LIHUE, Kauai — The Kauai County Planning Commission on Tuesday approved a controversial vacation rental permit after the county attorney held that the permit had gone into force automatically because the county failed to act on it after ordered to do so by the Intermediate Court of Appeals.
At a hearing interrupted by an unexplained decision to go into executive session to discuss the matter, the commission voted 6-0 — with one commissioner casting a “silent” vote — to approve the vacation rental. The property has been operated for more than 17 years by one of the island’s most prominent families.
In the end though, attorneys agreed the commission had little choice but to grant the permit because the county inexplicably let more than four years pass after the court ordered processing to begin. There was no in-person public access to the hearing. An audio feed was limited by repeated technical problems.
Joanna Zeigler, a lawyer with the Honolulu firm of Damon Key Leong Kupchak Hastert, noted that state law requires that “applications must be processed within a maximum period of time, otherwise it shall be deemed approved.”
Despite the anticlimactic nature of the outcome, the hearing revealed that a sizable portion of what appeared to be community opposition to the project evaporated.
More than 20 community members — including two hula halau that have stayed on the property over the years — voiced support after an opposition campaign produced a petition signed by 43 owners of nearby properties.
Nearly all of the 23 letters and emails supporting the TVR were dated Monday, after Civil Beat published a story on the matter. Many of them retracted earlier opposition saying they didn’t understand they were signing a petition against a project by the Chandler family, which built the TVR in nearby Waipake almost 20 years ago.
The property is owned by Hilary Ferris-Chandler. It consists of a house with five or six bedrooms that can be rented individually, an open air common area and a combination living room and kitchen. It is on the mauka side of Kapuna Road, off Kuhio Highway.
In an email Monday, Sarah Wright, representing a hula halau that has been in operation on the North Shore for more than four years, wrote that “Aunty Hilary’s hospitality and attention to detail make her an exemplary host. The family has offered this vacation rental to our halau and others free of charge. It has perfectly facilitated deep practice and cultural study.”
Wright’s email was cosigned by 14 other members of her hula group, Halau Hula o Kealaluaeomakana.
The hearing heard testimony from about a dozen people aligned with opposition to the Chandler project. But the hearing was held up for more than an hour after the commission voted to go behind closed doors, apparently to discuss the TVR situation.
Commissioner Roy Ho asked for the executive session, but gave no reason for why he made the request. When the secret part of the meeting concluded about an hour later, Glenda Nogami-Streufert, the commission chair, gave no explanation for why the session was called or what transpired.
The county was ordered by the Intermediate Court of Appeals to process the Chandler application in 2016 after several years of litigation. However, the county failed to take action for more than four years.
That cued attorney Zeigler to note that pertinent state law holds that the permit must be approved automatically because the county had failed to act on it within 210 days of the appeals court ruling.
Kauai County Attorney Matthew Bracken agreed with Zeigler and said that the years-long inaction by the county Planning Department rendered opposition to the TVR moot.
John Friedman, a real estate agent who lives near the Chandler property and led the opposition to it, disagreed vehemently with the legal conclusions about the permit being automatically granted.
“There is absolutely no requirement that you must approve this application,” Friedman said. “For 18 years, they have operated this TVR without authorization.”
He accused Chandler family members of “sending threatening emails” and giving neighbors “stink eye.”
County Planning Director Kaaina Hull agreed that his department had failed to give timely consideration to the Chandler project after the court ordered it to do so in 2016. Hull said the department essentially “forgot about it” and had also been under the impression that the Chandlers and opponents in the community were trying to work out an agreement.
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