Friday, Feb. 23, 2024 |
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Hawaii County continues to enforce its prohibition against short-term vacation rentals in the state agricultural district despite a Kona judge’s ruling that the state doesn’t disallow that use as the county has claimed.
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.
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 agricultural district and want to pursue short-term rentals.
In her order, DeWeese concentrated on one aspect of state land use law governing land in the agricultural district. She noted that the state law doesn’t specify the allowable duration of leases of farm dwellings.
Kona attorney Michael Matsukawa, who wasn’t part of the Rosehill lawsuit but has similar clients currently appealing their denials at the county Board of Appeals, doesn’t think the judge’s order went far enough.
“The judge’s decision is incomplete and therefore sends the wrong message to the public and government agencies,” Matsukawa said.
The state Land Use Commission, he said, has authority granted in state law to determine what “accessory” uses are “compatible” with the agricultural uses that are listed in state law. In addition, he said, the law gives the counties zoning authority to help further define those uses.
“The general public will conclude (and it already has) that throughout the state, land in the agriculture district can be used for short-term contracts, leases, licenses as a matter of state law for vocational rental purposes,” Matsukawa said.
The state Land Use Commission is appealing the ruling to the Intermediate Court of Appeals. Meanwhile, said Planning Director Zendo Kern, “the county continues to apply our STVR code as enacted.”
The county, “after careful consideration,” decided not to file its own appeal of the ruling, but that doesn’t mean county attorneys can’t participate in the appeal filed by the Land Use Commission, said Corporation Counsel Elizabeth Strance.
“This means the County is a party to the appeal and may file briefs should the need arise,” Strance said.
The county Board of Appeals, despite a backlog of approximately 50 vacation rental appeals in he hopper, hasn’t met since January. The cases had been on hold pending the resolution of the Rosehill case.
The Planning Department, meanwhile, has been meeting with council members for several months working to draft revisions to the county’s vacation rental laws, Kern said.
“We don’t have a final draft yet so there is no set date to submit the proposal to the full council,” Kern said. “That being said, we are very close to having a final draft.”
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