No. SCAP-22-0000371, Thursday, May 16, 2024, 2 p.m.

LINDA K. ROSEHILL, Trustee of the Linda K. Rosehill Revocable Trust dated August 29, 1989, as amended; MARK B. CHESEBRO and CAROLINE MITCHEL, Trustees of the First Amendment and Restatement of the 1999 Mark Brendan Chesebro and Caroline Mitchel Revocable Trust U/D/T dated January 6, 1999; SOMTIDA S. SALIM, Trustee of the Somtida Salim Living Trust dated February 15, 2007; TODD M. MOSES; PSALMS 133 LLC; JOHN T. FENTON, Trustee of the John T. Fenton Revocable Trust dated February 27, 2014; FRANCES T. FENTON, Trustee of the Frances T. Fenton Revocable Trust dated February 27, 2014; DIRK AND LAURA BELLAMY HAIN, Trustees of the Bellamy-Hain Family Trust dated September 13, 2017; PETER A. GUNAWAN; JANTI SUTEDJA; NEIL ALMSTEAD; DOYLE LAND PARTNERSHIP; CHARLES E. and NANCY E. ROSEBROOK; MICHAEL CORY and EUGENIA MASTON; PAUL T. and DELAYNE M. JENNINGS, Trustees of the Jennings Family Revocable Trust dated January 5, 2010; MAGGHOLM PROPERTIES LLC; NETTLETON S. and DIANE E. PAYNE, III, Appellants-Appellees, vs. STATE OF HAWAI‘I, LAND USE COMMISSION, Appellee-Appellant, and COUNTY OF HAWAI‘I, Appellee-Appellee.

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The above-captioned case was set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument was also livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys for Appellee-Appellant STATE OF HAWAI‘I LAND USE COMMISSION:

Julie H. China, Deputy Attorney General; Douglas S. Chin, Christina N. Ohira, Eric S. Robinson, Cori J. Terayama of Starn O’Toole Marcus & Fisher, Special Deputy Attorneys General

Attorneys for Appellants-Appellees LINDA K. ROSEHILL, et al.:

Roy A. Vitousek, III, Calvert G. Chipchase, Christopher T. Goodin, and Katherine E. Bruce of Cades Schutte

Attorneys for Appellee-Appellee COUNTY OF HAWAI‘I:

Mark D. Disher and Jean Campbell, Deputies Corporation Counsel

NOTE: Order assigning Circuit Judge Gary W.B. Chang and Circuit Judge Jeannette H. Castagnetti due to vacancies, filed 06/05/23.

NOTE: Order granting Application for Transfer, filed 06/08/23.

NOTE: Order granting request to continue oral scheduled for 02/22/24 to a later date, filed 02/07/24.

NOTE: Amended order assigning Associate Justice Lisa M. Ginoza, in place of Judge Chang, filed 02/15/24.

COURT: Recktenwald, C.J., McKenna, Eddins, and Ginoza, JJ., and Circuit Judge Castagnetti, assigned by reason of vacancy

Brief Description:

The County of Hawai‘i’s zoning code regulates the development and use of land within the county. On April 1, 2019, the County amended its zoning code to regulate the use of short-term vacation rentals by requiring owners to register and obtain nonconforming use certificates from the County Planning Department. Any person that operates a short-term vacation rental without a certificate is subject to criminal prosecution and administrative penalties. Hawai‘i County Code (HCC) §§ 25-4-16(b)(7), 25-2-31, 25-2-35. Under HCC § 25-4-16.1(e), a nonconforming use certificate may only be issued for single-family dwellings on lots existing before June 4, 1976.

The County denied the Rosehill petitioners’ requests for non-conforming use certificates for short-term vacation. The Rosehill petitioners then challenged the County’s actions in administrative proceedings before the County Board of Appeals. The parties stipulated to stay the proceedings before the County Board of Appeals and both filed petitions with the Land Use Commission asking whether a short-term vacation rental of less than thirty-one days is a permissible use of a “farm dwelling” in the agriculture district. The Commission consolidated the cases and issued a Declaratory Order denying the Rosehill Petition and granting the County Petition, concluding that the County met its burden of demonstrating that short-term vacation rentals as defined by the County’s ordinances were not consistent with the elements of a “farm dwelling” as defined by HRS § 205-4.5(a)(4). The Rosehill petitioners appealed the Land Use Commission’s Order to the Circuit Court of the Third Circuit, which reversed the decision of the Commission. The Circuit Court concluded that (1) the definition of farm dwelling did not prohibit rentals of less than 31 days and (2) the Commission abused its discretion by denying the Rosehill petition as “speculative or purely hypothetical.”

In June 2022, the Commission appealed the decision to the Intermediate Court of Appeals. In March 2023, this Court issued its decision in Matter of Kanahele, 152 Hawai‘i 501 (2023), holding that declaratory orders entered by the Land Use Commission have the “same status” for judicial review as orders in contested cases under Hawai‘i law. The Rosehill petitioners then applied for transfer to this court, and we granted transfer in June 2023.

The case primarily presents two questions: (1) whether the agency appeal can be transferred from one appellate court to another in light of Kanahele; and (2) whether a short-term vacation rental is a permitted use of a “farm dwelling” in the agricultural district.