Campos v. Planning Commission of the County of Kaua'i.

539 P.3d 170, 153 Haw. 386

• Court: Hawaii Intermediate Court of Appeals
• Decided: October 31, 2023
• Docket: CAAP-17-0000540
• Status: Published

Opinion

FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 31-OCT-2023 07:52 AM Dkt. 76 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

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RENE O. CAMPOS, Plaintiff-Appellant/Appellant, v. PLANNING COMMISSION OF THE COUNTY OF KAUAʻI, COUNTY OF KAUAʻI PLANNING DEPARTMENT, and COUNTY OF KAUAʻI, Defendants-Appellees/Appellees.

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO. 5CC16-1-000132)

OCTOBER 31, 2023

HIRAOKA, PRESIDING JUDGE, WADSWORTH AND MCCULLEN, JJ.

OPINION OF THE COURT BY MCCULLEN, J.

Plaintiff-Appellant/Appellant Rene O. Campos appeals

from the Circuit Court of the Fifth Circuit's 1 (1) June 13, 2017

Final Judgment, and (2) April 19, 2017 Findings of Fact and

Conclusions of Law, in favor of Defendants-Appellees/Appellees

1 The Honorable Kathleen N.A. Watanabe presided. FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

the County of Kauaʻi, the County of Kauaʻi Planning Department,

and the Planning Commission of the County of Kauaʻi.

Campos owns real property "described as Unit A of the

Seacliff Plantation - Lot 25 Condominium Project Located in

[Kīlauea], Kauaʻi . . . containing an area of 5.0 acres"

(Property). 2 Findings of Fact (FOF) 1. 3 This project is

comprised of Campos's Property and two other "apartments with

improvements thereon." FOF 1.

Campos's "Property is located in a State Land Use

District . . . Agricultural District, the Kaua‘i County General

Plan Agriculture Land Use Designation Area, Special Management

Area . . . , the North Shore Development Plan Area, and the Open

Space, Special Treatment Scenic/Ecological . . . Resources

District." FOF 2. "Further, a portion is in the Comprehensive

Zoning Ordinance [(or CZO)] Agriculture District and another

portion is in the CZO Open District." FOF 2 (emphasis added).

According to Campos, the soil on the Property is rated B, C,

and D.

This secondary appeal arises from the Planning

Commission's revocation of a Provisional Nonconforming Use

2 According to the "Declaration of Condominium Property Regime Seacliff Plantation - Lot 25" recorded with the Hawaiʻi Bureau of Conveyances, the entire project was 12.41 acres with "Apartments" 1 and 2 being five acres each and "Apartment" 3 being 2.41 acres. (Some formatting altered.)

3 Planning Commission's July 27, 2016 Findings of Fact, Conclusions of Law, and Decision and Order.

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Certificate, issued to Campos, allowing the structure on the

Property (Guest House) to be used as a single-family transient

vacation rental. On appeal, Campos asserts that the revocation

violated Kaua‘i County's Comprehensive Zoning Ordinance, his

grandfather rights under the United States and Hawai‘i

Constitutions, his due process right, and its own rules.4

We affirm because use of the Guest House, as originally

built, violated the zoning permit obtained by the prior owner, and

consequently there was no prior legal use to be grandfathered. We

also hold that Campos was afforded due process and waived the

argument that the Planning Commission violated its own rules.

I. BACKGROUND

The background in this case spans over twenty years,

starting with the Property's prior owner.

A. Prior Owner

In 1998, the prior owner of the Property, Simon Potts,

applied to the Planning Department for a zoning permit. On the

application, Potts indicated that the lot size was 12.407 acres,

the zoning was "Ag/Open STR," and the existing land use had

4 Campos did not include a points of error section in his opening brief as required by Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4). We construe Campos's "Statement of Questions Presented for Decision" as his points of error. (Formatting altered.)

Campos does not challenge the Planning Commission's FOF or conclusions of law (COL) pursuant to HRAP Rule 28(b)(4). See Wisdom v. Pflueger, 4 Haw. App. 455, 459, 667 P.2d 844, 848 (1983) ("If a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid.").

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"AG/Farm Dwelling." (Formatting altered.) Under "DESCRIPTION

OF PROPOSED USE, IMPROVEMENT, ALTERATION, AND/OR CONSTRUCTION,"

Potts wrote "CONSTRUCTION OF GUEST COTTAGE."

Architect Daniel Moran (Architect Moran) prepared

Zoning Plans for the Guest House, which were submitted as part

of Potts's zoning permit application. FOF 3. The Zoning Plans

indicated that the Guest House would consist of 484 square feet

of floor area, without a kitchen. FOF 3.

The Planning Department issued Potts a Class I zoning

permit in July 1998, Zoning Permit No. Z-437-98, to construct

the Guest House, and indicated the occupancy type as "OTHER."

After a permit was issued for a Gazebo in September 1998, no

other zoning permits were approved for the Property. FOF 4.

About two years later, in 2000, the Department of

Public Works, Building Section, approved Building Plans, also

submitted by Architect Moran, for the Guest House and issued a

Building Permit. FOF 5. However, the Building Plans differed

from the Zoning Plans because the Building Plans included a

kitchen for the same Guest House. FOF 5.

In 2006, Campos purchased the Property from Potts, and

began operating it as a transient vacation rental, "and

continued operation of the Noni Orchard situated thereon under

the same independent contractor as" Potts. FOF 6.

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B. Zoning Ordinance Nos. 864 (2008) and 904 (2010)

As explained infra in more detail, in 2008, the County

adopted Ordinance No. 864, prohibiting transient vacation rentals

that were not within the Visitor Destination Area, 5 pursuant to

Kauaʻi County Code (KCC) Title IV, Chapter 8, Article 17.

Ordinance No. 864, however, "also established a procedure for any

owner, operator, or proprietor of a single-family transient

vacation rental operating outside of" the Visitor Destination

Area, as of March 7, 2008, to obtain a nonconforming use

certificate to continue operating as a transient vacation

rental. KCC § 8-17.10(b) (2010); FOF 33.

Campos (providing a Texas address) sent the Planning

Department a letter authorizing his attorney in Līhu‘e and his

brother, David Campos (also providing a Texas address), "to act

as [his] agents for the filing and processing of the Application

for a Use Permit and Class III Zoning Permit, as well as any

other land-use permits and approvals relative to said

application."

About two years later, in 2010, Ordinance No. 904

amended the grandfather provision established by Ordinance

No. 864 and addressed single-family transient vacation rentals

operating on lands designated agricultural.

5 Ordinance No. 864 defined Visitor Destination Area as "those areas designated as Visitor Destination Areas on County of Kaua‘i zoning maps." Campos does not assert that the Property was in a Visitor Destination Area.

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C. Campos's Application for a Nonconforming Use Certificate

On October 15, 2010, following the adoption of

Ordinance No. 904, the Planning Department received Campos's

application to register his Guest House identified as the

"Hawaiian Romantic Cottage" as a transient vacation rental, and

requesting a nonconforming use certificate. FOF 8. Campos's

application identified the unit as a "studio, 1 bath SFR." FOF 8.

Campos represented the unit as a "single family vacation rental"

in the State Land Use Agricultural District. FOF 8.

Campos also represented that "Building permit

number(s) Z-437-98 was approved on 6-19-98 for all structures on

the property and there were no expansions, alterations,

improvements, or uses contrary to State and County land use and

planning laws" and "[t]here were not any legal expansion or

improvements made on the property after March 7th 2008." FOF 9.

The application included an "As Built Drawing" of the Guest

House, again by Architect Moran, showing a kitchen. FOF 10.

In his application, Campos requested: (1) a Special

Permit pursuant to Hawaiʻi Revised Statutes (HRS) § 205-6 and

Hawai‘i Administrative Rules Title 15, Subtitle 3, Chapter 15,

Subchapter 12 as "is required for the proposed use of the

Subject Property, which is within the State Land Use

Agricultural District, in conjunction with a transient vacation

rental use of the dwelling on the Subject Property"; (2) a Use

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Permit pursuant to "CZO Chapter 8, Article 20," "as it is not a

generally permitted use (although single family dwellings are

generally permitted under CZO Section 8-7.2(a)(15), the short-

term rental may trigger the need for a Use Permit)"; and (3) a

Class IV Zoning Permit pursuant to "CZO Sections 8-7.7(4), 8-

8.7, and 8-19.6."

The Planning Department "provisionally approved"

Campos's application, and issued the Provisional Nonconforming

Use Certificate. FOF 11.

Planning Department personnel inspected the Guest

House, and determined it indeed contained a kitchen, "but there

was no conversion permit to change 'the guest house to a legal

single family residence as mandated by Ordinance No. 904 nor

were the interior kitchen improvements authorized by permit.'"

FOF 12.

As a result, in a December 22, 2011 letter, the

Planning Department revoked Campos's Provisional Nonconforming

Use Certificate, and instructed Campos to stop using the Guest

House as a transient vacation rental or face fines "up to

$10,000 and/or up to $10,000 per day for each day the violation

persists." FOF 12.

D. Campos's Appeal to the Planning Commission

In January 2012, Campos appealed the Planning

Department's decision revoking the Provisional Nonconforming Use

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Certificate, and requested a public hearing. FOF 14. In March

2014, a Planning Department Inspection/Research Report confirmed

Campos was still operating his Guest House as a transient

vacation rental. FOF 16. As of November 2015, the Guest House

was being advertised online as containing "a kitchen with a

refrigerator, stove top burner, oven, dishwasher, blender, ice

maker, coffee maker and toaster." FOF 17.

Campos's contested case hearing was held in November

2015. The Hearing Officer issued his report, recommending the

Planning Commission deny Campos's appeal and affirm the Planning

Department's revocation of the Provisional Nonconforming Use

Certificate because "there was no conversion permit to convert

[Campos's] Guest House with a kitchen to a legal single family

dwelling unit as mandated by Ordinance No. 904, nor were the

interior kitchen improvements authorized by permit." The

Hearing Officer also recommended fining Campos $25,000 for

operating his Guest House as a single-family transient vacation

rental outside the Visitor Destination Area.

After holding oral arguments, the Planning Commission

agreed with the Hearing Officer's recommendations, and issued its

Findings of Fact, Conclusions of Law, Decision and Order

affirming the Planning Department's decision.

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E. Campos's Appeal to the Circuit Court

Campos appealed to the circuit court. The circuit

court heard arguments, and entered its Decision and Order

affirming the Planning Commission's Decision and Order.

Regarding the fines imposed, the circuit court stated

that from December 2011, "Campos knew that he was instructed by

the Planning Department to cease and desist use of the Guest

House as a [transient vacation rental] and terminate any further

advertising of the Subject Property for [transient vacation

rental] use." "However, as late as the morning of the Hearing

[Campos] was still advertising the Guest House on the internet

as the [transient vacation rental] 'Hawaiian Romantic Cottage.'"

The circuit court further determined that "[f]or over

four (4) years, Campos has failed to comply with the request of

House as a [transient vacation rental] and terminate any further

rental] use." "Although the Planning Department could have

imposed a fine of up to $10,000 per day for each day the

aforesaid violation existed, . . . instead it requested a fine

'of at least $25,000 [payable] to the County of Kauaʻi for the

continued illegal operation of a [transient vacation rental]

without a [nonconforming use certificate].'"

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The circuit court then concluded that

Campos has not met his burden to establish by a preponderance of the evidence that the Planning Director's decision to impose a fine of at least $25,000 for violation of the provisions of the CZO by operating a [transient vacation rental] outside of the [Visitor Destination Area] without a [nonconforming use certificate] was based upon an erroneous finding of a material fact, arbitrary or capricious, or an abuse of . . . discretion because he did not offer any evidence to contest that decision.

On June 13, 2017, the circuit court entered its final

judgment affirming the Planning Commission's Decision and Order,

revoking Campos's Provisional Nonconforming Use Certificate and

imposing a $25,000.00 fine.

Campos timely appealed to this court.

II. STANDARDS OF REVIEW

A. Secondary Appeals

Review of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. The standard of review is one in which this court must determine whether the circuit court was right or wrong in its decision, applying the standards set forth in HRS § 91- 14(g) . . . to the agency's decision.

Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 114, 120, 424 P.3d

469, 475 (2018) (citations omitted).

Pursuant to HRS § 91-14(g) (2012 & Supp. 2016), 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; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure;

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(4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Additionally, 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." Kauaʻi Springs,

Inc. v. Plan. Comm'n of Cnty. of Kauaʻi, 130 Hawaiʻi 407, 417,

312 P.3d 283, 293 (App. 2013) (citations omitted).

B. Construction of a County Ordinance

The construction of an ordinance is a question of law

reviewed de novo. See Coon v. City & Cnty. of Honolulu, 98

Hawaiʻi 233, 245, 47 P.3d 348, 360 (2002).

III. DISCUSSION

Campos contends the Planning Commission's revocation of

the Provisional Nonconforming Use Certificate violated the

Comprehensive Zoning Ordinance, his grandfather rights under the

United States and Hawaiʻi Constitutions, his due process right,

and the Planning Commission's own rules.

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A. Relevant Legal Authority

1. Hawaiʻi Constitution

The Hawaiʻi Constitution provides that "[n]o person

shall be deprived of life, liberty or property without due

process of law . . . ." Haw. Const. art. I, § 5; see U.S. Const.

amend. V (providing same).

The Hawaiʻi Constitution also mandates that our state

"conserve and protect agricultural lands, promote diversified

agriculture, increase agricultural self-sufficiency and assure

the availability of agriculturally suitable lands," and requires

the legislature to "provide standards and criteria to accomplish

the foregoing." Haw. Const. art. XI, § 3.

2. Statutory Law

a. HRS § 46-4, County Zoning

The counties within our state "derive their zoning

powers from HRS § 46–4(a) . . . , referred to as the Zoning

Enabling Act." Kaiser Hawaii Kai Dev. Co. v. City & Cnty. of

Honolulu, 70 Haw. 480, 483, 777 P.2d 244, 246 (1989). "Zoning in

all counties shall be accomplished within the framework of a

long-range, comprehensive general plan prepared or being

prepared to guide the overall future development of the county."

HRS § 46-4(a) (Supp. 2016).

The powers granted in this section must be "liberally

construed" in the counties' favor to promote orderly development

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according to the comprehensive general plan to ensure the

greatest benefit for the whole of Hawaiʻi by regulating zoning

and building:

The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive general plan to ensure the greatest benefit for the State as a whole. This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations[.]

HRS § 46-4(a). And in accordance with the Hawaiʻi Constitution,

the counties cannot prohibit "continued lawful use" of a

building or premises at the time an ordinance takes effect:

Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premises is used at the time this section or the ordinance takes effect[.]

HRS § 46-4(a) (emphasis added).

b. HRS Chapter 205, Land Use Commission

"While the counties are empowered to enact zoning

ordinances, HRS chapter 205 clearly limits the permissible uses

allowed within an agricultural district." Save Sunset Beach

Coal. v. City & Cnty. of Honolulu, 102 Hawai‘i 465, 482, 78 P.3d

1, 18 (2003). "Within agricultural districts . . . accessory

agricultural uses and services described in sections 205-2 and

205-4.5 may be further defined by each county by zoning

ordinance." HRS § 205-5(b) (2017).

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HRS § 205-2(d) (Supp. 2012) lists seventeen uses or

activities agricultural districts "shall include," and transient

vacation rentals is not expressly listed.

HRS § 205-4.5(a) (Supp. 2006 & 2016) delineates the

permissible uses in agricultural districts rated class A or B.

One permissible use in an agricultural district is a farm

dwelling, which was defined as "a single-family dwelling located

on and used in connection with a farm[.]" HRS § 205-4.5(a)(4)

(Supp. 2006 & 2016). Of the fourteen permissible uses within

the agricultural district enumerated in subsection (a), none

expressly included transient vacation rentals. HRS § 205-4.5(a)

(Supp. 2006).

Any use not expressly allowed in subsection (a) is

prohibited, unless an HRS § 205-6 (2001 & Supp. 2016) special

permit or an HRS § 205-8 (2001) nonconforming use certificate is

obtained. See HRS § 205-4.5(b) (Supp. 2016). Thus, any use

permitted by a county not expressly allowed in HRS § 205–4.5(a),

or by virtue of HRS §§ 205–6 or 205–8, conflicts with the

statutory regime. Save Sunset Beach Coal., 102 Hawai‘i at 482, 78

P.3d at 18.

The "burden to prove that a nonconforming use is valid

is on the owner, occupant or user, who must prove that a lot, a

structure, a use, a dwelling unit, or parking or loading was

legally established as it now exists." Save Diamond Head Waters

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LLC. v. Hans Hedemann Surf, Inc., 121 Hawai‘i 16, 26, 211 P.3d

74, 84 (2009) (cleaned up and emphasis added).

3. KCC, Comprehensive Zoning Ordinance

KCC Title IV, Chapter 8 is Kauaʻi County's Comprehensive

Zoning Ordinance.

a. Article 1, General Provisions

The purpose of the Comprehensive Zoning Ordinance is in

part, to "[regulate] the use of buildings, structures and land

for different purposes," "maintain the concept of [Kauaʻi] as 'The

Garden Isle[,'] thus assuring that any growth will be consistent

with the unique landscape and environmental character of the

Island," and "protect, maintain and improve the agriculture

potential of land located in the County." KCC § 8-1.2(b), (d),

and (k) ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)).

"The Agriculture District establishes means by which

land needs for existing and potential agriculture can be both

protected and accommodated, while providing the opportunity for a

wider range of the population to become involved in agriculture

by allowing the creation of a reasonable supply of various sized

parcels." KCC § 8-1.3(h) ((1987 & Supp. 1988 through Supp. 2006)

(approved June 30, 2006)).

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Article 1 ((1987 & Supp. 1988 through Supp. 2006)

(approved June 30, 2006)) also set forth the following relevant

definitions:

Dwelling: "means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating and sanitation."

Dwelling, Single- "means a building consisting of only Family Detached: one (1) dwelling unit designed for or occupied exclusively by one (1) family."

Dwelling Unit: "means any building or any portion thereof which is designed or intended for occupancy by one (1) family or persons living together or by a person living alone and providing complete living facilities, within the unit for sleeping, recreation, eating and sanitary facilities, including installed equipment for only one (1) kitchen."

Guest House: "means a building with a floor area of (Amended 2008) no more than five hundred (500) square feet, contains no kitchen, is used for dwelling purposes by guests, and is located on a parcel of at least nine thousand (9,000) square feet that contains one (1) or more dwelling units."

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Kitchen: "means any room used or intended or designed to be used for cooking and preparing food."

Land Use: "includes 'building use' and 'use of building.'"

Non-conforming "means a lawful use of a building or Use: land existing at the time of the adoption of this Ordinance or as a result of any subsequent amendment, and which does not comply with the regulations for the zoning district in which it is located."

Transient Vacation "means rentals in a multi-unit building Rentals: (1987) for visitors over the course of one (1) (Removed in 2008 or more years, with the duration of by Ordinance occupancy less than thirty (30) days No. 864) for the transient occupant."

Transient Vacation "means a dwelling unit which is Rental: (2008) provided to transient occupants for compensation or fees, including club fees, or as part of interval ownership involving persons unrelated by blood, with a duration of occupancy of one hundred eighty (180) days or less."

Use: "means the purpose for which land or building is arranged, designed or intended, or for which either land or building is or may be occupied or maintained."

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Use permit: "means a permit issued under the definite procedure provided in this Chapter allowing a certain use which is conditionally permitted for the particular district."

KCC § 8-1.5 (emphases added); 3C Shambie Singer, Sutherland

Statutory Construction § 77:7 (8th ed. 2022) ("When a statutory

definition declares what a term 'means,' any meaning not stated

is excluded, because the term 'means' denotes an exhaustive

definition. Conversely, the word 'include' ordinarily is a term

of enlargement rather than limitation.").

Importantly, "[n]o building, structure or portion

thereof shall be erected, or altered, nor shall any structure,

land or premises be used except in the manner indicated and only

for the uses permitted in the districts in which the building,

structure, land or premises is located." KCC § 8-2.2(d)(1)

((1987 & Supp. 1988 through Supp. 2006) (approved June 30,

2006)).

b. Article 7, Agricultural Districts

The purpose of Article 7 was in part to "protect the

agriculture potential of lands within the County of [Kauaʻi] to

insure a resource base adequate to meet the needs and activities

of the present and future" and "limit and control the dispersal

of residential and urban use within agriculture lands." KCC

§§ 8-7.1(a) and (c) ((1987 & Supp. 1988 through Supp. 2006)

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(approved June 30, 2006)). The KCC listed permitted uses and

structures, which included "Single family detached dwellings." 6

KCC § 8-7.2(15) ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)). The KCC then listed over ten structures and

uses in agricultural districts that require a use permit,

including "[a]ny other use or structure which the Planning

Director finds to be similar in nature to those listed in this

section and appropriate to the District." 7 KCC § 8-7.3(a)(14)

6 KCC § 8-7.2 ((1987 & Supp. 1988 through Supp. 2006) (approved June 30, 2006)) listed the uses and structures permitted in agricultural districts:

(1) Accessory structures and uses (2) Aquaculture (3) Diversified agriculture (4) Forestry (5) Grazing (6) Historic sites (7) Intensive agriculture (8) Livestock, poultry, and piggeries . . . (9) Minor food processing related to agricultural products (10) Orchards and nurseries (11) Outdoor recreation (12) Pet keeping and raising . . . (13) Public parks and monuments (14) Resource management (15) Single family detached dwellings (16) Specialized agriculture (17) Undeveloped campgrounds (18) Warehousing, storage and packing of plant products (19) Wildlife management

7 KCC § 8-7.3(a) (1987) listed the uses and structures in agricultural districts requiring a use permit:

(1) Animal hospitals (2) Cemeteries (3) Churches, temples and monasteries (4) Commercial recreation (5) Construction and worker temporary housing (6) Development campgrounds (7) Golf courses (continued . . .)

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2006)). Transient vacation rentals were not on either list, and

the 2008 amendments pursuant to Ordinance No. 864 did not change

KCC §§ 8-7.2 or 8-7.3.

"No construction or other development for which

standards are established in this Chapter shall be undertaken

within any Agriculture District except in accordance with a valid

zoning permit." KCC § 8-7.7 ((1987 & Supp. 1988 through

Supp. 2006) (approved June 30, 2006)) (emphasis added). Zoning

permits were required as follows:

The following zoning permits, in accordance with Article 19, shall be required for the following activities:

(1) Class I Permit. A Class I Permit shall be obtained for construction or development on a parcel where:

(A) the parcel is not located in a Constraint District or a Special Treatment District and is not large enough to qualify for more than one (1) dwelling unit under the density provisions of this Article; and

(. . . continued)

(8) Mineral extraction and quarries (9) Pet keeping and raising proposed within five hundred (500) feet of any Residential District (10) Poultry and piggeries when to be located within three thousand (3000) feet of any Use District (11) Private and public utility facilities (12) Schools and day care centers (13) Transportation terminals (14) Any other use or structure which the Planning Director finds to be similar in nature to those listed in this section and appropriate to the District.

In 2010, Ordinance No. 903 amended KCC § 8-7.3(a) to include "Farm worker housing" as (a)(7), thereby moving items (a)(7) to (a)(14) included in the 1987 version of KCC § 8-7.3(a) down by one. See County of Kauaʻi, Ordinance No. 903 (Aug. 16, 2010); KCC § 8-7.3(a) (1987).

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(B) the construction or development does not require a Use Permit or a Variance Permit.

(2) Class II Permit. A Class II Permit shall be obtained for construction or development on a parcel where:

(A) the parcel is not located in a Constraint District or a Special Treatment District and is qualified for more than one (1) dwelling unit; and

(B) the construction or development does not require a Use Permit or a Variance Permit.

(3) Class III Permit. A Class III Permit shall be obtained for construction or development on a parcel where:

(A) for construction or development of a parcel for which a Class I or Class II Permit would otherwise be obtainable except that the parcel is located in a Constraint District or a Special Treatment District.

(4) Class IV Permit. A Class IV Permit shall be obtained for construction or development on a parcel where:

(A) for construction or development for which a Class I, II, or III Permit would otherwise be obtainable except that a variance or a use permit is required.

(5) To obtain any permit, the applicant shall show compliance with the Standards established in this Article and shall submit a plot plan and other information as required by Sec. 8-3.8(d).

KCC § 8-7.7 (formatting altered).

c. Article 17, Time Sharing and Transient Vacation Rentals

Article 17 of the KCC addressed Transient Vacation

Rentals.

By Ordinance No. 436 (September 22, 1982), "[e]xcept as

provided in this section, time share units, time share plans and

transient vacation rentals are prohibited." KCC § 8-17.1 ((1987

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& Supp. 1988 through Supp. 2006) (approved June 30, 2006)).

Ordinance No. 864 did not amend KCC § 8-17.1.

By Ordinance No. PM-255-92 (August 13, 1992),

Article 17 limited transient vacation rentals to certain areas:

Subject to the limitations contained in Section 8-17.5, transient vacation rentals are allowed:

(a) In Hotels in Resort or Commercial Districts; and

(b) In Resort Districts or Residential Districts when such districts are located within the visitor destination areas of [Po‘ipū], [Līhuʻe], [Wailua-Kapaʻa] or Princeville, as more particularly designated on County of [Kauaʻi] Visitor Destination Area maps.

KCC § 8-17.3 ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)) (formatting altered). KCC § 8-17.5 provided that

"[n]othing in this Article shall impair the use in a project of

. . . an existing transient vacation rental, when such project is

not located within the visitor destination areas described in

Section 8-17.2." KCC § 8-17.5(a) ((1987 & Supp. 1988 through

Supp. 2006) (approved June 30, 2006) (repealed 2008)).

Ordinance No. 864 (2008) amended Chapter 8 by revising

KCC §§ 8-17.3 and 8-17.5 to apply to multi-family transient

vacation rentals and adding §§ 8-17.8 to 8-17.10 to specifically

address single-family transient vacation rentals. Ordinance

No. 904 (2010) amended particular provisions "relating to

previously implemented grandfathering provisions for existing

single-family transient vacation rentals outside the Visitor

Destination Area . . . ."

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KCC § 8-17.8 provided in part that "[n]otwithstanding

any underlying zoning designation and with the exception of

properties on the National or State Register of Historic Places,

single-family transient vacation rentals are prohibited in all

areas not designated as Visitor Destination Areas." KCC § 8-

17.8(a) (2008 and 2010).

KCC § 8-17.9 provided in part that "[n]o single-family

transient vacation rental shall operate outside a Visitor

Destination Area without a Nonconforming Use Certificate obtained

under Section 8-17.10." KCC § 8-17.9(b) (2008 and 2010).

KCC § 8-17.10 addressed "Nonconforming Use Certificates

for Single-Family Vacation Rentals."

KCC § 8-17.10(a) explained that the purpose of KCC § 8-

17.10 was to identify and register single-family transient

vacation rentals which have been in lawful use and to allow them

to continue by obtaining a nonconforming use certificate:

The purpose of this section is to provide a process to identify and register those single-family transient vacation rentals as nonconforming uses which have been in lawful use prior to the effective date of this ordinance and to allow them to continue subject to obtaining a nonconforming use certificate as provided by this section.

KCC § 8-17.10(a) (2010) (emphases added).

KCC § 8-17.10(b) provided that "[t]he owner, operator

or proprietor of any single-family transient vacation rental

which operated outside of a Visitor Destination Area prior to

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March 7, 2008 shall obtain a nonconforming use certificate for

single family vacation rentals." KCC § 8-17.10(b) (cleaned up).

KCC § 8-17.10(c) prohibited issuing a nonconforming use

certificate unless the use as a single-family rental was legal

under the Comprehensive Zoning Ordinance:

No nonconforming use certificate shall be issued by the Planning Director unless the use as a single-family rental is a legal use under the Comprehensive Zoning Ordinance, and the applicant provides a sworn affidavit and demonstrates to the satisfaction of the Planning Director that a dwelling unit was being used as a vacation rental on an ongoing basis prior to March 7, 2008. The Planning Director, in making the decision, shall take into consideration, among other things, the following guidelines:

(1) The applicant had a State of Hawai‘i General excise tax license and transient accommodations tax license for the purpose of the lawful operation of single-family transient vacation rentals for a period long enough to demonstrate actual payment of taxes.

(2) That prior to the effective date of this ordinance, applicant had deposits for reservations by transient guests in exchange for compensation for use of subject property as a vacation rental.

(3) That applicant had transient guests occupy subject property in exchange for compensation prior to the effective date of this ordinance, with a pattern of consistency that evidences an ongoing and lawful enterprise.

KCC § 8-17.10(c) (2010) (formatting altered).

KCC § 8-17.10(d) permitted nonconforming use

certificates for land in agricultural districts if the single-

family transient vacation rental was built before June 4, 1976 or

the applicant obtained an HRS § 205-6 special permit:

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Applications for nonconforming use certificates for single-family transient vacation rentals located on land designated "Agricultural" pursuant to [HRS Chapter 205] shall be made within sixty (60) days of the effective date of this ordinance. If an operator as defined under Section 8- 17.10(c) fails to apply for a nonconforming use certificate within sixty (60) days of the effective date of this ordinance, then the Planning Director shall assess an administrative late application processing fee of Fifteen Hundred ($1,500.00) Dollars at filing. A nonconforming use certificate may be issued for a single-family transient vacation rental located on land in the State of Hawaii's land use agricultural district if:

(1) It was built prior to June 4, 1976, or

(2) The Applicant has obtained a special permit under [HRS §] 205-6 which specifically permits a vacation rental on the subject property.

(A) An application for a special permit shall include verification by the Applicant that the farm dwelling unit was being used as a vacation rental on an ongoing basis in accordance with Section 8-17.10(c).

(B) An application for a special permit pursuant to [HRS §] 205-6 and Chapter 13 of the Rules of Practice and Procedures of the Planning Commission that is deemed complete by the Planning Director must be filed within one (1) year of the effective date of this ordinance. Upon completion of the application, the Planning Director shall issue a provisional certificate that will allow the transient vacation rental to operate. The provisional certificate shall be null and void after the Planning Commission or the Land Use Commission makes a decision upon the application.

(C) In addition to the Special Permit standards set forth in [HRS §] 205-6 and Chapter 13 of the Rules of Practice and Procedure of the Planning Commission, the Planning Commission may only grant a special permit if, prior to March 7, 2008: (1) the property upon which the transient vacation rental is located had a registered agricultural dedication pursuant to the guidelines set forth in the County of [Kauai's] Department of Finance Real Property Tax Division Agricultural Dedication Program Rules; (2) a bona fide agricultural operation existed, as shown by State General Excise Tax Forms and/or Federal Income Tax Form 1040 Schedule F filings; or (3) the Planning Commission finds that the size, shape, topography, location or surroundings of

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the property, or other circumstances, did not allow an applicant to qualify for an agricultural dedication pursuant to the County of [Kauai's] Department of Finance Real Property Tax Division Agricultural Dedication Program Rules or inhibited intensive agricultural activities[.]

(D) If the application for the special permit is granted, then the transient vacation rental operation shall be subject to conditions imposed by the Planning Commission or the Land Use Commission.

(E) If the application for special permit is denied, then the nonconforming use certificate shall not be issued and the transient vacation rental must cease operation.

KCC § 8-17.10(d) (2010) (formatting altered and emphases added).

KCC § 8-17.10(e) placed the burden of proof on the

owner:

The owner, operator, or proprietor shall have the burden of proof in establishing that the use is properly nonconforming based on the following documentation which shall be provided to the Planning Director as evidence of a nonconforming use: records of occupancy and tax documents, including all relevant State of Hawai‘i general excise tax filings, all relevant transient accommodations tax filings, federal and/or State of Hawai‘i income tax returns for the relevant time period, reservation lists, and receipts showing payment. Other reliable information may also be provided. Based on the evidence submitted, the Planning Director shall determine whether to issue a nonconforming use certificate for the single-family transient vacation rental.

KCC § 8-17.10(e) (2008 and 2010).

KCC § 8-17.11 addressed the "Enforcement Against

Illegal Transient Vacation Rentals":

(a) In addition to other penalties provided by law, including but not limited to Section 8-17.6, Section 8-24.1 and the Planning Commission Rules, as amended, the Planning Director, or any member of the public who has duly obtained standing pursuant to rules promulgated by the commission, may initiate proceedings to revoke or modify the terms of a nonconforming use certificate pursuant to the Rules of Practice and Procedures of the Planning Commission, as amended. Violations of conditions of approval or providing

26 FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

false or misleading information on the application or in any information relating thereto at any time during the application process shall be grounds for revocation or cease and desist orders.

(b) Advertising of any sort which offers a property as a transient rental shall constitute prima facie evidence of the operation of a transient vacation rental on said property and the burden of proof shall be on the owner, operator, or lessee to establish that the subject property is not being used as a transient vacation rental or that it is being used for such purpose legally. If any unit is found to be operating unlawfully, penalties established in Section 8- 17.6 and Section 8-24.1 shall apply.

KCC § 8-17.11 (2010) (cleaned up). The penalty for a violation

was "not less than $500 nor more than $10,000 for each offense,"

and "[i]f any person fails to remove such violation within one

month, such person shall be subject to a new and separate

violation for each day the violation continues to exist." KCC

§ 8-17.6 ((1987 & Supp. 1988 through Supp. 2006) (approved

d. Article 19, Zoning Permits

Article 19 addressed zoning permits, providing that

"[n]o person shall undertake any construction or development or

carry on any activity or use, for which a zoning permit is

required by this Chapter, or obtain a building permit for

construction, development, activity or use regulated by this

Chapter, without first obtaining the required zoning permit."

KCC § 8-19.1 ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006) (repealed 2012)) (emphases added). Article 19

also set forth the application process for obtaining a zoning

permit and the appeals process for challenging the Planning

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Director's decision. KCC §§ 8-19.2 to 8-19.7 ((1987 & Supp. 1988

through Supp. 2006) (approved June 30, 2006) (repealed 2012)).

e. Article 20, Use Permits

Article 20 addressed use permits. "The purpose of the

'use permit' procedure is to assure the proper integration into

the community of uses which may be suitable only in specific

locations in a district, or only under certain conditions, or

only if the uses are designed, arranged or conducted in a

particular manner, and to prohibit such uses if the proper

integration cannot be assured." KCC § 8-20.1 ((1987 & Supp. 1988

through Supp. 2006) (approved June 30, 2006) (repealed 2012)).

"No person shall undertake any construction or

development, or carry on any activity or use for which a Use

Permit is required by this Chapter, or obtain a building permit

for construction, development, activity or use for which a Use

Permit is required by this Chapter, without first obtaining a Use

Permit." KCC § 8-20.2 ((1987 & Supp. 1988 through Supp. 2006)

(approved June 30, 2006) (repealed 2012)) (emphases added).

Article 20 also set forth the application procedure for obtaining

a use permit and when an application can be resubmitted following

a denial. KCC §§ 8-20.3 to 8-20.7 ((1987 & Supp. 1988 through

Supp. 2006) (approved June 30, 2006) (repealed 2012)).

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B. The Planning Commission's Decision Did Not Violate the KCC or Campos's Rights

1. KCC's Comprehensive Zoning Ordinance

Campos asserts that "the Planning Commission's decision

violates the express provisions and intent of CZO Article 17."

(Formatting altered.) In particular, Campos takes issue with

"the County's insistence that in order to apply for [a

nonconforming use certificate] the structure must be a 'legal'

structure," and argues that "neither the express provisions in

KCC Article 17 nor the express intent of KCC Article 17 require

or support this interpretation." Campos further asserts that "it

is undisputed that the guest cottage was a single family

dwelling" because it contained a kitchen. (Formatting altered.)

"[Z]oning laws and ordinances are strictly construed,

as they are in derogation of the common law, and their provisions

may not be extended by implication." Waikiki Marketplace Inv.

Co. v. Chair of Zoning Bd. of Appeals of City & Cnty. of

Honolulu, 86 Hawai‘i 343, 354, 949 P.2d 183, 194 (App. 1997)

(citation and internal quotation marks omitted). "The key to

interpreting a zoning statute is to ascertain and effectuate

legislative intent as expressed in the statute." 3C Singer,

Sutherland Statutory Construction § 77:7; see Kauai Springs, Inc.

v. Plan. Comm'n of Cnty. of Kaua‘i, 133 Hawai‘i 141, 163, 324 P.3d

951, 973 (2014) ("When construing a statute, our foremost

29 FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

obligation is to ascertain and give effect to the intention of

the legislature which is to be obtained primarily from the

language contained in the statute itself.") (citation omitted).

"It is fundamental in statutory construction that each

part or section of a statute should be construed in connection

with every other part or section so as to produce a harmonious

whole." Id. (citation omitted). "We must read statutory

language in the context of the entire statute and construe it in

a manner consistent with its purpose." Id. (citation omitted).

We begin our analysis with KCC § 8-17.10(a), which

explained the purpose of the "Nonconforming Use Certificates for

Single-Family Vacation Rentals" section was "to provide a process

to identify and register those single-family transient vacation

rentals as nonconforming uses which have been in lawful use prior

to the effective date of this ordinance and to allow them to

continue subject to obtaining a nonconforming use certificate as

provided by this section." (Emphasis added.) "This purpose is

consistent with the requirements of HRS § 46-4(a) as well as the

constitutional protection provided to property owners with vested

rights to pre-existing lawful uses of their property." Robert D.

Ferris Tr. v. Plan. Comm'n of Cnty. of Kaua‘i, 138 Hawai‘i 307,

313, 378 P.3d 1023, 1029 (App. 2016).

Next, KCC § 8-17.10(c) provided, "No nonconforming use

certificate shall be issued by the Planning Director unless the

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use as a single-family rental is a legal use under the

Comprehensive Zoning Ordinance, and the applicant provides a

sworn affidavit and demonstrates to the satisfaction of the

Planning Director that a dwelling unit was being used as a

vacation rental on an ongoing basis prior to March 7, 2008

. . . ." 8 (Cleaned up and emphases added.) This section also

protected preexisting lawful use by exempting those legal single-

family rentals from the mandatory prohibition on issuing

nonconforming use certificates for transient vacation rentals on

property outside the Visitor Destination Areas. See Leslie v.

Bd. of Appeals of Cnty. of Hawai‘i, 109 Hawai‘i 384, 393, 126

P.3d 1071, 1080 (2006) (explaining that the term "shall," "is

generally imperative or mandatory") (citation omitted).

Finally, KCC § 8-17.10(d) provided the Planning

Department with the discretion to issue a nonconforming use

certificate for a single-family transient vacation rental located

on agricultural land under certain circumstances:

8 In Campos's argument, he asserts that COL 4 is incorrect. COL 4 states in relevant part, "[i]n order to qualify for the [nonconforming use certificate], the 'dwelling unit . . . [must be] in compliance with all State and County land use and planning laws . . . [as of] the time of application for' that nonconforming use certificate" and cites KCC § 8-17.10(b). (Formatting altered.)

This quoted language was present in KCC § 8-17.10(c) (in effect from March 7, 2008 to August 16, 2010), but was not in KCC § 8-17.10(b) and was deleted by Ordinance No. 904. Any error, however, does not require vacating the circuit court's decision because KCC §§ 8-17.10(a) and (c) nonetheless require that the single-family rental be a prior lawful and legal use under the Comprehensive Zoning Ordinance.

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A nonconforming use certificate may be issued for a single-family transient vacation rental located on land in the . . . land use agricultural district if:

(1) [i]t was built prior to June 4, 1976, or

(2) [t]he Applicant has obtained a special permit under [HRS §] 205-6 which specifically permits a vacation rental on the subject property.

(A) An application for a special permit shall include verification by the Applicant that the farm dwelling unit was being used as a vacation rental on an ongoing basis in accordance with Section 8-17.10(c). . . .

KCC § 8-17.10(d) (emphasis added). An application for a special

permit requires that the dwelling unit was being used in accordance

with KCC § 8-17.10(c), which includes being "a legal use under the

Comprehensive Zoning Ordinance[.]"

In short, when viewing KCC § 8-17.10 as a whole within

the context of its purpose, a nonconforming use certificate for a

transient vacation rental outside of the Visitor Destination Area

could be issued only when the prior use as a single-family

transient vacation rental was lawful under the Comprehensive

Zoning Ordinance. Thus, on land (agricultural or not) outside

the Visitor Destination Area, prior lawful use was protected.

With this in mind, we turn to KCC § 8-19.1, which

provided that "[n]o person shall . . . obtain a building permit

. . . without first obtaining the required zoning permit."

Similarly, KCC § 8-20.2 provided that "[n]o person shall . . .

obtain a building permit . . . without first obtaining a Use

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Permit" where a use permit is required. As such, no person is

allowed to obtain a building permit for construction or use

without first obtaining the required zoning permit and, if

applicable, use permit.

We pause to reiterate that nonconforming use means "a

lawful use of a building or land existing at the adoption of" the

ordinance, transient vacation rental means a "dwelling unit . . .

provided to transient occupants for compensation," a dwelling or

dwelling unit contains facilities for cooking or a kitchen, and a

guest house has no kitchen.

Here, there was no single-family transient vacation

rental in lawful use, pursuant to the zoning laws, to identify or

register as a nonconforming use.

The Planning Commission found that Potts was issued a

Zoning Permit to build the Guest House in July 1998 on the

Property. FOF 3. Potts was also issued a zoning permit to build

a Gazebo a few months later, in September 1998, and "[n]o other

zoning permits were issued by the Planning Department for the

Subject Property after approval of the Gazebo." FOF 4.

In 2000, the Public Works Department approved the

Building Plans for the Guest House, however, the Building Plans

differed from the Zoning Plans as the Building Plans showed a

kitchen in the Guest House. FOF 5. In 2010, the As-Built Plans

submitted also depicted a kitchen in the Guest House. FOF 10.

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In 2011, a field inspection of the Guest House confirmed there

was a kitchen. FOF 12. And in 2015, Campos advertised the Guest

House as containing "a kitchen with a refrigerator, stove top

burner, oven, dishwasher, blender, ice maker, coffee maker and

toaster." FOF 17.

The Zoning Permit allowed for a guest house (i.e.,

building with no kitchen for use of guests) on the Property. In

other words, the Guest House was supposed to be used as a place

for guests, not as a single-family dwelling or a dwelling unit.

See KCC § 8-1.5. Per the zoning code, Potts was prohibited from

obtaining a building permit to construct or use a structure with

a kitchen if he did not first obtain the required zoning permit.

See KCC § 8-19.1. A kitchen built in contravention to the Zoning

Plans and Zoning Permit obtained did not convert use of the Guest

House into a lawful use as a single-family dwelling.

Thus, contrary to Campos's contention, there was no

single-family transient vacation rental in lawful use because his

use of the Guest House as a single-family transient vacation

rental was not a lawful use of the Guest House as permitted by

the Zoning Permit.

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2. Grandfather Rights

Second, Campos asserts that the "Planning Commission's

decision violates [his] grandfather rights under the U.S. and

[Hawaiʻi] State Constitutions and HRS section 46-4." (Formatting

altered.) He argues that "there is no evidence to dispute [his]

testimony and records that he was operating a [transient vacation

rental] on the Subject Property prior to March 7, 2008" and that

the "government cannot stop an existing nonconforming use by the

adoption of an ordinance prohibiting that use."

process of law . . . ." Haw. Const. art. I, § 5; see U.S. Const.

amend. V (providing same). HRS § 46-4 grants zoning power to the

counties, and in line with the Hawaiʻi Constitution, provides that

"[n]either this section nor any ordinance enacted pursuant to

this section shall prohibit the continued lawful use of any

building or premises for any trade, industrial, residential,

agricultural, or other purpose for which the building or premises

is used at the time this section or the ordinance takes

effect[.]" HRS § 46-4(a)(12) (Supp. 2016) (emphasis added).

Campos rented his Guest House as a single-family

dwelling to transient vacationers. Campos insists that the Guest

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House is really a single-family dwelling because it has a

kitchen.

However, as discussed above, the Zoning Permit issued

by the Planning Department allowed for a guest house (i.e., a

building with no kitchen for use by guests) on the Property.

Because Campos did not use the Guest House as permitted by the

Zoning Permit, it was not being used lawfully. Thus, there was

no lawful single-family transient vacation rental use which could

be grandfathered.

3. Due Process Rights

Third, Campos contends that "the Planning Department is

violating [his] due process rights as well as its own past

practice of allowing [nonconforming use certificate] applicants

to correct identified violations." (Formatting altered.) Campos

argues that the "presence or absence of structural violations was

not a factor" and "[i]f structural violations were found, the

applicants were told to fix them." Campos explains that the

"issue is whether or not the County allowed an applicant to

correct a violation prior to issuing the [nonconforming use

certificate], not whether the guest house itself was the

[transient vacation rental]."

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Campos also argues that the Planning Commission's

"application of this 'new' requirement that the structures cannot

be in violation of the KCC is a rule that cannot be enforced."

Campos further states "there is nothing in the record to even

remotely suggest that the Planning Commission's new rule

requiring the structures in which a transient vacation rental is

located to be free from violations was properly promulgated."

The "requirements of due process are flexible and

depend on many factors, but 'there are certain fundamentals of

just procedure which are the same for every type of tribunal and

every type of proceeding,' including those before administrative

agencies." Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136

Hawaiʻi 376, 389, 363 P.3d 224, 237 (2015) (citations and

brackets omitted). "The basic elements of procedural due

process are notice and an opportunity to be heard at a

meaningful time and in a meaningful manner." Id. Also, "due

process of law generally prohibits decisionmakers from being

biased, and more specifically, prohibits decisionmakers from

prejudging matters and the appearance of having prejudged

matters." Id. Substantive due process "guards against

arbitrary and capricious government action." DW Aina Leʻa Dev.,

LLC v. Bridge Aina Leʻa, LLC., 134 Hawai‘i 187, 219, 339 P.3d

685, 717 (2014) (citation omitted).

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Contrary to Campos's claim that the Planning Commission

applied a new requirement, the Planning Commission relied on and

applied the KCC. As stated, KCC § 8-17.10(a) explained its

purpose was "to provide a process to identify and register those

single-family transient vacation rentals as nonconforming uses

which have been in lawful use prior to the effective date of this

ordinance and to allow them to continue subject to obtaining a

nonconforming use certificate as provided by this section."

(Emphasis added.) In that vein, KCC § 8-17.10(c) provided, "[n]o

nonconforming use certificate shall be issued by the Planning

Director unless the use as a single-family rental is a legal use

under the [CZO], . . ." (Emphasis added.) Campos does not claim

KCC § 8-17.10 was not properly promulgated.

Moreover, in revoking Campos's Provisional

Nonconforming Use Certificate, the Planning Department notified

Campos of the revocation, explained its reasons for the

revocation, instructed Campos to discontinue any transient

vacation rental use on the Property, and informed Campos of the

possible penalties.

Campos appealed this decision and requested a public

hearing. A contested case hearing was held, and the Hearing

Officer issued a report and recommendation. The Planning

Commission heard oral arguments, and issued its Findings of

Fact, Conclusions of Law, Decision and Order. Campos then

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appealed to the circuit court, which heard oral arguments and

entered its Decision and Order affirming the Planning

Commission's decision. Campos was therefore afforded a

meaningful opportunity to be heard.

As to Campos's argument that he was not allowed to

correct the violation, Campos cites to his Exhibit 33 (plans

titled "Renovation + GH to SFR Conversion") and the testimony of

his brother. As an initial matter, Campos does not indicate

where in the record he made the application to correct the

violation or show that an appeal from the denial of the

application is properly before this court. And Campos does not

dispute that his application to convert the Guest House to a

single-family dwelling was submitted months after he appealed the

Planning Department's revocation of the Provisional Nonconforming

Use Certificate. Thus, this argument is deemed waived.

Even if we considered Campos's argument in the context

of this appeal, Campos has not provided this court with any law,

ordinance, or rule entitling him to convert his Guest House (that

does not comply with the Zoning Permit issued) into a single-

family dwelling, and then have that conversion retroactively

render the unlawful use of his Guest House into a lawful use as a

single-family dwelling.

As stated in an unchallenged finding, Planning

Department Enforcement Supervisor Michael Laureta testified that

39 FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"in order for the Guest House to be approved as a 'Single-Family

Transient Vacation Rental[,]' a public hearing by the [Planning]

Commission would be required on [Campos's] Special Permit

Application." FOF 22. The Planning Commission also noted that

"for this reason, the Planning Department cannot simply allow

[Campos] to submit an application at this time for retroactive

approval of 'a guest house with a kitchen' as part of Z-437-98." 9

As such, Campos has not shown that denial of an application for

"Renovation + GH to SFR Conversion" was a denial of his due

process rights.

Based on the record in this case, Campos was afforded

notice and ample "opportunity to be heard at a meaningful time

and in a meaningful manner." Mauna Kea Anaina Hou, 136 Hawaiʻi

at 389, 363 P.3d at 237. And the Planning Commission's decision

was not arbitrary and capricious.

4. Fines

Finally, Campos contends that the "County violated its

own rules in fining" him. (Formatting altered.) Campos asserts

that the "County's own regulations specifically states [sic]

9 The summary of the transcripts from the contested case hearing stated that Campos's attorney, Jonathan Chun, "noted that Mr. Laureta testified earlier that there was another situation with a guest house with a kitchen and questioned if he applied for a [transient vacation rental] to which Mr. Laureta replied that he applied for two [transient vacation rentals], one for the main house and one for the guest cottage." After removal of the kitchen in the guest house, Mr. Chun questioned the Department's recommended approval to which Mr. Laureta replied that "the Commission wouldn't accept two applications. The guest cottage could be used as an accessory bedroom, but couldn't be advertised separately from the main dwelling unit."

40 FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

that fines can only be assessed after a notice of violation has

been issued on the property" and the "record is devoid of any

indication that a notice of violation was issued[.]"

The Planning Department argues Campos waived this

issue because he raised it for the first time in his reply brief

to the circuit court. In his reply on appeal, Campos states the

"County ignores the fact that the issue regarding the County's

own failure to follow its own rules in fining Campos was raised

in the lower court" and cites "Amended RA, Volume 1, Part 2 of 2

at p. 129[,]" which is Campos's reply brief to the circuit

court.

Points raised for the first time in a reply brief are

deemed waived. See Hawaii Ventures, LLC v. Otaka, Inc. 114

Hawai‘i 438, 472 n.17, 164 P.3d 696, 730 n.17 (2007) (explaining

that Appellant's "point of error is deemed waived for failure to

present any argument in its opening brief in the first instance

and presenting such arguments in its reply brief to which no

answer could be made").

Moreover, Campos's argument to this court consists of

one paragraph, which does not specifically identify or quote the

rule on which he relies, but instead cites to "Amended RA,

Volume 1, Part 1 a of 2 at p. 391." See HRAP Rule 28(b)(8)

(requiring the opening brief to provide the "rules pertaining to

the points of error set out verbatim"). Campos's one-paragraph

41 FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

argument also does not analyze how the rules in "Amended RA,

Volume 1, Part 1 a of 2 at p. 391" apply to the facts of this

case, and does not explain why the December 22, 2011 letter

instructing him to stop using the Guest House as a transient

vacation rental or face fines "up to $10,000 and/or up to

$10,000 per day" was not sufficient notice of the fines he

faced.

IV. CONCLUSION

In sum, Campos fails to show that he is entitled to

relief under HRS § 91-14(g). We thus affirm the circuit court's

(1) June 13, 2017 Final Judgment, and (2) April 19, 2017

Findings of Fact, Conclusions of Law, Decision and Order.

On the briefs: /s/ Keith K. Hiraoka Presiding Judge Jonathan J. Chun, for Plaintiff- /s/ Clyde J. Wadsworth Appellant/Appellant. Associate Judge

Mark L. Bradbury, /s/ Sonja M.P. McCullen for Defendant- Associate Judge Appellee/Appellee County of Kauaʻi Planning Department.