Having barred single-family TVRs outside visitor designation areas, what’s next for the County Council?

Bed and breakfast/”homestay” units.

At least that’s the indication from the Findings and Purpose section of the famous, or infamous, depending on your views, March 7, 2008 ordinance originally barring TVRs outside visitor designation areas. It hasn’t gotten much, if any public attention, but there the council states

This bill does not apply to a bed and breakfast unit (“Homestay”). It is the intention of the Council to address these units as a separate matter after establishing a regulatory framework for sing-family transient vacation rentals.

Kauai Bill No. 2204, Ordinance No. 864 (Mar. 7, 2008).

The Ordinance goes on to define homestay as “an owner-occupied dwelling unit in which overnight accommodations are provided to transient guests for compensation, for one hundred eighty days or less [fewer? -ed], within the same dwelling unit in which the owner or lessee resides or in a guest house.”

Since this is the first ever mention of “homestay” in the county code, I would be inclined to say that homestays at present are unregulated. However, immediately following the indented quote above from the Findings and Purpose, the ordinance states that “Homestays are presently regulated through the use permit process.

That would seem to indicate that the county expects that homestays are presently operating under use permits. Will that be the assumption for grandfathering those outside the VDA when and if they are ultimately barred there? Or, as in the TVR ordinance, will operators be given the opportunity to apply for use permits. And what about homestays on agricultural lands? Does the TVR bill provide the template for what might become a new homestay bill?

Ag Land TVR application deadline this week

Prior to March 7, 2008, the County of Kaua`i did not regulate single-family transient vacation rentals. The Kauai County Code defined “Transient Vacation Rentals” in relevant part as “rentals in a multi-unit building for visitors…, with the duration of occupancy less than thirty (30) days for the transient occupant.” Thus, single-family vacation rentals could lawfully operate in single-family dwelling units unimpeded by county regulations concerning transient vacation rentals.

On March 7, 2008 the County adopted Kauai County Ordinance 864 amending Chapter 8 of the Kauai County Code, 1987. In relevant part, Ordinance 864 changed the definition of “Transient Vacation Rentals” so as to include single-family dwelling units, thus extending the County’s regulation to cover such single-family units. Ordinance 864 also prohibited transient vacation rentals, including single-family transient vacation rentals, not located in visitor designation areas. In order to allow single-family transient vacation rentals that were in lawful use prior to the effective date of the Ordinance to continue operating, Ordinance 864 required owners, operators or proprietors of such rentals to obtain nonconforming use certificates by March 30, 2009. However, Ordinance 864 prohibited the issuance of nonconforming use certificates for any single-family transient vacation rentals located on land designated Agricultural by State law unless the rental was built prior to June 4, 1976, or the applicant had a special permit under HRS 205.6 (now, 205-6) secured prior to the enactment of 864.

After Ordinance 864 was adopted, many operators of single-family transient vacation rentals located on land designated Agricultural but who did not have special permits secured prior to the enactment of 864 applied for but were denied nonconforming use certificates. Many of these applicants commenced appeals of their denials. The County Counsel subsequently found that certain provisions of Ordinance 864 were contrary to the County General Plan’s emphasis on the need to “enact clear standards and permit processes for regulating alternative visitor accommodation structures and operations in Residential, Agricultural, Open, and Resort zoning districts.”

Consequently, on August 16, 2010, the County adopted Kauai County Ordinance 904 which, in relevant part, extended the deadline for obtaining nonconforming use certificates for single-family transient vacation rentals located on land designated Agriculture , and provided for the issuance of special permits where, in addition to the Special Permit standards in HRS 205-6 and the Planning Commission’s Rules of Practice and Procedure, the applicant can show that the subject property had a County agricultural dedication, or a bona fide agricultural operation existed on the property, or that circumstances inhibit intensive agricultural activities or prevent the applicant from qualifying for an agricultural dedication.

Applicants have until Friday to apply for a nonconforming use certificate without being assessed a $1,500 late fee.

Court declines to expand meaning of "preserve in place" in Naue burial case final disposition

A section of David Callies’ Hawaiian land use law classic, Regulating Paradise, is devoted, of course, to historic preservation and burials. In the recent second edition of his book, Professor Callies notes a Kauai burial case to which I’ve devoted a number of posts on this blog:

[A] huge controversy erupted on Kaua`i over remains on a single residential lot. On December 11, 2007 the Kaua`i Planning Commission approved the construction of a single-family home on a lot in Ha`ena, conditioned on an archaeological survey of the land and a subsequent approval by the SHPD. The archaeological survey uncovered thirty sets of Native Hawaiian remains on the half-acre lot. SHPD then required the landowner to draw up a burial treatment plan for protecting the remains. The plan proposed preservation in place of twenty-four sets of remains that would not be impacted by the construction and on-site relocation of the six others that would be under the footprint of the proposed house.

Upon receiving the burial treatment plan, however, the Kaua`i/Ni`ihau IBC recommended that all thirty sets of remains, together with those that may be found on the property in the future, should be preserved in place. The landowner then revised the burial treatment plan to preserve all thirty remains in place, by capping the graves with cement blocks and adding vertical buffers to protect the human remains. After consulting with Native Hawaiian organizations and the Kaua`i/Ni`ihau IBC, SHPD approved the plan, although it apparently approved the vertical buffers and concrete cappings as a means of preservation of the remains without the approval of the Kaua`i/Ni`ihau IBC. As the burial statute presently provides, although the IBCs have the authority to determine the preservation or relocation of previously identified Native Hawaiian burials, the councils may only make recommendations regarding the appropriate management treatment and protection of the Native Hawaiian burial sites after making their initial determination.

(footnotes omitted – most of which refer to Brescia v. Edens-Huff, No. 08-1-0107 (D.Haw. 5th Cir. Oct. 2, 2008)(Order Granting in Part and Denying in Part Defendant’s Motion for Preliminary Injunction).

There were more proceedings in the case last week. I was not present, but I’m told that in a hearing on the State’s motion for summary judgment, the Native Hawaiian Legal Corp. argued that the court should interpret “preserve in place” as used in the State burial law and administrative rules as prohibiting building over burials. There is no such prohibition explicit in the statutory language and the Court declined to impose such a meaning. The Court further encouraged the litigants to pursue legislative remedies. Given rules of construction and separation of powers issues, this strikes me as essentially reasonable since, had it been the legislature’s intent to prohibit any construction over burials preserved in place, it would have been easy enough to say so and, more to the point, it is the legislature’s, not the judiciary’s, place to make the determination. While it doesn’t always follow its own rule, the Hawaii Supreme Court has held:

A cardinal canon of statutory construction is that this court cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. This is because we do not legislate or make laws. It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning. Instead, our sole duty is to give effect to the statute's plain and obvious meaning.

State v. Mueller, 102 Hawai'i 391, 394, 76 P.3d 943, 946 (2003).

I never saw any coverage of last week's proceedings in the Garden Island. However, blogger Joan Conrow provides a first-hand account at KauaiEclectic.

Books - Regulating Paradise: Land Use Controls in Hawaii, Second Edition by David L. Callies

I just ordered mine from University of Hawaii Press. It's also available on Amazon.

I've had the first edition for some time and always hoped a second was in the offing. So when I read today on land use attorney/blogger Robert Thomas's inversecondemnation.com that edition two is available I immediately placed my order.

From the blurbs on the University of Hawaii Press site:

“Callies has vibrantly depicted the complexity, conflicts, and conundrums of navigating land use laws and regulations in Hawai‘i in a clear and entertaining manner.” —Lea Hong, Hawaiian Islands Program Director, The Trust for Public Land

“A clear and comprehensive review of Hawai‘i’s land use regulatory systems. The book effectively covers the broad sweep of State and County laws, ordinances, and processes, and how they interrelate.” —Dan Davidson, land use administrator

“A must-read for both neophyte and veteran legal practitioners. Callies’ in-depth and insightful explanations and commentaries on Hawai‘i’s complex land use and planning laws provide a road map for understanding the state’s multi-layered regulatory scheme.” —Benjamin A. Kudo, Ph.D.

“An excellent treatise on the thorny issues of unique land tenure, land rights, and land control in Hawai‘i.” —Henry Eng, FAICP

For those who don't know, author David Callies is Benjamin A. Kudo professor of law at the University of Hawai‘i, where he teaches land use, state and local government, and real property law.