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HomeMy WebLinkAboutCOM 0739.355 2016-2018 MPG 73CI COUNTY CLERK Lam COUNTY OF HAWAII 21119 OCT 16 Ai 9: 26 Testimony.of , MICHAEL J. MATSUICAWA • In Opposition to Bill 108 October 15, 2018 I oppose Bill 108 in all of its past and current versions. The reason for my opposition is that Bill 108 is based on a false and untested premise, an assumption that the Hawaii County Council failed to address the subject of vacation rental activity in the RS District when the council enacted the current zoning code in 1999. This assumpiion, to my knowledge, has not been tested in any legitimate forum other than in the offices of County officials. The zoning code defines structures (and their use) and certain activity that may be put in an RS District as a permitted use. Thus, structures that are designed and built as "dwellings, single-family" are listed as a permitted use in the RS District. This two-part term refers to the structure, which is a"dwelling" (as defined), and its use (by a single "family," as defined).1 Bill 108's Focus • , , The subject of Bill 108 deals with activity called "vacation rentals" or "transient vacation rentals" or similar wording, specifically the use of a "dwelling, single-family" by non-owners on a short-term basis (daily or weekly) who are mainly visitors or tourists. 1 "Family"means an individual or two orore persons related by,blood, state-sanctioned adoption, foster parentage, guardianship or marriage, or a group of not More than five unrelated persons (excluding'servants), occupying a dwelling unit. Section 25-1-5, Hawaii County Code. 1C1' SOO 1 Ref.Co mm. N Too 0 Ref.Date dY1 6 2018 *Mk stia • Traditionally, landowners rent their dwellings on a month-to-month basis to meet the housing needs within,their community and to provide the landowner with income. On`the other hand;'renting'a dwelling on a daily or weekly basis for short stays are traditionally located in the Resort District or, in the case of a bed-and-breakfast operation, in certain.districts by way of a use permit. While rooming and lodging houses are usually of short or indeterminate duration, these kinds of structures and uses are allowed in other zoning districts as a permitted use (but not in an RS District). The "vacation rental" or "transient rental" activity is recent and meets the needs of those who choose:not.to utilize hotels.or resort facilities and who choose to spend their vacation days in community neighborhoods by choice. The advent of internet advertising, augmented by the County's inability or unwilling- ess to enforce the zoning code, have accommodated this new "industry" in which a landowner can reap substantial economic returns, especially if a landowner owns three or five'or more homes that are held for that pp u ose. The Zoning Code When the Hawaii County Council enacted the current version of the zoning code in 1999, the council took the precaution of enacting Sections 25-4-3 and 4, Hawaii County Code as a safeguard. These provisions state: Section 25-4-3 The permitted uses as listed in the regulations for each zoning district may be established within that district. ... Section 25-4-4 Any use not listed among the permitted uses in a zoning district is a prohibited use withinthat district,except as otherwise,provided in this chapter. 2 The reason for enacting Section 25-4-4 is obvious. The Hawaii County Council knew what it wanted to be allowed in the RS District and, , therefore, listed the same as permitted uses. In the,event that the Hawaii County. Council had overlooked a particular structure °ruse or had not anticipated a particular structure or use in the.RS,District, the council intended to prohibit the same.2 The Hawaii County.Council's employment of this technique is,common to, many jurisdictions throughout the country. What is not permitted is prohibited. Nothingican be more clearly stated. No due process concerns on the part, of the landowner. , Surrendering Enforcement Responsibilities ' - Enforcement is not an easy task. Our island is large. County staffing is minimal. The enforcement function generally belongs exclusively to County officials, except in certain cases. Although a citizen niay under Article XI, Section 9 of the State,constitution, enforce a zoning law, the,cltizendoes not have what is known,as a"private cause of action.". Further, few citizens have the standing, time or resources to take on the role of the enfprcerof the zoning code. That role rests primarily with County officials, but since County enforcement of the zoning code is nil, sporadic or otherwise inadequate, many,landowners converted"dwellings, single-family" into profitable vacation rental structures that yield significant, economic benefits to the landowners, but at the same diminish the quality of life for area residents and the pool of affordable rental housing. 2 This provision has been "on the books" since 1975 .. See Section 25-45, Haw'aii CountY bode ("Any use not listed amOng the ' permitted uses in a district shall be deemed to be a prohibited use with that district, as otherwise provided for") . 3 "Shibai" Again, to support Bill 108;-County officials rely On a false and untested assumption and; furthr,'propose to "grandfather"-activity`that is not permitted in the first place and'turn the same into a"nonconfoririiiig use." Nonconforinarice means that the use was a'uermitted use'before ` Ratherthan enforce the zoning code and face the inany counterclaims that landowners'will ' raise against the County for damages; constitutional violations'arid`the like and rather'than`enforce`the public policy embodied in the zoning code, the supporters' of Bill 108 wish to avoid-that'battle`an d'sacrifice the interests and expectations'of those who live in RS Districts. What is happening is obvious, but the citizenry lack the power of the referendum to repeal.Bill,:-108 if it is,enacted.. ,The citizenry is expected to "trust" County officials and believe that County officials are doing what's right. +r. . Execute Your Oath Every"County officer to an'oath to"support 'and'defend ...'the "� '' Constitution of the State f'Hawaii" and to-"faithfully discharge their duties • pursuant to Section 13-5.of'tl e I-Iawaii'Courity Charter: Voters'gave each County, under the State Constitution,Article'VIII, Section 1, the- home rule" power,'but with'the obligation to "exercise 'such powers-as shall'be conferred ori them by - State laws. ._ r .._ One of those State laws appears in Section 46-4, HRS, in which the Legislature directed each County to enact a general plan and zoning laws that "encourage the most beneficial use of the land consonant with good zoning practices." The Legislature also insisted that zoning regulations must "encourage the orderly development of land." The citizenry has made theirfeelings.known. 4 Bill 108 does NOT encourage"orderly development" or `-`the-most'beneficial use of land:" Nor is Bill.108 an example of"good zoning practices." - Since 1975, Section 25-4-4; Hawaii County Code has been in place to protect people who own land in and who reside in the RS District. Activity that is not listed as a permitted use for the RS District is prohibited . Now, County officials retreat from their enforcement responsibilities and try to justify Bill 108, which is merely a reflection of past enforcement failures on the part of County officials and which is based upon a false:and untested:assumption, Section 25-4-4 notwithstanding. Listento'the Citizenry - , In 1989, the late Justice Edward Nakamura of the Hawaii Supreme Court (World War II veteran, labor attorney, university regent, scholar and supporter of the arts) reminded government planning officials that the official "notion of what constitutes good planning" should not prevail over the "decision made by the people." 70 Haw. at 496. He reminded all that "there is no certainty too that the City Council's zoning amendments will always reflect" good zoning practices. Strategic Options for the Citizenry The citizenry is prepared to test the false assumption that underlies Bill 108 —the assumption that Section 25-4-4, Hawaii County Code does not say what is written down in clear terms. What is not listed as a permitted use for the RS District is prohibited. A judge will be:asked if this provision is clear and obvious as to its meaning and effect. Regretfully, when the citizenry prevails in litigation, the citizenry receive no compensation, other than a vindication of their position. 5 County officials can walk away unscathed, without any obligation to compensate the public for the harm they bring onto:the.communities that they are supposed to serve. No one loses his or her job. Nothing really changes after the fact. There is no incentive,to change the manner in which County institutions function or operate. Is it any wonder why Hawaii has the poorest voting record in the entire nation? DO NOT PASS BILL 108. INSTEAD, SPEND TIME TO,IMPROVE`THE COUNTY'S ENFORCEMENT MECHANISM.. DON'T BE AFRAID TO ENFORCE THE LAW. CHANGING THE LAW IS THE EASY, BUT IRRESPONSIBLE WAY OUT. Respectfully yours, Michael J. Matsukawa- ' ' Citizen' 6 i '