County attorneys push courts on TVR issue

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.”

  1. Tutululu June 12, 2019 4:05 am Reply

    Why do these TVR owners think there are zoning regulations in the first place? How about their neighbors start a garbage dump next to their property if an owner can do whatever they want? Their entitlement attitude is outrageous!

  2. Sheeples June 12, 2019 6:48 am Reply

    There are short term rentals all over. Some long term renters even take in people to help pay their exorbitant rents. It’s just how it is when the system dictates socialism for the 1 percent and cutthroat capitalism for the rest of us. Just fix the roads with all these collections of taxes. Oh wait…..

  3. Joe Maka June 12, 2019 8:39 am Reply

    So, by this logic, if my driver’s license were to expire I’d be banned from driving for life. If I didn’t pay my rent on time, I’d be kicked out on the street forever. If our County didn’t finish Black Pot on time (or fulfill on a long list of other infrastructure responsibilities), they’d fired from the job permanently.

    The TVR witch hunt is founded in racism, entitlement and jealousy. Instead of fixing real problems, they focus on the controversial, expensive and dangerous TVR agenda. There is no end it sight.

    Anyone that thinks eliminating TVR’s is the magical solution to affordable housing is un-educated and blind.

    I hoped our new Mayor would have a rational position on this, but he is proving to be more of the same. Bowing to small, special interest agendas. Bummer.

    1. Sheeples June 12, 2019 9:02 pm Reply

      The mayor is just an easy going fortunate son with everything to gain for him and his. Just enjoy the day, nothing is going to change unless people organize, stop showing up to work and take to the streets. I am still too comfortable to do that, but who knows when it will become too much?

  4. RG DeSoto June 12, 2019 8:45 am Reply

    “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.”
    What an absolutely ignorant, frightening actually, statement. I wonder how Sasaki ever made it through a basic constitutional law course? The rights guaranteed in the constitution, and prefaced by the Declaration of Independence, are broad and all encompassing. They are not specific for a good reason–to foster liberty & the pursuit of happiness, which includes the right to use one’s property as they see fit. For Sasaki to confuse and conflate this with the “ability to rent a house for a term of less than six months” is ludicrous with no basis in rational thought. Stupid, actually.
    And what proof does Sasaki have that TVRs have a negative impact in terms of affordable rentals? None. If that is her and the county’s assertion it should be backed up with citation of a study showing a correlation coefficient greater than zero and closer to 1 between TVR and island wide rental prices. Her assertion is simply based on ignorance, agenda motivation and no fundamental appreciation for the critical importance of property rights .
    We have come to the sad state where private property rights are being suffocated by misguided policy, illegitimate law, and ignorant bureaucrats like Sasaki.
    RG DeSoto

  5. randy kansas June 12, 2019 9:30 am Reply

    Attorney Sasaki is wrong;

    vacation rentals do not decline a neighborhood;

    if that were true, then Poipu would be in shambles; from our experience, travelers take much better care of the homes than most of the locals around here; junk cars in the yard and pit bulls tied up to the porch;

    when a property sells, it’s worth more, if it has a rental history and website; so declining values is another false argument;

    just another activist attorney, trying to push her agenda via the courts;

    it’s about time, finally someone filed a suit in Federal County; more of that should be done against the County; ie: charging people different tax rates based on where they live or how much time they spend in their home or property;



  6. Honkey tonk June 12, 2019 12:45 pm Reply

    Every where you go there are rules and regulations to keep balance…..stop whining like babies and follow the rules like every body else….just remember you are not any more special then the next guy .

  7. Stevo June 12, 2019 1:25 pm Reply

    Removing short term rentals WILL NOT make housing affordable in beach front or ocean close homes. To own property in these areas you will still need to be very wealthy. Homes will still be bought by those who can afford them. If not vacation rentals allowing more jobs to the “local people” they will become vacant vacation homes to the rich and shameless.

  8. Dt June 12, 2019 2:01 pm Reply

    Government is wrong here. Being late to file shouldn’t cause a ban.

    6 tvrs being converted to long term rentals (which they wI’ll not do) is not going to fix the housing crisis. This Sasaki person is on a major power trip and needs to be corrected.

  9. WestKauai June 12, 2019 3:56 pm Reply

    The author and Sasaki both fail to note that the County does NOT send notice to Vacation Rental owners when it is time to renew. Advance notice is common practice for vehicle registrations, driver licensing, and most other permit renewals. Failing to notify TVR permittees that renewal is due is simply a calculated effort by the Planning Department, intending to revoke or cancel permits held by otherwise law-abiding owners.

  10. I saw a Vampire once June 12, 2019 6:37 pm Reply

    I think that the county is at a loss against the TVR owners. It is the owners that have a right to rent their homes for added income. The fact that no collection of back taxes and fees shows that the owners are apart or above the paying community. They have the money, they should reap the rewards of a vacation rental. County attorney should not interfere. Therefore county as a whole should accept travel vacation rentals because the owners are the leaders in the community.

  11. Rev Dr. Malama June 13, 2019 10:37 am Reply

    Seems to me that the County of Kauai is doomed financially….. but what do I know? I’m a victim of the fraud like everyone else who thought this Island was part of the usa where the Constitution was the LAW…. instead it’s been revealed that Hawai’i is a Pirate’s paradise and the politicians are the crooks!

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