Kauai County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE 17
Time Sharing and Transient Vacation Rentals
§ 8-17.1 Limitations on Location.
Except as provided in this Section, time share units, time share plans and transient vacation rentals are prohibited.
(Ord. No. 935, November 14, 2012)
§ 8-17.2 Permitted Time Share Locations.
Subject to the limitations contained in Secs. 8-17.4 and 8-17.5, time share units and time share plans are allowed:
(a)
In hotels in Resort or Commercial Districts; and
(b)
In the Resort RR-10 and RR-20 Districts and Multi-Family R-10 and R-20 Residential Districts when such districts are located within the Visitor Destination Areas of Po'ipū, Līhu'e, Wailua Kapa'a or Princeville, as more particularly designated on County of Kaua'i Visitor Destination Area maps attached to Ordinance No. 436 and incorporated herein by reference. The boundary lines established on these visitor destination maps shall be transferred onto the Official Zoning Maps for reference purposes.
(c)
Time share units and time share plans are prohibited in the R-1, R-2, R-4 and R-6 Residential Districts.
(Ord. No. 935, November 14, 2012)
§ 8-17.3 Permitted Locations for Multi-Family Transient Vacation Rentals.
Subject to the limitations contained in Sec. 8-17.5, multi-family transient vacation rentals are allowed:
(a)
In hotels in Resort or Commercial Districts; and
(b)
In Resort Districts and Residential Districts within the visitor destination areas as more particularly designated on County of Kaua'i Zoning Maps.
(Ord. No. 864, March 7, 2008; Ord. No. 935, November 14, 2012)
§ 8-17.4 Time Sharing in Projects Located Within Visitor Destination Areas and Hotels in Resort or Commercial Districts.
If the project in which the time share unit or time share plan is to be created contains an existing time share unit or time share plan, then time share units and plans shall be regulated according to the terms of the project instruments.
If the project in which the time share unit or time share plan is to be created is not a hotel and does not contain time share units or time share plans, then such use may be created only if such use is explicitly and prominently authorized by the project instruments, or the project instruments are amended by unanimous vote of the unit owners to explicitly and prominently authorize time sharing. Provided, however, that time share units and time share plans permitted under this Section shall be limited to the Visitor Destination Areas described in Sec. 8-17.2, and to hotels in Resort or Commercial Districts.
(Ord. No. 935, November 14, 2012)
§ 8-17.5 Existing Time Share and Multi-Family Transient Vacation Rental Uses.
(a)
Time Share Units, Time Share Plans and Multi-Family Transient Vacation Rentals Existing On or Before September 22, 1982, That Are Not Located in Visitor Destination Areas. Time share units, time share plans, or multi-family vacation rentals existing on or before September 22, 1982 that are not located within the visitor destination areas described in Sec. 8-17.2 may continue as allowed uses. However, no additional time share units, time share plans, or multi-family transient vacation rentals outside the visitor destination area shall be created after September 22, 1982. The uses left unimpaired by this Subsection shall not be lost by the failure to exercise the use unless it clearly appears that the use has been abandoned for a period in excess of two years. This Subsection shall not apply to hotels in Resort or Commercial Districts.
(b)
Time Share Units, Time Share Plans and Transient Vacation Rentals in Projects Located Within Visitor Destination Areas Existing On or Before September 22, 1982. Time share units and time share plans in projects existing on or before September 22, 1982, and located within areas described in Sec. 8-17.3 shall be regulated in accordance with the provisions of Sec. 8-17.4.
(Ord. No. 935, November 14, 2012)
§ 8-17.6 Penalty.
An owner of any unit which is operated in violation of this Article, and/or any other person, firm, company, association, partnership or corporation violating any provision of this Article, shall each be fined not less than $500 nor more than $10,000 for each offense. This civil fine may be in addition to any criminal fines. If any person fails to cease such violation within one month, such person shall be subject to a new and separate violation for each day the violation continues to exist.
(a)
Actions by County Attorney. The County Attorney may file a civil action to enjoin any violation of this Article and collect any penalties provided for by this Article.
(b)
Disposition of Fines. All fines imposed for violations of this Article shall be paid to the Director of Finance to the credit of the Development Fund.
(Ord. No. 864, March 7, 2008; Ord. No. 935, November 14, 2012)
§ 8-17.7 Amendments to Visitor Destination Areas Designations.
Amendments to the location and/or boundaries of the Visitor Destination Areas shall be made in accordance with the amendment provisions of Sec. 8-3.4 of this Chapter 8, provided that the burden of proof rests with the applicant to show upon the clear preponderance of the evidence that the amendment is reasonable. The criteria for evaluating such proposed amendments shall be as follows:
(a)
The proposed amendment is consistent with the General Plan and the Development Plan.
(b)
The parcel or parcels to be affected by the proposed amendment are suitable for Visitor Destination Area uses.
(c)
The availability of existing public services and facilities in the affected areas and whether the requested public services and facilities for the proposed change in use can be met without undue burden.
(d)
The proposed change will conflict with other existing uses in the affected area.
(e)
The proposed change will cause or result in unreasonable air, noise, or water pollution, or will adversely affect irreplaceable natural resources.
(f)
The affected areas contain or are in close proximity to other areas that contain:
(1)
Large numbers of hotel and/or multiple family dwelling units suitable as accommodations by temporary visitors.
(2)
Lands designated for Resort Use on the General Plan or having Resort zoning.
(3)
Outdoor or commercial recreational facilities, such as beaches, golf courses, tennis courts and other similar facilities.
(4)
Tourist related commercial facilities, such as gift shops, food stores, recreational equipment and services shops, tour and transportation service terminals, restaurants, bars, night clubs, cabarets, shopping centers, theaters, auditoriums, and other similar facilities.
(g)
The proposed change will include or adversely affect predominantly residential neighborhoods.
(Ord. No. 935, November 14, 2012)
§ 8-17.8 Single Family Transient Vacation Rentals.
(a)
Notwithstanding any underlying zoning designation and with the exception of properties on the National or State Register of Historic Places, single family transient vacation rentals are prohibited in all areas not designated as Visitor Destination Areas.
(b)
Development Standards for Single Family Vacation Rentals Permitted Within Visitor Destination Areas and Holders of Nonconforming Use Certificates. Development standards shall be the same as those for single family detached dwellings in Secs. 8-4.5 through 8-4.8, inclusive, with the following additions:
(1)
Applicant for a single family transient vacation rental shall designate a contact person or owner's representative who shall be available on a 24 hour, seven days-per-week basis. Applicant shall provide the name and contact information to neighbors adjacent to and directly across subject vacation rental, the Planning Department, the Kaua'i Police Department, the Kaua'i Civil Defense Agency, and the Kaua'i Visitors Bureau upon issuance of a nonconforming use certificate or registration number. Owner is responsible for keeping information updated with all agencies.
(2)
One outdoor sign no larger than one square foot shall be posted in a visible place on a wall, fence, or post immediately inside or on the front boundary of the property where it is easy to see, for the purpose of providing the current Nonconforming Use Certificate number or the Registration Number and the 24/7 phone number. No other signs shall be allowed and there shall be no direct illumination of the required sign. The numbers on the sign shall be no smaller than two inches in height.
(3)
The applicant shall provide a list of requirements and information entitled "For the Safety and Comfort of You and Your Neighbors." This shall provide essential information to the visitor and shall seek to reduce negative impacts on the surrounding neighborhood. This information piece shall be provided to the Planning Department at time of application and shall be posted in a conspicuous place in the guest's sleeping quarters along with a copy of the Nonconforming Use Certificate or the Registration Number, whichever the case may be and if required. The list shall include, but not be limited to, suggested curfews, guidance with respect to the character of the neighborhood and gatherings and noise, and what to do in cases of emergency and natural disaster.
(4)
All print and internet advertising for single family vacation rentals, including listings with a rental service or real estate firm, shall include the Nonconforming Use Certificate or the Registration Number.
(5)
A copy of the Nonconforming Use Certificate or the Registration Number, where required, shall be displayed in the back of the front door of the sleeping quarters.
(6)
A site and floor plan shall be filed with the application.
(Ord. No. 864, March 7, 2008; Ord. No. 876, January 24, 2009; Ord. No. 935, November 14, 2012)
§ 8-17.9 Registration of All Transient Vacation Rentals.
(a)
All single family transient vacation rentals, excluding, however, a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes, as amended, lawfully existing in Visitor Destination Areas on March 7, 2008 shall register with the Director of Finance on a form prescribed by the Director of Finance no later than 180 days after March 7, 2008. Any new single family transient vacation rental, excludes, however, a time share unit in a time share plan subject to Chapter 514E of the Hawai'i Revised Statutes, as amended, established in Visitor Destination Areas subsequent to March 7, 2008 shall register with the Director of Finance prior to any such use of said rental. All single family transient vacation rental uses will be subject to Kaua'i County Code Title III, Chapter 5A.
(b)
No single family transient vacation rental shall operate outside a Visitor Destination Area without a Nonconforming Use Certificate obtained under Sec. 8-13.10.
(Ord. No. 864, March 7, 2008; Ord. No. 876, January 24, 2009; Ord. No. 935, November 14, 2012)
§ 8-17.10 Nonconforming Use Certificates for Single Family Vacation Rentals.
(a)
The purpose of this Section is to provide a process to identify and register those single family transient vacation rentals as nonconforming uses which have been in lawful use prior to March 7, 2008 and to allow them to continue subject to obtaining a Nonconforming Use Certificate as provided by this Section.
(b)
The owner, operator or proprietor of any single family transient vacation rental which operated outside of a Visitor Destination Area prior to March 7, 2008 shall obtain a Nonconforming Use Certificate for single family vacation rentals.
(c)
No Nonconforming Use Certificate shall be issued by the Planning Director unless the use as a single family rental is a legal use under the Comprehensive Zoning Ordinance, and the applicant provides a sworn affidavit and demonstrates to the satisfaction of the Planning Director that a dwelling unit was being used as a vacation rental on an ongoing basis prior to March 7, 2008. The Planning Director, in making the decision, shall take into consideration, among other things, the following guidelines:
(1)
The applicant had a State of Hawai'i general excise tax license and transient accommodations tax license for the purpose of the lawful operation of single family transient vacation rentals for a period long enough to demonstrate actual payment of taxes.
(2)
That prior to March 7, 2008, applicant had deposits for reservations by transient guests in exchange for compensation for use of subject property as a vacation rental.
(3)
That applicant had transient guests occupy subject property in exchange for compensation prior to March 7, 2008, with a pattern of consistency that evidences an ongoing and lawful enterprise.
(d)
Applications for Nonconforming Use Certificates for single family transient vacation rentals located on land designated "Agricultural" pursuant to Chapter 205 of the Hawai'i Revised Statutes shall be made within 60 days of August 16, 2010. If an operator as defined under Subsection (c) fails to apply for a Nonconforming Use Certificate within 60 days of August 16, 2010, then the Planning Director shall assess an administrative late application processing fee of $1,500 at filing. A Nonconforming Use Certificate may be issued for a single family transient vacation rental located on land in the State of Hawai'i's land use Agricultural District if:
(1)
It was built prior to June 4, 1976; or
(2)
The applicant has obtained a Special Permit under Hawai'i Revised Statutes, Sec. 205-6 which specifically permits a vacation rental on the subject property.
(A)
An application for a Special Permit shall include verification by the applicant that the farm dwelling unit was being used as a vacation rental on an ongoing basis in accordance with Subsection (c).
(B)
An application for a Special Permit pursuant to Hawai'i Revised Statutes Sec. 205-6 and Chapter 13 of the Rules of Practice and Procedures of the Planning Commission that is deemed complete by the Planning Director must be filed within one year of August 16, 2010. Upon completion of the application, the Planning Director shall issue a provisional certificate that will allow the transient vacation rental to operate. The provisional certificate shall be null and void after the Planning Commission or the Land Use Commission makes a decision upon the application.
(C)
In addition to the Special Permit standards set forth in Hawai'i Revised Statutes Sec. 205-6 and Chapter 13 of the Rules of Practice and Procedure of the Planning Commission, the Planning Commission may only grant a Special Permit if, prior to March 7, 2008: (i) the property upon which the transient vacation rental is located had a registered agricultural dedication pursuant to the guidelines set forth in the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules; (ii) a bona fide agricultural operation existed, as shown by State General Excise Tax Forms and/or Federal Income Tax Form 1040 Schedule F filings; or (iii) the Planning Commission finds that the size, shape, topography, location or surroundings of the property, or other circumstances, did not allow an applicant to qualify for an agricultural dedication pursuant to the County of Kaua'i's Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited intensive agricultural activities.
(D)
If the application for the Special Permit is granted, then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Commission.
(E)
If the application for Special Permit is denied, then the Nonconforming Use Certificate shall not be issued and the transient vacation rental must cease operation.
(e)
The owner, operator, or proprietor shall have the burden of proof in establishing that the use is properly nonconforming based on the following documentation which shall be provided to the Planning Director as evidence of a nonconforming use: records of occupancy and tax documents, including all relevant State of Hawai'i general excise tax filings, all relevant transient accommodations tax filings, Federal and/or State of Hawai'i income tax returns for the relevant time period, reservation lists, and receipts showing payment. Other reliable information may also be provided. Based on the evidence submitted, the Planning Director shall determine whether to issue a Nonconforming Use Certificate for the single family transient vacation rental.
(f)
The Planning Director shall make available to the public at the Planning Department counter and on the County of Kaua'i website a list of all completed applications for Nonconforming Use Certificates. Applications deemed completed shall concurrently be made available to the public. Copies of applications shall also be made available to the public as public information, as provided by H.R.S. Chapter 92F (the Uniform Information Practices Act). Such list shall include the names of the applicants and the tax map key number of the parcels which are the subject of the applications. The Planning Department may physically inspect a single family transient vacation rental prior to a Nonconforming Use Certificate being issued.
(g)
The Planning Director shall prepare an application form which shall be available to the public. If an operator as defined under Subsection (c) fails to apply for a Nonconforming Use Certificate within 60 days of August 16, 2010 the Planning Director shall assess an administrative late application processing fee of $1,500 at filing. Applications received more than one year after August 16, 2010 shall not be accepted and the use of a transient vacation rental shall be deemed discontinued.
(h)
The owner or lessee who has obtained a Nonconforming Use Certificate under this Section shall apply to renew the Nonconforming Use Certificate annually on the date of issuance of the Nonconforming Use Certificate.
(1)
Each application to renew shall include proof that there is a currently valid State of Hawai'i general excise tax license and transient accommodations tax license for the nonconforming use and shall be received by the Department prior to the expiration date of a held Nonconforming Use Certificate. Failure to meet this condition will result in the automatic denial of the application for renewal of the Nonconforming Use Certificates.
(2)
Upon renewal, the Planning Department may initiate re-inspection of properties for compliance with other provisions of this chapter, or other pertinent land use laws, and may withhold approval of a renewal application and issue cease and desist notices to the applicant until all violations have been resolved to the satisfaction of the Planning Director.
(3)
The applicant shall pay an annual renewal fee of $750. There is hereby established and created an account to be known as the "Planning Department Transient Vacation Rental Program Account" within Fund 251. Up to $250,000 of these renewal fees shall be deposited into this account annually. The remaining balance shall be deposited into the County General Fund annually. The fees collected pursuant to this Section are hereby deemed appropriated upon receipt and may be expended for personnel costs and/or independent contractors to assist in the review and renewals of Nonconforming Use Certificates annually and also the enforcement of the Comprehensive Zoning Ordinance and other Codes, Statutes, or regulations the Planning Department has the authority to enforce as it relates to possible illegal transient accommodations. The fees may also be expended for materials, supplies, education, training, legal representation, and equipment that facilitates the inspection and enforcement of Nonconforming Use Certificates and/or violations. The fees collected shall not lapse at the close of the fiscal year.
(Ord. No. 864, March 7, 2008; Ord. No. 876, January 24, 2009; Ord. No. 935, November 14, 2012; Ord. No. 950, July 17, 2013; Ord. No. 974, September 30, 2014; Ord. No. 1119, July 7, 2022)
§ 8-17.11 Enforcement Against Illegal Transient Vacation Rentals.
(a)
In addition to other penalties provided by law, including, but not limited to, Secs. 8-3.5(a) and 8-17.6, the Planning Commission Rules, as amended, the Planning Director, or any member of the public who has duly obtained standing pursuant to rules promulgated by the commission, may initiate proceedings to revoke or modify the terms of a Nonconforming Use Certificate pursuant to the Rules of Practice and Procedures of the Planning Commission, as amended. Violations of conditions of approval or providing false or misleading information on the application or in any information relating thereto at any time during the application process shall be grounds for revocation or cease and desist orders.
(b)
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 Secs. 8-3.5(a) and 8-17.6 shall apply.
(Ord. No. 864, March 7, 2008; Ord. No. 876, January 24, 2009; Ord. No. 935, November 14, 2012)
§ 8-17.12 Historic Properties Exemption.
Single family dwelling units on the National or State Register of Historic Places may be allowed to operate as a transient vacation rental through a Use Permit and by abiding by the development standards specified in Sec. 8-17.8(b).
(Ord. No. 864, March 7, 2008; Ord. No. 935, November 14, 2012)
