Saturday, Sept. 30, 2023 |
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The Kaua‘i County Council on Wednesday wisely passed a bill that will create a path for transient vacation rental owners on agricultural land to apply for a certificate so they can continue operating.
Given that there are only 77 such operations on island and many sit on land unfit for farming, according to county officials, it is fair to allow these units to be grandfathered in under county law as the TVRs were permitted to do in residential areas.
The best scenario would have been to outlaw years ago all TVRs outside Visitor Destination Areas and prohibit the severe subdividing of ag land. This would have preserved neighborhoods like Hanalei and protected areas for future sustainable farming.
Given that we can’t undo the past, we must work with what we’ve got. This means treating the TVR owners on ag land who have been paying state transient accommodation taxes and otherwise operating legally prior to the March 7, 2008, cut-off date the same as the other non-conforming TVRs.
Since Hawai‘i was OK with collecting their TAT taxes for decades, creating a retroactive law like the council did two years ago was inequitable.
Oddly enough, the council in 2008 first unanimously passed a law regulating TVR use that remained silent on the uncertain ag component. If the county would have stuck with that law instead of undoing it soon after it was approved, we could have avoided going through all the time and effort over the past several weeks and waited on the critical Important Agricultural Lands study to be completed to help sort the mess out.
Imagine opening a restaurant 20 years ago, paying taxes and running it as legally as you knew how. Then the government tells you out of the blue that your restaurant can’t operate there anymore because that might be a good spot to grow pineapples one day. This just isn’t fair. The owner should have been told such from the get-go.
But again, what’s done is done.
Still, there are definitely some absurdities with Bill No. 2364 that leave us shaking our heads.
For instance, the law says that single-family vacation rental owners can apply for a non-conforming use certificate if they were operating lawfully prior to the effective date of this ordinance. So, the county is going to legalize an activity that’s already legal? And if you don’t obtain such a certificate, then you can’t legally run your lawful vacation rental?
There’s also some lines in the legislation that you just can’t think too hard about. For example, “The owner, operator, or proprietor shall have the burden of proof in establishing that the use is properly nonconforming…” So, the county wants to make sure you’re definitely not operating as was intended?
Not passing this law would have opened the door to dozens of lawsuits, a liability that the county and its taxpayers can’t afford. Letting the existing 77 or so TVRs on ag land apply with the Planning Department to essentially be grandfathered in was just the best route available for the county to deal with this awkward situation.
Given that there will likely be some attrition because some owners will fail to meet all the conditions set forth in the ordinance and that others are on land clearly unsuitable for farming, we can live with this unfortunate reality.
The bottom line is there won’t be any new vacation rentals on ag land or in residential areas — legal ones anyway. The leak has been plugged as best it can.
Going forward, we expect the Planning Department to step up its enforcement of the vacation rental law despite the council’s decision to water it down with an amendment not mandating inspections. Without a strong enforcement component this ordinance, like others, is pretty much worthless.
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