Board of Appeals won’t consider constitutionality of vacation rental law

HILO — Whether the county’s short-term vacation rental law is constitutional is beyond the scope of the county Board of Appeals, members said Friday in unanimously voting to deny a Captain Cook homeowner’s request to take up the issue.

The case is the first of about 20 appeals filed so far stemming from the Planning Department’s denial of a vacation rental permit. More are expected, as the department has denied some 80 or 90 applications after working through 900 of the 4,000 applications that came in.

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McCoy Plantation homeowner David Hefer claims the county’s denial of his vacation rental application is “arbitrary and capricious” and the “vague and incomprehensible wording” of the law violates his constitutional right of due process.

Hefer’s main case, his appeal of the vacation rental permit denial itself, is scheduled for Dec. 13 in Kona.

The Planning Department denied his application for a nonconforming use certificate and vacation rental registration based on its finding that the lot was created after June 4, 1976, the date the state law changed allowing only farm dwellings in agriculture districts.

In addition, Hefer said, the county law is discriminatory because it arbitrarily exempts hosted rentals, where the property owner lives on site. That, he says, violates the equal protection clause of the U.S. Constitution.

“The problem is, the conditions aren’t defined in the ordinance,” Hefer said, pointing to a neighbor who may or may not “reside” on their property while they are allowed to rent out their ohana unit to short-term renters. “It doesn’t regulate vacation rental activity but the house.”

After a series of back-and-forths with Hefer, who tried unsuccessfully to read a nine-page statement into the record, the board said it would not hear the petition.

“Essentially we lack the authority to determine the constitutionality of the rule,” said member Springer Kaye.

Board member Steven Hirakami agreed.

“Constitutionality is beyond our scope,” Hirakami said. “This is not a court of law.”

Hefer argued the rules and procedures of the Board of Appeals allowed it to “ issue a declaratory order as to the applicability of any statutory provision, ordinance, or of any rule or order of the Board.” He was asking the board to put the ordinance on hold so the county could work on it further.

Hefer, after the meeting, said he wanted to give the Board of Appeals the chance to decide the constitutional issues, because if the ordinance is appealed to the courts, the whole thing could be struck down, forcing the county to go back to square one.

“I might be forced or someone might be forced to do it,” Hefer said about appealing to circuit court.

Hefer, alleging bias and conflict of interest, was also unsuccessful getting the board to recuse four of its members from hearing his case because he said they had ties to the hotel industry, which competes with vacation rentals for tourists.

All were cleared unanimously by the board except for member Jay Furfaro, who received a negative vote from member Mark Travalino. Travalino declined to comment after the meeting about his vote.

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Furfaro, a longtime hotel executive and former Kauai County Council chairman, had introduced a bill regulating vacation rentals on that island during his tenure there. Furfaro said he didn’t initiate the legislation but introduced it at the request of the mayor.

Hefer also suggested the Big Island newspapers disclose that their parent company publishes in-house magazines for several hotels, “in order to adhere to established professional journalism guidelines.”

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