LIHUE — The former owners of a vacation rental property in Haena are suing the County of Kauai over an emergency order restricting visitor access to North Shore neighborhoods following severe flooding in the area last April.
According to a federal lawsuit filed last week in U.S. District Court in Honolulu by California residents Susan and Geoffrey Flint, Kauai County officials used a series of emergency mayoral proclamations issued in the wake of the floods as a “convenient cover” to further their goal of eliminating legally permitted, short-term vacation rental operations in the area.
On April 14, 2018, former Mayor Bernard Carvalho signed an emergency proclamation in response to increasingly dangerous conditions on the North Shore caused by sudden torrential rains, flash flooding in Hanalei River and landslides near Lumahai.
The 60-day emergency proclamation allowed the county to receive emergency relief funding from the state and gave the mayor’s office broad legal authority to respond to the developing crisis. The mayoral proclamation has been extended nine times since then, most recently by Mayor Derek S.K. Kawakami in late August.
Using his expanded executive powers, Carvalho issued “Mayor’s Emergency Rule #1,” prohibiting visitor access and the operation of transient vacation rentals, or TVRs, in the Lumahai-Wainiha-Haena area. Violating the emergency order was a misdemeanor offense, punishable by up to a year in jail and a fine of $5,000.
The TVR ban took effect in early May 2018 and lasted nearly a year, until it was modified by the Kawakami administration to allow visitors with reservations at permitted TVRs to access the area.
According to a written statement accompanying Carvalho’s
announcement of the emergency rule on social media, the executive action was aimed at maximizing the county’s limited available resources.
“The safety of our residents and visitors is of our utmost priority, and we must be patient as our work in the affected, isolated areas continues,” Carvalho said in the May 4 statement. “We are focusing our efforts to assist our local residents, so that they have access to the resources they need now.”
But in their lawsuit, the Flints claim that Carvalho and other county officials seized the opportunity provided by the disastrous flooding and subsequent emergency proclamations to further their goal of driving TVRs off the North Shore.
“The flooding and rain events provided the county with convenient cover to maintain an ‘emergency’ pretext to continue and extend the ban,” the civil complaint says. “The county and its officials and employees intend to eliminate legal, nonconforming transient rentals including through the use of the Emergency Proclamation and the Mayor’s Emergency Rule #1.”
The complaint also alleges that racial or geographical bias is at least one of the driving factors behind the county’s purported anti-TVR campaign, stating that “the county and its officials and employees are motivated, in whole or in part, by an animus against plaintiffs and other transient vacation rental owners, on the basis of race or residency.”
In a guest commentary submitted to The Garden Island in July 2018, Geoffrey Flint called for Carvalho to end the daily convoys that served as the only vehicle access for North Shore residents beyond Waipa for the better part of a year until the road reopened in June.
“The convoys between Waikoko and Wainiha on the North Shore have gone from an initial necessity to an ongoing, unnecessary headache for those living in Haena and Wainiha,” Flint wrote. “This is an avoidable situation and a waste of taxpayer money to man the convoys.”
In the second half of his open letter to Carvalho, Flint moved on to the subject of vacation rental owners, which he said “have suffered tremendously,” alongside other North Shore businesses.
“There should not be discrimination against TVR owners,” Flint wrote. “TVR owners have been left out in the cold and need to get back to some sort of normalcy, too. I would ask you to end the emergency proclamations and stop the convoys.”
The Flints purchased a single-family home in Haena in early 2017 but, according to their lawsuit, were forced to sell in February of this year, after losing out on at least $75,000 in uncollected rental payments due to the mayor’s rule, plus additional costs associated with canceled reservations caused by numerous unexpected extensions of the emergency proclamation that kept their potential customers away.
Among the numerous counts in the civil complaint are claims that the county violated the Flints’ civil and due-process rights and failed to provide them equal protection guaranteed by state and federal constitutions. They are seeking damages and compensation “for the taking of their property interests in an amount to be proven at trial.”
Kauai County spokespeople did not respond Wednesday afternoon to TGI’s requests for comment in time for publication of this article.
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Caleb Loehrer, staff writer, can be reached at 245-0441 or cloehrer@thegardenisland.com.
It’s time for the county to grow up and embrace everyone in the community and not selectively enforce their laws or create laws that unfairly negatively affect certain classes or races of people and businesses. Unfortunately this type of behavior still exists in certain parts of this administration. Mayor Kawakami has shown signs of rejecting the old boy racism and arrogance towards their perceived enemies that are still in the county attorney’s office and planning the department. They have Mike Dahilig to thank for getting them into this lawsuit and the previous one they just lost. His overt racism and vindictiveness towards vacation rental owners has always been on display and his arrogance and ignorance has gotten the county into these lawsuits yet he still maintains his place at the side of the Mayor while the county attorney becomes the scapegoat for the entire sorry mess he so arrogantly created with his ego and distorted sense of self righteousness when originally dealing with Mr. Flint and others in the vulnerable positions they were left in due to the county’s lack of empathy and fairness during the so called emergency decrees which the county under Carvalho extended far beyond a time it had to in an overt attempt to put as many TVR owners in Haena out of business while they encouraged the local activists in their racist one sided attempts to make life miserable for the TVR owners and their planned take overs of the public roads to create a sense that Kauai didn’t want tourists under the guise of protecting their neighborhood from the perceived threat they so carefully created in the media. Yes it’s time to emerge from the racist old boy past and embrace everyone in the community and not just the people with the loudest voices shouting down other members of the community they did not agree with at public meetings. Mayor Kawakami it’s time to sever your ties with the ignorant attitudes displayed by certain members of the county administration and departments that still alive in planning and near to you in the administration because that loyalty or friendship is starting to cost you and the rest of us indirectly a lot of money that could be used for things that benefit the citizens of Kauai instead of paying for that arrogance and bad decisions based on racism. These two lawsuits are a direct result of ignorance and arrogance at the highest levels in the administration which is still left over from the last obviously racist do nothing mayor and his minions. You know I speak the truth. Let’s see if you have the strength to do the right thing Mr. Kawakami. Time to cut the anchors loose or tune them up and move forward into the 21st century in a fair and balanced way because there’s more people in the community who understand what is really happening and playing to the underlying racism that has been present in the local community for so long just does not cut it anymore. Your futuree political goals depend on it because you know you need to appeal to more than the backward folks who blindly vot e by the color of the candidates skin and who their relatives are related to. Let’s see what the arrogance costs the county this time. My guess is that there’s a good chance the county will loose this suit as well but even if it doesn’t loose the damage has been done and you have to clean up the mess caused by the actions of people in the highest positions of power in your administration. Let’s see what you’re really made of Derek. Time to step up and do the right things that put a stop to this nonsense.
Cry baby. Don’t like it? Leave. Simple.
Amen. The former mayor and his department of planning “gestapo” should do jail time for WILLFULL, continuous and unnecessary restriction of access and violation of property rights of ALL the north shore property owners and visitors.
Racism Alive and Well on the Islands of Hawaii!
This case is more about abuse of power and depriving property owners of their rights than racism but there’s an underlying stench of it in the inept and completely one sided decisions that were made leading up to these two lawsuits. If this guy wins there will be more to come. If there’s a settlement there will also be more to come even if the terms of the settlement are not divulged. We will see. The whole thing is such a shame and the emergency decrees could have been handled so much more equitably. But as it turned out the former administration was anything but equitable in its handling of the entire community’s needs.
Poor babies
I just choked on my muffin.
Don’t die on us now….;-)
White privilege on full display here…
That is a racist remark in itself. This is a lawsuit with two sides who think they are right. Only time will tell what the court finds unless an out of court settlement is reached.
Are these guys serious?
I’m very surprised to see no negative comments from anyone who actually suffered from this tragedy. While you were safely at home, counting your money, the people that actually suffered a loss were having to clean mud and debris from their yards, look for food and a safe place to sleep. For you to come back now and sue the county because your investment wasn’t paying off is beyond words. The roads had to be closed for safety reasons and out of respect for those that reside there while they were rebuilding. You aren’t the victim of racism. At best you are one of many that were affected by the storm. Come back if you want and take a look at what it looks like now. It’s way better in so many ways and I feel it was worth the wait.
Classy heartfelt reply. You are obviously a sweetheart. Good answer. But things are never ever what they seem my dear. You’re correct its much better now but I think Mr Flint has had to sell his home, probably at a loss, and things just possibly could have been handled in a way that he didn’t have to. Keep your sweet disposition. It’s great.
Sorry ! However because of the condition in that area after the flood. A property value goes down.
There is such a thing as property rights but only those in the “resort areas” get to use them. The whole restriction of vacation rentals is overregulated and favors only a few while stomping on everyone else’s property rights. Lots of behind the scene hand shaking went on there.
Racism?! How so?
all the emergency extensions were done to appease loud minority at tax payers expense
Last time I checked, Transient Vacation Rental owner was not a recognized race. How is Mayor Carvalhos emergency proclamation racist? Or are we all assuming, in a racist manner, that all vacation rental owners are of one particular race? All I see is people of a certain income level crying over “lost income”, meanwhile people (of ANY race), who want to become long term residents, cant buy a house for less than $500k. Get rid of all this short term nonsense and you’ll be provided with a long term housing solution.
Try a jury trial. I’m sure people who have grown up here will totally support north shore newcomers losing money on their vacation rental. But it’s funny, I thought the road was closed to everyone, but these people seem to think it was only them.
People on the mainland were not here helping fix the problems the folks past Waipa were dealing with.Maybe the cry babies should just STAY on the mainland with these little problems.Remember “Sometimes investments are not money makers.”
Did these home owners offer a place for the folks that lost everything to stay ???
Most vacation rentals stayed locked up the whole time.We delivered tents, camp stoves, and tarps to hundreds of people in urgent need.Many are still Camping, Hoping to get ahead after the flood. Food and water were not available for a while. The people on the North Shore shared a love for each other that was and is Priceless.Maybe the Greedy will get a Grip on Life.
P.S. It was not safe to allow the Disneyland mentality People past Hanalei for Many months
You have a point however there are not many local families who operate TVR’s and as suggest “gee they must all be of a certain income level” Perhaps using the word discriminatory would have been a better choice. Just like the cost of everything here is high so is rent. Because the cost of everything it takes to upkeep a home is high. Ridding the island of short term rentals is not the answer. And until you invest in a house, if you haven’t already, you won’t understand why rents are so high. Cost of money, upkeep, insurance on and on. What the council is doing is the solution.
LJ,
Had you been a fly on the wall at the planning department on the day when vehicle access passes were to be exchanged for new ones and noticed that everyone in line who had been accused by the planning department of violating special order #1 DID NOT LOOK OF HAWAIIAN DESCENT you might suspect that enforcement of the rules was being applied…arbitrarily. I’m sure there’s a record of it in the planning department. It would be…amusing…to see the statistics. Just an aside, I saw a lot of the first vehicle passes around the island. The police badge sticker to make them look “official” was classic. I would pay $$$ to get one of those trinkets framed.