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Tuesday, August 9, 2016
TVR in a Ag Condo: Must Your Neighbors Approve?
By Robert Thomas @ 8:12 PM :: 3660 Views :: Tourism

HAWICA Rejects Planning Department's Formalistic Definition Of "Applicant" In Vacation Rental Case

by Robert Thomas, InverseCondemnation, August 9, 2016

One for you land users. We're not going to analyze the Hawaii Intermediate Court of Appeals' published opinion in Robert D. Ferris Trust v. Planning Comm'n of the County of Kauai, No. CAAP-15-0000581 (Aug. 9, 2016) in too much detail, because our Damon Key colleagues Greg Kugle and Chris Leong represent the prevailing appellant. But here's a short summary, after which you can read the opinion itself.

The narrow issue in the case involves the definition of the term "applicant" in two different sections in the County's zoning ordinance. The underlying issue is one that's hot right now across Hawaii and elsewhere: short-term or transient vacation rentals, defined in the Kauai zoning ordinance as rental for less than 6 months. 

Here, the homeowner had a parcel in an agricultural district, with a single-family residence on the lot. It began renting the home to vacationers in 2003, prior to the County's adoption of an ordinance prohibiting new TVRs outside of certain specially-designated districts. The ordinance also required existing lawful TVRs to register, after which the owner or operator was required to obtain a nonconforming use certificate within a certain time. The County followed up with another ordinance "targeting the grandfathering provision established by" the earlier ordinance. Slip op. at 2.

The owner registered and filed a nonconforming use application. But the Planning Department repeatedly informed it that the application was not complete, and ultimately focused on the fact that the property was condominiumized and the owner thus needed the consent of at least 75% of the owners of the lot in order to apply. A separate ordinance defined "applicant" as someone who possesses a "controlling interest" in the subject property, and according to the Department, it was not sufficient that the applicant was the "owner, operator, or proprietor" of the TVR as set forth in the registration ordinance. 

Time marched on while this was being sorted out, and eventually "the Planning Department informed the Ferris Trust that the time period for applying for a nonconforming use certificate ended on August 8, 2011, and asked the Ferris Trust's counsel to advise their client to cease and desist from further use of land designated as agricultural from further use as TVRs." Slip op. at 3. The Trust appealed up the administrative chain to the Planning Commission and after a contested case before a hearings officer, the Commission denied the appeal. On to circuit court under the Administrative Procedures Act. That court affirmed the Commission.

The ICA saw it differently. The issue was whether the Trust could apply for a nonconforming use certificate despite it not having a controlling interest in the property, even though as "owner, operator, or proprietor" of the TVR, it was required by the TVR ordinance to apply for the certificate. The ICA began by noting that lawfully existing uses ("grandfathering") are grounded in constitutional and vested rights principles, and subsequently-adopted restrictions cannot limit a property owner's ability to continue with a preexisting use.

The court concluded:

[p]ersons with less than a a seventy-five percent ownership interest may be able to establish vested right to prior lawful conforming uses. Therefore, precluding such persons from even applying for a nonconforming use certificate would be inconsistent with the purpose of the ordinance to identify those engaged in the prior lawful use of their property as a transient vacation rental and allow them to apply to continue that use.

Slip op. at 10-11. Limiting the ability of the Trust to apply as the County argued would raise "serious constitutional questions." Slip op. at 11.

The court applied the avoidance principle to read the ordinances to allow the Trust to seek the required permit, because that would allow the court to avoid those tough questions. Thus, because it was an "operator," the Trust qualified as an applicant, notwithstanding that it did not have a "controlling interest" in the property.  

PDF: Robert D. Ferris Trust v. Planning Comm'n of the County of Kauai, No. CAAP-15-0000581 (Haw. App. Aug....

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