On August 13, the state Land Use Commission unanimously approved a petition from Hawai\u02bbi County for a declaratory order confirming that short-term vacation rentals (STVR) are not acceptable uses of farm dwellings in the Agricultural District.<\/p>\n\n\n\n
The commission also denied a petition by owners of STVRs in the island\u2019s Agricultural District to have the LUC find that such use is<\/em> allowed under state law and the county\u2019s 2018 ordinance regulating STVRs. All of the owners had applied for non-conforming use certificates to continue using their dwellings as vacation rentals under the ordinance, but were denied by the county Planning Commission.<\/p>\n\n\n\n Their attorney, Cal Chipchase, argued that the ordinance prohibits only those rentals of less than 31 days outside permitted STVR zones and does not speak to how a dwelling is used. Given that, he argued, STVRs in the Agricultural District would not necessarily conflict with state statutes that require that farm dwellings be 1) where the dwelling is used in connection with a farm or 2) where agricultural activity provides income to the family occupying the dwelling.<\/p>\n\n\n\n \t\u201cWho is using [the farm dwelling] and why it\u2019s being used is entirely irrelevant to the county. All that matters is 31 days. Even if the tenant was a farmer who was going to farm the property for less than 31 days, it would be considered a short-term vacation rental [under the ordinance],\u201d he said.<\/p>\n\n\n\n “If the county petition is granted, you cannot rent a farm dwelling for less than 31 days for any reason,\u201d he warned.<\/p>\n\n\n\n Even though the county STVR ordinance does restrict how a dwelling is being used, \u201cthe problem I keep having is that it\u2019s the use that matters,\u201d Commissioner Nancy Cabral told Chipchase. <\/p>\n\n\n\n John Mukai, corporation counsel for Hawai\u02bbi County, later pointed out that in this case, all of the petitioners Chipchase represents have applied for a non-conforming use certificate to continue their STVRs. “So there is an admission by the petitioners that their activity falls within the definition of your short-term rental,\u201d he said.<\/p>\n\n\n\n Several commissioners said they found arguments presented by Dawn Apuna, counsel for the state Office of Planning, particularly convincing. Apuna pointed out that STVRs are not a permitted use under Chapter 205 of Hawai\u02bbi Revised Statutes, which describes the uses allowed in the various state land use districts. \u201cImportantly, if the use is not listed, it is prohibited,\u201d she said.<\/p>\n\n\n\n Apuna explained that purely residential use of dwellings has never been allowed in the Agricultural District, even before Ch. 205 was amended in 1976 to define the term \u201cfarm dwelling.\u201d In 1962, she said, the attorney general opined that a single-family residence could not be sustained if it subverted the agricultural intent of the Agricultural District. Otherwise, it would \u201crender district boundaries meaningless,\u201d she said.<\/p>\n\n\n\n \u201cAs controversial and time-consuming as these distractions have been, they are \u2026 irrelevant,\u201d Apuna said of the STVR owners\u2019 arguments.<\/p>\n\n\n\n Planning directors for Maui, Kaua\u02bbi, and Honolulu all submitted letters in support of Hawai\u02bbi County\u2019s petition, as well. <\/p>\n\n\n\n Kaua\u02bbi planning director Ka\u02bbaina Hull stated that his department had received applications for non-conforming use certificates for transient vacation rentals (TVR) in the Agricultural District and county ag zone \u201cand none of them could meet the definition of a farm dwelling unit.\u201d<\/p>\n\n\n\n He added that some TVR owners then sought special use permits, which allow for uses that are otherwise prohibited in the Agricultural District. Qualified applications were approved. \u201cThe special permit process under HRS 205-6 underscores the regulatory regime\u2019s process to entertain TVR uses on agricultural lands dependent upon each respective county\u2019s zoning regime; however, it also further underscores that TVRs are not farm dwellings, and TVRs are not an outright permissible use on agricultural lands,\u201d he wrote.<\/p>\n\n\n\n Commissioner Dan Giovanni asked Mukai whether Hawai\u02bbi County has a process similar to Kaua\u02bbi\u2019s, by which a landowner could apply for a special permit for its STVR.<\/p>\n\n\n\n \u201cYes. These petitioners could do the same thing,\u201d Mukai replied.<\/p>\n\n\n\n \u201cYou\u2019re saying they don\u2019t automatically get an STVR in a farm dwelling,\u201d Giovanni pressed.<\/p>\n\n\n\n \u201cIt would be a non-conforming use and we would require a special permit,\u201d Mukai replied.<\/p>\n\n\n\n Commissioner Gary Okuda made the motion to grant the county\u2019s petition and deny the STVR owners\u2019. He raised the fact that the commission, in a previous order, found that Chapter 205 does not authorize residential dwelling as a permissible use in the Agricultural District, unless it\u2019s related to an agricultural use or is a farm dwelling.<\/p>\n\n\n\n Commissioner Dawn Chang later added, \u201cClearly, other counties agreed with that. We received testimony from all other counties. This demonstrates the desire to have the LUC define farm dwelling and the intention of agricultural lands \u2026 that the farm dwelling has to be related to agricultural activities.\u201d<\/p>\n\n\n\n \u2014 Teresa Dawson<\/em><\/strong><\/p>\n\n\n\n For Further Reading: Hawai\u2018i County Asks LUC to Declare That Farm Dwellings Can\u2019t be Vacation Rentals<\/a> and Will LUC Find That Vacation Rentals Can\u2019t Be in the Agricultural District?<\/a><\/p>\n","protected":false},"excerpt":{"rendered":" On August 13, the state Land Use Commission unanimously approved a petition from Hawaiʻi County for a declaratory order confirming that short-term vacation rentals (STVR) are not acceptable uses of farm dwellings in the Agricultural District. The commission also denied … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":12267,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,338,473],"tags":[3],"class_list":["post-12847","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-land-use","category-september-2020","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12847","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12847"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12847\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/12267"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12847"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12847"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12847"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}