Friday, July 30, 2010


DON’T IT ALWAYS SEEM TO GO?: Well we might as well make a week of it.

After watching the disgusting display of lies and half truths as well as the attempts to complicate a simple matter in order to undo a previous attempt to legalize the illegal we’ll attempt to wrap it up with a “fact sheet” on the recently passed transient vacation rentals (TVRs) bill to refute many of the statements made by councilmembers on Wednesday.

First, the simple story which we’ve presented a few times regarding the legal issues.

Under state law HRS 205-6, “Special permit”:

(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.

This has always been the case even before the Kobayashi opinion and all through the years leading up to the passage of Ordinance 864 on March 7, 2008.

However no one- not anyone with a TVR on residential or ag land- has ever applied for, much less received one. Under questioning Wednesday two deputy county attorneys verified both the availability and lack of applications.

Therefore no one had a legally operating TVR previous to March 7, 2008 when the ordinance attempted to legalize existing TVRs- ones that had been operating without special use permits- in the residentially zoned land by creating a process for “grandfathering” them while banning new ones.

Wednesday’s law allowed TVR owners on agriculturally zoned land to apply for permits once again even though they had essentially been cut off on March 7, 2008 when none were legally operating with a special use permit from the planning commission.

Many councilmembers have attempted to make an issue of a case note on HRS 46-4 (all the way at the bottom).

It says:

"Lawful use" and "previously lawful", as used in this section and land use ordinance, respectively, refer to compliance with previous zoning laws, not the building codes or other legal requirements that may be applicable to the construction or operation of a structure. 86 H. 343 (App.), 949 P.2d 183.

Both county attorneys and councilmembers who cite this note on “county zoning” procedures and “grandfathering” often conflate building codes, which may not be used to amortize or phase out uses, and zoning issues which may be used to deny grandfathering.

The lack of a special use permit is a undoubtedly a zoning violation not a building code violation and this is the key point that makes the claim that this section requires the gutting of 864 and the establishment of a process for ag land TVRs, at best a mistaken notion at worst a disingenuous falsehood.

Don’t forget- it isn’t the structure that is illegal, it’s the use of the structure for a TVR without a special use permit that violates the law.

Based on this let’s look at some of Wednesday’s statements and their veracity. For our purposes half-truths and equivocal statements to convey confusion are considered false

1) This bill will not create any new TVRs

False. There are no existing TVRs because TVRs require a special use permit and, according to both planning and the county attorney’s office there are no permits. Though the structures exist the TVR status does not. Any that are approved now will therefore be “new”

2) This bill does not legalize TVRs on ag lands

False. Since there never were any legal TVRs on ag land and ordinance 864 essentially ended the possibility of obtaining new special use permits, if any permits are approved now there will be “new” TVRs on ag land. Without that permit they have always been in illegal use and should and could have been shut down by the planning department. In that they were illegal before the bill passed it does indeed “legalize” the use if the owners follow the special use permit.

3) This is about fairness

False. For years these TVRs have been operating illegally without special use permits, fouling residential neighborhoods and creating nuisances and taking agricultural lands out of farming, jacking up land values and driving legitimate farmers off their farms. In addition those who played by the rules are now shut out of being able to hold onto their farms with truly “accessory to farming” overnight accommodations under a legitimate ag tourism plan.

4) All we are doing is providing for due process

False. Due process must be “due” under law. The ag land TVR owners were provided due process until March 7 2008 and did not take advantage of it.

5) The planning department can be counted on to provide stringent oversight and the planning commission will reject most of them especially the more egregious of ag land TVRs.

False. The planning department under Director Ian Costa made a joke of Ordinance 864 approving residential TVRs willy-nilly in batches without required inspections, making the public scrutiny part of the process all but impossible to accomplish in a timely manner. The commission just approved a massive mansion as a “farm dwelling” recently and even joked about it. The true joke is the notion that the planning commission will provide tight scrutiny.

6) Passage of the bill will prevent lawsuits.

False. What they will do is prevent the “deep pocket” suits developers will file and substitute members of the public as plaintiffs. That makes the decision a purely financial one based on a knuckling under to extortion. If the county wanted to save money they should have brought this to the courts many years ago by shutting down the TVRs outside the visitor destination areas, waiting for one to sue and defending the suit. They could still do that today but rather than protect the public’s right to determine land use they have made a purely financial decision. And they still will most likely get sued when the first TVR on ag land is rejected by the planning commission, assuming the county attorneys allow the commission to do so and don’t try to similarly scare them with the possibility of a lawsuit should they reject a permit application.

There are probably others less consequential and political in nature but we’ll leave it there.

This will be our last word on this for a while- we hope... at least until the permits start being processed. But while we’ll move on to the next issue many others will not.

Perhaps worse than the result is the feeling among many who have become active and participated in the debacle of a process that they won’t ever bother getting involved in another issue because it’s simply too draining when we lose out to big money just because that money talks in county government.

Their future apathy is the real loss here.