LIHU‘E — Several Ha‘ena landowners who received permits to build their dream homes signed an agreement long ago stating that no commercial activity would take place there. Now, they have hired a lawyer to convince the state to change the
LIHU‘E — Several Ha‘ena landowners who received permits to build their dream homes signed an agreement long ago stating that no commercial activity would take place there.
Now, they have hired a lawyer to convince the state to change the condition.
“The owners feel that the condition is unreasonable,” said attorney Roy Vitousek, representing the owners.
The state Board of Land and Natural Resources is scheduled to take public comments and potentially make a final decision Oct. 28 in Honolulu on whether landowners who own homes in Ha‘ena’s conservation district can legally rent their properties.
On Sept. 10, 2007, 14 Ha‘ena homeowners petitioned the BLNR to deviate from a condition in the Conservation District Use Permit, according to a report signed by Office of Conservation and Coastal Lands Administrator Samuel Lemmo.
Hawai‘i Revised Statutes state that anyone who wants to undertake a land use on conservation district land has to obtain a permit. This applies to anyone who wants to build a home on those lands.
Each of the permits was issued and accepted, some as far as 40 years ago, on various conditions and minor variations in language. All permits included a condition that the single-family residence would not be used for rental purposes.
Some owners, however, by their own admission, rented their properties for short-term vacations, Lemmo’s report states.
“Some were doing so for decades. Other owners would like to do so,” he says in the report.
The department notified in writing the owners who were allegedly in violation to stop renting or be subject to fines and penalties.
Petition to deviate
Stuck between “their prohibited but lucrative rental activity and facing an enforcement action that could result in stiff fines,” the owners filed a petition for deviation, asking the BLNR to change the conditions and restrictions.
The BLNR considered the petition at its meetings on Oct. 26, 2007, and Dec. 14, 2007, but denied their request.
The owners subsequently asked for a contested case, but DLNR Chair Laura Thielen denied it on Jan. 14, 2008.
Thielen wrote in that document that “most of the landowners and counsel for the landowners have admitted to the alleged, unauthorized vacation rental activity.”
To approve the petition for deviation would circumvent Hawai‘i Administrative Rules, which states that “failure to secure board approval for a deviation before such deviation occurs constitutes cause for permit revocation,” Thielen’s report states.
In other words, no permit for after-the-fact deviations shall be granted.
Vitousek said he was aware of this regulation.
“But in order to find that they are in violation of the condition, the department has to initiate an enforcement action that has to prove that they have been in violation of the condition, and they have never done that,” he said.
Vitousek denied the claim that the owners admitted renting their properties. “It has become part of the mythology,” he said.
The owners then sued the BLNR, but Judge Kathleen Watanabe agreed that a contested case was not required.
With their options about to expire, the owners took the issue to the Intermediate Court of Appeals, which ruled that the BLNR — not the department chair — must make the decision whether to hold a contested case.
“Basically the owners’ objective is to try to get the department to deal with the fact that the regulation as written is vague and unreasonable,” said Vitousek, adding that the owners are asking the department to remove the condition or be specific about what is permitted.
Under that condition, if someone got called for military service, they couldn’t have their brother stay in the house and pay for the mortgage, Vitousek said.
“Under the DLNR broad definition of rental that would be illegal, and they would lose their home,” he said.
Vitousek said some of the owners have been paying taxes for many years. A lot of those owners are island residents who use those homes for vacation.
“It would be really helpful for them if they could rent it for some period of time, and get some money to help them pay their taxes and upkeep,” Vitousek said.
Lemmo, who was on the case three years ago, said he was hesitant to comment on details because he hadn’t thought about it for awhile.
He said in certain instances the chair has the authority to make decisions for the board, such as in shoreline certification cases.
“It just depends on a particular issue,” said Lemmo, explaining that there is no common standard for all cases because “statutes and rules come into play.”
Vitousek said that in appeals for shoreline and burial council decisions, there are regulations that authorize the chair to make decisions.
“In this particular area there’s no regulation that authorizes the chair to make a particular decision,” he said.
Decision on O‘ahu
The issue will be taken up by the BLNR next month in Honolulu.
Board member Ron Agor, who represents Kaua‘i, said he had been anticipating it to be on the agenda.
“I have been an advocate for vacation rentals,” he said. “For the life of me, I can’t see how vacation rentals are detrimental to the community and the environment.”
Agor said most vacation rentals are well kept and owners pay “big taxes,” despite using the facilities “maybe 50 percent of the time.”
Agor, however, had reservations on this issue because those residences are on conservation lands.
“These people signed an agreement not to use it as a commercial facility,” he said.
The BLNR’s decision to ask the owners to cease and desist was proper because the agreement was signed, according to Agor. In other areas of the county where officials tried to curtail vacation rentals, owners did not sign an agreement prior to build their homes.
Based on current rules, Agor said the BLNR should not approve the deviation. Such a change would be improper, he said.
The only alternative that Agor saw for those owners would be to go through a lengthy process to try to take that particular property out of the conservation district.
A Sept. 9, 2010, DLNR document identifies the following as the properties in question: Mark Moran et al; Edwin Cryer et al; Murcia-Toro, Inc. et al; Barbara Baker et al; Gary Stice et al; Caroline Simpson; Earl G. Bart Trust; Diane G. Faye Trust et al; Helferich Family Trust; James Greenan et al; and Ive Revocable Trust.
The document, signed by Lemmo, notes that this list stems from Vitousek’s Sept. 10, 2007, petition for deviation from conditions and it is possible a few of the property owners no longer seek a contested case.
The public can send written testimony to Agor at agor@ronagor.com, to BLNR secretary Adaline Cummings at adaline.f.cummings@hawaii.gov, or to Thielen at laura.thielen@hawaii.gov.
