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Robert D. Ferris Trust v. Planning Commission of County of Kaua'i

Intermediate Court of Appeals of Hawaii

August 9, 2016

ROBERT D. FERRIS TRUST, Plaintiff-Appellant/Appellant,
v.
PLANNING COMMISSION OF THE COUNTY OF KAUA'I, COUNTY OF KAUA'I PLANNING DEPARTMENT, and COUNTY OF KAUA'I, Respondents-Appellees/Appellees

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO. 12-1-0349)

          Gregory W. Kugle Christopher J.I. Leong (Damon Key Leong Kupchak Hastert) for Plaintiff-Appellant/Appellant

          Mauna Kea Trask Office of the County Attorney County of Kaua'i For Defendants-Appellees/Appellees

          NAKAMURA, C.J., FOLEY AND FUJISE, JJ.

          OPINION

          FOLEY, J.

         Plaintiff-Appellant/Appellant Robert D. Ferris Trust (Ferris Trust) appeals from the "Findings of Fact, Conclusions of Law; Decision and Order" entered on September 16, 2013 in the Circuit Court of the Fifth Circuit[1] (circuit court).

         On appeal, the Ferris Trust contends the circuit court erred in upholding the interpretation, by Defendant-Appellee/ Appellee County of Kaua'i Planning Department (Planning Department), of the Kaua'i County Comprehensive Zoning Ordinance (CZO) as requiring an applicant for a nonconforming use certificate to have authorization from at least a 75% interest of the equitable and legal title of the lot.

         I. BACKGROUND

         The Ferris Trust owned a parcel of land on the island of Kaua'i (Property). The Property was located on land designated by the County of Kaua'i as an agriculture district, which restricted use of the land to approved agricultural purposes and provided for a special tax assessment privilege. The Property contained a single-family dwelling constructed in 2000. The Ferris Trust began renting the dwelling to vacationers in 2003 under the business name "Retreat at Hale Luana & Plantation."

         In 2008, Defendant-Appellee/Appellee County of Kaua'i (County) adopted Ordinance Number 864 (Ordinance 864), which amended the County's CZO, Kaua'i County Code 1987 (KCC) Chapter 8. Ordinance 8 64 prohibited new transient vacation rentals (TVRs)[2] outside land designated as a Visitor Destination Area, and required the registration of lawfully existing TVRs within six months after the enactment of the amended ordinance. Ordinance 864 § 8-17.10 allowed "the owner, operator or proprietor of any single-family transient vacation rental" operating outside of a Visitor Destination Area to obtain a nonconforming use certificate to continue operating their TVR.

         In 2010, the County adopted Ordinance Number 904 (Ordinance 904), again amending the CZO, and targeting the grandfathering provision established by Ordinance 864.

         On August 23, 2010, Robert D. Ferris (Ferris), on behalf of the Ferris Trust, submitted a TVR registration and nonconforming use application for the Property. The Planning Department acknowledged receipt of the Ferris Trust's application by letter dated October 4, 2010. The Planning Department asked the Ferris Trust to submit "reservation lists, and receipts showing payment along with any other reliable information or proof of a nonconforming use which has been in lawful use prior to March 7, 2008" and "a signed and stamped as built plot, floor, elevation and section drawings by a licensed architect or engineer showing the property as it exists today . . . ."

         The Planning Department confirmed receipt of the Ferris Trust '.s supplemental information supporting its application for a nonconforming use certificate by letter dated January 13, 2011. The Planning Department informed the Ferris Trust that its application was incomplete because the Property was within a Condominium Property Regime (CPR) and the Ferris Trust needed the consent of at least 75% of the owners of the lot to be eligible to apply.- The Ferris Trust owned two of the four parcels on the lot, which constituted only a 50% ownership interest in the lot for purposes of the Ferris Trust's application.

         On August 17, 2011, the Planning Department informed the Ferris Trust that the time period for applying for a nonconforming use certificate ended on August 16, 2011, and asked the Ferris Trust's counsel to advise their clients to cease and desist from further use of land designated as agricultural from further use as TVRs.

         On August 22, 2011, the Ferris Trust submitted a "Petition to Appeal Decision of the Planning Director" (Petition) to Defendant-Appellee/Appellee Planning Commission of the County of Kaua'i (Planning Commission).

         In a letter dated September 25, 2011, the owners of the other two parcels within the CPR, who together held 50% of the ownership interests in the CPR, submitted to the Planning Department their objection to the Ferris Trust's application for a nonconforming use certificate, and sought to intervene in the Ferris Trust's Petition to the Planning Commission.

         On October 18, 2012, Hearings Officer Richard F. Nakamura issued "Findings of Fact and Conclusions of Law and Decision and Order" recommending the Planning Commission deny the Ferris Trust's Petition.

         On November 26, 2012, the Planning Commission issued its "Findings of Fact and Conclusion of Law and Decision and Order of the Planning Commission of the County of Kaua'i" (Planning Commission's Denial) denying the Petition.

         The Ferris Trust filed its notice of appeal to the circuit court on December 12, 2010 of the Planning Commission's Denial. The circuit court entered its "Findings of Fact, Conclusions of Law; Decision and Order" on September 16, 2013 affirming the Planning Commission's Denial. The circuit court entered its Final Judgment on July 16, 2015.

         The Ferris Trust filed its notice of appeal from the circuit court's decision on August 14, 2015.

         II. STANDARDS OF REVIEW

         A. Secondary Appeals

         "Review of a decision made by a court upon its review of an administrative decision is a secondary appeal. The standard of review is one in which this court must determine whether the court under review was right or wrong in its decision." Leslie v. Bd. of Appeals of Cty. of Hawai'i, 109 Hawai'i 384, 391, 126 P.3d 1071, 1078 (2006) (quoting Lanai Co. v. Land Use Comm'n, 105 Hawai'i 296, 306-07, 97 P.3d 372, 382-83 (2004)). "To determine if the decision under review is right or wrong, we "apply the standards set forth in [Hawaii Revised Statutes (HRS)] § 91-14(g) [(2012 Repl.)] to the agency's decision." Leslie, 109 Hawai'i at 391, ...


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