Vacation rental appeal denied

The 9th Circuit Court of Appeals has sided with Maui County in denying an appeal by vacation rental operators claiming the county's enforcement of its laws in citing illegal rentals violated their rights.

The Maui Vacation Rental Association had appealed the rejection of its civil suit in U.S. District Court on Oahu last year. The association claimed that Mayor Charmaine Tavares' policy of enforcement violated contractual agreements with vacation rental owners because prior county administrations had promised not to take action against unpermitted operations.

U.S. District Court Judge Michael Seabright dismissed the claims in December last year; on Wednesday the 9th Circuit Court upheld his dismissal.

Former MVRA board member David Dantes called the ruling a "disappointment," but said he understood that while the county's actions may have been unfair, they were legal.

"We may feel that what's happening is wrong, but the law is not structured in a way that protects us," he said.

Deputy Corporation Counsel Jane Lovell said the ruling came down to the fact that, without permits, vacation rentals were illegal.

"And the operators had no legal right to operate illegally," she said.

Mayor Charmaine Tavares said she was pleased the federal courts are upholding the right of the county to enforce its laws, adding that she expects to be able to support a bill prepared by the council to ease the permitting process for bed-and-breakfast operations.

"The situation was muddied because the other administrations weren't enforcing the law. That made it more difficult," she said. "The whole thing is there is a process for changing the laws, and the first set of changes are being passed.

"Until the laws are changed, we have to follow the law as it exists."

In its decision, the 9th Circuit Court found that MVRA could not cite any Hawaii law supporting its claims that members had the right to operate vacation rentals without permits while the county was processing permit applications, or that the county must continue to enforce the law in response to complaints only.

The court also found that the MVRA didn't receive official assurances that the county wouldn't take enforcement action in the future.

"Moreover, MVRA members operating TVRs without permits were on notice that their conduct was unlawful and that Maui County retained discretionary authority to enforce the permit requirement," the court found.

The Maui County Council is expected to give final approval later this month to a bill revising standards for permitting bed-and-breakfast operations, and Lovell said the bill, coupled with the court ruling, showed how citizens could respond to a law they don't like.

"The proper process is to try to get a change in the law," she said. "Just ignoring the law, or trying to get the county not to enforce the law, is not the way to go."

Tavares said she has not yet reviewed the new bed-and-breakfast bill, but she supports the proposal for limits on the number of permits allowed in different districts.

"That's definitely something I can support. I know a lot of thought went into it and in having a cap on each neighborhood," she said. "I don't think we can let some of our neighborhoods be overrun and we end up with another resort district where we don't plan for it."

* Ilima Loomis can be reached at iloomis@ mauinews.com.