HomeMy WebLinkAboutCOM 0704.022 1998-2000 Testimony of ~ ,
Michael J. Matsukawa
before the ' j 15 ?~.;~1 ~ ~ 3
Hawaii County Council _
Hilo, Hawaii ~ , .
May 16, 2000
TIME-SHARE IN RESIDENTIAL ZONING DISTRICTS
In 1980, the legislature enacted Chapter 514E, HRS which:
(1) Defined the subject oftime-share (to distinguish time-share from
other forms of land use such assingle-family vacation homes, lodges,
rooming houses and residential apartment buildings),
(2) Established a regulatory scheme for the registration and sale of
time-share units, plans and arrangements, and
(3) Defined the kinds of areas in which time-share may occur.
Subject of Statewide Concern
The legislature recognized time-share to be a subject of statewide concern and
had to be regulated statewide. Therefore, the legislature declared time-share to be a
new and specific form of land use activity which could be located only in "areas
designated (by the counties) for hotel use, resort use, or Transient vacation rentals."
Section 514E-5(2)(A), HRS.
The legislature was aware that many of the counties did not then have zoning
ordinances which "presently zone for the less traditional forms of transient visitor
accommodations" (such as time-share and transient vacation rentals) ~ and informed
t "Sec. -4. County authority. This mandate will be particularly helpful in efforts to
clarify hotel, resort and transient vacation rental areas. The counties do not presently zone
for the less traditional forms of transient visitor accommodations, and .rhorrlcl addr~e.tis~ Jhis
rn dhe near-, frrlru•c." Conference Committee Report No. 37, srrpr•a. The County of Hawaii
was one of the counties that did not then zone for transient vacation rentals. See Haw ii `j~~.~. 02,2
Comm. l~o.
File No. x~
Ref. To: p ~ ~ C{ L'
Ref. Date MAY 1 5 2000
the counties that the counties should do so after the enactment of Chapter 514E,
HRS. 2
Time-Share as Resort Activity
In Senate Standing Committee Report No. 632, Senate Bill 1516, Senate
Journal, Hawaii Legislature (1979), the committee states that time-share is activity
which usually takes place in condominium buildings "located in hotel/resort areas."3
In House Standing Committee Report No. 969, Senate Bill 1516, House
Journal, Hawaii Legislature (1979), the committee also states that time-share is
limited "to buildings located in an area zoned hotel/resort." 4
In Conference Committee Report No. 37, supra, House and Senate
representatives state that time-share be separated from permanent residences:
Opponents consider it to be disruptive, particularly within areas where
permanent residents live...... The legislature intends by this Act that the counties
will be guided by the notion that time sharing and transient vacation rentals should
not be permitted where the life styles of the permanent residents will be disrupted in an
unreasonable manner.
[T]time sharing and transient vacation rentals should not be permitted
where the life styles of the permanent residents will be disrupted in an unreasonable
manner.
County Council resolution dated April 7, 1982.
2 "The several counties .ti~lurll, by amendment of their zoning ordinances, limit the
location of time share units, time share plans and other transient vacation rentals, within
such areas as are deemed appropriate." Section 514E-4, HRS.
3 "S. B. No. 1516, S.D. 1 gives legal existence to time sharing in condominium units
if all condominium units situated in Hawaii are located in hotel/resort areas."
~ "This bill would provide for regulation of the time sharing industry by restricting
sales of units pursuant to a time sharing program to buildings located in an area zoned
hotel/resort."
2
In its resolution dated April 7, 1982, the Hawaii County Council also recognizes
that transient vacation rental, which is one of the lesser forms of visitor
accommodation which the legislature addressed in Chapter 514E, HRS, is a
resort type use.
Time-Share in aNon-Resort Area
The main question is, "If the legislature intended that time-share be allowed
only in resort/hotel zoned areas, may the county allow such activity in a residential
zoned district?" The answer is "No."
As conference Committee Report No. 37 explains, the counties were supposed
to "address this[less traditional forms of transient visitor accommodations) in the near
future" through their respective zoning ordinances. In response, the counties in Kauai,
Oahu and Maui responded with specifically defined zoning ordinances that confine
time-share to specifically designated resort areas.
The secondary question is, "Did the legislature give the counties the freedom
to 'designate' time-share to be a form of permitted use within a residential zoning
district?" The answer is "No."
A plain reading of the legislative committee reports and the legislative floor
debates indicate that the legislature intended time-share to be separated from
residential uses. Further, because time-share's distinct characteristic was transient,
visitor occupation for short intervals of time, the legislature intended time-share to be
placed in places specifically zoned for transient visitor uses.
Time-Share as a Conditional Use
If we assume that the zoning code's "designation" of time-share as a "permitted
use" in the Residential (RM) district is valid, several other issues arise.
First, may the county council "designate" that "permitted use" by a resolution
(as opposed to an ordinance)?
Second, if the county council may use a resolution (which suggests a
case-by-case "closer look" approach), then is the resolution a form of discretionary or
conditional use? 5
Third, if time-share is a discretionary or conditional use, what procedures
govern the review and approval of such a use?
Closing
I recommend that the county council obtain opinions from the state Attorney
General's office as well as the respective county attorney offices before acting upon
the resolution today. Thank you very much,
Michael J. Matsukawa
5 Some local governments reserve their full zoning power and permit specific uses
on a case-by-case basis. Such a use is described as a "conditional use" the administration
of which is often delegated to a specialized agency, such as a local planning board, or to
the legislative body itself.
4