Farm dwellings as vacation rentals: Judge overturns county ban on short-term rentals in ag districts

More holiday rentals might be popping up on farmland, based mostly on a new ruling by a Kona decide.

The potential of Hawaii County’s authority to prohibit limited-phrase getaway rentals in agriculture districts hangs in the stability, soon after the 3rd Circuit Court decide overturned a condition Land Use Commission ruling upholding the county’s ideal to do so.

The fee submitted a discover of enchantment Thursday with the Intermediate Court docket of Appeals and plans to go over its charm at a Wednesday meeting in Honolulu and via Zoom. Information about collaborating and publishing community testimony is readily available at https://luc.hawaii.gov/wp-articles/uploads/2022/05/Agenda-for-JUNE-8-2022.pdf .

Circuit Decide Wendy DeWeese, in a Could 2 buy, denied a petition by the county and condition to uphold the county STVR rules even though granting a petition by a team of loved ones trusts — dubbed the “Rosehill Petition” — who individual land in the agriculture district and want to pursue shorter-term rentals.

State law requires residences to be farm dwellings and have a relationship to agriculture if they’re built on land labeled underneath the condition procedure as staying in the agricultural district. The farm dwelling prerequisite took influence June 4, 1976, leading the county Setting up Office to allow nonconforming use permits only for STVRs on heaps created ahead of that date.

Farm dwellings are outlined in condition legislation as solitary-family dwellings located on and employed in link with a farm or where by agricultural exercise provides money to the spouse and children occupying the dwelling. Attorneys for the county and the land use fee argued that revenue from holiday vacation rentals was not properly agricultural activity and thus disallowed.

The choose agreed with the petitioners, represented by Honolulu lawyer Cal Chipchase, that state land use legislation doesn’t specify the allowable period of leases of farm dwellings.

The 20 Kailua-Kona, Waimea and Captain Prepare dinner landowners contend that the county’s ban on the rentals of much less than 30 days in agriculture districts was in mistake and an abuse of the commission’s discretion. In addition, they charged, the county’s zoning ordinance was an unconstitutional using of private residence with out just compensation.

DeWeese agreed with the initially two contentions but explained the takings argument was not correctly ahead of the fee and hence wasn’t regarded by the court docket.

“As neither the basic language of (condition land use law) regulated any of the three certain factual features of a shorter-expression trip rental as of June 4, 1976, the County’s interpretation of State law, as contemplated in the language of the Ordinance, is incorrect,” DeWeese said in her purchase. “The basic language of the clause does not discuss to how long the spouse and children is occupying the dwelling. Indeed, no provision of HRS Chapter 205 controlled the period for which a farm dwelling may well be rented.”

The top ruling will have significantly-reaching ramifications. Some 1.2 million acres on Hawaii Island — almost 50 percent of the land mass — is labeled as agriculture. Extra than 1,500 of the county’s close to 4,000 STVR applications during the to start with 12 months of the application in 2019 ended up for nonconforming use certificates, mainly for agricultural land.

About 50 proprietors of residence in the agriculture district have appealed the county’s denial of their quick-expression family vacation rental and nonconforming use apps to the county Board of Appeals. Those people appeals have been on maintain though the Rosehill case proceeds as a result of the legal procedure.

Electronic mail Nancy Cook Lauer at [email protected].