NAWILIWILI — Legislation to establish growth rates for transient accommodation units on Kaua‘i has changed so significantly since it was first presented to the public on Feb. 8 that officials have shelved it and introduced another bill. And lest we
NAWILIWILI — Legislation to establish growth rates for transient accommodation units on Kaua‘i has changed so significantly since it was first presented to the public on Feb. 8 that officials have shelved it and introduced another bill.
And lest we forget, the bill the Kaua‘i County Council proposed this year was dramatically different than the language that prompted it in the charter amendment voters overwhelmingly approved in 2008.
Bill 2410, which replaced Bill 2386, regulates TAU growth on the island. Developers and supporters of growth-regulations agreed that the old bill has morphed into a better one, but both sides still want to see some changes.
The council’s Planning Committee on Wednesday deferred the bill until its Aug. 24 meeting.
Interim Planning Director Michael Dahilig and county long-range planner Marie Williams on Wednesday gave council members a detailed explanation of the bill.
Carl Imparato, chair of the Coalition for Responsible Government, said the new bill represents an improvement from the old one.
“Bill 2410 lays out a good framework to address problems that are before us, but there’s still a number of very important details that need elaboration or modification,” he said. “The most important, first of all, is a tighter definition of projects that would be exempted from the process.”
Some 64 percent of voters in the November 2008 election said yes to add the amendment to the County Charter. The coalition was instrumental in 2008 in gathering enough signatures to put the amendment on the ballot.
The charter amendment, which became law Dec. 5, 2008, gave the Kaua‘i County Council some options on how to proceed. It allowed the council to either keep the permitting power for TAUs or return it to the county Planning Commission through an ordinance that would either limit the TAU annual growth rate to no greater than 1.5 percent or establish such rate within the guidelines of a future General Plan.
The 1.5 percent growth rate for the TAU was derived from the Visitor Unit Demand study conducted for the General Plan.
The measure was intended to slow down the growth of tourism units on Kaua‘i, according to Imparato.∆
Land Use Research Foundation Executive Director David Arakawa also found the new bill an improvement, but like Imparato, he had some concerns.
He said he liked the definition in the new bill of “exempted” and “non-applicable” units, but said the amendment contradicts the General Plan, which encourages and supports resort development on lands inside VDAs. He was OK with the amendment’s rate of growth, as long as the non-applicable and exempted units are allowed to be built first.
Councilwoman JoAnn Yukimura said the vote of the people actually modifies the intent of the General Plan.
Arakawa said when there is a finding of vested rights, the law trumps any votes by the population on charter amendments.
“That was proven on the Sandy Beach case,” said Arakawa, referring to a case in the late 1980s.
A developer sued the City and County of Honolulu after voters in 1988 chose to downzone from residential to conservation use a 32-acre piece of land fronting Sandy Beach. The developer had spent $200,000 on the project and ended up walking away with a settlement between $60 million and $70 million, according to Arakawa.
However, Deputy County Attorney Mauna Kea Trask on July 26 made comments on a separate case at a commission meeting, stating that circuit courts from different counties don’t set precedent; it would have to be a decision from the Hawai‘i Supreme Court.
Time limits
A TAU, under Bill 2410, would be defined as: a hotel unit in an apartment-hotel, a hotel or a motel; a hotel unit located in a Visitor Destination Area; a hotel unit located in a Resort District; a Transient Vacation Rental; a single-family TVR; or a multi-family TVR.
The bill would not apply to projects such as: a lot that was part of a subdivision prior to Dec. 4, 2008, and is located within the VDA and is restricted to one house; or an apartment-hotel with no building permits but received final Class 4 Zoning Permit before Dec. 4, 2008.
Multi-family homes outside VDAs would apply, as well as subdivided parcels within VDAs with density for 10 TAUs and TVRs on a parcel within the VDA with potential for one ADU that might be used as a TAU.
The old version of the bill proposed a lottery system to be conducted at a commission meeting, through a random drawing. The new bill proposes a first-come, first-served system.
One of the issues that has generated a lot of discussion and controversy — in both bills — is the fate of 4,650 units that have been permitted but not yet built, some dating as far back as 1990, such as the 282-unit ‘Ohana Hanalei, and as recent as the 2007 expansion of the Sheraton Po‘ipu, which would add 155 units to its inventory.
“The council further finds that it would be unfair and inequitable, and in violation of applicable principles, to apply Charter Section 3.19 to any resort projects which are currently and/or under construction where substantial sums have been expended on such projects in reliance on or pursuant to the Visitor Destination Ordinance or Zoning Ordinance which authorized such project,” Bill 2410 states.
Under the county Planning Department’s proposal, existing resort projects qualifying for exemption from the 1.5 percent growth would have to have been approved prior to Dec. 5, 2008, and located in the zoning district designated prior to that date.
Moreover, the “substantial sum” of expenditures referred to in the proposed ordinance would have to amount to at least 20 percent of the Real Property Assessment of the land value of a given project — and developers would have to prove the expenditure. They would also have to apply with the planning director within one year of the ordinance. The amount would include costs associated with architectural and engineering professional services but not for planning and permitting.
Because of the “non-applicable” or “exempted” units — representing roughly 50 percent of the 9,203 existing units as of Dec. 5, 2008 — there could be an excess growth that the island would have to deal with. To control this excess growth the department suggested 20 percent of growth would be allocated to those exempted or non-applicable units.
The plan presented by the department would include five-year allocation cycles, which would represent a 7.73 percent growth at the end of each five-year cycle.
If the applicant fails to commence construction of 20 percent of the TAU’s estimated cost of the building permit within four years from the date of the certificate was issued, he or she could lose the permit.
“They have to be ready, not only to apply but also to build in the next four years,” Williams said.
But a show of good cause would provide a one-year extension.
“The reason for these time limits is an attempt to prevent people from squatting on the certificates,” Dahilig said.
Visit www.kauai.gov for more information.
• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.
