Rules may change for Kauai homeowners anxious to rebuild

Always Investigating

After the Kauai floods destroyed homes on Kauai, some might not be allowed to rebuild, and regulations on everything from vacation rentals to illegal structures are in store for a crackdown. 

A home we saw in ruins on pricey Weke Road in Hanalei is near an ocean in front, a river in back and now a pond and fish underneath after the disastrous flood tore through the town. The vacation rental even has a name — Kaloko — a deadly flood from more than a decade ago. Miraculously this month’s islandwide floods spared life, but took land both private and public. 

“It’s like the whole of Weke Road makai became a levy, and the lowest point is just there at Black Pot,” Kauai County engineer Lyle Tabata explained to the Kauai County Council. “What happened was the whole town that was flooded drained out through Weke Road at Black Pot Beach.” 

Now officials says they don’t want to take more chances. 

“We were blessed with no injuries or fatalities,” Kauai County Council Chairman Mel Rapozo said. “As far as we’re concerned it’s time to reassess and see what should be rebuilt, is this an opportunity for the county to claim some of those lands.”

KHON2 asked, claim in what way? 

“In the way of eminent domain,” Rapozo said, “and in fact maybe take possession of these properties for the safety of the public.”

KHON2 asked, how might that affect everyone from a longtime kamaaina homeowner who lives out there, to someone who might have a multimillion-dollar second-home or vacation rental property who might say, ‘If you’re coming with eminent domain, it’s going to cost you.”

“I don’t know without looking at the damage assessments and really the safety concerns,” Rapozo said. “Everybody is concerned right now because it’s fresh, but it’s time that we reassess.”

“Much of the local families aren’t living on Weke Road, quite frankly,” said Ka’aina Hull, Kauai deputy planning director. “They’re in a much higher area, and for zoning purposes it’s relative easy. But being that we experienced this catastrophic event, the flooding, the flood manager does have to assess whether or not they’re going to have to increase flood requirements on these type of structures.”

The county just 2 months ago wrapped up a list of federally flagged flood deficiencies that they’d been after property owners about. They say it took about a decade to get through it all. 

“But what has happened since the initial inspection and now, it’s like 10 years, I don’t know,” Tabata told the council. “If after 2008 there were more violations that we’re not aware of, I cannot answer to those.”

It’s highly likely the flood lines themselves could be redrawn. 

“It’s very unusual to allow building in the floodway at all,” said Kauai County Councilmember Joanne Yukimura, “so if a new floodway is defined based on the floods, then there is some question whether they would be able to rebuild.”

“It was a monumental amount of water that went through that area, which one has to think is going to change the manner in which the flood levels are being set that homes are required to meet,” Hull said. “Even the local families will have to meet in order to ensure their homes are not affected 20, 30 years down the line.”

More than 25 years ago after another natural disaster, the island did not fully seize the opportunity to build with more resilience. It’s a lesson learned, officials say. 

“After (Hurricane) Iniki the council and the administration passed a law, the Iniki ordinance, which allowed people to build back to what they had,” Rapozo said. “I don’t envision that happening again. I think these structures now are going to have to — they’re going to be under scrutiny.”

Already some owners are itching to stretch mayor and governor emergency proclamations to cover rebuild right on the same floodplain footprint. Some structures along Weke Road date back to the early 1900s. Even some newer ones were built before ordinances that later declared them to be in hazardous areas.

“Now we’re getting a lot of interest from these property owners to utilize the mayor’s and the governor’s emergency declaration to waive all the regulatory review of it,” Hull said. “And we’re trying to explain to them and to the public, especially in the coastal areas where there was that hazard zone, we are not waiving any regulatory requirement that would essentially require you to set your house back further away from the hazard zone.”

KHON2 asked, if it comes to pass that they simply cannot build on what’s left of their private property anymore, isn’t that a considerable potential cost to the county in terms of reimbursement, or is it just considered lost to an act of god? 

“Under at least my limited legal understanding of it, we have to always provide a property owner his constitutional right to utility and to use his property in a manner that comes with private property rights,” Hull said, “but we can regulate in a manner that protects or mitigates as much as possible, as much as feasible, to ensure the protection of life and people in that area.”

The floods also call attention to illegal structures and unpermitted alterations and additions — especially dangerous ground-level enclosures where water is supposed to be able to flow through. Other alterations and extensions often found their way on to the structures either illegally or on permits that listed them as “unsubstantial improvements.” 

“There are a fair amount of alternations in there that are violations,” Hull said of the North Shore area.

Authorities will be cracking down on those as the towns rebuild. They’ll also redouble efforts against illegally operating vacation rentals. The county had busted one just weeks ago and as proof of compliance got the mainland owner’s cancellation receipt for visitors who would have been there for the storm that washed the house away. 

“There are a lot of illegal vacation rentals throughout the state, throughout Kauai, but this area is inundated with illegal operations that we’re aware of and actively researching and constantly enforcing,” Hull said.

Since just 2015 in the North Shore area alone, the county has issued nearly 200 Zoning Compliance Notices and 59 Notices of Violation 

“We have shut down 155 transient vacation rentals just north of the Hanalei bridge,” Hull said, adding there are 200 more that are legally operating, but regulators have their sights set on those, too.

For example, a rule that says a 12-month gap in use voids the TVR permit. 

“Some of those, depending on the length of time that they may remain nonoperational as a business, may or may not be able to get repermitted as such,” explained Steven Hunt, Kauai real property tax manager.

“There have been many issues with these TVRs, their impact on nuisance and noise issues, to impacts on housing being provided in the area,” Hull said.

Also they’re worried about the limited evacuation resources for the single-lane-bridge community 

“And we basically saw that with this crisis,” Hull said. With tourists scattered among houses and rent-a-rooms, there’s no way to know how many people could have been missing or injured, there’s no equivalent of a hotel registry to refer to.

“We here at the county of Kauai have been pursuing for years to amortize or phase out these nonconforming legal transient vacation rentals from areas like Hanalei and Wainiha and Haena,” Hull said. 

A state legislature bill for the third year in a row had language to let counties ratchet back on even licensed vacation rentals — it died again. The county funds a couple hundred thousand a year for enforcement of what’s become a lucrative industry where one house could make that much in a matter of months. 

“The fact that there’s multimillion-dollar operations just in Hanalei and Wainiha alone, and the legal obstacles that they can put to our enforcement against them, we can always use more resources,” Hull said. “It would be great to see a landscape for the community to bring back local residents to that area again. The TVR operations and the speculative nature of those operations make it extremely hard for local families to be in there.” 

We’ll be following up to see what comes of the rebuilding and land-use issues in these most fragile areas. 

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