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County to hear first appeal of vacation rental permit denial

A Captain Cook homeowner is appealing the county’s new short-term vacation rental law, saying it’s unconstitutional.

In the first challenge of a Planning Department decision on the ordinance since it went into effect in April, physician David Hefer will take his case Friday to the Board of Appeals. The quasi-judicial administrative board is the first step before legal action can be taken.

Hefer is one of 66 homeowners whose applications have been denied since the law went into effect.

Hefer and his wife own a home in the upscale 66-lot McCoy Plantation subdivision, a neighborhood of 1-acre lots in the state land use agricultural district. The subdivision features sweeping views in prime coffee country, with homes listed in the $1 million to $1.7 million range, according to listings.

The Planning Department denied his application for a nonconforming use certificate and vacation rental registration based on its finding that the lot was created after June 4, 1976, the date the state law changed allowing only farm dwellings in agriculture districts.

Hefer claims the finding is “arbitrary and capricious” and the “vague and incomprehensible wording” of the law violates his constitutional right of due process. In addition, he said, the county law is discriminatory because it arbitrarily exempts hosted rentals, where the property owner lives on site. That, he says, violates the equal protection clause of the U.S. Constitution.

“It would definitely be easier for me to just accept things as they are, but it is not the right thing to do,” Hefer, who is representing himself without an attorney, said in his appeal. “I honestly never intended to be part of all this but perhaps by now being in the middle of the issue I can contribute my part to creating a better future for Hawaii.”

Hefer points to a Nov. 15 communication to the County Council from Planning Director Michael Yee that lists McCoy Plantation among the dozens of subdivisions created prior to June 4, 1976.

In addition, Hefer is asking that four of the seven Board of Appeals members be recused from his case and that the rules be changed so three board members, rather than the four currently required, be empowered to overturn a planning director denial. Hefer claims the four have ties to the hotel industry and therefore have an inherent bias.

Hefer’s months-long progress through the registration system seemed relatively smooth, up to his Aug. 27 denial, according to his Planning Department file. He did receive letters of opposition from four of the 21 neighbors he was required to contact under the law.

One of the letters came from his next-door neighbors Diana and Steven Payne.

“While the Hefers have been pleasant and considerate neighbors, we are not interested in living next door to a vacation rental, whether or not it was well managed,” the Paynes said in a May 2 letter to the Planning Department. “There is a place for vacation rentals but it should not be in Ag zoning.”

New vacation rental applications are allowed only for dwellings in resort or commercially zoned areas. Those who were already operating in unpermitted areas had to apply for and not be rejected for nonconforming use certificates in order to continue past Sept. 30.

Vacation rentals are defined as dwelling units where the owner or operator does not reside on the building site, that has no more than five bedrooms for rent and is rented for a period of 30 consecutive days or less.

Email Nancy Cook Lauer at
Source: Hawaii Tribune Herald

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