Here’s a puzzle. A large house on a five-acre lot in the state Agricultural District is rented out to tourists for more than $700 a night, according to a recent listing on the VRBO website.
Inside, near the kitchen door, a framed placard displays a non-conforming use certificate from Hawaiʻi County Planning Department, stating that the property is permitted to operate as a short-term vacation rental.
Hawaiʻi County insists, and even went to court to get an affirmative ruling, that short-term vacation rentals are allowed only on lots that were existing as of June 4, 1976.
The lot on which this house sits was carved out of land owned by the Mauna Kea Agribusiness Co. in the late 1990s. The house was built in 2004.
So how is it that this property qualifies for a non-conforming use certificate?
The question was posed to Planning Director Jeff Darrow, whose signature appears on the certificate.
In response, Darrow forwarded two documents to explain the policy.
One, a letter to Richard Armstrong of Mauna Kea Agribusiness, dated June 30, 1997, addresses a request from the company in anticipation of subdividing its property following closure of the sugar plantation north of Hilo. The property affected consisted of just five discrete lots in property tax records. Yet, according to the letter signed by Deputy Planning Director Russell Kokubun, on behalf of Planning Director Virginia Goldstein, “the subject properties contain a total of twenty-two (22) separate legal lots of record.” Instead of counting only the lots in real property tax records, the Planning Department included Land Court awards, grants, and portions of awards.
The second document is an October 24, 2019, memo to Planning Department staff from then-Director Michael Yee, providing “guidance on interpreting the meaning of ‘existing before June 4, 1976.’”
“Lots that have been consolidated and resubdivided after June 4, 1976, may be considered as existing before June 4, 1976, and eligible for a non-conforming use certificate if: a) the consolidation and resubdivision did not increase the number of lots, or b) the consolidation and resubdivision was a result of a government action to widen roadways, create drainage, or a similar government-initiated project,” Yee wrote.
And so it is that a new house, on a lot whose boundaries were not established until a quarter-century ago, can qualify for a non-conforming permit allowing short-term vacation rentals.
The house, by the way, is on the market for more than $2 million.
— Patricia Tummons
Jim McMahon
Sorry. I am unable to solve this puzzle. The 1st letter does not explain why previous Land Court awards, grants, and portions of awards, etc. should be considered legal lots for the purposes of a PC&R application. Your article “New Policy Lets Big Isle Developers Subdivide Without Making Improvements” published in Aug 1997, also raises similar doubts as to the logic behind this practice. I have been personally impacted by this practice as I own land containing a private road easement used by 2 subdivisions created via PC&Rs. Our property deed only lists 2 dominant parcels as easement users. However, in reality there are 7 with the additional 5 having been created by subdividing the original 2 parcels – with many being smaller than the current A-20 zoning should allow. Years later, and after I learned about the existence of these new dominant parcels, I asked the Planning Dept. about how these subdivisions were approved. I was told that they were unaware that the new parcels would be using our easement. I was further told that one requirement of the PC&R is that it shall not result in any new easements being created. I was unable to find such a rule in our County Code. However, such a rule does exist on our other islands. In our county, I was told by a senior planner that it is a “silent rule”. When queried further about this silent rule and why it apparently wasn’t applied in these instances, he agreed that at least one of these subdivisions should not have been approved and then suggested that I contact an attorney.
I do not believe the County is 100% to blame for this. There is some evidence to suggest that some false claims were made in the original subdivision applications and/or the applicants essentially did a “bait and switch” in which a parcel’s legal access in the original survey map document was switched to a different easement after the subdivision had been approved. However, the lack of oversight by the County in failing to catch these misrepresentations, “errors”, or whatever they are called combined with the fact these PC&Rs are approved administratively rather than by the more rigorous process followed by regular subdivision applications is a problem.
I know we are not the only landowners that have been adversely impacted by this. I know of at least one landowner with a road easement impacted by a PC&R who did sue the County. The lawsuit went on for years. I don’t believe it ever got resolved. My guess is that the landowner has since passed away. One just cannot simply undo a subdivision after the parcels have been sold off and built on. And suing the government is seldom easy. This is especially true here where the few attorneys around who will litigate real estate matters all work for the developers/subdividers.