Frequently Asked Questions Regarding Vacation Rentals on Kauai
Q: How do I renew my Non – Conforming Use Certificate?
A: Download and fill out the renewal application above and turn it in with the required documentation and a renewal fee of $150 to the Planning Department at 4444 Rice Street Suite A473 Lihue HI 96766 by July 31st.
Q: What is a transient vacation rental (TVR)?
A: According to Ordinance 864, Section 2 of the Kauai County Code, a TVR is a dwelling unit which is provided to transient occupants for compensation or fees, including club fees, or as part of an interval ownership involving persons unrelated by blood, with a duration of occupancy of one hundred eighty (180) days or less.
A "single-family transient vacation rental" is a single-family dwelling unit other than a homestay, which is used as a transient vacation rental. In other words, it is a single house rented to visitors.
A "multi-family transient vacation rental" is a multi-family dwelling unit used as a transient vacation rental. In other words, this is a unit in an apartment or condo style building.
Passed in February 2008 and January 2009, Ordinances 864 and 876 govern the operation of TVR's in the County of Kauai.
Q: Where can TVR's be located?
A: In 1982 the County established what are called "visitor destination areas" (VDA) via the passage of Ordinance 436. The primary reason for establishing VDA’s was to designate areas on the island where resort activity would be permitted, and to preserve other areas of the island for residential, agricultural or other non-resort commercial and non-commercial uses.
Today, TVR's can operate legally within VDA's and can operate outside of the VDA only if a nonconforming use certificate is obtained by the County of Kauai Planning Department. This certificate must have been obtained by March 30, 2009. The County will permit no additional TVR's outside the VDA after that date.
Q: Why did the County pass an ordinance regulating the operation of TVR's?
A: The County General Plan, adopted in the year 2000, called for the County to recognize and regulate "alternative visitor destinations" – e.g. Bed and Breakfast, vacation rentals, inns, cabins and retreat centers.
Following the adoption of the General Plan, a study was commissioned by the County and conducted by Helbert Hastert and Fee relating to Single Family Vacation Rentals and Bed And Breakfast homes. This study was completed in July 2005. Stakeholders and members of the public participated in the study during the course of five public meetings (which were televised on Hoike public access channels) between April and July 2005.
In 2006, the Planning Commission entertained recommendations from the study as Zoning Amendment 2006-5. The Commission recommended approval with amendments and the matter was referred to the County Council in September 2006. The Council, after much deliberation and amendments, adopted Ordinance #864 on February 21, 2008. The bill was signed into law on March 7th 2008. At both the Commission and Council meeting the public were given opportunities to testify.
The following is taken directly from the "findings and purpose" of the ordinance:
"While this type of visitor unit could be compatible with the character and nature of Kauai and while it has certain positive advantages to the community...the uncontrolled proliferation of vacation rentals in residential and other areas outside the Visitor Destination Areas...is causing significant negative impacts to certain residential neighborhoods...
"Census data shows that seasonal rentals account for 45% of the new housing units built on Kauai between 1990 and 2000, a greater percentage than housing build for long-term renters (14%) or for owner-occupied use (36%). Since 2000, out of the 2,050 new residential units, 1,070 have been built for the seasonal homes market and less than half have been for local families to rent (46) or own (936).
"In oceanfront or other places of premium real estate value, second and third homes and vacation rentals...are displacing traditional neighborhoods where people of low and moderate income have been able to live in the past. Besides contributing to a lack of affordable housing in the community, this is changing the social character of neighborhoods where neighbors used to know each other.
"The Council also finds that transient accommodation and general excise taxes on various vacation rentals are sometimes not being paid, causing a loss of revenue to state and county governments and a failure to pay for impacts associated with visitors.
"The purpose of this bill is to restore a balance between primary residences and single family transient vacation rentals by: 1) requiring registration of vacation rentals or nonconforming use certificates and setting standards for all vacation rentals, 2) explicitly prohibiting new single-family vacation rentals outside visitor destination areas (multi-family vacation rentals are already so prohibited), and 3) identifying and allowing nonconforming uses where single-family vacation rentals have been operating lawfully prior to approval of this bill."
Q: Were the existing TVR owners/operators provided sufficient time to properly permit their units?
A: Ordinance 864 was passed by the County Council on February 21, 2008, and was signed into law by Mayor Bryan J. Baptiste on March 7, 2008.
Operators of legally operating TVR’s in the VDA were required to register their unit(s) with the Director of Finance within 180 days of enactment of the ordinance.
Operators of TVR's who had been in lawful use prior to the enactment of the ordinance were required to obtain a nonconforming use certificate by March 30, 2009. Applications for such a certificate were available to the public as of March 30, 2008. The applications were required to be submitted to the Planning Department by October 15, 2008.
In providing for these generous application periods, it was the intent of the Council to provide operators with sufficient time to complete the application and gather the necessary documentation to support their request for a nonconforming use certificate.
Q: Why were TVR's located outside of the VDA required to obtain a nonconforming use certificate, and why will the County allow no new TVR's outside of the VDA?
A: Ordinance 864 explains: "…the uncontrolled proliferation of vacation rentals in residential and other areas outside the Visitor Destination Areas…is causing significant negative impacts to certain residential neighborhoods…"
While the County did not wish to penalize established, legally operating TVR's outside the VDA, it was the intent of the Council to eliminate TVR's that were not operating legally, and to prevent the addition of more TVR's outside of the VDA. By passing the ordinance, the Council's intent, at least in part, was to re-establish the VDA as the appropriate location for visitor accommodations.
Q: Why can't TVR's located on agricultural lands continue to operate?
A: Section 8-17.10 (d) of Ordinance 864 states: "Pursuant to [Hawaii Revised Statutes] Chapter 205, no nonconforming use certificate shall be issued for any single-family transient vacation rental located on land designated "Agricultural" by State law, unless: (1) It was built prior to June 4, 1976, or (2) The Applicant has a special permit under Hawaii Revised Statues, Section 205.6 which specifically permits a vacation rental and the permit was secured prior to the enactment of this ordinance."
Only TVR located on Ag lands which meet criteria (1) and (2) were eligible to apply for a nonconforming use certificate.
Q: Are there legal TVR's operating in the County of Kauai?
A: Yes. TVR's located in VDA's subject to Article 8, Chapter 17 of the Kauai County Code are legal. For TVR's located outside of the VDA's, all operators who had submitted complete applications with the Planning Department during the period March 30, 2008 to October 15, 2008, and had subsequently been found to be in compliance with the provisions of Ordinance 864 and Ordinance 876 as of the date of enactment of the ordinance, were granted nonconforming use certificates on March 30, 2009 to operate in the County of Kauai. A listing of approved TVR's can be found on the County's website: www.kauai.gov/planning/TVR.
Q: Are there illegal TVR's operating in the County of Kauai?
A: Any TVR outside of the VDA which was not legally operating as of the date of enactment of the ordinance, or had not filed an application by the deadline of October 15, 2008, and is still in operation without a nonconforming use certificate is considered illegal. A listing of approved TVR's can be found on the County's website: www.kauai.gov/planning/TVR.
Q: How can I find out if a TVR in my neighborhood is operating legally?
A: The County maintains a web-based log of TVR’s with approved nonconforming use certificates: Transient Vacation Rentals Application Log. This listing can also be obtained via the Planning Department office located in the Kapule Building at the Lihue Civic Center.
Further, Ordinance 876 amends section 8-17.10 of the Kauai County Code to include item (f) which requires the Planning Department to make available to the public for inspection any application for a TVR nonconforming use certificate received during the application period.
Members of the public may initiate proceedings to revoke a nonconforming use certificate, or stop an unpermitted use, pursuant to Chapter 12 of the Rules of Practice and Procedures of the Planning Commission, as amended.
Q: If my TVR was located outside of the VDA and was not in compliance with the ordinance on the date it was enacted, did I have an opportunity to bring it into compliance?
A: No. TVR's outside of the VDA must have been in full compliance with the ordinance on the date it was enacted (March 7, 2008) in order to receive a non-conforming use certificate.
Q: I've received a "cease and desist" order from the Planning Department for my TVR. Can I appeal if my application for a nonconforming use certificate was denied?
A: Yes, Chapter 9 of the Planning Commission rules provides for an appeal process. However, you may not operate your TVR until you have been issued a nonconforming use certificate through a successful use of the appeals process.
Q: What about visitors who made reservations for arrival after March 30 at TVR's that were denied a nonconforming use certificate?
A: For applicants who were denied a nonconforming use certificate, there is an appeal process under Chapter 9 of the Planning Commission rules. However, until that certificate is obtained, it is illegal to operate a TVR outside of the VDA.
TVR operators who accepted reservations after March 30, 2009 did so at their own risk. Section 8-17.11 (b) of Ordinance 864 states: "Advertising of any sort which offers a property as a transient vacation rental shall constitute prima facie evidence of the operation of a transient vacation rental on said property and the burden of proof shall be on the owner, operator, or lessee to establish that the subject property is not being used as a transient vacation rental or that it is being used for such purpose legally. If any unit is found to be operating unlawfully, penalties established in Section 8-17.6 and Section 8-24.1 shall apply."
Q: How many applications for non-conforming use certificates were received by the County during the application period and how many were approved?
A: Over 500 applications were received and roughly 300 approved.
Q: How many vacation rentals are currently legally operating inside and outside of the VDA?
A: Including condo units, there are over 3,200 units that have either registered or received a non conforming use certificate and are available to visitors.
Q: If I have a non conforming use certificate to operate a TVR outside of the VDA, can I continue to operate forever?
A: All holders of nonconforming use certificates for single family vacation rentals must apply with the Planning Department to renew their certificate every year prior to July 31, pursuant to the requirements of Ordinance 864 Section 8-17.10 (g). A $150 renewal fee will be required at the time of application.
Kristin M. Zimmerman & John F. Friedman
Kauai Aloha Real Estate, Inc.
Kristin M. Ph: (808) 651-9506John F. Ph:(808) 651-1276