Following the 1982 state law authorizing timeshares, our county council decided to adopt provisions that would limit transient accommodation growth and over 20 years ago adopted an ordinance that divided the county into two zones — one which was designated
Following the 1982 state law authorizing timeshares, our county council decided to adopt provisions that would limit transient accommodation growth and over 20 years ago adopted an ordinance that divided the county into two zones — one which was designated the Visitor Destination Area (VDA) and the other the rest of the county. The VDA included Princeville, Kapa‘a, Lihu‘e and Po‘ipu and was intended to provide locations for visitor accommodations for tourists such as hotels, timeshares and the transient vacation rentals. The ordinance provided that vacation rentals and other visitor accommodations would be lawful in the VDA and the intention appeared clear that such accommodations would not be legal elsewhere. However, then Deputy County Attorney Blaine Kobayashi early on issued an opinion that as the ordinance did not expressly prohibit vacation rentals in non-VDA areas they would be legal if otherwise in conformance with law.
Seldom in our county has a lack of clarity in an ordinance spawned so much controversy. Galvanized by the loophole found in the VDA ordinance, construction of residential units utilized for seasonal accommodations proliferated. According to the 2006 Bill 2204, some 45 percent of residential units constructed between 1990 and 2000 were for seasonal rental use and from 2000 to 2005 the percentage for the transient-vacation-rental market was 52 percent, far exceeding units built for local families to rent or to own. Many of these new units were built in the non-VDA zone. Some communities like Hanalei were overrun with vacation-rental properties with a large percentage of them failing to comply with zoning ordinance requirements.
In its initial version Bill 2204 bravely sought to implement the original intent of invalidating all transient vacation rentals in the non-VDA zones. Faced with vigorous opposition from land owners and tourist organizations our jellyfish council retreated. For about two years the bill was amended and shelved. When the bill finally emerged from its ordeals, existing TVRs in non -VDA zones were “grandfathered,” meaning that the location was protected as well as the owner, these TVR owners were subjected to certain reporting requirements, new TVRs were prohibited in non-VDA zones and TVRs were prohibited on agriculture lands whether in existence or not.
Although the enactment of 2204 was a weak-kneed and imperfect compromise that pleased no one, it was hoped that it might be a disposition of the non-VDA TVRs issues.
But it was not to be. This year again some council members knuckled under to pressure from their patrons, owners of ag-land properties who contended that they needed to have seasonal rental accommodations for non-residents, in order to earn adequate income from their holdings, and Bill 2364 was born.
While the new bill imposes certain procedural requirements, its key provision is to allow TVRs on agricultural lands.
The situation is familiar. Property owners want additional ways to develop or use their properties. In general the council has been responsive to the aspirations of (and pressures from) the landed interests and less willing to support the citizens who seek to stem the developmental tide.
A complicating factor is that there is no responsible criteria as to what should be considered ag land. Because of haphazard zoning and CPRs of larger parcels, Kaua‘i now considers many parcels as ag land even though they are too small to be meaningfully usable for agricultural purposes. It seems good policy to require as state law does that land classified for agricultural use be exclusively devoted to that purpose, but applying that policy to parcels that are not usable for agricultural use is dubious. The identification of what is agricultural land should not be left to historical accident but should be based on utility criteria.
Another consideration is that the Hawai‘i attorney general has opined that state law Section 205 prohibits TVRs on ag lands. Such an opinion unless withdrawn or modified should be a death knell for the bill as state law takes precedence over county enactments. Other legal analysis indicates existing ag land TVRs have been illegal. However, the Kaua‘i County Council has a cocoon mentality with a predilection to ignore laws that interfere with what they would like to do. It appears that their rationale is that their actions will be supported by the county attorney and approved by the Kaua‘i courts. In cases such as those in the proposed ordinance it is remote that any citizen would be willing to incur the costs and risks of challenging the enactment of the bill. So in their view the threat of litigation to invalidate their action is inconsequential.
The process of consideration of Bill 2364 has been replete with political maneuvers. The most egregious was the reported nocturnal visit by the county attorney and two deputies bearing alcoholic beverages to the residence of a council member possibly to discuss legal issues but more likely to solicit a favorable vote. Although this sojourn was not obviously illegal, it clearly violates the spirit of the charter Code of Ethics calling for a high standard of integrity and morality and avoiding the appearance of impropriety.
Eventually at its meeting on July 29 the Council by a 5 to 2 vote adopted Bill 2364. A solid cross section of “good” government witnesses and observers were distressed by the action taken and threats of November retaliation at the polls were heard. But Kaua‘i elections are decided by name recognition and not issues so reelection of the four bill-supporting, council-member candidates seems likely and the landed interests will most probably continue to work their way with susceptible members of our council.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
