The weather’s the same, but the climate may be changing

A late-breaking petition, which garnered almost 1,500 signatures within its first five days of life, has been circulating via the Internet through our community of residents and is slowly reaching out to current and past visitors to Kaua‘i. The petition, which is found on the Web site www.WeThePeopleOfKauai.com, concerns the currently proposed and recently amended Bill No. 2204 being discussed for passage by the Kaua‘i County Council. Signers asked the council to carefully re-evaluate and reconsider the bill, which brands as illegal certain existing vacation rentals and B&Bs and heavily regulates a variety of types of vacation rental properties in Kaua‘i, especially those on agriculturally zoned land.

It appears clear that the long-term intent of Bill 2204 is, over time and through attrition of “non-conforming uses,” to eventually corral every paying guest who chooses to come to Kaua‘i into the designated Visitor Destination Areas (VDA resort areas) of Princeville, Lihu‘e, Po‘ipu, and the Kapa‘a/Wailua shore for their accommodations. While some might think that this is a grand idea, it seems important to consider the major ramifications of such an intent:

A. Those residents who own vacation rental properties and who depend on those “visitor dollars” to either provide or supplement their monthly income and support their families, but find they live outside the VDA areas, may be on Ag land, or do not qualify for the so-called ‘grandfathering-in clause,’ will be denied this income and left with few choices, primarily “sell” or “sue” or “go underground” and risk legal action and huge penalties. The prohibition of property owners from participating in visitor housing income would have the effect of supporting corporate expansion, while minimizing citizen participation in one of the major industries of Kaua‘i.

B. Many small businesses and individuals working in the services industries, which are supported in whole or part by vacation rentals inside, and outside, the VDA areas will be denied income. Most of the revenues earned from these vacation rental operations stay on Kaua‘i and enrich everyone in our community through a “trickle-down” effect. Affected would be the service and support businesses like gardeners, housekeepers, stores, banks, carpet cleaners, repair people, and finally, the tax base for the county and state.

C. Many visitors who prefer accommodations away from the hotel and resort areas may ultimately choose not to return to this “new” Kaua‘i, and their visitor dollars will be forever lost to us. When those who do return join those already staying in the VDA areas, occupancy rates will rise and current long-term accommodations in those VDA areas will be converted, due to market pressure, to vacation rental use, leaving long-term renters with even fewer choices and higher rents. This intentional cramming of visitors into relatively small areas on Kaua‘i may also create higher incidence of noise, crime, more difficult parking, more traffic congestion, and artificially higher resale prices for those ‘lucky’ property owners.

At a time when the property market is stagnant on Kaua‘i and our national economy appears shaky at best, is it wise to flirt with potentially massive economic consequences? Passage of Bill No. 2204, as it now reads, would put many of Kaua‘i’s families’ livelihoods at stake and weaken our local economy. There is a fine balance between success and failure on Kaua‘i. There is no industrial base to support the jobs and livelihoods that the Mainland enjoys. Most people here have two or three jobs just to keep ahead of the mounting bills, many of which are amongst the highest in the nation. This fine balance creates a tipping point, and a sudden rift in the economic fabric of Kaua‘i could cause severe repercussions, the extent of which is hard to calculate.

Then there are the potential legal costs to the average Kaua‘i taxpayer to consider. Attorney Jonathan Chun of the law firm Belles Graham Proudfoot & Wilson LLP has opined that “while nonconforming use of a property may be deemed to be undesirable by a small portion of the community, it nonetheless constitutes a legitimate, vested property right and clearly enjoys broad constitutional protection … vested property rights are not easily lost or voided.” Obviously, legal problems for the county could well ensue if and when Bill 2204 is passed with language similar to that presently used. Do we really need yet another contentious issue to be settled at great public cost in the courts?

Even the existing state statute is up for interpretation. Councilperson JoAnn Yukimura, author of the bill and the one who introduced its most recent “11th hour” amendments that caused such a stir, deems use of homes on agriculturally zoned parcels as transient vacation rentals “illegal”, but many thoughtful, knowledgeable people, including legal counsel, disagree with that strict interpretation of the state law.

The following questions which need to be asked, and for which we deserve to know the answers, are:

• Is this really what the people of Kaua‘i want?

• Does the general populace of the island and/or the County Council understand the short and long term ramifications of the proposed Bill 2204?

• Does Bill 2204 reflect what is best for the future of Kaua‘i?

• Does Bill 2204 reflect what the visitors want? Should we even care what our visitors who bring their money here want?

• Who stands to benefit from the long term intent of this bill? Hotels? Resorts? Developers?

• Who stands to be damaged? Will our island economy as a whole be benefitted or damaged?

• What are the intended consequences of this proposed bill, and what are the chances of achieving them?

• What are the unintended consequences of this proposed bill? And who will be hurt?

• Are those who have made transient accommodations outside the VDA’s a part of their livelihood for years, and even decades, criminals or contributing citizens?

We suggest strongly that the council go back to the meeting table with the public and legal experts to discuss all of the above, in hopes that the issue can be resolved in an equitable manner, without consequences which will damage good citizens, our economy, and our society. Certainly, this proposed bill should be tabled until all the noted considerations, relied-upon state law, and zoning or permitting obstacles are pondered and worked out, well in advance, so to be as fair as possible to all involved and affected and to minimize the possibility of costly litigation to county taxpayers.

In hopes for the best possible future for Kaua‘i.

• This commentary was put together by the advisory board of “We The People Of Kaua‘i”, a group currently creating a new organization for Kaua‘i to be called The KAVA Association, “Kaua‘i Alternative Vacation Accommodation” Association.

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