try and figure out how am I going to recover
this. I have loss - huge losses and damages that were not - I got no help,
recovery bills. And I don’t know what to do. Basically I have to take care of
my property. I have to take care of myself. I’m isolated where I’m at. I’m - I
have nobody. I’m isolated.
Ms. Sasaki: And in 2017 when you were operating your homestay, that was before the
storm so what compelled you to operate the homestay in 2017, uh, versus the
notices from the planning department?
Ms. McConnell: To - to keep - to keep my property maintained. To maintain my mortgage
payment, my taxes. The county assessor that had increased my taxes to cover
the, um, as a hotel. So my taxes had tripled I believe they went from $2000
something, they went to $8000 something. I have so many more expenses. So
and also at the assessor’s office is charging me that for a hotel when...
Ms. Sasaki: So your position is that you’re entitled because you have bills to- that - to
break the law.
Mr. Kugle: Ob- I’m going to finally object because I mean it’s been asked and answered.
She has said...
Ms. Sasaki: Sh...
Mr. Kugle: ...time and time again that she believed that she was grandfathered. And...
Ms. Sasaki: She - but believing you ’re grandfathered and actually being...
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Mr. Kimura: Uh, Ms. - Ms. Sasaki, let Mr...
Ms. Sasaki: All right.
Mr. Kimura: ...Kugle finish.
Mr. Kugle: So she believed - she explained in the meeting with the planning department
that she believed she was grandfathered. And that’s the answer to these
questions. And I don’t know how many times - it’s getting repetitive. I don’t
know if you’re going to expect a different answer but that’s been asked and
it’s been answered.
Mr. Kimura: Ms. Sasaki?
Ms. Sasaki: Well, what I’m trying to get at is, um, whether your client thinks that her
wishes or desires or hopes for what the law ought to be, um, supersede what
the law actually is, that’s where I - that’s what I - what I’d like to know.
Because you said she believed it or - and sh- she be- she believed it. She
continues to believe it. So how - what - what is the planning department -
what - what did - what - what - what are they - how are they obligated to give
notice to a person who refuses to understand what the law is?
Mr. Kimura: Okay. Um, the objection is sustained. Um, Ms. McConnell did answer. Um,
what you ’re asking for I guess is her rationale. But - but I think it’s clearly...
Ms. Sasaki: I think it...
Mr. Kimura: ...(unintelligible)...
Ms. Sasaki: ...that’s clear.
Mr. Kimura: ...already answered the question so...
Ms. Sasaki: Yeah.
Mr. Kimura: ...you can move on...
Ms. Sasaki: I - okay.
Mr. Kimura: ...Ms. Sasaki.
Ms. Sasaki: Uh, I think - actually I think I have nothing further Your - Your Honor.
Mr. Kimura: Okay. Thank you. Mr. Kugle redirect?
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Mr. Kugle: Just very briefly some redirect questions. Dawn you were being asked about
the difference - your understanding of the difference in the process that
occurred in 2008 versus in 2016. Do you recall those questions?
Ms. McConnell: Yes.
Mr. Kugle: And, I think i- and correct me if I’m wrong, your explanation was that you felt
that if homestays were going to be rendered illegal outside of the VDA as
TVR’s had been in 2008, that there would be a similar, non-conforming use
process.
Ms. McConnell: Yes.
Mr. Kugle: And I think you mentioned a number of 480 or so TVR’s that were
grandfathered following the 2008 change in the law.
Ms. McConnell: In - in our particular community, Wainiha.
Mr. Kugle: Okay.
Ms. McConnell: There’s - we have like around 400 homes I suppose it is. And I think it’s - it’s
somewhere between 77 and 80 that are TVR’s non-owner occupied and most
of those homeowners live - all of them live outside of our area but many of
them live off the island.
Mr. Kugle: Okay. And, um, I - I - you were being asked, um, you know, what your belief
or understanding was. Now you expressed in the meeting with the planning
department that you thought that you were legal before the change in the law.
And that that should be respected. Is that what you explained to the planning
department?
Ms. McConnell: Yes. And I - I actually thought I was still - I thought I was still legal ‘cause I -
there was no opportunity to - to do a permit or - or processing in place.
Mr. Kugle: Okay. And, um, I - I have no further questions. Thank you.
Mr. Kimura: Okay. Is there any re-cross Ms. Sasaki?
Ms. Sasaki: I have no re-cross.
Mr. Kimura: Okay. Um, thank you Ms. McConnell. Okay.Mr. Kugle your next witness?
Mr. Kugle: We rest. We have no other witnesses.
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Ms. Sasaki: I’d like to call Mike Laureta as my first witness.
Mr. Kimura: Okay. Please do.
Ms. Sasaki: Is he outside?
Mr. Emayo: No.
Ms. Sasaki: Oh.
Mr. Emayo: You got to call him up.
Ms. Sasaki: Oh call him?
Mr. Emayo: Yeah.
Ms. Sasaki: Could we - could we take a break while I contact, Mr. Laureta’s not outside.
Mr. Kimura: Okay.
Ms. Sasaki: So...
Mr. Kimura: So, we’ll take a 5 minute recess.
Recess from 10:13am – 10:24am
Man: (Unintelligible).
Ms. Sasaki: Okay.
Mr. Kimura: (Unintelligible) then.
Man: (Unintelligible)
Mr. Kimura: Okay. Ah, raise your right. Do you please swear to tell the truth, the whole
truth, and nothing but the truth?
Mr. Laureta: Yes, I do.
Mr. Kimura: Okay, thank you. Please have a seat.
Ms. Sasaki: Mr. Laureta, what is your position with the Planning Department? What is
your posi- what is your...
Mr. Laureta: Okay. Wait, wait, wait. Let me downshift here. My - it’s...
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Ms. Sasaki: Well let - maybe I can...
Mr. Laureta: ...Planning Program Manager in charge of enforcement.
Ms. Sasaki: Okay. So as Planning Program Manager in charge of enforcement, you are
well aware of the rules governing homestays in - on Kaua‘i?
Mr. Laureta: Well aware.
Ms. Sasaki: Right, right, right.
Mr. Laureta: I am aware.
Ms. Sasaki: Okay. So can you tell me basically what ordinance...
Mr. Laureta: Oh boy.
Ms. Sasaki: Okay. Well okay, just tell me what the law is vis-à-vis homestays in Kaua‘i.
Mr. Laureta: As they are now?
Ms. Sasaki: As they are now.
Mr. Laureta: You can only have them in the visitor destination area.
Ms. Sasaki: Right. So operating outside a visitor destination area would be illegal.
Mr. Laureta: Illegal. (Unintelligible)
Ms. Sasaki: When the law changed in 2016, were - were - was there a grandfathering
component to that law, or were the people able to get - ah, obtain permits if
they were outside the VDA?
Mr. Laureta: No.
Ms. Sasaki: Okay. And the legislature’s quite clear about this?
Mr. Laureta: County Council.
Ms. Sasaki: County Council -- well yes, yes.
Mr. Laureta: Yes.
Ms. Sasaki: Um, okay. Ca- the Song of the Jungle TVR - well okay, I don’t know if that’s
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a - ah, 4813 Anan - Ananalu Road, which is the subject property in this - in
this hearing, is - is it located outside the visitor destination area?
Mr. Laureta: Yes.
Ms. Sasaki: Okay. How - could you tell us why - how you know that or why that’s so?
Mr. Laureta: Ah, we’re quite familiar with what’s in the VDA and what’s not. When the
proposed bill came before the County Council, there was a flood of
applications trying to beat the deadline. And there - whatever got in under the
bell got processed. Everything that came after, we did not process. There was
no such thing as grandfathering.
Ms. Sasaki: Okay.
Mr. Laureta: It was you apply or you don’t. So once the bill was signed by the powers that
be that was the end of homestays outside the VDA.
Ms. Sasaki: So - but homestays had - did have - before the - the - the law, homestays did
have the opportunity to be properly permitted.
Mr. Laureta: Yes.
Ms. Sasaki: Yes.
Mr. Laureta: And that’s where the rush was, when people...
Ms. Sasaki: Right.
Mr. Laureta: ...realized whoever had a homestay, ah, applied to come in.
Ms. Sasaki: Ah, what - can you describe some of the - or how publicized was the changing
of the law? Was it we- well known within the...
Mr. Laureta: Oh, it was in the front page. You - it was - it was dominant because the
County Council was trying to get a handle on these transient accommodations.
And they were hearing from both sides of the- of the aisle, I mean people for,
people against, people who had existing and they were concerned that they
were gonna get cut off. It was like all of the planning related matters before
the Planning Commission first- - excuse me -- it was well publicized in
hearing notices and in the newspapers of what the approach was, the proposed
bill, and the deadlines proposed in that bill. And, it was everybody who knew
- everybody who wanted consideration applied. But what we found was the
same thing that we found in TVRs, that no matter how well it was publicized
continuously in the newspaper, on the radio, there were still gonna be people
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who were gonna come in and say, “I don’t get the newspaper. I don’t listen to
the radio.” Um, and we’ve had that with TVRs and homestays. We continue to
have them.
Ms. Sasaki: Right.
Mr. Laureta: ...that when we cite that when we bust them, they’ll say - we’ll ask them, “Did
you know you had an opportunity to make this legal?”
Ms. Sasaki: Right.
Mr. Laureta: “Oh no, I don’t read the newspaper - I don’t get the newspaper.” I’m like,
“Okay.”
Ms. Sasaki: Well would you agree that the obligation of a homeowner is to understand - to
know and understand the law as it applies to his or her home? Would you
agree?
Mr. Laureta: Yes, I would agree.
Ms. Sasaki: Yeah. Okay, Safe Hawaii does too, so. That’s all, I just wanted to set the
stage because now we (unintelligible). So thank you. Oh you - ah, you
(unintelligible).
Mr. Kimura: Okay. Mr. Kugle, cross?
Mr. Kugle: Yeah, I do have some questions. Mr. Laureta, your, um -- hi, Mike.
Mr. Laureta: Hi, Greg.
Mr. Kugle: Good to see you again.
Mr. Laureta: Good seeing you.
Mr. Kugle: Um, your declaration submitted in support of the motion for summary
judgment, um, indicates that you’re the custodian of records for the Planning
Department.
Mr. Laureta: I am the spear point, yes. I like to delegate where possible.
Mr. Kugle: Okay. And did the Planning Department receive a Uniform Information Act
request for government records from Ms. McConnell’s lawyer relative to this
property and this proceeding?
Mr. Laureta: I don’t recall that.
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Mr. Kugle: Okay. Um, and do you, um - so you would also not recall whether the
Planning Department actually produced any records for...
Mr. Laureta: Yes, um, let me also say that in charge of OIP requests it’s another planner,
Marisa.
Mr. Kugle: And that’s Marisa Valenciano?
Mr. Laureta: Yes. She could tell you definitively if we got it and what happened to it
because she’s quite on point when it comes to deadlines regarding OIP.
Mr. Kugle: Okay. And, so let me - let me just show you what, is Exhibit 1 to the motion
for summary judgment. Um, and just let me ask if you had any involvement
with handling that or responding to that UIPA request.
Mr. Laureta: If this is twenty-nine- oh, July 10, 2019, that was like pretty recent.
Mr. Kugle: Yeah.
Mr. Laureta: She would have come to me for a file, if one existed. And the only file that
would have existed would have been the cite - what do they call that, cita- the
citation file. We didn’t - there was no application. Internal document
communications, there wouldn’t have been any since there was no application.
Um, so the only file we would have had would be the...
Mr. Kimura: Enforcement file.
Mr. Laureta: ...enforcement file. Okay. Now the other thing to that is because the
enforcement file - there was also - this - it also applied to this, not specifically,
but enforcement files that are in process, we tend to go through those with a
stricter comb because the enforcement process is still in process. So it’s not a
complete file. But what I’m thinking -- I’m thinking off my feet here -- is that,
if letters had been issued, then those would be part of the public file that
would have been available. But this one just doesn’t ring a bell.
Mr. Kugle: Okay. All right. I’ll take that.
Mr. Laureta: And this is - this is pretty recent too.
Mr. Kugle: Ms. Sasaki was asking you about the ordinance - the homestay ordinance.
Was that, um - do you know the ordinance number?
Mr. Laureta: I just brought that one, Ordinance #1002.
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Mr. Kugle: Okay. And that - ah, what was the effective date of that?
Mr. Laureta: June 3, 2016.
Mr. Kugle: And when you were testifying earlier about the homestay ordinance, that’s the
one you’re referring to.
Mr. Laureta: This is the one that’s been out and came onto our radar screen because there
was a whole bunch of discussions. And the enforcement guys do not get
involved with this stuff. That’s - that’s the regulatory guys. Whatever their
target or their intent was, um, it would have been driven by the regulatory
section.
Mr. Kugle: Yeah.
Mr. Laureta: So as this came out, it just, okay, here it is, no more homestays. So the way it
was told to me is no more homestays, that’s it, outside of VDA. Anybody
wants to do it inside of VDA, that’s a freebee ‘cause it’s gonna be outright
permitted. But - so the next question that always pops in my mind is can
someone apply for it after this date? And I was told no. It ’s the same with
transient vacation rentals, whatever that date was.
Mr. Kugle: Right.
Mr. Laureta: Can you apply for use permit, variance permit in Ag district, or the residential
district, or open district? And I was told no. Okay, cool, and we just keep
goin’ forward.
Mr. Kugle: So you described a process that you could come in apply for a permit under
this ordinance. Wasn’t it limited to like 10?
Mr. Laureta: That may have been another ordinance, but this is the one that pops up that
probably pro- precede- followed that - that - whatever - whatever or number it
was. This one doesn’t say numbers.
Mr. Kugle: Okay. And, um, but - but that was the process that you were referring to when
you were testifying about, um, the bill was out there and people came rushing
in to apply.
Mr. Laureta: Well yeah, so whatever the number was that made the application to beat the
deadline, whatever the deadline was gonna be based on when it was signed,
after that could you apply, and they said you could apply - you could apply,
but the Planning Department would not recommend approval. So in theory the
one answer could be yes you can, but we’re not gonna support it, or the
answer is no don’t even waste your breath. But since the date - from these date
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of signings, we’ve never had one.
Mr. Kugle: Mm-hm.
Mr. Laureta: Nobody’s ever applied for a TVR outside of VDA or a homestay outside of
VDA.
Mr. Kugle: And, you were comparing the Ordinance 864 and the TVR restrictions to the
homestay. And you , I think you testified, so you’d probably confirm for me,
that unlike Ordinance 864 in 2008 for TVRs that had the grandfathering
provision or the non-confirming use certificate process...
Mr. Laureta: Right.
Mr. Kugle: ...um, that Ordinance 1008 had none of that. You said no grandfathering.
Mr. Laureta: 1002.
Mr. Kugle: I’m sorry. You’re correct -- 1002.
Mr. Laureta: Yeah. Yeah, there was no grandfathering. So there was discussion regarding
previous homestays that were approved by the Planning Commission that pre-
dated all this. Um, those weren’t thrown into this mix. It was just I can
confirm what you just said, that there was no non-conf- um, non-conforming
consideration.
Mr. Kugle: Okay. And so the Planning Department didn’t look at, CZO Section 8-13.2,
the general non-conforming use provision and say well that would apply to
Ordinance 1002.
Mr. Laureta: I have no idea who did what to whom and where.
Mr. Kugle: Mm-hm.
Mr. Laureta: Yeah, we don’t, enforcement section, we weren’t asked regarding this intent
or deadlines, the numbers.
Mr. Kugle: Mm-hm.
Mr. Laureta: Um, we just get told to enforce. And it’s the same thing with development
plans. They don’t ask us...
Mr. Kugle: Mm-hm.
Mr. Laureta: ...like the potential, what’s your ideas, what’s your recommendations, it’s...
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Mr. Kugle: So the, um...
Mr. Laureta: What we get is what we get, and we don’t have input on it.
Mr. Kugle: So did, um - does this ordinance supersede Section 8-13.2, the general non-
conforming use? You - you’re familiar with what I’m talking about when I
talk about the general non-confirming use provision?
Mr. Laureta: The non-conforming use provision, yes.
Mr. Kugle: Right. And that says -- and I’ll put it my terms or lay terms -- it basically says
that, if there’s a change in the zoning law, then a previously lawful use can
continue, um, and that the new change is not going to, ah, prohibit it. And it’s
subject to some restrictions.
Mr. Laureta: I get - I get what you’re saying. Yeah, I have no clue. I - I don’t have a - an
idea how that’s gonna work. But I know you asked, and I point - I pointed to
the County Attorneys.
Mr. Kugle: Okay. And - and by the same token, the State Zoning Enabling Act Chap-
Chapter, ah, HRS 46-4, which says, “Counties can’t use their zoning power to
prohibit a non-confirming use,” um, you didn’t do any assessment about what
- how that applies to this situation to Ordinance...
Mr. Laureta: No.
Mr. Kugle: ...1002?
Mr. Laureta: No.
Mr. Kugle: Other than your testimony today that Ms. Sasaki asked you about this overall
scheme and, um, aside from your declaration that you put in in support of the
motion for summary judgment, I just want to get clear whether I should be
asking these questions to you or - or to, ah - to Bambi, so did you have any
other involvement in Ms. McConnell’s case with the investigations or the
issuance of the notice of violation, um, anything like that?
Mr. Laureta: They - when the inspectors do their -- I call it hunting -- when they hunt the
websites, the World Wide Web, and they come up with hits, then we talk
about what’s the next step. So the research that’s done before, um - to - to
make the file, they research the file and they research whatever we have in
terms of permitting. Historically do we have anything in our cavern of files?
And then the decision is made, okay, here’s what we got. And once it meets
the threshold that there’s no permit, they made no application, they are
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advertising, and they have, ah, reviews, issue the zoning compliance notice.
Once the zoning - once the enforcement process starts, timelines are in play.
So you have to respond, call the department to do a remediation plan. If there
had been a problem, a consideration such as you mentioned, then the applicant
would have or should have said in the reme- in the contact in the remediation
process, um, I’m grandfathered. Here’s what I have. Do I have any
consideration? What are - what are my possibilities? I was - I’ve been in
business since whatever the date was that we could have said, okay, bring that
forward, let’s give it first - first review, give it to the boss. Let’s see what he
says. Then he - he would probably say, okay, send it up to the attorneys, let’s
see what they say. And then we would take it from there. As...
Mr. Kugle: Okay.
Mr. Laureta: ...I recall, there was no - nothing like that came into play.
Mr. Kugle: So for - for Ms. McConnell’s case you weren’t involved in the remediation
process or the meeting at the Planning Department?
Mr. Laureta: I would have been told if something unique had popped up like a claim
towards, um, not grandfathering because for all of the enforcement cases that
we have that - it’s - it - we kind of remember which ones pop up, and we have
to consider for the future that I was not involved with the first meeting of the
zoning compliance notice.
Mr. Kugle: Mm-hm. And you don’t have any recollection of being involved, um, where
maybe the inspectors who met with Ms. McConnell as part of the remediation
process said she’s claiming that this law doesn’t apply to her, that she had a
prior established use.
Mr. Laureta: I’m not aware of that one.
Mr. Kugle: Okay.
Mr. Laureta: ‘Cause I would have told them bring it up the chain though the boss to the
Planning Director and the County Attorney. Let’s see what they say.
Mr. Kugle: Mm-hm. So other than what you’ve just described, you didn’t have any other,
ah - or you don’t have any memory, I should say, of having other involvement
in Ms. McConnell’s enforcement file or violation file?
Mr. Laureta: Other than if - if - to get from zoning compliance notice and then the - for an
NOV, notice of violation to be issued, that means there was a failure on the
part of the applicant to meet the thresholds of the zoning compliance notice.
So - and it could have been - we also take into account that the use did not
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cease, that evidence was not - the documentation was not provided, the use
was continuing, okay, issue the NOV.
Mr. Kugle: Okay. And, I recall from another case -- and it might have been yourself or it
might have been Ms. Ludington-Braun -- um, explaining to me what the
zoning compliance notice is as opposed to the - the NOV that you mentioned.
Mr. Laureta: Okay.
Mr. Kugle: Um, and it was explained to me -- and maybe you can confirm this -- that -
that the zoning compliance notice is like a warning letter. It says we think this
is what’s goin’ on. It’s not a notice of violation. Is that correct?
Mr. Laureta: Right. Right. A notice of - zoning compliance notice gives you the
opportunity to come in, sit down, and we talk about it. And then we put
everything up on the table, and we can consider it. And if we need to move
forward, if we’ve got hard and fast evidence, then the zoning compliance
notice is quite explicit as what has to occur. You have to stop the operation.
You have to remove your advertising from World Wide Web. You need to
submit that documentation to us. You have to cancel all of your commitments.
Mr. Kugle: Mm-hm.
Mr. Laureta: And if you don’t do it within a - whatever the time period is, then NOV.
Mr. Kugle: Mm-hm.
Mr. Laureta: And then we - many, many, many, many cases where people want to slide
some dates past their - their timeframe. And people stay there, and they make
comments on the website, “Yes, I enjoyed my stay.” And it’s - right there is
the evidence that’s prima facie that the use never stopped, especially after the
- the date of the ZCN when we expected the requirements to be met.
Mr. Kugle: So I think you were talking in generalities and not Ms. McConnell’s case, but,
let’s be clear. So, are you familiar with what the basis of the evidence for the
initial zoning compliance notice and the eventual notice of violation was in
Ms. McConnell’s case?
Mr. Laureta: For this case?
Mr. Kugle: Yes.
Mr. Laureta: Yes. No.
Mr. Kugle: Okay. And, like for the zoning compliance notice, that - that doesn’t trigger
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the right to appeal to the Planning Commission or challenge, right? That all...
Mr. Laureta: Yeah.
Mr. Kugle: ...comes from the notice of...
Mr. Laureta: Notice of violation.
Mr. Kugle: You know, I - I was - you’d think I understand this better having done it for a
while, but I was a little confu- I was a little confused about the process as I
read it in the zoning code versus what seems to be followed in practice. And
that is I read the zoning code, and specifically Section 8-3.5 on enforcement,
as having a two-step process. It specifically references the issuance of a notice
of violation. And then it says, if that’s not corrected, the Department can issue
a notice of order. Um, and I’m wondering in - in this case that seems to be
compressed, um, into one document, one warning, which is a notice of
violation and order to pay fines.
Mr. Laureta: It’s a two-step process, and it got hammered into us by the attorneys that, in
order to preserve the applicant’s due process rights, it had to be two steps. So
the first step is zoning compliance notice, which - which advises the owner of
a problem, and it gives them the opportunity to come in and correct it. And if
it can’t be corrected within that timeframe, then it’s a second step, notice of
violation. So the notice of violation then says, okay, um, we’re gonna fine
you, and you can appeal. But in the zoning compliance step there is no appeal
process because it’s just a warning letter.
Mr. Kugle: And so just so, I know you said you weren’t really involved with this one. But
let me show you what’s been marked as - or admitted as Petitioner’s Exhibit
1. It’s also a county exhibit, Exhibit D. That is the notice of violation and -
and order that you were referring to.
Mr. Laureta: Okay. So she - Ms. McConnell was told to stop. You were instructed to cancel
all transient accommodation commitments. On April 12, the Department met
with her, confirmed that the continued transient accommodation use is a
violation. So the use didn’t stop. So because the use didn’t stop, the NOV was
issued and the order to pay fines.
Mr. Kugle: Mm-hm.
Mr. Laureta: So the ZCN is very explicit in what it requires, and if anything continues, then
the NOV goes.
Mr. Kugle: Okay. And - and I guess I was just - so getting back to my question about the
procedures in the ordinance talking about a notice of violation to be followed
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by a notice of order, um...
Mr. Laureta: The - notice of order?
Mr. Kugle: Yes. So, in other words, so read, ah, the second page of that notice of
violation. Right? It sets out Section 8-3.5.
Mr. Laureta: Okay.
Mr. Kugle: And, it starts off in subparagraph one talking about the Planning Director
determines somebody’s not complying with a notice of violation, then the
Director may have the party responsible for the violation served by mail or
delivery with an order pursuant to this section. And then that does certain
things, imposes a fine, orders corrections and so forth. Right?
Mr. Laureta: So order is the notice of violation.
Mr. Kugle: Okay. So there is no separate order?
Mr. Laureta: No, it - it’s - that’s what’s called - see, because in 3.5a, correct the violation
within time specified. She did not. And then because she did not, then the
$10,000 fine was put into play. And then the possibility of a $10,000 per - per
day fine is a back end, ah, tool that we can use for the real onerous applicants
- owners.
Mr. Kugle: And who determines what the amount of the fine would be, if there’s one
imposed?
Mr. Laureta: The, um - we start off at 10. If there’s any effort towards compliance, we start
off at 10, and during the remediation phase without the NOV in the ZCN
phase, if there’s any effort, any willingness to remediate by providing us
documentation, we would say we could reduce the fine depending on how fast
you can remediate. So depending on how long it takes to provide us
documentation that you’ve cancelled all your commitments, that you removed
your website, we would offer up a reduced fine consideration. If there is no
effort to do any of that and the use continues, especially after the ZCN
meeting, then it’s like, nah, you know, 10. We stay at 10. Let them appeal the
10 because they made no effort to remediate, which includes no effort to
cancel the website, cancel future commitments, and try and get into
compliance.
Mr. Kugle: Okay. Couple of questions for you on that. Um, so the - the ordinance
provides a range from $500 to 10,000 for zoning code violations. Right?
Mr. Laureta: Right.
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Mr. Kugle: Um, and so you ’re telling me it’s the Department’s policy to start with the
maximum and work down.
Mr. Laureta: Yes.
Mr. Kugle: And, um, does the department give any explanation for why it chooses 10,000,
or 500, or anything in between? In other words, is there a rationale given or an
explanation for why the maximum is, or the minimum, or somewhere in
between is chosen.
Mr. Laureta: It depends on the willingness to work with the department. It’s - it’s more like
did you earn a reduction by working with us? And if you didn’t, then okay,
we’ll keep it at 10.
Mr. Kugle: Okay. And is the process that you just described, you were talking specifically
about something like this, like a homestay violation or you might have been
referring to transient vacation rental too. Is that true for other zoning
violations?
Mr. Laureta: Oh yeah. Oh yeah.
Mr. Kugle: So - so every zoning violation you start at 10,000 and work down?
Mr. Laureta: Yes.
Mr. Kugle: Okay.
Mr. Laureta: And we run into people who are very onerous and we’re - we are not - we
haven’t quite put into play the $10,000 a day, but we are. We’re starting it
now because there are some people who believe what they want to believe,
and we just say, well, you know, now that we have a possibility to put a lien
on the house, we’re gonna play. We’ll play hard. And if you don’t want to
meet whatever the - the zoning code, the requirements, the law, however you
want to put that, if you don’t want to meet us halfway and we have to go to
the NOV, and you keep the use continuing, you keep advertising, and the
reviews keep proving you’re still in operation, then we will go - we can you
with 10. We’ll serve up another NOV of 10. And if it still continues and we
have cases, then it’s like okay, now we go 10,000 per day, and then we’re
gonna work off a lien. We’re gonna put a lien on the property.
Mr. Kugle: And does the, um - when you do that, you know, the daily, um, is that based
on any evidence that it was actually being rented in the case of an illegal
rental? Um...
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Mr. Laureta: I’d rather not disclose. But what - they need evidence. You need evidence to
take to procure these steps. And it’s in the Inspector’s report...
Mr. Kugle: Mm-hm.
Mr. Laureta: ...that whatever evidence they found, however they found it, it’ll be in that
report.
Mr. Kugle: Okay. All right. Let me just look at my questions. I might be done. Thank you
that’s all the questions I have...
Mr. Kimura: Okay. Thank you. Um...
Mr. Kugle: ...Mr. Laureta.
Mr. Kimura: ...Ms. Sasaki, you may recross?
Ms. Sasaki: Yes, please. Thank you.
Mr. Kimura: I mean - redirect.
Ms. Sasaki: Thank you. Would you say that in a case such as this where the homestay
owner was - if she was notified on January 11, 2017 that she was in violation
of a code...
Mr. Kugle: Objection, misstates the evidence.
Ms. Sasaki: It doesn’t actually, because according to Ms. McConnell, she did not get this
until 2017 - 4-1-2017. But the - according to our records, this was just sent out
on January 11, 2017. Now why she didn’t get it ‘til April, I don’t know. But
we can’t start - that’s not when - when the Department first notified her.
Mr. Kimura: According to the testimony so far, the first notice that Ms. McConnell got it
was on April 1st because...
Ms. Sasaki: Received.
Mr. Kimura: Received.
Ms. Sasaki: Right.
Mr. Kimura: Because when it was mailed out, it was mailed out to her address, which she
testified she does not receive mail at her address. So we’d have to go on that
assumption. Okay?
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Ms. Sasaki: Okay. Let’s go on that assumption- okay. So would you say from a - a person
such as Ms. McConnell, who on April 1, 2017 was notified of the zoning
compliance notice that she - that she was, ah, in violation of the Section 8 - 8-
8.1(b) of the, KCC, who continued through ‘til 2017 through some of 2018
through some of 2019, would that be an onerous case?
Mr. Laureta: Yes.
Ms. Sasaki: Okay. So an onerous case warrants the imposition of 10,000 per - dollar per
say fine. Ah, would you - is that - is that - if I understood your testimony,
that’s what I thought you were saying.
Mr. Laureta: Yes.
Ms. Sasaki: Yeah. And, ah, it is the policy now of the Planning Department where people
just flout the law, just ignore the law because they don’t think the law’s right
or it doesn’t apply to them, we - the Planning Department imposes a $10,000
per day fine?
Mr. Laureta: We can.
Ms. Sasaki: Yeah.
Mr. Laureta: Now the issue - well...
Ms. Sasaki: Yeah, ah...
Mr. Laureta: I won’t go there.
Ms. Sasaki: ...okay. I - that’s - I’m done.
Mr. Kimura: Okay. Um...
Mr. Kugle: A brief - brief recross.
Mr. Kimura: Okay. Mr. Kugle?
Mr. Kugle: The Planning Department was in charge of the Kuhio Highway passes for
homeowners beyond the flood-damaged area. Correct? In April - April...
Mr. Laureta: Oh...
Mr. Kugle: ...2018.
Mr. Laureta: Okay, the flood.
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Mr. Kugle: Yeah.
Mr. Laureta: Okay. Okay. Yes, we issued passes.
Mr. Kugle: And how long was that restricted access to the north shore, um, in place?
Mr. Laureta: Not the north shore, just Wainiha and Haena.
Mr. Kugle: Okay.
Mr. Laureta: Um, I couldn’t give you the dates, but I can give you the frustration.
Mr. Kugle: You were actually involved in handing out those permits. Right?
Mr. Laureta: Yes.
Mr. Kugle: And, um, you would not have given out any permits to anybody who was
going to a transient vacation rental or a homestay. Right? That was just simply
prohibited during the time period that access was restricted. Correct?
Mr. Laureta: That was the theory that got put into play. But we heard a lot of conflicting
testimony from the residents out there, that illegal TVR - legal and illegal
TVRs were getting their people in by boat or by false documentation at our
counter, that the homeowner would come in for a - their car -- they would say
their car -- and give it to their clients.
Mr. Kugle: Now with respect to Ms. McConnell, you have no evidence that that
happened. Right?
Mr. Laureta: No, no, no.
Mr. Kugle: No. Okay. Um, and then that condition was recently...
Mr. Laureta: Well, Greg, wait. Specifically her...
Mr. Kugle: Yes.
Mr. Laureta: ...on my memory banks no, but because I had the rest of my enforcement team
there, somebody like - there were one - wait -- Jodi, Chance, Joan, Bambi,
Bill, and then Alfred -- six others I oversaw, and they - Joan would know
pretty specifically who the illegals were that were sliding in people because
she took it - I don’t know how - how she had the energy for it, but we dealt
with a lot of complaints, and we - we didn’t have the energy to chase those.
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Mr. Kugle: Okay.
Mr. Laureta: But...
Mr. Kugle: Okay. So it...
Mr. Laureta: ...specifically...
Mr. Kugle: Yeah.
Mr. Laureta: ...me no, but there’s five others on that team could or would.
Mr. Kugle: Okay. So they - that person might come in here and testify and tell us, “Yes,
Ms. McConnell was one of those violators during that time period,” but...
Mr. Laureta: I could go ask if Joan is in - Joan, Bill, Bambi may or may not know, Alfred
may or - yeah, he’s no longer with the department.
Mr. Kugle: Okay.
Mr. Laureta: ...um, Jodi and Chance. So I can go back and - and, if I find ‘em if they say
yes, then I’ll tell ‘em, you go - go to the hearing.
Mr. Kugle: Well then I’d object ‘cause they’re not on the witness list.
Mr. Laureta: Yeah.
Ms. Sasaki: Well Joan is on the witness list. Joan Ludington Braun is on the witness list.
Mr. Laureta: She is?
Mr. Kugle: Yeah.
Ms. Sasaki: Yes.
Mr. Laureta: Okay.
Mr. Kugle: Yup. All right. Um, just so I understand the process, if somebody disagrees
with the notice of violation, an order that they get, um, that says that they’ve
done something the Planning Department believes is in violation of the zoning
code, they have the right to appeal that.
Mr. Laureta: Yes.
Mr. Kugle: And that’s where we are right now for this case -- right -- in the Planning
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Commission appeal process?
Mr. Laureta: Right.
Mr. Kugle: And the Planning Commission will ultimately decide whether the Department
was correct.
Mr. Laureta: Well it’ll be based on the hearing officer’s recommendation.
Mr. Kugle: Yeah.
Mr. Laureta: The hearing officer’s recommendation will go to the Planning Commission,
and then the Planning Commission will make a decision.
Mr. Kugle: Yeah.
Mr. Laureta: So if there’s still any disagreement over whatever the process, whatever the
evidence was, then the Planning Commission can request final arguments to
hear a vote before they make a decision.
Mr. Kugle: Yeah.
Mr. Laureta: But the best time to resolve an issue would be upon receipt of the zoning
compliance notice, no matter when you get it, because whenever you get it,
you can always come in and say, “Look, there’s a date of this, and I was in
Tahiti for five months. I didn’t get my mail. I just got back on this date. I can
show you my ticket. Um, I need to come in and we talk about this thing
because, um, can we - can we reset dates - the requirements?”
Mr. Kugle: Okay.
Mr. Laureta: So it’s basically that zoning compliance notice puts you on notice, we found a
problem, it’s best that you come in. But if you disagree or agree, whatever,
that’s when you - you come in and sit down and talk with us and tell us.
Mr. Kugle: And, um, just so I understand the Planning Department policy, just so we
don’t have kind of questions like this, those zoning compliance notices and
notices of violation tend to be sent out Certified Mail. Correct? So you have
an actual signed receipt so we actually know when somebody received it.
Mr. Laureta: Well because we have so many people playing games on us now on - in the
enforcement process, when we have the opportunity, we send out the ZCN,
we also email you, if we have an email address. If it’s an NOV, we’ll email
you an advanced copy. If we have - if you have, um, representation, we’ll
send a email to whoever is your representative plus Certified Mail because
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we’ve had so much problem with Certified Mail previously going strictly to
the owner and then the owner won’t pick it up that we proposed an
administrative change to the law where we don’t need to send you certified
mail. We can send you Certified Mail. You don’t pick it up, it gets returned to
us in three to four weeks. Then we’re just gonna straight - we can - we have
now the opportunity to post the property, to put a notice in the newspaper
saying what we tried. Um, those are the two biggest ones...
Mr. Kugle: Yeah.
Mr. Laureta: ...that we - we won’t play the game anymore when you don’t pick up your
mail. We’ll just post the property, and that’ll count.
Mr. Kugle: Mm-hm.
Mr. Laureta: And when we run a classified ad in a newspaper, that will count. It’ll start...
Mr. Kugle: And...
Mr. Laureta: ...the clock.
Mr. Kugle: And so things like the return receipt for the Certified Mail or the emails, if it
was emailed to a homeowner, that would be in the Planning Department’s
files.
Mr. Laureta: Yes.
Mr. Kugle: You’d keep copies of that so that...
Mr. Laureta: Yes.
Mr. Kugle: ...so that...
Mr. Laureta: If we had - if we had an email address on you, that’s always...
Mr. Kugle: Mm-hm.
Mr. Laureta: ...part of the - the file.
Mr. Kugle: Okay. Okay. Um, thanks, Mike. I don’t have any further questions.
Mr. Laureta: Okay.
Mr. Kimura: Okay. Thank you, Mr. Laureta. Anela, can you turn the air on please?
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Ms. Segreti: Yeah. Mm-hm.
Ms. Segreti: (Unintelligible)
Mr. Kugle: Yeah.
Mr. Kimura: Okay. Ah, Ms. Sasaki, your next witness?
Ms. Sasaki: I’d like to call, um, Mr....
Mr. Laureta: Thanks, Greg.
Ms. Sasaki: Andres Bambi Emayo.
Mr. Kugle: See ya.
Mr. Kimura: Okay. Mr. Emayo. Okay. Could you please raise your right hand? Do you
solemnly swear to tell the truth, the whole truth, and nothing but the truth?
Mr. Emayo: I do.
Mr. Kimura: Thank you. Please be seated.
Ms. Sasaki: Good morning. Good af...
Mr. Emayo: Morning.
Ms. Sasaki: Yeah, good morning still. Could you state your position at the Planning
Department?
Mr. Emayo: I am the supervising inspector for the enforcement section of the Planning
Department.
Ms. Sasaki: So would it be correct to say that you oversee investigations with respect to
illegal TVRs and homestays, and things...
Mr. Emayo: Yes.
Ms. Sasaki: ...things of that nature? Okay. Could you describe to me the sort of timeline,
the process of your introduction and interaction with Ms. McConnell?
Starting with the zoning comply- well perhaps it - it prece- there was, ah, the
investigation that preceded the zoning compliance notice. But, can you just
tell me the events that led up to the zoning compliance letters and the NOV?
Mr. Emayo: Okay.
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Mr. Kugle: I’m - I’m gonna object, if he’s gonna be testifying from documents that I
don’t have, I’m not sure about that file that just got opened.
Mr. Kimura: Okay, so...
Ms. Sasaki: Well I - I...
Mr. Emayo: Well...
Ms. Sasaki: ...I think he was gonna use this, so I’ll - this is - this is our Exhibit B, ah, the
investigation report.
Mr. Kimura: Okay, yeah. Okay, so he can use Exhibit B to refresh his recollection. And
then if you ’re gonna be admitting that, then you need to do so.
Ms. Sasaki: Okay.
Mr. Kimura: Um...
Ms. Sasaki: Actually, I’m gonna start with Airbnb evidence checklist dated 1-28. That’s
Exhibit A. And then I’m gonna go onto Exhibit B, which is the investigation
report. I think this is probably what (unintelligible)...
Mr. Emayo: Okay. A report was made on January of 2016 that The Song of the Jungle
TVR was fined...
Mr. Kugle: I’m going to object, lack of foundation. He’s testifying from a document that’s
not been admitted.
Mr. Kimura: Okay. So Ms. Sasaki?
Ms. Sasaki: I’d like to admit Exhibit A and Exhibit B - submit Exhibit A and...
Mr. Kimura: Um...
Ms. Sasaki: ...Exhibit B.
Mr. Kimura: ...shouldn’t you elicit testimony to determine whether or not it’s admissible of
coming in authenticated?
Ms. Sasaki: Can you - can you talk to...
Mr. Emayo: Okay.
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Ms. Sasaki: Can you tell me about how - how - what these documents are and how they
were - how they were drafted?
Mr. Emayo: Okay. Ah...
Ms. Sasaki: And were they drafted in the course of your regular business?
Mr. Emayo: Okay, in our first section, we go according to findings from, prima facie
evidence, any kind of advertising from the website. What we did is we pulled
one of the findings is, ah, this case, which was found in 2016. We noted it,
recorded it, and once it is noted and found that it was a homestay outside of
the VDA, we sent a notice of - a - a zoning compliance notice to the property
owner.
Ms. Sasaki: Okay. So I’d like to submit Exhibits A, B, and C, which are the Airbnb
evidence checklist, the investigation for it, and the zoning compliance notice
prepared by the Planning Department.
Mr. Kimura: Ah, Ms. Sasaki, you should do one exhibit at a time.
Ms. Sasaki: Okay.
Mr. Kimura: And first of all, you show the exhibit to the witness, have him or her - have
him identify...
Ms. Sasaki: Okay.
Mr. Kimura: ...what it is and if...
Ms. Sasaki: I’m - I’m show...
Mr. Kimura: ...he’s familiar with it.
Ms. Sasaki: I - okay. Can you describe to me what Exhibit A is?
Mr. Emayo: Okay. Exhibit A is an Airbnb evidence checklist for TVR inspections. Exhibit
A shows Tax Map Key 58005005, using of transient accomodations outside of
the VDA.
Ms. Sasaki: This was prepared as a consequence of an investigation made of one Ms.
McConnell.
Mr. Emayo: Yes.
Ms. Sasaki: I’d like to submit Exhibit A as evidence that an investigation was performed
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on Ms. McConnell.
Mr. Kimura: Okay. Mr. Kugle?
Mr. Kugle: I think that still lacks foundation for admitting this document.
Ms. Sasaki: Well this document was appended to the motion for summary judgment., so as
an exhibit to the motion for summary judgment. So it’s not a new revelation to
Mr. Kugle.
Mr. Kimura: Well, ah, he would - may be - Mr. Kugle may be objecting to is that Mr.
Emayo did not acknowledge that this is a true and correct copy of the original
of the document in the enforcement file in the Department of Planning.
Ms. Sasaki: Okay. Is this a true and correct copy of a - of the document in the - of the
original of the document in the file of the Department of Planning?
Mr. Emayo: I did create this Airbnb evidence checklist, um...
Ms. Sasaki: Right.
Mr. Emayo: ...(unintelligible)...
Ms. Sasaki: So I’d like to submit Exhibit A as respondent’s Exhibit A. I’d like to submit
the Airbnb evidence checklist TVR inspections as respondent’s Exhibit A.
Mr. Kimura: Okay. Ah, Mr. Kugle?
Mr. Kugle: No, objection.
Mr. Kimura: Okay. Exhibit A is received into evidence.
Ms. Sasaki: Could you - could you, ah, say whether this investigation report is a true and
correct copy of an investigation report prepared by you, the original of which
is in the Planning Department?
Mr. Emayo: This is an investigation report submitted 1-10-2017 prepared by myself
findings of an illegal operation outside of the VDA of homestay...
Ms. Sasaki: And it’s a true and correct copy...
Mr. Emayo: ...transient accommodation.
Ms. Sasaki: ...of the original report?
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Mr. Emayo: Yes.
Ms. Sasaki: I’d like to submit respondent’s Exhibit B as a true and correct copy of the
investigation report prepared by Mr. Emayo.
Mr. Kugle: I am going to renew the objection that I made earlier on the record for this
one, which is there’s significant number of pages of this that we’ve never seen
before. And I mean, in fact, aside from portions of it being attached to the
summary judgment motion, we got this on August 23, not withstanding an un-
responded to UIPA request that’s out there. So, that’s back to my element of
unfair surprise.
Ms. Sasaki: Well Mr. Kugle knows that generally there’s no discovery contested case
hearings on absolute agreement of the parties. And, um, let me just, ah - just I
have one - just bear with me. Okay. The Hawaii Supreme Court has held that
Section 91-10(1) is intended to direct administrative agencies to admit any
and all evidence presented to them limited only by considerations of
relevancy, materiality, and repetition. And that’s Chalk v. Bitterman, 5 Hawaii
Appeals Court 59 - ah, 65 at - at Page 59. The purpose of 91-10 (1) is to free
administrative agencies from the bounds of any technical rules of evidence.
And it’s intent was to require agencies to admit evidence that would have
been admissi- inadmissible in common law trials. It - um, so I - so I submit
that the contested case hearings have relaxed evidentiary standard and that
pursuant to the holding of the Hawaiian court, ah - the Hawaiian I guess it’s
the Circuit Court - okay - no, Appellate Court, ah, I say. Um, these documents
ought to be admitted.
Mr. Kimura: Okay. So Ms. Sasaki, before I move on Exhibit B, I don’t believe the witness
authenticated the remaining pages of Exhibit B aside from just the first two
pages.
Ms. Sasaki: Well I was just using the pages on the, um - of the - of the, ah - I - I have -
would have to go get the re- I mean you ca- I can give - I can take the
remaining pages, but I - but I just was gonna use these, the ones attached to
the motion of summary judgment.
Mr. Kimura: Wait. Okay. So I guess - okay. So then my question is are you just requesting
only Page 1 and 2 of Exhibit B to be admitted into evidence?
Ms. Sasaki: No, actually I want all the - all of the exhibit admitted into evidence. So if you
can...
Mr. Kimura: You mean all the pages of Exhibit B.
Ms. Sasaki: Right.
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Mr. Kimura: Right. So shouldn’t the witness authenticate the other pages in Exhibit B.
Ms. Sasaki: Right. But - well then I - then I’d ask for a - a brief break so I can go and get
them. I don’t have them with me. I thought we would stipulate to the
admission of the evidence, so...
Mr. Kimura: Okay. Um, yes, okay, so I guess you need to get, um...
Ms. Sasaki: I’ll - I’ll get - I’ll get the - the exhibits.
Mr. Kimura: Okay.
Ms. Sasaki: Okay.
Mr. Kimura: Why - why don’t you get your exhibits then?
Ms. Sasaki: Okay. Okay.
Mr. Kimura: Okay. So we’ll take a break.
Recess from 11:19am-11:27am
Ms. Sasaki: Okay.
Mr. Kimura: Okay. So, well, Ms. Sasaki, you’re gonna show the exhibits to...
Ms. Sasaki: Okay.
Mr. Kimura: ...Mr. Kugle first.
Mr. Kugle: I- is that the...
Ms. Sasaki: It’s...
Mr. Kugle: ...the same Exhibit B that - that, ah...
Ms. Sasaki: That’s, ah...
Mr. Kugle: ...you sent me that...
Ms. Sasaki: ...submitted...
Mr. Kugle: ...last week?
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Ms. Sasaki: Yeah.
Mr. Kugle: Okay.
Ms. Sasaki: It’s Exhibit B.
Mr. Kimura: Okay. You can go ahead, Ms. Sasaki.
Ms. Sasaki: Okay. So, just could you authentic - this is the, a true and correct copy of the,
of the original, which is kept at the Planning Department of an investigation
report and, ah, this supporting materials with respect to that report?
Mr. Emayo: I acknowledge that this investigation report Exhibit B is findings that I’ve
submitted January 10, 2017, along with all of the supporting pages for Exhibit
B.
Ms. Sasaki: For the investigative report? The petitioner would like to submit the
investigation report and supporting documents at Exhibit B.
Mr. Kimura: Okay. Ah, Mr. Ku...
Ms. Sasaki: (Unintelligible)...
Mr. Kugle: Um...
Ms. Sasaki: ...respond (unintelligible)...
Mr. Kugle: ...I don’t, um, have an objection as to the foundation that was laid, but I do,
reiterate my objection that we asked for discovery. Discovery’s not agreed to
by the Planning Department. We’re forced to serve a UIPA request on the
Planning Department. And as of today, we still haven’t gotten documents
produced. So I think it’s unfair surprise and should be excluded for that basis.
Ms. Sasaki: Well if Mr. Kugle wants, we can continue this hearing until he has copies of
all the documents until the UIPA report is given to him, if this request for
documents is are rendered to him, if that’s the case.
Mr. Kimura: Okay. I will admit Exhibit B over objections of the planning - of the
petitioner. And as I did mentioned earlier, you know, if Mr. Kugle needs
additional time after questioning Mr. Emayo and looking at Exhibit B, you
know, I will entertain a request at that point in time for a continuance of this
hearing. So, with that ruling, we’ll proceed, Ms. Sasaki.
Ms. Sasaki: I would like you to authenticate whether this is the zoning compliance notice.
It was sent to, ah, Ms. McConnell in January of 2017, received by her in April
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2017.
Mr. Kimura: Okay, is that part of Exhibit B?
Ms. Sasaki: That’s Exhibit C. That’s Exhibit C.
Mr. Kimura: Oh, Exhibit C.
Mr. Emayo: I acknowledge that Exhibit C is a zoning compliance notice that was date
stamped January 11, 2017. Zoning compliance notice to Patricia McConnell –
Patricia McConnell.
Ms. Sasaki: Respondent respectfully requests to submit Exhibit C, the zoning compliance
notice from the Planning Department to Ms. McConnell.
Mr. Kimura: Okay, Exhibit...
Ms. Sasaki: C.
Mr. Kimura: ...C is...
Mr. Kugle: I - I just...
Mr. Kimura: ...already admitted into...
Mr. Kugle: ...renew...
Mr. Kimura: ...evidence by stipulation.
Mr. Kugle: ...renew my objection. Oh, I don’t think we did do Exhibit C. I think we did
Exhibit D.
Ms. Sasaki: D.
Mr. Kimura: Oh, I’m sorry. Exhibit D?
Ms. Sasaki: D is the same as...
Mr. Kugle: As - as one. D and one are the same.
Mr. Kimura: Oh, okay, okay. My, ah - okay. So anyway, Mr., ah, Kugle?
Mr. Kugle: Um, yeah, my objection is to the late disclosure and the UIPA request alone.
And so if maybe we can expedite things. If I have that running objection for
the other exhibits that we’ll get to, then I won’t repeat that, if your ruling is
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going to be as it was for Exhibit B.
Mr. Kimura: Okay. So, I will admit Exhibit C over objections of the petitioner and note for
the record that Mr. Kugle on behalf of the petitioner will have a running
objection on all of the other exhibits offered into evidence by the Planning
Department, and note that for the record.
Ms. Sasaki: So should I submit - submit the rest of the exhibits for the record? Should I - I
should - or is he su- is he accepting the rest of the exhibits, or should I submit
them?
Mr. Kimura: No. Well you still have to authentic all the...
Ms. Sasaki: Authenticate, okay.
Mr. Kimura: ...other exhibits.
Ms. Sasaki: Okay.
Mr. Kimura: So Exhibit C is admitted.
Ms. Sasaki: Okay. D I think we already agreed. Could you authentic Exhibit E, the
investigation report dated 5-16-17?
Mr. Emayo: I acknowledge Exhibit E which was submitted by myself on my investigation
report for the notice of violation. It ’s a notice of violation report dated 5-16-17
for ongoing homestay operation outside of the VDA.
Mr. Kimura: Ah, as well as the, ah, other doc...
Mr. Emayo: As we as the - along with the...
Ms. Sasaki: Supporting documents here.
Mr. Emayo: ...supporting documents.
Mr. Kimura: Okay. So Exhibit E will be admitted into evidence over the running objection
of the petitioner as previously stated.
Ms. Sasaki: Um, okay. Well as I indicated earlier, could you please just describe the
process of the investigation and investigation of this homestay, this illegal
homestay and the steps that the Planning Department took with respect to
enforcing the law, you know, with respect there too? So if you need these, I
can give...
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Mr. Kugle: Ah, I would like to - I guess it’s not an objection, but we didn’t deal with
Exhibit F to which I would have a different objection, and that was that Mr.
Emayo did not prepare...
Ms. Sasaki: Uh-huh. That’s why I didn’t...
Mr. Kugle: ...Exhibit F.
Ms. Sasaki: ...authentic it. That’s why I didn’t submit it.
Mr. Kugle: Okay.
Mr. Kimura: Okay. So, um...
Ms. Sasaki: So, just being, if you can review the procedure with respect to the
investigation of this illegal homestay...
Mr. Kugle: I - the - I do - I’m sorry to interrupt again. Ms. Ludington-Braun’s statement
which is Exhibit F, is also - appears to be perhaps the final page of Exhibit E
and since Mr. Emayo did not prepare that, that should not, if that is, in fact,
the last page of Exhibit E as well as an independent Exhibit F, it should not
come in.
Ms. Sasaki: I think that was inadvertent error of my secretary. So I’m more than willing to
not include the letter from Britni Ludington-Braun that’s cited as Exhibit F but
is contained in Exhibit E.
Mr. Kimura: Okay. So, um, for Exhibit E, it will not include the last page, which would be
the note to file dated April 12, 2017...
Ms. Sasaki: Correct.
Mr. Kimura: ...by Ms. Ludington-Braun.
Ms. Sasaki: Correct.
Mr. Kimura: Okay, Ms. Sasaki.
Ms. Sasaki: Mr. Emayo, could you recap for the hearing the process by which you
investigate illegal operating homestays?
Mr. Emayo: The process is basically - what we have done in this case, we, ah - we found,
ah, homestay use on the website, prima facie evidence of operation. Ah, and
then what we did is in - in January of 2017 we sent out a zoning compliance
notice to Patricia McConnell. The establishment of findings of a transient
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accommodation operation on 4813 Ananalu Road, Tax Map Key 58005005,
the use of transient accommodation operation outside of the designated VDA.
Then a meeting for a response by Patricia McConnell was held on April 12,
2017.
Ms. Sasaki: Let me just stop you here for one second.
Mr. Emayo: Okay.
Ms. Sasaki: So at the meeting of April 12, 2017, did you discuss the zoning compliance
notice?
Mr. Emayo: Yes.
Ms. Sasaki: And what did you tell Ms. McConnell with respect to that notice?
Mr. Emayo: We reiterated the zoning compliance notice dated January 20...
Ms. Sasaki: Well it’s August 4’s proceeding.
Mr. Emayo: ...January 2017.
Ms. Sasaki: Yeah.
Mr. Emayo: Which is - I don’t have the zoning compliance notice I think.
Ms. Sasaki: You don’t?
Mr. Emayo: No.
Ms. Sasaki: I could give it to you. It should be in there. Right? Here it is. Exhibit C,
zoning compliance notice.
Mr. Emayo: We went over the homestay operation, which was prohibited outside of the
VDA destination, ah, visitor destination area. The unauthorized use of the
subject property for transient accommodation outside of the designated VDA
constituted a violation.
Ms. Sasaki: And, ah, this zoning compliance notice asks the homeowner to take which -
what kind of action? What do they want the homeowner to do?
Mr. Emayo: I got ‘em on the zoning complaints list.
Ms. Sasaki: (Unintelligible)
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Mr. Emayo: Pursuant to Chapter 8, Kaua‘i County code, Ms. McConnell was directed to
comply with the following requirements. Immediately cease and desist the use
of the subject property as transient accommodations. Cancel all transient
accommodation commitments for the property.
Ms. Sasaki: So she was ordered to cease, ah - cease...
Mr. Emayo: Cease and desist the use...
Ms. Sasaki: ...the use. And, did she, in fact, cease and desist using it as a homestay - a - a
illegal homestay?
Mr. Emayo: According to our findings, we found that the - the use of transient
accommodations homestay has been continued.
Ms. Sasaki: So she didn’t stop upon notification, ah...
Mr. Emayo: Until March of 2018.
Ms. Sasaki: Okay, so as a consequence of Ms. McConnell’s cease - failing to cease
operations, was a notice of violation and order to pay fines transmitted to her?
Mr. Emayo: Because of the findings of the use, in 5-16-17, Planning Department sent a
notice of violation in order to pay fines on May 23, 2017.
Ms. Sasaki: Okay. So basically from May - no, from April of 2017 through March of 2018
there were continual operations of this homestay?
Mr. Emayo: I believe - well, it says that she has articulated that she was gonna keep
operating in our meeting through March. Our findings for the notice of
violation is up ‘til 5-16-17.
Ms. Sasaki: But pursuant to that notice of violation was another notice of violation
rendered?
Mr. Emayo: The notice of violation that we submitted to her was on...
Ms. Sasaki: Is this all - this all - that’s all one?
Mr. Emayo: On May 23, 2017.
Ms. Sasaki: Okay. So it’s your understanding then that Ms. McConnell’s in violation of
the law because she is operating a homestay outside the VDA and continues -
has - has refused up to this point to cea- stop operating one?
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Mr. Emayo: The notice of violation in order to pay fines was sent out to her because of the
findings of the continued use of homestay operation outside of the VDA up to
the point of May 23, 2017.
Ms. Sasaki: And then was another investigation held in - in May of 2017?
Mr. Emayo: We have continued opera- um, continued, ah, ah, investigations on the pro-
property as long as the operation continued.
Ms. Sasaki: Okay, so has - has Ms. McConnell ever attempted to remediate the issue
within her - with her homestay?
Mr. Emayo: We have no, ah..
Ms. Sasaki: No evidence?
Mr. Emayo: ...evidence of that.
Ms. Sasaki: Okay. All right. I’m - that’s fine. Thank you.
Mr. Kimura: Okay. Ah, Mr. Kugle?
Mr. Kugle: Thank you. Good morning, Mr. Emayo. Is that...
Mr. Emayo: Yes.
Mr. Kugle: ...pronouncing? Okay. Thank you. And you go by Bambi as...
Mr. Emayo: Yes.
Mr. Kugle: ...your first - nickname. Okay. Um, the first exhibit that you authenticated and
that we looked at was Exhibit A, which was the Airbnb evidence checklist. Do
you recall that, or do you have a copy of that in front of you?
Mr. Emayo: Yes.
Mr. Kugle: And you prepared that document?
Mr. Emayo: I did.
Mr. Kugle: Okay. ‘Cause it says, “Researched by Bambi.”
Mr. Emayo: Yeah.
Mr. Kugle: So, now I was trying to, ah, the second line, it’s - so it’s dated January 28,
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2016. Correct?
Mr. Emayo: Okay.
Mr. Kugle: Which means you did this research on or about that time.
Mr. Emayo: Yes.
Mr. Kugle: And what specifically were you doing in terms of research?
Mr. Emayo: This was, ah, ah, earlier when Mr. Laureta was explaining one of the methods
used to find illegal operations. He called it hunting I believe. While we were
researching the internet, the World Wide Web for transient accommodations
on the island of Kaua‘i.
Mr. Kugle: Okay. And so on second line it - there’s - it has investigation type with a
check off box of either request of complaint. You checked off complaint.
Mr. Emayo: Okay.
Mr. Kugle: What does that mean?
Mr. Emayo: One of the ways that we were taking in possible illegal operations was 1)
through the Internet and - and always through the Internet to verify. But
sometimes we would get, what I call. “complaints” through people or in this
case I believe it was through real property assessments who assessed this
property as a vacation rental.
Mr. Kugle: Okay. So is that saying then that somebody complained about it?
Mr. Emayo: Ah, we could have got it from outside or from our real property, which we
still do.
Mr. Kugle: Okay.
Mr. Emayo: We still, um...
Mr. Kugle: So do you know where this one came from?
Mr. Emayo: This was - this was a real property check.
Mr. Kugle: Okay. So in other words, somebody in the real property tax section...
Mr. Emayo: We will periodically get assessments from the real property, if they’re doing
vacation rentals to match up with our legal non-conforming uses outside of the
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VDA.
Mr. Kugle: Okay. And so you heard, ah -- or maybe you didn’t -- but Ms. McConnell
testified earlier that the county had increased her real property taxes and was
assessing her at a hotel rate. Is that consistent with what would happen if
somebody’s operating some type of a transient vacation?
Mr. Emayo: I have no idea of their operations.
Mr. Kugle: Okay. Um, well let’s go, um - sticking with Exhibit A, it looks like you
determined that she did, in fact, have a GE tax and a transient accommodation
tax license. Yes?
Mr. Emayo: Yes. The numbers is over the - the number is W51707089-01.
Mr. Kugle: Okay. And, on the first line it’s - was the TV- oh, oh, that’s w- strike that
question. And then you have Internet advertising, if found, and you’ve
checked other. Correct?
Mr. Emayo: Yes, I checked...
Mr. Kugle: And...
Mr. Emayo: ...other, being it VRBO.com #481178 and VRBO.com #130810.
Mr. Kugle: Okay. And then in the next line down you checked real property tax
assessment classification as vacation rental.
Mr. Emayo: Yes.
Mr. Kugle: So the tax people assess vacation rentals as vacation rentals, and that’s a
higher tax rate than say residential. Is that your understanding?
Mr. Emayo: I have no understanding of that.
Mr. Kugle: Okay. So you just got that word vacation rental from the real property tax
department?
Mr. Emayo: No. I got a real property assessment classification off the Internet. We have
the, um - what - what do they call it? They have checks or - or some kind of
sheet - spreadsheet on each property...
Mr. Kugle: Mm-hm.
Mr. Emayo: ...on the real property (unintelligible). And their assessment of it was vacation
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rental I guess.
Mr. Kugle: So - so the - the county’s online property records...
Mr. Emayo: Yeah.
Mr. Kugle: ...um, is what you - that database you checked. And it had - um, it’s...
Mr. Emayo: Vacation rental.
Mr. Kugle: ...listed down as vacation rental.
Mr. Emayo: Yeah.
Mr. Kugle: Um, and so you - you don’t know how the tax department works, but that’s
what they’re calling it.
Mr. Emayo: Yes. And the reason it’s complaint - we use it as a complaint is because
whatever they assess as vacation rental, we cross check it with our database on
who’s a legal, non-conforming use TVR or use permit homestays. And if
they’re not in there, we do further research to verify the illegal use.
Mr. Kugle: Okay. And then - and just so I understand the rest of this form and - you check
off boxes where you’ve done things or found things, and then you don’t check
‘em if they don’t apply. So...
Mr. Emayo: Yes.
Mr. Kugle: So in this case you didn’t go out and - or check for rental cars, um, ‘cause that
box isn’t checked off. So...
Mr. Emayo: Yes, we did.
Mr. Kugle: Okay. And it’s - this is a kind of a form you fill out when you ’re doing, like
you said, the hunting or just online...
Mr. Emayo: Online checks, yes.
Mr. Kugle: Yeah. And so this was January 28, 2016. That’s before Ordinance 1002 was
passed -- correct -- which was June 3...
Mr. Emayo: Yes.
Mr. Kugle: ...2016.
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Mr. Emayo: Correct.
Mr. Kugle: So I was gonna ask you why didn’t you issue a zoning compliance letter on
January 28, 2016?
Mr. Emayo: Could be verification - we needed more verification. Ah, the investigation
wasn’t complete. Along with this World Wide Web check we have to
complete a investigation report, which would be Exhibit B.
Mr. Kugle: Okay. But that wasn’t done until a year later in January...
Mr. Emayo: Yes.
Mr. Kugle: ...2017.
Mr. Emayo: Yes.
Mr. Kugle: Was the reason why you didn’t do the next step, which was the investigation
report, because on January 28, 2016 what Ms. McConnell was doing wasn’t
illegal?
Mr. Emayo: Not at all. Ah, we just had a - we have a whole bunch like this. And then we
put it on the side until we get to it. And then when the next one comes up, then
we do the investigation for it.
Mr. Kugle: Okay. All right. So it wasn’t a question of the Planning Department waiting
until Ordinance 1002 was passed six months later.
Mr. Emayo: We had no idea if it was gonna pass or not or what.
Mr. Kugle: Okay. But it was - apparently it was well publicized that it was coming up.
Mr. Emayo: Yeah. But we don’t focus on that.
Mr. Kugle: Mm-hm. Okay. Um, let’s talk about Exhibit B, which is, I think you test-
testified that that was your investigative report.
Mr. Emayo: Yes.
Mr. Kugle: And so you in addition to filling out the first two pages, you collected the
backup material that is kind of tabbed and sectioned in the back. Is that
correct?
Mr. Emayo: Ah, supporting the...
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Mr. Kugle: So the in- in...
Mr. Emayo: ...supporting the face page, yes.
Mr. Kugle: Yeah. Okay, and so what did you do in terms of an investigation, which
generated this report? What was your process?
Mr. Emayo: To find evidence for the property, to verify if the property was an illegal use -
illegal, transient accommodations use outside of the VDA.
Mr. Kugle: Okay. And so for this one it looks like you looked at Airbnb.com.
Mr. Emayo: Ah, for the prima facie evidence, yes.
Mr. Kugle: And when you say prima facie evidence, just so we understand what you’re
talking about, that means that you’re searching the Internet looking for an
advertisement, which you then deem to be evidence that there’s an illegal
operation.
Mr. Emayo: Evidence of the operation - ah, transient accommodation operations, yes.
Mr. Kugle: So for in this investigative report, you didn’t, um - it was based on just that
evidence of the Airbnb advertisement?
Mr. Emayo: Compilation of all of the different evidence we have. According to this case,
we had Airbnb, we had VRBO, we had GET taxes, and TAT taxes, along with
real property assessment as vacation rental.
Mr. Kugle: And just so I’m clear, who does the real property tax assessment? Is that the
state of Hawaii or the County of Kaua‘i?
Mr. Emayo: It is the County of Kaua‘i.
Mr. Kugle: So a year later - a year before this you had a VRBO site, but in January of
2017 it was Airbnb?
Mr. Emayo: Yes.
Mr. Kugle: And so other than that, other than the things you just described, the existence
of a GE tax license, a TAT tax license, the Airbnb ad, and the fact that the
county classified this as vacation rental for real property tax purposes, that
was what this investigative report was based on?
Mr. Emayo: Along with the maps of the - the Tax Map Keys and zoning maps to show that
the property is outside of the VDA.
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Mr. Kugle: Okay. I didn’t see within Exhibit B in the back up pages, the zoning map.
Mr. Emayo: I believe is - I didn’t, um - I didn’t page it, but it’s in there. It’s in there after
the real property page after the Airbnb website page.
Mr. Kugle: Mm-hm.
Mr. Emayo: It’s towards the end of the...
Mr. Kugle: Okay. So that’s the one that says, “Special planning area north shore...
Mr. Emayo: Yes.
Mr. Kugle: ...Wainiha Valley”?
Mr. Emayo: It would show - it would show the property outside of the VDA.
Mr. Kugle: I’m looking at that map. I don’t see the VDA designated on it.
Mr. Emayo: The VDA designation is not on it. There was no VDA around that area.
Mr. Kugle: Okay. And when you refer to the VDA map, you’re talking about the maps
that exist in the county that have the timeshare boundary. Is that right? A - a
line des...
Mr. Emayo: Yeah, they used to call them the timeshare boundaries.
Mr. Kugle: Yeah.
Mr. Emayo: Yes.
Mr. Kugle: And that’s what it’s still on. the maps today it’s labeled timeshare...
Mr. Emayo: Yeah, VDA.
Mr. Kugle: ...boundary?
Mr. Emayo: Yes.
Mr. Kugle: So as part of the investigation which resulted in Exhibit B you didn’t actually
talk to Dawn McConnell at that point in January of 2017?
Mr. Emayo: Not yet.
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Mr. Kugle: And, you didn’t talk to any neighbors of hers?
Mr. Emayo: No.
Mr. Kugle: Um, you didn’t go out to the property?
Mr. Emayo: No.
Mr. Kugle: You didn’t talk to any people who claimed to have been renting her rooms?
Mr. Emayo: I don’t - it would have been in the report.
Mr. Kugle: It - it would be in the report, if you did.
Mr. Emayo: It’s not in the report.
Mr. Kugle: Yeah, so you didn’t at that point go out and observe rental cars in the
driveway or receive a log of rental cars from neighbors or somebody else?
Mr. Emayo: In this case, no.
Mr. Kugle: And, you didn’t find any evidence of an actual financial transaction like an
actual rental, rental contract, payments, checks, anything like that?
Mr. Emayo: No.
Mr. Kugle: So as a result of doing that investigation and completing that report, it looks
like the following day you issued the zoning -- well when I say you, I’m
talking about the Planning Department -- issued the zoning compliance notice
or at least dated the zoning compliance notice. Is that right?
Mr. Emayo: Okay, yes.
Mr. Kugle: And that’s Exhibit C. Now I did have some questions about that as well. You
usually stamp that on the date it’s prepared, so that January 11, 2017 date is
the date is was prepared?
Mr. Emayo: The stamp is the day that the secretary sends - send it...
Mr. Kugle: Okay.
Mr. Emayo: ...the actual date of, ah, that it’s sent - it’s sent out.
Mr. Kugle: In Exhibits A and B I saw that, um, the reports listed both an address for Ms.
McConnell in Santa Cruz, California as well as the Wainiha property address.
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Do you know why this Exhibit C, the zoning compliance notice was sent only
to Ms. McConnell in Santa Cruz, California?
Mr. Emayo: The reason why it’s sent to only to Patricia McConnell, 104 Endlich Drive,
Santa Cruz, California is that it’s the address given on the real property
contact person. And that is the, um - how we get the address to...
Mr. Kugle: Mm-hm.
Mr. Emayo: ...send our - all of our notices out. That is our first, ah - yes, yes, it’s - this -
this is the first address that we get on the ownership of the property. And the -
according to what we have is the owner, who is Patricia D. McConnell, 104
Endlich Drive, Santa Cruz, California 95060.
Mr. Kugle: Okay. And, we don’t have any copy of a return receipt or anything else
indicating the date it was received by Ms. McConnell.
Mr. Emayo: Ah, we have a copy of that. However, we didn’t put ‘em in the evidence. Ah, I
don’t know if it went to this property, but we usually have the green card,
which we can we have the numbers for it, and they can - they’ll pop up on the
- on the computers, ah, on the date of...
Mr. Kugle: The - the tracking number.
Mr. Emayo: Tracking number - tracking number of...
Mr. Kugle: Okay.
Mr. Emayo: ...who received it, when or where.
Mr. Kugle: Okay. But - so that may exist, but we don’t have that in, ah...
Mr. Emayo: Yeah.
Mr. Kugle: ...the evidence here.
Mr. Emayo: Yeah, I don’t.
Mr. Kugle: Um, the - you heard - maybe you heard. Were you present this morning when
Ms. McConnell testified that she actually received it on April 1st of 2017?
Mr. Emayo: Yes.
Mr. Kugle: Okay. And you have no reason to disbelieve that?
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Mr. Emayo: No.
Mr. Kugle: Would the Planning Department use a process server or somebody like that to
physically go hand a zoning compliance notice to a homeowner at the street
address?
Mr. Emayo: We do.
Mr. Kugle: Okay. So the process she described could have happened here.
Mr. Emayo: Could have.
Mr. Kugle: Um, would your records indicate whether you had to use that process instead
of the registered mail? Would that be in the file?
Mr. Emayo: Yeah. Um, sometimes we put ‘em in, sometimes we don’t.
Mr. Kugle: Okay, now I had a question. So you did your investigation. And the report was
Exhibit B. Um, and this is alleging that there might be two different
violations, Section 8-8.1(b) and Section 8-17.8. You see that?
Mr. Emayo: Yes.
Mr. Kugle: Um, and one relates to homestay, and the other relates to single family
transient vacation rental.
Mr. Emayo: Yes.
Mr. Kugle: Um, well what was it that the Planning Department was claiming that Ms.
McConnell was doing that was unauthorized?
Mr. Emayo: Ah, we said the violation was the unauthorized use of the subject property for
transient accommodations outside of the VDA, meaning, um, ah, both uses.
Mr. Kugle: Okay. And which one - based on your investigation, which one did you
believe she was doing at the time?
Mr. Emayo: At the time we must have seen both, a house and a portion of the house, which
is a house, which will be transient vacation rental and, the portion of the
house, which would be a homestay.
Mr. Kugle: Okay. But if it was a house, she could be living in the house, and that would
then just be homestay.
Mr. Emayo: She could rent out the house and live in the house or whatever. That would be
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a transient vacation rental. The whole house would be a transient vacation
rental. A portion of the house, would be a roo- like a room or something that.
Mr. Kugle: Okay. So - so in other words, if I...
Mr. Emayo: That would be homestay.
Mr. Kugle: ...if I try to understand the difference between a single family transient
vacation rental and a homestay, a homestay you’re renting out a portion of the
house or rooms while you remain on the premises versus a single family
transient vacation rental there’s no requirement that the owner be on the
premises, and the whole house...
Mr. Emayo: That doesn’t matter
Mr. Kugle: Yeah.
Mr. Emayo: (Unintelligible) where the home is.
Mr. Kugle: Okay.
Mr. Emayo: Transient accommodation is for a single family residence...
Mr. Kugle: Mm-hm.
Mr. Emayo: ...house, yeah.
Mr. Kugle: So you were just being safe and covering all the bases saying it’s either a
homestay or a transient vacation...
Mr. Emayo: I think what happened was the, VRBO showed it was a house not clarifying
the specific rooms, and the Airbnb pointed out to us that it was a homestay
operation.
Mr. Kugle: Now...
Mr. Emayo: Being - both of ‘em being transient accommodation outside of the VDA, we
cited both sections, 8-8.1, which is a homestay, and 8-17.8, which is a TVR,
sections of the CZO.
Mr. Kugle: Okay. The second page - so just so I’m clear, Exhibit C is not complete. You
sent more than just this two-page letter. Is that right? And I ask that because
on the second page it says, “We’ve attached Ordinance 1002 for your
reference.”
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Mr. Emayo: I believe so, yes.
Mr. Kugle: And that 1002 is the one that we’ve been referring to previously in this
hearing. That was the June 3, 2017 -- I’m sorry -- June 3, 2016 ordinance that
said no homestays outside the VDA that Mr. Laureta testified about.
Mr. Emayo: Yes.
Mr. Kugle: And you would agree with Mr. Laureta that Ordinance 1002 has no mention
of nonconforming use process?
Mr. Emayo: I don’t agree with him. And I’m not sure.
Mr. Kugle: Well let me ask it this way, and you can look at that, but, um, let me ask it this
way. You’re familiar with the, um, Ordinance 864 that was past in...
Mr. Emayo: Yes.
Mr. Kugle: ...2008. And, ah, it’s probably been part of your job to, ah, deal with those
TVRs that got nonconforming use certificates under that ordinance from 2008.
Correct?
Mr. Emayo: Yes.
Mr. Kugle: And so it is your understanding that Ordinance 1002 relative to homestays is
very different than Ordinance 864 dealing with transient vacation rentals
because the homestay ordinance doesn’t have that nonconforming use
certificate registration process like the TVR ordinance did?
Mr. Emayo: Yes. The Ordinance 1002, the homestay ordinance did not - to my
understanding they did not make an opening for people coming to certify the
grandfather use because it was always open for anybody to go in to get a -
what they used to call it a B&B use through a use permit process. So it was - it
- you could always go in and - for a use permit. And we do have some use
permits from before the ordinance for B&Bs.
Mr. Kugle: Okay. And was there ever a time that the Planning Department would tell a
B&B owner that there is no permitting process from a county standpoint for a
B&B or a homestay?
Mr. Emayo: Well at the time we didn’t have a process for homestay because the
terminology wasn’t in existence. So we had. But B&B was always open. Ah,
you could come in and get a use permit for a B&B, which they entertain a few
before.
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Mr. Kugle: Okay. And so, if somebody like Ms. McConnell had come in in 2005 and
talked to the Planning Department and said I bought this house, I want to
operate a bed and breakfast or a homestay, whatever the term you want to use
what would she have been told?
Mr. Emayo: She would have been directed to the use permit process to get a B&B use
permit.
Mr. Kugle: Okay. And there would - I would of course, be able to go back into the 2005
version of the zoning code and find a reference to a B&B use permit.
Mr. Emayo: No. That is why you could get a usage - you could try for a use permit because
there is no, um - it’s not permitted in any of the zones. So that would - that
would – anything not permitted or cited somehow, you could try and get a use
permit process.
Mr. Kugle: Okay. So if Ms. McConnell went and looked at the zoning code, she wouldn’t
have found any reference to a bed and breakfast permit or a homestay permit
in 2005?
Mr. Emayo: There wouldn’t be.
Mr. Kugle: Now, Ms. McConnell eventually contacted you after receiving the zoning
compliance notice. Correct?
Mr. Emayo: I believe she contacted Britni Ludington-Braun who was working with us as a
contract hire to do these, these World Wide Web searches. Ah, so who I
believe she created the meeting dates.
Mr. Kugle: Okay. And if I remember, Britni, her real name is Joan or - or...
Mr. Emayo: No.
Ms. Sasaki: No, just...
Mr. Emayo: Britni is a different person. That’s Joan’s daughter.
Mr. Kugle: Okay. Okay. So, Britni set up a meeting, but you had a meeting - you and -
well initially you and Ms. McConnell alone had a meeting on what, I guess
that was April 12th of 2017.
Mr. Emayo: Um, myself, and, ah, Ms. McConnell, and Britni was in the meeting.
Mr. Kugle: Okay. And can you just describe to me, um, how that - obviously the purpose
of that was to come in in response to the zoning compliance notice that...
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Mr. Emayo: Yes.
Mr. Kugle: ...says, “Contact our office in 14 days.” Right?
Mr. Emayo: Uh-huh.
Mr. Kugle: And so how did that meeting transpire? What went on in that meeting?
Mr. Emayo: We - the - at the meeting we offered clarification for remedial action for the
zoning compliance notice sent on January of 2017. We basically had three
directions to remedy the situation. Number 1, which would be a written
response to the zoning compliance notice with our some kind of remedial
action plan. Number 2 was to remove the prima facie evidence. Number 3 was
to work with the Planning Department to rectify the violation. And the
submission to the - to the remedial action plan would be on April 14, 2017.
Mr. Kugle: Okay. And, um, so after that meeting, Ms. McConnell did prepare a letter and
submit that on April 13, 2017.
Mr. Emayo: Okay. Yes, I think so.
Mr. Kugle: Ah, yeah, and that’s part of - part of your file of Exhibit E.
Mr. Emayo: Okay.
Mr. Kugle: Um, and I’m assuming that in that meeting on April 12th she told you and
Britni that she didn’t believe that she believed she was legal under the prior
laws and that she should be grandfathered under Ordinance 1002. Is that a fair
summary of her position?
Mr. Emayo: I think she was trying to prove that point, yes.
Mr. Kugle: And, did you or Britni ask her to submit some evidence of that as a result of
that meeting?
Mr. Emayo: Ah, that could have - um, I remember her saying that. That could have been
just write it down as part of your remedial action plan that you would submit
before April 14 of 2017.
Mr. Kugle: Okay. And so when she submitted her letter on April 13th - when she hand
carried that down here. Right?
Mr. Emayo: Mm-hm.
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Mr. Kugle: Um, and that was in response to your meeting on April 12th the next day
(unintelligible)...
Mr. Emayo: Yes.
Mr. Kugle: And she was explaining in that letter again how, I think she said in her words,
“It is my belief, however, that I have not and would never been in violation of
any of the older county ordinances.” And then she explains that there’s been
this change in the law. Right?
Mr. Emayo: Mm-hm. Yes.
Mr. Kugle: And did, um - did you or Britni kick this upstairs to Mike Laureta - and I don’t
mean physical upstairs, I’m not sure where his office is. but talk that over with
him, and say that she’s claiming she’s nonconforming or she’s grandfathered?
Mr. Emayo: No, I don’t think so.
Mr. Kugle: And your report on the first page of Exhibit E, says that,“Planning Department
offered a remedial action plan to rectify the violation. Pat McConnell has
accepted and signed the terms to remediate.” You see that at the bottom of
Exhibit E?
Mr. Emayo: Yes.
Mr. Kugle: And, I’m looking at the last page of Exhibit E which begins at the top of the,
page, scheduled meeting. Do you see that? It’s actually - you may have a letter
from Britni Ludington Braun. That wasn’t part of Exhibit E. So go to the
second to the last page, which is scheduled meeting. You see that one?
Mr. Emayo: Scheduled meeting?
Mr. Kugle: Yeah, it’s a page that begins at the top. It says scheduled meeting, and then it
has the date, and it has some compliance plan terms.
Mr. Emayo: Yes.
Mr. Kugle: Ah, and so did you, um - did you ever, ah, talk to Britni about how that
meeting went?
Mr. Emayo: I was in that meeting.
Mr. Kugle: Okay. Did...
Mr. Emayo: This is my writing.
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Mr. Kugle: Um, did Britni ever tell you that Ms. McConnell did not sign a remedial action
plan or agree to one?
Ms. Sasaki: Objection (unintelligible).
Mr. Kimura: Um, the rules of evidence don’t necessarily apply.
Ms. Sasaki: Okay.
Mr. Emayo: What was the question?
Mr. Kugle: The question was did Britni tell you and also, this is admission by a party
opponent, did Britni tell you that she didn’t think Ms. McConnell ever signed
that action plan?
Mr. Emayo: No. I didn’t - I - I cannot recall anything. She did si- um, I - this is her
signature I believe.
Mr. Kugle: Okay. Did you ever read a meeting report that Britni prepared about that April
12th meeting?
Mr. Emayo: I think I did.
Mr. Kugle: Okay. And...
Mr. Emayo: Ah, I...
Mr. Kugle: ...do you...
Mr. Emayo: ...I cannot find that report though, that letter.
Mr. Kugle: Yeah. And do you recall whether Britni said in that letter that Ms. McConnell
didn’t sign the remedial action plan?
Mr. Emayo: No. No, I don’t remember.
Mr. Kugle: Um, you - you ’ve been handed something. Does that refresh your
recollection?
Mr. Emayo: No, but I see - I - I see it.
Mr. Kugle: Okay. Okay. So - so you - Britni might have thought she didn’t sign that.
Mr. Emayo: Okay.
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Mr. Kugle: Um, so earlier you were telling us about the things that you wanted Ms.
McConnell to do as part of her remedial action plan. And you ticked off three
items. Those are the ones that are listed on this page that’s titled scheduled
meeting dated April 12, 2017. Correct?
Mr. Emayo: Okay, yes.
Mr. Kugle: Which is a written response - so first a written response to the zoning
compliance notice with a remedial action plan.
Mr. Emayo: Yes.
Mr. Kugle: And then secondly, remove prima facie evidence, which you explained to us
means the Airbnb advertising.
Mr. Emayo: Yes.
Mr. Kugle: And then third, work with Planning to rectify the violation.
Mr. Emayo: Yes.
Mr. Kugle: Um, I just - I didn’t understand the last one. If she - if she did - if she removed
the prima facie evidence and did a written response what more is there to do
to rectify the violation?
Mr. Emayo: We didn’t, um - we didn’t note what further actions we would need to come
into compliance.
Mr. Kugle: Okay. And so after the date of this form and this meeting, she did, in fact,
submit a written response to the zoning compliance notice and addressed her
concerns about it. Right?
Mr. Emayo: Yes. Yes.
Mr. Kugle: And did she, um, remove the prima facie evidence?
Mr. Emayo: Not at that time, no.
Mr. Kugle: Okay. And, after you folks received her written letter on - ah, that was
delivered on the 13th, did, um - what was the next step from the Planning
Department?
Mr. Emayo: To get compliance.
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Mr. Kugle: And - and by that you mean you did another investigation...
Mr. Emayo: Yes.
Mr. Kugle: ...which ultimately ended up in the issuance of the notice of violation and
order.
Mr. Emayo: Yes.
Mr. Kugle: And, that is Exhibit E, right? That was done in - in May after the meeting.
Mr. Emayo: Yes.
Mr. Kugle: And just so I understand, and that was dated May 23, 2017.
Mr. Emayo: Yes.
Mr. Kugle: And, in that investigative report, similar to the questions I asked you before on
the zoning compliance notice, the evidence that you relied on to generate the
notice of violation was a continuing Airbnb ad that was present on May 18,
2017.
Mr. Emayo: Yes.
Mr. Kugle: And, as part of this investigation you didn’t go out and talk to any of Ms.
McConnell’s neighbors.
Mr. Emayo: No.
Mr. Kugle: And, you didn’t go out to the property itself.
Mr. Emayo: Nope.
Mr. Kugle: You did not observe any rental cars or have reports or logs of rental car
activity at the site.
Mr. Emayo: Instead of logs or reports, what we do is we have reviews of people who
stayed on the property using the third party host website to review on the
property.
Mr. Kugle: So a comment posted on Airbnb or...
Mr. Emayo: Yes.
Mr. Kugle: ...VRBO.
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Mr. Emayo: Yes.
Mr. Kugle: And do you contact the person who posted that on the Internet?
Mr. Emayo: According to - um, we’ve made a contact with Airbnb. And according to
Airbnb, people who can put their reviews onto the website are only the people
who rented the property through that third party host - third party hosting
companies.
Mr. Kugle: Okay. So - but you don’t do anything to verify whether that’s a real person or
whether they actually stayed there?
Mr. Emayo: No.
Mr. Kugle: Um, and by like terms you don’t have any evidence of any actual financial
transaction or rental, exchange of money in exchange for a room.
Mr. Emayo: Again we use the th- um, ah, when - when talking to Airbnb the people who
put reviews have to do the transactions through the third party host, meaning
VRBO, or Airbnb, or whatever.com.
Mr. Kugle: And so who - who talked to Airbnb and VRBO?
Mr. Emayo: I myself did once on - on one of the meetings that we had.
Mr. Kugle: And when was that?
Mr. Emayo: Oh, I’m cannot remember the date. It was a general information meeting on
the phone.
Mr. Kugle: And do you know who you spoke with?
Mr. Emayo: No.
Mr. Kugle: Ah, let me then have you look at Exhibit D, which was, um, titled, “Notice of
Violation and Order to Pay Fines.”
Mr. Emayo: I don’t have it. Okay
Ms. Sasaki: You do.
Mr. Emayo: A, B, C, I don’t have D.
Mr. Kugle: I’ll give you a copy of D, if I may approach.
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Mr. Kimura: Ah, yes you may.
Mr. Emayo: I do, I do, I do have it.
Mr. Kugle: Okay. And that’s the one with the date stamp of May 23, 2017?
Mr. Emayo: Yes.
Mr. Kugle: Now this, um - did you prepare this? I - I know it’s not your signature on it.
But did you prepare that notice of violation?
Mr. Emayo: I did.
Mr. Kugle: And, unlike the zoning compliance notice, this one is addressed to Patricia
McConnell both at the Wainiha address as well as the Santa Cruz address.
Mr. Emayo: Yes.
Mr. Kugle: Okay. And, was this one sent Certified Mail?
Mr. Emayo: Yes, all of our documents that are sent are sent by Certified Mail.
Mr. Kugle: Okay. Do you know when it was received by Ms. McConnell?
Mr. Emayo: I don’t think so.
Mr. Kugle: Okay. Um, ‘cause we don’t have the return receipt or anything in the - in these
exhibits.
Mr. Emayo: I don’t think we put it in.
Mr. Kugle: Yeah. So in the second paragraph of the notice of violation and order to pay
fines, the part that starts off on April 12th talking about your meeting, it goes
on to say the Planning Department confirmed that the continued transient
accommodation operation (homestay) - you said the subject property is a
violation. Um, and - and what was that determination based on?
Mr. Emayo: Ah, an investigation on...
Mr. Kugle: Well maybe I can help you. That was based on the investigation report that
you did that was dated May 23, 2017 and that we looked at as...
Mr. Emayo: Yes.
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Mr. Kugle: ...Exhibit E.
Mr. Emayo: Yes, Exhibit - what was - C?
Mr. Kugle: E.
Ms. Sasaki: E.
Mr. Emayo: Okay. Yes, that’s the one.
Mr. Kugle: Okay. And so, but Exhibit E was not sent to Ms. McConnell as part of the
notice of violation.
Mr. Emayo: No.
Mr. Kugle: So she doesn’t know what, um - what other - what evidence there was to
support the conclusion. She just gets the determination that it was being
violated on that day.
Mr. Emayo: Yes.
Mr. Kugle: And I think you’ve testified earlier about that day. It was either May 16 or
May 17 of 2017. Correct?
Mr. Emayo: Yes.
Mr. Kugle: Um, unlike the zoning compliance notice, this one says she’s only violating
Section 8-18.1 on the homestays.
Mr. Emayo: Yes.
Mr. Kugle: And why - how - what changed between the time you issued the zoning
compliance notice and this notice of violation, um, for you to go from the two
violations to the one?
Mr. Emayo: I sent the notice of violation according to the notice of violation investigation,
which is Exhibit C. C, yeah?
Mr. Kugle: No.
Mr. Emayo: E. E.
Mr. Kugle: E.
Mr. Emayo: E -- which is Exhibit E. Ah, the findings were the continued operation of a
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homestay. Ah, we didn’t know if the TVR violation had ceased or not. We
had no evidence of continued use. So the notice of violation went only
towards continued use of the noted, the notation from Exhibit E.
Mr. Kugle: Okay. And - and that’s what you then explain -- violation -- the Planning
Department has confirmed that the subject property is currently being used for
a homestay operation. Continued use of the subject property for a homestay
operation outside of the designated VDA constitutes the violation.
Mr. Emayo: Yes.
Mr. Kugle: I was a little confused because that letter goes on to quote the enforcement
section of the Zoning Code 8.3.5 that talks about first there’s an - ah, it says
that if somebody’s not complying with a notice of violation, the Director may
have that party served with an order, and the order may require the party to
correct the violation, pay a civil fine, ah, or pay civil fines per day. Correct?
Mr. Emayo: Yes.
Mr. Kugle: So I was confused because that - that is what this - this letter does both. Right?
It is a notice of violation saying she’s done a violation. And then it is an order
that she pay a $10,000 fine to the Planning Department.
Mr. Emayo: No. Ah, the - the first letter that we sent was the zoning compliance notice,
and they may call it something else in 8.3.5. Ah, but the first letter that we
sent is the zoning compliance notice that was sent in January of 2017, which
specifically states that a violation of Section 8.18.1, homestay, is illegal
outside of the VDA.
Mr. Kugle: Okay. And the, um - this, ah, Exhibit D then levies and orders a fine of
$10,000 for that violation. Correct?
Mr. Emayo: Yes.
Mr. Kugle: And how did the Planning Department determine that it should be - isn’t there
a range of fines available for zoning code violations?
Mr. Emayo: Yes.
Mr. Kugle: And the minimum being?
Mr. Emayo: Five hundred to...
Mr. Kugle: And the ma...
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Mr. Emayo: ...$10,000.
Mr. Kugle: Okay. And how did, um, the Director or the Department determine that it
should be 10,000 and not, um, something less?
Mr. Emayo: We have a fine schedule actually, which is in-house, that was created to guide
is in, um - on the ways that we are allowed to fine them.
Mr. Kugle: Okay. And, does that fine schedule talk about different fines for different
types of zoning violations?
Mr. Emayo: Yes.
Mr. Kugle: And does it talk about some factors or some criteria that the director would
consider as to when a lesser or a greater fine should be imposed?
Mr. Emayo: Yes, basically our fine schedule shows the specific sections that we fine on.
And it’s, a range of when the remedial action is taken.
Mr. Kugle: So in other words there’s - there are fines associated with each provision of
the zoning code, like the homestay provision or like building setback
provision.
Mr. Emayo: Yes.
Mr. Kugle: And so what is the fine or the range of fines for a violation like this, which is
of the homestay ordinance?
Mr. Emayo: The continued use, not cease, there’s no cease and desist of the illegal
operation, continued use is the maximum, which is $10,000. It can be ongoing
according to what we have, which we’ve never used is $10,000 per day for
continued use.
Mr. Kugle: Mm-hm. And, um - and just so I’m clear, Mrs. McConnell was never issued a
- a prior notice of violation say for this same thing. This was the first time.
Mr. Emayo: I believe this is the first notice of violation in order to pay fines, yes.
Mr. Kugle: And does the fine schedule provide for like, you know, repeated violations
that you have an increasing amount of a fine or...
Mr. Emayo: The fine goes up to $10,000. Ah, how many times is something else. But
according to what we have is the fine is from 500 to $10,000.
Mr. Kugle: And, in this case the final page of the notice of violation, it, informs Ms.
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McConnell of her right to if she disagrees with this determination, to appeal it
to the Planning Commission. Correct?
Mr. Emayo: Yes.
Mr. Kugle: And, I notice that the appeal period referenced in this letter is 21 days. But,
it’s my understanding that the actual appeal period is 30 days. Is that your
understanding as well?
Mr. Emayo: I have no understanding of that. That’s, um...
Mr. Kugle: So in other words, this one references a rule of the planning commission, and
it says you have 21 days from the date of the adverse decision. And you don’t
know if that’s been changed, or if it’s now 30 days, or anything like that?
Mr. Emayo: No, this is just the part that the attorneys put in for us.
Mr. Kugle: Just give me one minute to review my notes. I might be through. I’m sorry. I
do have, I think one more question. You have not issued any more notices of
violation to Ms. McConnell since the one that we are discussing, Exhibit D. Is
that correct?
Mr. Emayo: I believe we have a zoning compliance notice that was sent out for the same
violation, but it’s not in none of these though.
Mr. Kugle: And do you recall when that was?
Mr. Emayo: I have no idea. It wasn’t sent by me. Ah, it was sent be, I believe it was Vil -
Vil Balisacan.
Mr. Kugle: Okay.
Mr. Emayo: I only know that because it came across my desk.
Mr. Kugle: Okay. I have got no further questions. Thank you.
Mr. Kimura: Okay. It’s 12:40. How much more do we have to go?
Ms. Sasaki: Well I have Joan Ludington-Braun, is going to testify.
Mr. Kimura: Okay.
Ms. Sasaki: And, we have, with respect to the Freedom of Information Act or the, the
information requested, we have somebody that can testify with respect to that.
It’s Marisa Valenciano. I’m - I can - I would move that she be able to testify,
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since that’s been such a big subject of conversation during this hearing.
According to Marisa the Department never received a request.
Mr. Kimura: Well okay - well no. I mean talking about for planning purposes, so we’re
gonna break for lunch.
Ms. Sasaki: Mm-hm.
Mr. Kimura: Um, and then we still have the redirect of...
Ms. Sasaki: Right.
Mr. Kimura: ...ah, Ms. Emayo - Mr. Emayo.
Ms. Sasaki: And Joan Ludington-Braun, another witness.
Mr. Kimura: Right.
Ms. Sasaki: And I would respectfully request that Marisa Valenciano be able to testify
because she can testify with respect to the - if - if, um, information were UIPA
-- I always get confused -- UIPA request that Mr. Kugle has been referring to.
Mr. Kimura: Okay. Well...
Mr. Kugle: I don’t have an objection to having her come in for that.
Mr. Kimura: Okay. And then...
Ms. Sasaki: Okay.
Mr. Kimura: ...after that the Planning Department would rest. And then Mr. Kugle, are you
gonna have a rebuttal or rest for the evening?
Mr. Kugle: I think it would be a very brief rebuttal, yes. So I don’t think there’s much
more time after lunch.
Mr. Kimura: Okay. So why don’t we break now, and let’s resume at 1:15 (unintelligible),
yeah.
Lunch Recess 12:41pm
Contested Case Hearing Resumed at 1:15pm
Mr. Kimura: So, um, Mr. Emayo, you’re still under oath, and you’re gonna begin with the
redirect by Ms. Sasaki.
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Mr. Emayo: Thank you.
Ms. Sasaki: One second. I just want to go back to the meeting of April 12, 2017 with Ms.
McConnell - with Britni, you, and Ms. McConnell. And I just, were you clear
with Ms. McConnell that the operation of her homestay was in violation of the
KC- the Kaua‘i County code?
Mr. Emayo: In April?
Ms. Sasaki: April 12th.
Mr. Emayo: Yes.
Ms. Sasaki: Yes. Okay. Did she give you any indication whatsoever that she would stop?
Mr. Emayo: The inquiry was to what was this about. So we offered remedial and - a
remedial action plan.
Ms. Sasaki: Okay. But as far as you know, she never took the remedial action plan. She
never - she never did - did the remedial - the remedial?
Mr. Emayo: Ah, as far as what we have is the evidence of continued operation.
Ms. Sasaki: Okay. Did Ms. McConnell threaten if you tried to stop her, that she would run
off into the ocean and take off her clothes, be eaten by sharks? Is that true? Is
it? That’s what it says here. If we stop her from operating, she’s gonna take
off her clothes, leave ‘em on the beach, and swim out to the shark and let them
eat her. Do you recollect that?
Mr. Emayo: When we come into, um, ah, these remedial action meetings...
Ms. Sasaki: Mm-hm.
Mr. Emayo: ...um, people are sometimes, without understanding what’s going on.
Ms. Sasaki: Mm-hm.
Mr. Emayo: Ah, sometimes, um - so - but specifically I had - I don’t remember ‘cause
everybody reacts differently.
Ms. Sasaki: Right. Okay.
Mr. Emayo: But I had seen all kind extremes. But I don’t remember specifically what...
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Ms. Sasaki: But my point - but Ms...
Mr. Emayo: I believe she could have been, um - I remember I was - she - she probably was
upset at the - at the violation there.
Ms. Sasaki: Um, but your general sense of the meeting is that she was reluctant to, she was
reluctant to comply with any remedial action or to change her business as she
was performing it at that time.
Mr. Emayo: The evidence we have is the continued operation of the illegal...
Ms. Sasaki: Right.
Mr. Emayo: ...operation.
Ms. Sasaki: I have no further questions.
Mr. Kimura: Okay. Mr. Kugle, recross?
Mr. Kugle: No, I don’t’ have any further questions.
Mr. Kimura: Okay. Thank you, Mr. Emayo.
Ms. Sasaki: If you’d just give me a minute, I’ll call Marisa. She needs to be here in person.
Mr. Kimura: So you’re gonna have Marisa as your next witness?
Ms. Sasaki: Yeah, because Joan is - is - had an appointment, but she’s coming back. So I
thought I would call out of order...
Mr. Kimura: Okay.
Ms. Sasaki: ...just for, ah...
Mr. Kimura: Is that okay with you, Mr. Kugle?
Mr. Kugle: That’s fine. Yes.
Ms. Sasaki: I’m trying to be...
Mr. Emayo: Was I pau for the day or...
Ms. Sasaki: No. Well you - you should sit.
((Crosstalk))
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Ms. Sasaki: Hi. We’re ready. Yes, thanks. Bye. Thank you, bye. She’ll be here in a
second.
Mr. Kimura: Oh, she’s at the o- in the other building?
Ms. Sasaki: She’s just around - she’s where we usually are. You know, what our - she’s
like in that - that section.
Mr. Kimura: What section?
Ms. Sasaki: Marisa. You know, she’s in the Planning Department building, which is near...
Mr. Kimura: Oh okay, okay.
Ms. Sasaki: ...where our usual...
Mr. Kimura: Right, right, Moikeha.
Ms. Sasaki: ...you know.
Mr. Kimura: Right. Yeah, yeah. Okay? So can you remain standing and raise your right
hand? Do you solemnly swear to tell the truth, the whole truth, and nothing
but the truth?
Ms. Valenciano: Yes.
Mr. Kimura: Okay, please be seated.
Ms. Sasaki: Hi. Could you state your name for the record?
Ms. Valenciano: Marisa - is it on?
Ms. Sasaki: I think so.
Ms. Valenciano: Marisa Valenciano.
Ms. Sasaki: And what’s your position with the Planning Department?
Ms. Valenciano: I’m a long range planner.
Ms. Sasaki: And one of your tasks as a long range planner is to answer information
requests from - I always forget - is it called OPA, O-I, U-I?
Ms. Valenciano: Office of Information Practices, yes.
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Ms. Sasaki: Now earlier on in this hearing Mr. Kugle had repeatedly indicated that he had
made a request and that it went unanswered. And since you’re in charge of
that section I thought it would behoove us to have - to speak to you and ask
what you received and when - if you answered it, when you answered it.
Ms. Valenciano: So should I talk about general procedures and what we do...
Ms. Sasaki: Yeah. How...
Ms. Valenciano: ...about things?
Ms. Sasaki: Yeah.
Ms. Valenciano: Okay. So general procedures is when we get a request, um, you know, we can
receive a request either by mail or email, um, over the counter. Either way it
typically flows just through myself. Um, you know, and then from there I sign
off to the division heads depending on the type of request that is received.
Um, from there, you know, then we got ahead. By law we have 10 days -
business days to then respond to that whether or not we can grant that request
or not or if we can deny in part and/or grant with certain exceptions based on,
I think, it’s 92F. And so with that said, we have 10 business days to respond to
the applicant at that point. And from there, depending on what the ultimate
conclusion is with that request, in the case of if we are able to grant it, then we
would work with the applicant to grant it, to process it. Um, if it’s denied - we
have to send a response at the end of the day. And so usually that’s within 10
business days. And that’s typically the procedure we are obliged to follow by
law.
Ms. Sasaki: Okay. So was Mr. Kugle’s request denied or was it received?
Ms. Valenciano: Um, you know, to my recollection, the last request that I received was back in
June 2019, and that was related to I believe a separate case, that was for
James’s TVR.
Ms. Sasaki: Okay.
Ms. Valenciano: Anything, I haven’t received anything prior - or anything after that. That was
the last request I received.
Ms. Sasaki: I think Mr. Kugle said that he made the request somewhere around July 3, so
that obviously...
Ms. Valenciano: I haven’t received any.
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Ms. Sasaki: ...follows June.
Ms. Valenciano: No. I haven’t received any. The last request I received was in June 2019. That
was related to the James’s file.
Ms. Sasaki: Is there any chance that somebody else would have gotten the request or...
Ms. Valenciano: Well I don’t know who. Again, I don’t know what the request - who it was
addressed to within the Planning Department. But, typically like, if it is OIP,
procedure is for it to be sent to me or someone. And so I haven’t seen
anything that crossed my desk related to this particular case...
Ms. Sasaki: Okay.
Ms. Valenciano: ...around that date.
Ms. Sasaki: All right. Okay. Thank you.
Mr. Kimura: Okay. Mr. Kugle?
Mr. Kugle: Yeah. Hi, Ms. Valenciano. Let me have you just take a look at the page we’ve
been talking about. I’m gonna hand you what’s been marked as Exhibit 1 to
the memo and op to the motion for summary judgment.
Ms. Valenciano: Okay.
Mr. Kugle: Does that refresh your recollection about whether the Planning Department
received such a letter on or about July 10?
Ms. Valenciano: No, I have never seen this request.
Mr. Kugle: Okay. And who is that addressed to?
Ms. Valenciano: It’s addressed to Kaaina Hull.
Mr. Kugle: And in the normal procedure that you described, do requests come in
addressed to yourself, or are they normally addressed to the Director of the
Planning Department?
Ms. Valenciano: It just depends on who they give the request - who they request it to, but it’s
usually the Planning Department.
Mr. Kugle: Okay. And would, if it went to Director Hull, would he then route it to you? Is
that what would happen, if it did go to him?
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Ms. Valenciano: It could - correct. It would filter to myself.
Mr. Kugle: And so as far as you know, this one has not made it to your desk?
Ms. Valenciano: No.
Mr. Kugle: And if it would get to your desk, would, in a case like this where it involves
an enforcement action, would the Planning Department’s response be to
provide a copy of the file or would it be to deny the request?
Ms. Valenciano: Well we’re - we would treat all - all requests equally under the law. It would
be - it would all go under 92F. And so if the requests were made, we would
have to go through that process and, you know, determine at that point
whether we can disclose the cause, allow it for inspection based on the
exceptions that are provided through OIP. So I cannot make a statement like
that where it would go one or the other. It just depends again on the case and,
you know, what the applicant would be asking for information wise.
Mr. Kugle: Okay. So like it might be the frustration exception to 92F?
Ms. Valenciano: That’s one of ‘em.
Mr. Kugle: And if a letter was sent by Certified Mail...
Ms. Valenciano: Mm-hm.
Mr. Kugle: ...um, as this one appears to be and is directed to Director Hull, would it be
received and signed off by him, or would it just come in the regular Planning
Department mail and the Certified return receipt be signed by anybody?
Ms. Valenciano: That I have no idea who does that. And I don’t - I guess on this paper and
what I’m looking in front of me there’s no indication that it was sent Certified.
Mr. Kugle: Okay. At the top of the first page right where it says Director...
Ms. Valenciano: Okay. It says Certified Mail.
Mr. Kugle: Yeah.
Ms. Valenciano: But I don’t see any receipt...
Mr. Kugle: Yeah.
Ms. Valenciano: ...or I don’t see...
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Mr. Kugle: Yeah.
Ms. Valenciano: ...any - the green card that usually comes with it. So I see - I see the Certified
Mail, but I don’t see the other receipts or the other parts of it that would
indicate...
Mr. Kugle: Yeah.
Ms. Valenciano: ...it was Certified Mail.
Mr. Kugle: No, the receipts not there, so...
Ms. Valenciano: Right.
Mr. Kugle: Um, I’m hoping to get it any second now. But, ah...
Ms. Valenciano: Okay.
Mr. Kugle: ...um, I don’t, and I don’t want to keep you any longer. So, basically you’re
not in the process of sorting through or responding to that because you ’ve
never seen it before today.
Ms. Valenciano: No. And if I received it, you know, we would. again like all requests, we
would process it accordingly.
Mr. Kugle: Yes, you’ve done that before for me.
Ms. Valenciano: I have done requests for you, so you know the procedure.
Mr. Kugle: I do. Ah...
Ms. Valenciano: We - we are pretty diligent about responding, making sure you get a response.
Mr. Kugle: You are.
Ms. Valenciano: Okay.
Mr. Kugle: I don’t have any further questions.
Mr. Kimura: Okay. Any redirect?
Ms. Sasaki: No.
Mr. Kimura: Okay. Thank you.
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Ms. Valenciano: Thank you.
Ms. Sasaki: I’m gonna call Joan Ludington-Braun. Ah, and she should...
Mr. Kimura: Is it Joan, or is it Britni?
Ms. Sasaki: No, Joan Ludington-Braun is on my exhibit list - Joan.
Mr. Kimura: Oh, okay.
Ms. Sasaki: Um, Britni’s her daughter as we (unintelligible)...Well this - this - she’s a very
important witness. Um, and she isn’t answering, so let me - okay, I’m texting
her. Okay. Somebody’s going to get her.
Mr. Kimura: I’m sorry?
Ms. Sasaki: Somebody’s going to get Joan Ludington-Braun.
Mr. Kimura: Oh okay.
Ms. Sasaki: Okay. She was supposed to have been back by 2 o’clock - I mean 1 o’clock,
but she doesn’t seem to have gotten back yet. Now I’d really like to call her as
a witness. Could we wait for her? Is that possible?
Mr. Kimura: Okay. Um...
Ms. Sasaki: I mean it should be not too long. She should be coming back within 5 or 10
minutes.
Mr. Kimura: Okay. Mr. Kugle?
Mr. Kugle: Um, so are we gonna just take a recess? I mean I’m not sure what she’s gonna
testify about, and she hasn’t been involved in any of the proceedings that - ah,
or any of the documents that we’ve looked at. So I’m not sure, um...
Mr. Kimura: Okay. Well, Ms. Sasaki, why don’t you provide an offer of proof?
Ms. Sasaki: Okay. Um, that’s what she’ll testify about?
Mr. Kimura: What she would testify to.
Ms. Sasaki: She, Ms. Ludington-Braun’s prepared to testify to the fact that Ms. McConnell
did, in fact, rent her homestay during the time that she purportedly didn’t
because of the flooding or the rain in April 2018. Um, so I don’t - that’s all I -
I know.
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Mr. Kugle: So, again I don’t think that’s relevant to the notice of violation that we’re
litigating today. Um...
Ms. Sasaki: It’s directly in opposition to what the witness said. And it’s...
Mr. Kimura: Well - well...
Ms. Sasaki: ...it goes to the...
Mr. Kimura: ...Ms. - Ms. Sasaki...
Ms. Sasaki: ...credulity of...
Mr. Kimura: ...Ms. Sasaki, let Mr. Kugle finish, and then you can respond.
Mr. Kugle: Well yeah, that’s it, it’s irrelevant to the May 23, 2017 notice of violation
that’s on appeal. So I would just say it’s irrelevant.
Ms. Sasaki: But...
Mr. Kimura: Okay, now Ms. Sasaki.
Ms. Sasaki: I’m sorry. Yeah. And I apologize again. Um, well it’s proof of continued use,
and I think that it undermines the credibility of the witness and given that
that’s a question, the - what - what else - other things that she might have
testified to maybe as well be questioned - in question.
Mr. Kimura: Okay. So in terms of she testifying, she would have personal knowledge to the
investigation being done by the Planning Department.
Ms. Sasaki: Yes.
Mr. Kimura: But she did not have any personal contact with Ms. McConnell.
Ms. Sasaki: I don’t know that actually. I don’t know the answer to that.
Mr. Kimura: Okay. Well why don’t we take a recess, and we’ll resume at 1:45 and see if...
Ms. Sasaki: Okay.
Mr. Kimura: ...ah, Ms. Ludington-Braun...
Ms. Sasaki: Oh, she’s coming. She’s coming right now.
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Mr. Kimura: Oh, she’s coming now?
Ms. Sasaki: Do you want to still take the recess or...
Mr. Kimura: Ah, no, no. We’ll just wait for her.
((Crosstalk))
Ms. Sasaki: She said she was heading over.
Mr. Kimura: She knows it’s in this room (unintelligible)...
Ms. Sasaki: Liquor commission, yeah.
Mr. Kimura: Moikeha - she knows that?
Ms. Sasaki: Yeah.
Mr. Kimura: Yeah. Okay.
Ms. Sasaki: Just in case. They said she was coming from her department, so - yeah, Joan,
hello? Y- ah, yeah, is Joan there? (Unintelligible) I’m gonna just check the
other room. Okay? Is that okay?
Ms. Segreti: She - she knows it’s here.
Ms. Sasaki: She does know it?
Ms. Segreti: She came here earlier.
Ms. Sasaki: Oh okay.
Mr. Kimura: Okay.
Ms. Segreti: She came with Mike earlier.
Ms. Sasaki: Oh okay, with Mike, okay.
((Crosstalk))
Mr. Kimura: Okay.
Ms. Sasaki: Oh. Hi.
Ms. Ludington: Hello.
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Ms. Sasaki: Hi.
Mr. Kimura: Hi. Okay. So, could you remain standing and raise your right hand? Do you
solemnly swear to tell the truth, the whole truth, and nothing but the truth?
Ms. Ludington: Yes.
Mr. Kimura: Okay. Thank you. Please be seated.
Ms. Sasaki: Good afternoon.
Ms. Ludington: Good afternoon.
Ms. Sasaki: Could you state your name?
Ms. Ludington: I’m Joan Ludington.
Ms. Sasaki: And could you say your position with the Planning Department?
Ms. Ludington: I’m a Planning Inspector for the Enforcement Division.
Ms. Sasaki: Now today we’re, um - the contested case hearing concerns Ms. Patricia D.
McConnell and with the property - her property in Hanalei. Are you familiar
with this investigation?
Ms. Ludington: I am familiar with her property...
Ms. Sasaki: Mm-hm.
Ms. Ludington: ...um, and a little bit with the investigation.
Ms. Sasaki: Okay. Well I - um, it was Ms. McConnell’s testimony earlier that during the
period, that the road to Hanalei was closed -- and I - I think I wrote that down
- ah, June - April 2018 to June 2019 she did not have any rentals in her, ah - in
her homestay. Um, do you have - do you have any knowledge of rentals in her
homestay during that period?
Ms. Ludington: Okay. Because I’m an enforcement inspector, so I monitor the Web
constantly. I was also one of the, ah - we issued those passes in Wainiha and
as I say, I monitor the Web. And I had came across Ms. McConnell’s website
advertisement. And I did notice that she did have a review in the month of
May of 2018. Now because I’m in enforcement I did do clippings of this, ah,
review that came in on May of 2018. So yes, I do have paper evidence of a
review that came in on May of 2018.
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Ms. Sasaki: And advertising on the Web is prima facie evidence...
Ms. Ludington: Correct.
Ms. Sasaki: ...of - ah, and do you know anything about how the issuance of passes - how
that might have been accomplished or...
Ms. Ludington: I also received complaints of Ms. McConnell having passengers within her
vehicle. Now these were only hearsay from the complaints that were put into
the department.
Ms. Sasaki: Mm-hm.
Ms. Ludington: Did not see it, but there was a complaint with them being in her vehicle with
her.
Mr. Kugle: Move to strike the hearsay.
Ms. Sasaki: Rules of evidence don’t apply. I’ve...
Mr. Kimura: Overruled.
Ms. Sasaki: So basically you are here today to discuss this period of time and what you
know about this period of time and that there was evidence on the Web of Ms.
McConnell’s renting her homestay...
Ms. Ludington: Right.
Ms. Sasaki: ...as evidenced by a review. Yeah?
Ms. Ludington: Right.
Ms. Sasaki: And, the department received complaints that there were more than one pa-
passenger in the car. Were the cars - were they supposed to only have one
passenger or...
Ms. Ludington: Um, we did not regulate how many people were in the vehicles.
Ms. Sasaki: Okay.
Ms. Ludington: But I guess she - people know Ms. McConnell within the Wainiha area and
did make a complaint that...
Ms. Sasaki: Okay.
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Mr. Laureta: ...she had people in her vehicle.
Ms. Sasaki: Okay. Um, thank you. I am done.
Mr. Kimura: Okay. Mr. Kugle?
Mr. Kugle: Thank you. So, Ms. Ludington-Braun when did you review this website that
you mentioned?
Ms. Ludington: My clippings was taken on July 10, 2018.
Mr. Kugle: And you mentioned that there was a comment that was posted. Who posted
the comment?
Ms. Ludington: I have the evidence right here. I printed it up from my computer. It was a
guest that stayed at her property, and it was left on the reviews.
Mr. Kugle: Okay. And, who was the person?
Ms. Ludington: Mm, it does not say who the person was.
Mr. Kugle: Okay. So that was an anonymous posting?
Ms. Ludington: I don’t know. This was what was on VRBO.
Mr. Kugle: And, Ms. Braun, did it say that - that rental occurred in March of 2018?
Ms. Ludington: It was submitted June 3, 2018, and it was a stay from May 2018. That’s what
the website advertisement indicated.
Mr. Kugle: Okay. So it said May?
Ms. Ludington: Yes, May 2018. So at that time the road was closed.
Mr. Kugle: Right. That’s why I’m...
Ms. Ludington: Um...
Mr. Kugle: ...having trouble understanding how...
Ms. Ludington: Correct.
Mr. Kugle: ...somebody - because I...
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Ms. Ludington: Well we searched the World Wide Web - I - every day.
Mr. Kugle: Yeah.
Ms. Ludington: I constantly search for new illegals and also for existing illegals.
Mr. Kugle: So - so yeah, my question I guess is this. I mean there was a physical choke
point on the road that would have physically prevented anybody who did not
either live in the area affected...
Ms. Ludington: Mm-hm.
Mr. Kugle: ...um, or long-term renters who had had a prior rental contact, and it was
actually the Planning Department that was monitoring that. Is that right?
Ms. Ludington: I monitor everyone. I monitor, as I say, all illegals and legals.
Mr. Kugle: No, no, I’m talking about the actual access down Kuhio Highway.
Ms. Ludington: Ah, we issued the passes to the residents at that time.
Mr. Kugle: Mm-hm.
Ms. Ludington: Yes.
Mr. Kugle: Okay. And so are you saying that the Planning Department issued a pass to a
guest or a tenant of Ms. McConnell’s?
Ms. Ludington: Ah, no, because we had to verify with residents and license plates. The - the -
whoever was coming to get passes needed to provide proper documentation
for the Planning Department. I’m not sure how this person got in. As I say, we
also got complaints of people being in Ms. McConnell’s vehicle. Um, I just
know that I was at that time clipping reviews.
Mr. Kugle: Okay. And so do you know who the person or people were that was - was in
Ms. McConnell’s vehicle or when that was?
Ms. Ludington: No, I don’t. No, I don’t.
Mr. Kugle: And, I have, um - oh, and just so I’m clear, you didn’t actually contact that
person who posted that thing on the Internet. You don’t have any way to
contact that person.
Ms. Ludington: No.
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Mr. Kugle: And did you, um - so this - ah, the time period you’re talking about in May of
2018 would have literally been three weeks after, ah, the landslides and flood.
Ms. Ludington: Right.
Mr. Kugle: Um, and wasn’t the road like virtually actually physically impassible, not just
because the Planning Department, you know, was monitoring who came and
went. But I mean I’ve seen the pictures of the landslides, and some of those
parts were literally obstructed. Right?
Ms. Ludington: It was accessible to local residents only...
Mr. Kugle: From...
Ms. Ludington: ...at that point.
Mr. Kugle: From what day?
Ms. Ludington: From the day we started issuing passes, which was when DOT gave us the
okay to go ahead. We down at the Hanalei Colony issuing passes out there.
Mr. Kugle: Yeah. And - but that was how many days or weeks after the April 14, 15, 16
storms and landslides, um, did you begin issuing passes?
Ms. Ludington: Ah, you know, I can’t really remember. I think it was - I know we were down
- we were brought in by Michael Dahilig to issue passes down at the Colony.
Mr. Kugle: Mm-hm.
Ms. Ludington: I would want to say a week or so after the - and when they started opening up
the roads. ‘Cause we were actually transporting people in and out with the
county vehicles.
Mr. Kugle: Mm-hm.
Ms. Ludington: And that was in April.
Mr. Kugle: It was in April that you were taking people in county vehicles. And then it was
in May that you began issuing...
Ms. Ludington: No, no, it was April.
Mr. Kugle: ...passes.
Ms. Ludington: It was April that we were issuing the passes.
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Mr. Kugle: Okay.
Ms. Ludington: The minute DOT opened up the road to the public we started issuing passes
that exact day. I was down at the Colony issuing the passes.
Mr. Kugle: And you ’re pretty sure it wasn’t like May 9?
Ms. Ludington: No, not - no.
Mr. Kugle: Okay. And was, um - you said you were familiar with Ms. McConnell’s
property. Was it damaged in the rain and the flooding?
Ms. Ludington: I did not go up - I did not physically look at her property. I just know her
property through the website advertisements. And then we were stationed
down in Wainiha. You know, I remember Ms. McConnell coming in and to
complain about people turning around in her driveway. She came down to the
Colony and talked to Michael Dahilig.
Mr. Kugle: Yeah. And...
Ms. Ludington: So actually being at her property, I have not seen the damage that she
sustained, no.
Mr. Kugle: And, her complaint was that it was county vehicles coming and turning
around in her driveway and front yard.
Ms. Ludington: It was with Michael Dahilig.
Mr. Kugle: Oh.
Ms. Ludington: I was not part of the conversation, but I do know that she made a complaint
with - to Michael Dahilig.
Mr. Kugle: Okay. Okay. I don’t have any further questions.
Mr. Kimura: Okay. Any redirect, Ms. Sasaki?
Ms. Sasaki: No, I don’t have anything.
Mr. Kimura: Okay. Thank you very much.
Ms. Ludington: Would you like me to submit my, ah...
Mr. Kimura: Um, that would be up to the County’s attorney.
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Ms. Sasaki: Um, well I think this is a pertinent piece of evidence, so...
Mr. Kugle: I...
Ms. Sasaki: ...let’s see.
Mr. Kugle: And I - I would object. I’ve never seen that before today.
Ms. McConnell: It’s also not true, so that’s not fair to me...
Ms. Sasaki: The - the - so...
Ms. McConnell: ...’cause it’s not true.
Ms. Sasaki: ...I would offer the clipping day - the - okay, so you got the website
information on this date.
Ms. Ludington: Mm-hm.
Ms. Sasaki: Okay. So the website information was obtained 7-10-2018. And the review
was...
Ms. McConnell: (Unintelligible)
Mr. Kugle: (Unintelligible)
Ms. McConnell: (Unintelligible)
Ms. Sasaki: Okay.
Ms. McConnell: (Unintelligible)
Ms. Sasaki: Okay. So - and the date of review...
((Crosstalk))
Ms. Ludington: ...day was...
Ms. Sasaki: May 2018. So this is - I - I just think that this calls into question - it’s very
significant ‘cause it calls into question Ms. McConnell’s credibility. And I
think it’s definitive proof that she has never intended to cease operations. She
just is going to continue operations irrespective of the law or any conditions
whatsoever. So I offer website information of 7-10-2018 into evidence.
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Mr. Kimura: Okay. So, Ms. Sasaki, please show it to Mr. Kugle.
Ms. Sasaki: Oh okay.
Ms. McConnell: There’s no way. I didn’t rent it. So how could (unintelligible)? The road was
completely closed. It’s not even...
Mr. Kugle: Okay.
Ms. McConnell: ...possible. I know I didn’t. I know 100% (unintelligible)...it wasn’t.
(Unintelligible) and they can review it a year later. She could have
(unintelligible)...could have been them writing it. (Unintelligible) it’s just
(unintelligible)...That’s when they - that’s when she posted. That’s not when
she stayed. That’s when she posted. People can post a year later. There’s no
name, and it’s - they always put their name. They have to because then I have
to respond.
Mr. Kugle: So, I still object to this for the reason I stated, and then depending on your
ruling, I would - as this is the first time I’ve seen this right now, I would like
the opportunity to cross examine the witness based on the document, if over
my objection it’s admitted.
Mr. Kimura: I will admit the evidence over the plaintiff’s objection - over the petitioner’s
objections. But yes, Mr. Kugle, you can always question Ms. Ludington-
Braun on that.
Mr. Kugle: Ah, so Ms. Braun, you testified that - that you performed this Internet search
of VRBO.com on July 10, 2018. And why did you do that that day?
Ms. Ludington: As I say, I search the Web every day constantly. So I monitor illegals. Um,
and I know the road is closed, ah, but I still monitored the Wainiha area as
well as the rest of the island. And when I came across the review, I did notify
my director of the findings. But nothing was ever done. So I put it into my
case file, and that’s where it’s been.
Mr. Kugle: Okay. And is that separate from the, a separate file than the regular Planning
Department files about this enforcement case?
Ms. Ludington: Um, as I say, I monitor the Web, and any time I find some type of a situation,
I’ll go ahead and clip it and put it into my files.
Mr. Kugle: Okay. But so would this go into Planning Department files such that, if there
was a Uniform Information Practices Act request to the county to produce
everything related to Dawn McConnell or her property, would that be one of
the files that would be reviewed and either produced or objected to?
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Ms. Ludington: Um, at the time, because the director said we were not enforcing Wainiha, I
just kept that particular file on my computer and - and a copy of it in the file,
yes.
Mr. Kugle: Okay. And - and why was it that you -- excuse me -- chose to, um, search for
Ms. McConnell’s on July 10?
Ms. Ludington: I - I search everyone. I search all the illegals. I’m constantly hitting the sites.
It’s just a - a routine thing that I do when I get in.
Mr. Kugle: Mm-hm. And so you referred to an anonymous comment, which I think I’m
looking at on the - on the final page, that again, you said it was submitted on
June 3. Um, do you know what day this person, um, actually stayed in the
unit?
Ms. Ludington: No.
Mr. Kugle: And there was no, um, follow up to go find out who stayed out there, to go
out...
Ms. Ludington: It says, “Stayed in May,” and the review was in June - was submitted in -
online in June.
Mr. Kugle: I - I understand that that’s what somebody typed in to the Internet somewhere.
I mean my skepticism is I don’t trust the Internet all that much because
anybody can post anything, you know. And, so, for instance, is it your
understanding of the Internet that, ah, I can post something online out there
somewhere and call myself Jim Doe or John Doe, and I could say untrue
things about something, and there’s no fact checker.
Ms. Ludington: Well working with VRBO and Airbnb, I do know that the guests that stay at
the residence are the ones that make the reviews. I’ve had cases in other cases
where, um, I’ve had situations, and it was confirmed that the guests did stay at
the - the people’s residence. So yeah, it comes from the guests who stay. They
have a opportunity to post after their stay of their stay. And they’re the ones
that will post.
Mr. Kugle: Mm-hm. Um, and so you are - are trusting what somebody put when they say
their stay was in May of 2018, but you didn’t independently confirm that at
all?
Ms. Ludington: I - I trust whatever was put onto the Web...
Mr. Kugle: Okay.
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Ms. Ludington: ...from that people that stayed at the residence.
Mr. Kugle: Well but how do you know that this person stayed at that residence on that
date? And I mean there is not even a date listed here. Right?
Ms. Ludington: Ah, well this is the information that I collected.
Mr. Kugle: Yeah. So you’re saying it was posted on June 3, but there’s no date or dates in
May that are identified.
Ms. Ludington: Um, you know, because I clipped that, I only printed what I had at that time. I
- I would have to go back to the rest of my clippings to see if there was an
actual calendar. I only clipped the review and the evidence of it being on that
website.
Mr. Kugle: Okay.
Ms. Ludington: I could probably go back and obtain the calendar also. I’m - I would have to
go back to my - my file.
Mr. Kugle: I have no further, ah, questions for this witness.
Mr. Kimura: Okay.
Ms. Sasaki: Okay one - one quick question. Is it your understanding that anybody can post
on Ver- VRBO or B- Airbnb, anybody in the world can post whatever they
want? Could you just describe the procedure or - or as you know it or as it’s
been explained to you?
Ms. Ludington: So from my understanding is, if you’re gonna be a guest of mine, we have our
communication through VRBO or Airbnb.
Ms. Sasaki: Mm-hm.
Ms. Ludington: Once you stay at my residence, there is an option or opportunity for you to
comment on your stay at my residence. And then that is posted online through
my website...
Ms. Sasaki: I see.
Ms. Ludington: ...for Airbnb or VRBO. So someone else couldn’t come in and post or get into
that connection of yours and my connection.
Ms. Sasaki: So it’s limited to - it...
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Ms. Ludington: Right.
Ms. Sasaki: ...ah, they do a job of trying to limit it...
Ms. Ludington: Right.
Ms. Sasaki: ...to each...
Ms. Ludington: Right.
Ms. Sasaki: ...like and compartmentalize it (unintelligible).
Ms. Ludington: Right.
Ms. Sasaki: Okay. Thank you. I have nothing further.
Mr. Kugle: A little redirect on that - or recross. Um, where - you said that’s your
understanding of how Airbnb and VRBO work. Where did you get that
understanding from?
Ms. Ludington: Ah, from other cases that I’ve had to deal with getting evidence or information
that they have shut down their website and what their requirements were with
Airbnb or VRBO.
Mr. Kugle: Okay. So do you - you spoke with somebody at Airbnb or VRBO about that?
Ms. Ludington: Not at Airbnb or VRBO, but I’ve, ah...
Mr. Kugle: Okay.
Ms. Ludington: ...talked with the people that had their listings on those sites, VRBO and
Airbnb.
Mr. Kugle: Okay, so...
Ms. Ludington: They’re led to provide information to me.
Mr. Kugle: And you have no, you know, written instructions, or terms and conditions, or
privacy policies - policies or anything else from any hosting platforms that,
describe for you in writing what you just told us? So you gathered that just
from talking with their people.
Ms. Ludington: That had listings with Airbnb or VRBO.
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Mr. Kugle: Okay.
Ms. McConnell: (Unintelligible)
Mr. Kugle: I have...
Ms. McConnell: (Unintelligible)
Mr. Kugle: I have no further questions.
Mr. Kimura: Okay. Thank you.
Ms. Sasaki: Okay. Thank you so much. Thank you.
Mr. Kugle: Um, since this is the only copy, I’m not sure what...
Ms. Sasaki: I’ll...
Mr. Kimura: Okay. I...
Mr. Kugle: ...we do.
Mr. Kimura: I was just gonna explain how we’re gonna take care of that. Okay. So in
regards to Exhibit G, what I request Ms. Sasaki that you do a subsequent
filing, do a supplemental exhibit list, include Exhibit G, and email it to all the
parties as well as mail a hard copy, like the regular procedures.
Ms. Sasaki: Okay.
Mr. Kugle: I’ll ask who wrote these.
Ms. McConnell: Okay, yeah.
Ms. Sasaki: Okay. I will do that.
Mr. Kimura: And - and your next witness, Ms. Sasaki?
Ms. Sasaki: That’s - we’re done.
Mr. Kimura: Okay. So you rest?
Ms. Sasaki: We rest, Your Honor.
Mr. Kimura: The County rests. Ah, so Mr. Kugle, will there be any rebuttal?
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Mr. Kugle: Yes, brief rebuttal testimony by Ms. McConnell.
Mr. Kimura: Okay, go right ahead. So Ms. McConnell, you already under oath, so you can
proceed, Mr. Kugle.
Mr. Kugle: Ah, Ms. McConnell, you heard, ah, what Ms. Ludington-Braun said about
both her VRBO search as well as who you were traveling with in vehicles and
as well as when the road was open and closed. Do you recall that? Let’s start
with the road closure. You lived out at the end. So you had to deal with that
every day. Is that right?
Ms. McConnell: Yes (unintelligible)...
Mr. Kugle: And what is your understanding or recollection of when private vehicles were
allowed through the Planning Department checkpoint?
Ms. McConnell: Well what I remember was that we were completely closed and couldn’t get in
other than by boat. I thought it was like May 6 to like May 9 they actually
opened it that we were allowed to get into town, because we were getting
food, you know, shipped into us. And, um, I didn’t leave my home. You
couldn’t leave your home.
Mr. Kugle: Okay. And, eventually when they did open the road to private vehicles such as
yours, you obtained a pass from the Planning Depart- excuse me...
Ms. McConnell: Yeah.
Mr. Kugle: ...the Planning Department.
Ms. McConnell: We went down to the - like she said, to the Hanalei Colony. You took your
vehicle, and then they wrote you up and put the sticker on your car. And they
put a distinct sticker on my car that said, “No visitors.” So they would have -
if I would have had a visitor that wasn’t allowed to come in, they would have
checked my vehicle ‘cause they distinctly did that to me and a few other
people that were TVRs.
Mr. Kugle: Okay. And did at some point did you, well let me ask you first about the
damage to your property. What kind of damage did you sustain, you know,
during the flooding and storm?
Ms. McConnell: The - the - um, one big mudslide came down on one portion of my property.
Um, the road coming into my property had a big, huge sinkhole, and I had to
fill it with rocks. That’s why I didn’t want the county co- you know, coming
into- running over my sinkholes making them deeper and gouging it. I had -
my whole driveway’s very steep. It turned into a waterfall, so all the - so all
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the asphalt and everything came out. And my roof was leaking, and my whole
bottom part of my house was filled with mud, and I was by myself and
cleaning it up by myself. And for her to sit there and say I’m bringing in
visitors, like my God. I (unintelligible) with - you don’t even know how hard
this thing was for us. So they sit in the other side and don’t even check or even
- I’m sorry. It’s just like wow. I just think wow.
Mr. Kugle: Okay. So your property was damaged and your house was flooded and
damaged as well.
Ms. McConnell: Yeah, the - the hill mud came rushing in the bottom part. And then the
insurance said, “Well we don’t do ground water.” So the whole thing was
filled with mud. My one whole lower floor was filled with mud...
Mr. Kugle: Okay.
Ms. McConnell: ...this thick.
Mr. Kugle: Okay.
Ms. McConnell: And it’s still - I cleaned it up, but the driveway’s still ruined. My roof is still
leaking, and I still have - you know, I nev- I had to - the county never came
and helped me. They told me they would help me with the driveway when -
‘cause they could see they were driving in there. They said they’d help me.
But they never did. I did it all by myself.
Mr. Kugle: Okay.
Ms. McConnell: I got the gravel put in, and I got the shovel, and I filled all those sinkholes
with stones and everything by myself.
Mr. Kugle: Okay. Now you heard Ms. Ludington-Braun also testify that you had gone
into the Planning Department office at - where they were issuing the permits
and complained about vehicles turning around on your property.
Ms. McConnell: I actually called the Department of Transportation and said that they keep
coming in. Because I’m at the very end of the road, I’m isolated way off in the
jungle. And they’re - I’m at the very end of the road. So if people come down,
there’s nowhere for them to go. So they come onto my property and turn
around and go back out. So they were doing this constantly, the big trucks and
everything like that. And so I called the Department of Transportation and
said, “My road is getting really - it was bad, but it’s really exacerbating here.
And then they came, sent a guy out. I’ve got his name written down. I just
forget it. And he came out. He was the guy that was on the - on the - on the
thing with the mudslides here ‘cause he was telling me what it was like that
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
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night. And he said, “Oh yeah, I could see what you’re talking about.” And he
took pictures, and he said, “As soon as we’re - as soon as we’re done, we’ll,
ah, fix this.” But then they told me to go down and talk to Michael Dahilig, go
down and talk to him because he could be the one that or- can orchestrate
getting it fixed now or something. And then when I went and talked to
Michael, he just sat there and said, “Well if you sign your property over us,
the - then we’ll fix it.” He was very -- what’s the words where you’re --
disrespectful.
Mr. Kugle: Okay. And so your concern was it was county and state vehicles that were
coming out and turning around and...
Ms. McConnell: Yeah, other people did too, but the county and state vehicles were the worst
because they were bigger and heavier.
Mr. Kugle: Mm-hm. Okay. Um, now...
Ms. McConnell: They still do.
Mr. Kugle: Okay. Now, um - and they still haven’t come out and fixed it for you.
Ms. McConnell: No.
Mr. Kugle: Let’s talk about how VRBO works and your understanding of that, and how
this comment that we just looked at, what’s the significance of that.
Ms. McConnell: Yeah, this woman is - I - this is disturbing for me because she’s making
judgments about people, and she doesn’t understand this process. She’s
getting information that’s not accurate. VRBO - with the VRBO system you
can - you can pay a yearly fee, and you can do your rentals all on your own.
They’ll - they’ll go through them, so it’s verified so people feel safe and you
feel safe, but, um, somebody could post something with VRBO three years
later. Like sometimes, you know, people just don’t get around to it or
somethin’ like that or whatever. And - and you could - so say somebody
booked through some other website, ‘cause a lot of people have multiple
websites. So they - that person from that other website could contact VRBO
and say - write the letter to say oh, I stayed at this particular - but I never, ever
knew that they can use an anonymous letter. That’s - that wouldn’t happen
because when they do it, then the name has to go there because, if a person
writes a review that’s negative, you can respond more positive. You can
respond and say something to it. So she’s got wrong information. It ’s not like
that. She - if someone wanted to trap someone, they could just go in and write
whatever they want. If someone’s mad at someone, they could go and say this
is a horrible place.
KAUA‘I PLANNING COMMISSION
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Mr. Kugle: And was - during this time of the flood and the landslides between April of,
um, 2018 and when the road was reopened, did you ever then have to go to the
mainland?
Ms. McConnell: Ah, yeah, I had to go to the mainland to get a job because I couldn’t pay the -
make the payment.
Mr. Kugle: Okay. And - and do you remember the dates - the approximate dates that you
were on the mainland?
Ms. McConnell: Yeah. It’ll be like - it was either mid-July or end of July.
Mr. Kugle: Okay. And then when did you come back?
Ms. McConnell: And I came back April.
Mr. Kugle: Okay. Okay. So you were gone for three-quarters of a year. Um, okay. And
did you have to have a friend house sit your house for you?
Ms. McConnell: Yes.
Mr. Kugle: Okay.
Ms. McConnell: And I got permission from the mayor for that.
Mr. Kugle: Okay. You had to go get a special dispensation to have somebody stay in your
house while you were on the mainland.
Ms. McConnell: Yeah, ‘cause they wouldn’t let me have any permits for anybody. They
wouldn’t let me have permits to bring in people to fix things or - I had to go
through the mayor, ‘cause the one place was filled with bees. And I had to go
through the mayor to even get the beekeeper out to take care of it.
Mr. Kugle: Okay. I have no further questions.
Mr. Kimura: Okay. Cross examination, Ms. Sasaki?
Ms. Sasaki: I have no cross-examination.
Mr. Kimura: Okay. No question. Thank you.
Mr. Kugle: I have no further witnesses.
Mr. Kimura: Okay. No further witnesses, okay. So now, Mr. Kugle, I did mention earlier
that, you know, based upon the contested case hearing and the exhibits
KAUA‘I PLANNING COMMISSION
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August 30, 2019
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admitted, you know, if there is any need to continue this hearing because there
is additional preparation you need to do for some of the exhibits that were
introduced. Do you have any inclination on that issue?
Mr. Kugle: Well, what I would like to do is to get to the bottom of my UIPA request and -
and get a copy, not of the self-selected exhibits that the Planning Department
wanted to use, but, a copy of all of that file. And if there’s anything else
significant for me in that, you know, I would want the opportunity to be able
to submit that.
Mr. Kimura: Okay. Now you’ve heard the testimony of Ms. Valencia that she didn’t get the
request. So I presume you’re gonna be originating another one and sending it
directly to her, and then she would respond within the time period required.
So, how much time would you need before the determination could be made?
Mr. Kugle: Well, they usually, as she said, they have to respond in a fairly tight window
or short window of time. And if her testimony was 10 days, that’s probably
right because...
Mr. Kimura: Mm-hm.
Mr. Kugle: ...she knows that job. So, I think that it would be fairly quick assuming they
actually produce the records for me. So if I get a response to the UIPA request
when I get back to the office, we will resend the one that was submitted on
July 10. It’s not gonna change. So I think she said that they respond within 10
days - um, you know, I just want to make sure that there’s nothing else that I
don’t have access to that I wanted to use for today. And if I can make that
determination then that’s all I need. So I would guess that that’s probably two
to three weeks.
Mr. Kimura: Okay. Two to three weeks -- so assuming that there’s additional documents
that are produced that you wish to have introduced or because of that, have the
further evidentiary hearing on the case you would need to make a separate
request. So what I’ll do is I won’t close the hearing. And I will give you 30
days to respond either with a request for a continued contested case hearing
based upon the documents that the Planning Department would produce to
you, if they do produce documents, or request that the contested case hearing
be closed at that point. Now this is a little unusual because it’s not really
contemplated by the rules. But I believe as the hearing officer, you know, I do
have the opportunity and authority to modify it in certain situations. So that’s,
my original inclination, ah...
Mr. Kugle: That would be fine with us.
Mr. Kimura: Okay, and then within 30 days you would provide your response. And based
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
MINUTES
August 30, 2019
Page 118
upon your response, I would issue a minute order accordingly setting forth
dates and times depending on what kind of response I get from the petition.
Ms. Sasaki, do you have any comment to that procedure?
Ms. Sasaki: Well I just want the opportunity like to respond, if Mr. - I mean are we gonna
- is Mr. Kugle intending to brief the issues or I mean - or just continue the
hearing and - I don’t understand. I don’t - I’m just unclear about what the
process would be. If he - say he got - say he got, um, disclosure and he
thought that there was something that further needed to be examined at an
evidentiary hearing. What would the process be then?
Mr. Kimura: Okay. And at that - well depending on what Mr. Kugle says in response, at
that point in my minute order I may then schedule another pre-hearing and
then we can talk about whether we’re gonna have to have a continued hearing
and then do supplemental briefings, do additional exhibits, and in whatever...
Ms. Sasaki: Okay.
Mr. Kimura: ...times it takes. So that’s the first step.
Ms. Sasaki: Okay. That’s - that’s...
Mr. Kimura: So that’s why...
Ms. Sasaki: ...I just want to have - make sure we have the opportunity to do that, if that’s
the case.
Mr. Kimura: Well - well depending upon what Mr. Kugle...
Ms. Sasaki: Yeah.
Mr. Kimura: ...replies, yes.
Ms. Sasaki: Okay. That’s fine.
Mr. Kimura: Okay. Is that satisfactory?
Mr. Kugle: That’s fine.
Mr. Kimura: Okay. So I will issue the minutes based upon today’s contested case hearing
set for the procedures I just mentioned, and I’ll have the specific date in there.
So 30 days would take you to September 30th, which is a Monday. Okay?
Mr. Kugle: That’s fine.
KAUA‘I PLANNING COMMISSION
CONTINUED CONTESTED CASE HEARING
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Mr. Kimura: So, you could do response via email and also mail the hard copies. You know
in the proper format, you know, just state a request or statement. Ah, well you
- you know. You can just...
Mr. Kugle: Yes.
Mr. Kimura: ...draft something up.
Mr. Kugle: Yeah, okay. Yes.
Mr. Kimura: And then based upon that, you know, I will issue a minute order about what
we will do after that.
Mr. Kugle: Okay. Yes, understood. And so conceivably if there was nothing further that
needed to be done, we’d notify you of that, and you’d follow kind of, ah, the
normal, ah, process that you’ve done with submissions, and proposed
findings, and closing arguments. Or if there is - if I am making such request, I
think, Ms. Sasaki would have the change to respond to it, and we’d deal with
that...
Mr. Kimura: Yes.
Mr. Kugle: ...next step.
Mr. Kimura: And, um, depending upon your response, we would then have to order the
transcripts for the contested case hearing. And if there will be no further, I will
close it, then we’ll get the, ah, transcripts out and in the normal process, you
know, either within 14 days after receipt of the transcript or 30 days,
whichever’s longer, would be when the petitioner’s proposed findings of fact
and conclusions of law and closing arguments would be due then 14 days after
that...
Ms. Sasaki: Mm-hm.
Mr. Kimura: ...in the Planning Department. And then 7 days would be the reply.
Mr. Kugle: That’s fine.
Mr. Kimura: Okay?
Ms. Sasaki: Yes.
Mr. Kimura: Is that acceptable?
Ms. Sasaki: Acceptable.
GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP
JOHN S. MACKEY
jmackey@goodsill.com
CHRISTOPHER P. ST. SURE
cstsure goodsill.com
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, Hawai`i 96813
Telephone: (808) 547-5600
Facsimile: (808) 547-5880
7006-0
10001-0
Attorneys for Respondent
PLANNING DEPARTMENT, COUNTY OF KAUAI
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUAI
In the Matter of:
Petition to Appeal Decision of the Planning
Director's Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Ha'ena, Kauai, Hawaii, identified by Kauai
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAI,
Respondent.
CC-2017-4
TMK: (4) 5-8-005:005
RESPONDENT PLANNING
DEPARTMENT OF THE COUNTY OF
KAUAI'S SUPPLEMENTAL EXHIBIT
LIST; EXHIBIT G; CERTIFICATE OF
SERVICE
CONTESTED CASE HEARING:
Date: August 30, 2019
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura
7867425.1
RESPONDENT PLANNING DEPARTMENT OF THE COUNTY
OF KAUAI'S SUPPLEMENTAL EXHIBIT LIST
Pursuant to the direction of Hearing Officer Harlan Y. Kimura at the contested
case hearing on August 30, 2019, Respondent PLANNING DEPARTMENT OF THE COUNTY
OF KAUAI ("Department") hereby submits its Supplemental Exhibit List and Exhibit G.
DATED: Honolulu, Hawai`i, January 17, 2020.
S. MA KEY
STOPHER P. ST. SURE
Attorney for Respondent
PLANNING DEPARTMENT, COUNTY OF
KAUAI
2
COUNTY OF KAUA‘I
PLANNING COMMISSION
EXHIBIT LIST
(SUPPLEMENTAL)
CC-2017-4
TMK (4) 5-8-005:005
PETITIONERS
PATRICIA D. McCONNELL
PETITIONER ATTORNEY (Name, Address and Email)
GREGORY W. KUGLE, ESQ.
JOANNA C. ZEIGLER, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, Hawai‘i 96813
Email: gwk@hawaiilawyer.com
RESPONDENT
PLANNING DEPARTMENT OF THE COUNTY OF
KAUA‘I
RESPONDENT ATTORNEY (Name, Address and Email)
JOHN S. MACKEY, ESQ.
Goodsill Anderson Quinn & Stifel LLP
999 Bishop Street, Suite 1600
Honolulu, HI 96813
Email: jmackey@goodsill.com
DATE OF HEARING
August 30, 2019
HEARING TIME
9:00 a.m.
PREPARING CLERK DEPARTMENT
EXHIBIT NO.
IDENTIFY
NO. CODE
_PETITIONER
√RESPONDENT OFFERRED FOR IDENTIFI- CATION RECEIVED IN EVIDENCE WITHDRAWN
DESCRIPTION OF EXHIBIT
DATE
R=RETURNED
D=DESTROYED
OTHER COMMENTS
A
X
AIRbnb Evidence Checklist – TVR Inspections
dated January 28, 2016
B
X
Investigation Report dated January 10, 2017
C
X
Zoning Compliance Notice dated January 11,
2017
D
X
Notice of Violation & Order to Pay Fines dated
May 23, 2017
E
X
Investigation Report dated May 23, 2017
F
Memorandum re Meeting between Planning
Department and Property Owner dated April 12,
2017
G
X
Investigation Report dated July 10, 2018
PAGE 1 OF 1 PAGES
EXHIBIT G
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNT OF KAUAI
In the Matter of:
Petition to Appeal Decision of the Planning
Director's Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Ha'ena, Kaual, Hawaii, identified by Kaual
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAI,
Respondent.
CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date and by the method of service
noted below, a true and correct copy of the foregoing was served on the following at their last
known address:
7867425.1
GREGORY W. KUGLE
gwk@hawaiilavvyer.com
JOANNA C. ZEIGLER
JCZ@hawaiilawyer.com
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Attorneys for Petitioner
PATRICIA D. McCONNELL
NICHOLAS R. COURSON
ncourson@kauai.gov
First Deputy County Attorney
County of Kauaei
4444 Rice Street, Suite 220
Lihu`e, HI 96766
Attorney for Planning Commission,
County of Kaua`i
ELLEN CHING, Administrator
eching@kauai.gov
asegreti@kauai.gov
Office of Boards and Commissions
County of Kauai
4444 Rice Street, Suite 150
Lihu`e, HI 96766
HARLAN Y. KIMURA
hyk@harlankimuralaw.com
Central Pacific Plaza
220 South King Street, Suite 1660
Honolulu, HI 96813
Telephone: (808) 564-0811
Hearing Officer
Planning Commission, County of Kaua`i
HAND
U.S. MAIL DELIVERY
X
X
X
X
EMAIL
X
X
X
X
2
DATED: Honolulu, Hawai`i, January 17, 2020.
JOHN-8. MACKEY
CHRISTOPHER P. ST. SURE
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAI
3
7877294.3
GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP
JOHN S. MACKEY 7006-0
jmackey@goodsill.com
CHRISTOPHER P. ST. SURE 10001-0
cstsure@goodsill.com
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, Hawai‘i 96813
Telephone: (808) 547-5600
Facsimile: (808) 547-5880
Attorneys for Respondent
PLANNING DEPARTMENT,
COUNTY OF KAUAʽI
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUAʽI
In the Matter of:
Petition to Appeal Decision of the Planning
Director’s Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Haʽena, Kauaʽi, Hawaiʽi, identified by Kauaʽi
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAʽI,
Respondent.
CC-2017-4
TMK: (4) 5-8-005:005
RESPONDENT PLANNING
DEPARTMENT OF THE COUNTY OF
KAUAI’S CLOSING ARGUMENTS;
PROPOSED FINDINGS OF FACTS AND
CONCLUSIONS OF LAW;
CERTIFICATE OF SERVICE
CONTESTED CASE HEARING:
Date: August 30, 2019
Time: 9:00 a.m.
Hearing Officer: Harlan Y. Kimura
2
RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF
KAUAI’S CLOSING ARGUMENTS
The Hearings Officer should recommend that the Planning Commission AFFIRM
the Planning Director’s issuance of the Notice of Violation and Order to Pay Fines dated May
23, 2017 (“NOV”) to Petitioner Patricia McConnell because:
1. Petitioner admitted to running a homestay operation;
2. Petitioner’s property falls outside the Visitor Destination Area (“VDA”);
3. Petitioner did not have a homestay use permit;
4. Kaua‘i County Code (“KCC”) § 8-18.1(b) expressly prohibits homestay
operations outside of the VDA;
5. Article 18 of the KCC does not contain a nonconforming use provision.
To the extent that Petitioner asks the Hearing Officer to rewrite the Code
to allow for “grandfathering,” such request is beyond the scope of this
Appeal;
6. Prior to the enactment of Ordinance 1002, Petitioner’s homestay use was
not a lawful use because she was operating without a Use Permit pursuant
to KCC § 8-3.2(b) (“[n]o person shall undertake . . . any activity for which
a Use Permit is required. . .without first obtaining a Use Permit”); and
7. Assuming, arguendo, that prior to Ordinance 1002, KCC § 8-13.2 could
“grandfather” prior homestay uses without a Use Permit, Petitioner has
failed to prove that she was continuously operating a valid homestay. The
record shows that she habitually advertised a dwelling that she, as the
owner, was not also staying in.
Petitioner owns the property at 4813 Ananalu Road, Hanalei, Kaua‘i 96714 (the
“Subject Property”). See Ex. “B,” at 4. The Subject Property is located outside of the VDA.
Hearing Transcript (“Tr.”) at 71-72. The Subject Property is comprised of two structures—a
main house and a separate octagonal unit, as reflected in Ex. “G”:
3
These two structures can also be seen on the Pictometry images:
Exhibit “G”.
At the Contested Case hearing, Petitioner claimed “continuous” homestay use at
the Subject Property since 2005. See Hearing Tr. at 11. In contradiction, the evidence shows
that Petitioner was running a much larger short-term rental operation. In fact, Petitioner offered
the main house for rent on a short term basis and also offered the separate octagonal structure for
rent on a short term basis. Specifically, in her Airbnb advertisement, Petitioner offered to rent
the main house for $245 per night. See Ex. “B.”
4
The ad specifically informed prospective tenants they will be renting the entire
home and that the owner lives in a separate studio:
The Planning Department’s investigation file also includes Petitioner’s VRBO
advertisement which also offers the separate octagonal structure for rent on a short term basis
($185 per night) as the “Sea Turtle Cottage.”
See Ex. “B.” The photos included in this advertisement show the unmistakable octagonal
structure of the ceiling/roof of the Sea Turtle Cottage:
5
Based upon its investigation, the Planning Department properly concluded that
Petitioner was in violation of Sections 8-18.1(b) and 8-17.8. Section 8-18.1(b) prohibits
homestays outside of the VDA. KCC § 8-18.1(b). Petitioner also violated Section 8-17.8
because she advertised a single family vacation rental outside of the VDA. See KCC § 8-17.8(a)
(“Notwithstanding any underlying zoning designation and with the exception of properties on the
National or State Register of Historic Places, single family transient vacation rentals are
prohibited in all areas not designated as Visitor Destination Areas.”). Petitioner’s advertisements
establish these violations. See Section 8-17.11(b) (“[a]dvertising of any sort which offers a
property as a transient vacation rental shall constitute prima facie evidence of the operation. . .”).
Thereafter, the Planning Department issued Petitioner a Zoning Compliance
Notice dated January 11, 2017 (the “Zoning Compliance Notice”). See Exhibit “C.” The Zoning
Compliance Notice clearly informed Petitioner of her violations. Id. Petitioner testified that she
6
received the Zoning Compliance Notice on April 1, 2017 and scheduled a meeting with the
Planning Department. Hearing Tr. at 12-13.
On April 12, 2017, Petitioner met with Andres “Bambi” Emayo and Britni
Ludington-Braun of the Planning Department on April 12, 2017. At this meeting, they discussed
the Zoning Compliance Notice and how the violation could be remedied. See Hearing Tr. at 64.
Petitioner admitted to the homestay use and said she would continue. See Ex. “E” (last page).
Record evidence shows that she did continue. See Exhibit “E” at 2 (May 18, 2017 investigation
showing ongoing homestay operation outside of the VDA without an applicable permit). Ex.
“G” also shows that Petitioner continued to offer short term rentals at Petitioner’s “Romantic
honeymoon jungle and mountain view cottage” from October 2017 through May 2018, e.g.:
However, Petitioner testified that she did not have any rentals during the time the
highway was closed from April of 2018 until about June of 2019. Hearing Tr. at 19.
As a result of Petitioner’s willful defiance, the Planning Department correctly
issued the NOV and clearly stated Petitioner’s admitted violation: “[t]he Planning Department
has confirmed that the subject property is currently being used for a homestay operation.”
Exhibit “D”. The NOV levied a fine of ten thousand dollars ($10,000.00) and ordered her to
cease and desist. Id.
7
Here, Petitioner has not carried her burden to show that the Planning Director’s
decision was wrong. The evidence proves the opposite. Petitioner admitted that she was
conducting a homestay operation at the Subject Property. See Hearing Tr. at 9. Petitioner also
did not contest the Planning Department’s determination that the Subject Property was outside
of the VDA. Instead, Petitioner argues that the NOV was improper because her homestay
operation was a nonconforming use under KCC § 8-13.2.
Petitioner’s argument lacks evidence and legal support. KCC § 8-18 does not
allow grandfathering of prior non-conforming uses outside of the VDA. Mike Laureta, the
County’s Division Program Manager in charge of enforcement, testified that the Council was
clear when it passed Ordinance 1002: “you can only have [homestays] in the visitor destination
area” and “there was no grandfathering component.” See Hearing Tr. at 36. Mr. Laureta further
explained that while there was no grandfathering, homestays did have the opportunity to become
properly permitted before the new law. See Hearing Tr. at 37. The County received a “flood of
applications.” Id. Petitioner was not one of the applicants. The County’s interpretation and
enforcement of this ordinance should be afforded deference. See Camara v. Agsalud, 67 Haw.
212, 216, 685 P.2d 794, 797 (Haw. 1984) (“[a]n agency's interpretation of its rules receives
deference unless it is plainly erroneous or inconsistent with the underlying legislative purpose”).
In addition, even if KCC § 8-13.2 applied, Petitioner’s homestay operation was
not a nonconforming use because she never obtained a Use Permit prior to enactment of
Ordinance 1002. See KCC § 8-1.5 (a nonconforming use “means a lawful use of a building or
land . . .) (emphasis added); see also Hearing Transcript (Mr. Emayo: “Ordinance 1002, the
homestay ordinance did not . . . make an opening for people coming to certify the grandfather
use because it was always open for anybody to go in to get a . . . B&B use through a use permit
8
process.”). Moreover, Petitioner failed to introduce credible evidence of a continuous valid
homestay operation. Aside from her own testimony as to continuous use (which should be found
self-serving and not credible), there is substantial evidence introduced by the Planning
Department that Petitioner was, at times, not operating within the definition of a homestay
because she advertised dwellings, one of which is a 164 sq. ft. room, that was not a “owner
occupied dwelling unit”). See KCC § 8-1.5 (Homestay “means an owner occupied dwelling unit
in which overnight accommodations are provided to transient guests within the same dweling
unit in which the owner resides . . .”). Without any other evidence (i.e., accommodation records,
booking statements, payments, etc.) to corroborate her inconsistent testimony, Petitioner has not
established that her homestay operation was a nonconforming use prior to the prohibition of
homestays outside the VDA.
There also is no constitutional due process violation resulting from issuances of
the NOV. See, e.g., Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87 Hawaiʻi
217, 243, 953 P.2d 1315, 1341 (1998) (“The basic elements of procedural due process of law
require notice and an opportunity to be heard at a meaningful time and in a meaningful
manner.”). Petitioner admitted to receiving a copy of the January 11, 2017 Zoning Compliance
Notice and scheduled a meeting with the Planning Department to discuss the nature of her
violations. Petitioner has not been deprived of due process. See Sullivan, 87 Hawaii at 243, 953
P.2d at 1341 (Due process requires only notice and an opportunity to be heard). Rather, she was
merely unsuccessful in convincing the Planning Department to make an exception for her prior
unlawful use of the Subject Property. Thereafter, Petitioner failed to comply with the Zoning
Compliance Notice and, in fact, continued homestay operations (see Exhibit “E”). Accordingly,
the Planning Department correctly issued the NOV.
Lastly, the $10,000 fine levied by the Planning Department was within its
discretion and authority under KCC § 8-3.5(b). See KCC § 8-3.5(b) ("The order may require the
party responsible for the violation to do any or all of the following: (A) correct the violation
within the time specified in the order; (B) pay a civil fine not to exceed ten thousand dollars
($10,000.00) in the manner, at the place, and before the date specified in the order; (C) pay a
civil fine up to ten thousand dollars ($10,000.00) per day for each day in which the violation
persists. . .). The Planning Department's fine of $10,000 and the additional fine of $10,000 per
violation, per day, were within its discretion to do so and should be affirmed. See Kilakila '0
Haleakala v. Bd. of Land, 138 Hawai`i 383, 401, 382 P.3d 195, 213 (2016) ("A determination
made by an administrative agency acting within the boundaries of its delegated authority will not
be overturned unless 'arbitrary, or capricious, or characterized by a clearly unwarranted exercise
of discretion.")
Petitioner has not met her burden to prove that the Planning Director acted
erroneously, arbitrarily, or manifestly abused his discretion when he issued the NOV to
Petitioner. Respectfully, the Planning Department's issuance of the NOV should be affirmed
and Petitioner's Appeal should be dismissed.
DATED: Honolulu, Hawai`i, January 1, v 020.
S. MA KEY
CHRISTOPHER P. ST. SURE
Attorney for Respondent
PLANNING DEPARTMENT, COUNTY OF
KAUA' I
9
7874834.2
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUAʽI
In the Matter of:
Petition to Appeal Decision of the Planning
Director’s Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Haʽena, Kauaʽi, Hawaiʽi, identified by Kauaʽi
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAʽI,
Respondent.
CC-2017-4
TMK: (4) 5-8-005:005
PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW, DECISION
AND ORDER
CONTESTED CASE HEARING:
Date: August 30, 2019
Time: 9:00 a.m.
Hearings Officer: Harlan Y. Kimura
PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,
DECISION AND ORDER
I. INTRODUCTION
This Contested Case arises from the Notice of Violation & Order to Pay Fines
dated May 23, 2007 (“NOV”) issued by Respondent COUNTY OF KAUAʻI PLANNING
DEPARTMENT (“Planning Department”), to Petitioner PATRICIA D. McCONNELL
(“Petitioner”). See Exhibit “A.”1
The Notice of Violation advised Petitioner that, among other things, she was in
1 All Exhibits referenced numerically were introduced by Petitioner and all Exhibits identified alphabetically were
submitted by the Planning Department by stipulation at the August 30, 2019 Kauai Planning Commission Contested
Case Hearing.
2
breach of the Zoning Compliance Noticed issued to her on January 11, 2017, ordered her to pay
a fine of $10,000.00 and notified her that fines would continue to accrue up to $10,000 per day,
for each day in which such violation persists. See Exhibit “D.”
II. PROCEDURAL HISTORY
On June 13, 2017, Petitioner filed her Petition to Appeal Decision of the Planning
Director’s Decision Related to the Notice of Violation and Order to Pay Fines for the Operation
of an Illegal Transient Accommodation Use for Property Situated in Ha‘ena, Kaua‘i, Hawai‘i,
identified by TMK No. (4) 5-8-005:005 containing 26,092 square feet (the “Appeal”). See
Petitioner’s Appeal. By Order of the Planning Commission, Contested Case No. CC-2017-4
(“Contested Case”) was assigned to Hearing Officer Harlan Kimura, Esq. (“Hearing Officer”).
Thereafter, pursuant to the Hearing Officer’s First Amended Scheduling Order dated July 5,
2019, the contested case hearing was set for August 30, 2019.
On July 9, 2019, the Planning Department filed Plaintiff Department of the
County of Kaua‘i’s Motion for Summary Judgment (“Planning Department’s MSJ”). The
Planning Department’s MSJ requested judgment in its favor pursuant to Rule 1-6-16 of The
Rules of Practice and Procedure of the Kaua‘i Planning Commission (“RPPPC”) affirming the
Planning Department’s Zoning Compliance Notice and the Notice of Violation. In response, on
August 14, 2019, Petitioner filed her Memorandum in Opposition to Respondent Planning
Department of the County of Kaua‘i’s Motion for Summary Judgment (“Opposition”).
On August 23, 2019, Petitioner filed Petitioner Patricia McConnell’s Prehearing
Statement and Petitioner Patricia McConnell’s Exhibit List with Exhibits 1-5. On August 23,
2019, the Planning Department filed its Respondent Planning Department of the County of
Kaua‘i’s Prehearing Statement and Respondent Planning Department of the County of Kaua‘i’s
Exhibit List, together with Exhibits A-F. On January 17, 2020, the Planning Department
3
submitted Respondent Planning Department of the County of Kaua‘i's Supplemental Exhibit List,
together with Exhibit G, as permitted by the Hearing Officer at the Contested Case Hearing. See
Hearing Transcript at 112.
On August 30, 2019, prior to the commencement of the Contested Case Hearing
and after hearing argument from counsel, the Hearing Officer orally denied the Planning
Department’s MSJ.
III. PRELIMINARY MATTERS
The Contested Case Hearing (“Hearing”) of the Planning Commission of the
County of Kaua‘i took place on August 30, 2019 at 9:00 a.m., at the Lihue Civic Center, Liquor
Control Conference Room 3. See Hearing Transcript, page 1. Greg Kugle, Esq. represented
Petitioner who was also present. Id. Maryann Sasaki, Esq. represented the Planning Department
and Mr. Michael Laureta was also present as its authorized representative. Id.
Petitioner and the Planning Department stipulated to admit Exhibits “1”-“5” and
“D” in each party’s respective pre-hearing briefs into evidence. Id. at 5. During the Hearing,
Planning Department’s Exhibits “A,” “B,” “C,” and “G” were admitted into evidence. See
Hearing Transcript at pages 55-63 and page 108 for Exhibit “G.” Planning Department’s Exhibit
“E” was admitted into evidence without the last page. Hearing Transcript at 63.
Petitioner submitted Closing Arguments and/or Proposed Findings of Fact and
Conclusions of Law by January 15, 2020 as required by the Minute Order Regarding Telephone
Conference filed December 12, 2019. In turn, the Planning Department submits these Closing
Arguments and/or Proposed Findings of Fact and Conclusions of Law. Both of those filings
were timely received.
4
IV. FINDINGS OF FACT
A. The Parties and the Subject Property.
1. Petitioner is the owner of the real property that is the subject of this
Contested Case located at 4813 Ananalu Road, Hanalei, Hawaii 96714, TMK No. (4) 8-005:005
(“Subject Property”).
2. The Subject Property is located outside of the Visitor Destination Area.
See Hearing Transcript at 36-37.
3. The Planning Department is the governmental agency responsible for
enforcing, among other things, the provisions of the Comprehensive Zoning Code set forth in
Chapter 8 of the Kaua‘i County Code.
B. Notice of Violation And Order To Pay Fines For The Operation Of
An Illegal Transient Accommodation Use For Property Situated In
Ha‘ena, Kaua‘i, Hawai‘i, Identified By TMK No. (4) 5-8-005:005
Containing 26,092 Square Feet.
4. Petitioner admitted to conducting a homestay operation at the Subject
Property. See Hearing Transcript at 11.
5. The Subject Property is Petitioner’s permanent residence. See Hearing
Transcript at 9.
6. On January 10, 2017, the Planning Department found that Subject
Property was operating a homestay operation located outside of the Visitor Destination Area and
prepared an Investigation Report regarding the Subject Property (“January 10th Report”). See
Exhibit B. The January 10th Investigation Report was prepared by Mr. Andres (“Bambi”) Emayo
(“Emayo”). Id.
7. The January 10th Report detailed the investigation process undertaken by
the Planning Department and subsequent findings:
5
1. Research of online website www.airbnb.com found the subject
transient accommodation:
https://www.airbnb.com/rooms/12622481
2. By matching the airbnb’s website
(https://www.airbnb.com/rooms/12622481) and pictures with
pictometry and cross checking the noted parcel with Real Property
Division records (Tax Classification- Vacation Rental), I was able
to determine the Tax Map Key and Property owner of the transient
accommodation operation.
TMK: 58005005, PATRICIA D. MCCONNELL
3. Research Finding:
Transient accommodation operation is located outside of the VDA
Transient accommodation operation does not have an[ ] active
Non-Conforning Use Certificate (NCU) or an applicable permit.
See Exhibit “B” at 2 (emphasis added).
8. The January 10th Report contained a clipping from an Airbnb
advertisement for the Subject Property that disclosed: “[t]he owner lives in a separate studio on
the property and is available to assist guests with island and home questions and issues.” Id. at
15.
9. The Pictometry and the Kaua‘i Real Property Division Records for the
Subject Property demonstrate that there are two dwellings on the Subject Property—the main
house and a separate octagonal structure. Id. at 3-9.
10. Based on this investigation, the Planning Department determined that
Petitioner was in violation of two ordinances:
ORDINANCE and VIOLATIONS
1. Section 8-8.1(b) General Provisions for Homestays
Homestay operations are prohibited outside of the Visitor
Destination Area (VDA).
6
2. Section 8-17.8 Single Family Transient Vacation Rentals.
Notwithstanding any underlying zoning designation and with the
exception of properties on the National or State Register of
Historic Places, single family transient vacation rentals are
prohibited in all areas not designated as Visitor Destination Areas.
Violation:
The unauthorized use of the subject property for Transient
Accommodation outside of the designated Visitor Designation
Area constitutes a violation.
Exhibit “C.”
11. Mr. Emayo further clarified that the Planning Department’s determination
was based on, among other things, the 2016 Checklist, the Airbnb advertisement, the existence of
a GE tax license, a TAT tax license, and the “Tax Map Keys and zoning maps that show that the
property is outside the VDA.” See Hearing Transcript at 71.
12. By letter dated January 11, 2017, entitled “Zoning Compliance Notice,”
the Planning Department advised Petitioner that it had conducted an investigation of the Subject
Property and found that she was operating a vacation rental operation outside of the Visitor
Designation Area in violation of Section 8-8.1(b) (General Provisions for Homestays) and
Section 8-17.8 (Single Family Transient Vacation Rentals). See Exhibit “C”. Petitioner was
ordered to (1) cease and desist the use of the subject property as a Transient Accommodation,
and (2) cancel all Transient Accommodations commitments for the property. Id.
13. The Zoning Compliance Notice further advised Petitioner that pursuant to
County Ordinance No. 919, any “violation(s) of the Comprehensive Zoning Ordinance (CZO)
may result in a fine up to $10,000.00 and/or up to $10,000.00 per day, should the violation(s)
persist.” Id. at 2.
14. Plaintiff acknowledged receipt of the Zoning Compliance Notice on April
1, 2017. See Hearing Transcript at 12-13.
7
15. Following the receipt of the Zoning Compliance Notice, Petitioner made
an appointment with the Planning Department for April 12, 2017. See Hearing Transcript at 78.
16. On April 12, 2017, Petitioner met with Planning Department
representatives Bambi Emayo and Britni Ludington-Braun regarding the Zoning Violation
Notice (the “April 12th Meeting”). See Hearing Transcript at 78.
17. At the April 12th Meeting, Petitioner and the representatives of the
Planning Department discussed the Zoning Compliance Notice and how the notice could be
remedied. See Hearing Transcript at 64.
18. Mr. Emayo testified that they informed Petitioner that “[w]e basically had
three directions to remedy the situation. Number 1, which would be a written response to the
zoning compliance notice with some kind of remedial action plan. Number 2 was to remove the
prima facie evidence. Number 3 was to work with the Planning Department to rectify the
violation.” See Hearing Testimony at 79.
19. At the April 12th Meeting, Petitioner admitted that she was operating a
homestay. See Exhibit “E” at 1. Petitioner further stated that “she will continue the transient
accommodation operation until March of 2018” and “made comments that she doesn’t intend to
cease and desist the use of the subject property as a Transient Accommodation.” Id. at 2.
20. On April 13, 2017, Petitioner responded to the Planning Department
stating that:
“[i]t is my belief, however, that I have not, and have never, been
in violation of any of the older county ordinances
However, it is now my understanding that there have been some
recent new changes in those county ordinances that may effect
[sic] my life and property, and that may also require me to make
some changes in how I share my home with others.”
Exhibit “3” at 1.
8
21. Petitioner’s response did not state that she would comply with the Zoning
Violation Notice or cancel all Transient Accommodations commitments for the property. Id.
22. Despite receiving the Zoning Violation Notice, Petitioner continued to rent
out rooms in the Subject Property as a homestay operation outside of the Visitor Destination
Area. See Exhibit “E” at 2.
23. On May 18, 2017, the Planning Department conducted another
investigation and discovered that the Subject Property was being advertised on Airbnb without
an applicable permit to do so. Exhibit “E” at 2.
24. Accordingly, the May 23, 2017 Notice of Violation & Order to Pay Fines
(“NOV”), concluded that the Subject Property was still being used for a Homestay operation.
See Exhibit “D.”
25. The NOV stated, among other things, that:
The Planning Department has confirmed that the subject property
is currently being used for a Homestay operation. The continued
use of the subject property for a Homestay operation outside of the
designated Visitor Designation Area constitutes a violation.
[. . .]
You are herein levied and ordered to pay a fine of ten thousand
dollars ($10,000.00) for the above noted violations to the
Planning Department.
You are hereby ordered to cease and desist the illegal activities
being conducted/performed on and from the premises required by
law.
You are hereby ordered to correct the above use violations(s) [sic]
within 14 days of the date of this notice. Should the violations not
be remedied within 14 days from the date of the Notice of
Violation & Order to Pay Fines:
Exhibit “D,” at 2-3.
26. In addition, Petitioner was notified that an additional fine of $10,000
9
would accrue per violation, per day, for each day in which such violation persists. Id.
27. As explained by Mr. Laureta, the Planning Department uses a two-step
process before a fine can be issued: “first step is zoning compliance notice, which – which
advises the owner of a problem, and it gives them the opportunity to come in and correct it. And
if it can’t be corrected within that timeframe, then it’s a second step, notice of violation.” See
Hearing Transcript at 45.
28. The Planning Department’s fines start with $10,000. From there, the
Planning Department considers whether efforts to return to compliance should reduce the fine.
See Hearing Transcript at 46.
29. Petitioner did not dispute that she operated a homestay operation outside
of the Visitor Destination Area. Instead, Petitioner argued that the Planning Department should
recognize that her use as a homestay operation under a nonexistent grandfathering provision.
C. Petitioner’s Appeal Of Planning Department’s NOV.
30. By letter dated June 9, 2017 addressed to the Kaua‘i Planning Department,
Petitioner submitted Petitioner’s Notice of Appeal and Demand for Contested Case Hearing
from Zoning Violation for Transient Accommodation Use at: 4813 Ananalu Road; TMK: 5-8-00,
pursuant to Chapter 9 of the Rules of Practice and Procedure of the Kaua‘i Planning
Commission (“Notice of Appeal”). See Notice of Appeal at 1. The Notice of Appeal focused
primarily on the arguments that: (1) the Kaua‘i County Council arbitrarily banned homestays in
Petitioner’s neighborhood through Ord. No. 987, June 19, 2015 and Ord. No. 1002, May 18,
2016, codified as Sec. 8-18.1 of the CZO; and (2) the Homestay Ordinance does not contain a
grandfathering provision to cover preexisting operations and does not provide guidance on
preexisting legal uses.
10
D. Petitioner’s Continued Violation Of County Ordinances.
31. In the month of May of 2018, Ms. Ludington-Brown discovered that there
were reviews from guests that stayed at the 164 square foot cottage at the Subject Property in
May of 2018. Hearing Transcript at 103; see also Exhibit “G.”
32. The Investigation Report dated July 10, 2018 shows that Petitioner was
operating an illegal transient vacation rental outside of the Visitor Destination Area from
October 2017 through May 2018. See Exhibit “G” at 19-22.
33. The advertisement for the Subject Property was observed on VRBO and
described the rental as being a 500 foot studio that sleeps two and has a “kitchenette”. Id. at 13.
34. One of the comments for a stay in September of 2017 stated, in part, “The
cottage is very private and we loved the setup. The caretaker Matty was very accommodating
and helped to make our stay even better.” Id. at 22.
35. Another comment for a stay on November 2017 observed: “Matty was
great to deal with and helped me to feel at home and get me anything I needed.” Id. at 23.
36. Based upon Ms. Ludington-Braun’s investigation, there was prima facie
evidence presented by the Planning Department that Petitioner was continuing to operate a
Transient Vacation Rental operation at the Property. See KCC § 8-17.11(b) (“[a]dvertising of
any sort which offers a property as a transient vacation rental shall constitute prima facie
evidence of the operation of a transient vacation rental on said property and the burden of proof
shall be on the owner . . . to establish that the subject property is not being used as a transient
vacation rental or that it is being used for such purpose legally.”).
E. Relevant Authorities and Pertinent Legislative History.
37. Haw. Rev. Stat. § 46-4 provides in pertinent part:
(a) This section and any ordinance, rule, or regulation adopted in accordance with this
11
section shall apply to lands not contained within the forest reserve boundaries as
established on January 31, 1957, or as subsequently amended.
Zoning in all counties shall be accomplished within the framework of a long-range,
comprehensive general plan prepared or being prepared to guide the overall future
development of the county. Zoning shall be one of the tools available to the county to put
the general plan into effect in an orderly manner. Zoning in the counties of Hawaii,
Maui, and Kauai means the establishment of districts of such number, shape, and area,
and the adoption of regulations for each district to carry out the purposes of this section.
In establishing or regulating the districts, full consideration shall be given to all available
data as to soil classification and physical use capabilities of the land to allow and
encourage the most beneficial use of the land consonant with good zoning practices. The
zoning power granted herein shall be exercised by ordinance which may relate to:
. . .
(2) The areas in which residential uses may be regulated or prohibited;
. . .
(4) The areas in which particular uses may be subjected to special
restrictions;
(5) The location of buildings and structures designed for specific uses
and designation of uses for which buildings and structures may not be used or
altered;
. . .
(12) Other regulations the boards or city council find necessary and
proper to permit and encourage the orderly development of land
resources within their jurisdictions.
The council of any county shall prescribe rules, regulations, and administrative
procedures and provide personnel it finds necessary to enforce this section and any
ordinance enacted in accordance with this section. The ordinances may be enforced by
appropriate fines and penalties, civil or criminal, or by court order at the suit of the
county or the owner or owners of real estate directly affected by the ordinances.
. . .
The powers granted herein shall be liberally construed in favor of the county
exercising them, and in such a manner as to promote the orderly development of
each county or city and county in accordance with a long-range, comprehensive
general plan to ensure the greatest benefit for the State as a whole. This section shall
not be construed to limit or repeal any powers of any county to achieve these ends
through zoning and building regulations, except insofar as forest and water reserve
12
zones are concerned and as provided in subsections (c) and (d). [This paragraph shall
hereafter be referred to as the “Liberal Construction Provision.”]
Neither this section nor any ordinance enacted pursuant to this section shall
prohibit the continued lawful use of any building or premises for any trade,
industrial, residential, agricultural, or other purpose for which the building or
premises is used at the time this section or the ordinance takes effect; provided that a
zoning ordinance may provide for elimination of nonconforming uses as the uses are
discontinued, or for the amortization or phasing out of nonconforming uses or signs over
a reasonable period of time in commercial, industrial, resort, and apartment zoned areas
only. In no event shall such amortization or phasing out of nonconforming uses apply to
any existing building or premises used for residential (single-family or duplex) or
agricultural uses. Nothing in this section shall affect or impair the powers and duties of
the director of transportation as set forth in chapter 262. [This paragraph shall hereafter
be referred to as the “Continued Lawful Use Provision.”]
Haw. Rev. Stat. § 46-4 (emphasis added).
38. Act 186 provided that “the several counties shall, by amendment of their
zoning ordinances, limit the location of time share units, time share plans and other transient
vacation rentals, within such areas as deemed appropriate.” 1980 Haw. Sess. laws Act 186 § 4 at
306.
39. Pursuant to Act 186, the County enacted Ordinance 436 “for the purpose
of designating locations, referred to as “Visitor Destination Area,” in which transient vacation
rentals, time share units and time share plans are to be allowed.” By extension, following the
enactment of Ordinance 436, transient vacation rentals, time share units and time share plans
were prohibited outside of designated Visitor Destination Areas.
40. Ordinance 1002, adopted by the Council on May 18, 2016, provided the
express purpose of the Bill as follows:
The Council finds the 2000 Kaua‘i General Plan recognized the
need “to develop a clear policy regarding B&Bs and vacation
rentals.” The General Plan recommended an implementing action
to amend the CZO to facilitate the permitting of existing,
nonconforming alternative visitor accommodations. The Council
complied with the policy of the General Plan and grandfathered
existing single-family transient vacation rentals (SFTVRs) that
13
registered and met the prior use requirements established in Article
17 of the CZO.
In Ordinance No. 864, the Council further found that:
This bill does not apply to a bed and breakfast unit
(“Homestay”). It is the intention of the Council to address
these units as a separate matter after establishing a
regulatory framework for single-family transient vacation
rentals. Homestays are presently regulated through the
use permit process.
Although the Council bifurcated the issues of homestays and
SFTVRs, it is now appropriate to adopt a clear and specific
standard and review parameters under which homestay
applications can be processed.
The purpose of this bill is to restrict homestay operations to the
Visitor Destination Areas (VDAs) and to establish additional
standards under which homestays operate.
(emphasis added).
41. Ordinance 1002 invited applications for homestay operations:
On a first-come-first-serve basis of applications deemed complete
by the Planning Department, no more than ten (10) new
applications for homestay operations shall be accepted for review
by the Planning Commission in each of the calendar years 2015
and 2016. The limitation on the number of applications shall
expire on December 31, 2016, or upon passage of an amendment
to this section, whichever occurs first.
(emphasis added).
42. KCC § 8-18.1 provides, in relevant part:
(a) A homestay operation shall operate under the following
regulations:
(1) Transient accommodations are provided for visitors for
twenty-nine (29) days or less;
(2) Homestays shall be limited to no more than three (3)
guest rooms per homestay operations;
14
. . .
(b) Homestay operations are prohibited outside of the Visitor
Destination Area (VDA).
Ordinance 1002 (with emphasis).
43. Homestay “means an owner occupied dwelling unit in which overnight
accommodations are provided to transient guests within the same dwelling unit in which the
owner resides and the respective owner currently benefits under Sec. 5A-11 of this Code for a
homeowner’s exemption for the homestay site. A guest house may not be used as
accommodations for transient guests in a homestay operation. See Section 8-1.2 of the KCC
(emphasis added).
44. A Dwelling Unit “means any building or any portion thereof which is
designed for occupancy by one (1) family or persons living together or by a person living alone
and providing complete living facilities, within the unit for sleeping, recreation, eating and
sanitary facilities including installed equipment for only one (1) kitchen.” Id.
45. Transient “means any person who owns, rents, or uses a dwelling unit or a
portion thereof for one hundred eighty (180) days or less[.]” Id.
46. Section 8-3.5 of the KCC provides for penalties as follows:
(1) If the Director of the Planning determines that any person, firm
or corporation is not complying with a notice of violation, the
Director may have the party responsible for the violation served,
by mail or delivery, or by posting on the property which address
is the most current address reflected in the Real Property tax
records, or by publishing such notice in a newspaper of general
circulation in the County of Kauai should previous notification
efforts not be accepted, with an order pursuant to this section. The
order may require the party responsible for the violation to do
any or all of the following.
(A) Correct the violation within the time specified in the order;
(B) Pay a civil fine not to exceed $10,000 in the manner, at the
15
place, and before the date specified in the order;
(C) Pay a civil fine up to $10,000 per day for each day in which
the violation persists, in the manner and at the time and place
specified in the order.
(2) The order shall advise the party responsible for the violation
that the order shall became final 30 days after the date of its
delivery. The order shall also advise that the Director's action may
be appealed to the Planning Commission.
(3) The provisions of the order issued by the Director under this
section shall become final 30 calendar days after the service of the
order. The parties responsible for the violation may appeal the
order to the Planning Commission pursuant to its rules. The form
of this appeal must conform to the Planning Commission's rules.
However, an appeal to the Planning Commission shall not stay any
provision of order.
KCC §8-3.5 (emphasis added).
47. KCC § 8-13.2, adopted by the Council on November 14, 2012, as part of
Ordinance No. 935 to update the Comprehensive Zoning Code, provides in pertinent part:
(a) A nonconforming use of land, buildings, or other structures
may continue to the extent that the use existed on September 1,
1972 or any amendment hereto, as provided in this Section,
provided that the Planning Commission may, after hearing, order
the termination of a nonconforming use that creates substantial
danger to public health or safety.
(b) If any nonconforming use ceases for any reason for
continuous period of twelve (12) calendar months or for one (1)
season if the use be seasonal, then the use shall not be resumed and
any use of the land or building thereafter shall be in full conformity
with the provisions of this Chapter
…
48. Under KCC § 8-17.11(b), “[a]dvertising of any sort which offers a
property as a transient vacation rental shall constitute prima facie evidence of the operation of a
transient vacation rental on said property and the burden of proof shall be on the owner. . . to
establish that the subject property is not being used as a transient vacation rental or that it is
16
being used for such purpose legally.”
49. If any Finding of Fact herein should be designated as a Conclusion of
Law, the same shall be deemed to have been identified as such.
V. CONCLUSIONS OF LAW
A. The Planning Department’s Zoning Compliance Notice
and NOV Was Proper .
1. An executive branch government agency possesses only the authority
granted to it by the legislative branch. See, e.g., Paul’s Elec. Serv., Inc. v. Befitel, 104 Hawaiʻi
412, 417, 91 P.3d 494, 499 (2004) (“Administrative agencies are created by the legislature, and
the legislature determines the bounds of the agency’s authority. An administrative agency can
only wield powers expressly or implicitly granted to it by statute. Thus, before we can determine
whether an agency abused its discretion pursuant to HRS § 91-14(g)(6), we must determine
whether the agency determination under review was the type of agency action within the
boundaries of the agency’s delegated authority.”) (internal quotation marks and citations
omitted). See also Morgan v. Planning Dept., County of Kauai, 104 Hawaiʻi 173, 184, 86 P.3d
982, 993 (2004) (applying same principles to county agency).
2. Here, the legislative branch is the County Council, and the Planning
Department is an agency of the County’s executive branch. Kauaʻi County Charter, Art. III, §
3.01 (“The legislative power of the county shall be vested in and exercised by the county
council[.]”); Art. VI, § 6.01 (executive branch).
3. The County Charter establishes the fundamental structure of county
government; outlines how a bill becomes a law; and creates its executive branch agencies. Art. I,
§ 1.03 (elections); Art. IV, § 4.02 (passage of ordinances); Articles X-XVIII; XXVIII-XXXI
(departments, commissions, and agencies)
17
4. Among these County agencies is the Planning Department, which is
tasked with (among other things) reviewing and enforcing the county’s zoning ordinances.
County Charter Art. XIV, § 14.01 (“There shall be a planning department consisting of a
planning commission, a zoning board of appeals, a planning director, and the necessary staff.”);
Art. XIV § 14.03(A)-(H) (duties and functions of the planning commission). In enforcing the
county’s zoning laws, the Charter specifies that variances can be granted “pursuant to provisions
established by the council by ordinance.” Art. XIV § 14.03(D).
5. Neither the Department nor the Commission has the authority to offer a
variance from the requirements of the zoning code unless that variance was first enacted into law
as an ordinance by the County Council. Id.
6. The agency cannot act beyond its delegated authority and thus the
Commission cannot have erred in determining it did not possess the authority to ignore the
prohibition of homestay operations outside of the Visitor Destination Area in § 8-18.1(b).
7. In fact, respecting the limits of its delegated authority is precisely what the
agency should do. See HRS § 91-14(g)(2) (agency acting in “excess of the statutory authority or
jurisdiction” is grounds for reversal or modification of agency decision); Kilakila ʻO Haleakala
v. Bd. of Land, 138 Hawaiʻi 383, 401, 382 P.3d 195, 213 (2016) (“A determination made by an
administrative agency acting within the boundaries of its delegated authority will not be
overturned unless ‘arbitrary, or capricious, or characterized by a clearly unwarranted exercise of
discretion.”) (citations, internal quotation marks, brackets and ellipses omitted)
8. The express language of KCC § 8-18.1(b) unambiguously prohibits the
operation of a homestay outside of the Visitor Destination Area.
9. Michael Laureta, the County’s Division Program Manager in charge of
18
enforcement, testified that the Council was clear when it passed Ordinance 1002: “you can only
have [homestays] in the visitor destination area” and the County’s interpretation was that “there
was no grandfathering component.” See Hearing Transcript at 36 (emphasis added).
10. The County’s interpretation and enforcement of this ordinance should be
afforded deference. See Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (Haw. 1984)
(“[a]n agency's interpretation of its rules receives deference unless it is plainly erroneous or
inconsistent with the underlying legislative purpose”).
11. Any violation of Article 18 “shall be subject to Section 8-3.5 of the Kaua‘i
County Code, as amended.” See KCC § 8-18.3(e).
12. Petitioner had “the burden of proof, including the burden of producing
evidence as well as the burden of persuasion” under a preponderance of the evidence standard to
demonstrate that she had not violated KCC § 8-18.1(b). See HRS § 91-10(5).
13. Under KCC § 8-17.11(b), “advertising of any sort which offers a property
as a transient vacation rental shall constitute prima facie evidence of the operation of a transient
vacation rental on said property.”
14. Petitioner did not present any evidence to rebut this prima facie evidence
that she was engaged in a homestay operation outside of the Visitor Destination Area.
15. Petitioner failed to present any evidence that the Subject Property was
outside of the Visitor Destination Area.
16. It is further undisputed that Petitioner advertised the Subject Property on
two separate websites, Airbnb and VRBO, and continued to do so after receiving the Zoning
Compliance Notice. See Exhibits “B,” “E,” and “G.”
17. Due to the Planning Department’s unrebutted evidence, the Planning
19
Department was correct to issue its Zoning Compliance Notice dated January 11, 2017. See
Exhibit “C.”
18. Petitioner admitted to receiving a copy of the Zoning Compliance Notice
by at least April 1, 2017. See Hearing Transcript at 12.
19. The Zoning Compliance Notice specifically required Petitioner to: (1)
cease and desist the use of the subject property as a Transient Accommodation; and (2) cancel all
Transient Accommodations commitments for the property. See Exhibit “C.”
20. Petitioner failed to present any evidence that she complied with the
Zoning Compliance Notice.
21. KCC § 8.3(b) provides, in pertinent part, for the following action to be
taken when any person fails to comply with a notice of violation:
(1) If the Director of the Planning determines that any person, firm
or corporation is not complying with a notice of violation, the
Director may have the party responsible for the violation
served, by mail or delivery, or by posting on the property which
address is the most current address reflected in the Real Property
tax records, or by publishing such notice in a newspaper of general
circulation in the County of Kauai should previous notification
efforts not be accepted, with an order pursuant to this section. The
order may require the party responsible for the violation to do
any or all of the following.
(A) Correct the violation within the time specified in the order;
(B) Pay a civil fine not to exceed $10,000 in the manner, at the
place, and before the date specified in the order;
(C) Pay a civil fine up to $10,000 per day for each day in which
the violation persists, in the manner and at the time and place
specified in the order.
(emphasis added).
22. After observing continued advertisements of the Subject Property on
Airbnb, the Planning Department mailed Petitioner the NOV, notifying her that she had failed to
20
comply with the Zoning Compliance Notice and ordering her to pay a fine of $10,000. See
Exhibit “D.”
23. Contrary to Petitioner’s argument that the Planning Department failed to
comply with Section 8.3(b) of the KCC, the Planning Department followed the required process
by providing Petitioner with a warning and opportunity to comply and then, only after Petitioner
failed to comply with the warning, issued a fine of $10,000 and a fine of $10,000 per day should
the violation persist after 14 days.
24. Accordingly, the Planning Department has not acted erroneously,
arbitrarily, and did not manifestly abuse its discretion when it issued the NOV.
B. Petitioner’s Homestay Operation is Not
A Lawful Nonconforming Use.
25. Instead of presenting evidence that Petitioner was not running a homestay
operation when she was issued the NOV, Petitioner alternatively argued that her use was a lawful
nonconforming use that existed prior to Ordinance 1002.
26. “The counties of our state derive their zoning powers from HRS § 46-4(a),
referred to as the Zoning Enabling Act.” Kaiser Hawaii Kai Dev. Co. v. City & County of
Honolulu, 70 Haw. 480, 483, 777 P.2d 244, 246 (1989).
27. One of the central canons of statutory construction is that all portions of a
statute must be given effect. See, e.g., Ferris, 138 Hawaiʻi at 310, 378 P.3d at 1026 (“Courts are
bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be
construed as superfluous, void, or insignificant if a construction can be legitimately found which
will give force to and preserve all words of the statute.”) (citations and internal quotation marks
omitted).
28. Under this statute, the counties have been delegated significant authority
21
over zoning, including establishing districts; determining where business may be conducted;
determining where residential uses may be undertaken; and the power to enact “necessary and
proper” regulations, as the counties’ respective councils determine. HRS § 46-4(a) (see language
emphasized above).
29. These are the grants of authority that “shall be liberally construed in favor
of the county” under the terms of the statute itself. Id. (emphasis added). The statute explicitly
states that it does not “limit or repeal any powers of any county[.]”). Id. Thus the counties are
granted substantial authority over zoning in their respective jurisdictions, and all the tools they
need to implement that authority.
30. Petitioner testified that she ceased homestay operations from April of 2018
to June 2019. See Hearing Transcript at 19. Accordingly, Petitioner’s use has been abandoned
and cannot lawfully continue even if Petitioner was correct that KCC § 8-13.2 applied to KCC
§18.1(b).
31. KCC § 8-13.2(a) provides a nonconforming use “may continue to the
extent that the use existed on September 1, 1972.” (Emphasis added). However, if that
“nonconforming use ceases for any reason for a continuous period of twelve (12) calendar
months or for one (1) season if the use is seasonal, then the use shall not be resumed.” KCC §
8-13.2(b) (emphasis added). Therefore, the continuation of the nonconforming use is
discretionary,2 but once abandoned, it is mandatory that this nonconforming use shall not be
resumed.3 Id.
32. The public policy embodied in zoning ordinances dictates “the firm
2 “The term ‘may’ is generally construed to render optional, permissive, or discretionary the provision in which it is
embodied.” State v. Kahawai, 103 Hawaiʻi 464, 465, 83 P.3d 725, 728 (2004) (emphasis added).
3 “As used in statutes, contracts, or the like, this word [(i.e. shall)] is generally imperative or mandatory.” Leslie v.
Board of Appeals of County of Hawaii, 109 Hawaiʻi 384, 394, 126 P.3d 1071, 1081 (2006) quoting Black’s Law
Dictionary 1375 (6th Ed. 1990) (emphasis added).
22
regulation of nonconforming uses with a view to their eventual elimination.” Bastian v. City of
Twin Falls, 104 Idaho 307, 309, 658 P.2d 978, 980 (Ct. App. 1983). A nonconforming use does
not possess any inherent right to be extended or enlarged and “[t]his corollary is recognized in
nearly all states.” Id
33. KCC § 8-13.2 should not apply to homestay operations in effect prior to
enactment of Ordinance 1002 because Petitioner has not offered credible evidence of a
continuous homestay operation before May 18, 2016, nor has she described her homestay
operation prior to May 18, 2016 with sufficient specificity to conclude that she was running a
homestay operation.
34. Moreover, substantial evidence was presented by the Planning Department
that raises doubt as to the credibility of Petitioner’s testimony of continuous homestay because
she was, at least at some times, renting a dwelling that she did not also reside in.
35. KCC § 8-1.5 defines a homestay as “an owner occupied dwelling unit in
which overnight accommodations are provided to transient guests within the same dwelling unit
in which the owner resides. . .”
36. Exhibits “B,” “E” and “G” contain advertisements wherein Petitioner rents
out the main portion and also the octagonal cottage on the Subject Property. Although the
advertisements describe the Sea Turtle Cottage as 500 square feet, the real property records
actually list the building as 164 square feet.
37. Aside from Petitioner’s admission to the homestay use that led to the
NOV, Petitioner has failed to establish that her use should be grandfathered pursuant to KCC §
8-13.2.
38. Moreover, even if Petitioner had submitted credible evidence of her
23
continuous use prior to the enactment of Ordinance 1002, Petitioner’s homestay use would not
have been “lawful” because Petitioner admittedly did not have a use permit as required by KCC
Section 8-3.2(b). See KCC Section 8-3.2 (“[n]o person shall undertake any construction or
development, or carry on any activity or use for which a Use Permit is required by this
Chapter, or obtain a building permit for construction, development, activity or use for which a
Use Permit is required by this Chapter, without first obtaining a Use Permit.”) (emphasis
added).
39. On the identification of lawful nonconforming uses, “previous lawfulness”
should be “determined by reference to the zoning ordinances in existence at the time of a
property owner’s structure or use of property was rendered unlawful under a change to the
zoning laws.” Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals of the City &
County of Honolulu, 86 Hawaiʻi 343, 355, 949 P.2d 183, 194 (App. 1997).
40. KCC Section 8-3.2 provided the following standards for the issuance of a
Use Permit:
1) A Use Permit may be granted only if the Planning
Commission finds that the establishment, maintenance, or
operation of the construction, development, activity or use in the
particular case is a compatible use and is not detrimental to health,
safety, peace, morals, comfort and the general welfare of persons
residing or working in the neighborhood of the proposed use, or
detrimental or injurious to property and improvements in the
neighborhood or to the general welfare of the community, and will
not cause any substantial harmful environmental consequences on
the land of the applicant or on other lands or waters, and will not
be inconsistent with the intent of this Chapter and the General
Plan.
(2) The Planning Commission may impose conditions on the
permit involving any of the following matters: location, amount
and type and time of construction, type of use, its maintenance and
operation, type and amount of traffic, off-street parking, condition
and width of adjoining roads, access, nuisance values, appearance
of the building, landscaping, yards, open areas and other matters
24
deemed necessary by the Planning Commission.
41. Mr. Emayo explained that prior to the enactment of Ordinance 1002 uses
other than those allowed under the applicable zoning district would have to apply for a Use
Permit:
The Ordinance 1002, the homestay ordinance did not - to my
understanding they did not make an opening for people coming to
certify the grandfather use because it was always open for anybody
to go in to get a - what they used to call it a B&B use through a use
permit process. So it was -it- you could always go in and - for a use
permit. And we do have some use permits from before the
ordinance for B&Bs.
See Hearing Transcript at 77.
42. Accordingly, given the absence of any evidence of a Use Permit for the
Subject Property, Petitioner may not rely on KCC § 8-13.2(a) as a basis to challenge the NOV
issued by the Planning Department.
43. The powers of the Hearing Officer originate from the Planning
Commission, and the Planning Commission does not have authority to recognize Petitioner’s
prior homestay use as a lawful nonconforming use, nor can the Planning Commission disregard
the prohibition contained in KCC § 8-18.1(b).
C. The Planning Department’s NOV Did Not
Violate Petitioner’s Due Process.
44. Petitioner next argues that the NOV did not provide her with due process
by failing to provide specific facts to support the violation.
45. Due process does not entitle a litigant to a particular result; it entitles a
litigant to process. See, e.g., Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87
Hawaiʻi 217, 243, 953 P.2d 1315, 1341 (1998) (“The basic elements of procedural due process
of law require notice and an opportunity to be heard at a meaningful time and in a meaningful
25
manner.”) (citations and internal quotation marks omitted).
46. The Planning Department provided Petitioner with due process of law by
providing her with the Zoning Compliance Notice that informed her the she was in violation of
KCC § 8-18.1(b). After providing such notice, the Planning Department met with her on April
12, 2017 to further discuss the basis of her violation. See Hearing Transcript at 64.
47. The evidence further demonstrates that Petitioner was not confused about
the allegations contained in the Zoning Compliance Notice. Rather, she disagreed with the
Planning Department’s interpretation of its rules because she believed that she should have been
grandfathered in. See Hearing Transcript at 28 (“It never occurred to me for a minute that there
would be anything other than that, that would occur. So I never thought that – I thought I should
be grandfathered in.”).
48. When asked what her position was when she received the Zoning
Compliance Notice, Petitioner testified that “[i]t was my position that I didn’t think they knew
what they were doing and the process did not seem appropriate. . .” See Hearing Transcript at
26; see also Exhibit “3” (“It is my belief, however, that I have not, and have never, been in
violation of any of the older county ordinances.”).
49. Due process requires only notice and an opportunity to be heard. Sullivan,
87 Hawaiʻi at 243, 953 P.2d at 1341. Petitioner has been afforded such an opportunity.
Petitioner clearly disagrees with the Planning Department’s interpretation of Article 18, but
differing opinions on the law do not rise to the level of a due process violation.
50. Accordingly, there was no due process violation in the Planning
Department’s issuance of the NOV.
D. The Fines Imposed By The NOV Were
Authorized by KCC Section 8-3.5.
26
51. Finally, the Petitioner argues that the Planning Department acted
erroneously, arbitrarily, and manifestly abused its discretion when it issued the NOV and
imposed an excessive fine against Petitioner.
52. In the event of a homestay violation, KCC Section 8-18.3(e) states that
“[e]nforcement of this section shall be subject to Section 8-3.5 of the Kauai County Code.”
53. KCC Section 8-3.5 provides the authority for the Planning Department’s
issuance of a civil fine of $10,000 and the imposition of a civil fine up to $10,000 per day for
each day the violation persists. See KCC § 8-3.5(b)(1).
54. Mr. Laureta explained the Planning Department’s fining procedure as
follows:
“we start off at 10. If there’s any effort towards compliance, we
start off at 10, and during the remediation phase without the NOV
in the ZCN phase, if there’s any effort, any willingness to
remediate by providing us documentation, we would say we could
reduce the fine depending on how fast you can remediate. So
depending on how long it takes to provide us documentation that
you’ve cancelled all your commitments, that you removed your
website, we would offer up a reduced fine consideration. If there is
no effort to do any of that and the use continues, especially after
the ZCN meeting, then it’s like, nah, you know, 10. We stay at 10.
Let them appeal the 10 because they made no effort to remediate,
which includes no effort to cancel the website, cancel future
commitments, and try and get into compliance.”
See Hearing Transcript at 46.
55. It is undisputed that Petitioner failed to make any effort to return to
compliance.
56. The Planning Department was within its authority to levy a $10,000 fine
and impose a $10,000 fine per day that the violation continues as authorized by KCC § 8-3.5.
See HRS § 91-14(g)(2) (agency acting in “excess of the statutory authority or jurisdiction” is
27
grounds for reversal or modification of agency decision); Kilakila ʻO Haleakala v. Bd. of Land
and Natural Resources, 138 Hawaiʻi 383, 401, 382 P.3d 195, 213 (2016) (“A determination
made by an administrative agency acting within the boundaries of its delegated authority will not
be overturned unless ‘arbitrary, or capricious, or characterized by a clearly unwarranted exercise
of discretion.’ ”)
57. Petitioner has not presented evidence that the Planning Department did not
act erroneously, arbitrarily or manifestly abuse its discretion by imposing the fines contained in
the NOV.
58. If any Conclusion of Law herein should be designated as a Finding of
Fact, the same shall be deemed to have been identified as such.
VI. CONCLUSION
Based upon the foregoing, it is recommended that the Planning Commission
AFFIRM the decision of the Planning Director in issuing the Notice of Violation & Order to Pay
Fines dated May 23, 2017, and DISMISS Petitioner’s appeal because Petitioner has not met her
burden to establish that the action by the Planning Director was based on an erroneous finding of
a material fact, or that the Planning Director acted in an arbitrary or capricious manner, or abused
his discretion. RPPPC Rule 1-9-2(b)(6).
DATED: Lihue, Hawaii, ___________________.
_______________________________
HARLAN Y. KIMURA
Hearing Officer for the Planning Commission
of the County of Kaua‘i
7874834.2
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUAʽI
In the Matter of:
Petition to Appeal Decision of the Planning
Director’s Decision Related to the Notice of
Violation and Order to Pay Fines for the
Operation of an Illegal Transient
Accommodation Use for Property Situated in
Haʽena, Kauaʽi, Hawaiʽi, identified by Kauaʽi
TMK No. (4) 5-8-005:005 containing 26,092
square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAʽI,
Respondent.
CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date and by the method of service
noted below, a true and correct copy of the foregoing was served on the following at their last
known address:
2
U.S. MAIL
HAND
DELIVERY
EMAIL
GREGORY W. KUGLE
gwk@hawaiilawyer.com
JOANNA C. ZEIGLER
JCZ@hawaiilawyer.com
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Attorneys for Petitioner
PATRICIA D. McCONNELL
X
X
NICHOLAS R. COURSON
ncourson@kauai.gov
First Deputy County Attorney
County of Kauaʽi
4444 Rice Street, Suite 220
Lihuʽe, HI 96766
Attorney for Planning Commission,
County of Kauaʽi
X X
ELLEN CHING, Administrator
eching@kauai.gov
asegreti@kauai.gov
Office of Boards and Commissions
County of Kauaʽi
4444 Rice Street, Suite 150
Lihuʽe, HI 96766
X X
HARLAN Y. KIMURA
hyk@harlankimuralaw.com
Central Pacific Plaza
220 South King Street, Suite 1660
Honolulu, HI 96813
Telephone: (808) 564-0811
Hearing Officer
Planning Commission, County of Kaua‘i
X X
DATED: Honolulu, Hawai`i, January , 2020.
J S. M
CHRISTOPHER P. ST. SURE
Attorney for Respondent
PLANNING DEPARTMENT OF THE
COUNTY OF KAUAI
3
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
HEARING OFFICER’S REPORT
AND RECOMMENDATION OF
CONTESTED CASE;
CERTIFICATE OF SERVICE
HEARING (Held):
Date: August 30, 2019
Time: 9:00 a.m.
HEARING OFFICER’S
REPORT AND RECOMMENDATION OF CONTESTED CASE
I. INTRODUCTION.
This Contested Case arises as a result of the letter stamp-dated
May 23, 2017 entitled “NOTICE OF VIOLATION & ORDER TO PAY
2
FINES” (“Notice of Violation”) issued by Respondent PLANNING
DEPARTMENT OF THE COUNTY OF KAUA‛I (“Planning Department”) to
Petitioner PATRICIA D. McCONNELL (“Petitioner”). Exhibit D1. The Notice of
Violation advised Petitioner to immediately Cease and Desist the use of her
property located at 4813 Ananalu Road in Hanalei, Kauai for “transient
accommodations”2 because it is in a location not designated as a Visitor
1 All Exhibits identified by Alphabets were introduced by the Planning Department.
Conversely, all Exhibits referenced by Numbers originated from Petitioner. Hearing Officer’s
Scheduling Order dated December 14, 2018 (“Scheduling Order”) at 2.
2 “Transient Accommodations” as used in the Notice of Violation refers to a “Homestay” as
defined in Kaua‛i County Code (“KCC”) § 8-1.5.
A Homestay is “an owner occupied dwelling unit in which overnight accommodations are
provided to transient guests within the same dwelling unit in which the owner resides and the
respective owner currently benefits under Sec. 5A-11 of this Code for a homeowners’ exemption
for the homestay site. A guest house may not be used as accommodations for transient guests in
a homestay operation. Id. (emphasis added).
A Dwelling Unit is defined as “any building or any portion thereof which is designed or
intended for occupancy by one (1) family or persons living together or by a person living alone
and providing complete living facilities, within the unit for sleeping, recreation, eating and
sanitary facilities, including installed equipment for only one (1) kitchen.” Id. (emphasis added).
Transient is “any person who owns, rents, or uses a dwelling unit or a portion thereof for one
hundred eighty (180) days or less, and which dwelling unit is not the person’s primary
residence under the Internal Revenue Code. . . .” Id. (emphasis added).
A Guest House is “a building with a floor area of no more than five hundred (500) square feet,
may contain a kitchen, and is used for dwelling purposes by guests, tenants, or owner(s). A
guest house shall not be used for a transient vacation rental (TVR) or homestay operation within
or outside of the visitor destination area (VDA).” Id. (emphasis added).
A Building is defined as “a roofed structure, built for the support, shelter or enclosure of
persons, animals, chattels or property of any kind. The word ‘building’ includes the word
‘structure.’” Id. (emphasis added).
A Kitchen is defined as “any room used or intended or designed to be used for cooking and
preparing food.” Id.
Visitor Destination Areas or VDAs “are those areas designated as Visitor Destination Areas on
County of Kaua‛i Zoning Maps.” Id. and See also Ordinance No. 436 adopted on September 7,
1982 by the County of Kaua‛i County Council (“Ordinance No. 436”).
3
Destination Area. Id. at 1. After receiving the Notice of Violation, Petitioner
submitted a timely Notice of Appeal and Demand for Contested Case Hearing
dated June 9, 2017 through her counsel, Gregory W. Kugle, Esq., and Veronica A.
Nordyke, Esq., of the law firm of Damon Key Leong Kupchak Hastert (“Notice of
Appeal”).
II. PROCEDURAL HISTORY.
Pursuant to the Hearing Officer’s First Amended Scheduling Order
dated July 5, 2019 (“First Amended Scheduling Order”), the Planning Department
submitted Respondent Planning Department Of The County Of Kauai’s Motion
For Summary Judgment dated July 9, 2019 (“Planning Department’s MSJ”)
arguing there is no genuine issue of material fact that Petitioner is operating the
Subject Property as a homestay outside of a VDA in violation of KCC § 8-18.1(b).
Attached to the Planning Department’s MSJ is the Declaration of Mike Laureta
(“Laureta Declaration”), the Program Manager and Custodian of Records for the
Planning Department.3 The Exhibits appended to the Laureta Declaration
contained copies of documents in the Investigation File offered in support of the
A Structure is defined as “anything constructed or erected which requires location on the
ground or which is attached to something having location on the ground . . .” Id.
3 See Transcript of the Contested Case Hearing held on August 30, 2019 in this Contested Case;
CC-2017-4 (“Transcript”) at 35-36.
4
Notice of Violation. Finally, the Declaration of Britni Ludington-Braun
(“Ludington-Braun Declaration”), ADU/TVR Enforcement Specialist with the
Planning Department,4 sets forth the details regarding Petitioner’s meeting with her
and Mr. Andres “Bambi” Emayo (“Emayo”), Supervising Inspector for the
Enforcement Section of the Planning Department,5 on April 12, 2017 as a result of
the Zoning Compliance Notice stamp-dated January 11, 2017 (“Zoning
Compliance Notice”).
Petitioner Patricia McConnell’s Memorandum In Opposition To
Respondent Planning Department Of The County Of Kauai’s Motion For Summary
Judgment dated August 14, 2019 (“Memorandum In Opposition”) responded that
the Planning Department’s MSJ should be denied on five (5) grounds. First, the
Planning Department’s MSJ is “factually unsupported” because the Laureta
Declaration and Ludington-Braun Declaration are deficient and void of facts to
support the Zoning Compliance Notice and/or Notice of Violation. Memorandum
In Opposition at 5. Second, the Planning Department failed to submit evidence of
“an actual violation.” Id. at 6-7. Instead, the Notice of Violation is supported by
Internet postings of advertisements for daily rental of the Subject Property and
reviews of guests allegedly having stayed at that location. Id. Third, the
4 SeeTranscript at 101.
5 See Transcript at 54.
5
$150,000.00 fine imposed by the Notice of Violation is not supported by the facts
and unconstitutionally excessive. Id. at 7-9. Fourth, the Planning Department
refused to comply with Petitioner’s Discovery Request and therefore, on or about
July 10, 2019 submitted a Uniform Information Practices Act Request For
Government Records to obtain the requested documents (“UIPA Request”).6
Compare Id. at 9, with Exhibit 1 attached to Memorandum In Opposition. Finally,
Summary Judgment would deny Petitioner’s right to a Contested Case Hearing
pursuant to RPPPC Rule 1-9-3 and Chapter 91 of the Hawai‛i Revised Statutes.
Memorandum In Opposition at 9-10.
In reply to the Memorandum In Opposition, the Planning Department
noted Petitioner admitted to operating a homestay outside of a VDA. Respondent
Planning Department Of The County Of Kaua‛i’s Reply To Petitioner Patricia
McConnell’s Memorandum In Opposition To Respondent County of Kauai’s
Motion For Summary Judgment (“Planning Department’s Reply”) at 2. Secondly,
the Comprehensive Zoning Ordinance (“CZO”) prohibits homestay operations
outside of VDAs pursuant to KCC § 8-18.1(b). Id. at 7-8. Finally, KCC § 8-3.5(b)
permits the Planning Department to impose fines of up to $10,000.00 per day. Id.
at 7-8.
6 The Planning Department is permitted to refuse Petitioner’s Discovery Request pursuant to
Rule 1-6-9(b) of the Rules of Practice and Procedure of the Kaua‛i County Planning
6
The Planning Department’s MSJ came on for hearing before this
Hearing Officer at 9:00 a.m. on August 30, 2019 (“MSJ Hearing”). Gregory W.
Kugle appeared on behalf of Petitioner. Maryann Sasaki appeared on behalf of the
Planning Department, along with its duly authorized representative Emayo joining
her later in these proceedings. Transcript at 24-25. Although the Agency Hearing
Notice for this Contested Case was prepared and filed with the Office Of The
County Clerk, County of Kaua‛i, State of Hawai‛i, and timely posted pursuant to
RPPPC Rule 1-6-5 and Haw. Rev. Stat. § 91-9, no other parties or members of the
general public appeared at the Hearing. Transcript at 4.
After receiving arguments summarizing the respective positions of the
Planning Department and Petitioner, this Hearing Officer DENIED the Planning
Department’s MSJ. Id. at 3-4. The Planning Department’s MSJ was denied
because neither the Laureta Declaration nor the Ludington-Braun Declaration
stated those declarants were competent to testify to the matters set forth in their
declarations. Id. at 4. Moreover, the Laureta Declaration was conclusory in
nature, rather than setting forth specific undisputed facts which support the
Planning Department’s arguments that it should be entitled to judgment as a matter
of law. See Memorandum In Opposition at 4 citing GECC Financial Corporation.
Commission (Codified May 2014) (“RPPPC”).
7
v. Jaffarian, 79 Hawai‛i 516, 521, 904 P.2d 530, 535 (Haw.Ct.App. 1995) and
Transcript at 4.7
The final preliminary matter concerned the exhibits to be admitted
into evidence. Transcript at 4-5. First, Exhibits 1 through 5, and Exhibit D, were
admitted into evidence by stipulation. Id. at 5. Second, Petitioner objected to
Exhibits A, B, C, E, and F on grounds they appear to be documents from the
Planning Department’s Investigation File which were not previously provided to
her.8 Id. at 5-7. Therefore, Petitioner argued “it is unfair and it’s trial by surprise”
by not having advance copies of those exhibits. Id. at 6. This Hearing Officer
OVERRULED Petitioner’s objections to those exhibits because the Hawai‛i Rules
of Evidence do not apply to these proceedings under RPPPC Rule 1-6-17(a) and
therefore, would permit their introduction by the Planning Department.9 Transcript
at 7. To address Petitioner’s claim of “unfair surprise,” this Hearing Officer
offered to continue the evidentiary portion of the hearing (“Hearing”) should she
determine additional research or preparation would be required to adequately
oppose the evidentiary value of those exhibits. Id.
7 The denial of the Planning Department’s MSJ on these grounds dispenses with the need to
address the other arguments set forth in the Memorandum In Opposition.
8 See footnote no. 6, infra.
9 Exhibits A, B, C, and E were in fact offered and admitted into evidence. See Transcript
at 55-63. However, the Planning Department did not offer Exhibit 7 into evidence. See Id.
at 1-120.
8
III. DEVELOPMENTS DURING HEARING.
During the Hearing the Planning Department also offered
Supplemental Exhibit G into evidence. Id. at 108. Exhibit G is the Planning
Department’s Investigation Report dated July 10, 2018 concerning the transient
accommodations at the Subject Property. Id. at 101-07. On January 17, 2020, the
Planning Department provided a Supplemental Exhibit List and Exhibit G to all the
parties as previously directed by this Hearing Officer. Transcript at 112.
Also during the Hearing testimony was presented that the Planning
Department did NOT receive the UIPA Request. Minutes Of Contested Case
Hearing dated August 31, 2019 (“CCH Minutes”) at 2 and Transcript at 94-96.
Therefore, upon conclusion of the Hearing Petitioner requested leave to submit
another UIPA Request (“UIPA Request II”). CCH Minutes at 2 and Transcript
at 117. At stated times, Petitioner was requested to provide Status Reports
regarding the Planning Department’s response to UIPA Request II. CCH Minutes
at 3 and Minute Order Regarding Pending Matters dated October 9, 2019 at 2-3.
Since Petitioner subsequently reported the Planning Department rejected UIPA
Request II, the Hearing was closed pursuant to RPPPC Rule 1-6-11(j) and a
briefing schedule issued for submission of Closing Arguments and/or Proposed
Findings of Fact and Conclusions of Law. Minute Order Regarding Telephone
9
Conference dated December 12, 2019 at 2-3. The requested Closing Arguments
and/or Proposed Findings of Fact and Conclusions of Law were timely received.10
IV. FINDINGS OF FACT.
A. The Parties and Subject Property.
1. Petitioner is the owner of the real property located at 4813
Ananalu Road, Hanalei, Kaua‛i, Hawai‛i 96714, TMK No. (4) 8-005:005 which is
the subject of this Contested Case (“Subject Property”). Exhibit A at 1.
2. The Subject Property is located outside any of the Visitor
Destination Areas. Transcript at 36-37 and see also Ordinance No. 436 at 1
and 8-11.
3. Petitioner has been residing at the Subject Property as her
principal residence since she purchased it in 2004. Exhibit “3” at 1 and Transcript
at 8-9. She began operating the Subject Property as a homestay from 2005
(“Homestay Operation”). Transcript at 9.
10 The issuance of this Report and Recommendation has been delayed due to the: (a) COVID-19
Pandemic; (b) Proclamation issued by the Governor of the State of Hawai‛i dated March 4, 2020,
Supplementary Proclamation dated March 16, 2020, Second Supplementary Proclamation dated
March 21, 2020 and Third Supplementary Proclamation dated March 23, 2020; and
(c) Proclamation COVID-19 [Novel Coronavirus] dated March 4, 2020 issued by the Mayor of
the City and County of Honolulu, Supplemental Proclamation Of Emergency Or Disaster
(COVID-19 [Novel Coronavirus]) dated March 18, 2020, Emergency Order No. 2020-01
(COVID-19 [Novel Coronavirus]), and Emergency Order No. 2020-02.
10
4. In 2005 Petitioner inquired with the Planning Department as to
the requirements for the Homestay Operation. Id. at 10. At that time only a State
of Hawai‛i General Excise Tax License and Transient Accommodations Tax
License were required for the Homestay Operation. Compare Id., with Ordinance
No. 935 adopted by the County of Kaua‛i County Council (“Council”) on
November 14, 2012 and codified as KCC § 8-3.2, as amended.
5. The Homestay Operation which began in 2005 continued
through the date of the Hearing. Compare Id. at 11, with 30-31.
6. The Planning Department is the governmental agency
responsible for enforcing, among other things, the provisions of the CZO set forth
in Chapter 8 of the Kaua‛i County Code. The Charter Of The County of Kaua‛i
(2018 Codified Version), Article XIV, Section 14.05.
B. Zoning Compliance Notice.
7. On January 10, 2017, Emayo began an investigation of the
Subject Property to determine its compliance with the CZO. See generally
Transcript at 54-66. He prepared an Investigation Report dated January 10, 2017
based upon his discovery that transient accommodations were being offered at the
Subject Property (“Report I”). Exhibit B.
11
8. Report I contained a printout of an Airbnb advertisement
(“Advertisement”) of a “luxury jungle retreat cottage . . . of about 1400 sq[uare]
feet of space and has two bedrooms, a living room, a full kitchen, and enclosed
lanai, a full bathroom and an outdoor shower.”11 Exhibit B at 15. There was also a
separate cottage built onto the back of the house on the ground floor that could be
rented out to other guests and identified as the “Sea Turtle Cottage.”12 Id. and see
also Exhibit G at 13-23.
9. “By matching the airbnb’s website
(https://www.airbnb.com/rooms/12622481) and pictures with Pictometry and cross
checking with Real Property Division records (Tax Classification – Vacation
Rental), [Emayo] was able to determine the Tax Map Key and Property Owner of
[that] transient accommodation operation.” Id. at 1. It was the Subject Property
owned by Petitioner. Id.
10. Petitioner and the Subject Property were not issued a
Non-Conforming Use Certificate or applicable permit to conduct this transient
accommodation outside a Visitor Destination Area and therefore, was in violation
of KCC §§ 8-17.8 and 8-18.1(b). Exhibit B at 2.
11 The Advertisement also indicated the “luxury jungle retreat cottage” would be available to
rent because Petitioner lives in a separate studio on the property. Exhibit B at 15.
12
11. By letter stamp-dated January 11, 2017 entitled “ZONING
COMPLIANCE NOTICE”, the Planning Department advised Petitioner its
investigation revealed the Subject Property was being used “for Transient
Accommodation outside the designated Visitor Designation Area [and
therefore,] constitutes a violation.” Exhibit C at 1. The ordinances cited were
KCC § 8-18.1(b) related to homestay operations, and § 8-17.8 for Transient
Vacation Rentals.13 Id.
12. The Zoning Compliance Notice further directed Petitioner to
immediately “[c]ease and desist the use of the [S]ubject [P]roperty as a Transient
Accommodation(s) . . . [and] Cancel all Transient Accommodations commitments
for the property.” Id. at 2. Petitioner’s failure to comply with this directive “may
result in a fine up to $10,000.00 and/or up to $10,000.00 per day, should the
violation(s) persist.” Id.
12 It is unclear from the evidence introduced at the Hearing whether the “Sea Turtle Cottage” is
the separate studio Petitioner lives in and referenced in the Advertisement. See footnote 11,
infra.
13 A “Transient Vacation Rental” or “TVR” is defined as “a dwelling unit which is provided to
transient occupants for compensation or fees, including club fees, or as part of interval
ownership involving persons unrelated by blood, with a duration of occupancy of one hundred
eighty (180) days or less.” Id. (emphasis added). Apparently this violation was also included in
the Zoning Compliance Notice because the Advertisement noted the “entire portion of the main
house [(i.e. the luxury jungle retreat cottage) would be available to rent because Petitioner] . .
lives in a separate studio on the property . . .” Compare Exhibit B at 15, with Transcript at 75.
13
13. The Zoning Compliance Notice was addressed to Petitioner at
104 Endlich Dr., Santa Cruz, CA 95060. Id. This was also the mailing address of
Petitioner as of January 10, 2017 according to the records of the Real Property
Assessment Division of the County of Kaua‛i. Exhibit B at 4 and Transcript at 74.
14. Petitioner acknowledged receipt of the Zoning Compliance
Notice on April 1, 2017 when a person came to the Subject Property and
personally served her with it. Transcript at 12-13.
15. At the request of Petitioner, on April 12, 2017 she met with
Emayo and Ms. Britni Ludington-Braun (“Ludington-Braun”) to discuss her
response to the Zoning Compliance Notice (“Meeting”). Transcript at 78.
According to Emayo, to remedy the violation Petitioner could either: (a) submit a
written remedial action plan; (2) remove the internet advertisement for the
homestay rental of the Subject Property; and/or (3) “work with the Planning
Department to rectify the violation.” Transcript at 79.
16. Following the Meeting, Petitioner submitted a letter dated
April 13, 2017 to the Planning Department stating her belief is that she “have (sic)
not, and have (sic) never, been in violation of any of the older county ordinances.”
Exhibit E at 12. Petitioner was of that opinion because she assumed the Homestay
Operation at the Subject Property was “grandfathered” from the prohibition of
homestays outside of VDAs pursuant to Ordinance No. 1002 adopted by the
14
Council on May 18, 2016 (“Ordinance No. 1002”). See Transcript at 14 and 79.
Nonetheless, in her own words she further stated “I wish to assure you I am, and
will, make every attempt possible to assure I am in compliance with ordinances
that apply to me and my home here in Kauai.” Id.
C. Notice of Violation.
17. On May 16, 2017 Emayo conducted a follow-up investigation
to determine whether Petitioner ceased the Homestay Operation at the Subject
Property and cancelled all future bookings (“Report II”). Exhibit E. Emayo found
website advertisements continuing to offer the Subject Property as a Transient
Accommodation. Id. at 4-6. There were also two (2) reviews of guests staying at
the Subject Property in April 2017. Id. at 7.
18. Based upon Report II, Emayo prepared the Notice of Violation
reminding Petitioner that the Zoning Compliance Notice required her to “Cease
and Desist the use of the [S]ubject [P]roperty for transient accommodations [and
cancel all future commitments for such use].” Exhibit D at 1. The Notice of
Violation also referenced the Meeting and confirmed “the continued transient
accommodation operation (Homestay) use at the [S]ubject [P]roperty is a violation
15
of the Comprehensive Zoning Code, Chapter 8, Kaua‛i County Code, 1987, as
Amended”.14 Id.
19. Due to Petitioner’s refusal to comply with the Zoning
Compliance Notice and instructions at the Meeting, Petitioner was “ordered to
pay a fine of ten thousand dollars ($10,000.00) for the above noted violations
to the Planning Department”. Id. at 2 (emphasis in original). If those violations
were not remedied within 14 days of the Notice of Violation, “[a]n additional fine
of $10,000.00 per violation, per day, for each day in which such violation
persists shall be levied.” Id. at 3 (emphasis in original).
D. Appeal Of Notice of Violation.
20. By letter dated June 9, 2017 Counsel for Petitioner appealed the
Notice of Violation to the Kaua‛i Planning Commission (“Commission”) pursuant
to RPPPC Chapter 9 on two (2) grounds. See Notice of Appeal. First, Petitioner
argued “[u]pon implementation of the Homestay Ordinance [(i.e. Ordinance
No. 1002 codified as KCC § 8-18.1)], [her] business became a vested,
non-conforming use. Thus, she is not subject to Sec. 8-18.1 of the CZO, or subject
to the associated fines.” Notice of Appeal at 2. Second, “the Director [of the
14 Unlike the Zoning Compliance Notice, the Notice of Violation only referenced the Homestay
Operation because the Planning Department “had no evidence of continued use [of the Subject
Property as also a Transient Vacation Rental].” Transcript at 87.
16
Planning Department] acted erroneously, arbitrarily, and manifestly abused his
discretion when he ignored [Petitioner’s] valid concerns about the applicability [of
the] Homestay Ordinance to her business and issued the [Notice of Violation].” Id.
E. Relevant Authorities and
Pertinent Legislative History.
21. Haw. Rev. Stat. § 46-4(a) provides in pertinent part:
(a) This section and any ordinance, rule, or regulation adopted in
accordance with this section shall apply to lands not contained within
the forest reserve boundaries as established on January 31, 1957, or as
subsequently amended.
Zoning in all counties shall be accomplished within the framework
of a long-range, comprehensive general plan prepared or being
prepared to guide the overall future development of the county.
Zoning shall be one of the tools available to the county to put the
general plan into effect in an orderly manner. Zoning in the counties
of Hawaii, Maui, and Kauai means the establishment of districts of
such number, shape, and area, and the adoption of regulations for each
district to carry out the purposes of this section. In establishing or
regulating the districts, full consideration shall be given to all
available data as to soil classification and physical use capabilities of
the land to allow and encourage the most beneficial use of the land
consonant with good zoning practices. The zoning power granted
herein shall be exercised by ordinance which may relate to:
. . .
(2) The areas in which residential uses may be regulated or
prohibited;
17
. . .
(4) The areas in which particular uses may be subjected to
special restrictions;
. . .
(12) Other regulations the boards or city council find
necessary and proper to permit and encourage the orderly
development of land resources within their jurisdictions.
The council of any county shall prescribe rules, regulations, and
administrative procedures and provide personnel it finds
necessary to enforce this section and any ordinance enacted in
accordance with this section. The ordinances may be enforced by
appropriate fines and penalties, civil or criminal, or by court order at
the suit of the county or the owner or owners of real estate directly
affected by the ordinances.
. . .
The powers granted herein shall be liberally construed in favor of
the county exercising them, and in such a manner as to promote
the orderly development of each county or city and county in
accordance with a long-range, comprehensive general plan to
ensure the greatest benefit for the State as a whole. This section
shall not be construed to limit or repeal any powers of any county
to achieve these ends through zoning and building regulations,
except insofar as forest and water reserve zones are concerned and as
provided in subsections (c) and (d). [(This paragraph shall hereafter be
referred to as the “Liberal Construction Provision”.)]
Neither this section nor any ordinance enacted pursuant to this section
shall prohibit the continued lawful use of any building or premises for
any trade, industrial, residential, agricultural, or other purpose for
which the building or premises is used at the time this section or the
18
ordinance takes effect; provided that a zoning ordinance may
provide for elimination of nonconforming uses as the uses are
discontinued, or for the amortization or phasing out of
nonconforming uses or signs over a reasonable period of time in
commercial, industrial, resort, and apartment zoned areas only. In no
event shall such amortization or phasing out of nonconforming
uses apply to any existing building or premises used for
residential (single-family or duplex) or agricultural uses. Nothing
in this section shall affect or impair the powers and duties of the
director of transportation as set forth in chapter 262. [(This paragraph
shall hereafter be referred to as the “Continued Lawful Use
Provision”.)]
(emphasis added).
21. KCC § 8-17.8 adopted by the Council on February 20, 2008 as
part of Ordinance No. 864 provided in pertinent part:
Sec. 8-17.8 Single Family Transient Vacation Rentals.
(a) Notwithstanding any underlying zoning designation and with
the exception of properties on the National or State Register of Historic
Places, single-family transient vacation rentals are prohibited in all
areas not designated as Visitor Destination Areas.
(second emphasis added).
22. KCC § 8-17.10 also adopted by the Council as part of
Ordinance No. 864 provided in pertinent part:
Sec. 8-17.10 Nonconforming Use Certificates for Single-Family
Vacation Rentals.
(a) The purpose of this section is to provide a process to
identify and register those single-family transient vacation rentals as
nonconforming uses which have been in lawful use prior to the
19
effective date of this ordinance and to allow them to continue subject
to obtaining a nonconforming use certificate as provided by this
section.
(b) The owner, operator or proprietor of any single-
family transient vacation rental which is operating outside of a
Visitor Destination Area on the effective date of this ordinance
shall by March 30, 2009, obtain a nonconforming use certificate
for single family vacation rentals.
. . .
(f) Failure to apply for a nonconforming use certificate
by October 15, 2008 or failure to obtain a nonconforming use
certificate by March 30, 2009, shall mean that the alleged
nonconforming use is not a bona fide nonconforming use, and it
shall be treated as an unlawful use, unless the applicant
demonstrates to the satisfaction of the Planning Commission that the
alleged vacation rental use meets the criteria under Section 8-17.10(c)
and (d). The Planning Director shall prepare an application form
which shall be available to the public by March 30, 2008.
(emphasis added, except for “Sec. 8-17.10 Nonconforming Use
Certificates for Single-Family Vacation Rentals.”).
23. The intent of the Council in adopting Ordinance No. 864 was,
in pertinent part, as follows:
SECTION 1. Findings and Purpose.
The Council of the County of Kaua'i finds that there is a
compelling need to regulate single-family transient vacation
rentals on Kaua'i. Single-family transient vacation rentals are
occurring at a greater rate and inflicting a larger impact on the
community of Kaua'i than was ever anticipated in the County's
original Comprehensive Zoning Ordinance. While this type of visitor
unit could be compatible with the character and nature of Kaua'i and
while it has certain positive advantages to the community and is
desirable in terms of offering a mix of accommodations to the visitor,
20
the uncontrolled proliferation of vacation rentals in residential
and other areas outside the Visitor Destination Areas (VDAs) is
causing significant negative impacts to certain residential
neighborhoods, foreshadowing similar potential impacts on other
areas of the island[.]
The County General Plan, updated in the year 2000, recognizes
this need by its policy for "Alternative Visitor Accommodations,"
which reads as follows:
"4.2.8.2 Alternative Visitor Accommodations
(a) The County of Kaua'i shall recognize alternative visitor
accommodations, such as B&Bs, vacation rentals, inns, cabins, and
retreat centers.
(b) The County shall enact clear standards and permit processes
for regulating alternative visitor accommodation structures and
operations in Residential, Agriculture, Open, and Resort zoning
districts.
. . .
Census data shows that seasonal rentals account for 45% of the
new housing units built on Kaua'i between 1990 and 2000, a greater
percentage than housing built for long-term renters (14%) or for
owner-occupied use (36%). Since 2000, out of the 2,050 new
residential units, 1,070 have been built for the seasonal homes market
and less than half have been for local families to rent (46) or own
(936). The potential for vacation rental use increases the value
and thus the selling price and investment rating of property on
Kaua'i, which increases prices and adds another potential layer of
speculation in the real estate market. This also means that the
limited available infrastructure and resources on Kaua'i,
including roads, water, sewer capacity, building materials, and
contractor time are being used primarily for expensive second or
third homes rather than the primary home needs of local
residents.
In oceanfront or other places of premium real estate value,
second and third homes and vacation rentals (often one and the
21
same) are displacing traditional neighborhoods where people of
low and moderate income have been able to live in the past.
Besides contributing to a lack of affordable housing in the
community, this is changing the social character of neighborhoods
where neighbors used to know each other. This has tended to
make these neighborhoods more vulnerable to crime. While
regulating single-family vacation rentals will not guarantee more
affordable housing, it will dampen speculation and bring a halt to
uncontrolled growth and cumulative impacts of vacation rentals
which have affected the traditional neighborhoods of 'Anini and
Ha'ena, and which could or are beginning to also affect
neighborhoods such as Waimea Valley, Kekaha, and the makai
side of Kapa'a Town.
. . .
The purpose of this bill is to restore a balance between
primary residences and single-family transient vacation rentals
by: 1) requiring registration of vacation rentals or nonconforming
use certificates and setting standards for all vacation rentals, 2)
explicitly prohibiting new single-family vacation rentals outside
visitor destination areas (multi-family vacation rentals are
already so prohibited), and 3) identifying and allowing
nonconforming uses where single-family vacation rentals have
been operating lawfully prior to approval of this bill.
(emphasis added).
24. With respect to Homestays, Ordinance No. 864 indicated that:
This bill does not apply to a bed and breakfast unit
(“Homestay”). It is the intention of the Council to address these
units as a separate matter after establishing a regulatory
framework for single-family transient vacation rentals.
Homestays are presently regulated through the use permit process
[pursuant to KCC § 8-3.2].
(emphasis added).
22
25. As indicated by the Council, Ordinance No. 1002 was
adopted on May 18, 2016 to address regulation of Homestays, and provided
in pertinent part:
SECTION 1. Findings and Purpose: The Council finds the
2000 Kaua‛i General Plan recognized the need “to develop a clear
policy regarding B&Bs and vacation rentals” The General Plan
recommended an implementing action to amend the CZO to facilitate
the permitting of existing, nonconforming alternative visitor
accommodations. The Council complied with the policy of the
General Plan and grandfathered existing single-family transient
vacation rentals (SFTVRs) that registered and met the prior use
requirements established in Article 17 of the CZO.
. . .
Although the Council bifurcated the issues of homestays and
SFTVRs, it is now appropriate to adopt a clear and specific
standard and review parameters under which homestay
applications can be processed.
The purpose of this bill is to restrict homestay operations to
the Visitor Destination Areas (VDAs) and to establish additional
standards under which homestays operate.
Sec. 8-18.1 General Provisions for Homestays.
(a) A homestay operation shall operate under the following
regulations:
(1) Transient accommodations are provided for visitors for
twenty-nine (29) days or less;
(2) Homestays shall be limited to no more than three (3)
guest rooms per homestay operation;
(3) During homestay operations, the owner(s) benefiting
under Sec. 5A-11 of this Code for a homeowner’s exemption for the
homestay site must be physically within the County of Kaua‘i,
23
residing at the homestay operation site, and physically available for
the needs and concerns of their respective homestay guests; and
(4) No other individual or designated representative may act
on the owner(s) behalf to meet the requirements of Sec 8-18.1(a)(3).
(b) Homestay operations are prohibited outside of the Visitor
Destination Area (VDA).
(emphasis added, except for “Sec. 8-18.1 General Provisions for
Homestays.”).
26. Visitor Destination Areas were first established by Ordinance
No. 436 adopted by the Council on September 7, 1982 and provided in pertinent
part, as follows:
SECTION 1. Findings and Purpose. Pursuant to the authority
of Act 186, Session Laws of Hawaii, 1980, the County Council enacts
this ordinance for the purpose of designating locations, referred to as
“Visitor Destination Areas”, in which transient vacation rentals, time
share units and time share plans are allowed. These Visitor
Destination Areas include lands in Poipu, Lihue, Wailua-Kapaa and
Princeville and are delineated on Visitor Destination Area Maps
incorporated as part of this ordinance.
(emphasis added).
27. KCC § 8-13.2 adopted by the Council on November 14, 2012
as part of Ordinance No. 935 in its effort to update the CZO by focusing on, as a
first step, the organizational and format changes, provides in pertinent part:
(a) A nonconforming use of land, buildings, or other
structures may continue to the extent that the use existed on
September 1, 1972 or any amendment hereto, as provided in this
Section, provided that the Planning Commission may, after hearing,
24
order the termination of a nonconforming use that creates substantial
danger to public health or safety.
(b) If any nonconforming use ceases for any reason for
continuous period of twelve (12) calendar months or for one (1)
season if the use be seasonal, then the use shall not be resumed and
any use of the land or building thereafter shall be in full conformity
with the provisions of this Chapter.
(emphasis added).
28. Enforcement authority, and penalties, of the above
Ordinances are set forth in three (3) separate Sections of the Kaua‛i County
Code. They are in pertinent part:
Sec. 8-3.5 Enforcement, Legal Procedures and Penalties.
(a) Enforcement, Legal Procedures and Penalties.
. . .
(2) It shall be the duty of the Planning Commission and
Planning Director to enforce the provisions of this Chapter and it shall
be the duty of all law enforcement officers of the County of Kaua‘i to
enforce this Chapter and all the provisions thereof.
. . .
(b) Civil Fines.
(1) If the Director of the Planning Department determines
that any person, firm or corporation is not complying with a notice of
violation, the Director may have the party responsible for the violation
served, by mail or delivery, or by posting of the property which
address is the most current address reflected in the Real Property tax
records, or by publishing such notice in a newspaper of general
circulation in the County of Kaua‘i should previous notification
25
efforts not be accepted, with an order pursuant to this Section. The
order may require the party responsible for the violation to do
any or all of the following: (A) correct the violation within the
time specified in the order; (B) pay a civil fine not to exceed ten
thousand dollars ($10,000.00) in the manner, at the place, and
before the date specified in the order; (C) pay a civil fine up to ten
thousand dollars ($10,000.00) per day for each day in which the
violation persists, in the manner and at the time and place
specified in the order. All civil fines shall be deposited to the
Planning Enforcement Account within Fund 251.
(2) The order shall advise the party responsible for the
violation that the order shall become final thirty (30) calendar
days after the date of its delivery or posting on the property, or
publishing of such notice in a newspaper of general circulation in
the County of Kauai. The order shall also advise that the Director’s
action may be appealed to the Planning Commission.
(3) The provisions of the order issued by the Director under
this Section shall become final thirty (30) calendar days after the
service or posting on the property, or publishing of such notice in a
newspaper of general circulation in the County of Kaua‘i, of the order.
The parties responsible for the violation may appeal the order to the
Planning Commission pursuant to its rules. The form of this appeal
must conform to the Planning Commission’s rules. However, an
appeal to the Planning Commission shall not stay any provision of the
order.
(emphasis added, except for “Sec. 8-3.5 Enforcement, Legal Procedures and
Penalties.”)
Sec. 8-17.6 Penalty.
An owner of any unit which is operated in violation of this Article, and/or
any other person, firm, company, association, partnership or corporation
violating any provision of this Article, shall each be fined not less than five
hundred dollars ($500.00) nor more than ten thousand dollars
($10,000.00) for each offense. This civil fine may be in addition to any
criminal fines. If any person fails to cease such violation within one (1)
26
month, such person shall be subject to a new and separate violation for
each day the violation continues to exist.
(emphasis added, except for “Sec. 8-17.6 Penalty.”).
Sec. 8-17.11 Enforcement Against Illegal Transient Vacation
Rentals.
a) In addition to other penalties provided by law, including, but
not limited to, Secs. 8-3.5(a) and 8-17.6, the Planning Commission Rules, as
amended, the Planning Director, or any member of the public who has duly
obtained standing pursuant to rules promulgated by the commission, may
initiate proceedings to revoke or modify the terms of a Nonconforming Use
Certificate pursuant to the Rules of Practice and Procedures of the Planning
Commission, as amended. Violations of conditions of approval or providing
false or misleading information on the application or in any information
relating thereto at any time during the application process shall be grounds
for revocation or cease and desist orders.
(b) Advertising of any sort which offers a property as a
transient vacation rental shall constitute prima facie evidence of the
operation of a transient vacation rental on said property and the burden
of proof shall be on the owner, operator, or lessee to establish that the
subject property is not being used as a transient vacation rental or that
it is being used for such purpose legally. If any unit is found to be
operating unlawfully, penalties established in Secs. 8-3.5(a) and 8-17.6
shall apply.
(emphasis added, except for “Sec. 8-17.11 Enforcement Against Illegal
Transient Vacation Rentals.”).
29. If any Finding of Fact herein should be designated as a
Conclusion of Law, the same shall be deemed to have been identified as such.
/ /
/ /
27
V. CONCLUSIONS OF LAW.
A. Principles of Statutory Construction.
1. “Courts are bound to give effect to all parts of a statute, and that
no clause, sentence, or word shall be construed as superfluous, void, or
insignificant if a construction can be legitimately found which will give force to
and preserve all words of the statute.” Robert D. Ferris Trust v. Planning Com’n
of County of Kauai, 138 Hawai‛i 307, 310, 378 P.3d 1023, 1026 (2016) quoting
State v. Kaakimaka, 84 Hawai‛i 280, 289-90, 933 P.2d 617, 626-67 (1997).
2. “The general rule is that repeals by implication are not favored
and that if effect can reasonably be given to two statutes, it is proper to presume
that the earlier statute is to remain in force and the later statute did not repeal it.”
Reefshare, Ltd. v. Nagata, 70 Hawai‛i 93, 97, 762 P.2d 169, 172 (1988) quoting
State v. Pacariem, 67 Hawai‛i 46, 48, 677 P.2d 463, 465 (1984).
3. “[W]here there is a plainly irreconcilable conflict between a
general and specific statute concerning the same subject matter, the specific will be
favored. However, where the statutes simply overlap in their application, effect
will be given to both if possible, as repeal by implication is disfavored.” Mahiai v.
Suwa, 69 Hawai‛i 349, 356-57, 742 P.2d 359, 366 (1987) (internal quotation marks
and citations omitted).
28
4. Another “cardinal rule of statutory construction is that [the
courts] must ascertain and give effect to the intention of the legislature, and [they]
must read statutory language in the context of the entire statute and construe it in a
manner consistent with its purpose.” Roaring Lion, LLC v. Exclusive Resorts
PBL 1, LLC, 2013 WL 1759002 at 10 (Haw. Ct. App. 2013) citing Haole v. State,
111 Hawai‛i 144, 149, 140 P.3d 377, 382 (2006).
5. “Laws in pari materia, or upon the same subject matter, shall
be construed with reference to each other. What is clear in one statute may be
called upon in aid to explain what is doubtful in another.” In the Interest of CM,
141 Hawai‛i 348, 353, 409 P.3d 752, 757 (2017) quoting State v. Young,
107 Hawai‛i 36, 39-40, 109 P.3d 677, 680-81 (2005) (citations, internal quotations
marks, brackets, and ellipses omitted; format changed).
6. In addition to all these rules of statutory construction, statutes
and ordinances must be interpreted, if possible, to avoid violating constitutional
provisions. Ferris Trust¸ 138 Hawai‛i at 314, 378 P.3d at 1029 citing Life of the
Land, Inc. v. West Beach Dev. Corp., 63 Hawai‛i 529, 531, 631 P.2d 588, 590
(1981).
7. “When interpreting county charters, municipal ordinances, and
administrative rules, the general principles of statutory construction apply.” Ferris
29
Trust, 138 Hawai‛i at 310, 378 P.3d at 1026 quoting Kellberg v. Yuen,
131 Hawai‛i 513, 527, 319 P.3d 432, 446 (2014) (brackets omitted).
8. “It is a well established rule of statutory construction that,
where an administrative agency is charged with the responsibility of carrying out
the mandate of a statute which contains words of broad and indefinite meaning,
courts accord persuasive weight to administrative construction and follow the
same, unless the construction is palpably erroneous.” Hyatt Corp. v. Honolulu
Liquor Com’n, 69 Hawai‛i 238, 242-43, 738 P.2d 1205, 1208 (1987) (brackets
omitted).
9. “Zoning laws, whether statutes or ordinances, inasmuch as they
curtail and limit uses of real estate and are in derogation of the common law must
be given strict construction and the provisions thereof may not be extended by
implication. Nevertheless, they should be read according to the natural and most
obvious import of the language when there is no manifest legislative intent
contrarywise.” Ferris Trust¸ 138 Hawai‛i at 311, 378 P.3d at 1027 quoting Maui
Cty. v. Puamana Mgmt. Corp., 2 Haw.App. 352, 356, 631 P.2d 1215, 1218 (1981)
(ellipsis omitted).
/ /
/ /
30
B. Interpretation and Application of Haw. Rev. Stat.
§ 46-4(a) and KCC § 8-13.2 to KCC § 8-18.1(b).
10. Petitioner first argues the Homestay Operation is a “Lawful
Nonconforming Use” permitting her to continue that use notwithstanding the
Subject Property is located outside of a Visitor Destination Area in violation of
KCC § 8-18.1(b) (“Lawful Nonconforming Use Argument”). See Petitioner’s
Closing Arguments; Proposed Hearing Officer Report And Recommendation dated
January 15, 2020 (“Petitioner’s Proposed R&R”) at 5-6.15 In support of the Lawful
Nonconforming Use Argument Petitioner relies upon Haw. Rev. Stat. § 46-4(a) and
KCC § 8-13.2(a). Id., ¶¶8-11. Additionally, Petitioner cites “the Fifth Amendment
of the United States Constitution and Article I, § 5 of the Hawaii Constitution
[because they] both provide that no person shall be deprived of property without
due process of law, nor have property rights taken or damaged without
compensation.” Id. at 6, ¶12 citing Waikiki Marketplace Inv. Co. v. Chair of
Zoning Bd. Of Appeals, 86 Hawai‛i 343, 353, 949 P.2d 183, 193 (Haw.Ct.App.
1997).
11. The Planning Department counters that the Lawful Continued
Use Argument is inapplicable on five (5) grounds. Respondent Planning
15 Although Petitioner’s Proposed R&R does not contain any page numbers, references to the
same is based upon the number of the page following the first (1st) page of that document.
31
Department Of The County Of Kauai’s Closing Arguments; Proposed Findings Of
Facts And Conclusions O Law dated January 31, 2020 (“Planning Department’s
Proposed R&R”) at 20-24, ¶¶25-43. Those five (5) grounds are:
a. First, Haw. Rev. Stat. § 46-4(a) grant of authority to the
counties “shall be liberally construed” and therefore, that statute may
not usurp the zoning ordinances promulgated thereby;16
b. Second, Petitioner admitted to discontinuing the
Homestay Operation from April 2018 to June 2019 and therefore, has
abandoned that use prohibiting her from resuming it under KCC
§ 8-13.2(b);17
c. Third, the Homestay Operation is not continuous
“because [Petitioner] was, at least sometimes, renting a dwelling that
she did not reside in”;18
d. Fourth, even if the Homestay Operation was not
abandoned or discontinued, the same “would not have been ‘lawful’
16 Planning Department’s Proposed R&R at 20-22, ¶¶25-33.
17 Id. at 21, ¶30.
18 Id. at 22, ¶34. Such use would deem the Subject Property to be a “Transient Vacation Rental”
in violation of KCC § 8-17.8(a).
32
because Petitioner admittedly did not have a use permit as required by
KCC Section 8-3.2(b)”;19 and
e. Finally, the “powers of the Hearing Officer originate
from the Planning Commission, and the Planning Commission does
not have authority to recognize Petitioner’s prior homestay use as a
lawful nonconforming use, nor can the Planning Commission
disregard the prohibition contained in KCC § 8-18.1(b).”20
12. Principles of statutory construction resolves the issue whether
Haw. Rev. Stat. § 46-4(a) and KCC § 8-13.2(a) permit Petitioner to continue the
Homestay Operation after passage of KCC § 18-18.1 in 2016.
13. Haw. Rev. Stat. § 46-4(a) and KCC § 8-13.2 are general in
nature because they address all types of nonconforming uses, but KCC § 8-18.1(b)
deals only with homestays outside of Visitor Destination Areas. Therefore, the
specific provisions of KCC § 8-18.1(b) is favored with respect to homestays over
Haw. Rev. Stat. § 46-4(a) and KCC § 8-13.2(a) which govern all other
nonconforming uses. See Mahiai, 69 Hawai‛i at 356-57, 742 P.2d at 366 (A
general rule of statutory construction is that the specific statute will be favored
over a general statute of the same subject matter, but both may be given effect if
19 Id. at 22-24, ¶¶38-42.
20 Id. at 24, ¶43.
33
possible because repeal by implication is disfavored.), Reefshare, Ltd., 70 Hawai‛i
at 97, 762 P.2d at 172 (“The general rule is that repeals by implication are not
favored and that if effect can reasonably be given to two statutes, it is proper to
presume that the earlier statute is to remain in force and the later statute did not
repeal it.”) and In the Interest of CM, 141 Hawai‛i at 353, 409 P.3d at 757 (“Laws
in pari materia, or upon the same subject matter, shall be construed with reference
to each other. What is clear in one statute may be called upon in aid to explain
what is doubtful in another.”).
14. KCC § 8-13.2(a) also provides a nonconforming use “may
continue to the extent that the use existed on September 1, 1972”. (emphasis
added). However, if that “nonconforming use ceases for any reason for a
continuous period of twelve (12) calendar months or for one (1) season if the use is
seasonal, then the use shall not be resumed” (Discontinuance Requirement”). Id.
at § 8-13.2(b) (emphasis added). Therefore, continuation of that use is
discretionary,21 but once that nonconforming use ceases for twelve (12)
21 “The term ‘may’ is generally construed to render optional, permissive, or discretionary the
provision in which it is embodied”. State v. Kahawai, 103 Hawai‛i 464, 465, 83 P.3d 725, 728
(2004) (emphasis added).
34
consecutive calendar months or one (1) season if this use is seasonal, it is
mandatory that this nonconforming use shall not be resumed. 22 Id.
15. Petitioner admitted not having any rentals from April 2018 until
June 2019. Transcript at 19. Therefore, the Homestay Operation ceased for a
continuous period of at least twelve (12) calendar months prohibiting that
nonconforming use from resuming. KCC § 8-13.2(b).23
16. Haw. Rev. Stat. § 46-4(a) and KCC § 8-13.2 do not prevent the
enforcement of KCC § 8-18.1(b) with respect to the Homestay Operation at the
Subject Property because they both apply to all types of nonconforming uses, but
KCC § 8-18.1(b) specifically governs homestays prohibited outside of Visitor
Destination Areas. Alternatively, the Homestay Operation was discontinued for at
22 “As used in statutes, contracts, or the like, this word [(i.e. shall)] is generally imperative or
mandatory.” Leslie v. Board of Appeals of County of Hawaii, 109 Hawai‛i 384, 394,
126 P.3d 1071, 1081 (2006) quoting Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis
added).
23 Enforcement of this Discontinuance Requirement appears to have been suspended during the
relevant period of time pursuant to the Proclamation of April 15, 2018 by the Governor of the
State of Hawai‛i, and all Supplementary Proclamations issued thereafter as a result thereof,
related to the disaster occurrence of heavy rains and flooding beginning April 14, 2018 that
caused extensive damage to private and public property impacting the County of Kauai
(“April 2018 Flooding”), and Emergency Proclamation of April 14, 2018 by the Mayor for the
County of Kauai, and all Supplementary Emergency Proclamations issued thereafter as a result
thereof, related to the April 2018 Flooding, However, this argument is waived because it was
not raised in Petitioner’s Reply To Respondent Planning Department Of The County Of Kauai’s
Closing Arguments And Proposed Findings Of Fact And Conclusions Of Law dated February 7,
2020. See generally State v. Moses, 102 Hawai‛i 449, 456, 77 P.3d 940, 947 (2003) (“[I]f a party
does not raise an argument at trial, that argument will be deemed to have been waived on appeal;
this rule applies in both criminal and civil cases.”).
35
least twelve (12) consecutive months and therefore, cannot be resumed under KCC
§ 13.2(b).24
C. Proper Notice Given By The Notice of Violation.
17. Petitioner next argues the Notice of Violation is defective
because it does not set forth the specific facts to support a violation of KCC
§ 8-18.1(b). See generally Petitioner’s Proposed R&R at 7-8, ¶¶16-25.
Therefore, the Notice of Violation infringes upon Petitioner’s procedural and
substantive due process rights. Id.
18. The Planning Department responds that procedural due
process only requires that Petitioner is provided with “notice and an
opportunity to be heard.” Planning Department’s Proposed R&R at 25, ¶49
citing Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan,
87 Hawai‛i 217, 243, 953 P.2d 1315, 1341 (1998). This Contested Case and
the Hearing has provided Petitioner with that notice and opportunity to be
heard. Id.
19. The provisions of RPPPC Chapter 6 affords Petitioner
adequate notice and the opportunity to present the grounds advanced in her
Notice of Appeal. Moreover, KCC § 8-17.11(b) provides that the
24 Petitioner’s “grandfather” argument is dispensed with under both alternatives of this
36
Advertisement of the Subject Property as a Homestay and/or Transient
Vacation Rental “shall constitute prima facie evidence of the operation of a
transient vacation rental [and/or homestay rental] on said property and the
burden of proof shall be on the owner . . . to establish that the subject
property is not being used as a transient vacation rental [and/or
homestay rental] or that it is being used for such purpose legally.”
(emphasis added). Therefore, an “actual violation” to commence
enforcement action need not be established, but the ultimate burden of proof
always remains with the Planning Department. See generally Adams v.
CDM Media USA, Inc., 135 Hawai‛i 1, 43, 346 P.3d 70, 111 (2015) (Once a
prima facie case has been established, the burden of producing evidence
shifts to the other party, but the burden of proof always remains with the first
party).
20. Substantive due process guards against “the
government’s action [being] clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general welfare.
Petitioner’s Proposed R&R at 7, ¶20 citing In re Herrick, 82 Hawai‛i 329,
349, 922 P.2d 942, 962 (1996). Such action may be clearly arbitrary and
unreasonable if the government’s action is not supported by credible
Conclusion of Law No. 16.
37
evidence of a sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” Id. citing Dao v. Zoning Board
of Appeals, 144 Hawai‛i 28, 44, 434 P.3d 1223, 1239 (Haw.Ct.App. 2019).
21. The Planning Department presented reliable, probative,
and substantial evidence that the Homestay Operation was being conducted
at the Subject Property. First, the Advertisement is “prima facie” evidence
of the Homestay Operation at the Subject Property. Compare Exhibit B
at 11-18, with KCC § 8-17.11(b). Second, Petitioner admitted at the
Meeting she was conducting the Homestay Operation at the Subject Property
since 2005. Transcript at 11 and 30-31. Third, the Homestay Operation at
the Subject Property continued after the Meeting. Transcript at 30-31 and
Exhibit G at 13-23.
22. Further, enforcement of KCC § 8-18.1(b) has a
substantial relation to the public health, safety, morals, or general welfare of
the resident of Kaua‛i as articulated in Ordinance No. 864.25
25 See Finding of Fact No. 23, infra. The Findings and Purpose of Ordinance No. 864 applies
with equal force to Ordinance No. 1002 and KCC § 8-18.1 because the Council concluded
Homestays would be addressed at a later time, but the need to do so was already articulated in
Ordinance No. 864.
38
23. The Notice of Violation, RPPPC Chapter 6, and KCC
§ 8-18.1(b), satisfy Petitioner’s due process rights, both procedurally and
substantively.
D. The Notice of Violation’s Compliance With KCC § 8-3.5.
24. Petitioner next argues the Notice of Violation does not comport
with the requirements of KCC § 8-3.5 because the “Notice of Violation and Order
to Pay Fines [is] in one letter.” Petitioner’s Proposed R&R at 9, ¶27. Instead,
“under the CZO[,] the Planning Department must first give notice of a finding of a
violation and then if the violation is not cured enter an order, which may require
the payment of a fine.” Id. at ¶28.
25. The Planning Department explains that the Zoning Compliance
Notice is the “notice of violation” contemplated by KCC § 8-3.5(b)(1) and the
Notice of Violation contains the “order [to pay fines] pursuant to this Section.”
See generally Transcript at 43-46, and Compare with KCC § 8-3.5(b)1). See also
Hyatt Corp., 69 Hawai‛i at 242-43, 738 P.2d at 1208 (“It is a well established rule
of statutory construction that, where an administrative agency is charged with the
responsibility of carrying out the mandate of a statute which contains words of
broad and indefinite meaning, courts accord persuasive weight to administrative
39
construction and follow the same, unless the construction is palpably erroneous.”)
(brackets omitted).
26. The language of the Zoning Compliance Notice comports with
the “notice of violation” contemplated by KCC § 8-3.5(b)(1) because it sets forth
the Ordinances deemed to have been violated, advises Petitioner she has fourteen
(14) days to terminate the unauthorized “vacation rental operation”, and instructs
her to notify the Planning Department of that termination within the stated time
period. Exhibit C attached to Planning Department’s MSJ. Failure to do so within
those fourteen (14) days would result in enforcement action subjecting her to “a
fine of up to $10,000.00 and/or up to $10,000.00 per day, should the violation(s)
persist.” Id. at 2.
27. The Notice of Violation also comports with KCC § 8-3.5(b)(1)
as the “order” to the extent it directs Petitioner to: (a) correct the violation within
fourteen (14) days of the date of that “order”; (b) pay a civil fine of $10,000.00 to
the Planning Department for that violation within 14 days of the date of the date of
that “order”; and (c) pay a civil fine of $10,000.00 per day or each day after the
aforesaid fourteen (14) days if the violation is not remedied within that time period.
Exhibit D at 2-3.
28. Although the text of KCC § 8-3.5(b) is included in the Notice
of Violation, it did not separately advise Petitioner that this “order shall become
40
final thirty (30) calendar days after the date of its delivery” as required by KCC
§ 8-3.5(b)(2).26 Compare Exhibit D at 1-3, with KCC § 8-3.5(b)(2).
29. Since the Notice of Violation did not notify Petitioner that this
order shall become final thirty (30) days after the date of delivery as mandated by
KCC § 8-3.5(b)(2), the Planning Department may not impose the civil fine of
$10,000.00, nor $10,000.00 per day for each day the Homestay Operation
continues at the Subject Property.27
E. Constitutional Grounds Advanced By Petitioner.
30. Petitioner finally argues the continued nonconforming use of
the Subject Property as a homestay operation is guaranteed under the “Fifth
Amendment of the United States Constitution and Article I, § 5, of the Hawaii
Constitution [because] both provide that no person shall be deprived of property
without due process of law, nor have property rights taken or damaged without
26 This requirement in KCC § 8-3.5(b)(2) that “[t]he order shall advise the party responsible
for the violation that the order shall become final thirty (30) days after the date of its delivery” is
MANDATORY. See generally Leslie, 109 Hawai‛i at 394, 126 P.3d at 1081.
27 Petitioner’s related argument that the Notice of Violation imposed an excessive fine for the
violation need not be addressed because this Report and Recommendation concludes no civil
fines may be imposed upon her since the same did not comply with KCC § 8-3.5(b)(2). See
Petitioner’s Proposed R&R at 9, ¶30-33. Additionally, this Report and Recommendation need
not decide the issue whether the Director was arbitrary, capricious, and abused his discretion in
finding a “continuing violation” of the Homestay Operation at the Subject Property. See Dao,
144 Hawai‛i at 47, 434 P.3d at 1242 (“[F]or a determination that a violation of the [CZO]
occurred for a continuous period of time to be upheld, there must be credible evidence of a
41
compensation.” Petitioner’s Proposed R&R at 6, ¶12. In support of this argument,
Petitioner cites to the Waikiki Marketplace Case for the proposition that “due
process principles protect a property owner from having his or her vested property
rights interfered with, and preexisting lawful uses of property are generally
considered to be vested rights that zoning ordinances may not abrogate.”
86 Hawai‛i at 353-54, 949 P.2d at 193-94 (emphasis added).
31. “Black’s Law Dictionary defines abrogate as abolish (a law or
custom) by formal or authoritative action; to annual or repeal.” MW Builders of
Texas, Inc. v. City of Wichita Falls, 2009 WL 2365443 at 7 (N.D. TX 2009)
quoting Black’s Law Dictionary (Westlaw 2009) (italics in original, internal
quotations omitted, and bold emphasis added).
32. KCC § 8-18.1(b) prohibiting the Homestay Operation at the
Subject Property did not abrogate or abolish that nonconforming use. Instead, the
Homestay Operation ceased for twelve (12) consecutive months from April 2018
to June 2019 and therefore, KCC § 8-13.2(b) mandated that nonconforming use
“shall not be resumed.” Therefore, KCC § 8-13.2(b) did not abrogate or abolish
sufficient quality and probative value to enable a person of reasonable caution to support a
conclusion that the violation occurred throughout that period of time.”) (emphasis added).
42
the Homestay Operation as argued by Petitioner, this ordinance merely prohibited
that operation from starting up again.28
33. “Taking” of Petitioner’s interest in the Subject Property also did
not occur because the Homestay Operation ceased due to the April 2018 Flooding,
rather than with the passage of Ordinance No. 1002. Compare Transcript at 19-20,
with KCC § 8-18.1(b).29
34. Petitioner’s constitutional due process rights were not violated
by the enforcement of KCC § 8-18.1(b) because that ordinance did not abrogate or
abolish the Homestay Operation at the Subject Property, but merely prohibited it
from resuming pursuant to KCC § 8-13.2(b). There was also no “taking” for the
same reason. Finally, no constitutional violations occurred with the passage of
Ordinance No. 1002 because the Homestay Operation was not a prior lawful use
since Petitioner did not have a use permit pursuant to KCC § 8-3.2 and/or permit
under Ordinance No. 987.30
28 See footnote 23, infra. Further, the Homestay Operation at the Subject Property was not a
lawful use prior to passage of Ordinance No. 1002 because Petitioner did not obtain a permit for
that use pursuant to Ordinance No. 987. See Waikiki Marketplace Inv. Co., 86 Hawai‛i at 354,
949 P.2d at 194 (“Since [Haw. Rev. Stat. § 46-4] refers expressly to uses of a building or
premises at the time a zoning ordinance takes effect, the protection afforded a property owner
under [that statute], relates, on its face, to lawful uses of a building or premises under existing
zoning ordinances.”) (emphasis added).
29 See also footnote 28, infra.
30 Petitioner should have been aware homestays were regulated by KCC § 8-3.2 prior to the
adoption of Ordinance No. 864, and the Council would also be acting on this issue at a later
43
35. If any Conclusion of Law herein should be designated as a
Finding of Fact, the same shall be deemed to have been identified as such.
VI. CONCLUSION.
Based upon all the foregoing, it is recommended that the Planning
Commission AFFIRM IN PART the decision of the Planning Director to the extent
the Notice of Violation ordered Petitioner to Cease and Desist the Homestay
Operation at the Subject Property. However, it is further recommended the
Planning Commission REVERSE IN PART the decision of the Planning Director
to assess civil fines against Petitioner because the Notice of Violation did not
comply with the requirement of KCC § 8-3.5(b)(2) to advise her that “order shall
become final thirty (30) calendar days after the date of its delivery”.
/ /
/ /
/ /
/ /
/ /
/ /
time, because she knew of the passage and effect of Ordinance No. 864. Compare Transcript
at 20-21 and Finding of Fact 24, with Finding of Fact 24.
44
It is further recommended that the Planning Commission REMAND
THIS CONTESTED CASE TO THE PLANNING DEPARTMENT for issuance of
an “Order” fully complying with all the requirements of KCC § 8-3.5(b) as a
condition precedent to any Civil Action against Petitioner should she fail to
terminate the Homestay Operation at the Subject Property within the time period
stated in that “Order.”
DATED at Honolulu, Hawaii, March 30, 2020.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i
1
BEFORE THE HEARING OFFICER
OF THE PLANNING COMMISSION
OF THE COUNTY OF KAUA‛I
In the Matter of :
Petition to Appeal Decision of the
Planning Director’s Decision Related
to the Notice of Violation and Order
to Pay Fines for the Operation of an
Illegal Transient Accommodation Use
for Property Situated in Hā‛ena,
Kaua‛i, Hawai‛i, identified by Kaua‛i
TMK No. (4) 5-8-005:005 containing
26,092 square feet,
PATRICIA D. McCONNELL,
Petitioner,
vs.
PLANNING DEPARTMENT OF
THE COUNTY OF KAUA‛I,
Respondent.
______________________________
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CC-2017-4
TMK: (4) 5-8-005:005
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the following parties listed below, in the manner described thereto, at
their last-known addresses, on March 30, 2020.
2
U.S. Mail Hand
Delivery
Email
GREGORY W. KUGLE, ESQ.
gwk@hawaiilawyer.com
JOANNA C. ZEIGLER, ESQ.
JCZ@hawaiilawyer.com
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Attorneys for Petitioner
PATRICIA D. McCONNELL
JOHN S. MACKEY, ESQ.
jmackey@goodsill.com
CHRISTOPHER P. ST. SURE, ESQ.
cstsure@goodsill.com
Goodsill Anderson Quinn & Stifel
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, HI 96813
Attorney for Ka‛āina S. Hull, Director,
PLANNING DEPARTMENT OF THE
COUNTY OF KAUA‛I
NICHOLAS COURSON, ESQ.
First Deputy County Attorney
County of Kaua‛i
4444 Rice Street, Suite 220
Līhu‘e, Kaua‛i, HI 96766
Email: ncourson@kauai.gov
Attorney for Planning Commission of
the County of Kaua‛i
X
X
X
X
X
X
3
U.S. Mail Hand
Delivery
Email
ELLEN CHING
Administrator
Office of Boards and Commissions
County of Kaua‛i
4444 Rice Street, Suite 150
Līhu‘e, Kaua‛i, HI 96766
Email: eching@kauai.gov
asegreti@kauai.gov
X
DATED at Honolulu, Hawaii, March 30, 2020.
__/s/ Harlan Y. Kimura______________
HARLAN Y. KIMURA
Hearing Officer for the
Planning Commission of the
County of Kaua‛i