Kauai County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE 28
Transient Accommodation Unit Certificate Allocation Program
§ 8-28.1 Definitions.
The definitions contained in Chapter 8, including those contained in Sec. 8-1.5, as amended, are incorporated into this Article. In addition, for purposes of this Article, unless it is plainly evident from the context that a different meaning is intended, certain words and phrases used herein shall be defined as follows:
means the amount actually paid or expenditure actually incurred, as opposed to estimated cost, replacement cost, or market value. Actual cost may be established through receipts, paid invoices, contractual liabilities, or any other documentation or evidence sufficiently establishing the payment or expenditure of money.
means the year prior to the start of the allocation cycle.
means the number of transient accommodation units in the County of Kaua'i on December 5, 2008, increased by one and one-half percent (1.5%) per year on a compounded annual basis, for the number of years between the allocation base year and 2008.
means a recurring five year period beginning January 1st of the first year and ending December 31st of the fifth year.
means a development project that requires a Zoning Permit, Use Permit, subdivision application and/or Variance Permit and situated on one or more lots or parcels:
means all buildings, structures, landscaping and physical alterations to land, including, but not limited to: waterlines, water tanks, water wells, and related facilities; streets, highways, and related facilities; workforce or affordable housing units, and related facilities; sewer lines, wastewater treatment plans, and related facilities; recreational equipment, parks, trails, common areas, and related facilities; drainage lines, detention and retention basins, and related facilities; electrical and communication utility lines, poles, and related facilities; gas utility lines and related facilities; and grubbing and grading activities.
means improvements constructed outside of an eligible resort project.
means improvements constructed within an eligible resort project.
means a project to develop more than one transient accommodation unit that has received all requisite Zoning Permits, Use Permits, subdivision approvals, and Variance Permits as described in Sec. 8-28.2 on or before December 5, 2008; or projects that received all necessary permits and approvals as required by law before August 17, 1972.
means one or more Visitor Destination Area amendment ordinances which established the existing VDA boundary for an eligible resort project.
means one or more zoning amendment ordinances which established the existing zoning districts within an eligible resort project.
means an actual cost, including architectural, engineering, and construction costs incurred before December 5, 2008 to satisfy a condition or requirement of a zoning amendment, Use Permit, Zoning Permit, subdivision approval, or Variance Permit, that exceeds $500,000, or 20% of the real property assessment of the land value for the eligible resort project for the 2008-2009 tax year as determined by the Department of Finance of the County of Kaua'i, whichever is less. Substantial sum does not include any costs incurred before the approval of the Project VDA Ordinance or Project Zoning Ordinance applicable to the eligible resort project.
means any and all of the following:
A hotel unit in an apartment-hotel, a hotel, or a motel;
A hotel unit located in a Visitor Destination Area;
A hotel unit located in a Resort District;
A time share unit or any other type of similarly-used fractional ownership dwelling unit or hotel unit;
A transient vacation rental;
A single family transient vacation rental; and/or
A multi-family transient vacation rental.
means an authorization issued to a transient accommodation unit allowing it to be developed and used.
means the State's official Census of Visitor Accommodations, also known as the Annual Visitor Plant Inventory, for Kaua'i County.
(Ord. No. 935, November 14, 2012)
§ 8-28.2 Applicability.
(a)
Except as otherwise provided, this Article shall be applicable to any of the following permits if such permits would allow the development of more than one transient accommodation unit on any lot or parcel entitled to more than one dwelling unit:
(b)
The provisions of Sec. 8-28.3 shall not apply to:
(1)
The development, construction, reconstruction, repair, renovation, or use of a permitted project;
(2)
A permitted project that is the subject of a proposed modification, if the proposed modification does not increase the number of permitted transient accommodation units and the Planning Director determines that the proposed modification does not require a new Zoning Permit, Use Permit, subdivision approval or Variance Permit; or
(3)
A permitted project that is the subject of a proposed modification, if the proposed modification reduces the number of permitted transient accommodation units by 33% of what was previously approved by the Planning Commission or Planning Director; provided, however, that such modification, as determined by the Director, does not create additional impacts other than those addressed by conditions outlined in the permitted project.
(c)
Individual lots entitled to more than one transient accommodation unit in a previously approved subdivision shall not be exempt from the provisions of Secs. 8-28.2 and 8-28.3 with regard to any other permits, including Zoning Permits, Use Permits, subdivision approvals or Variances, as required by law to construct, develop or use a transient accommodation unit on the owner's lot or parcel unless the project is exempt as an eligible resort project pursuant to Sec. 8-28.5.
(d)
Notwithstanding any other provision contained in this Article, the boundaries of a permitted project may be amended by consolidating the permitted project with one or more adjacent lot(s) pursuant to Chapter 9 of the Kaua'i County Code 1987, as amended. Provided, however, the number of transient accommodation units being applied for on the permitted project's property and the adjacent lot(s) shall not exceed the number of transient accommodation units authorized by the Planning Commission for the permitted project prior to the consolidation. Upon consolidation under these terms, the permitted project on the new lot or parcel shall not be subject to Sec. 8-28.3.
(Ord. No. 935, November 14, 2012)
§ 8-28.3 Availability of Transient Accommodation Unit Certificates.
(b)
The total number of transient accommodation unit certificates available for issuance during an allocation cycle shall be equal to 5.1% of the transient accommodation unit inventory in the allocation base year (i.e., a 1% compounded annual growth rate during the five year allocation cycle), provided that this number shall be:
(1)
Decreased by 50% if the transient accommodation unit inventory in the allocation base year exceeds the allocation base year transient accommodation unit target, or
(2)
Increased by 50% if the transient accommodation unit inventory in the allocation base year is less than the transient accommodation unit inventory in the allocation base year of the previous allocation cycle and the transient accommodation unit inventory in the allocation base year is less than the allocation base year transient accommodation unit target.
(c)
The Planning Commission, upon recommendation by the Planning Department, must adopt the total number of transient accommodation unit certificates available for issuance to all prospective applicants in the applicable allocation cycle before March 1st of the first year of the allocation cycle.
(d)
If fractional transient accommodation unit certificates would result from the computations contained in this Section, then the number shall be rounded up to the next whole number.
(Ord. No. 935, November 14, 2012)
§ 8-28.4 Transient Accommodation Unit Certificate Allocation Process.
(a)
Applications for more than one transient accommodation unit certificate must be contemporaneously submitted with a complete application for a permit set forth in Sec. 8-28.2. These applications shall only be received by the Planning Department on or after the first business day following the Planning Commission's adoption of the number of available transient accommodation unit certificates for the allocation cycle. Applications shall not be accepted by the Planning Commission when transient accommodation unit certificates are no longer available in the applicable allocation cycle.
(b)
Transient accommodation unit certificates shall be allocated in chronological order.
(c)
Should an application exceed the number of available transient accommodation unit certificates established by the Planning Commission in the applicable allocation cycle, the applicant may apply for either a Zoning, Use, subdivision or Variance Permit for more than one transient accommodation unit pursuant to Charter Sec. 3.19(a) and (b).
(d)
Applications for transient accommodation units pursuant to this Section shall be processed as provided in this Chapter, and in Chapter 9.
(e)
Transient accommodation unit certificates shall not be issued until the application under Sec. 8-28.2 submitted contemporaneously has received final approval.
(f)
Should an applicant fail to commence substantial construction of 20% of the transient accommodation unit estimated cost of the value of the improvements as determined by the Building Permit within four years from the date the certificate was issued, the certificate shall lapse. Notwithstanding the above, the Planning Commission, for good cause shown, may extend the certificate for one year at a time. The Planning Commission may grant up to three extensions.
(Ord. No. 935, November 14, 2012)
§ 8-28.5 Exemption for Eligible Resort Projects.
(a)
The purpose of this Section is to provide a process for identifying, and for registering eligible resort projects that are exempt from Sec. 8-28.3(a)(1).
(b)
The owner of any eligible resort project shall have one year from November 20, 2011 to file an application with the Planning Director to register an eligible resort project as exempt from Sec. 8-28.3(a)(1). The application shall include an itemization of actual costs with reference to exhibits containing proof of expenditures actually made before December 5, 2008.
(c)
The Planning Director shall approve and register as exempt any eligible resort project, or portion thereof, which meets the criteria in Subsection (c)(1) and either Subsection (c)(2) or (c)(3):
(1)
The eligible resort project must be composed of one or more lots or parcels that are located in a Visitor Destination Area that was approved and established prior to December 5, 2008, pursuant to a Project VDA Ordinance or the eligible resort project must be composed of one or more lots or parcels that are located in zoning districts that were approved and established prior to December 5, 2008, pursuant to a Project Zoning Ordinance.
(2)
Either the owner or the owner's predecessor-in-interest must have obtained the governmental approvals for and expended substantial sums on any of the following prior to December 5, 2008:
(A)
Any on-site improvements or off-site improvements authorized by the Project VDA Ordinance or the Project Zoning Ordinance; or
(B)
Any on-site improvements or off-site improvements required to be constructed pursuant to the conditions of approval contained in the Project VDA Ordinance or the Project Zoning Ordinance.
(3)
The owner or the owner's predecessor-in-interest must have complied with Article 3 of the Housing Policy for the County of Kaua'i (Ordinance No. 860), or paid an in-lieu fee or dedicated land pursuant to an affordable housing agreement with the County, prior to December 5, 2008, in fulfillment of any workforce housing or affordable housing condition contained in the Project VDA Ordinance or the Project Zoning Ordinance.
(d)
The owner shall have the burden of proof by a preponderance of the evidence in establishing that the eligible resort project is exempt.
(e)
The Planning Director shall have 120 days after acceptance of a completed application to approve or deny the registration of an eligible resort project as exempt. If the Planning Director denies the application, the owner may appeal to the Planning Commission pursuant to the procedures set forth in Chapter 9 of the Rules of Practice and Procedures of the Planning Commission, as amended from time to time.
(f)
In making a decision on any application, the Planning Director shall find that the owner or the owner's predecessors-in-interest have expended substantial sums.
(g)
An eligible resort project that has obtained an exemption under Subsection (c) is not exempt from obtaining any other permits required by law.
(h)
Notwithstanding any other provision contained in this Article, the boundaries of an eligible resort project which is exempt under this Section may be amended by consolidating the exempt project with one or more adjacent lot(s) pursuant to Chapter 9 of the Kaua'i County Code 1987, as amended. Provided, however, the number of transient accommodation units being applied for on the exempt project's property and the adjacent lot(s) shall not exceed the number of transient accommodation units approved by the zoning amendment or Planning Commission for the exempt project prior to the consolidation. Upon consolidation under these terms, the exempt project on the new lot or parcel shall be exempt pursuant to the provision of this Section.
(Ord. No. 935, November 14, 2012)
§ 8-28.6 Promulgation of Rules and Regulations.
Pursuant to Hawai'i Revised Statutes Chapter 91, as amended, the Planning Commission may promulgate rules and regulations consistent with this Article as may be necessary to implement any of the provisions of this Article.
(Ord. No. 935, November 14, 2012)