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Board of Appeals rejects argument in short term vacation rental case

County code that allows automatic approval of certain permits if the Planning Department misses its deadline garnered a lot of opposition at the County Council earlier this month. But as an applicant for a vacation rental permit found out Friday, the law doesn’t always apply.

James Sturz, a New York City resident who lives part-time in a three bedroom home on a 38.8-acre parcel in Kapaau, told the Board of Appeals on Friday that his application for a short-term vacation rental and nonconforming use certificate should have been automatically approved because the Planning Department didn’t act on his application within the 90-day period provided in law.

The Planning Department, which successfully moved that the case be dismissed, said the 90-day deadline doesn’t apply on applications contrary to the law. Deputy Corporation Counsel John Mukai said the application can’t be approved because it violates state law requiring houses to be farm dwellings and have a connection to agriculture if they’re built on land classified under the state system as being in the agricultural district.

“There just can’t be an automatic approval … because the Planning Department may have missed its 90-day decision period,” Mukai said.

The Board of Appeals voted unanimously in agreement.

Sturz, who represented himself without an attorney, disagreed with that assessment. Applicants must complete an “arduous” multi-page application process by a timeline, and if the department doesn’t have to follow its own laws, then the law is being applied unequally and in an arbitrary manner, he said.

“If the Planning Department is now saying none of that matters because if the only thing that matters is something else, its not clear what rules the Planning Department is following at all,” Sturz said, before reading pertinent sections from the county code. “That is the law, that is the regulation. To say it is not now, is nonsensical and absurd.”

Sturz drew objections from Mukai and Planning Director Zendo Kern when he characterized the department’s stance as saying “it doesn’t matter whether you follow the rules or not.”

Kern said automatic approval doesn’t apply to something that’s against the law to begin with.

“You applied for something that you would never, ever be able to get in the first place,” Kern said. “In this particular case, it’s pretty darn clear.”

Automatic approval of permits was added to state law in an attempt to revitalize the state’s economy in the 1900s, according to Deputy Planning Director Jeff Darrow.

He told the Leeward Planning commission in October that the state allows the counties to create an ordinance to opt out.

“We’re discussing that direction with our Corporation Counsel to find out what that entails and so, at that point we may want to move toward getting out of that automatic approval requirement,” Darrow said. “It’s something that a lot of people have brought up and are concerned about. But again, we’re just trying to act upon the law at this time.”

A bevy of testifiers decried the county’s automatic approval policy in the course of the County Council approving Bill 5, which made some changes to the county law while not removing the preexisting allowance for automatic approval.

Planning Committee Chairwoman Ashley Kierkiewicz, in recommending approval, said the changes to the county ordinance were needed to make the county code consistent with Planning Commission rules and procedures, according to a Feb. 2 committee report.

Policy and procedures should follow the law, not the other way around, dissenters said.

“It should not be that by bureaucratic negligence (or cowardice) approvals become a default mechanism.

This is truly wrongheaded and irresponsible policy making that will come back to bite us all,” said Robert Culbertson in written testimony.

“If there are health and
safety issues, or a project is abandoned, and the Planning Director won’t act, allow the public to go directly to the Planning Commission.”

The council on March 3 approved Bill 5, with Kona Councilwoman Rebecca Villegas the only council member voting no.

Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.
Source: Hawaii Tribune Herald

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