NAWILIWILI — The Kaua‘i County Council Planning Committee, after several deferrals, on Wednesday approved a controversial bill that would allow vacation rental owners to apply for non-conforming use permits.
The full council is expected to consider the legislation for final decision-making next week. Council Chair Asing and Councilmember Kawakami are the only 2 members expected to vote against this proposal.
“This bill is not about grandfathering TVRs. This bill is about allowing a process to apply (for a permit),” Planning Committee Chair Jay Furfaro said. There is no need for the County to "allow" a process as Chapter 205-6 of the Hawaii Revised Statutes clearly lays out the process for applying for a Special Use Permit for uses that are not permitted on ag lands.
Bill 2364, introduced by Councilman Tim Bynum, has been attracting a lot of attention since it passed first reading in May. Each time it had been up for discussion, community members have crowded the Nawiliwili council chambers.
The proposed bill was fashioned after Bill 2204, which in 2008 grandfathered TVRs that had been operating outside Visitor Destination Areas (Po‘ipu, Kapa‘a, Princeville) and had been paying general excise and hotel room taxes.
That legislation also barred new TVRs outside VDAs. If the vacation rental started operating after March 7, 2008, the owner is not allowed to apply for a non-conforming use permit.
The 2008 bill also prohibited TVRs in ag lands, regardless of how long the owners had been operating the vacation rentals. Because TVRs on ag lands are in direct conflict with Chapter 205 of the Hawaii Revised Statutes.
Bynum’s new bill would give those TVRs left out in 2008 a chance to now apply for a non-conforming use permit. The owners would still have to show they had been in operation prior to March 7, 2008, and meet many of the original requirements and some additional ones. Chapter 205 clearly states that TVRs on ag lands are an unpermitted use.
The new bill says the Planning Department “may physically inspect” the TVR, whereas the original one made it a mandatory requirement. Many who oppose the bill feel the removal of the mandatory requirement weakens the bill. This proposed bill also removes any and all requirements for the applicant to be in compliance with local, state and federal laws.
But the new bill requires TVRs in ag lands to prove that bona fide agricultural operations existed prior to the cut-off date, unless the Planning Department finds that intensive agricultural activities were inhibited by a set of factors. Unless the applicant can convince the Planning Commission that they cannot farm on the lands. This is the most subjective criteria I have ever seen. Can you imagine what will happen to our ag lands if this passes?
Opponents of the bill say it’s illegal to have TVRs on ag land, even if they have been paying transient accommodation taxes.
Many, like former Councilman Mel Rapozo, have questioned why some bill supporters keep relying on an interpretation of an opinion made in 2000 by then-County Attorney Blaine Kobayashi, despite a 2008 opinion from Attorney General Mark Bennett interpreting operation of TVRs in ag lands as illegal. The Kobayashi Opinion did not address ag lands. They keep bringing up this opinion even though they know that is did not refer to ag lands. It was requested because the County Zoning Ordinance didn't state that single family dwellings were not allowed as TVRs outside of the VDA, so therefore they could not be excluded. Chapter 205 EXPRESSLY PROHIBITS TVRs on ag lands.
“Apparently, nobody is concerned with the attorney general’s opinion,” Rapozo said.
Bill supporters say owners have been paying taxes for years, and it’s only fair that they receive the same treatment as other TVRs operating outside VDAs. Chapter 205 prohibits the activity. They have been paying taxes on an illegal activity, therefore they have no right to the same treatment that legal operators have.
The meeting drew many TVR owners and employees in person. In prior meetings, owners had sent real estate representatives and lawyers to testify on their behalf.
Major land owners, such as Michelle Hughes, and several owners of TVRs in small Condominium Property Regime lots testified on behalf of TVRs in ag lands, arguing compliance with the law and creation of jobs for the community.
High taxes and maintenance costs, they said, have driven them to supplement their agricultural income with TVR activities.
Attorney Lorna Nishimitsu, who represents several TVR owners, was silent throughout the meeting.
The possibility of lawsuits has not been brought up, but in 2007, when Bill 2204 was moving through meetings, attorney Jonathan Chun referenced several lawsuits that TVR owners had won, and that should have set precedence.
Bynum and Furfaro have said in the past they took an oath to protect the county, and it included avoiding lawsuits. They took an oath to uphold the law. Chapter 205 is the law and it is not being protected by this Council.
North Shore resident Barbara Robeson questioned the legality of some TVRs advertised as farm dwellings, some with as much as 12 rooms, charging thousands of dollars per night, despite that according to current county law, it is illegal to have a TVR on ag land.
Rapozo said violation of the Farm Dwelling Agreement could bring in a $5,000 fine and the requirement to remove the farm dwelling at the owner’s expense. Even if there was no law in place, the Farm Dwelling Agreement prohibits TVRs on ag lands. This agreement is recorded with the Bureau of Conveyances and should be enforced as well.
Joan Conrow, a former Honolulu newspaper reporter, said if this was a perfect world and only legit TVRs got approved, she wouldn’t have a problem with the bill.
“But that isn’t the way the Planning Department works on Kaua‘i,” she said.
Until there are “big discrepancies” in inspection, enforcement and equal application of the law, Conrow said she has a “real problem” with opening a door to allow those who have “tremendous influence through their money and their political contributions” to make maneuvers with the Planning Commission and the department to get “questionable uses” allowed.
Conrow’s testimony prompted Council Chair Kaipo Asing, an ex-officio member of the Planning Committee, to defend the department.
“I want to correct a statement that you made that may not be accurate,” Asing told Conrow, explaining that the department has done numerous inspections in the last 10 years and that the process is not easy or simple.
“I want to give some credibility to the Planning Department,” he said. “I’ve seen records of what they have done, and violations that have been issued.”
Conrow thanked Asing for clarifying the issue.
At the end of the day, Committee Vice Chair Daryl Kaneshiro introduced an amendment requiring the connection of agricultural activity with the TVR.
Kaneshiro, along with Furfaro and Bynum, voted for the bill. Councilman Derek Kawakami, who comes from a traditional farming family on Kaua‘i, voted against the bill. Councilwoman Lani Kawahara remained silent, and her vote counted toward the majority favoring the bill.
The bill will reach full council next Wednesday. Asing and Councilman Dickie Chang will be able to fully join the discussion and add their votes to the bill.
Asing has been a vocal opponent of the bill. Chang hasn’t made his opinion public. During the bill’s first reading in May, he said he would like to see discussion so he could make a decision he could “live with.” I don't believe that Councilmembers Furfaro, Bynum, Kaneshiro and Kawahara will change their votes. Therefore, all we can hope for is that Councilmember Chang votes no on Wednesday, and that Mayor Carvalho vetoes the bill when it gets to his desk. For the Council to override the veto, they require 5 votes. If Councilmembers Asing, Kawakami and Chang maintain their "No" votes, and the Mayor vetoes the bill, ag lands will be preserved on Kauai, and Chapter 205 will have been respected.
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