No Permits for Vacation Rentals in Conservation District
To young Leah Suesen, the thought of her hometown becoming a “horizontal hotel” scares her. Suesen, one of more than 100 Ha`ena residents opposed to the proliferation of vacation rentals there, asked the Board of Land and Natural Resources last month to think about her generation and future generations before deciding whether to allow a handful of Ha`ena landowners to continue renting out their homes to tourists.
Over the last 40 years, the Land Board has issued 53 Conservation District Use Permits for single family residences in Ha`ena, located on Kaua`i’s scenic north shore. In the process of acquiring those permits, many landowners agreed to conditions prohibiting them from renting or using their homes for commercial purposes. Even so, several permittees have chosen to market and rent their properties to visitors for $1,000 to $8,000 a week, according to a Department of Land and Natural Resources report.
Last year, the DLNR began taking steps to crack down on those permit holders who appeared to be using their Ha`ena homes as vacation rentals. Last March, the department sent 16 letters to landowners – at least half of whom reside on the mainland – asking them to cease unauthorized commercial use of their homes by June 30 or face fines of up to $2,000 a day.
A month later, attorney Roy Vitousek, representing all but two of the landowners who had received letters, asked the DLNR to give them until January 15, 2008, to stop the rentals and also requested a contested case hearing. The DLNR responded on September 6 that it might allow a time extension if the landowners submitted affidavits stating that they would stop using their homes for rental or any other commercial purpose, and actually stop such uses on January 15, 2008. If they did not agree, the DLNR wrote that it would take enforcement action starting January 1.
Instead of agreeing to the DLNR’s terms, Vitousek filed on September 10 a petition for a deviation from the CDUP conditions banning rentals and commercial use. Vitousek has argued that the condition is unreasonable and unenforceable and noted that there are “essentially identical properties in the adjoining area of Wainiha which are in the Urban District and zoned for residential use.” (Urban District land uses are regulated by the county; Conservation District uses are regulated by the state DLNR.)
On October 26, the request for a deviation was brought to the Land Board. At that meeting, Sam Lemmo, administrator of DLNR’s Office of Conservation and Coastal Lands, recommended that the board set aside the request and allow the office to complete its investigation of alleged permit violations.
“[W]e believe that this request…is premature. It would represent a digression from our efforts to enforce our conservation laws. We have to keep in mind that these people …the people that have been the subject of the investigation have been aggressively marketing vacation rentals on internet sites, through marketing companies, through management companies and this is clearly, in our determination, at odds with the intent of the Conservation District and the specific conditions of those permits,” Lemmo told the board.
In the course of discussing how to proceed, deputy attorney general Colin Lau pointed out language in the DLNR’s rules that OCCL staff had overlooked. Lau noted that the rules state that “failure to secure Board approval for deviation before such a deviation occurs constitutes cause for he permit revocation.”
At Land Board chair Laura Thielen’s prompting, Vitousek admitted that in seeking the deviation, he was acknowledging that his clients are involved in rental activity.
“It’s not really fair, facing an enforcement proceeding, to ask counsel to make admissions on behalf of the client. But I believe there are owners here who are doing short-term vacation rentals,” he said.
Despite Vitousek’s admission and Lau’s indication that the deviation request constituted grounds for revoking some of the permits, the Land Board chose to defer the matter until its December meeting to allow more time to consult with its counsel.
On December 7, Vitousek submitted a proposal to resolve the rental dispute. Under its terms, the permits would be amended to prohibit commercial uses, but allow rentals. Transient vacation rentals would be allowed only under certain conditions. The hui of landowners would also seek to create a special Ha`ena Hui conservation/residential subzone.
At the Land Board’s December 14 meeting, Lemmo explained that in evaluating any deviation request, the Land Board must determine that the deviation: 1) is necessary because of the lack of practical alternatives; 2) shall not result in any substantial impacts to natural resources; 3) is not inconsistent with the public health, safety, and welfare; and 4) does not conflict with the objectives of the subzones.
Lemmo argued that the proposed deviation does not meet these criteria. Furthermore, he reminded the board that DLNR rules require a deviation request be made before a deviation occurs.
“Really, we should be sitting here talking about a revocation, perhaps, not a deviation,” Lemmo said.
Lemmo said his division felt the landowners were essentially seeking a new use of the Conservation District. Without a new Conservation District Use Application, an environmental assessment, or any public hearings on this new use, “we have nothing before us that suggests this is an appropriate use of conservation lands,” he said.
Several Ha`ena residents testified against the deviation and discussed how the explosion of tourists in the area has affected their daily lives. Suesen submitted a petition signed by 106 Ha`ena residents asking that the Land Board deny the deviation request.
Wendy Wichman, whose family has lived in Ha`ena for 60 years, suggested that the permit conditions prohibiting rentals and commercial uses may have been a response by the Land Board to the increasing impacts of tourism in the area.
She noted that the intent if the limited subzone is to limit use where “natural conditions suggest constraints on human activity.”
“This is very true of Ha`ena…These homes are lucrative rentals for this very reason, that they exist in a limited subzone that’s protected from excessive development. It seems wrong that a property owner can agree to conditions that make their property valuable in the first place and turn around and disregard those same restrictions,” she said.
The Land Board seemed to agree and voted unanimously to deny the deviation request. With regard to Vitousek’s earlier request for a contested case hearing, the Land Board determined after an executive session that one would not be allowed.
— Teresa Dawson
Volume 18, Number 7 — January 2008
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