ROBERT D. FERRIS TRUST, Plaintiff-Appellant/Appellant,
PLANNING COMMISSION OF THE COUNTY OF KAUA'I, COUNTY OF KAUA'I PLANNING DEPARTMENT, and COUNTY OF KAUA'I, Respondents-Appellees/Appellees
FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO.
Gregory W. Kugle Christopher J.I. Leong (Damon Key Leong
Kupchak Hastert) for Plaintiff-Appellant/ Appellant.
Kea Trask Office of the County AttorneyCounty of Kaua'i
NAKAMURA, C.J., FOLEY AND FUJISE, JJ.
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 (circuit court).
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.
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
2008, Defendant-Appellee/Appellee County of Kaua'i
(County) adopted Ordi nance Number 8 64 (Ordinance 864),
which amended the County's CZO, Kaua'i County Code
1987 (KCC) Chapter 8. Ordinance 864 prohibited new transient
vacation rentals (TVRs) 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.
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 . . . ."
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.
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.
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).
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
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.
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
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.
Ferris Trust filed its notice of appeal from the circuit
court's decision on August 14, 2015.
STANDARDS OF 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, ...