Thursday, January 8, 2009

Highlights of Maui’s New Bed and Breakfast Ordinance

Maui’s Mayor signed into law Ordinance 3611 (2009), which amends chapter 19.64 of the Maui County Code (“MCC”) and other parts of Title 19 related to bed and breakfast (“B&B”) homes. (Note: The new law has not been codified as of this posting.)

Here are some of the more significant changes:
  • The definition of B&B has changed from an accommodation provided for guests for a period of less than 30 days, to a period less than 180 days.
  • No more than two detached single-family dwellings can be used for B&B operations per lot.
  • In addition to residential and business districts, B&Bs are now a permitted use in hotel, rural, and agricultural districts.
  • The permit shall be in the name of the “owner-proprietor, who shall be a natural person and the owner of the real property . . . [n]o bed and breakfast home permit shall be held by a corporation, partnership, limited liability company, or similar entity.”
  • No more than six bedrooms may be used as a B&B in a home on Lanai and Maui—no more than three on Molokai.
  • Guests are limited to two adults and two minors per room.
  • B&Bs “shall make breakfast available to onsite guests.” (Note: “Shall” implies that providing breakfast is mandatory.)
  • In Hana, Lanai, and Molokai, B&Bs must have a one square foot sign that identifies the B&B permit number. On Molokai, the proprietor’s phone number must also be included.
    Parking must be off-street.
  • Housing policies must be posted and include quiet hours from 9:00 p.m. to 8:00 a.m.; amplified sound permeating the boundaries of the lot are prohibited; and vehicles cannot be parked on the street overnight.
  • B&B caps are as follows: Hana, 48; Kihei-Makena, 100; Makawao-Pukalani-Kula, 40; Paia-Haiku, 88; Wailuku-Kahului, 36; and West Maui, 88.
  • Mitigation may be imposed by the director or the planning commission related to impacts created by B&B.
  • A project notice sign shall be posted along the front of the property five days prior to submission of application and removed no less than five days after final decision on the permit application.
  • For B&Bs that are one to six bedrooms, permits are approved by the director of planning. Public hearing and commission approval is required when 30 percent of homeowners with 500 feet of the B&B complain; if a variance is granted from B&B requirements; for more than three bedrooms in Hana; and for all B&Bs on Molokai and Lanai.
  • Initial permits are valid for a maximum of three years. Subsequent permits are valid for a maximum of five years on Maui and Lanai and for one year on Molokai.
  • An annual report is required for permits lasting longer than two years.
  • Owner-proprietors do not qualify for a homeowner’s exemption.
The department of planning has a new B&B application posted on their Web site.

For more on B&Bs see this blawg’s Bed and Breakfasts archive.


keola said...

How does Maui County approve Ag District (state LUD)B&Bs without special permits for each from the Planning Commissions/ County Council? Do they justify this use as an incidental or accessory use to the mandatory "farm dwelling" status of the residence, or ?

Hawaii Land Use Law and Policy said...

Good question. I'm guessing the county will allow B&Bs as a permitted use for agricultural districts by cramming it under the following HRS §205-4.5 provisions:

First, subsection (4) which allows "[f]arm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry." A "farm dwelling" is defined as "a single-family dwelling located on and used in connection with a farm[.]" Second, subsection (13) which allows "[a]gricultural tourism conducted on a working farm . . . for the enjoyment, education, or involvement of visitors[.]"

Agricultural tourism was a recent addition to the list of permitted uses by the state legislature.

Arguably, under subsections (4) and (13), a B&B for agricultural tourism is permissible without a permit. However, I don't know whether the County had another justification in mind.

keola said...

I note that HRS 205A-4.5(13)states, regarding permissibility of ag tourism, that it "...shall apply only to a county that has adopted ordinances regulating agricultural tourism..."

I am not familiar with Maui's ordinances, but question whether Maui County is really sanctioning B&Bs as part of ag tourism under this provision. It isn't part of ag tourism in Hawaii County, where B&Bs require a special permit in the state Ag LUD, and by 11/07/08 enabling ordinance, plain vanilla "ag tourism" requires prior Plan Approval and prohibits "overnight accommodations" unless approved by special permit. Of course, the Special Permit would remain mandatory in the state Rural LUD no matter what, as 205A-4.5 only pertains to the Ag LUD.

I wouldn't be surprised if an opponent of B&Bs on Maui brought a suit to invalidate the ordinance on the basis that a non-ag commercial use which is accessory to another accessory use (farm dwelling) was not allowed, unless truly accessory to ag tourism per county enabling ordinance. If Maui has state Rural LUD lands, B&Bs surely wouldn't be permissible without a special permit, I would think... I'd appreciate any other knowledge or perspectives on this that anyone can offer.