Vacation rental reversal?

NAWILIWILI — A bill still in the germinating stage may lead to the explicit legalization of hundreds of existing transient vacation rentals on agricultural land.

These TVRs were left out of the process two years ago when the county gave other vacation rental owners, such as those on residential-zoned land, an opportunity to become legit while denying those who were operating on agriculture lands.

On March 7, 2008, the late Mayor Bryan Baptiste signed a law to approve a bill allowing vacation rental owners to apply for use permits. The condition was that they had to have been paying taxes and keeping receipts. The law, however, excluded vacation rentals operating on agriculture-zoned lands.

The new bill, proposed by Kaua‘i County Councilman Tim Bynum, seeks to legalize vacation rentals on agriculture lands.

“Legally we can’t deny use because of zoning violation,” said Bynum, adding that the county cannot legally deny owners an opportunity to become legit if they can demonstrate they have complied with the law.

When the bill was originally finished at the end of 2007, it allowed owners of vacation rental units on all different zonings to apply for a permit.

But later then-Councilwoman JoAnn Yukimura asked the council to reconsider it to disallow owners operating on agriculture lands, according to Councilman Jay Furfaro. The council then reviewed the bill and approved it with Yukimura’s amendment.

“None of those people on the ag lands could then apply. They didn’t have the right to apply,” said Furfaro.

Furfaro is now saying if those owners are not allowed to apply, there might be legal issues. “Not only the county accepted tax money, but the state accepted revenue,” he said.

“We take an oath in office that talks about protecting the county’s wellness, and part of that is not getting ourselves tied up in a bunch of lawsuits,” Furfaro said.

Former Councilman Mel Rapozo said when the bill passed in March 2008, the vast majority of the council then felt that vacation rentals on ag land were not in compliance with state law.

“Since then there has been many attempts to allow vacation rentals on ag land,” said Rapozo, calling the recent bill as the “most disturbing” because it also removes enforcement.

Rapozo, citing an opinion signed by Deputy Attorney General Bryan Yee and approved by Attorney General Mark Bennett, questioned the legality of the county allowing TVRs on agricultural lands.

“If it doesn’t apply to the farming activities — and believe me, tourists do not support the farming activities — it’s not allowed,” said Rapozo, citing Yee’s opinion.

Because the issue pertains to a state law governing agriculture, Rapozo said state attorneys should be consulted rather than county attorneys.

Rapozo called the General Plan a guiding document. “It does not trump state law,” he said.

Furfaro said that in state law, counties have jurisdiction to change zoning of lands smaller than 15 acres.

“This bill is about complying to an ordinance called the General Plan,” said Furfaro, adding that the General Plan does not ask for termination, but managing and regulation of TVRs.

The bill, Furfaro said, is not about allowing vacation rentals to grow, but about providing an opportunity to declare that they’re legal.

“This bill is not an attempt to circumvent the law, it is an attempt to comply with the law,” Bynum said.

Furfaro said there might be some confusion regarding deadlines and conditions.

“They still have to meet all codes, conditions, show their records and so on,” said Furfaro, adding that owners will also have to prove that they were actively operating legally on March 7, 2008, otherwise they won’t be granted a permit.

Bynum said the new bill still sticks to the operating deadline of March 7, 2008. “Nobody is trying to change that; that’s said and done,” he said.

The new bill proposes that when it’s approved, owners will have 60 days to legalize their TVRs. If they miss the deadline, they can still have a year, but will have to pay a $500 fine.

Furfaro disagreed with the year-long allowance. “I have no idea why people need more than 60 days,” he said.

Rapozo said the way the bill is written there’s no physical enforcement.

Hanalei-Ha‘ena Community Association Board Member Barbara Robeson said many property owners have abused the current ordinance, claiming they have been running a TVR, and obtaining a permit, despite no such activities.

“They would be committing major fraud; they can go to prison for that,” Bynum said.

Bynum said that while crafting the bill he has been advised that for the purpose of this bill there’s no need for inspection, but it doesn’t mean that inspection is not done, just not needed.

“Maybe that’s not correct; we gotta look at it,” Bynum said.

Furfaro said that to obtain a permit, tax records will have to be shown, minimizing possibility of fraud.

“The bill doesn’t say we are giving you a chance to pay your taxes — you have to have paid your taxes,” Furfaro said.

Bynum said no bill in its first reading is perfect.

“It’s very rare that a bill like this wouldn’t get amended,” he said.

There’s a group of people who think TVRs shouldn’t be allowed, while others think TVRs are a good for the economy, Bynum said.

“The truth, I believe, is in the middle,” he said.