The long-running dispute over what activities are permitted on the Big Island\u2019s agricultural land is as far from being resolved as it ever has been.<\/p>\n\n\n\n
Last year, the 3rd<\/sup> Circuit Court found that the state Land Use Commission was wrong when it determined that the rental of houses in the state Agricultural land use district as short-term vacation rentals was not allowed. By law, the LUC had ruled, any house on Ag land is presumed to be a farm house, and farm dwellings can be used for no purpose other than that of supporting agricultural uses.<\/p>\n\n\n\n But 3rd<\/sup> Circuit Judge Wendy DeWeese overruled the LUC in her May decision. Nothing prevents a farm dwelling from also being rented out as a short-term vacation rental, she found. And nothing in state law sets a minimum length of time for which a farm dwelling may be rented.<\/p>\n\n\n\n The LUC decision was in the form of a declaratory ruling, which had been sought by both the County of Hawai\u02bbi, on the one hand, and, on the other, a number of landowners who had been asking the county to allow them to continue using homes on their Agricultural land as vacation rentals. The county Planning Department had denied the requested permits, in keeping with an ordinance passed by the County Council in 2019.<\/p>\n\n\n\n That ordinance disallowed the short-term \u2013 30 days or less \u2013 rental of homes on lots in the state Agricultural district if those homes were on lots of record established after June 4, 1976. That was the date a law took effect that specified the uses allowed on land in the state Agricultural District. <\/p>\n\n\n\n The landowners asked the county Board of Appeals to overturn the Planning Department\u2019s ruling. However, both the county and the landowners agreed to withdraw that action and seek a declaratory ruling on the subject from the Land Use Commission instead.<\/p>\n\n\n\n Following the LUC\u2019s ruling, issued in August 2020, that was adverse to the landowners, they appealed to the 3rd<\/sup> Circuit Court.<\/p>\n\n\n\n To the ICA<\/strong><\/p>\n\n\n\n Following Judge DeWeese\u2019s ruling, the Land Use Commission was the sole party to appeal to the Intermediate Court of Appeals.<\/p>\n\n\n\n In its opening brief, filed October 22, the LUC notes that state law limits dwellings on land in the Agricultural District to only those single-family homes that are an accessory use to a bona fide agricultural service. As such, it argues, there is no need for any rule limiting the length of time that such homes may be used as vacation rentals. \u201cMeeting the definition of farm dwelling,\u201d the LUC argued, \u201cwould come first and foremost before appellants\u2019 duration question could even be entertained.\u201d (The team of attorneys representing the LUC includes deputy attorneys general Holly Shikada and Julie China, but also two \u201cspecial deputy attorneys general,\u201d former state attorney general Douglas Chin and Eric Robinson.)<\/p>\n\n\n\n The state went on to list deficiencies in the landowners\u2019 petitions to the county for permits as non-conforming uses, given that their properties were used as short-term rentals before the county ordinance limiting them on Ag lands took effect.<\/p>\n\n\n\n Those landowners, known collectively as the Rosehill petitioners, had asked the county for non-conforming use certificates for short-term rentals based on their use as such before the county ordinance took effect in 2019. As the LUC showed, however, the county records demonstrated that none of the petitioners\u2019 lots was in existence prior to the 1976 cut-off date.<\/p>\n\n\n\n Aside from the factual evidence supporting the LUC\u2019s decision, the state argued, the Circuit Court should have given deference to the LUC\u2019s own interpretation of its rules.<\/p>\n\n\n\n The county\u2019s filing with the ICA made many of the same points. It also noted that the Circuit Court \u201cappears to have improperly required the LUC to make express findings whether petitioners are entitled to declaratory rulings both when the LUC denies a petition and when the LUC grants a petition.\u201d State law requires agencies to give reasons only when their decisions are adverse to a party, the county argued. \u201cThere was no dispute as to whether or not the county\u2019s factual basis was sufficient for the LUC to issue a declaratory ruling as to the county\u2019s petition,\u201d it stated. \u201cHowever, as to the Rosehill petitioners\u2019 petition, the LUC explained why it was denying the petition because to not do so, i.e., to deny relief with no explanation, would have been arbitrary and capricious.\u201d<\/p>\n\n\n\n Further, the county stated, \u201cIn focusing solely upon whether [Hawai\u02bbi Revised Statutes] Chapter 205 did or did not prescribe a minimum rental period for \u2018farm dwellings,\u2019 the Circuit Court relied upon an overly simplistic analysis that missed the point as to why the Agricultural District was created in the first place. The permitting safeguards thoughtfully implemented by the county were to ensure that agricultural lands remain in agricultural use and are not transformed into commercial vacation-rental properties. The intended use and purpose of a farm dwelling is to support and serve as an accessory to the agricultural activities from which the single family exclusively occupying that dwelling obtains income. While a farm dwelling\u2019s primary purpose is to be a bona find agricultural service and use which supports and is accessory to agricultural activities, the purpose and use of a short-term vacation rental is merely to provide transient accommodations. These uses are completely incongruent to one another.\u201d<\/p>\n\n\n\n A Motion to Strike<\/strong><\/p>\n\n\n\n Whether the county\u2019s brief will be considered by the Intermediate Court of Appeals was an open question at press time. On January 13, the Rosehill petitioners challenged the county\u2019s effort to involve itself in the appeal, asking the court to strike it.<\/p>\n\n\n\n \u201cOnly appellant State Land Use Commission (the LUC) appealed the Circuit Court\u2019s reversal of the LUC\u2019s decision,\u201d the motion stated. \u201cAppellee County of Hawai\u02bbi (the County) did not appeal.\u201d The county\u2019s brief, writes attorney Christopher Goodin, one of several Cades Schutte attorneys representing the Rosehill petitioners, is not an \u201canswering brief,\u201d as the county titled it, but rather \u201can opening brief.\u201d<\/p>\n\n\n\n The county\u2019s brief \u201cshould be stricken,\u201d he goes on to argue, citing to a rule of the appellate court that requires an appellee who supports the position of the appellant \u201cshall meet the time schedule for filing documents that is provided for the appellant.\u201d<\/p>\n\n\n\n \u201cThe purpose of the rule is to \u2018ensure \u2026 that the \u2018real\u2019 appellees are able to respond to the arguments for reversal \u2013 which they can\u2019t if the ‘appealing appellee\u2019 files with the \u2018defending appellee,’\u201d Goodin writes, adding that if the county supports the LUC\u2019s position, as its brief sets forth, then it should have met the time schedule imposed on appellants.<\/p>\n\n\n\n County deputy corporation counsel Mark Disher answered the Rosehill motion on January 18. The county\u2019s position diverges from that of the Land Use Commission, he argues, and therefore should be considered by the appellate court.<\/p>\n\n\n\n The LUC declaratory order did not uphold the county\u2019s ordinance, he writes, since it did not carve out the exception granted to homes built on lots of record that existed prior to the 1976 cut-off date. Under the LUC\u2019s order, owners of those homes would not be able to receive non-conforming use permits allowing them to be used as short-term rentals \u2013 a clear divergence from the county\u2019s ordinance.<\/p>\n\n\n\n \u201cAs the LUC did not directly address this issue with specificity in their appeal,\u201d he continues, \u201cit was necessary for the county to seek this distinction by way of its answering brief. Nor would the county necessarily know the LUC\u2019s position until after the filing of their opening brief, thus, to be held to the same scheduling requirements as the LUC would have been impractical in this case.\u201d<\/p>\n\n\n\n Disher raises the prospect of still more litigation to come if the LUC should prevail and its declaratory order affirmed. That, he notes, \u201cwould affect those properties \u2026 that have already been granted special use permits to continue use as [short-term vacation rentals]. To avoid any further need for litigation on what can arguably be stated as a side issue to the appeal before the court, the county seeks to have this issue addressed here and now.\u201d<\/p>\n\n\n\n The Contrary View<\/strong><\/p>\n\n\n\n On the same day they challenged the county\u2019s involvement, the landowners also filed their answering brief to the state.<\/p>\n\n\n\n Again, they claim that the only question that matters is whether state law sets a lower limit on the duration of rentals of homes in the state Agricultural District. \u201cThe [county] ordinance allows owners of lots that were created before June 4, 1976, to obtain permits to rent their properties for less than 31 days,\u201d writes attorney Molly A. Olds, going on to affirm that all of the lots her clients own were created after that date. That date was selected, she says, because the state\u2019s land use law, Hawai\u02bbi Revised Statutes Chapter 205, \u201cwas amended as of that date to allow \u2018farm dwellings\u2019\u201d in the Agricultural District.<\/p>\n\n\n\n \u201cThe amendment to Chapter 205 defined \u2018farm dwelling\u2019 as \u2018a single-family dwelling located on and used in connection with a farm or<\/em> where agricultural activity provides income to the family occupying the dwelling.\u2019 Nothing in the amendment (or the rest of Chapter 205) set a minimum length of time that a farm dwelling must be occupied,\u201d she continues.<\/p>\n\n\n\n Olds accuses the state of failing to accept the plain language of the law. \u201cOn appeal,\u201d she writes, \u201cthe LUC works hard to ignore the words used in the Ordinance and Chapter 205. Along the way, however, the LUC hints that its arguments are untethered to the text of those laws. The hints include asserting that the \u2018question on appeal is whether transient use akin<\/strong> to short-term vacation rentals in Hawai\u02bbi County are outside the bounds of \u201cfarm dwellings,\u201d \u2018\u2026 that the \u2018purpose of a short-term vacation rental is to provide transient overnight accommodations that will be temporarily rented for periods of 30 days or less by vacationers,\u2019 and that the [ordinance] \u2018title alone \u2026 shows that it is a rental for vacation use. \u2026 When an argument over the text skips the text in favor of references to \u2018similarities,\u2019 \u2018purposes,\u2019 and \u2018titles,\u2019 we know that the advocate has forgotten the first principle of statutory interpretation is that \u2018is the language of the statute itself.\u2019\u201d<\/p>\n\n\n\n As to the deference the court should have given to the LUC\u2019s own interpretation of its rules, Olds writes: \u201cThe county defined \u2018short term vacation rental\u2019 by the length of the rental. The LUC is not entitled to deference in rewriting the county ordinance. The LUC is not entitled to deference in rewriting HRS Chapter 205. \u2026 There is nothing ambiguous about the definition of \u2018farm dwelling\u2019 in HRS Chapter 205.\u201d<\/p>\n\n\n\n Amicus Requests<\/strong><\/p>\n\n\n\n As of press time, two parties had requested the ICA for leave to file amicus briefs.<\/p>\n\n\n\n The first request came just three weeks after the state filed its opening brief. It was made by attorney Michael Matsukawa on behalf of Maile David, a former member of the County Council who voted in support of the ordinance limiting short-term rentals on most Agricultural land, and the unincorporated group Ka Pa\u02bbakai o ka \u02bbAina. In his filing, Matsukawa argued that the state had neglected to raise critical issues in its appeal having to do with exactly what government agency is charged with enforcing what part of Chapter 205. The county\u2019s role, he maintained, was pre-eminent in the case of prime agricultural land.<\/p>\n\n\n\n Despite this, he wrote, the Rosehill petitioners \u201ctried to remove the case from the county Board of Appeals by submitting their petition to the Land Use Commission for a declaratory order, even though the Land Use Commission has no<\/em> enforcement authority or responsibility to determine whether the proposed use in question is permitted on land that has soil productivity class A or B. It is further not clear why the county of Hawai\u02bbi \u2026 also tried to remove the matter \u2026 from the county Board of Appeals to the Land Use Commission as well.\u201d<\/p>\n\n\n\n The Rosehill petitioners were the only parties to the litigation who addressed Matsukawa\u2019s request for amicus status. In his memo to the court in opposition, attorney Christopher Goodin was sharp and brief.<\/p>\n\n\n\n \u201cAs a procedural matter, amicus briefs are not supposed to raise new arguments. \u2026 No one has argued that the commission\u2019s authority is limited because movants\u2019 argument is meritless,\u201d he wrote. <\/p>\n\n\n\n \u201cAs movants raise a new issue that has no merit, there is no reason to let them file a brief,\u201d he concluded.<\/p>\n\n\n\n The ICA agreed.<\/p>\n\n\n\n The second request to the court to allow the filing of an amicus brief came from the City and County of Honolulu Department of Planning and Permitting.<\/p>\n\n\n\n \u201cDPP has a concrete interest in the resolution of this case,\u201d writes deputy corporation counsel Brad Saito. \u201cDPP is responsible for conservation and protection of agricultural lands and the enforcement of HRS Chapter 205. DPP believes that the 3rd<\/sup> Circuit Court\u2019s interpretation \u2026 is inimical to the purpose of the state Agricultural zoning district and inconsistent with the \u2018accessory use\u2019 doctrine. \u2026 DPP believes that the 3rd<\/sup> Circuit Court\u2019s order is inconsistent with the Hawai\u02bbi State Legislature\u2019s decision to grant administrative agencies the discretion to determine when and how declaratory rulings should be issued.\u201d<\/p>\n\n\n\n Saito also noted that the DPP had conferred with attorneys for the LUC, Hawai`i County, and the Rosehill petitioners. “The LUC and county consent and Rosehill objects,” he wrote. <\/p>\n\n\n\n The\u00a0Rosehill petitioners have asked the court to deny the DPP standing as an amicus. No decision on the DPP’s motion had been made by press time.<\/p>\n\n\n\n For Further Reading<\/em><\/p>\n\n\n\n Environment Hawai`i <\/em>reported on this in our July 2022 edition, \u201cFarm Dwellings, Overnight Camping at Issue in 2 Court Cases the LUC Votes to Appeal.<\/a>\u201d<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The long-running dispute over what activities are permitted on the Big Island’s agricultural land is as far from being resolved as it ever has been. Last year, the 3rd Circuit Court found that the state Land Use Commission was wrong … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14512,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,507,338],"tags":[7],"class_list":["post-14960","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-february-2023","category-land-use","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14960","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14960"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14960\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14512"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14960"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14960"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14960"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}