Showing posts with label Bed and Breakfasts. Show all posts
Showing posts with label Bed and Breakfasts. Show all posts

Sunday, June 17, 2012

Haw. Appellate Court finds Private Right of Action to Enforce Zoning Violation

In Pavsek v. Sandvold, the Hawaii Intermediate Court of Appeals (ICA) considered the following question: "whether Hawaii Revised Statutes (HRS) § 46-4(a) (Supp. 2011) creates a private right of action that authorizes a 'directly affected' private real estate owner to seek judicial enforcement of the LUO [the City and County of Honolulu's Land Use Ordinance], without first bringing his or her claim before the administrative agency charged with enforcing the LUO."

The Plaintiffs are owner-occupants of a residence on Papailoa Road. Papailoa Road runs parallel to the beach and is near two tourist attractions, Laniakea Beach, known for the presence of sea turtles, and the beach that served as the set of the ABC television show "Lost." Defendants own residences on Papailoa Road.


In their complaint filed with the First Circuit Court, the Plaintiffs alleged that Defendants operated a bed and breakfast home or a transient vacation unit without a non­-conforming use certificate, pursuant to LUO §§ 21­-4.110-1, 21-4.110-2. The Circuit Court dismissed Plaintiffs' complaint with prejudice.

On appeal to the ICA, Plaintiffs argued that the Circuit Court erred in dismissing their complaint, because they have a private right of action under HRS § 46-4(a) to file suit to enjoin Defendants' alleged violation of the LUO. The ICA agreed with Plaintiffs, but also held that the "enforcement action is subject to the doctrine of primary jurisdiction[.]" Consequently, the Circuit Court cannot dismiss the complaint with prejudice, instead the Circuit Court must either (1) retain jurisdiction and stay the proceedings, or (2) if the parties would not be unfairly disadvantaged, dismiss the case without prejudice. Either action allows the Plaintiffs to first bring their claim before the administrative agency charged with enforcing the LUO. In this case, the Plaintiffs must (1) petition the director of the Department of Planning and Permitting for a declaratory ruling as to the application of the LUO to the alleged violation, and (2) if the director's decision is adverse to the Plaintiffs, they must appeal to the Zoning Board of Appeals, before the Circuit Court can consider their complaint.

The ICA recognized the similarity between the concepts of primary jurisdiction and exhaustion of administrative remedies, and offered the following guidance from the Hawaii Supreme Court:
Courts have "developed two principal doctrines to enable the question of timing of requests for judicial intervention in the administrative process to be answered: (1) primary jurisdiction; and (2) exhaustion of administrative remedies." B. Schwartz, Administrative Law § 8.23, at 485 (2d ed. 1984). "Both are essentially doctrines of comity between courts and agencies." Id. (footnote omitted).

"'Primary jurisdiction' applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body." United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-65, 1 L.Ed.2d 126 (1956). When this happens, "the judicial process is suspended pending referral of such issues to the administrative body for its views." Id. at 64, 77 S.Ct. at 165 (citation omitted). In effect, "the courts are divested of whatever original jurisdiction they would otherwise possess." B. Schwartz, supra, § 8.24, at 488 (emphasis omitted). And "even a seemingly contrary statutory provision will yield to the overriding policy promoted by the doctrine." Id.

"Exhaustion," on the other hand, comes into play "where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course." United States v. Western Pac. R.R., 352 U.S. at 63, 77 S.Ct. at 164. "The exhaustion principle asks simply that the avenues of relief nearest and simplest should be pursued first." Moore v. City of East Cleveland, 431 U.S. 494, 524, 97 S.Ct. 1932, 1948, 52 L.Ed.2d 531 (1977) (Burger, C.J., dissenting). "Judicial review of agency action will not be available unless the party affected has taken advantage of all the corrective procedures provided for in the administrative process." B. Schwartz, supra, § 8.30, at 502.
See Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 734 P.2d 161 (1987).



Friday, May 29, 2009

Maui Planning Commission Approves First B&B Permit Under New Law

The Honolulu Advertiser reported that the Maui Planning Commission has approved the first application under its new bed-and-breakfast ("B&B") ordinance that allows B&B home businesses within the county's agricultural zoning district.

The Planning Commission approved the special use permit at its May 26, 2009 meeting. The item was listed on the Commission's Agenda as follows:
JOHN G. CAMOU and SANDY BECK CAMOU requesting a State Land Use Commission Special Use Permit in order to operate a Bed and Breakfast operation on 1.2 acres of land in the State Agricultural District at 555 Haiku Road TMK: 2-7-008: 041, Haiku, Island of Maui. (SUP2 2008/0005) (J. Prutch)
Even with the new local B&B law, a state special use permit is required because a B&B is not an allowed use within the state agricultural district pursuant to HRS Chapter 205. Consequently, HRS § 205-6 provides that the Commission may allow uses within the state agricultural district other than those for which the district is classified if it finds that the proposed use is "unusual and reasonable" and that it is consistent with other local rules the county may adopt.  In addition, the statute requires the Commission to counsult with the state land use commission, the state office of planning, and the state department of agriculture. Because the property is under 15 acres, the Commission has final approval; otherwise, the state land use commission has final approval.

For more on B&Bs see Bed and Breakfasts and Transient Vacation Rentals/Units.

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.

Saturday, December 20, 2008

It Could be an Early Christmas for Bed and Breakfast Proprietors on Maui

According to today's Maui news, Bill No. 115 (2008) - "A Bill for an Ordinance Amending Title 19, Maui County Code, Relating to Zoning as it Pertains to Bed and Breakfast Homes”, passed second and final reading at the Maui County council’s meeting on December 19. This clears the way for Mayor Charmaine Tavares to sign the bill into law.

Maui County does not post its bills online for the public to access; however, the county did post a January 2008 version of Bill 115 as part of a package of bills related to B&Bs and TVRs. If the bill that passed on December 19 is substantially similarly to the January 2008 version, Bill 115 will accomplish the following:
  • Expand the use of B&Bs to rural districts and agricultural districts
  • Require that permits must be held in the name of the proprietor, who is limited to a natural person; i.e., permits cannot be held by a corporation, partnership, or limited liability group
  • Allow proprietors to provide breakfast for guests (previously prohibited unless zoning allowed)
  • Limit B&Bs to existing single-family structures
  • Require a 16 square foot Project Notice sign to be posted at the front of the property along the main access road
  • Increase the number of units that may be approved by the planning director without hearing from 2 to 6
  • Remove council's final approval function--final approval for 6 or more units rests with the planning commission
  • Initial permits will be for a duration of 1 year; however, subsequent permits may be granted for up to 5 years
  • Permits over 2 years require annual reports from the permittee
Again, the above language may have changed since January 2008, which is the most recent version of Bill 115 posted at the County of Maui's Web site.

For more information about TVRs and B&Bs see this blog’s collection of TVR and B&B entries.

Thursday, October 16, 2008

Bed and Breakfast Ordinances in the News

The Maui County Council's planning committee has approved a plan to cap the number of legal bed and breakfasts on the island of Maui. The islands of Lanai and Molokai are not part of the cap and may choose to set their own caps if desired. A description of the bills considered at the committee's October 14 meeting can be found in the committee's agenda. For news coverage see the following articles: Chris Hamilton, Panel agrees on caps on B&B permits, Maui News, Oct. 15, 2008; Maui limit on B&Bs goes to full council for vote, Honolulu Advertiser, Oct. 16, 2008.

The Honolulu City Council last night voted 6-1 to give preliminary approval to a bill that eventually would legalize bed-and-breakfast operations on O'ahu. The ordinance would amend the City's land use ordinance by removing the prohibition on new bed and breakfast homes and establishing bed and breakfast homes as a conditional use in the residential districts subject to standards and restrictions, including a minimum separation distance, and requiring a conditional use permit (minor) for the use. For news coverage see the following: Will Hover, Honolulu City Council favors legalizing new B&B operations, Honolulu Advertiser, Oct. 16, 2008.

For more on zoning issues related to bed and breakfast establishments, see Bed and Breakfasts.

Monday, September 17, 2007

Maui to Consider Transient Vacation Rental and Bed and Breakfast Bill

Before working through the tapestry of laws that regulate Maui’s transient vacation rentals (“TVR”), bed and breakfasts (“B&B”), and O‘hana units, one must first understand what these terms mean under the Maui County Code.

  • Bed and breakfast home “means a use in which overnight accommodations are provided to guests for compensation, for periods of less than thirty (30) days, in a detached single-family dwelling unit occupied by the owner-proprietor or lessee-proprietor. The home shall include bedrooms, one kitchen, and living areas used by the family occupying the home and shall include no more than six bedrooms for short-term rental, as specified within the zoning district provisions of this title.” B&B are allowed in residential, country town business, B-1 neighborhood business, and B-2 community business.

    B&Bs are regulated under MCC Chapter 19.64. Permitting depends on how many B&B rooms are on a lot. Generally, Type I Permits (up to two bedrooms) are approved by the planning director, unless there are protests, a B&B is within 500 feet, or a variance is need, in which case planning commission approval is also required. Type II Permits (three to four bedrooms) are approved by the planning commission. And, Type III Permits (five to six bedrooms) are reviewed by the planning commission and final approval is granted by council.
  • O‘hana units are not directly affected by the bill discussed below; however, it is often confused with TVRs and B&Bs. “O‘hana unit” is the vernacular term for “accessory dwelling,” which “means an attached or detached dwelling unit which is incidental or subordinate to the main or principal dwelling on a lot.” It is further defined under MCC Chapter 19.35, Accessory Dwellings. Only one accessory dwelling is permitted per lot, and only if the lot is at least 7,500 sq. ft. or greater in size. Accessory dwellings are permitted only in the following county zoning districts: Residential; Apartment; Hotel; and Interim zoning. A building permit application is required. An “accessory dwelling” is not a “farm dwelling,” which “means a single-family dwelling that is located on and used in connection with a farm.”

Whether and where to allow B&Bs or TVRs is the topic of an emotional debate between the county, business owners, and the public, ergo the Maui Planning Department’s draft Bill, dated September 5, 2007 (“Draft Bill”). The Draft Bill proposes substantive changes to the above provisions as follows:

  • MCC Chapter 19.38, Transient Vacation Rentals, is added. TVRs will additionally be allowed in all business districts (up to twenty units per lot) and various resort districts.
  • MCC Chapter 19.40, Conditional Permits, is amended to preclude granting TVRs by conditional use permit. This would specifically prohibit the council from granting TVRs by permit in districts where they are prohibited.
  • MCC Chapter 19.64, Bed and Breakfast Homes, is amended so that B&B permits will expire when the term of lease of a lessee-proprietor expires, and the Draft Bill limits entities that can hold a permit to a “natural person” (i.e., not business entities like a corporation). These provisions may prevent a lessee of property from transferring the permit. In addition, the option of preparing food is allowed and a public notice provision is added.

    Significantly, the permit process is amended by abolishing the three permit types. Instead, B&B permits for one to six units may be granted by the planning director, unless protest letters are received from the surrounding area, a variance is required, or there is another B&B within 500 feet. In those cases, commission approval is required. Council approval is no longer required.
  • MCC Chapter 19.30A, Agricultural District, is amended to allow B&Bs. However, the applicant must show a bonafide agricultural operation with an annual gross income of $35,000.
  • MCC Chapter 19.29, Rural District, is amended to allow B&Bs.

In general, the Draft Bill limits TVRs to 20 per lot, but expands the areas where TVRs are permitted. The Draft Bill also expands where B&Bs are allowed, simplifies permitting , and takes council approval out of the equation.

The County Charter requires that the planning commissions review all land use ordinances. According to the Honolulu Advertiser, drafts currently are scheduled to be presented to the planning commissions in October.