LIHUE — County attorneys are taking increasingly aggressive legal action against the owners of short-term vacation rental properties who failed to renew annual permits on time.
Already this year, county attorneys have filed civil complaints on behalf of the planning department against at least six transient vacation rental owners in Fifth Circuit Court, and Kauai County Deputy Attorney Maryann Sasaki said that her office intends to initiate about 30 more similar cases in the coming months.
“They’re just not complying with the laws,” Sasaki said in an interview Monday, in which she talked about some of the TVR cases she has pending and described the significance of the county’s efforts to enforce a 2008 county law aimed at curbing the proliferation of short-term rental properties.
Sasaki said she has filed a motion, asking Fifth Circuit Judge Kathleen Watanabe to consolidate the cases of six TVR owners who appealed the county planning department’s decision to deny their permit applications on the grounds that they were filed after the annual deadline.
At least until her request to compile the six cases is ruled on at a hearing scheduled in August, Sasaki is forced to handle the cases separately, but she isn’t waiting to take action in the meantime. Sasaki said she will file motions against the six TVRs this week, asking for court-ordered injunctions to force owners to cease rental operations.
Just last week, Sasaki filed a similar motion in another TVR case against the owners of a vacation rental who appealed the planning department’s decision in U.S. District Court in Honolulu. The court is different, but the case is essentially the same as the ones pending in circuit court, with the notable exception that a federal court’s ruling tends to carry more weight with judges in lower courts.
According to a memorandum in support of the motion filed June 5 in federal court, the county has been attempting to force the owners of a TVR in Anahola to stop renting the property on a short-term basis since December 2017 when they filed their permit renewal application late “by some six weeks.”
“In such important cases, where civil rights are at stake, money damages are insufficient to remediate an ongoing problem,” Sasaki wrote in the June 5 memo asking the court to shut down the TVR insisting that continued rental operations will damage the communities and housing market of Kauai in ways that are “virtually impossible to ascertain.”
U.S. Magistrate Judge Kenneth Mansfield will rule on the motion in federal court on June 25, well before the upcoming hearings scheduled in circuit court, meaning the decision could have significant implications for the future, according to Sasaki.
If Mansfield sides with the county, Sasaki said it will become “compelling evidence” for Fifth Circuit judges who will have to decide almost identical motions shortly after.
According to Sasaki, the issue essentially boils down to whether it is legal for the county to prevent people from using their vacation properties as short-term rentals because they filed their permits late.
The property owners maintain they have a constitutional right to use their land as they please, and the county planning department simply does not have the authority to intrude, but according to Sasaki the issue “is a little more complicated than that.”
Sasaki said TVR owners are arguing for a “kind of very limited right,” insisting that the ability to rent a house for a period of less than six months is not among the basic human rights guaranteed by the Constitution. And she insists in court and in person that illegal TVR owners are having a serious negative impact on Kauai.
If short-term vacation rentals are allowed to operate with impunity, “then locals can’t afford the rent, but more importantly, the neighborhood declines,” Sasaki said.
So far, the planning department has struggled to enforce county laws that prevent TVRs without valid permits from operating outside certain areas in any practical sense, but Sasaki hopes her litigation will change that.
“We want to preserve housing for the local community,” she said. “I’m very proud of the work I’m doing.”