Thursday, July 24, 2008

Maui County Council Considers Ad Hoc Conditional Permit for TVR in Residential Neighborhood

The County of Maui is considering granting a conditional permit for another TVR in the residential district. Such action is an end around the law that currently allows TVRs only in the hotel district. Continuing to use conditional permits to allow a use that is clearly prohibited promotes uncertainty and distrust toward government. However, the controversy can be resolved by creating a TVR permitting process based on objective design and use criteria, which allows for community input.

The Maui County Code ("MCC") provides that transient vacation rentals ("TVRs") are permitted only in the hotel district. (See, Maui to Consider Transient Vacation Rental and Bed and Breakfast Bill.) Notwithstanding the clarity of the ordinance, the County Council's Land Use Committee has recommended that the Council grant a conditional permit to allow a TVR in a residential district. (See, Two-year permit recommended for Makawao TVR.) Under the MCC, a conditional permit is granted by the Council and signed into law by the Mayor. A conditional permit gives the Council the "opportunity to consider establishing uses not specifically permitted within a given use zone." However, the proposed use must be "similar, related or compatible to those permitted uses . . . for a particular location." MCC Sec. 19.40.010 .

A conditional permit is not the proper mechanism for granting TVRs in the residential district. First, conditional permits are for "establishing uses not specifically permitted within a given use zone." The law is not silent about where TVRs may be located in the County. The law specifically prohibits them in any district but hotel (with special allowances for certain nonconforming uses established prior to enactment of the restriction). MCC Sec. 19.37.010.

Second, the conditional permit process does not provide criteria for determining whether a TVR should be allowed. Assuming arguendo that TVRs can be compatible with residential uses, what criteria is the Council considering? How do applicants for a TVR permit know what impacts from their proposed use they should mitigate (e.g., parking, noise, etc.)? How are adjacent homeowners' concerns being addressed?

Instead of granting ad hoc permits, the County should create a TVR permitting process that is transparent, reasonable, orderly, and addresses the concerns of neighbors. A common permitting approach would be (1) a permit application reviewed by the planning department, and (2) approval by the planning commission based on specific criteria after a hearing. Under such a scheme, some TVRs may not be allowed where neighbors are adamantly against them; however, this is the nature of zoning: grouping compatible uses together to avoid nuisance claims.

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