Robert D. Ferris Trust v. Planning Comm'n of the Cnty. of Kaua‘i

138 Hawai'i 307

378 P.3d 1023

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.

No. CAAP–15–0000581.

Intermediate Court of Appeals of Hawai‘i.

Aug. 9, 2016.

Gregory W. Kugle, Honolulu, Christopher J.I. Leong (Damon Key Leong Kupchak Hastert), on the briefs, for Plaintiff–Appellant/Appellant.

Mauna Kea Trask, Office of the County Attorney, County of Kaua‘i, on the briefs, for Defendants–Appellees/Appellees.

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

Opinion of the Court by 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 Circuit¹ (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 864 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, 126 P.3d at 1078 (quoting Ka Pa‘akai O Ka‘aina v. Land Use Comm'n, 94 Hawai‘i 31, 40, 7 P.3d 1068, 1077 (2000). HRS § 91–14(g) provides:

(g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

"[C]onclusions of law are reviewable under subsections (1), (2), and (4) [.]" Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 388, 363 P.3d 224, 236 (2015).

An "agency's decision carries a presumption of validity and [an] appellant has the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences." Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kauai, 130 Hawai‘i 407, 417, 312 P.3d 283, 293 (App.2013) (quoting In re Water Use Permit Applications, 94 Hawai‘i 97, 118–19, 9 P.3d 409, 430–31 (2000) ).

B. Statutory Construction

"When interpreting county charters, municipal ordinances, and administrative rules, the general principles of statutory construction apply." Kellberg v. Yuen, 131 Hawai‘i 513, 527, 319 P.3d 432, 446 (2014) (brackets omitted) (quoting Hoku Lele, LLC v. City & Cty. of Honolulu, 129 Hawai‘i 164, 167, 296 P.3d 1072, 1075 (App.2013) ).

We interpret statutes de novo. Shimabuku v. Montgomergy Elevator Co., 79 Hawai‘i 352, 357, 903 P.2d 48, 51 (1995). When construing a statute, the starting point is the language of the statute itself. Richardson v. City & [Cty.] of Honolulu, 76 Hawai‘i 46, 63, 868 P.2d 1193, 1210 [(1994)].... "Courts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute."

State v. Kaakimaka, 84 Hawai‘i 280, 289–90, 933 P.2d 617, 626–27 [(1997)] (quoting State v. Ortiz, 74 Haw. 343, 351–52, 845 P.2d 547, 551–52 ... (1993) [, abrogated on other grounds byState v. Moore, 82 Hawai‘i 202, 921 P.2d 122 (1996) ]. Words are given their common meaning unless some wording in the statute "requires a different interpretation." Saranillio v. Silva, 78 Hawai‘i 1, 10, 889 P.2d 685, 694 (1995) (citing Ross v. Stouffer Hotel Co. (Hawaii), Ltd., 76 Hawai‘i 454, 461, 879 P.2d 1037, 1044–45 (1994) ).

Moreover,

although the intention of the legislature is to be obtained primarily from the language of the statute itself, we have rejected an approach to statutory construction which limits us to the words of a statute, for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature

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