Nonconforming Use Certificates for Single Family Vacation Rentals

The purpose of this Section is to provide a process to identify and register those single family transient vacation rentals as nonconforming uses which have been in lawful use prior to March 7, 2008 and to allow them to continue subject to obtaining a Nonconforming Use Certificate as provided by this Section.The owner, operator or proprietor of any single family transient vacation rental which operated outside of a Visitor Destination Area prior to March 7, 2008 shall obtain a Nonconforming Use Certificate for single family vacation rentals.No Nonconforming Use Certificate shall be issued by the Planning Director unless the use as a single family rental is a legal use under the Comprehensive Zoning Ordinance, and the applicant provides a sworn affidavit and demonstrates to the satisfaction of the Planning Director that a dwelling unit was being used as a vacation rental on an ongoing basis prior to March 7, 2008. The Planning Director, in making the decision, shall take into consideration, among other things, the following guidelines:The applicant had a State of Hawai'i general excise tax license and transient accommodations tax license for the purpose of the lawful operation of single family transient vacation rentals for a period long enough to demonstrate actual payment of taxes.That prior to March 7, 2008, applicant had deposits for reservations by transient guests in exchange for compensation for use of subject property as a vacation rental.That applicant had transient guests occupy subject property in exchange for compensation prior to March 7, 2008, with a pattern of consistency that evidences an ongoing and lawful enterprise.Applications for Nonconforming Use Certificates for single family transient vacation rentals located on land designated "Agricultural" pursuant to Chapter 205 of the Hawai'i Revised Statutes shall be made within 60 days of August 16, 2010. If an operator as defined under Subsection (c) fails to apply for a Nonconforming Use Certificate within 60 days of August 16, 2010, then the Planning Director shall assess an administrative late application processing fee of $1,500 at filing. A Nonconforming Use Certificate may be issued for a single family transient vacation rental located on land in the State of Hawai'i's land use Agricultural District if:It was built prior to June 4, 1976; orThe applicant has obtained a Special Permit under Hawai'i Revised Statutes, Sec. 205-6 which specifically permits a vacation rental on the subject property.An application for a Special Permit shall include verification by the applicant that the farm dwelling unit was being used as a vacation rental on an ongoing basis in accordance with Subsection (c).An application for a Special Permit pursuant to Hawai'i Revised Statutes Sec. 205-6 and Chapter 13 of the Rules of Practice and Procedures of the Planning Commission that is deemed complete by the Planning Director must be filed within one year of August 16, 2010. Upon completion of the application, the Planning Director shall issue a provisional certificate that will allow the transient vacation rental to operate. The provisional certificate shall be null and void after the Planning Commission or the Land Use Commission makes a decision upon the application.In addition to the Special Permit standards set forth in Hawai'i Revised Statutes Sec. 205-6 and Chapter 13 of the Rules of Practice and Procedure of the Planning Commission, the Planning Commission may only grant a Special Permit if, prior to March 7, 2008: (i) the property upon which the transient vacation rental is located had a registered agricultural dedication pursuant to the guidelines set forth in the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules; (ii) a bona fide agricultural operation existed, as shown by State General Excise Tax Forms and/or Federal Income Tax Form 1040 Schedule F filings; or (iii) the Planning Commission finds that the size, shape, topography, location or surroundings of the property, or other circumstances, did not allow an applicant to qualify for an agricultural dedication pursuant to the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited intensive agricultural activities.If the application for the Special Permit is granted, then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Commission.If the application for Special Permit is denied, then the Nonconforming Use Certificate shall not be issued and the transient vacation rental must cease operation.The owner, operator, or proprietor shall have the burden of proof in establishing that the use is properly nonconforming based on the following documentation which shall be provided to the Planning Director as evidence of a nonconforming use: records of occupancy and tax documents, including all relevant State of Hawai'i general excise tax filings, all relevant transient accommodations tax filings, Federal and/or State of Hawai'i income tax returns for the relevant time period, reservation lists, and receipts showing payment. Other reliable information may also be provided. Based on the evidence submitted, the Planning Director shall determine whether to issue a Nonconforming Use Certificate for the single family transient vacation rental.The Planning Director shall make available to the public at the Planning Department counter and on the County of Kaua'i website a list of all completed applications for Nonconforming Use Certificates. Applications deemed completed shall concurrently be made available to the public. Copies of applications shall also be made available to the public as public information, as provided by H.R.S. Chapter 92F (the Uniform Information Practices Act). Such list shall include the names of the applicants and the tax map key number of the parcels which are the subject of the applications. The Planning Department may physically inspect a single family transient vacation rental prior to a Nonconforming Use Certificate being issued.The Planning Director shall prepare an application form which shall be available to the public. If an operator as defined under Subsection (c) fails to apply for a Nonconforming Use Certificate within 60 days of August 16, 2010 the Planning Director shall assess an administrative late application processing fee of $1,500 at filing. Applications received more than one year after August 16, 2010 shall not be accepted and the use of a transient vacation rental shall be deemed discontinued.The owner or lessee who has obtained a Nonconforming Use Certificate under this Section shall apply to renew the Nonconforming Use Certificate annually on the date of issuance of the Nonconforming Use Certificate.Each application to renew shall include proof that there is a currently valid State of Hawai'i general excise tax license and transient accommodations tax license for the nonconforming use and shall be received by the Department prior to the expiration date of a held Nonconforming Use Certificate. Failure to meet this condition will result in the automatic denial of the application for renewal of the Nonconforming Use Certificates.Upon renewal, the Planning Department may initiate re-inspection of properties for compliance with other provisions of this chapter, or other pertinent land use laws, and may withhold approval of a renewal application and issue cease and desist notices to the applicant until all violations have been resolved to the satisfaction of the Planning Director.The applicant shall pay an annual renewal fee of $750. There is hereby established and created an account to be known as the "Planning Department Transient Vacation Rental Program Account" within Fund 251. Up to $250,000 of these renewal fees shall be deposited into this account annually. The remaining balance shall be deposited into the County General Fund annually. The fees collected pursuant to this Section are hereby deemed appropriated upon receipt and may be expended for personnel costs and/or independent contractors to assist in the review and renewals of Nonconforming Use Certificates annually and also the enforcement of the Comprehensive Zoning Ordinance and other Codes, Statutes, or regulations the Planning Department has the authority to enforce as it relates to possible illegal transient accommodations. The fees may also be expended for materials, supplies, education, training, legal representation, and equipment that facilitates the inspection and enforcement of Nonconforming Use Certificates and/or violations. The fees collected shall not lapse at the close of the fiscal year.