{"id":14511,"date":"2022-07-03T11:10:34","date_gmt":"2022-07-03T21:10:34","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14511"},"modified":"2022-07-03T11:10:35","modified_gmt":"2022-07-03T21:10:35","slug":"farm-dwellings-overnight-camps-at-issue-in-2-court-cases-the-luc-votes-to-appeal","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14511","title":{"rendered":"Farm Dwellings, Overnight Camps at Issue In 2 Court Cases the LUC Votes to Appeal"},"content":{"rendered":"\n

Two recent judicial rulings have sent the Land Use Commission back to court. The first, a ruling on May 2 by 3rd<\/sup> Circuit Judge Wendy DeWeese, overturned a Hawai\u02bbi County law, supported by the LUC, that banned short-term vacation rentals on lots in the state Agricultural District if the lots were not in existence prior to June 4, 1976. The second is a May 23 decision by the Intermediate Court of Appeals that determined the LUC does not have the ability to block the issuance of special permits for overnight campgrounds on Agricultural land rated high for productivity.<\/p>\n\n\n\n

On June 8, the members of the LUC unanimously voted to authorize the state Department of Attorney General to appeal the decisions.\u00a0<\/p>\n\n\n\n

Farm Dwellings<\/strong> On Ag Land<\/strong><\/h2>\n\n\n\n

In 2019, to address the uncontrolled growth of vacation rental properties, Hawai\u02bbi County enacted a law that, among other things, severely limited the ability of owners of houses on land in the state Agricultural District to rent them out as vacation homes. In short, unless a house was on an Agricultural lot of record in 1976, when state law limited houses on Agricultural land to only those dwellings directly connected with active farming or ranching, it would not qualify for permitting as a short-term vacation rental (STVR).<\/p>\n\n\n\n

Chapter 205, the state\u2019s land use law, defines a farm dwelling as a single-family house that is either \u201clocated on and used in connection with a farm\u201d or a house \u201cwhere agricultural activity provides income to the family occupying the dwelling.\u201d The county ordinance relied on this when deciding to place the limit on the use of such houses as STVRs.<\/p>\n\n\n\n

Almost immediately, the ordinance was challenged by a group of more than 20 property owners. This group, called the Rosehill petitioners, after the lead complainant, Linda Rosehill, argued that nothing in state law blocks farm dwellings from being rented, whether for short terms or long.<\/p>\n\n\n\n

The houses owned by most of the Rosehill petitioners have no apparent connection with farming or ranching. Almost all are owned by out-of-state, even out-of-country residents. One advertises itself to potential vacationers as the only Frank Lloyd Wright-designed house in the islands. Another boasts of a 100-bottle wine cooler, tennis court, and pool. <\/p>\n\n\n\n

The Rosehill petitioners first asked the county Board of Appeals to rule on the county Planning Department\u2019s denial of their applications for STVR permits. But then both the county and the Rosehill complainants agreed to take the dispute to the Land Use Commission, asking it for a declaratory ruling on the issue.<\/p>\n\n\n\n

This was not the first time the LUC weighed in on the question of \u201cfarm dwellings\u201d on Agricultural land. In 1994, the commission determined that a multi-unit development on 10 acres of state land above Kona \u2013 the so-called Crazy Horse Ranch complex \u2013 was not permissible. <\/p>\n\n\n\n

At no point does the Rosehill petition make any mention of agricultural activity. Instead, the petition focuses on the fact that the statute does not set forth a minimum period for rental.<\/p>\n\n\n\n

In the spring of 2020, the LUC conducted hearings on the Rosehill petition and a separate petition by the county. On August 13, 2020, the commission denied the Rosehill petition. In its 32-page-long decision, the LUC takes note of the petitioners\u2019 point that Chapter 205 sets no minimum rental period for farm dwellings. But, the LUC states, petitioners \u201cdid not present to the commission a specific factual situation on which the commission could issue the declaratory order they requested\u2026 Whether the occupants are renters farming the land or whether there is agricultural activity providing income to the renters, or whether the renters are instead vacationers or tourists who are not engaged in and do not derive income from farming on the premises are some of the \u2018specific factual situations\u2019 which must be presented in the record.\u201d<\/p>\n\n\n\n

On the other hand, the LUC found that there was nothing in the county ordinance that conflicted with state law. <\/p>\n\n\n\n

The Circuit Court Ruling<\/em><\/strong><\/p>\n\n\n\n

The Rosehill petitioners then appealed to the 3rd<\/sup> Circuit Court. On May 2, Judge DeWeese issued her decision, reversing the LUC\u2019s declaratory order. DeWeese accused the LUC of abusing its discretion in denying the Rosehill Petition as speculative, while not applying the same standard to the county petition. Also, she rejected the LUC\u2019s finding that the Rosehill petition was speculative.<\/p>\n\n\n\n

This court \u201cinterprets short-term vacation rentals\u2019 to refer specifically to the statutory definition set forth by the county in the ordinance and not to an ordinary definition of a vacation rental or vacation use,\u201d she continued. \u201c[A] dwelling may simultaneously meet the definition of a \u2018farm dwelling\u2019 pursuant to HRS Chapter 205 and the county\u2019s definition of \u2018short-term vacation rental,\u2019\u201d she wrote. And inasmuch as state law does not regulate the period for which a farm dwelling may be rented, DeWeese entered her final judgment in favor of the Rosehill petitioners.<\/p>\n\n\n\n

The Vote to Appeal<\/em><\/strong><\/p>\n\n\n\n

On June 8, when the Land Use Commission met to decide whether to appeal DeWeese\u2019s ruling, none of the Rosehill petitioners or their attorneys made an appearance. Several community members did testify in support of the county\u2019s ordinance and the LUC\u2019s declaratory ruling upholding it.<\/p>\n\n\n\n

Two owners of houses in the state Agricultural District offered testimony in opposition. Justin Cleveland of San Jose, California, owns a 3200-square-foot house on a little more than an acre of Agricultural land high above Kailua Bay. He stated that he and his family might be there about a quarter of the year. The remainder of the time, he said, it is rented out to \u201cpeople usually from the mainland.\u201d <\/p>\n\n\n\n

Commissioner Gary Okuda asked him, \u201cAre you aware right now, as you sit here today, that in fact there is a legal requirement that if you are occupying or using agricultural land, it has to be used for agricultural purposes?\u201d<\/p>\n\n\n\n

Cleveland said he was not aware of that, but that the bylaws of the gated community his house is a part of allow short-term rentals. \u201cThat was one of the reasons we purchased\u201d the land,\u201d he said. \u201cThere was no discussion of, we had to have a farm, or anything like that.\u201d<\/p>\n\n\n\n

Pressed by Okuda, Cleveland said that when he applied for a short-term rental permit, \u201cI brought it to their attention that they basically allowed us to break the law by approving the dwelling we built. \u2026 They basically said, \u2018we kinda look the other way on Ag land and we approved your permit.\u2019 I am aware the property we have is probably not in line with the Agricultural land use building permit structure, but the county allowed us to build it that way.\u201d<\/p>\n\n\n\n

While Cleveland agreed with Okuda that, \u201cbreaking the law is not a great thing to do,\u201d he added: \u201cMy other big thing is, if you do buy a property you should not be told what you have to do with the property\u2026 I have several houses and I am able to rent those properties as I feel in other locations without any issues.\u201d<\/p>\n\n\n\n

Cleveland told the LUC that the people who rented his house \u201care very good renters. \u2026 We\u2019ve never had any problems with the renters. They are very respectful of the community, of the property, and the area.\u201d<\/p>\n\n\n\n

News reports earlier this year tell a slightly different story. On April 24, the Hawaii Tribune-Herald<\/em> published an article by reporter Nancy Cook Lauer stating that the Cleveland property had been the subject of multiple complaints from neighbors. <\/p>\n\n\n\n

One neighbor described it as \u201ca great big party house,\u201d Lauer reported, adding that Airbnb advertised it for as much as $1,200 a night. \u201cNeighbors say the four-bedroom, four-and-a-half bath home has hosted as many as 40 people during its parties,\u201d the article stated.<\/p>\n\n\n\n

A physician, David Hefer, who owns a house in Captain Cook, also testified against the LUC\u2019s position, going so far as to take the commission to task for having failed to complete a five-year boundary review since 1992.<\/p>\n\n\n\n

The commissioners were too polite to point out that it is not the task of the LUC to undertake the boundary review \u2013 which, in any case, was most recently completed last year. However, chair Jonathan Scheuer did suggest that Hefer take a look at the updated versions of Chapter 205.<\/p>\n\n\n\n

Following an executive session, a motion to appeal was discussed. At the close of discussion, Scheuer offered a short statement: <\/p>\n\n\n\n

\u201cWe are at a point in Hawai\u02bbi where the biggest question for me that is before us is, do we run Hawai\u02bbi for outside capital, for visitors, and for other outside interests? Or do we run Hawai\u02bbi for ourselves and those of us who live here and for the islands themselves?<\/p>\n\n\n\n

\u201cWhen we look at who is benefiting and who is losing in this transaction, it is unambiguous. The decision that was made by the LUC not only upholds the black-letter law involved but the greater idea that perhaps Hawai\u02bbi should actually be run for the benefit of those who live here and for the islands themselves.\u201d<\/p>\n\n\n\n

The motion to appeal passed unanimously.<\/p>\n\n\n\n

\n\n\n\n

Camping on Ag Land<\/strong><\/h2>\n\n\n\n

Seven years ago, the Maui County Planning Department was asked to approve a special permit to allow for overnight camping on about eight acres of land in the state Agricultural District near Lahaina. The land made up a portion of a larger, 22-acre parcel owned by Kauaula Land Company, LLC, which had leased it to the Ho\u02bbomoana Foundation, a non-profit that was planning to provide temporary housing in tents to homeless people as well as commercial campers. Twenty-six pods for tents were proposed to be placed on the site, with a population of up to 80 campers a night, with homeless campers staying two to three months.<\/p>\n\n\n\n

Immediately mauka of the proposed campsite lies the Pu\u02bbunoa subdivision, a gated community of upscale homes, also on land in the state Agricultural District. The Pu\u02bbunoa Homeowners Association opposed the campground and asked the Land Use Commission for a declaratory order. Specifically, the association asked the LUC whether the proposed use would require a boundary amendment \u2013 removing the land from the Agricultural District \u2013 instead of the special permit the foundation was seeking from the county.<\/p>\n\n\n\n

Chapter 205 specifically bars \u201covernight camps\u201d on Agricultural land with a B (high) productivity rating, the association noted in its petition to the LUC. In addition, it pointed out that Maui County itself restricted occupancy of tents as temporary living quarters to no more than six consecutive nights in any 30-day period.<\/p>\n\n\n\n

Both Maui County and the state Office of Planning, however, argued that state law gave counties broad discretion to determine reasonable and unusual uses of Agricultural land.<\/p>\n\n\n\n

After a hearing in February 2016, the LUC issued a declaratory order, finding that the proposed campground could not be allowed under a special permit and a district boundary amendment would be required.<\/p>\n\n\n\n

Ho\u02bbomana Foundation appealed. In March 2017, 2nd<\/sup> Circuit Judge Rhonda Loo vacated the LUC order, finding that a campground could be allowed if the county determined the use qualified for a special permit. No boundary amendment was required, she found, citing to a 1990 Hawai\u02bbi Supreme Court opinion, Maha\u02bbulepu v. Land Use Commission<\/em>. That opinion found that the Land Use Commission could approve a special permit for a golf course on productive Agricultural land if it found that the golf course constituted an unusual and reasonable use \u2013 despite language in Chapter 205 stating that golf courses are not a permitted use on lands with a productivity rating of A or B. The case involved an appeal of a special permit granted by the Kaua\u02bbi Planning Commission, and affirmed by the LUC, allowing a 210-acre golf course on land adjacent to the Hyatt Regency hotel.<\/p>\n\n\n\n

The LUC and the homeowners association appealed to the Intermediate Court of Appeals. On March 23, it issued its opinion. <\/p>\n\n\n\n

Permitted vs. Prohibited Uses<\/em><\/strong><\/p>\n\n\n\n

Reading through the opinion, it would seem as though the ICA was sympathetic to the position of the LUC and the homeowners. <\/p>\n\n\n\n

The court noted that the Legislature did restrict Agricultural lands with a productivity rating of A and B to 23 identified permissible uses, while specifically listing golf courses and overnight camps as not<\/em> included among those uses. <\/p>\n\n\n\n

The arguments of the LUC and the homeowners\u2019 association that the lower court erred in its position that overnight camping could be addressed by a special permit \u201care well taken,\u201d the ICA stated, \u201cas LUC\u2019s decision appears to be supported by canons of statutory construction.\u201d Allowing overnight camps by means of a special permit \u201cwhen overnight camps were expressly excluded from a particular permitted use appears to render the express exclusion meaningless,\u201d the ICA found, \u201cand a statute cannot be interpreted so as to render it a nullity.\u201d<\/p>\n\n\n\n

Notwithstanding that, the ICA was \u201cbound by legal precedent. Over thirty years ago, in 1990, the Hawai\u02bbi Supreme Court interpreted the same statute, HRS \u00a7205-4.5(a)(6), as applied to a golf course. In that appeal, the Supreme Court analyzed whether the provisions of HRS chapter 205 prohibit the county planning commission from issuing special use permits for golf courses on prime agricultural lands classified as Class A or B\u2026 The Supreme Court then held that HRS chapter 205 did indeed provide the authority for such permits.\u201d<\/p>\n\n\n\n

The ICA opinion continued: \u201cThe Supreme Court reasoned that, although golf courses are not permitted on Class A and B agricultural lands under HRS \u00a7205-4.5(a), subsection (b) \u2018nonetheless allows those uses for which special permits may be obtained under \u00a7205-6.\u2019 \u2026 The Supreme Court explained that \u2018[s]ection 205-6 vests in the planning commissions the authority to issue special permits for uses that, while not otherwise permitted within agricultural districts, are nonetheless \u2018unusual and reasonable uses that promote the effectiveness and objectives of Chapter 205.\u2019\u201d<\/p>\n\n\n\n

Had the Legislature intended to absolutely ban golf courses from prime ag lands, the Supreme Court found in the Maha\u02bbulepu<\/em> decision, \u201cit would have done so unequivocally by prohibiting the issuance of permits for golf courses under the special permit provisions of HRS \u00a7205-4.5(b) or by employing clearly prohibitory language.\u201d<\/p>\n\n\n\n

In 2005, the Legislature amended the land use law by specifically prohibiting golf courses in the Agricultural District, other than those approved before July 1, 2005. The Legislature was silent on other uses excluded, including overnight camping.<\/p>\n\n\n\n

\u201cThus,\u201d the ICA opinion stated, \u201calthough the Legislature effectively abrogated Mahaulepu<\/em>\u2019s<\/em> specific application to golf courses in 2005, it did not otherwise address Maha\u02bbulepu<\/em>\u2019s<\/em> interpretation that HRS chapter 205 provides authority for issuing special permits allowing \u2026 excluded uses (drag strips, airports, drive-in theaters, country clubs, and overnight camps) on class A and B agricultural land. LUC is afforded deference in interpreting its own statute, but the Hawai\u02bbi Supreme Court is the final arbiter of Hawai\u02bbi statutes. \u2026 To the extent LUC\u2019s decision is contrary to Maha\u02bbulepu, <\/em>it was palpably erroneous.\u201d<\/p>\n\n\n\n

The ICA then remanded the matter to the LUC \u201cfor further proceedings consistent with this opinion.\u201d<\/p>\n\n\n\n

An Appeal<\/em><\/strong><\/p>\n\n\n\n

On June 8, executive officer Daniel Orodenker gave a short history of the litigation to commission members, many of whom were not on the commission when the declaratory ruling was issued.<\/p>\n\n\n\n

\u201cIt is my belief that if you read the decision, the ICA was asking us to appeal further, because they didn\u2019t like what was being said, they thought the matter was confused, and they made that clear,\u201d Orodenker said.<\/p>\n\n\n\n

After an executive session with the deputy attorneys general who were involved in the matter before the appellate court, the commission unanimously authorizing the attorney general to file a writ of certiorari to the state Supreme Court.<\/p>\n\n\n\n

\u2014 Patricia Tummons<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Two recent judicial rulings have sent the Land Use Commission back to court. The first, a ruling on May 2 by 3rd Circuit Judge Wendy DeWeese, overturned a Hawaiʻi County law, supported by the LUC, that banned short-term vacation rentals … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14512,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[498,338],"tags":[7],"class_list":["post-14511","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-july-2022","category-land-use","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14511","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=14511"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14511\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14512"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14511"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14511"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14511"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}