Whether short-term vacation rentals can exist on land in the state Agricultural District seemed for a while a question that the Supreme Court had decided once and for all back in September 2024. That month, the high court issued a decision in Rosehill v. Land Use Commission that affirmed Hawaiʻi County’s statute forbidding such uses on Agricultural lots that were established after June 4, 1976, when a state law governing certain uses in the district took effect.
And yet, in Hawaiʻi County, a dispute involving owners of a property in the Ag District that had been rented to vacationers continues to wind its way through the courts. Most recently, the dispute over whether Zendo Kern, former planning director for the county, properly allowed homeowners Ryan Neal and Beata Zanone to operate what neighbors saw as a short-term rental business on their property without a permit.
In July 2021, the neighbors – Lawrence Ford, John Koontz, Don Davis, Phillip Koszarek, and William and Rebecca Gage – had complained that this business ran afoul of state law and county statutes. Kern dismissed their complaints. The neighbors then brought their complaints before the county Board of Appeals.
The BOA upheld Kern’s decision in December 2022. The neighbors then took their appeal to the 3rd Circuit Court, with Judge Wendy DeWeese presiding. Before DeWeese could render a decision in that case, the Supreme Court issued its decision in the Rosehill case – directly overturning DeWeese’s own findings in Rosehill back in May 2022.
In light of the high court’s action, a humbled DeWeese, in November 2024, found that the Board of Appeals’ upholding of Kern’s decision was erroneous. She ordered the BOA to reverse its previous decision, which it finally did on July 11, 2025.
In the meantime, in January 2025, both the county and Neal and Zanone had filed, separately, appeals of DeWeese’s decision (later combined by the Intermediate Court of Appeals).
On March 30, the ICA published its opinion in the case – an opinion that altogether skirted the question of whether short-term vacation rentals belong in the Ag District. Instead, the ICA held that, contrary to the neighbors’ claims, the county Board of Appeals was indeed allowed to consider motions for summary judgment and other dispositive motions. However, “the Board’s orders granting homeowners’ motions for summary judgment did not contain statements of undisputed material fact or conclusions of law as required” by Chapter 91-12 of Hawaiʻi Revised Statutes.
The neighbors argued that, since the BOA had already reversed its original finding, consistent with DeWeese’s 2024 ruling, the case before the Intermediate Court of Appeals was moot.
The ICA rejected this: “Even if these appeals were moot (they’re not), county and state regulation of short-term vacation rentals affects the public; the Board of Appeals could be guided by resolution of the procedural issue presented by its summary adjudication of neighbors’ appeals; and these issues are likely to recur.”
“Without a statement of undisputed facts or conclusions of law,” the ICA found, “we cannot determine what facts the Board of Appeals considered material, whether those facts are shown by substantial evidence in the record before the board … or whether the board’s conclusions of law were right or wrong. …
“Accordingly, we reverse the judgment on appeal” – i.e., DeWeese’s November 2024 decision – “and remand to the Board of Appeals for entry of amended orders.”
As of press time, the BOA had not scheduled any hearing on this matter.
— Patricia Tummons
For Further Reading
A more comprehensive discussion of this issue may be found in the October 2024 edition of Environment Hawaiʻi: “Hawaiʻi County Presses ICA to Allow Vacation Rentals on Ag Land.”