A threat to put a moratorium on Maui vacation rentals has been averted as conversions of short-term units into longer-­term housing for wildfire survivors continues, but the attention now turns to West Maui under Gov. Josh Green’s new April 1 deadline to find units for those who don’t want to be relocated away from the area they call home.

Questions persist after Green’s new threat to ban vacation rentals in West Maui starting April 1, including how a moratorium would be enforced.

No ban of its kind has ever been done in Hawaii, said David Callies, a retired University of Hawaii law school professor who taught courses on land use, property and state and local government.

“One, it’s probably legal,” Callies said. “(Green) almost certainly has the power to do it under his emergency proclamation powers, given what’s happened in Lahaina.”

Green first threatened a moratorium if enough Maui units weren’t converted by March 1.

Maui County’s Real Property Assessment Division recently provided the Honolulu Star-­Advertiser with data showing that there had been 1,065 properties being rented for a year or more to survivors, of which 53% are transient vacation rentals. Another 538 properties were being rented for six to 11 months, of which 93% are vacation rentals.

Green said Tuesday that 1,746 households representing 4,185 survivors are still being housed in Maui hotels, nearly seven months after the deadly Aug. 8 firestorm that killed 101 people and left the historic town of Lahaina in ruins and thousands of residents without homes.

“We still have a fair ways to go,” Green said at a Capitol press conference. He hopes to convince another 850 owners of West Maui short-term rentals to convert them.

“I’m not going to dwell on this today,” Green said, “but I am going to reiterate that I will continue to consider the possibility of a moratorium temporarily on short-term rentals in West Maui if we still don’t have enough housing for our people.”

Green said he wants to see all evacuees return home to West Maui, where they want to live, by July 1.

“We are trying to get everyone that wants to stay in West Maui a place,” he said. “It’s near their school. It’s near their job.”

Owners who convert won’t have to pay county property taxes — combined with government-^­paid rental income of $5,000 a month for a one-bedroom unit, $7,000 for a two-bedroom, $9,000 for a three-bedroom and $11,000 for a four-bedroom.

Green also wants to find and pay for housing for survivors who are ineligible for assistance through the Federal Emergency Management Agency because they are undocumented, homeless or are Compact of Free Association migrants from the Federated States of Micronesia.

In order to sway owners of vacation rentals to also sell their properties to local residents, a mix of unspecified higher taxes looms if they don’t, but there’s “amnesty from conveyance tax and capital gains in Hawaii if they sell their units now.”

“Housing is at the core of our problems in the state of Hawaii,” Green said. “This fire uncovered a clear truth, which is we have too many short-term rentals owned by too many individuals (53%) on the mainland. … So I would them to sell to local owners or at least rent long term to our people.”

He’s especially making an appeal to landlords on the mainland. “Please hear me loud and clear: We need you to support our recovery,” he said.

Enforcement issues

No details have been provided on how a ban on short-term rentals would work.

“It’s too soon to share details about a plan or enforcement,” his office told the Star-Advertiser. “If it becomes necessary for the Governor to implement a moratorium, we will share that information at that time.”

Callies, the retired law school professor, said enforcement would likely rely on the community, just like residents on Oahu are reporting illegal vacation rentals in their neighborhoods.

On Oahu, Callies said, “we just don’t have enough housing inspectors. … Everything is by complaint.”

Some Maui landlords have threatened to challenge a ban on short-term rentals in court, but Callies believes Green would prevail for various reasons.

“He’s not taking over property — it’s close,” Callies said. “It would be difficult to mount a challenge because he’s offering compensation and that’s pretty smart. It would be an uphill battle to claim either a regulatory or a physical taking. … And under the 5th Amendment of the U.S. Constitution, government can take property as long as there’s compensation. The U.S. Supreme Court has held the public purpose is whatever the government said it is, unless it’s fraudulent.”

He called a moratorium “clearly a public purpose and he’s providing compensation.”

While Callies cites the public purpose of a ban until wildfire survivors are housed, a fair amount of skepticism exists in Hawaii any time there’s talk of government action that can been seen as a way to take away private property or curtail the rights of property owners.

Former Hawaii Attorney General David Louie and his colleague, Joseph Stewart, represent Airbnb and testified in opposition to two bills that are not directly related to Green’s threat of an April 1 ban on short-term rentals in West Maui.

They said in written opposition that both bills are unconstitutional and would likely lead to “substantial” legal action.

The latest version of House Bill 1838 would allow counties to phase out “nonconforming single-family transient vacation rental units.”

The latest version of Senate Bill 2919 would “amortize or phase out transient accommodations uses in residential or agricultural zoned areas and … expands the scope of the transient accommodations tax law to include certain shelters and vehicles with sleeping accommodations.”

Louie and Stewart wrote that SB 2919 “requires platforms to verify registration through an electronic verification system but provides no viable means of complying with that requirement, thereby raising serious due process concerns.”

Living in West Maui

Sne Patel, director of sales and advocacy for Maui Resort Rentals, told the Star-Advertiser that “there’s a lot of misunderstanding” about Maui’s short-term rental owners.

“It’s not one bucket — that all these individuals are from the mainland,” he said. “There’s a lot of nuance. In some cases there are local people and retirees who need the (rental) money.”

In general, Patel said, “anybody who has a short-term rental would be opposed to this moratorium on so many levels.”

While over 1,000 short-term rental owners across Maui have agreed to convert, to get more owners specifically in West Maui to participate, Patel has a specific recommendation. The focus should turn to short-term rentals about five miles north of Lahaina from Honokawai to Kahana that are valued in the $1 million to $2 million range whose owners may be more willing to rent to evacuees — and might possibly sell to them later, he said.

Patel and his wife, Tabatha, owned a one-bed, one-bath, 500-square-foot short-term rental in the Spinnaker condo complex along Lahaina’s Waine‘e Street that burned down. They bought it initially as their primary residence when their son was 5, but as their family expanded with two more sons, “we outgrew the place,” Patel said.

Converting it to a short-term rental, he said, “was part of our retirement plan. … Not all of the owners are from the mainland.”

On Aug. 8, Krizhna Bayudan, 23, her mother, father, two sisters and one of their boyfriends fled the two-story, three unit complex shared by 11 people in all.

Bayudan grew up in Lahaina but her family has bounced around Maui ever since the fires, including living in their vehicles in a parking lot for two nights after the inferno destroyed their compound.

Among the many locations, they all slept on air mattresses in the living room of an already cramped family home in Kahului, along with a couple of weeks at the Maui Seaside Hotel in Kahului.

Bayudan appreciates the housing her family has received outside of West Maui but said “it’s so isolating. It’s not the same as being surrounded by people who are going through the same thing. It’s just so crucial to the healing process.”

At the same time, she said “the pressure is so high” to find housing in West Maui, especially following the loss of nearly 4,000 structures, most of them residences.

Bayudan studied biology at UH-Manoa and was planning to take her Medical College Admission Test to get into medical school on her way to becoming a doctor.

But the fire destroyed all of her study materials and put her medical school plans on hold while her family copes with the aftermath of the fires, including finding permanent housing.

So Bayudan would “absolutely” support a moratorium on short-term rentals by Green to free up longer-­term units in West Maui for people like her and her family.

She called short-term vacation rentals “definitely part of the housing problem in Lahaina that existed prior to the fires. It’s been going on for so long.”

Since the fires, Bayudan wants Green to continue to pressure landlords to provide housing for residents over tourists.

“Do something about it,” she would tell Green. “You have the power.”