Editorial opinion: There is a class of single-family dwellings on Kauai ag lands that should not need special permits to operate as TVRs: Those built on lots that existed before June 4, 1976

The following is editorial opinion only. Do not construe it as legal advice, for it is not. In fact, this opinion conflicts with current language in the Kauai code which is ignored at the ignorer's peril.

HRS §205-4.5 lists permissible uses within agricultural districts. It further provides that uses not expressly permitted are prohibited, "except...construction of single-family dwellings on lots existing before June 4, 1976."

Thus, "farm dwellings" - meaning single-family dwellings located on and used in connection with farms - are listed and are therefore permissible. Single family dwellings not located on and used in connection with farms, on the other hand, are not listed and are therefore impermissible within ag districts.

Unless...they are constructed on lots that existed before June 4, 1976. That is: to this day, single-family dwellings can be constructed on ag lots even though not on or used in conjunction with farms, so long as the lot existed before June 4, 1976.

Single-family dwellings on ag lots that existed  before June 4, 1976 can be used for anything that single family dwellings can be used for. Their owners can live in them, even if not in connection with any farm. Or, their owners can rent them out to tenants pursuant to long-term leases.

Before March 7, 2008, owners of single-family dwellings on ag lots - just like any other owners of any other single-family dwellings on Kauai - could even rent them out short-term as, for instance, transient vacation rentals. Before that date, single-family dwellings could be built on ag lots that existed before June 4, 1976  and be legally operated as TVRs, just like that, with no special permits required.

Then, due to amendments to Kauai's zoning code, owners of single-family dwellings outside the VDA - whether on ag land or not - could no longer put their dwellings to use as TVRs after March 6, 2008.

However, because "the right of a property owner to the continued existence of uses and structures which lawfully existed prior to the effective date of a zoning restriction is grounded in constitutional law,"(Waikiki Marketplace Inc. Co. v. Chair of Zoning Bd. of City & County of Honolulu, 86 Haw. 343, 353, 949 P.2d 183, 193), owners who had operated their single-family dwellings as TVRs prior to March 7, 2008 may continue to do so.

That includes operators of TVRs in single-family dwellings on ag lots that existed prior to June 4, 1976.

The current incarnation of the zoning amendment that cut off the date for commencing operation of a TVR outside the VDA at March 7, 2008, (Ordinance No. 904), requires for the grandfathering of pre-existing single-family TVRs on ag land, that the operator obtain a special permit, unless "it was built prior to June 4, 1976."

Presumably, the "built prior to June 4, 1976" language is a nod to the language in HRS §205-4.5 grandfathering the right to build single-family dwellings on ag land lots existing before that date. But the Ordinance 904 grandfathering clause seems to misconstrue the HRS §205-4.5 grandfathering clause. HRS 205 doesn't just grandfather single-family dwellings build on ag land prior to June 4, 1976. It grandfathers single-family dwellings build on lots that existed on ag land prior to June 4, 1976, regardless of when the dwelling was built. The dwelling could be built in 1984, or 2004 and it would still be a legal single-family dwelling even if not located on and used in connection with a farm.

Thus, single-family dwellings built on ag lots that existed before June 4, 1976 do not need special permits to be legal single-family dwellings, even if not located on and used in connection with farms. They do not need special permits to be rented out to long-term tenants. Nor did they need special permits to operate as TVRs prior to the zoning amendment cut off date of March 7, 2008.

Nor, it would seem, should they need special permits now to operate as TVRs so long as they operated as such prior to the zoning amendment cut off date of March 7, 2008. At least that is what the constitutionally grounded right of a property owner to the continued existence of uses and structures which lawfully existed prior to the effective date of a zoning restriction would seem to dictate.