LIHU‘E — The owner of a transient vacation rental which was denied a non-conforming use permit will likely take his case to a higher court after a contested case didn’t go his way, according to county officials. The Kaua‘i Planning
LIHU‘E — The owner of a transient vacation rental which was denied a non-conforming use permit will likely take his case to a higher court after a contested case didn’t go his way, according to county officials.
The Kaua‘i Planning Commission on Tuesday unanimously adopted a decision from the hearings officer in a contested case stemming from a Planning Department denial to grant permits to a TVR in Kilauea, which was operating on ag lands.
“The commission today is making a decision whether or not to adopt the hearings officer recommendations and the findings of fact and conclusion of law,” Deputy County Attorney Mauna Kea Trask said.
“What I anticipate what’s going to happen — whether it’s to adopt, to reject or to modify — this issue will go up to the next step, which is the Circuit Court and maybe after that, the Hawai‘i Appellate Court.”
Ordinance 904, passed by the Kaua‘i County Council in 2010, allows owners of TVRs who were operating on ag lands prior to March 7, 2008, to apply for a permit, which can be granted upon a set of conditions.
“This matter was an appeal of the planning director’s decision,” Deputy County Attorney Ian Jung said. “The hearings officer held several hearings. One hearing on the intervention request — which was denied — and then three separate days of hearings taking evidentiary issues, as well as witnesses.”
As a result, the hearings officer came up with a report, which the department is in full support, said Jung. He asked the commission to accept and adopt the report, which backs up the denial.
“We feel that the hearings officer made some potential mistakes in the law and in the facts,” said Attorney Jonathan Chun, representing Robert D. Ferris Trust. Chun’s opinion, he said, “boils down” to two main points.
The department’s position, he said, focuses on the definition of “applicant” in the county Comprehensive Zoning Ordinance, and on the department’s own rules regarding the state’s special permits — they overlap.
Chun said rules for applicants in urban and ag zones are treated differently.
“We don’t believe it’s proper for the county to apply one definition for one set of properties, and then turn around in the same statute and apply another way,” he said.
Also, state law lets everyone apply for special permits, Chun said in response to a county requirement of approval by 75 percent of owners in a given property made up of Condominium Property Regime lots.
Chun’s client failed to meet this qualification, as two out of four CPR owners were against the TVR, according to Jung.
“How can the county limit that right to only people with 75 percent interest?” Chun said.
Jung said the county does have the right to apply its rules on lands smaller than 15 acres, which is the case in the TVR in question.
In response to Chun’s arguments of different set of rules for applicants on urban and ag zones, Jung said, “There is a clear distinction between land use classification.”
To Chun there was still a conflict.
“An agency cannot adopt any rules that conflict with the state law statute, it has to be consistent,” said Chun, adding that county rules have to be consistent with the state law, and he doesn’t believe the hearings officer said that, he just said there were rules.
To Jung, there is a separate forum to argue that.
“If Mr. Chun’s wants to challenge how those rules and procedures were done, he can certainly do that, but that would be in a separate forum, at Circuit Court,” Jung said.
As all the cards were laid out, Commission Chair Jan Kimura looked at commission members, searching for the next step.
“What do you suggest? Going to executive session on this or you guys are ready to make a decision on it?” Kimura said.
At least three commissioners said, “I’m ready.”
“I move that we accept in its entirety the decision,” said Commissioner Wayne Katayama, whose motion was immediately followed by a second and a unanimous approval.
