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.

• Transient vacation rentals or use “means occupancy of a dwelling or lodging unit by transients for any period of less than one hundred and eighty (180) days.” TVRs are permitted only in the county's hotel district under MCC Sec. 19.37.010. Although the MCC permits TVRs only in the hotel district, the county council has granted at least eight conditional use permits for TVRs in other districts, as reported by the county in September 2007. For example, the conditional use permit ordinance for Cherie Attix, a TVR granted in the residential district.
  

• 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.