HomeMy WebLinkAboutCOM 0739.217 2016-2018From:
Democracy Alliance
To:
Council Testimony
Subject:
Bill 108 --- July 10, 2018
Date:
Monday, July 09, 2018 12:00:28 PM
Re: Bill Number 108
Hearing: July 10, 2018
Dear Council Members:
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Center For Democracy
As Council is aware of, all laws, even those proposed at the local County level, must conform
to Federal law and the U.S. Constitution.
This Bill, if passed in its present form, will be in violation of Federal law. This Bill does not
treat in-state and out of state residents in an equal way and is therefore discriminatory.
The Bill only regulates out,of state interests and completely omits from any regulation, in-state
interests. This measure will violate the rights of property owners who are non -Hawaii
residents under Article IV, Section 2, (Privileges and Immunities Clause), the Equal Protection
Clause of the Fourteenth Amendment (Equal Protection Clause) and Article I, Section 8
(Commerce Clause) of the Constitution of the United States.
The United States Constitution provides that "Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens of the several States." The United State Supreme Court
has found that "one of the privileges which the Clause guarantees to citizens of State A is that
of doing business in State B on terms of substantial equality with the citizens of that State."
The Bill's definition of "Short-term vacation rental" states it is defined as "a dwelling unit of
which the owner or operator does not reside on the building site ... shall not apply to short
term use of an owner's primary residence ..." Clearly, the economic activity of Short term
vacation rental is renting for 30 days or less to a guest. The owner's residency does not change
the economic activity. It is clear that this Bill impermissibly violates the Constitutional
guarantee of doing business on terms equal to residents.
The Equal Protection Clause provides that "no State (or other governmental entity) shall ...
deny to any person within its jurisdiction the equal protection of the laws." "Laws which deny
fundamental rights to some groups and not to others are subject to strict scrutiny review.
Under the"Equal Protection Clause, discrimination on the basis of residency is also reviewed
under strict scrutiny."
The Commerce Clause provides for protections of discrimination against interstate commerce.
"As we use the term here, "discrimination" simply means differential treatment of in-state and
out-of-state economic interests that benefits the former and burdens the latter. If a restriction
on commerce is discriminatory, it is virtually per se invalid." [Barber v State if Hawaii]
While this Bill does recognize as a permissible use short term vacation rental in specific zones
it is inconsistent in separating out the single family home within the resort node and general
plan resort area. A property, even a single family home within a resort area is consistent in its
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use as a short term vacation rental. There should not be a separate requirement to obtain a use
permit to conduct the same business that is already anticipated by the zoning of the resort
zoning classification.
A number of the non -conforming use certificate requirements are discriminatory. A non -
taxing governmental department (such as the Planning Department) does not have the '
authority to demand a person's private tax documents and filings. For example, breaches of
confidentiality by a State or Federal taxing officer would constitute such a violation of privacy
that the officer would be charged with a felony for such conduct. It should also be noted that
the State of Hawaii Constitution provides for a Right to Privacy. The County Planning
Department demanding documents that are held to be private by the Federal and State
governments is inappropriate. A requirement to provide for a copy of the person's TAT and
GET certificates, should be ample documental.
Good neighbor policy provision. Noise and quiet hours are discriminatory when they apply
only to guests of short term rentals owned by nonresidents and not to everyone who is
occupying a dwelling within a residential neighborhood. There already exists ordinances that
are applicable to residential neighborhoods.
Registration number in advertising. Although in state owners would also be advertising, only
out of state owners would have to comply with this regulation, it is therefore, discriminatory.
Terms of renewal of non -conforming use certificate are inconsistent and therefore
discriminatory with other renewals for other types of uses. For example, other forms of
renewal must comply with "there have been continual violations of the use permit" or "a threat
to the health or safety of the community." But a short term vacation rental can be denied for
"neighbor complaints of noise and other disturbances." This is a different and harsher
standard than others who are renewing a non -conforming use permit and is therefore,
discriminatory against an operator who is a nonresident conducting short term vacation
rentals(
It has also been proposed that the designated contact person would mean a professional
property manager licensed in the State of Hawaii. There is nothing within the function of a
designated contactperson that would require a licensed realtor to perform. Similar to the
State law requirement that there be a designated on -island contact, there is not a requirement
that they be a licensed realtor. This issue has been addressed over and over at the State level,
the Attorney General has commented, the State of Hawaii Department of Commerce and
Consumer Affairs, Real Estate Commission and Regulated Industries Complaint Office have
provided written and oral testimony many times that an owner of property may not be required
by a government entity to hire a real estate licensee. It is also well established Constitutional
law.
Bill 108 is deeply flawed and inconsistent with Federal and State law. We ask that you defer
this Bill.
Manjeet Singh