HOUSE OF REPRESENTATIVES
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO COUNTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that zoning has traditionally been a function delegated by the State to the counties pursuant to section 46-4, Hawaii Revised Statutes. Counties are thereby authorized to establish zoning classifications and provide for allowable uses and structures within those classifications.
The legislature further finds that, while some short-term rentals are permitted by zoning and others are granted permits to operate, still other short-term rentals are allowed to operate by virtue of their status as legal, nonconforming uses that have been grandfathered in. The legislature also finds that the zoning authority granted to counties to promote their orderly development would be enhanced by explicitly providing that a county may choose to phase out permitted, nonconforming, or otherwise allowed short-term rental operations in any zoning classification over time, where the county determines these operations are inappropriate.
The purpose of this Act is to make explicit the counties' authority to enact ordinances allowing for the amortization or phasing out of permitted, nonconforming, or otherwise allowed short-term rentals in any zoning classification.
SECTION 2. Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) This section and any ordinance, rule, or regulation adopted in accordance with this section shall apply to lands not contained within the forest reserve boundaries as established on January 31, 1957, or as subsequently amended.
Zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner. Zoning in the counties of Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of this section. In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land to allow and encourage the most beneficial use of the land consonant with good zoning practices. The zoning power granted herein shall be exercised by ordinance which may relate to:
(1) The areas within which agriculture, forestry, industry, trade, and business may be conducted;
(2) The areas in which residential uses may be regulated or prohibited;
(3) The areas bordering natural watercourses, channels, and streams, in which trades or industries, filling or dumping, erection of structures, and the location of buildings may be prohibited or restricted;
(4) The areas in which particular uses may be subjected to special restrictions;
(5) The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered;
(6) The location, height, bulk, number of stories, and size of buildings and other structures;
(7) The location of roads, schools, and recreation areas;
(8) Building setback lines and future street lines;
(9) The density and distribution of population;
(10) The percentage of a lot that may be occupied, size of yards, courts, and other open spaces;
(11) Minimum and maximum lot sizes; and
(12) Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions.
The council of any county shall prescribe rules, regulations, and administrative procedures and provide personnel it finds necessary to enforce this section and any ordinance enacted in accordance with this section. The ordinances may be enforced by appropriate fines and penalties, civil or criminal, or by court order at the suit of the county or the owner or owners of real estate directly affected by the ordinances.
Any civil fine or penalty provided by ordinance under this section may be imposed by the district court, or by the zoning agency after an opportunity for a hearing pursuant to chapter 91. The proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.
Nothing in this section shall invalidate
any zoning ordinance or regulation adopted by any county or other agency of
government pursuant to the statutes in effect [
prior to] before
July 1, 1957.
The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive general plan to ensure the greatest benefit for the State as a whole. This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations, except insofar as forest and water reserve zones are concerned and as provided in subsections (c) and (d).
Neither this section nor any ordinance
enacted pursuant to this section shall prohibit the continued lawful use of any
building or premises for any trade, industrial, residential, agricultural, or
other purpose for which the building or premises is used at the time this
section or the ordinance takes effect; provided that a zoning ordinance may
provide for elimination of nonconforming uses as the uses are discontinued, or
for the amortization or phasing out of nonconforming uses or signs over a
reasonable period of time in commercial, industrial, resort, and apartment
zoned areas only[
.]; provided further that a
zoning ordinance may provide for the amortization or phasing out of permitted, nonconforming,
or otherwise allowed short-term rentals over a reasonable period of time in an
area of any zoning classification.
In no event shall such amortization or phasing out of nonconforming uses
apply to any existing building or premises used for residential (single-family
or duplex) or agricultural uses[ .] other than permitted, nonconforming,
or otherwise allowed short-term rentals as provided in this subsection.
Nothing in this section shall affect or impair the powers and duties of the director of transportation as set forth in chapter 262.
For purposes of this subsection, "short-term rental" means the payment for use, or swapping, bartering, or exchange, of a residential dwelling, or portion thereof, for a stay of less than one hundred eighty days, or a lesser maximum duration as determined by a county, by someone other than the owner, and includes transient vacation rentals as defined in section 514E‑1."
SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
Short-term Rentals; Nonconforming Use; Amortization; Counties
Makes explicit the counties' authority to enact ordinances to amortize or phase out permitted, nonconforming, or otherwise allowed short-term rentals in any zoning classification. Includes swapping, bartering, or exchange of a residential dwelling, or portion thereof, in definition of "short-term rental" for this purpose.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.