Rosehill v. State of Hawai'i.

556 P.3d 387, 155 Haw. 41

• Court: Hawaii Supreme Court
• Decided: September 24, 2024
• Docket: SCAP-22-0000371
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 24-SEP-2024 11:47 AM Dkt. 44 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

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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; ROBERT STOPPEK; LAURA B. STOPPEK; 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. *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CAAP-XX-XXXXXXX; CIV. NO. 3CCV-XX-XXXXXXX)

September 24, 2024

RECKTENWALD, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

Hawai‘i land use is broadly guided by state law. The

counties play an important role, however. They propose land use

maps to the State, implement the land use scheme through zoning

ordinances, and carve out permissible exceptions to the State’s

broad scheme. In 2019, the County of Hawai‘i passed an ordinance

banning short-term vacation rentals in the agricultural district

on lots built after 1976. The Rosehill Petitioners challenge

the County’s ordinance, seeking permission to use farm dwellings

as short-term vacation rentals. We hold that farm dwellings in

the agricultural district may not be used as short-term vacation

rentals because such relief would undermine the purpose of the

agricultural district.

In brief summary, Hawai‘i Revised Statutes (HRS)

§ 205-4.5 (2017) details all permissible uses of land in the

agricultural district. HRS § 205-4.5(a)(4) (2017) defines a

“farm dwelling,” a permissible use, as “a single-family dwelling

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located on and used in connection with a farm . . . or where

agricultural activity provides income to the family occupying

the dwelling.” In 2019, the County of Hawai‘i 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. Under the

ordinance, the County may only issue a nonconforming use

certificate for land in the agricultural district where the lot

existed before June 4, 1976. Anyone operating a short-term

vacation rental without first obtaining a nonconforming use

certificate is subject to criminal prosecution and

administrative penalties.

After the ordinance was enacted, the Rosehill

Petitioners, who all own lots created after June 4, 1976, sought

nonconforming use certificates. The County denied the

certificates, and the Rosehill Petitioners appealed to the

County Board of Appeals. The County and the Rosehill

Petitioners agreed to stay the appeal and each file a petition

with the Land Use Commission (LUC), seeking to establish whether

the County’s denial was proper under state law. The LUC ruled

on the County’s petition and found that farm dwelling use and

short-term vacation rental use are not compatible uses — i.e.,

that farm dwellings cannot be used as short-term vacation

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rentals. The LUC also concluded that the Rosehill Petition was

speculative and hypothetical.

The Rosehill Petitioners appealed to the circuit

court, which reversed the LUC. The circuit court held that farm

dwelling use and short-term vacation rental use are “not

incompatible.” It compared the County ordinance to HRS

§ 205-4.5(a) and held that a dwelling can simultaneously meet

the definition of a farm dwelling and a short-term vacation

rental.

The LUC appealed to the Intermediate Court of Appeals

(ICA), where the case was extensively briefed. While the case

was pending before the ICA, this court issued In re Kanahele,

which held that declaratory orders entered by the LUC have the

“same status” for judicial review as orders in contested cases.

152 Hawai‘i 501, 512, 526 P.3d 478, 489 (2023). Here, that would

mean that the Rosehill Petitioners should have appealed directly

to this court from the LUC order (rather than, as they did to

the circuit court). The Rosehill Petitioners then applied for

transfer, which we granted.

This case raises several questions. Preliminarily,

there are two procedural issues raised by Kanahele: (1) Can this

case be transferred from the ICA to this court, nunc pro tunc to

June 18, 2021, the date this appeal was initially filed in the

circuit court; and (2) if the case can be transferred nunc pro

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tunc, what record may the Court consider, and which party should

have the burden of showing error? There are also two

substantive issues: (3) Could the LUC grant the declaratory

order to the County while denying the Rosehill Petition, and

(4) can a farm dwelling in the state agricultural district be

used as a short-term vacation rental?

We hold as follows: (1) yes, we may transfer the case

nunc pro tunc because it is within the statutory and inherent

power of this court to do so and would accord with our

longstanding policy to hear cases on the merits; (2) this court

can use the entirety of the record (though the circuit court’s

findings of fact and conclusions of law have no weight), and the

Rosehill Petitioners have the burden of showing that the LUC

order was arbitrary and capricious; (3) yes, the LUC properly

granted the declaratory order for the County while denying the

Rosehill Petition because the two parties were not similarly

situated; and (4) no, a farm dwelling in the agricultural

district may not be used as a short-term vacation rental because

that use does not accord with the agricultural district’s

purpose.

We therefore vacate the circuit court’s judgment and

affirm the LUC’s declaratory order.

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II. BACKGROUND

A. Statutory Background

HRS § 205-4.5, originally enacted as Act 199 in 1976,

governs the LUC and agricultural lands:

205-4.5 Permissible uses within the agricultural districts.

(a) Within the agricultural district, all lands with soil classified by the land study bureau’s detailed land classification as overall (master) productivity rating class A or B and for solar energy facilities, class B or C, shall be restricted to the following permitted uses:

. . . .

(4) Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry. “Farm dwelling”, as used in this paragraph, means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling[.]

(b) Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in sections 205-6 and 205-8, and construction of single-family dwellings on lots existing before June 4, 1976. Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau’s detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless those A and B lands within the subdivision are made subject to the restriction on uses as prescribed in this section and to the condition that the uses shall be primarily in pursuit of an agricultural activity.

Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition, as prescribed in this section that these restrictions and conditions shall be encumbrances running with the land until such time that the land is reclassified to a land use district other than agricultural district.

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HRS § 205-6 (2017) allows counties to “permit certain

unusual and reasonable uses within agricultural and rural

districts other than those for which the district is

classified.”

B. Zoning Code Background and County Planning Procedure

The County of Hawaiʻi zoning code regulates land

development and use within the County. See Hawai‘i County Code

(HCC or the Code) § 25-1-2(b). In April 2019, the County

amended its zoning code to regulate the use of short-term

vacation rentals by requiring the owner to register and obtain a

nonconforming use certificate from the Planning Department. HCC

§§ 25-4-16, 25-4-16.1, Hawaiʻi County Ordinance, No. 18-114

(2018). Anyone that operates a short-term vacation rental

without obtaining a nonconforming use certificate may be subject

to criminal prosecution and administrative penalties. HCC

§§ 25-4-16(b)(7), 25-2-31, 25-2-35 (2019). The Code provides,

“[i]n the State land use agricultural district, a short-term

vacation rental nonconforming use certificate may only be issued

for single-family dwellings on lots existing before June 4,

1976.” See HCC § 25-4-16.1(e) (2019). 1

1 June 4, 1976 was the effective date for Act 199, H.B. No. 3262- 76, the act in which the legislature designated the permissible uses within the agricultural districts now codified at HRS § 205-4.5.

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The County defines a short-term vacation rental as “a

dwelling unit of which the owner or operator does not reside on

the building site, that has no more than five bedrooms for rent

on the building site, and is rented for a period of thirty

consecutive days or less.” HCC § 25-1-5(b) (2019). Short-term

vacation rentals are permitted in several areas of the County,

including its resort-hotel district, the general commercial

district, village commercial district, multiple-family

residential district, and General Plan Resort and Resort Node

areas. HCC §§ 25-4-16(a)(1), 25-5-90 (2019).

The Rosehill Petitioners applied for a non-conforming

use certificate for their short-term vacation rental operated on

a lot created after June 4, 1976 in an agricultural district,

which the County denied.

Subsequently, the Rosehill Petitioners appealed the

denials of their application for nonconforming use certificates

to the County’s Board of Appeals. See HCC § 25-4-16.1(f). The

County and the Rosehill Petitioners jointly stipulated to stay

the proceedings at the Board of Appeals pending the disposition

of LUC petitions.

C. The LUC Proceedings

In May 2020, the County and the Rosehill Petitioners

separately filed petitions for declaratory orders before the

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LUC, which were subsequently consolidated. The County presented

the following factual situation: petitioners (a subset of whom

are now the Rosehill Petitioners) who sought and were denied

nonconforming use certificates for short-term vacation rentals

have appealed the denials. The County requested “a Declaratory

Order that ‘farm dwellings’ may not be used as short-term

vacation rentals pursuant to [HRS] §§ 205-2 and 205-4.5, and

Hawaiʻi Administrative Rules (HAR) § 15-15-25.” (Emphasis

added.) The Rosehill Petitioners requested a declaratory ruling

“to clarify and affirm that the rental of farm dwellings for

periods of 30 days or less was not prohibited in the State

Agricultural District as of June 4, 1976.” The Rosehill

Petition described the Petitioners as owners of various parcels

of land in the agricultural district, but did not specifically

describe how the Petitioners were using the land.

On May 20, 2021, the LUC entered a consolidated order

denying the Rosehill Petition and granting the County’s

petition.

The LUC concluded:

62. The farm dwelling use and a [short-term vacation rental] use are not compatible uses. A farm dwelling defined under HRS § 205-4.5(a)(4) as a single-family dwelling that either must be located on and used in connections with a farm, or where agricultural activity provides income to the family occupying the dwelling.

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63. In the present proceedings, no facts were submitted which would contradict the conclusion that a [short-term vacation rental] use is basically a transient accommodation effectively for vacation or tourist use, which has no connection to a farm and is not accessory to an agricultural use, and does not meet either of the requirements of the farm dwelling definition. A [short- term vacation rental] use would therefore improperly displace the required agricultural use of a farm dwelling.

64. A [short-term vacation rental] is not a permitted use of a farm dwelling in the Agricultural District under HRS chapter 205. HRS §§ 205-2(d) and 205-4.5(a) expressly lists the permitted uses in the Agricultural District as a matter of law. If a use is not listed, it is prohibited. [Short- term vacation rentals] are not listed permitted uses of a farm dwelling under HRS chapter 205, and therefore, are prohibited.

65. Residential use of a farm dwelling without any connection to an agricultural use has never been allowed in the Agricultural District. The law has always required that a farm dwelling be used in connection with a farm or accessory to an agricultural use.

69. A [short-term vacation rental] is not a permitted use as a farm dwelling under HRS chapter 205.

The order cited Save Sunset Beach Coal. v. City &

Cnty. of Honolulu, 102 Hawaiʻi 465, 482, 78 P.3d 1, 18 (2003), in

which we held, “[t]o the extent that the Hawaiʻi County Council

has exercised its legislative judgment to regulate [short term

vacation rentals] to protect and preserve agricultural land in a

manner more restrictive than that provided by the LUC, the

County Ordinance controls and must be followed.”

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The LUC Order further held that the petition filed by

the Rosehill Petitioners was speculative under HAR § 15-15-

98(a):

79. Without a “specific factual situation” presented to the Commission, the ROSEHILL PETITIONERS are putting forth a speculative or purely hypothetical scenario “which does not involve an existing situation or one which may reasonably be expected to occur in the near future.” Therefore, the ROSEHILL PETITIONERS’ request for relief should be denied, leaving only the County’s question of whether a farm dwelling may be used as a [short-term vacation rental] for the Commission’s consideration.

D. Court Proceedings

In June 2021, the Rosehill Petitioners appealed the

LUC Order to the Circuit Court of the Third Circuit. 2 In May

2022, the circuit court entered “Findings of Fact, Conclusions

of Law, Decision and Order Reversing the State of Hawai‘i Land

Use Commission’s Consolidated Declaratory Order.” It held that

the County’s petition should be denied and the Rosehill petition

granted for two reasons. First, it concluded that the “LUC

abused its discretion when it denied the Rosehill Petition on

the grounds that it was ‘speculative or purely hypothetical.’”

It found that the questions were substantially similar and based

on the same factual situation, so the LUC’s denial was an abuse

of discretion. Second, it concluded that “language of HRS

§§ 205-2 and 205-4.5 is plain and unambiguous,” and that “[a]

comparison of [the County ordinance] with HRS Chapter 205 as of

2 The Honorable Wendy M. DeWeese presided.

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June 4, 1976 reveals that a dwelling may simultaneously meet the

definition of a ‘farm dwelling’ pursuant to HRS Chapter 205 and

the County's definition of ‘short-term vacation rental.’”

The LUC appealed the circuit court’s order and

judgment to the ICA. First, the LUC argued that the circuit

court failed to recognize the distinctions between the two

petitions, which were critical to the LUC’s decision. Namely,

the LUC never found that the Rosehill Petitioners actually had

farm dwellings, so it concluded that their petition was

hypothetical. The County, on the other hand, needed to know if

it could enforce its ordinance. Because of this, the LUC

argued, the parties were not similarly situated — so granting

the County petition while denying the Rosehill petition was

permissible.

Second, the LUC argued that short-term vacation

rentals are not a permissible use of farm dwellings in the

agricultural district. The LUC argued (1) short-term vacation

rental was not a permitted use under HRS § 205-4.5, which

specifically states that “uses not expressly permitted . . .

shall be prohibited”; (2) short-term vacation rentals would not

align with the purpose of the agricultural district, which is to

protect agricultural land for agricultural use; and (3) the

LUC’s interpretation of its own ambiguous statute should be

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accorded deference. Under the relevant LUC administrative

rules:

“Dwelling” means a building designed or used exclusively for single family residential occupancy, but not including house trailer, multi-family unit, mobile home, hotel, or motel.

“Farm dwelling” means a single-family dwelling located on and used in connection with a farm or where agricultural activity provides income to the family occupying the dwelling.

“Single-family dwelling” means a dwelling occupied exclusively by one family.

HAR § 15-15-03 (emphasis added).

As an “accessory building or use,” a farm dwelling

must also be “a subordinate building or use which is incidental

to and customary with a permitted use of the land.” HAR § 15-

15-03. The LUC argued that transient uses cannot coexist with

agricultural activity, and that it used its expertise in land

use when making that determination. And because its

interpretation is consistent with the underlying legislative

purpose of HRS chapter 205 (“to prevent ‘the development of

urban type residential communities in the guise of agricultural

subdivisions’”), the LUC argued it did not err.

The County filed an answering brief, agreeing with the

LUC’s arguments. The Rosehill Petitioners also answered,

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defending the circuit court’s decision. First, they argued that

they and the County presented the same fundamental question to

the LUC, so the LUC could not deny the Rosehill petition as

speculative or hypothetical while granting the County petition.

Second, they argued that the plain language of HRS § 205-

4.5(a)(4), which defines a farm dwelling as a permissible use of

agricultural land, does not set out a minimum rental period. On

the other hand, the County’s definition of a short-term vacation

rental relies solely on how long the premises are rented and not

by the actual usage — so a farm dwelling can also be a short-

term vacation rental.

Extensive briefing followed, in which the parties

reiterated their arguments for and against the use of farm

dwellings as short-term vacations rentals. The Honolulu

Department of Planning filed an amicus brief in support of the

County’s actions. The brief reiterated the County’s and LUC’s

arguments, but also raised the jurisdictional issue following

this court’s holding in Kanahele, which had recently been

published. It argued:

there appears to be a question of whether the Third Circuit Court possessed jurisdiction to hear an appeal from the LUC’s consolidated order. HRS § 205-19(a) states “[a]ny other law to the contrary notwithstanding, including chapter 91, any contested case under this chapter shall be appealed from a final decision and order or a preliminary ruling that is of the nature defined by section 91-14(a) upon the record directly to the supreme court for final decision.” HRS § 205-19(a) (2017 and Supp. 2019). In addition, on March 15, 2023, the Hawai‘i Supreme Court

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issued an opinion in In re Kanahele, [152] Haw[ai‘i] [501, 526 P.3d 478] (2023); No. SCOT-19- 0000830, 2023 Haw. LEXIS 75 (2023), in which it accepted jurisdiction over a direct appeal from an LUC order. See, Kanahele, 2023 LEXIS 75 at pp. 21-27. DPP respectfully declines to take a position on the proper disposition of this case in light of HRS § 205- 19(a) and Kanahele because jurisdictional matters are outside of its area of expertise and interest. However, DPP notes the issue raised by HRS [] and Kanahele based on counsel’s duty to make this court aware of relevant law.

The Rosehill Petitioners responded. They claimed that

the circuit court had appellate jurisdiction under Lingle v.

Haw. Gov’t Emps. Ass’n, 107 Hawai‘i 178, 111 P.3d 587 (2005), and

no party disputed that jurisdiction. Alternatively, they

requested the ICA transfer the case to this court nunc pro tunc.

The LUC opposed the Rosehill Petitioners’ request to transfer.

Instead, the LUC asserted that the “correct, non-prejudicial way

to dispose of the instant appeal, in light of Kanahele, is to

vacate the circuit court order, strike any associated

proceedings,” and then proceed. (Emphasis in original.)

The Rosehill Petitioners followed their last brief

with a motion to transfer the case to this court. They argued

that when the LUC issued its declaratory order in 2020, all

parties understood that the proper procedure to appeal was to

the circuit court under Lingle. Then Kanahele changed that.

Nunc pro tunc transfer, then, was necessary to preserve their

right to appeal. The LUC and County both opposed the motion.

They argued that in light of Kanahele, the only action that the

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ICA could take was to vacate the circuit court’s decision for

lack of jurisdiction.

The Rosehill Petitioners also filed an application to

transfer with this court. We accepted transfer in June 2023. 3

III. STANDARDS OF REVIEW

A. Statutory Interpretation

“The interpretation of a statute is a question of law

which this court reviews de novo.” Kanahele, 152 Hawai‘i at 509,

526 P.3d at 486 (quoting Keep the N. Shore Country v. Bd. Of

Land & Nat. Res., 150 Hawai‘i 486, 506, 506 P.3d 150 (2022)).

In reviewing questions of statutory interpretation, we are guided by the following principles:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation 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. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

State v. Castillon, 144 Hawai‘i 406, 411, 443 P.3d 98, 103 (2019)

(quoting Panado v. Bd. Of Trs., Emps.’ Ret. Sys., 134 Hawai‘i 1,

10, 332 P.3d 144, 153 (2014)).

3 The County and LUC objected to transfer on jurisdictional grounds. But a jurisdictional defect in the case does not deprive this court of its ability to review the jurisdictional question. See Lingle, 107 Hawai‘i at 182-83, 111 P.3d at 591-92 (“When reviewing a case where the circuit court lacked subject matter jurisdiction, the appellate court retains jurisdiction . . . for the purpose of correcting the error in jurisdiction.”).

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B. Agency Appeals

A court’s review of administrative agency decisions is

governed by HRS § 91-14(g) (Supp. 2016), which provides:

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;

(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.

“Under HRS § 91-14(g), conclusions of law are

reviewable under subsections (1), (2), and (4); questions

regarding procedural defects under subsection (3); findings of

fact under subsection (5); and an agency’s exercise of

discretion under subsection (6).” Kanahele, 152 Hawai‘i at 509-

10, 526 P.3d at 486-87 (brackets omitted) (quoting Paul’s Elec.

Serv., Inc. v. Befitel, 104 Hawai‘i 412, 416, 91 P.3d 494, 498

(2004)).

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IV. DISCUSSION

As discussed below, we hold as follows: (1) the case

can be transferred nunc pro tunc because under Honoipu Hideaway,

LLC v. Land Use Comm’n, 154 Hawai͑i 372, 550 P.3d 1230 (2024),

it is within the inherent power of this court and is in pursuit

of our longstanding policy to hear cases on the merits; (2) we

may use the record from the lower courts in the interest of

judicial efficiency, though we owe the circuit court’s holding

no deference and the Rosehill Petitioners have the burden of

showing that the LUC order was arbitrary and capricious;

(3) the LUC could grant the County petition while denying the

situated; and (4) a farm dwelling in the agricultural district

cannot be used as a short-term vacation rental because that use

fails to accord with the purpose of the agricultural district.

Accordingly, we vacate the circuit court’s order and

judgment, and affirm the LUC’s declaratory order.

A. The Case Can be Transferred Nunc Pro Tunc to Accord with Hawai‘i Courts’ Longstanding Policy to Reach the Merits of a Case This court recently issued Honoipu, in which a party

appealed a declaratory order from the LUC. Its reasoning

applies with equal force here. There, the circuit court

reserved a question for this court: “Whether [the circuit court]

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has the inherent and statutory authority to transfer nunc pro

tunc an appeal, which was timely filed with [the circuit court],

to the Supreme Court of Hawai‘i as the court with appellate

jurisdiction.” 4 Honoipu, 154 Hawai͑i at 373, 550 P.3d at 1231

(brackets in original). The question was briefed by both

Honoipu (who was represented by the same lawyers as the Rosehill

Petitioners) and the LUC (who is party to this case). We

answered yes to the reserved question because “[a]llowing such a

transfer in these limited circumstances accords with our

longstanding policy to hear cases on the merits, and there is

both inherent and statutory power for the courts to do so.” Id.

at 374, 550 P.3d at 1232. The reasoning in Honoipu applies

here, as the circumstances are nearly the same. Honoipu

appealed a LUC declaratory order and that appeal was pending

before a circuit court when Kanahele was published. This case,

also an appeal of a LUC declaratory order, was pending before

the ICA when Kanahele was published.

In Honoipu, we held that:

There is both statutory and inherent power to transfer [the] case. . . . this court has the authority “to make and issue any order or writ necessary or appropriate in aid of its jurisdiction.” HRS § 602-5(a)(5)(2016). This court may also

4 “Nunc pro tunc translates to ‘now for then.’ Nunc pro tunc actions allow courts to remedy clerical issues, clear errors, and prevent manifest injustice.” Honoipu at 374 n.2, 550 P.3d at 1232 n.2 (citing Nunc Pro Tunc, Black’s Law Dictionary (11th ed. 2019)).

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make and award such judgments, decrees, orders and mandates, issue such executions and other processes, and do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given to it by law or for the promotion of justice in matters pending before it.

HRS § 602-5(a)(6) (emphasis added).

Article VI, section 1 of the Hawai‘i Constitution entrusts courts with the “judicial power of the State.” This court has interpreted the judicial power as inherently including “the power to administer justice.” Farmer[ v. Admin Dir. of Ct., State of Haw.], 94 Hawai‘i [232,] 241, 11 P.3d [457,] 466 [(2000)] (quoting State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 712 (1982)). Hawai‘i courts “have inherent equity, supervisory, and administrative powers as well as inherent power to control the litigation process before them. Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute.” State v. Harrison, 95 Hawai‘i 28, 32, 18 P.3d 890, 894 (2001) (quoting Kawamata Farms, Inc. v. United Agric. Prods., 86 Hawai‘i 214, 242, 948 P.2d 1055, 1083 (1997)). These powers include, but are not limited to, the power to “create a remedy for a wrong even in the absence of specific statutory remedies[,] . . . to prevent unfair results[,] . . . and to curb abuses and promote a fair process.”

[T]he power to “do such other acts and take such other steps as may be necessary to carry into full effect the power which are or shall be given to them by law or for the promotion of justice” gives the circuit court the power to correct a jurisdictional mistake that was no party’s or court’s fault. HRS § 603-21.9(6).

Honoipu, 154 Hawai͑i at 375-76, 550 P.3d at 1233-34.

This court further held that nunc pro tunc transfer

was appropriate to accord with “our longstanding policy to hear

cases on the merits.” Id. at 374, 550 P.3d at 1232. If nunc

pro tunc transfer was not deemed appropriate in Honoipu, the

appellant likely would have lost their right to appeal and their

day in court. Id. at 376-77, 550 P.3d at 1284-85. Similarly,

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here, unless the transfer is made nunc pro tunc to when the

Rosehill Petitioners filed their initial appeal, they will lose

their right to an appeal. The case is ripe for review now.

Thus, for the same reasons expressed in Honoipu, we

hold that this case can be transferred using this court’s

inherent and statutory powers and that the transfer is effective

nunc pro tunc to June 18, 2021, the date the Rosehill

Petitioners filed their initial appeal of the LUC declaratory

order.

B. This Court May Review the Entire Record on Appeal, Including the Circuit Court and ICA Proceedings, but the Circuit Court’s Ruling Holds No Weight

The LUC and County argue that we should only review

the agency record and disregard the circuit court and ICA

records entirely. They contend that if the Rosehill Petitioners

had properly brought the case under Kanahele’s ruling, “[t]he

record accompanying a direct appeal would have included only the

LUC’s record and Consolidated Order, not the record developed by

the circuit court or the ICA briefing.” Further, they contend

that because the circuit court lacked jurisdiction, that record

and references to that court’s decision will “taint the

arguments” on appeal. The LUC specifically argued that our

holding in Kanahele stated “that the proper record is the record

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from the LUC’s proceedings that resulted in the LUC’s

declaratory order — nothing less, and, importantly, nothing

more.” See Kanahele, 152 Hawai‘i at 511–12, 526 P.3d at 488–89

(citing HRS § 205-19) (“any contested case under this chapter

shall be appealed from a final decision and order or a

preliminary ruling that is of the nature defined by section

91-14(a) upon the record directly to the supreme court for final

decision.”).

For the sake of judicial efficiency, we may review the

briefing from both the ICA and the circuit court. If the

Rosehill Petitioners had properly brought their appeal to this

court under Kanahele’s holding, then we would have reviewed the

case in the same posture as the circuit court did here. The

circuit court acted as an appellate body in precisely the same

manner as this court does now.

The LUC and County do not contend that additional

evidence was introduced at the circuit court level that would

have affected that court’s review of the agency’s record below.

They want us to ignore the entire record from the lower courts

and dismiss the case. We decline to do so.

This court held in Kanahele that it may directly

review agency decisions on petitions for declaratory relief.

152 Hawai‘i at 511, 526 P.3d at 488. Prior to that holding,

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there was confusion among litigants as to the proper procedural

avenue. Some petitioners, like Kanahele, appealed directly to

this court. Others, such as the Rosehill Petitioners, appealed

their agency decision to the circuit court. Kanahele’s

jurisdictional rule aimed to align appeals of agency decisions

with the legislature’s intent in passing HRS § 205-19(a) (as

amended by Act 48) to provide for this court’s direct review of

contested cases and declaratory orders because they have the

“same status” under HRS §§ 91-8, 91-14 and 205-19. Id. at 512,

526 P.3d at 489.

While we may review the record from the lower court,

the circuit court’s findings of fact, conclusions of law, and

judgment hold no weight. We primarily consider the briefing by

the parties because those briefs set forth the parties'

positions on direct appeal from the LUC. We review the LUC

order de novo. See Kanahele, 152 Hawai͑i at 509-10, 526 P.3d at

486-87 (brackets omitted) (quoting Paul’s Elec. Serv., Inc. v.

Befitel, 104 Hawai͑i 412, 416, 91 P.3d 494, 498 (2004)).

Because the Rosehill Petitioners had the initial burden on

appeal to show that the LUC acted arbitrarily and capriciously,

they still have that burden now.

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C. The LUC Did Not Act Arbitrarily or Capriciously in Granting the County’s Declaratory Order While Denying the Rosehill Petition because the Two Parties Were Not Similarly Situated

The Rosehill Petitioners argue that the LUC acted

outside of its authority by denying their petition. They claim

that because both petitions were premised on the same facts, the

LUC acted arbitrarily and capriciously in denying one petition

and ruling on the other. We disagree. While the two petitions

were consolidated by the LUC for factfinding, the two parties

are not similarly situated. The County is required to construe

and enforce HRS chapter 205 through its own ordinances. By

presenting the LUC with a question of whether it had the

authority to enforce that code against landowners, the County

showed it was not dealing with a hypothetical or speculative

situation. The County needed to know if it could enforce HCC §

25-4-16 against landowners in violation of the ordinance. There

is nothing hypothetical or speculative about that situation.

The Rosehill Petitioners, on the other hand, did not

provide evidence in the record for the LUC to hold that they had

farm dwellings connected to agricultural use of the land. Their

counsel stated the following on the record: “As a matter of

candor, I have no idea how these particular properties are used.

I don’t know, because that doesn’t matter;” and “we talked about

this, the [County] Corp Counsel and I, we specifically discussed

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what facts should be presented to the Commission, whether it was

necessary to present issues related to any particular property

or any particular use, and we both agreed that it was not . . .

and that there was no need for any particular information about

any particular property because that’s not why we’re here.”

Determining whether the Rosehill Petitioners actually

had farm dwellings was the LUC’s obligation. The LUC found that

the Rosehill Petitioners “have not submitted a sufficient record

demonstrating that their use or intended use of their subject

properties are ‘farm dwellings’ or related to agriculture.” It

found that the Rosehill Petitioners showed only that they had

lots in the agricultural district created after June 4, 1976 and

that they had rented those lots for periods of less than thirty-

one days. The Rosehill Petitioners argue that the County

“admitted” that the Petitioners had farm dwellings, and that

admission should carry the day. The Rosehill Petitioners are

wrong. In the hearing that the Rosehill Petitioners refer to for

County’s “admission,” a deputy planning director for the County

said, “[the Rosehill lots] are all on ag property and parcels

that were created after June 4th, 1976, therefore, we consider

all of their dwelling units on their property to be farm

dwellings.” But that is not all it takes to be a farm dwelling.

A farm dwelling must also be “used in connection with a farm.”

For the LUC to find that the Rosehill lots were farm dwellings,

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the Rosehill Petitioners would have had to also show that their

dwellings were “used in connection with a farm.” It found that

they did not provide such evidence. If a representative from

the county used the wrong definition for a farm dwelling, there

is no reason for the LUC to credit her “admission” that the

Rosehill lots were farm dwellings.

The Rosehill Petitioners asked the highly-specific

question to the LUC: whether “the rental of farm dwellings for

Agricultural District as of June 4, 1976.” This attempt to

narrow the question while not showing “any particular

information about any particular property” fails to “involve an

existing situation or one which may reasonably be expected to

occur in the near future” required by HAR § 15-15-

100(a)(1)(A) (2013). Therefore, the LUC’s conclusion that the

Rosehill Petition was hypothetical was reasonable.

D. The LUC Did Not Act Arbitrarily or Capriciously in Holding that Farm Dwellings in the Agricultural District Cannot Be Used as Short-Term Vacation Rentals

The central merits issue of this appeal is whether

farm dwellings in the agricultural district can be used as

short-term vacation rentals under HRS chapter 205. We hold that

they cannot.

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1. HRS § 205-4.5 is ambiguous as to short-term vacation rentals

The Rosehill Petitioners contend that the text of

HRS chapter 205 controls and is unambiguous. They argue that

because HRS § 205-4.5(a)(4) does not mention how long farm

dwellings need to be rented for, and because the County

Ordinance defines short-term vacation rentals in part as being

rented for thirty days or fewer, farm dwellings may be used as

short-term vacation rentals. That narrow view of the statute,

which would allow for the subversion of the purpose of

HRS chapter 205, cannot stand.

In interpreting statutes, we start with the statute’s

language. If there is ambiguity, we look to the intent of the

legislature. See Citizens Against Reckless Dev., 114 Hawai‘i

184, 194, 159 P.3d 143, 153 (2007) (quoting Peterson v. Haw.

Elec. Light Co., 85 Hawai‘i 322, 327-28, 944 P.2d 1265, 1270- 71

(1997)).

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HRS § 205-4.5 5 states: 205-4.5 Permissible uses within the agricultural districts. (a) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B and for solar energy facilities, class B or C, shall be restricted to the following permitted uses:

. . .

(4) Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry. “Farm dwelling”, as used in this paragraph, means a single- family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling.

By the statute’s text, there appear to be two types of

single-family dwellings that qualify as farm dwellings: the

first is a single-family dwelling located on and used in

connection with a farm. The second is one in which agricultural

activity provides income to a resident or family occupying the

dwelling.

There is ambiguity in the first type of farm dwelling

as to what “in connection with” a farm means. In the past, this

5 In 2021, the legislature amended “used in connection with” to “accessory to” following a State Office of Planning “Study of Subdivision and [Condominium Property Regime] on Agricultural Lands on Oahu” in 2021. 2021 Haw. Sess. Laws Act 77, §§ 1-2 at 247-48. The Office of Planning recommended the change after it found that there was a “proliferation of dwellings in the agricultural district without any significant farm component.” Off. of Planning, State of Haw., Act 278 Study of Subdivision and CPR on Agricultural Lands on Oahu, at 17 (Dec. 29, 2020) https://files.hawaii.gov/dbedt/op/lud/20201221%20Act%20278%20SLH%202019%20Pro ject/Act278FinalReporttoLeg20201230.pdf [https://perma.cc/59QG-5L7P]. The shift from “used in connection with” to “accessory to” supports our analysis. If anything, it confirms that farm dwellings are not, and were never intended to be, properly used as short-term vacation rentals.

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court has interpreted “in connection with” to mean “related to,”

“linked to,” or “associated with.” See Laeroc Waikiki Parkside,

LLC v. K.S.K. (Oahu) Ltd. P’ship, 115 Hawai‘i 201, 225, 166 P.3d

961, 985 (2007). But that definition does not shed more light

on what the relationship between the single-family dwelling and

the farm must be. It might mean that a farmer tenant has a

long-term lease to grow a particular crop, and that tenant lives

in the single-family dwelling. The dwelling is “linked to” the

farm in that it houses the person that farms there. Or it might

also mean that a visitor to the County of Hawai‘i stays at a

single-family dwelling on a farm that operates as a short-term

vacation rental. “Reasonably well-informed persons” can

understand the statute “in two or more different senses.”

Sutherland Statutory Construction § 45:2 (7th ed.). Thus, the

statute has some ambiguity.

The fact that HRS chapter 205 does not require a

minimum rental period for farm dwellings does not mean that they

can be short-term vacation rentals. Rather, the text prohibits

“uses not expressly permitted.” HRS § 205-4.5(b). And “it is

‘generally presumed that the legislature acts intentionally and

purposely in the disparate inclusion or exclusion’ of terms in

its statutes.” Matter of Gas Co., LLC, 147 Hawai‘i 186, 200, 465

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P.3d 633, 647 (2020) (quoting State v. Savitz, 97 Hawai‘i 440,

447, 39 P.3d 567, 574 (2002) (holding that the legislature could

have drafted a statute to include a limitation on the court’s

discretion and noting that “[t]he fact that it did not do so

manifests its intent that it chose not to do so”). Expressio

unius est exclusio alterius principles apply here. 6 The 1976

legislature could have accounted for some type of transient

vacation accommodation in its extensive list of permitted uses.

But it did not.

Of the twenty-four expressly permitted uses under

HRS § 205-4.5, of which farm dwellings are but one, none of them

resemble anything close to the type of transient accommodation

that a short-term vacation rental is. A somewhat comparable use

is “agricultural tourism,” which was not added until later and

is only permissible in Maui County. 2012 Haw. Sess. Laws Act

329, § 2 at 1113. Overnight camps, another somewhat close use,

are explicitly prohibited. HRS § 205-4.5(a)(6); see Ho‘omoana

Found. v. Land Use Comm’n, 152 Hawai‘i 337, 526 P.3d 314 (2023)

(holding that prohibited uses in the agricultural district

cannot be permitted via special use permits).

6 Expressio unius est exclusio alterius means “the expression of one thing is the exclusion of the other.” Expressio unius is “a canon of construction holding that to express or include one thing implies the exclusion of the other.” Expressio unius est exclusio alterius, Black’s Law Dictionary (12th ed. 2024).

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The LUC argued that “if farm dwellings could be used

for transient accommodations the Legislature would not have

needed to add a provision expressly permitting agricultural

tourism in HRS Chapter 205.” While “the views of a subsequent

[legislature] form a hazardous basis for inferring the intent of

an earlier one,” the more recent statutory language can provide

some context for the scope of HRS chapter 205 from 1976. United

States v. Price, 361 U.S. 304, 313 (1960). It can tell us what

the subsequent legislature thought was permissible and what was

not. See Keliipuleole v. Wilson, 85 Hawai‘i 217, 225, 941 P.2d

300, 308 (1997) (“a court may look to ‘subsequent legislative

history or amendments to confirm its interpretation of an

earlier statutory provision.’”) (quoting Franks v. City & Cnty.

of Honolulu, 74 Haw. 328, 340 n.6, 843 P.2d 668, 674 n.6

(1993)); see also Cnty. of Hawai‘i v. Ala Loop Homeowners, 123

Hawai‘i 391, 415, 235 P.3d 1103, 1127 (2010) (holding that a

report from a subsequent legislature “is not dispositive in our

analysis since it cannot change the meaning of article XI,

section 9 as approved by the voters in 1978, and since it sets

forth the views only of the joint committee, rather than the

legislature as a whole. Nevertheless, it is relevant to the

extent that it provides an explanation for the non-action of the

legislature, which is the body that would be charged with

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enacting legislation to implement the provision if it was not

self-executing.”) (emphasis added).

Both parties cite to Curtis. There, this court wrote

that because land use statutes are in derogation of the common

law, their provisions must be strictly construed. But because

the court determined that the term “utility lines” in HRS § 205-

4.5(a)(7) was ambiguous, it looked to the purpose of the

statute. We therefore do the same.

2. The purpose of HRS § 205-4.5 is to restrict the use of specific land to agricultural purposes, and short-term vacation rentals undermine that purpose

Because the meaning of “farm dwelling” is ambiguous,

we undertake our “obligation to ascertain and give effect to the

intention of the legislature.” Castillon, 144 Hawai‘i at 411,

443 P.3d at 103 (quoting Panado, 134 Hawai‘i at 10, 332 P.3d at

153). While we primarily look at the statute’s text, in some

situations “an examination of the debates, proceedings and

committee reports is useful.” Nelson v. Hawaiian Homes Comm’n,

127 Hawai‘i 185, 198, 277 P.3d 279, 292 (2012). As discussed

supra, the text of HRS § 205-4.5 and HRS chapter 205 more

broadly cut against the use of transient short-term vacation

rentals in agricultural districts. The text specifically

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excludes any unenumerated use, 7 and the requirement that the farm

dwelling be “used in connection with a farm” also cuts against

transient rental uses. See HRS § 205-4.5(a)(4).

When creating the LUC in 1961, the legislature wrote

that,

[i]nadequate controls have caused many of Hawai͑i’s limited and valuable lands to be used for purposes that may have a short-term gain to a few but result in a long-term loss to the income and growth potential of our economy. . . . Scattered subdivisions with expensive, yet reduced, public services; the shifting of prime agricultural lands into nonrevenue producing residential uses when other lands are available that could serve adequately the urban needs . . . these are evidences of the need for public concern and action.

1961 Haw. Sess. Laws Act 187, § 1 at 299.

A standing committee report described the purpose of

the bill proposing the LUC to be, in part, “to protect and

conserve through zoning the urban, agricultural, and

conservation lands within all the counties. A coordinated,

balance[d] approach . . . is essential in order to . . .

[c]onserve forests, water resources and land, particularly to

preserve the prime agricultural lands from unnecessary

urbanization.” H. Stand. Comm. Rep. No. 395, in 1961 House

Journal at 855 (emphasis added).

7 HRS § 205-4.5(b) reads, in part: “Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in sections 205-6 and 205-8, and construction of single-family dwellings on lots existing before June 4, 1976.”

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Fifteen years later, seeking to protect agricultural

lands from increasing urbanization, the legislature found that,

[a]fter careful consideration, your Committee finds there is a danger that agricultural subdivisions may be approved by the counties, and thus, put agricultural lands to uses other than for an agricultural pursuit. Inasmuch as the purpose of the agricultural district classification is to restrict the uses of the land to agricultural purposes, the purpose could be frustrated in the development of urban type residential communities in the guise of agricultural subdivisions.

To avoid possible abuse within the agricultural district, this bill more clearly defines the uses permissible within the agricultural district. Except for those uses permitted under special use permits in Section 205-6 and those non-conforming uses permitted in Section 205-8, uses not specifically permitted by this bill shall be prohibited. This bill further provides that the restrictions on uses and the condition that the uses shall be primarily in pursuit of an agricultural activity shall be expressly contained in the instruments of conveyance and shall be encumbrances running with the land.

[T]his bill is not intended to change the existing permitted uses on lands within the agricultural district . . . . Rather, the intent of this bill is to give additional protection to those lands within the agricultural district . . . .

Conf. Comm. Rep. No. 6, in 1976 House Journal, at 1095 (first

emphasis added, second emphasis in original).

The definition of “farm dwelling” was codified by

House Bill 3262-76. Remarks from the chair of the House

Committee on Water, Land Use Development, and Hawaiian Homes add

more color to the findings and purpose of the bill:

We, in Hawai‘i, have always been proud of our Land Use Law and its effectiveness in regulating land use activities in the State. The economic importance of agriculture, the imminent pressures of land development, and the prospect of urban sprawl were factors behind the establishment of land use laws. In fact, when the Legislature enacted Chapter 205, it declared that ‘inadequate controls have caused many

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of Hawai‘i’s limited and valuable lands to be used for purposes that may have a short-term gain for a few, but would result in long-term losses to the income and growth potential of our economy.’

As part of our land use regulation scheme, we established land use classifications, among which is the agricultural district. Within an agricultural district, we define certain permitted uses. These uses include growing of crops, raising livestock, grazing, farm buildings, public buildings necessary for agricultural practices, utility lines, some open-type recreation, and other uses necessary for conducting agricultural activities.

The administration of permitted uses within agricultural districts was left to the counties which, by ordinance, could set more restrictive regulations if they so desired.

Mr. Speaker, we have laws, we have regulations and we have county ordinances which govern the uses of agricultural lands. But, today, we have agricultural subdivisions within agricultural districts which can only be viewed as a subterfuge of the spirit and intent of our land use laws.

What has been happening, Mr. Speaker, is that landowners have found it difficult to get land reclassified from agriculture to urban. Therefore, they have taken advantage of county zoning provisions and, under the pretext of agricultural subdivisions, have been subdividing prime agricultural lands into two-acre sites for residential purposes.

In practice, these agricultural subdivisions are not only circumventing county zoning provisions but are being offered at prices very few can afford and becoming, in fact, agricultural estates.

House Bill 3262-76, House Draft 2, amends the land use law by listing permissible uses of Class A and B lands within agricultural districts. Further, the bill specifically states that no subdivision of Class A or B lands within an agricultural district shall be approved by a county unless the land within the subdivision is subject to the use restrictions in the law and only on the condition that the use shall be primarily in pursuit of agricultural activity. The bill provides for county regulation of uses for Class C, D and E lands.

The bill further requires that any deed, lease, agreement of sale, mortgage or any instrument of conveyance on land located within an agricultural subdivision shall expressly contain a restriction on use, and that such

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restriction shall provide that the use will be primarily agricultural in nature. This condition on any instrument of conveyance shall remain with the land until it is reclassified for another use.

1976 House Journal at 532-33 (Statement of Representative

Richard Kawakami, Chairman, H. Comm. on Water, Land Use Dev. &

Hawaiian Homes) (emphases added).

While only some of the issues motivating the passage

of House Bill 3262-76 are relevant here, it is clear that the

general intent of the legislature was to protect land in the

agriculture district from being used for non-agricultural

purposes.

There is no indication either in the statute’s text or

its legislative history that the legislature intended to allow

for farm dwellings to be used as short-term vacation rentals

untethered from agricultural purposes. Rather, transient

accommodations are antithetical to the legislature’s intent. In

Curtis, this court held that there was ambiguity in whether

cellphone towers were “utility lines” or “communications

equipment buildings” under HRS § 205-4.5(a)(7). 90 Hawai‘i at

395-96, 978 P.2d at 833-34. We therefore looked “to the ‘reason

and spirit’ of state land use law to determine whether a

cellular phone tower falls within what the legislature

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contemplated as utility lines.” Id. at 396, 978 P.2d at 834

(quoting HRS § 1-15(2)). This court wrote:

In sum, the overarching purpose of the state land use law is to “protect and conserve” natural resources and foster “intelligent,” “effective,” and “orderly” land allocation and development. See 1961 Haw. Sess. L. Act 187, § 1 at 299 (“[I]n order to preserve, protect and encourage the development of the lands in the State for those uses to which they are best suited for the public welfare ..., the power to zone should be exercised by the State.”). See also Pearl Ridge Estates Community Ass’n v. Lear Siegler, Inc., 65 Haw. 133, 144 n. 9, 648 P.2d 702, 709 n. 9 (Nakamura, J., concurring) (“Thus, conservation lands must be reserved if practicable, agricultural lands should be protected, and urban lands should be developed in orderly fashion.”).

Id.

This court therefore held that “wholesale inclusion of

cellular telephone towers in agricultural districts as ‘utility

lines’ under HRS § 205-4.5(a)(7) unreasonably expands the

intended scope of this term and frustrates the state land use

law’s basic objectives of protection and rational development.”

Id. (emphasis added). Including short-term vacation rentals in

the definition of “farm dwellings” would similarly unreasonably

expand the intended scope of the term and frustrate the state

land use law’s basic objectives of protection and rational

development.

A farm dwelling must be a “single-family dwelling

located on and used in connection with a farm,” or “where

agricultural activity provides income to the family occupying

the dwelling.” HRS § 205-4.5(a)(4). In other words, it must be

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used in connection with agricultural activities. The use of a

dwelling as a short-term vacation rental is not connected to

agricultural activities.

3. This court defers to the LUC’s interpretation of an ambiguous statute unless it is plainly erroneous or inconsistent with the underlying legislative purpose

When there is ambiguous statutory language, “the

applicable standard of review regarding an agency’s

interpretation of its own governing statute requires this court

to defer to the agency’s expertise and to follow the agency’s

construction of the statute unless that construction is palpably

erroneous.” Pofolk Aviation Haw., Inc. v. Dep’t of Transp., 136

Hawai‘i 1, 5-6, 354 P.3d 436, 440-41 (2015) (quoting Gillan v.

Gov’t Emps. Ins. Co., 119 Hawai‘i 109, 114, 194 P.3d 1071, 1076

(2008)). Of course, the “court must still independently analyze

the ambiguous statute to determine whether the agency's

interpretation is palpably erroneous.” Id. at 7, 354 P.3d at

442 (citing Chun v. Emps. Retirement Sys., 61 Haw. 596, 600-02,

607 P.2d 415, 419 (1980). Palpable error can occur when the

agency’s interpretation is “inconsistent with the underlying

legislative purpose.” Dist. Council 50, of Int’l Union of

Painters & Allied Trades v. Lopez, 129 Hawai‘i 281, 287, 298 P.3d

1045, 1051 (2013) (quoting Haw. Teamsters & Allied Workers v.

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Dep’t of Labor & Indus. Rels., 110 Hawai‘i 259, 265, 132 P.3d

368, 374). This deference to the agency “‘reflects a

sensitivity to the proper roles of the political and judicial

branches,’ insofar as ‘the resolution of ambiguity in a

statutory text is often more a question of policy than law.’”

Gillan, 119 Hawai‘i at 118, 194 P.3d at 1080 (quoting In re Water

Use Permit Applications, 94 Hawai‘i 97, 145, 9 P.3d 409, 457

(2000)).

As discussed supra, the text of HRS § 205-4.5 is

ambiguous as to whether a farm dwelling can be used as a short-

term vacation rental. Here, the LUC’s interpretation of

HRS § 205-4.5 was not palpably erroneous and was consistent with

the underlying legislative purpose of the statute. The LUC

correctly concluded that the State and the County have

concurrent jurisdiction over land in the agricultural district,

and, quoting this court’s decision in Save Sunset Beach, 102

Hawai‘i at 482, 78 P.3d at 18, “only a more restricted use as

between [the county zoning and State Land Use law] is

authorized.” The LUC ruled that unless a dwelling is in fact

used in connection with a farm, it is not a farm dwelling; that

a short-term vacation rental is a use antithetical to farm

dwelling usage; and that therefore a farm dwelling may not be

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used as a short-term vacation rental. Therefore, it determined

that the County ordinance was enforceable.

The LUC Order conforms with HRS § 205-4.5, resolving

the ambiguity in a manner that is consistent with the underlying

legislative purpose. The underlying purpose, discussed supra

Section IV(D)(2), is to protect land in the agriculture district

from being used for non-agricultural purposes. The LUC Order

concluded that farm dwellings cannot be used as short-term

vacation rentals, protecting land in the agriculture district

from what it found to be non-agricultural use. This decision

accords with the legislative purpose of the statute discussed

above, and we therefore affirm.

We note that Hawai‘i's approach to administrative

deference now differs sharply from federal precedent. These

days, the United States Supreme Court seems determined to ensure

that “settled law easily unsettles.” City & Cnty. of Honolulu

v. Sunoco LP, 153 Hawai‘i 326, 361, 537 P.3d 1173, 1208 (2023)

(Eddins, J., concurring). Recently, the court toppled forty

years of precedent that shaped the ”warp and woof of modern

government.” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,

2294 (2024) (Kagan, J., dissenting). The court overruled

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837 (1984), which molded administrative law doctrine. Under

Chevron, the reviewing court would, upon close inspection, ask 40 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

if Congress had “directly spoken to the precise question at

issue.” Id. at 842. If it had, “that is the end of the matter;

for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-43. If

the statute was silent or ambiguous as to the question at hand,

the court would defer to the administrative agency’s reasonable

interpretation of the statute. Id. at 844.

Chevron’s well-reasoned analysis allowed agencies to

function in a modern nation using older statutes — statutes

that, at the time they were written, could not possibly account

for the many nuanced situations that arise in a rapidly changing

world. Justice Kagan’s dissent in Loper Bright cites to

paradigmatic examples of agency deference. See Loper Bright,

144 S. Ct. at 2296-97. Chevron made for good, balanced

governance, whereby Congress made laws while agencies, subject

to accountability from a duly-elected President, implemented

those laws and reasonably filled in the gaps. As is often the

case, policy implementation requires substantial know-how.

Under Chevron, agencies had the ability to allow experts to,

within reason, make the rules.

Now, the U.S. Supreme Court considers itself and other

federal courts the experts on exceedingly complicated areas of

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American life, including worker safety, 8 air quality, 9 food and

drug safety, 10 airplane safety, 11 telecommunications, 12 and the

integrity of our financial markets. 13 We do not believe the

expertise of courts outstrips that of the agencies charged with

implementing complex regulatory schemes on a day-to-day basis. 14

In Hawai‘i, we defer to those agencies with the na‘auao

(knowledge/wisdom) on particular subject matters to get complex

issues right. “Ku‘ia ka hele a ka na‘au ha‘aha‘a (hesitant walks

the humble hearted).” Sunoco, 153 Hawai‘i at 363, 537 P.3d at

1210 (2023) (Eddins, J., concurring). A court’s domain is the

law, and judges should recognize the limits of their expertise.

4. The County ordinance is a valid legislative act accorded deference

When the County passed Ordinance 18-114, amending

Chapter 25 of the HCC, it required that existing short-term

8 See, e.g., Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991).

9 See, e.g., EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (2014).

10 See, e.g., Teva Pharmaceuticals USA, Inc. v. FDA, 514 F. Supp. 3d 66 (D.D.C. 2020)

11 See, e.g., Newton v. F.A.A., 457 F.3d 1133 (10th Cir. 2006).

12 See, e.g., City of Arlington v. F.C.C., 569 U.S. 290 (2013).

13 See, e.g., U.S. v. O’Hagan, 521 U.S. 642 (1997).

14 E.g., Ohio v. EPA, 144 S. Ct. 2040, 2049 (2024) (In Court’s initial opinion, pausing EPA’s plan to bring several states into compliance with ozone pollution-control requirements, confusing “nitrogen oxides,” a group of gases that the EPA is targeting to stem air pollution, with “nitrous oxide,” commonly known as laughing gas).

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vacation rentals obtain nonconforming use certificates.

HCC §§ 25-1-5; HCC § 25-4-16.1(a), (e). The scheme generally

prohibited the issuance of nonconforming use certificates in the

agricultural district — only single-family dwellings on lots

existing before June 4, 1976 could obtain a certificate. HCC

§ 25-4-16.1(e). 15 This court held in Save Sunset Beach that a

zoning ordinance passed by the County of Honolulu was a

legislative act and is subject to the deference given

legislative acts. 102 Hawai‘i at 474, 78 P.3d at 10.

We also held in Save Sunset Beach that “only a more

restricted use as between [the County zoning and the State Land

Use law] is authorized.” 102 Hawai‘i at 482, 78 P.3d at 18. The

State adopted a dual land use designation approach,

“envision[ing] that the counties would enact zoning ordinances

that were somewhat different from, but not inconsistent with,

the statutes.” Id. Here, the ordinance is more restrictive

than HRS § 205-4.5 in that it defines short-term vacation

rentals and the County will not issue nonconforming use

certificates unless lots were existing before June 4, 1976.

When read in conjunction with HRS § 205-4.5(b)’s mandate that

15 The County defines a short-term vacation rental as “a dwelling unit of which the owner or operator does not reside on the building site, that has no more than five bedrooms for rent on the building site, and is rented for a period of thirty consecutive days or less.” HCC § 25-1-5.

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uses are prohibited unless expressly authorized, the County

ordinance is “different from, but not inconsistent with” the

state statute.

The Rosehill Petitioners argue that because HRS § 205-

4.5(a)(4) does not mention a minimum rental period, it allows

for their less-than-30-day rentals. But that conclusion ignores

the Sunset Beach holding that allows counties to make more

restrictive zoning rules than the state, so long as those rules

are consistent with the purpose of state zoning. Here, the

County’s ordinance is consistent with state zoning.

V. CONCLUSION

For the reasons stated above, we hold that (1) this

case’s transfer is nunc pro tunc to June 18, 2021; (2) the

Rosehill Petitioners have failed to show that the LUC acted

arbitrarily or capriciously in granting the County’s petition

while denying the Rosehill Petition; and (3) farm dwellings may

not be used as short-term vacation rentals under HRS chapter

205.

Because it lacked jurisdiction, we (1) vacate the

circuit court’s May 2, 2022 “Findings of Fact, Conclusions of

Law, Decision and Order Reversing the State of Hawai‘i Land Use

Commission’s Consolidated Declaratory Order”; and (2) vacate the

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circuit court’s May 2, 2022 Judgment. On the merits, we affirm

the LUC’s May 20, 2021 declaratory order.

Calvert G. Chipchase /s/ Mark E. Recktenwald Christopher T. Goodin (Roy A. Vitousek III and /s/ Sabrina S. McKenna Katherine E. Bruce, on the briefs) /s/ Todd W. Eddins for appellants-appellees /s/ Lisa M. Ginoza Douglas S. Chin Christine N. Ohira /s/ Jeannette H. Castagnetti Eric S. Robinson Cori J. Terayama (Julie H. China, on the briefs) for appellee-appellant

Mark D. Disher (Jean Campbell and Lerisa L. Heroldt, on the briefs) for appellee-appellee

Brad T. Saito, on the briefs for amicus curiae