HomeMy WebLinkAboutRamseyer - KPAR 8-19-1 Transient Vacation Rental NCUC (1)
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PLANNING COMMISSION
County of Kaua‘i State of Hawai‘i
ADMINISTRATIVE RULES PERTAINING TO
THE INTERPRETATION AND ENFORCEMENT OF KAUAI COUNTY CODE CHAPTER 8,
ARTICLE 17 RELATING TO TRANSIENT VACATION RENTALS
AUTHORITY:
Pursuant to Article XIV Section 14.03.E of the Kauai County Charter, the Planning Commission
of the County of Kaua‘i adopts the following administrative rules pertaining to the responsibility
of the Planning Department to enforce Chapter 8, Article 17 of the Kauai County Code 1987, as
amended, (“KCC”) concerning to the certification and enforcement of Transient Vacation
Rentals.
Pursuant to KCC Section 8-17.12(h), the annual renewal of a non-conforming use certificate is
required[s as prescribed in] in accordance with KCC Sections 8-17-10(a-h). The renewal
documentation requires at a minimum:
…proof that there is a currently valid State of Hawaii general excise tax license and
transient accommodations tax license for the nonconforming use. Failure to meet this
condition will result in the automatic denial of the application for renewal of the
nonconforming use certificates.
Non-conforming uses are defined under KCC Section 8-13.2, and specifically Section 8-13.2(b),
which states as follows:
If any nonconforming use ceases for any reason for a continuous period of twelve (12)
calendar months or for one (1) season if the use be seasonal, then the use shall not be
resumed and any use of the land or building thereafter shall be in full conformity of the
provisions of this chapter.
FINDINGS:
The [requirements of the] purpose of these rules is to clarify the Planning Department’s
responsibilities in implementing Chapter 8, Article 17 of the KCC. [ lack specificity pertaining to
the annual renewal process, including late filing,] In particular, the rules clarify the
documentation and evidence required to maintain a non-conforming use as defined in KCC
Section 8-13, and the procedures necessary for a certificate holder to seek due process in the
event of non-renewal.
RULE:
1. NON-CONFORMING USE CERTIFICATE (NCUC) RENEWAL
A. Requirements for Renewal. Applications for renewal shall [only] be accepted by the
Planning Department sixty (60) no earlier than days prior to the [certificate’s renewal]
NCUC’s expiration date. The annual renewal deadline is [the same month and day]
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on the same day and month of the original determination made by the Planning
Department[ certifying], which certified the non-conforming use. Along with the
mandatory renewal form, the following documents must accompany the submittal,
pursuant to KCC 8-17.12(h)(1):
1. [R]The renewal fee in the amount set forth by ordinance;
2. [C]A copy of a current[ly] and valid General Excise Tax (GET) certificate; and
3. [C]A copy of a current[ly] and valid Transient Accommodation Tax (TAT)
certificate.
Further, in order to comply with KCC Section 8-17.8(b) and ascertain continuous use
pursuant to KCC Section 8-[2]13.2(b), the following shall also be submitted to the
Planning Department:
A dated, updated copy of the “For Your Safety and Comfort” information document
provided to vacation rental tenants;
1. A copy of all print and internet advertising that includes the NCUC certificate number or
registration number, and an on-island 24/7 contact name and phone number.
[1.]2. A dated, updated copy of the “For Your Safety and Comfort” information document
provided to vacation rental tenants;
[2.]3. A dated picture of the required transient vacation rental sign with the house in viewing
range; and
[3.]4. [Copies of redacted] A copy or copies of annual tax return[s] and reconciliation report
for the previous year that [evidencing activity on] evidences payment of the GET and TAT
[certificates with the address of the vacation rental clearly visible] taxes.
For the period of one (1) year from the date of approval of these Rules, the following shall
also be required of renewing certificate holders:
Where the Planning Department has identified missing documents required by the
non-conforming use certificate application process, the applicant, in good faith, shall
exercise best efforts in providing these documents to complete the file as part of the
renewal application.
B. Timely Renewal Notices. The Planning Department shall notify the certificate holder
if the renewal application has been approved, approved pending a certain action,
withheld, or denied within forty-five (45) days of the certificate’s renewal deadline.
C. Inspections. The Planning Department may require an inspection to verify the non-
conforming use.
[D.]B. Renewal Applications. [Submittal] It is the certificate holder’s responsibility to
submit applications to renew the NCUC by the [renewal date is the certificate
holder’s responsibility as] NCUC’s expiration date. [t]The Planning Department
shall not be responsible for notifying the holder of any pertinent deadlines. [Renewals
postmarked by the deadline and received within seven (7) days after the deadline
shall be accepted by the Planning Department as submitted timely.]
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[F.]C. Late Renewal Applications. [Renewal applications received by the Planning
Department within thirty days (30) after the deadline may renew, provided that in
addition to the renewal fee, a certificate holder shall pay an administrative processing
fee of twice the renewal fee.] Failure to submit an application to renew the NCUC by
the NCUC’s expiration date will result in the automatic denial of the application. The
Planning Department shall not accept applications submitted after the expiration date.
E. Non Compliance Timeline. After the thirtieth (30th) day after the renewal deadline,
the Department shall reject any renewal application and issue a forfeiture letter.
D. Inspections. Once an application is accepted, the Planning Department may require
an inspection to verify the non-conforming use and compliance with the
Comprehensive Zoning Ordinance and other pertinent land use laws. The Planning
Department 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.
E Renewal Notices. The Planning Department shall notify the certificate holder if the
renewal application has been approved, approved pending a certain action, withheld,
or denied within forty-five (45) days of the certificate’s renewal deadline.
F. [Forfeiture.] Appeal. Determination [of forfeiture shall be subject to an appeal of the
Planning Director’s Decision pursuant to] that the renewal application has been
approved, approved pending a certain action, withheld, or denied may be appealed
pursuant to Chapter 9 of the Rules of Practice and Procedure of the Planning
Commission.
G. Voluntary Forfeiture. A certificate holder may voluntarily forfeit the [non-
conforming use certificate] NCUC provided an declaration attesting to the voluntary
action is submitted contemporaneously with a form provided by the Planning
Department.
2. VIOLATIONS
A. Transient Vacation Rentals with NCUC and Violations. Pursuant to KCC Section
8-17.12(h)(2), the Planning Department may withhold the renewal of a NCUC if a
violation of the Comprehensive Zoning Ordinance (CZO) or other pertinent land use
laws are identified on the property. A temporary cease and desist order shall be issued
to the certificate holder to immediately suspend vacation rental activities until the
violation has been rectified. Should the vacation rental use continue in violation of the
temporary cease and desist order, and the order has not been appealed pursuant to
Chapter 9 of the Rules of Practice and Procedure of the Planning Commission, fines
shall be applicable as a non-allowed use outside the Visitor Destination Area.
1. CZO Violations. For lots with active transient vacation rental NCUCs, the
Planning Department shall keep a record of any complaints and violations on the
property. Along with a withhold notice, any violations shall require the issuance
of a temporary cease and desist order to the certificate holder within ten (10) days
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from submittal of the renewal form. The letter shall clearly state that any vacation
rental use must cease until the violation is rectified or if the order is appealed.
Failure to rectify the violation within one (1) year of the temporary cease and
desist order shall be considered abandonment pursuant to KCC Section 8-23.2(b).
Fines for the actual CZO violations leading to certificate withholding shall be
issued as a separate order and separately appealable.
2. Violations of other Pertinent Land Use Laws. For lots with active transient
vacation rental NCUCs, the Planning Department shall notify other County
agencies of the nonconforming use with instructions to carbon copy any violation
notices of their relevant codes to the Planning Department. The Department shall
catalog these violation notices. At the time of renewal, should a cataloged
violation notice be present and active in the file, the Planning Department shall
issue a temporary cease and desist order along with information the certificate
holder that the a future renewal will be withheld pending resolution of any
violations. The letter shall clearly state that any vacation rental use must cease
until the violation is rectified and the order is appealable. Failure to rectify the
violation within one (1) year of the temporary cease and desist order shall be
considered abandonment pursuant to KCC Section 8-23.2(b). A letter from the
County agency that the violation has been rectified must be submitted to the
Planning Department to release the hold on the renewal.
B. Single-Family Transient Vacation Rentals Operating Without Certificate. A
Zoning Compliance notice shall be issued on a lot where an inspection has
ascertained a Single-Family Transient Vacation Rental use. An after-the-fact NCUC
shall not be issued by the Planning Department, the final appealable decision of the
Director shall be upon the second notice, should the use persist, whereby the Director
has levied a fine.
3. ENFORCEMENT.
A. Zoning Compliance Notice. A Zoning Compliance Notice related to Single-Family
use shall require a response from the person notified within ten (10) days of service.
A withholding of the renewal and temporary cease and desist order shall be treated as
a Zoning Compliance Notice.
B. Notice of Violation. Should no response be received after service of a Zoning
Compliance Notice, or the Planning Director finds lack of progress to timely rectify
the violation the Planning Department shall issue a Notice of Violation. The Notice of
Violation shall include a levy of fines, which may be appealed pursuant to Chapter 9
of the Rules of Practice and Procedure of the Planning Commission.
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4. FINE SCHEDULE
Fines shall be levied in addition to any permitting fees required to rectify the
violation.
TVR NCUC FINE SCHEDULE
Type Example Fine per instance or
per day
STRUCTURE VIOLATIONS
Class I or II required Lawn Building/Unpermitted
addition Starting at $[250]500
Class III required Unpermitted Construction Starting at $500
Class IV required Unpermitted Construction Starting at $2,500
Use Permit/Variance
required Building height violation Starting at $5,000
Not allowed in the
zoning district Illegal Density $10,000
USE VIOLATIONS
Use Permit/Variance
required Baseyard in Res District Starting at $5000
Not allowed in the
zoning district TVR w/o NCUC $10,000
OTHER VIOLATIONS
Non-Compliance with
Ordinance No NCUC Sign Starting at
$[250]1,000