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Home My WebLink AboutCOM 0704.026 1998-2000 MICHAEL J. MATSUKAWA ATTORNEY AT LAW TERRITORIAL CENTRE. SUITE 201 75-5751 KUA KINI HIGHWAY ! i i ~mn KAILUA-KO NA. HI 96740 t"~~ ~~i ~'~i'1 9 C~~ a TELEPHONE NO. 16081 329-1355 FAx NO. 18081 329-0512 ,I May 25, 2000 Honorable James Arakaki Chairman, County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 RE: RESOLUTION 229 (DRAFT 2) Dear Chairman Arakaki: I am submitting the attached working paper on behalf of the Puako Community Association and the other Associations which oppose Resolution 229 (Draft 2). My research indicates that the county council cannot adopt Resolution 229 (Draft 2) until the zoning code, itself, is amended to conform to the requirements of state law and the state and federal constitutions. Some may offer different conclusions, and if so, the county council should carefully examine the issues raised before acting upon Resolution 229 (Draft 2). Thank you very much. Yours Michael J. Matsukawa MJM: J ff~misc\cty-coun.lt7 Enc.: Working Paper - On file in the Office of the County Clerk xc: Council Members Comm. Na X04• ozcD Elle No. ~N CT Ref. Tot ~AnCi~ Ref. Date ! 5 91NA1 "Not Time for Time-Share" A Summary of Legal Issues Associated With the Location of Time-Share in Non-Resort RM Districts in Hawaii County Prepared by Michael J. Matsulcawa for Puako Community Association and Other Associations Opposing Resohrtion 229 (Draft 2) County Council County of Hawaii June 2, 2000 HISTORY "Time-Share" ASpecial Form of Land Use Demanding Regulation In 1980, the legislature concluded that the time-share controversy could be resolved only if the state and counties recognized time-share to be a special form of land use that had to be defined and regulated. The legislature described the characteristics of time-share activity and established the areas in which time-share can take place. HISTORY Identifying the Characteristics of Time-Share The legislature identified the main characteristics of time-share as: * The use of condominium units for transient occupancy by visitors under various arrangements (interval ownership, interval use, vacation clubs, etc.) * The "conversion" of condominium buildings to transient visitor use * The division and sale of undivided interests (interval units) of condominium units HISTORY Legislative Solution Locate Time-Share in Hotel/Resort Areas In 1980, the legislature observed that time-share was generally taking place in condominium buildings. The legislature determined that this activity should be confined to condominium buildings which are located in "hotel/resort" zoned 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 ItoteUresort. " House Com- mittee Report No. 969. "S.B. No. 1516, S.D. 1 gives legal existence to time sharing in condominium units located in ltoteUresort areas. " Senate Committee Report No. 632. "[I]t is my understanding that we are voting for this measure in order to protect residents in apartment precincts where time-sharing may be attempted. " Floor Debate, Senate Bill 1516, House Journal, Page 916 (1980). HISTORY Legislative Solution Exclude Time-Sltare From Residential Areas In 1980, the legislature's conference committee on Senate Bill 1516 decided to exclude time-share from certain areas: "The legislature intends by this Act that the counties will be guided by the notion that time sharing and transient vacation rentals should ~ be permitted tivhere the life styles of the permanent residents will be disrupted in an unreasonable manner. " HISTORY Time-S/tare in Hotels Two years later, in 1982, the legislature extended the coverage of Chapter 514E, HRS to hotels. Legislative Decision Regarding the Location of Time-Slrare (Summarized) 1980 Time-share in condominium buildings must be located in areas zoned by the counties for hotel/resort uses 1982 Time-share in hotels, though in an area zoned for hotel/resort use, must still be approved by the counties THE PROBLEM The Hawaii County Zoning Code Alters the Legislature's Definition of Time-Share The Hawaii County Zoning Code alters the legislature's definition of time-share and treats time share as the interval use or ownership of units without regard to its transient occupancy by visitors in resort areas. This is contrary to the legislature's definition. Tf~ PROBLEM Tl:e County of Hawaii Zoning Code Removes the "Transient Visitor, Resort" Characteristics of Time-Share From the Definition of Time-Share The legislature established time-share as a resort-type use that must be confined to resort/hotel zoned areas. In Section 514E-5(2), HRS, the legislature states that time-share should be confined "in areas designated for hotel use, resort use, or transient vacation rentals." "Transient vacation rentals" to mean "rentals in a multi-unit building to visitors with the duration of occupancy less than thirty days for the transient occupant." Nonetheless, the Hawaii County Zoning Code removes the transient visitor and resort charracteristic of time-share in the zoning code's definition oftime-share. TFIE PROBLEM There is No Provision for "Transient Vacation Rentals" in the Hawaii County Zoning Code The Hawaii County Zoning Code has no provision governing "transient vacation rentals." AN ERRONEOUS ASSUMPTION Resolution 229 (Draft Z) Erroneously Declares that "Transient Vacation Rentals" is a Permitted Use in the RMDistrict Resolution 229 (Draft 2) declares that "transient vacation rental" activity is permitted in non-resort RM districts However, Resolution 229 (Draft 2) does not state the legal authority underlying this declaration (for which there is none). ILLEGAL PROCEDURE To Make Matters Worse, Section 25-5-32(a)(l9)(C) May Violate the County Charter Under the Hawaii County Charter, the voters of the county stated that the executive department, acting through the planning department and its head, the planning director, "shall administer" the zoning code. However, Section 25-5-32(a)(19)(C) states that the county council shall "administer" this specific portion of the zoning code relating to time-share in non-resort RM districts. The county council cannot give to itself powers which the voters of the county gave to the executive department under the charter. See Life of the Land v. City & County of Honolulu, 61 Haw. 390, 428 (1980). ILLEGAL PROCEDURE Even if Section 25-5-32(a)(l9)(C)Does Not Violate the County Charter, It Creates a Legislative "Permit" Program Which Suffers From Deficiencies of its Own If the county council can establish a legislative "permit" program which is administered by the county council by way of passing non-legislative resolutions, the county council acts in an administrative (non-legislative) capacity when it administers the program. See Life of the Land v. County Council, supra; Sandy Beach Defense Fund v. County Council, 70 Haw. 361, 369 (1989); Anderson, American Law of Zoning, Secs. 9.18, 21.10 (4th ed. 1996).. However, this legislative "permit" program suffers from major deficiencies and does not satisfy the requirements of law. ILLEGAL PROCEDURE For Example, Section 25-5-32(a)(19)(C) Does Not Establish Any Objective Standard to Guide Council Action Section 25-5-32(a)(19)(C) does not provide any objective standard or procedure which the county council must follow and, more importantly, which other landowners can expect the county council will apply uniformly in all non-resort RM districts throughout the island. II.LEGAL PROCEDURE A Council Administered "Permit" Program Must be Administered in Accordance with Published Standards and Procedures Courts demand council-administered "permit" programs to be administered in accordance with published standards and procedures. See Anderson, supra. Summary Section 25-5-32(a)(19)(C) is Void Section 25-5-32(a)(19)(C) violates: * State law * The county charter * The due process clause of the 14th Amendment to the United States Constitution PAY ATTENTION Tlae County Council Does Not Have the Discretion to Grant Some Requests, Wliile Denying Other Requests, for Time-Share in Non-Resort RM Districts Under the current zoning code, the county council does not have discretion to examine each request on a "case-by-case" basis, granting some requests while denying other requests for time-share in non-resort RM districts. This is the result of a flawed zoning code. DANGEROUS PRECEDENT If the County Council Adopts Resolution 229 (Draft 2), the Council May Not be Able to Deny Future Requests for Time-Share "Permits" in Any Non-Resort RM District If the county council adopts Resolution 229 (Draft 2), the council may be unable to deny future requests for time-share in any non-resort RM district because Section 25-5-32(a)(19)(C) does not have any guiding standards and procedures and because the county council will be unable to justify the denial of future requests for time-share in any non-resort RM district. Put Another Way Counties Are Local Governments with Limited Powers (Limited by the State Constitution and General Laws Enacted by the State Legislature) I I I State Constitution, Article VIII, Secs. 1,2, 6 (Provides for county governments by charter with limited stahdory powers) Chapter 50, HRS (Provides for county charters; limits county poia~ers and county home-rule authority) Chapter 46, HRS (Prohibits county from interfering with state general laws) Section 46-4, HRS, Chapter 228, HRS (Provides for eormty genera/ plan and for county zoning powers) 1 i Chapter 514E, HRS (Establishes 'lime share' and confines 'time share' activity in condominium buildings to condominium buildings located in resor9/hotel areas) Hawaii County Zoning Code Deviates From State Law I I I County Zoning Code, Chapter 25 (Treats "time share"as non-resort/hotel activity and makes 'time share' a permitted use in non-resort RM districts) General Plan LUPAG Map Designation ~ ~ ~ ~ Resort Area Non-Resort Area ~ ~ County Zoning District County Zoning District RM V CG RM ~ ~ ~ ~ I I I I Time-Share allowed Time-Share NOT allowed by state law and by by state law, BUT county county zoning code zoning code purports to "overrule" state law and to allow Time-Share in Non- Resort RM Districts 2 i County creates special permit program for `time share' which is administered by county council through anon-legislative resolution (without guiding standards) and which allows county council to discriminate among applicants and zoning districts without decision- making criteria United States Constitution (prohibits arbitrary land use action by local government; discretionary permit programs which lack guiding standards are deemed illegal and void) »*a** POSSIBLE RESULT: County may be unable to deny future requests for `time share' in non-urban RM districts throughout the county 3 Hawaii County Zoning Code Also Violates County Charter County Charter charges planning director with power to "administer" the zoning code Under Section 25-5-32, the county council reserves to itself the power to "administer" the portion of the zoning code dealing with time-share in non-resort RM districts The Hawaii Supreme Court noted in a 1980 decision that the county charter may preclude the county council from establishing and administering a non-legislative "permit" program governing location of time-share in non-resort RM districts 4