Commission rules county can deny vacation rentals on ag land

Short-term vacation rentals do not belong on agricultural land, the state Land Use Commission ruled Thursday in upholding Hawaii County’s authority to deny that use.

The unanimous vote came after commissioners heard hours of testimony throughout three meetings from attorneys for the county, the state Office of Planning and a group of 20 Kailua-Kona, Waimea and Captain Cook landowners.

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Commissioner Gary Okuda, in making the motion to uphold the county law and deny the property owners’ petition, stressed that Hawaii is under a mandate from the state Legislature to work toward self-sustaining agriculture and food security. That’s not going to happen if the state doesn’t protect its agricultural lands, he said.

“There is no prohibition in case law that would prevent the County Council in exercising its legislative judgment … in determining further management methods or further management actions to protect agricultural land in the County of Hawaii,” Okuda said.

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. More than 1,500 of the county’s approximately 4,000 STVR applications last year were for nonconforming use certificates, primarily for agricultural land.

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.

Cal Chipchase, attorney for the property owners, said the county law is flawed because it bases the legality of using farm dwellings on duration of stay, not on actual use. The county allows people to live in farm dwellings without farming, he said, as long as it’s for more than 30 days.

“The use does not matter to the county,” Chipchase said. “Everything comes down to duration.”

County Deputy Planning Director April Surprenant said property owners applying for a farm dwelling sign an affidavit saying the land will be used for farming or housing farm families. The county sometimes takes those affidavits at face value, she acknowledged.

“We could not force you to buy a tractor or put a hoe in your hand,” Surprenant said.

The state Office of Planning sided with the county, with Dawn Apuna, a deputy attorney general representing the Planning Office, characterizing the landowners’ arguments as a “red herring,” that’s “controversial and time-consuming.”

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“The county’s ability to enforce is completely irrelevant,” Apuna said. “The issue before this commission is simple, but it’s been twisted by extraneous arguments. … The commission must set these distractions aside and focus on whether a farm dwelling be used as a(n) STVR.”

Email Nancy Cook Lauer at ncook-lauer@westhawaiiotday.com.

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