A Kona judge’s order overturning Hawaii County’s prohibition of short-term vacation rentals in the agricultural district could set a statewide precedent, the state Land Use Commission said Wednesday in unanimously agreeing to seek a ruling from the Intermediate Court of Appeals.
Circuit Judge Wendy DeWeese, in a May 2 order, denied a petition by the county and state to uphold the county STVR rules while granting a petition by a group of family trusts — dubbed the “Rosehill Petition” — who own land in the agriculture district and want to pursue short-term rentals.
State law requires houses to be farm dwellings and have a connection to agriculture if they’re built on land classified under the state system as being in the agricultural district. The farm dwelling requirement took effect June 4, 1976, leading the county Planning Department to allow nonconforming use permits only for STVRs on lots created before that date.
But DeWeese ruled that state land use law doesn’t specify the allowable duration of leases of farm dwellings.
Land Use Commission Chairman Jonathan Scheuer said both the “black letter” and the intent of the law is clear that the state envisioned farm dwellings to be used in farm-related activity, not short-term rentals.
“We are at a point in Hawaii, do we run Hawaii for outside capital for visitors and for other outside interests,” Scheuer said, “or do we run Hawaii for ourselves, for those of us who live here and for the islands themselves.”
Three residents urging the commission to pursue the issue in court and two property owners seeking to use their farm dwellings for short-term rentals, but who are not part of the lawsuit, testified.
California resident Justin Cleveland said he purchased a little over an acre in Kailua-Kona in 2015 and built a house on it with the intention of adding it to the half-dozen short-term rentals he owns in other areas. He said the subdivision rules allowed the short-term stays.
He said the county Planning Department “looked the other way,” when issuing permits knowing how he planned to use the property.
“They basically allowed us to break the law by permitting it, by approving the permit,” Cleveland said. “The county allowed us to build it that way.”
Dr. David Hefer, a former hospitalist at Kona Community Hospital and a Captain Cook property owner, said state land use law has been “invalidated” because the state, for the past 30 years, hasn’t performed the required review of boundaries to update them in accordance with changing times. Scheuer disputed that comment, saying there have been recent amendments.
Hefer reserved his right to take the matter up in federal court in New York, where he’s currently moving.
But Tammie Evangelista, a resident of the Milolii Lot Subdivision. said the people must hold county agencies responsible for giving people misinformation, and the county also needs to protect its food supply. The subdivision is known as a Native Hawaiian subsistence fishing village.
“A lot of Hawaiians and our sovereign people trying to make a living off the land can’t do it because the people from the mainland are trying to make an extra buck,” she said.
