What happened?
In December 2018 the County of Hawai’i enacted the so called Bill 108 (Ordinance 18 114) by a County Council which is under the heavy influence of the traditional hotel industry in Hawai’i (1) imposing significant restrictions on the ability of people who call The Big Island of Hawai’i their home to share their homes with visitors via homesharing platforms like e.g. AirBNB and VRBO.
Some aspects of Ordinance 18 114 likely violate both the US constitution as well as the Constitution of the State of Hawai’i (“Due Process Violation due to vagueness” and “Violation of the Equal Protection Clause”)
Unfortunately - as it has been reported in the media ( https://www.westhawaiitoday.com/2019/11/09/hawaii-news/board-of-appeals-wont-consider-constitutionality-of-vacation-rental-law/ ) the heavy influence of the traditional hotel industry even extends to the so called “Hawai’i County Board of Appeals”, which as per the County Charter should be an “independant” quasi-judical body
BOTH the FAILURE of the members of the “Hawai’i County Board of Appeals” TO RECUSE themselves despite clear evidence of having conflicts of interest (please see the article above) AND the fact that the applicant was NOT EVEN ALLOWED TO proceed with PRESENTing his arguments (which by itself is likely a “Due Process Violation” - a transcript of the meeting will be made available as soon as it is published) clearly show that the “Hawai’i County Board of Appeals” is nothing but an “extension” of the Hawai’i County Planning Department and in no way serves its intended role of a quasi-judicial “independant” body
The recommendation to anyone who will be appealing is that the appeal process needs to be regarded as a “necessary” (due to administrative law in Hawai’i) but clearly futile step prior to being able to file a “real” lawsuit
Everyone who is appealing in our opinion needs to be fully prepared to take things to court and therefore the mission of this website is going to be:
TO SHARE INFORMATION SO THAT WHOEVER TAKES THIS TO COURT HAS EASIER ACCESS TO THE INFORMATION WHICH WILL BE NECESSARY TO SUCCEED
How and what information will be made available?
We will be updating this website regularly and our ambition is to add documents frequently as soon as they become available. To see the documents you have to click on the underlined section in the text below (for technical issues the “format” of the documents are .jpeg files). Some of the documents are available on the internet and we will provide the actual link for the document as well as well as the download which will be stored on this website. Occasionally to protect the privacy rights of people involved with this some sections are “blacked-out” in the documents. Please check back regularly!
Full text of the first appeal which has been filed in relation to Ordinance 18 114 - the first part of this appeal was on the agenda of the November 8th, 2019 Board of Appeals meeting: "Full Appeal Text" (please note that there is one important “typo” in several places of the appeal text (especially on page 10) - by error HRS 215-18 is referred to - the correct statue is HRS 205-18).
Full text of the prepared “Nine-Page-Statement” which the applicant was not allowed to present at the November 8th, 2019 meeting and which has been referred to in the media: (please note that pages 1 - 5 were mostly intended to give the Board of Appeals members a real-life example about the limitations of Ordinance 18 114 - this of course is already well knows to the readers of this website - and we therefore recommend in the interest of time to start reading with the second paragraph on page 6)
“Memorandum No. 2019-02” issued on July 9th, 2019 by Planning Director Mr. Yee (ATTENTION: It is not yet established that this is really a document issued by Mr. Yee - if he however did issue this it could provide an argument that (1) the definition of STVR’s used in Ordinance 18 114 is unconstitutionally vague as it requires a “memorandum” to explain it and that (2) in addition the planning director acted outside his scope of duty as a “rulemaking” procedure as described in HRS Chapter 91 likely would have been necessary to “interpret” Ordinance 18 114
September 5th, 2018 Press Release by “The Hawai’i Lodging & Tourism Association” with Endorsement of Current and Former Hawai’i County Council Members who voted for Ordinance 18 114 (the original of the press release can be found at - we expect that HLTA will eventually remove this from their website - please let us know once the links stop working: https://gallery.mailchimp.com/ab2763c493e5d0e7b1ef3cb8e/files/cc5f3448-598f-4d34-bcc3-2d1b3f65dbf8/PRESS_RELEASE_HOSPITALITY_INDUSTRY_ANNOUNCES_GENERAL_ELECTION_ENDORSEMEN....pdf?utm_source=Hawai%27i+Lodging+%26+Tourism+Association&utm_campaign=ae9860e46d-EMAIL_CAMPAIGN_2018_06_19_02_16_COPY_01&utm_medium=email&utm_term=0_6e7e748655-ae9860e46d- and it is also referred to in the following blog post: http://www.hawaiilodging.org/blog/archives/09-2018 (you will have to scroll down all the way to the bottom to the 9/7/2018 blog entry)
“Board of Appeals Rules of Practice and Procedures” "Board Rules"
“Original Agenda” for the November 8th, 2019 meeting which was clearly not in compliance with the State of Hawai’i “Sunshine Law”, and which was - after an intervention by the “Office of Information Practices” (“OIP E-mail”) amended by he County of Hawai’i as follows: “Amended Agenda”
“Comm.No. 739.385” which is a letter dated November 15th, 2018 by Michael Yee, Planning Director, addressed to Council Member Eileen O’Hara with the following subject: Response to Request for Information Pertinent to Passage of Bill 108. This might be an important document for people who have been denied due to the “1976” State Agricultural Designation issue. It is a list of subdivision the county considered to be “pre-1976” the letter is stored on the County of Hawai’i website here: http://records.co.hawaii.hi.us/weblink/0/doc/969756/Page1.aspx
It appears that several people who have houses in subdivisions listed in the above communication (Comm.No. 739.385) have still been denied as for the STVR/NUC application process the date of “recording” of the lot appears to be what the County has been placing their decision on. There is another document, which is available on several places on the County of Hawai’i Planning Department websites called “Land Use Regulatory System” - it is dated from 2006 and was uploaded in their system on 11/30/2011. It gives a good overview of the Land use Regulatory System in Hawai’i but MOST IMPORTANTLY there is a statement on the top of page 2 - which makes clear that the Planning Director in 2006 considered the “approval” of the subdivision the important date in the pre-/post-1976 decision process and not the lot “recording” date: “On lots created by subdivisions approved after June 4, 1976, homes are supposed to be “farm dwellings”, or otherwise accessory to agriculture, but in pre-June 4, 1976 subdivisions the homes can be “single family dwellings.” The document can be found here: http://records.co.hawaii.hi.us/weblink/1/doc/56156/Page1.aspx or here http://records.co.hawaii.hi.us/weblink/DocView.aspx?dbid=1&id=56156 - information here https://www.hawaiicountycdp.info/public-planning-resources/land-use indicates that it was likely written by the former Planning Director Mr. Chris Yuen
More information:
We had previously asked on this website to submit “Petitions to Intervene” for the November 8th, 2019 meeting. According to the vice-chairperson of the Hawai’i County Board of Appeals none were received - if you or someone you know filed one of these they must have been “lost” as there were not discussed by the board at the meeting at all
All upcoming Board of Appeals meetings are public. The next one is scheduled for February 14th, 2019 in Kona and we encourage you to attend as you might learn some more additional information
If your application has been processed at the Kona Office of the Planning Department between April and June 2019 we very much encourage you to cross check the name of the person responsible for processing your application with the following website, which is maintained by the Department of the Attorney General: https://sexoffenders.ehawaii.gov/sexoffender/welcome.html
Can I help in any way?
The biggest help will be to share this site with as many people as possible
Ideally if you know any lawyers in Hawai’i share this page with them - as it ultimately will be one of them who will (hopefully) strike down Ordinance 18 114 in court and hopefully this website will allow her or him to see what information has been collected already, so that they do not have to “start looking from scratch” but instead can focus on developing the best legal strategy and selecting which information to use and which to omit
Of course if you have access to additional documents or information which could be helpful please feel free to e-mail these to us using the e-mail below - by sending us information we assume that you have given us permission to publish the document on this site (without revealing you as a source of course)- we however must reserve the right that we might not publish the information you will send us and also to “black out” sections which we feel could violate somebodies privacy rights. If you want to remain anonymous just create a one time e-mail account for the purpose of sending the information to us
There are also some things which could be helpful going forward and which we do not know - so if you know of any publicly available sources about the following please feel free to share them with us:
We do not have any personal problem at all with the Hawai’i County Planning Director. From reviewing the publicly available information on him it appears that he only moved to the Big Island in 2016 when he was nominated by Mayor Kim into his current position (which again is no problem - it is very good to have an outside perspective on things). However what appears to be concerning is that this appears to be his first “government” job - his prior job information lists him working for a YWCA on the West Coast. This “inexperience” might explain his handling, e.g. of the potential “Memorandum No. 2019-2” which in a private business environment would have been OK, however not in his current government function
The upcoming lawsuit will likely contain argumentation using “42 U.S. Code 1983 - Civil action for deprivation of rights”. It is likely that the County of Hawai’i has an insurance policy which protects the County against such claims if they are filed, as the above law is usually applies e.g. for excessive force used by a police officer. It is our opinion that the insurance carrier should be informed that currently the County of Hawai’i is “knowingly” implementing a likely “unconstitutional ordinance” and this might lead to the insurance carrier putting pressure on the County of Hawai’i that they would NOT cover claims which might arise from Ordinance 18 114 litigation. If you happen to know if such an insurance exists and the name of the insurance carrier please let us know so that they can be contacted.
MAHALO for all your time and support in advance!
AND AGAIN PLEASE DO SHARE THIS WEBSITE WITH ANYBODY WHO COULD BE INTERESTED!
(1) Press Release September 5th, 2018 by the Hawai’i Lodging & Tourism Association endorsing the following politicians who have been involved with Bill 108 for re-election as Members of the County Council: Valerie T. Poindexter, Maile David, Herbert “Tim” Richards III and also endorsement for Dru Kanuha for Hawai’i Senate - District 3; In Addition: Sue Lee Loy who’s re-election was unopposed in 2018 has previously received campaign contributions by the Hawai’i Lodging & Tourism Association (source: State of Hawai’i - Campaign Spending Commission); Karen Eoff who’s re-election was also unopposed in 2018 - although formally cleared by the County of Hawai’i Ethics Board - may have still benefitted by the current bill in regards to her ownership of a vacation condo in a commercial - zoned resort area in Kona.