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Home My WebLink AboutCOM 0704.028 1998-2000 JUt~I 81 'Ga ll~~BAI~ BGYB DEAbER HIATT~'8 888 ~-,--4184 F.:i4 BAYS 16th Floor-Aln Place DEAVER 1088 Alakea Street - Honolulu, Hawaii fl6813 HIATT ` LUNG P.o. eox 17so ~ , - r„ ~ ~ I~onolulu, Hawaii 96800 ROSE a ~ . „ ~ i .:'i l.. Te!9phone: (808) 523-9000 Fcsimile: (808) 533-4184 r ~ ~ FACSIMILE TRANSMITTAL. DATE: June 1, 2000 l3pHLR MATTER IG: `%?14-001 TIME: 10:58 AM T0: The Hon. Bobby Jean Leithead-Todd FAX NO.. 808 961-~~`:~12 Chair, Planning Committee FROM: A. Bernard Bays, Esq. SENDING 4 PAGE, (INCLUDING TRANSi~~iITTAL) RE The Villages of Aina Le'a REMARKS/DESCRIPTION OF DOCUMENT(S) TRANSMITTED: Letter dated June 1, 2000 from Mr. Bays to Ms. Leithead-Todd. If you do not receive all pages or if they are illegible, please call Edna at (808) .~?:'-9000. We are sending from an automatic facsimile machine which is available to receive or. ?$~-hour per day basis. Original/copy ? will be mailed to you will not be mailed to you. CONFIDENTIALIT" The information contained rn this fax message is intended only for the personal and c~.nidential use of the designated Recipient(s) named above. This message may b® an attorney-client communication and, as such, is pn•~~;~Oed and confidential. If Erie reader of this message is not the intended recipient or an agent responsible for delivering it to the in'~ ..Jed recipient, the reader hereby notified that you have received this document in error and that any review, dissemination, distribu"r;n or copying of this message is strictly prohibited. !f you have received this communication m error, please notify us immediately b,,~ i:.!i;pnone end return the oric~inai message and all coAies to us by mail in a sealed envelope Thank you for Your assistance. _ Comm. No. ~U4. 6 Z,~ File No. ~ NCB Ref. Tot C,OL,thG+t Ref. Date 0 Jl.~'ti' ~1 ' BCC i 1 ~ ~~9AM BAY=~ DEA~iEF' F-IA?T, B =,-4184 F . B~ 4 r. ~ loch Flc_,r . =1:~ ~'.,c " . d Bay; )!al.ila L R ~I_-.- ~.J 1Q~a ?~alv~z ::rcf: _ C' ~~rt E:ucr ' os~ F HOnC~S~~ r e' ~~L:fl I iii ~1 ~~~ll fi nt; lime: f.-t,~:, u '.0. Sax 1-60 ~ e_, - ~~se C:a:~ F'~~~u~.tld 11I~'y..l ~ 1. ~~e~ior~!~u ~,,~"a~. ~,~FI~G - . ~_,..:,h~ kr~FA~i t~ e~.t, ~,,_,i i. aara= P'~r.~.a Tnr.~c; _ '4r- ~FO';;'iTi-';S[iu ~ =,aina Elizab~l'n.~C ~:~a:,..-- 7 I LT T r Fax iFG3~ ~?j•ilt _ l~,a'1 F~-r'c4-, _ 1~~.,}} ~~iJ E-rn u: hd.iL ac:-, r=.t =r,, ~~V ~L ~~i,s:t, w„~.ldl,i:co:n 9nor re- s 'ac I a~+ June l , 2000 t'IA FACSIMILE The Hon. Bobby Jean Leithead-Todd Chair, Planning Committee 2~ Aupuni Street Hilo, I~awaii 96720 Re: The Villages of Aina Le'a Dear Chairperson Leithead-Todd', I am enclosing a research memo regarding the relationship bel~~~ecJl County o__f Maui v. Puamana Management Comer and the enactment of Chapter 514E, Ha~'.•~: ii Rey-ised Statutes. I hope the information contained in the memo is of some help to }ota. If yvu have any questions or wish to discuss this, please gi~'e me ~ call. Sincerely, BAYS, DEAVER, HIATT, LL~G ROSE B~. _ A. Bernard Ba}~s Attome~~ at Law, A La«~ ~ ~.~~~~l,~~oration Its General Partner ABB:gIg Enclosure 11GlRRKIWard Filesl6ridge-Aina Le'alLetters~05.01.0o Leithead-7odd.doC Sig I$.an~ ~li.Cf. Soils °_i„ , '~rkc: Syud,~ • n5-l:"i ~a~a'cil L F ~ • ;wnucle, Hltia2il -"J' .ii)~1 5`)-i-"~~, F= ~ JUN 01 '~0 11~1~A~^~ BA'YS DEA~EF' HIATT~c '~3~8-5`c~~-4184 p.~i4 ~'lernorandum to ABB CONFIDENTIAUATTOR~!E°.'-~'UENT COMMUNiCATIONIWORK F'RQDUCTI :'rum. LLB DO NOT PRODUCE TO TH11;1=' ~'~?RTIE3 Late dune 1, 2000 St;'~~cct; Bridge - Aina Le'a Recently, you inquired as to itte relationship between Count}- o;~.blcrui v. Puamana lYlanage,nerat Corporation, 2 Haw. App. 352 (1981}, and the enactment of Clta~,ter .514E, Hawaii Revised Statutes. When the legislature considered Act 186 (S. B. No. 1516 ~19~Q1). the Puamana case had been decided in the lou>er court and was then on appeal. Ir. i ; iri response to the Puamataa case, that the legislature adopted I-IRS ~ 51 a$-~, which reduires t,e counties to amend their zoning codes to limit the location of time share units, tune share fC ~~~s and other transient vacation rentals, within such areas as are deemed appropriate.l The lnr~~nnediate Court of Appeals was aware of Chapter 514E ~~'hen it decided the case in 1981. In the Puamana case, the County of Maui sought to enjoin the operation of a transient rental program wherein single-family homes in the Puamana project ~~~~:re rented to transients for a minimum period of one week, together with the provision of maid and bellhop services, a commercial laundry and other ser~~ices. The Puamana project vas a p~azu-red unit development located in a residential zoned district. The County asserted that under the provisions of the Maui Cour~,_. Code, Puamana Management Corporation was illebally operating a hotel in a residentia district. The Court, however, found that the definition of "hotel" in the Counri~ ordinance ~~.~kiclt restricted to a single building and thus, "obviously aimed at the design of the structure rather t'~~n the usage." Puar~~ana, at 356. The Court then stated that "there is no definition of hotel usa;7 in the ordinance and it is hotel usage that this case is all about." Id. After noting that the reservations desk had been moved off-site. die Court held that the ordinance as it was then drawn; ongoing rental operations u7th prop i~~icn for rrzaid and housekeeping services, was not a violation of the residential zoning of the pr:~n;i~~=.s. The Court stated: we are un~~illing to say that an individual apartment o~ti~ner could not souse his property and see no real difference bet«~eer. ~ "Since the case was tried. the legislature of this State has passed Act 1$6 of tlae. Session Laws of 1980 authorizin; the several counties by amendment of their zoning ordir~unces to limit the location of time-share units, time-share plans and other transient vacatio~-~ ~~entals. In that connection it was noted in tl?e Conference Committee Report on Senate Bill ? ' i 6: This mandate will be particulazl}' helpful in efforts to clarify hotel, resort and transient vacation rental areas. The counties do not presently zone for the less traditional forms o l ~ansient ~risitor accommodations, and should address this in the near future. (1980 Senate- .Te,~rnal, page 942; 1980 House .lournal, page 1091).'' Puamana, at 357. P:1BridQe-Alna Le'aMemos1053000 B.t.eithead-Tpdd dac ' ~~:~1`E1~ • ~II.1TT ' l.l; \(7 ~ .L~O:~E .attornee~ ar ~i~.ti JU~~ ~1 'ale 11~ 12AM BAYS ~EFY'E~' I-'IATT~'S SQE-~~'~-4154 ~.4ia To: ABB CONFIDENTIAUrfi~ i ~ C>RNEY-CLIENT prom: LLB COMMUNICATIONiliu~)RK PRODUCT pate: June 1, 2000 DO NOT PRODUCE s THIRD PARTIES Subject: Bridge-Aina Le'a Page 2 one apartment owner so using his property and a number of apartment owners banding together collectively to so use their properties. The question of where to draw the line with respect t~-~ the number of units involved, the length of sta}~, the services punished, etc., is an appropriate subject for legislative, not judicial determination. If the County of Maui .~~ishes to redefine the terms in its ordinan:~e so as to prohibit certain usage, it has the power to do so under ~ 186, S. 1?. 1980. due suggest that its remedy is in its o«m Iegislati~~e body, and not in the courts. Puarnana, at 3 5 8. As a result of the enactment of Chapter 514E. HRS. the County Cc}uncil adopted Ordinance 96-160 relating to zoning, Time share units are a pemussible use under the County Code within the V, resort-hotel district (Section 2~-5-92(a)(35), County CvdE~i, she CG, general commercial district (S'eeiion 25-~-11~(a)(54j, County Code, and the Rho, mtatiple-family residential district {Section 2~-~-32(x)(19), County Code). Within the RM district, the County Code expressly provides. as 1~~lows: §25-~-32(x). Permitted CJses. The following uses shall be p~rtnitted in the RM district: (19) Time share units situated in any of the foho~~.'izz~: (A) Areas designated as resort under the general plan land use pattern allocation guide {LUPAG) map. (B) Areas determined by the director to be <<~.-;thic~ resort areas identitied by the general plan land use ~ lcn;. nt, except for retreat resort areas. (C) Areas determined for such use by the crnzncil, by resolution. By enacting Section 25-5-32(a)(19)(C), the County Council re~erti ed unto itself the discretion to determine, by resolution, areas within the RM district appropriate for time share units. P:~Brldga-Aina Le'almemos~053000 6.Leithead-Todd.doc