On August 13, the state Land Use Commission unanimously approved a petition from Hawaiʻi County for a declaratory order confirming that short-term vacation rentals (STVR) are not acceptable uses of farm dwellings in the Agricultural District.
The commission also denied a petition by owners of STVRs in the island’s Agricultural District to have the LUC find that such use is allowed under state law and the county’s 2018 ordinance regulating STVRs. All of the owners had applied for non-conforming use certificates to continue using their dwellings as vacation rentals under the ordinance, but were denied by the county Planning Commission.
Their attorney, Cal Chipchase, argued that the ordinance prohibits only those rentals of less than 31 days outside permitted STVR zones and does not speak to how a dwelling is used. Given that, he argued, STVRs in the Agricultural District would not necessarily conflict with state statutes that require that farm dwellings be 1) where the dwelling is used in connection with a farm or 2) where agricultural activity provides income to the family occupying the dwelling.
“Who is using [the farm dwelling] and why it’s being used is entirely irrelevant to the county. All that matters is 31 days. Even if the tenant was a farmer who was going to farm the property for less than 31 days, it would be considered a short-term vacation rental [under the ordinance],” he said.
“If the county petition is granted, you cannot rent a farm dwelling for less than 31 days for any reason,” he warned.
Even though the county STVR ordinance does restrict how a dwelling is being used, “the problem I keep having is that it’s the use that matters,” Commissioner Nancy Cabral told Chipchase.
John Mukai, corporation counsel for Hawaiʻi County, later pointed out that in this case, all of the petitioners Chipchase represents have applied for a non-conforming use certificate to continue their STVRs. “So there is an admission by the petitioners that their activity falls within the definition of your short-term rental,” he said.
Several commissioners said they found arguments presented by Dawn Apuna, counsel for the state Office of Planning, particularly convincing. Apuna pointed out that STVRs are not a permitted use under Chapter 205 of Hawaiʻi Revised Statutes, which describes the uses allowed in the various state land use districts. “Importantly, if the use is not listed, it is prohibited,” she said.
Apuna explained that purely residential use of dwellings has never been allowed in the Agricultural District, even before Ch. 205 was amended in 1976 to define the term “farm dwelling.” In 1962, she said, the attorney general opined that a single-family residence could not be sustained if it subverted the agricultural intent of the Agricultural District. Otherwise, it would “render district boundaries meaningless,” she said.
“As controversial and time-consuming as these distractions have been, they are … irrelevant,” Apuna said of the STVR owners’ arguments.
Planning directors for Maui, Kauaʻi, and Honolulu all submitted letters in support of Hawaiʻi County’s petition, as well.
Kauaʻi planning director Kaʻaina Hull stated that his department had received applications for non-conforming use certificates for transient vacation rentals (TVR) in the Agricultural District and county ag zone “and none of them could meet the definition of a farm dwelling unit.”
He added that some TVR owners then sought special use permits, which allow for uses that are otherwise prohibited in the Agricultural District. Qualified applications were approved. “The special permit process under HRS 205-6 underscores the regulatory regime’s process to entertain TVR uses on agricultural lands dependent upon each respective county’s zoning regime; however, it also further underscores that TVRs are not farm dwellings, and TVRs are not an outright permissible use on agricultural lands,” he wrote.
Commissioner Dan Giovanni asked Mukai whether Hawaiʻi County has a process similar to Kauaʻi’s, by which a landowner could apply for a special permit for its STVR.
“Yes. These petitioners could do the same thing,” Mukai replied.
“You’re saying they don’t automatically get an STVR in a farm dwelling,” Giovanni pressed.
“It would be a non-conforming use and we would require a special permit,” Mukai replied.
Commissioner Gary Okuda made the motion to grant the county’s petition and deny the STVR owners’. He raised the fact that the commission, in a previous order, found that Chapter 205 does not authorize residential dwelling as a permissible use in the Agricultural District, unless it’s related to an agricultural use or is a farm dwelling.
Commissioner Dawn Chang later added, “Clearly, other counties agreed with that. We received testimony from all other counties. This demonstrates the desire to have the LUC define farm dwelling and the intention of agricultural lands … that the farm dwelling has to be related to agricultural activities.”
— Teresa Dawson