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

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Case 1:22-cv-00247-DKW-RT Document 85 Filed 12/21/23 Page 12 of 28 PagelD.3072 Ferris Trust v. Planning Comm 'n of County of Kaua`i, 378 P.3d 1023, 1028-30 (Haw. Ct. App. 2016) (construing a new county zoning ordinance in accordance with HRS § 464(a) to protect prior lawful operators of short-term rentals as nonconforming uses). Nor is there any ambiguity that Ordinance 22-7—which does precisely that—directly conflicts with this provision. See Dkt. No. 31 at 13- 21. Second, regardless of the City's contention that "[b]ecause of the localized and complex nature of land-use regulations, [the Ninth Circuit] generally requires only a minimal showing of [Pullman] uncertainty in land-use cases," Gearing v. City of Half Moon Bay, 54 F.4th 1144, 1151 (9th Cir. 2022) (citation omitted), that minimal uncertainty, for the same reasons, simply does not exist here. Undeterred, the City now attempts to argue that the proper resolution of this state law claim is uncertain because Ordinance 22-7 may not constitute a zoning ordinance at all, but rather a rent control ordinance which is not subject to HRS § 46-4(a)'s limits on eliminating prior lawful uses. See Dkt. No. 72 at 4-13. Specifically, the City asserts that the Court should abstain because "there is no definitive ruling by the State courts on whether: (a) the ability to rent property for 30-90 days is a `land use' that must be allowed to continue as a `non-conforming use' or (b) the City may impose a minimum rental duration on dwelling units pursuant to its power to `regulate the renting, subletting, and rental conditions of property for places of abode' pursuant to HRS § 46-1.5(20) without violating HRS - 12 -