More vacation rentals may be popping up on farmland, based on a recent ruling by a Kona judge.
The future of Hawaii County’s authority to prohibit short-term vacation rentals in agriculture districts hangs in the balance, after the 3rd Circuit Court judge overturned a state Land Use Commission ruling upholding the county’s right to do so.
The commission filed a notice of appeal Thursday with the Intermediate Court of Appeals and plans to discuss its appeal at a Wednesday meeting in Honolulu and via Zoom. Information about participating and submitting public testimony is available at https://luc.hawaii.gov/wp-content/uploads/2022/05/Agenda-for-JUNE-8-2022.pdf .
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 agriculture district and want to pursue short-term rentals.
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.
Farm dwellings are defined in state law as single-family dwellings located on and used in connection with a farm or where agricultural activity provides income to the family occupying the dwelling. Attorneys for the county and the land use commission argued that income from vacation rentals wasn’t properly agricultural activity and therefore disallowed.
The judge agreed with the petitioners, represented by Honolulu attorney Cal Chipchase, that state land use law doesn’t specify the allowable duration of leases of farm dwellings.
The 20 Kailua-Kona, Waimea and Captain Cook landowners contend that the county’s ban on the rentals of less than 30 days in agriculture districts was in error and an abuse of the commission’s discretion. In addition, they charged, the county’s zoning ordinance was an unconstitutional taking of private property without just compensation.
DeWeese agreed with the first two contentions but said the takings argument was not properly before the commission and therefore wasn’t considered by the court.
“As neither the plain language of (state land use law) regulated any of the three specific factual elements of a short-term vacation rental as of June 4, 1976, the County’s interpretation of State law, as contemplated in the language of the Ordinance, is incorrect,” DeWeese said in her order. “The plain language of the clause does not speak to how long the family is occupying the dwelling. Indeed, no provision of HRS Chapter 205 regulated the period for which a farm dwelling may be rented.”
The ultimate ruling will have far-reaching ramifications. Some 1.2 million acres on Hawaii Island — almost half of the land mass — is classified as agriculture. More than 1,500 of the county’s approximately 4,000 STVR applications during the first year of the program in 2019 were for nonconforming use certificates, primarily for agricultural land.
About 50 owners of property in the agriculture district have appealed the county’s denial of their short-term vacation rental and nonconforming use applications to the county Board of Appeals. Those appeals have been on hold while the Rosehill case proceeds through the legal process.
