State Land Use Commission takes up Hawaii County’s STVR law

By Nancy Cook Lauer West Hawaii Today ncook-lauer@westhawaiitoday.com | Monday, July 27, 2020, 12:05 a.m.

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  Owners of this Kailua-Kona 5,0000-square-foot, $15,000 monthly short-term vacation rental on agricultural land is one of 20 asking the state Land Use Commission to rule their STVR an allowed use. (Map data: Google, DigitalGlobe/Special to West Hawaii Today)

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The question of whether Hawaii County can prohibit short-term vacation rentals on land classified as agriculture is now in the hands of the state Land Use Commission.

Both the county and a group of 20 Kailua-Kona, Waimea and Captain Cook landowners have asked the LUC for a declaratory ruling. The commission considered the issue Thursday, then postponed the hearing until Aug. 12.

The ruling will have far-reaching ramifications. Some 1.2 million acres on Hawaii Island — almost half of the land mass — is classified as agriculture.

State law requires houses to be farm dwellings and have a connection to agriculture if they’re built on land classified under the state system as being in the agricultural district. The farm dwelling requirement took effect June 4, 1976, leading the county Planning Department to allow nonconforming use permits only for STVRs on lots created before that date.

Farm dwellings are defined in state law as single-family dwellings located on and used in connection with a farm or where agricultural activity provides income to the family occupying the dwelling.

“Farm dwellings may not be used as short-term vacation rentals,” Deputy Corporation Counsel John Mukai said. “Farm dwellings can only be used in connection with agricultural use and not for residential use.”

The property owners disagree.

“Contrary to the County’s understanding of Chapter 205, the laws governing the State Agricultural District do not regulate the length of rental agreements,” said Cal Chipchase, attorney for the property owners in filings. “Cutting through the doubletalk, County Ordinance No. 2018-114 allows anyone to rent a “farm dwelling” located in the State Agricultural District for residential or vacation purposes as long as the lease is for 31 days or more.”

Chipchase points to testimony by county Planning Director Michael Yee that the county considers buildings built on agricultural land to be farm dwellings as long as the owner signs a farm dwelling agreement. There is little, if any, enforcement afterward to see if there is indeed any farming going on.

Under grilling from two commissioners, Yee on Thursday tried to clarify the position. A farm dwelling, he said, is a permitted use on agricultural land, while an STVR is not.

If someone signed a farm dwelling agreement and then doesn’t farm, “they’d be in violation and we may not find out five years down the road, 10 years down the road,” but farm dwellings are still a permitted use, Yee said.

An STVR, on the other hand, isn’t a permitted use, Yee said, ”just as we wouldn’t necessarily allow a junkyard on that land.”

Mary Alice Evans, director of the state Office of Planning, agreed with the county’s interpretation of the law.

“Even if the county has not been effective in its enforcement of HRS § 205-4.5(a)(4), i.e., to identify and prosecute owners/operators of farm dwellings operating as STVRs, the law has always required that a farm dwelling be used in connection with a farm, and not for just residential uses or STVR uses,” Evans said in a July 17 filing. “The inability of the county to enforce these statutory provisions does not render the law invalid nor does it render the violators of the law in compliance or not subject to the law. … Accordingly, it is incumbent on the Commission to protect the Agricultural District by upholding the purpose and intent of the State Land Use Law by declaring that a STVR is not a permitted use of a farm dwelling in the Agricultural District.”