The issue of vacation rentals in the state agriculture district is back up for discussion, this time by the county Board of Appeals.
The board is scheduled Friday to consider a case brought by neighbors of a five-acre parcel in Captain Cook dubbed “Konania Villas,” that is advertised on vacation rental sites as three two-bedroom, two-bath interconnected villas with a shared courtyard, pool and patio in a “fruit orchard retreat.”
A group of neighbors had filed complaints with the Planning Department, saying the owners of the property at 81-905 Makahiki Lane had not registered nor obtained a non-conforming use certificate under the county’s short-term vacation rental law. In addition, they said, the property owner’s association’s covenants, conditions and restrictions prohibit the business use of property in the subdivision.
But Planning Director Zendo Kern in February denied the complaint, saying the owners, Ryan Andrew Neal and Beata Marie Zanone, were not in violation because Neal lived on the property and there was an agriculture use in the cultivation of lychee, rambutan and citrus fruits. The short-term vacation rental law governs rentals that are not also occupied by the property owner, unlike a bed and breakfast.
Two of the neighbors, William and Rebecca Gage, appealed, saying Kern cited the county code in his decision, but didn’t address the state law governing activities in the agriculture district, which states farm dwellings must be “accessory to,” later amended to “in connection with,” farm activities.
“Residential use of a farm dwelling without any connection to an agricultural use has never been allowed in the agricultural district,” Kailua-Kona attorney Michael Matsukawa, representing several of the neighbors, said in a Jan. 20 letter to Kern. “The law has always required that a farm dwelling be used in connection with a farm or accessory to an agricultural use.”
But Kailua-Kona attorney Patrick Wong, representing Neal and Zanone, said the responsibility of the Board of Appeals is to consider only the original arguments in the case, and decide whether one of three standards has been met: the director erred in its decision; or the decision violated the zoning chapter of the code or other applicable law or the decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.
“The present appeal should be brief and focused on the allegations as presented to the Planning Director in the respective complaints, inartfully crafted as presented, but nonetheless limited in scope,” Wong said in an Oct. 7 filing. “Appellants here attempt to use the ‘shot-gun’ approach in their appeal by peppering their misplaced contentions with new argument raised for the first time. … In short, Landowner Ryan Neal resides on the subject property. He operates an orchard farm consistent with the agricultural zoning.”
In a similar case, Circuit Judge Wendy DeWeese, in a May 2 order, denied a petition by the county and state to uphold the county short-term vacation rental rules while granting a petition by a group of family trusts — dubbed the “Rosehill Petition” — who own land in the agricultural district and want to pursue short-term rentals.
In her order, DeWeese concentrated on one aspect of state land use law governing land in the agricultural district. She noted that the state law doesn’t specify the allowable duration of leases of farm dwellings.
The case is currently before the Intermediate Court of Appeals.
