Vacation Rentals on Ag Land: The Hawaiʻi Supreme Court has issued its decision in a long-festering dispute over vacation rentals of houses built in the state Agricultural land use district. They’re not allowed, the court ruled, upholding the finding of the Land Use Commission and affirming the Hawaiʻi County ordinance, passed in 2019, that bars short-term rental of houses on Ag land where such uses did not exist before the state Land Use Law was passed in 1976.
The plaintiffs argued that because state law doesn’t specifically prohibit rental of farm dwellings or set a time limit on such uses, short-term rentals should be allowed. But, Chief Justice Mark Recktenwald wrote in the unanimous opinion, “that narrow view of the statute, which would allow for the subversion of the purpose of HRS Chapter 205, cannot stand.”
“There is no indication either in the statute’s text or its legislative history that the Legislature intended to allow for farm dwellings to be used as short-term vacation rentals untethered from agricultural purposes. Rather, transient accommodations are antithetical to the Legislature’s intent,” the court ruled.
Near the end of the decision, the court went out of its way to distinguish the manner in which it gives deference to administrative decisions from that of the U.S. Supreme Court. “These days, the United States Supreme Court seems determined to ensure that ‘settled law easily unsettles,’” the Hawaiʻi high court wrote, referring specifically to the case of Chevron U.S.A. Inc. v. Nat. Res. Def. Council.
“Under Chevron, the reviewing court would, upon close inspection, ask if Congress had ‘directly spoken to the precise question at issue.’ If it had, ‘that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ If the statute was silent or ambiguous as to the question at hand, the court would defer to the administrative agency’s reasonable interpretation of the statute. …
“Under Chevron, agencies had the ability to allow experts to, within reason, make the rules. Now, the U.S. Supreme Court considers itself and other federal courts the experts on exceedingly complicated areas of American life. … We do not believe the expertise of courts outstrips that of the agencies charged with implementing complex regulatory schemes on a day-to-day basis. In Hawaiʻi, we defer to those agencies with the na’auao (knowledge, wisdom) on particular subject areas to get complex issues right.”
Green Apologizes: More than a year after Gov. Josh Green and Dawn Chang, chair of the Commission on Water Resource Management, removed Kaleo Manuel from his post as the executive officer for CWRM, Green apologized.
Manuel, falsely accused of not allowing stream water to be used to fight fires that devastated Lahaina, was reassigned to a different division within the Department of Land and Natural Resources. He was briefly reinstated, but resigned in December.
At the 2024 Native Hawaiian Convention last month, Green said, “We hurt Kaleo deeply and I feel a great sadness that I was a part of that…. I feel terrible and I humbly apologize.”
In late August, Green announced the appointment of Manuel’s replacement, Ciara Kahahane. His press release noted that she speaks Hawaiian and has knowledge of the Lahaina area.
Despite that, the commission’s seat reserved for someone with expertise in Native Hawaiian water use has been vacant since July.
Green is supposed to select the commissioner from a list of at least three nominees, and a list of four candidates was given to him in February.
In August, acting CWRM director Dean Uyeno said that the selection process needed to be restarted after “issues arose” with some of the nominees. Last month, Katie Roth, head of CWRM’s planning branch, said that two of the four people on the list had dropped out. The law requires the governor to make the selection from a list of at least three people, she added.
On September 30, some 70 groups and individuals submitted a letter to Green, urging him to fill the seat immediately.
The governor replied with the following statement:
“I am keenly aware of the heightened importance of filling the CWRM loea vacancy. We are following due process of law after applicants withdrew their names from consideration in the previous application period, leaving a number of applicants for consideration that did not meet legal requirements.”
He went on to say that a nominating committee would now review applications “and interview applicants to nominate a list of at least three individuals.” Applications are to close October 11.
Leave a Reply