A resolution moving forward in the state Legislature threatens to undermine county ordinances regulating vacation rentals on agricultural land, but may clarify an ambiguous state law affecting hundreds of landowners, officials said yesterday. Critics ranging from county councils to farm
A resolution moving forward in the state Legislature threatens to undermine county ordinances regulating vacation rentals on agricultural land, but may clarify an ambiguous state law affecting hundreds of landowners, officials said yesterday.
Critics ranging from county councils to farm bureaus submitted testimony last week strongly opposing the proposed legislation and questioning the abnormal process by which it was submitted.
They say vacation rentals raise ag land prices and the resolution is an inappropriate vehicle speeding to address a controversial issue that needs thoughtful deliberation.
Supporters, including the Kaua‘i Board of Realtors and Maui Vacation Rental Association, are pushing to pass the measure — which could carry some weight but not the full force of a law.
They say state statutes do not prohibit vacation rentals on ag land and farmers need the supplemental income to survive tough financial times in a declining industry.
The resolution, which morphed from unrelated legislation, has been amended to ask the attorney general for a legal opinion on whether vacation rental uses in single-family and farm dwellings in state agricultural districts are prohibited by law. It crossed over to the Senate on Monday, but has not been scheduled for a hearing.
Kaua‘i County Council on Feb. 20 passed an ordinance similar to a Maui law that explicitly makes single-family transient vacation rentals illegal on ag land.
State Rep. Ken Ito, D-48th District, introduced the proposed draft of the resolution at the request of Rep. Roland Sagum, D-16th District.
The Kaua‘i lawmaker said in a statement yesterday that local farmers asked for his assistance.
“They needed a legal clarification on whether they, as farmers, were allowed to operate transient vacation rentals within state agricultural districts without a special use permit,” Sagum said. “This called for a resolution rather than a bill, but the deadline for introducing new resolutions had passed on March 12.”
The stalled HCR 348 was identified as a vehicle for the vacation rental resolution, he said.
Rushing around
The House Committee on Water, Land, Ocean Resources and Hawaiian Affairs this month gutted House Concurrent Resolution 348, replacing its title and contents but retaining the number.
A House draft proposed April 2 peddled a resolution asking the Land Use Commission as well as Maui and Kaua‘i counties to recognize that state law does not prohibit vacation rental uses in single-family and farm dwellings.
A notice was posted April 2 for the April 4 hearing, Sagum said, “to give the public adequate time to view the new language.”
Officials scrambled to submit last-minute testimony, Kaua‘i County Councilwoman Shaylene Iseri-Carvalho said.
The resolution could “significantly hamstring this county’s efforts to regulate transient vacation rentals,” Kaua‘i County Council Chair Bill “Kaipo” Asing said in his testimony.
He and other critics pointed at the time spent researching zoning laws, consulting with attorneys and gathering public input before voting on the ordinances.
“We heard years of testimony and the stroke of a pen could change all of that,” Iseri-Carvalho said yesterday.
After hearing mixed testimony, the WLH Committee on April 4 amended the legislation to request a legal opinion on the matter. It noted that “alternative visitor accommodations, including those in single-family dwellings and farm dwelling units, play a dual role in supporting both the tourism and agricultural industries.”
State Sen. Gary Hooser, D-Kaua‘i, said a formal resolution is not needed to request a legal opinion from the attorney general, but it could help illustrate the importance of the issue.
The amended resolution is a step in the right direction, Iseri-Carvalho said, but still falls short.
“I’m glad that they responded to some of our concerns that were raised in our testimony,” she said in a statement on Friday. “It, however, still doesn’t recognize that the counties’ interpretation was based on the state’s own (Land Use Commission) director’s opinion. Further, clearly the Legislature was ‘divided’ itself on their interpretation, as it was ludicrous that they were urging only two of the four counties to use their interpretation of a state law.”
Asing said in his testimony that the council consulted with Tony Ching, then director of the state Land Use Commission, who advised that overnight accommodations are not permitted on agriculturally zoned land based on “his own plain reading” of HRS Chapter 205.
The Kaua‘i county attorney’s opinions on the matter have not been made public.
Local attorney Jonathan Chun, representing the Kaua‘i Board of Realtors, submitted a two-page testimony supporting the unamended draft of the resolution.
He said the owners of transient vacation rentals on ag land have been made “the scapegoat for the decline of agriculture.”
“As everyone knows, the history of HRS Chapter 205 as it relates to ‘farm dwellings’ and what is allowed within the state agricultural district is wrought with ambiguity, confusion and frustration on both sides of the argument,” he said. “The main problem is that neither the state nor the county have consistently and clearly articulated through legislation how much ‘agriculture’ or ‘farming’ is enough in order to be considered a ‘farm dwelling.’”
“Added to this mix is the lack of a viable market, a sufficient water supply and ‘agricultural’ land that is marginal, at best, for agriculture use leaves many landowners with no choice but to find other sources of income in order to support themselves and their families,” he said.
Sagum said “many small farmers” approached him with this dilemma.
“They are providing alternative visitor accommodations in either their single family home or farm dwellings as a way to earn more income,” he said.
Wait and see
Council members said that a state-mandated study to identify “important agricultural lands” could help resolve the dispute.
The Kaua‘i County Council budgeted $500,000 for the county Planning Department to conduct the study, but the completion date remains uncertain.
Iseri-Carvalho said it is premature to address vacation rentals on ag land without the study.
“It may be that vacation rentals will work on lands presently in agriculture that are not true agricultural lands and whose main purpose would not be agriculture,” County Councilwoman JoAnn Yukimura said in her testimony.
The policy suggested in the resolution, she said, assumes that vacation rentals are compatible with agriculture, which is not true except in carefully circumscribed situations.
“We all know that vacation rental use of agricultural lands will drive up the price of land far beyond the ability of farmers to farm such land in an economically feasible way,” she said. “It can be argued that transient vacation rental income might support agricultural activities, but too often the agricultural part is a charade to hide the fact that the vacation rental function is the main function of the property — e.g. a 10,000-square-foot mansion on an ag lot with a few fruit trees or a couple of horses.”
‘Gut and replace’
The amended resolution was referred to the Senate Committee on Water and Land and the Committee on Intergovernmental and Military Affairs.
If the committees do not schedule a hearing for it and/or do not pass it, it dies, just like a bill, said Jeannie Yamakawa, a communications aide in the Office of the Senate Majority Leader.
Hooser said the “gut and replace” process of introducing legislation is “fairly common” — generally done to put forth a measure if a deadline was missed.
Iseri-Carvalho called the tactic “bizarre.”
“It really opens my eyes to the legislative process and how things can really get muddled if you’re not kept up to date,” she said, noting the critical need for counties to have government watchdogs at the state level.
• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com
