2024-04-02 PL-CCI-2024-000003 Bill 121 Claudia Rohr Testimony

Home

Case 1:22-cv-00247-DKW-RT Document 85 Filed 12/21/23 Page 21 of 28 PagelD.3081 for purposes of ordinary repairs for a period not exceeding 120 days during any 12-month period will not be considered a discontinuation. The City argues, inter alia, that "ROH § 21-4.110(c)(2) makes Ord. 22-7 consistent with HRS § 46-4(a) by applying the law of `discontinuance' rather than `amortization' or `phase out' to 30-89 day rentals." Dkt. No. 72 at 21. Unlike amortization, discontinuance is not prohibited by HRS § 46-4(a). Id. at 20-21; see League to Save Lake Tahoe v. Crystal Enters., 685 F.2d 1142, 1146 (9th Cir. 1982) (outlining the different ways in which a nonconforming use may terminate). Notably, this argument is inconsistent with the City's ongoing representations, including after the Court issued the preliminary injunction, that Ordinance 22-7 applies to prohibit all rentals of fewer than 90 days, regardless of whether they were in operation prior to the Ordinance's effective date. See Dkt. No. 60 at 20-21; Dkt. No. 61-7 (supporting House Bill 109 which sought to amend HRS § 46-4(a) to permit counties to adopt zoning regulations eliminating or amortizing residential land uses); Dkt. No. 61-8 (supporting Senate Bill 219 re: the same). More importantly, however, it is facially implausible. Not only is Ordinance 22-7 silent on nonconforming uses, discontinuance, or the applicability of ROH § 21-4.110, it explicitly requires that all 30-89 day rental uses be phased out or amortized within 180 days of the Ordinance's effective date. See Ord. 22-7 at 38. Accordingly, ROH § 21-4.110 is largely irrelevant. As Ordinance 22-7 relies on amortization to eliminate all 30-89 day rentals, it violates HRS § 46-4(a). - 21 -