In a response to the Maui Vacation Rental Association’s suit in U.S. District Court, Deputy Corporation Counsel Jane Lovell wrote that the association lacks standing to sue for an injunction.
The injunction, if granted, would prevent the county from closing down all unpermitted TVRs at the end of the year, as Planning Director Jeff Hunt has ordered.
The county claims that the association does not own any real estate itself, so it cannot be harmed by zoning enforcement.
Furthermore, the county contends that the members of the MVRA (who are not named within the original complaint) are so differently situated that they do not count as an associational class under federal law.
Among the differences cited by the county are: Some MVRA members have applied for permits, some have not; some are in agricultural zones, some are not; some may have needed state special permits, others have county conditional permits.
In addition, the reply said, nobody has a right to ignore the law and zoning laws are "facially neutral."
The reply said the court should dismiss the case with prejudice – meaning it could not be refiled – for lack of standing.
But if the court finds there may be standing, the county reply denies any validity to the written policies of former Planning Director John Min, who told some operators that although there was no simple way for them to get legal, enforcement would leave them alone.
MVRA lawyer James Fosbinder described the agreement outlined in a letter as a "contract," but Lovell counters that all county contracts must be reviewed for form and legality by the corporation counsel and signed by the mayor.
She describes the agreement Min noted in writing as merely minutes of a meeting.
Besides now that the new county administration is enforcing the laws that prior administrations did not, the current employees cannot be faulted for following the law, the reply said.
"Plaintiff’s members have no right to rely on previous county administrations’ allegedly lax enforcement policies," she told the court.
The county is also arguing that circumstances have changed with an alleged explosion of unpermitted TVR and bed-and-breakfast businesses that don’t have permits. (There are about eight TVR operators with special or conditional permits, and about the same number that have B&B permits.)
Citing a 1926 U.S. Supreme Court ruling, the county said, "The scope of zoning regulations ’must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.’"
The county passed a law offering B&B permits a decade ago, although B&B operators claim it is "burdensome." Tanna Swanson, president of the Maui Bed-and-Breakfast Association, said the fact that so few have managed to get permits proves it is too cumbersome.
But the county said difficulty does not count. Since B&B and/or TVR operators are asking for special treatment, they are entitled to special review. A tough review is not, in itself, a grounds for complaint, the county said.
How many TVR/B&B businesses are in operation is a matter of dispute, but everyone agrees the total is at least 10 times as many as the 80 TVR operations that have applied for permits.
The reply brief implies that even if the MVRA prevailed, the 90 percent of operators who never even applied would be outside any relief to be granted to the MVRA.
Hunt has prepared a package of five bills that would establish standards for where transient vacation rentals and B&Bs would be permitted. The bills have been referred to the county planning commissions for review and comment.
Even if they were adopted this year, which is uncertain, operators say they could not possibly get through the permitting process before they are required to shut down on Jan. 1.
After the planning commissions prepare recommendations, the bills will go to the County Council for action – a review process that normally takes at least two months if there is no controversy.
Harry Eagar can be reached at heagar@mauinews.com.
