The county Board of Appeals has determined that laws governing state and county agriculture project districts don’t prohibit landowners from using their farm dwellings for short-term rentals, as long as they also live on the property.
The board Friday unanimously dismissed two petitions from neighbors about a property owner of a five-acre parcel in Captain Cook dubbed “Konania Villas,” that is advertised on vacation rental sites as three two-bedroom, two-bath interconnected villas with a shared courtyard, pool and patio in a “fruit orchard retreat.”
The neighbors have 15 days to appeal the decision with the board once they receive the written findings.
That may just be the case for one of the neighbors, William Gage, who represented himself at the hearing. He became disgruntled after he learned he’d missed whatever opportunity there was to present arguments about his case.
“I was going to suggest that you let us have one little tidbit of opportunity to present something to you before you took the action that you just did,” Gage said, “but you’ve acted and I guess we will live with it and take the next appropriate steps whatever that may be.”
A group of neighbors had filed complaints with the Planning Department, saying the owners of the property at 81-905 Makahiki Lane had neither registered nor obtained a non-conforming use certificate under the county’s short-term vacation rental law. In addition, five of the eight complaint letters said, the county agriculture project district doesn’t allow the short-term rentals.
Planning Director Zendo Kern in February denied the complaint, saying the owners, Ryan Andrew Neal and Beata Marie Zanone, were not in violation because Neal lived on the property and there was an agriculture use in the cultivation of lychee, rambutan and citrus fruits. The short-term vacation rental law governs only rentals that are not also occupied by the property owner, unlike a bed and breakfast.
“There is no doubt that there is no application of the short-term vacation rental ordinance to my clients,” said Kailua-Kona attorney Patrick Wong, representing Neal and Zanone. “It doesn’t apply as the director determined.”
But Kona attorney Michael Matsukawa said the Planning Department, the public and even some of those filing the original complaints were missing the more important point, that such rentals aren’t among the approved uses of farm dwellings in county agriculture project districts, a special category set up by county law in 1997.
“What is before you are complaints pertaining to activity in the county agricultural project district which has its own rules and regulations,” Matsukawa said. “The properties in this case all were put into the county agricultural project district. … The county also crafted ordinances governing what uses could be made of land in county agricultural project districts.”
Deputy Corporation Counsel Suzanna Tiapula, representing the Planning Department, disagreed.
“The planning director’s decision was not erroneous and we concur with landowner,” she said. “Within the agriculture district there is no provision that limits the landowner from renting a portion of their residence. There is nothing to address the duration of that rental within the use.”
Board member David Wiseman sided with the department as well.
“I’m of the position that the director correctly applied the Hawaii County county code when they closed the complaint and that it’s not their province to get involved in private property disputes,” he said.
