HomeMy WebLinkAbout2024-04-02 PL-CCI-2024-000003 Bill 121 Claudia Rohr Testimony From: Claudia Rohr
To: WPCtestimonv
Subject: Testimony in Opposition to Bill 121 for an Ordinance amending the Zoning Code
Date: Tuesday,April 2,2024 11:06:10 AM
Attachments: Order Granting MSJ Alliance of Short Term Vacation Rentals.odf
Aloha Chair and Planning Commissioners-
oppose Bill 121, for an ordinance amending the Zoning Code not only on the merits
but because it is preempted by HRS § 46-4(a):
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; provided
that a zoning ordinance may provide for elimination of nonconforming uses as the
uses are discontinued, or for the amortization or phasing out of nonconforming
uses or signs over a reasonable period of time in commercial, industrial, resort,
and apartment zoned areas only.In no event shall such amortization or phasing
out of nonconforming uses apply to any existing building or premises used for
residential(single-family or duplex) or agricultural uses.
This Bill will bring on an onslaught of lawsuits. See attached 2023 Order in HAWAII
LEGAL SHORT-TERHRENTAL ALLIANCE v. Cty and County of Honolulu. US District
Court of Hawaii, Case No. 22-cv-00247-DKW-RT
The time is not ripe to sunset existing, registered non hosted TARs in residential and
agricultural districts. Bill 121 must be amended to allow for continued yearly registration for
existing, registered non hosted TARs.
Moreover, Bill 121 has a disparate impact on underserved communities without hotels and
unfairly concentrates the benefits of the tourist economy in communities (and council districts)
with the greatest number of hotels. This Bill treats all communities the same but with
disparate impact.
Please pass Bill 121 forward with an unfavorable recommendation. Bill 121 is not a good
starting point for discussion.
Thank you for your time and service.
Claudia Rohr, 21-year owner/operator of At the Beach with Friends Bed and Breakfast
369 Nene St., Hilo, Hawaii
Case 1:22-cv-00247-DKW-RT Document 85 Filed 12/21/23 Page 1 of 28 PagelD.3061
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
HAWAII LEGAL SHORT-TERM Case No. 22-cv-00247-DKW-RT
RENTAL ALLIANCE,
ORDER (1) GRANTING IN PART
Plaintiff, AND DENYING IN PART
PLAINTIFF'S MOTION FOR
vs. SUMMARY JUDGMENT; AND
(2) DENYING AS MOOT
CITY AND COUNTY OF HONOLULU, DEFENDANTS' MOTIONS FOR
et al., SUMMARY JUDGMENT
Defendants.
Plaintiff Hawaii Legal Short-Term Rental Alliance ("HILSTRA")i moves for
summary judgment and for permanent injunctive relief in this case challenging
Honolulu's Ordinance 22-7. Ordinance 22-7 increases the minimum permissible
rental period for residential properties on Oahu from 30 days to 90 days, with no
provision, beyond a six-month phase out period, to accommodate existing 30 to 89
day rentals. Dkt. No. 60. HILSTRA seeks an order: (1) finding that Ordinance 22-
7 is preempted by Hawaii Revised Statutes ("HRS") § 46-4(a); and (2) invalidating
Ordinance 22-7, or, in the alternative, permanently enjoining Defendants City and
iHII,STRA is a nonprofit corporation with the mission of promoting a sustainable business
environment for legal property rentals across the state of Hawaii. Complaint at¶ 9, Dkt. No. 1.
Its members include property managers and owners who,prior to the effective date of Ordinance
22-7,participated in advertising and renting residential properties on Oahu for periods of at least
30 days. Id.
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County of Honolulu ("the City"), the Department of Planning and Permitting
("DPP") and Dawn Takeuchi in her official capacity as Director of the
DPP3 from enforcing or implementing Ordinance 22-7 insofar as it prohibits 30-89
home rentals, or the advertisement of the same, in any district on Oahu. Id. at 3.
Having reviewed the parties' briefs, statements of fact, and the record
generally, the Court finds that HILSTRA is entitled to summary judgment.
Specifically, as the City has not pointed to any intervening changes in the facts or
law that would alter the bases for this Court's October 2022 grant of a preliminary
injunction, the Court finds that Ordinance 22-7 is preempted by HRS § 46-4(a).
Accordingly, as further explained below, the Court GRANTS HILSTRA's motion
for summary judgment on Count I and permanently enjoins enforcement of
Ordinance 22-7 insofar as it prohibits 30-89 day home rentals, or the advertisement
of such rentals, in any district on Oahu. Further, as HILSTRA acknowledges that
a favorable ruling on Count I will obviate the need for ruling on Counts II—X, those
claims are DISMISSED. Defendants' Motions for Summary Judgment, Dkt. Nos.
62, 64, and 66, which relate to several of these dismissed claims, are therefore
DENIED AS MOOT.
2The DPP is the agency charged with developing and enforcing zoning restrictions on Oahu.
Complaint at¶ 16.
3Dean Uchida was originally named as a defendant in this case in his official capacity as Director
of the DPP. Pursuant to Federal Rule of Civil Procedure 25(d), following Uchida's resignation
and Takeuchi-Apuna's appointment as his replacement in September 2022, the latter was
substituted for the former as a defendant in this case. See Dkt. No. 31 at 1 n.1.
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FACTUAL & PROCEDURAL BACKGROUND4
The parties have stipulated to the facts as set forth herein. Stip. Facts, Dkt.
No. 59; see United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976) ("[w]hen
parties have entered into stipulations as to material facts, those facts will be
deemed to have been conclusively established.").
In 1957, the Hawaii Legislature enacted the Zoning Enabling Act, HRS
§ 464(a), endowing the counties with the authority to promulgate zoning
ordinances. Save Sunset Beach Coal. v. City & Cnty. of Honolulu, 78 P.3d 1, 17
(Haw. 2003); see Stip. Facts at ¶ 41. As relevant here, HRS § 464(a) permits
counties to enact zoning ordinances as "necessary and proper to permit and
encourage the orderly development of land resources within their jurisdictions,"
provided that:
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;
provided that a zoning ordinance may provide for elimination of
nonconforming uses as the uses are discontinued, or for the amortization or
phasing out of nonconforming uses or signs over a reasonable period of time
in commercial, industrial, resort, and apartment zoned areas only. In no
event shall such amortization or phasing out of nonconforming uses apply to
any existing building or premises used for residential (single-family or
duplex) or agricultural uses.
4The factual and procedural background set forth herein is condensed as relevant to the instant
Motions. A more detailed version is set forth in this Court's Order Granting Plaintiff's Motion
for a Preliminary Injunction. See Dkt. No. 31 at 3-11.
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HRS § 464(a); Stip. Facts at ¶ 42.
On January 2, 1969, pursuant to its authority under HRS § 46-4, the City
enacted its first Comprehensive Zoning Code ("CZC"), dividing Oahu into several
different zoning districts, including apartment, agricultural, business, industrial,
preservation, residential, and resort. Stip. Facts at ¶ 47-48; Dkt. No. 24-4. In
1980, the Hawaii state legislature adopted HRS § 514E, directing the counties to
amend their zoning ordinances to limit the location of transient vacation rentals
defined as "rentals in a multi-unit building . . . with the duration of occupancy less
than thirty days for the transient occupant." Stip. Facts at ¶ 52; HRS § 514E. In
response, throughout the 1980s, the City enacted a series of land use ordinances
("LUOs")s restricting home rentals of fewer than thirty days to the Resort District
and Resort-Hotel Precinct in Waikiki. Stip. Facts at¶¶ 53-59. These LUOs
provided, however, that property owners who were already renting their homes out
for fewer than thirty days could continue to do so upon obtaining a nonconforming
use certificate ("NUC").6 Id. at ¶ 60. Accordingly as the City has repeatedly
acknowledged—it was legal in any Oahu zoning district to rent homes for thirty
days or longer.7 See id. ¶¶ 61-68.
5These LUOs replaced the CZC. Stip. Facts at¶ 54.
6Approximately 800 NUCs currently exist on Oahu. Stip. Facts at¶ 60.
7For example, in 2016, the City signed a settlement agreement in Kokua Coal. v. Dep't of
Planning& Permitting, Civil No. 1:16-cv-003 87-DKW-RLP ("Kokua P'), which provided, inter
alia, "[a]s currently worded, the Land Use Ordinance prohibits providing all or a portion of a
residential dwelling unit for less than thirty (30) consecutive calendar days for compensation.
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On April 26, 2022, the City enacted Ordinance 22-7. Stip. Facts at ¶ 84.
Taking effect on October 23, 2022, Ordinance 22-7 principally amended the City's
Land Use Ordinance to increase the minimum rental period for a non-Resort
property from 30 to 90 days—in effect, outlawing rentals of 89 days or less. Id. at
¶¶ 86, 93, 95. The Ordinance further barred advertisement of the same insofar as
such advertisements reflect daily or less than three-month rental rates. Id. at¶¶ 95,
97-102. There are limited exceptions to the Ordinance, including, inter alia, for
rentals of less than 30 days operating pursuant to a 1980s-era NUC, and rentals in
Resort districts which have complied with a new annual registration process. Id. at
¶ 93-94.
Finally, the Ordinance provided a 180-day phase out period for existing
lawful rentals of between 30 and 89 days. Ord. 22-7 at 38, Dkt. No. 72-3.
Violations of the Ordinance may result in fines of up to $10,000 per day, in
addition to "the total sum received by the owner, operator, or proprietor of [the
illegal rental] from any impermissible rental activity during the period in which the
Thus, the LUO allows a property owner to rent its property to transient guests in blocks of thirty
(30) days or more, up to twelve times per year." Stip. Facts at¶ 63. Similarly, in 2019, the City
signed a second settlement agreement following a suit over its enactment of Ordinance 19-18
which regulated the advertisement of homes for rent for fewer than thirty days—clarifying that
such advertising restrictions do not apply to "legal long-term rental[s] (i.e. a rental of at least 30
consecutive days)." See Kokua Coal. v. Dep't of Planning& Permitting, Civil No. 1:19-cv-
00414-DKW-RT ("Kokua IT); Stip. Facts at¶¶ 67-68.
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owner, operator, or proprietor was subject to daily fines." Id. at 9-10; Stip. Facts
at ¶¶ 101, 112-13.
On June 6, 2022, HILSTRA filed a Complaint challenging various aspects of
Ordinance 22-7 before it was to take effect. The Complaint alleges violations o£
HRS § 46-4(a) (Count I); the state law doctrines of vested rights and/or zoning
estoppel (Count I1); substantive due process under the federal Constitution (Count
III) and Hawaii Constitution (Count IV); just compensation under the Takings
Clauses of the federal Constitution (Count V) and Hawaii Constitution (Count
VI); the Contracts Clause of the federal Constitution (Count VII); the Excessive
Fines Clauses of the federal Constitution (Count VIII) and Hawaii Constitution
(Count IX); and civil rights under 42 U.S.C. § 1983 (Count X). Through these
claims, HILSTRA seeks to compel Defendants to: (1) "recognize the prior lawful
use and advertisement of those owners and operators that were engaged in the
previously legal advertisement and rental of property on Oahu for 30 days or more
before the effective date of Ordinance 22-7; (2) "allow those owners and
operators to continue to advertise and rent for periods of 30 days or more . . . after
the effective date of Ordinance 22-7; (3) "provide a process for the determination
and protection" of such uses; and (4) issue an "injunction against the enforcement
of Ordinance 22-7 until such rights are recognized." Complaint at¶ 8, Dkt. No. 1.
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Consequently, on July 7, 2022, HILSTRA moved for a preliminary
injunction, seeking to enjoin the enforcement of Ordinance 22-7 as conflict-
preempted by FIRS § 464(a) and constitutional takings principles. Dkt. No. 13.
On October 13, 2022, the Court granted the motion, finding that HILSTRA was
likely to succeed on the merits of those claims, and issued a preliminary injunction
against the enforcement or implementation of Ordinance 22-7 insofar as it
prohibited 30-89 day home rentals, or the advertisement thereof, in any district on
Oahu. Dkt. No. 31.
The parties subsequently agreed that the claims could be resolved on cross-
motions for summary judgment. See Dkt. No. 43. Accordingly, on July 31, 2023,
HILSTRA filed a motion for summary judgment, see Dkt. No. 60, and the City,
DPP, and Takeuchi-Apuna filed three cross-motions for partial summary judgment
on Counts III—VI, see Dkt. Nos. 62, 64 & 66. The parties filed their respective
oppositions on November 9 & 10, 2023, see Dkt. Nos. 72, 74, 76, 77, and replies
on November 17, 2023, see Dkt. Nos. 80-83. Pursuant to Local Rule 7.1(c), the
Court elected to decide these matters without a hearing. See Dkt. No. 84. This
Order follows.
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STANDARD OF REVIEW
A. Summary Judgment
A party is entitled to summary judgment pursuant to Federal Rule of Civil
Procedure 56(a) "if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law."' Where
the movant bears the burden of proof, "it must come forward with evidence which
would entitle it to a directed verdict if the evidence went uncontroverted."
Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). In other words, the
movant "must establish beyond controversy every essential element" of its claim.
S. California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003)
(quotation marks and citation omitted). In assessing a motion for summary
judgment, all facts are construed in the light most favorable to the non-moving
party. Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
Where the parties have filed cross-motions for summary judgment, the
standard does not change. Rather, the Court "evaluate[s] each motion separately,
giving the nonmoving party in each instance the benefit of all reasonable
inferences." A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 (9th
Cir. 2006) (quotation marks and citation omitted).
$Where a motion for summary judgment follows the issuance of a preliminary injunction, the
Court's prior ruling "does not constitute the law of the case and the parties are free to litigate the
merits." City ofAnaheim v. Duncan, 658 F.2d 1326, 1328 n.2 (9th Cir. 1981).
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B. Permanent Injunction
"To be entitled to a permanent injunction, a plaintiff must demonstrate: (1)
actual success on the merits; (2) that it has suffered an irreparable injury; (3) that
remedies available at law are inadequate; (4) that the balance of hardships justify a
remedy in equity; and (5) that the public interest would not be disserved by a
permanent injunction." Indep. Training & Apprenticeship Program v. California
Dep't oflndus. Rels., 730 F.3d 1024, 1032 (9th Cir. 2013) (citing eBay Inc. v.
MercExch., LLC, 547 U.S. 388, 391 (2006)). When the government is the
opposing party, the final two factors—balance of hardships and the public
interestmerge. Nken v. Holder, 556 U.S. 418, 435 (2009).
DISCUSSION
I. Count L• Violation of Hawaii Revised Statutes 464(a)
HILSTRA seeks summary judgment on Count I, contending that Ordinance
22-7 is invalid as preempted by Hawaii Revised Statutes § 464(a). Dkt. No. 60 at
18. Specifically, HILSTRA argues that HRS § 464(a) plainly restricts counties
from passing zoning ordinances, such as Ordinance 22-7, which discontinue prior
lawful residential uses, regardless of whether the county provides for the
amortization or phasing out of the same. Id. at 17. HILSTRA provides that,
should the Court rule in its favor on Count I, the balance of its claimsincluding
its constitutional claims—can and should be dismissed. Id. at 3.
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In response, the City raises several new legal arguments.9 First, the City
contends that the Court should decide all of the pending dispositive motions or
abstain from addressing Count I based on the Pullman doctrine.10 Dkt. No. 72 at
3-6. Should the Court address Count I, the City argues that Ordinance 22-7 should
be upheld against HILSTRA's preemption challenge as it is a rental regulation
not a zoning ordinance—and therefore, not precluded by HRS § 46-4(a). Id. at 6-
15. Finally, the City contends that even if the Court does find Ordinance 22-7 to
be a zoning regulation, that the general nonconforming use protections of LUO
§ 21-4.110 apply to protect existing uses, such that it saves the Ordinance from
preemption. Id. at 15-22.
A. Pullman Abstention
Pullman abstention permits a district court to abstain from "the exercise of
federal jurisdiction when `a federal constitutional issue . . . might be mooted or
presented in a different posture by a state court determination of pertinent state
law."' C-Y Dev. Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir. 1983)
(quoting Cnty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189 (1959)). It
applies where three elements are present:
9The Court notes that each of the City's arguments in opposition to summary judgment is legal in
nature and could have been raised at the time of the preliminary injunction. Instead, the City
raises each of these arguments now for the first time.
1Olt is, of course, curious that the City never asked the Court to abstain, based on Pullman or for
any other reason, before the Court addressed Count I at the preliminary injunction stage, ruling
in favor of HILSTRA.
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(1) the case touches on a sensitive area of social policy upon which the
federal courts ought not enter unless no alternative to its adjudication is
open, (2) constitutional adjudication plainly can be avoided if a definite
ruling on the state issue would terminate the controversy, and (3) the proper
resolution of the possible determinative issue of state law is uncertain.
Courthouse News Serv. v. Planet, 750 F.3d 776, 783-84 (9th Cir. 2014) (citation
omitted). "The court has no discretion to abstain in cases that do not meet the
requirements." Courtney v. Goltz, 736 F.3d 1152, 1163 (9th Cir. 2013) (quotation
marks and citation omitted). Pullman abstention "is limited to uncertain questions
of state law because abstention from the exercise of federal jurisdiction is the
exception, not the rule." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)
(quotation marks, brackets, and citation omitted).
Here, even assuming the City could satisfy the first and second requirements
for Pullman abstention, the third requirement plainly cannot be. First, as the Court
has already held, the language of HRS § 46-4(a) and Ordinance 22-7 is plain and
unambiguous. See Dkt. No. 31 at 12-14 (discussing the clear reading of HRS §
46-4(a) and Ordinance 22-7). There is nothing to suggest that HRS § 46-4(a) does
not mean exactly what it says—that a county is barred from passing any law that
would eliminate existing lawful residential uses. See id. at 12-19; accord Waikiki
Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals of City & Cnty. of
Honolulu, 949 P.2d 183, 193 (Haw. Ct. App. 1997) (explaining that HRS § 46-4(a)
bars changes to the zoning code which fully eliminate prior lawful uses); Robert D.
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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
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§ 46-4(a)." Dkt. No. 72 at 6. The lack of a state court ruling on these precise
matters is not determinative. Rather, a court should abstain under the third prong
of Pullman where "a federal court cannot predict with any confidence how the
state's highest court would decide an issue of state law." Pearl Inv. Co. v. City &
Cnty. of San Francisco, 774 F.2d 1460, 1465 (9th Cir. 1985) (emphasis added).
Here, there is little indication that determining whether Ordinance 22-7
qualifies as a land use ordinance or rental regulation is an uncertain or unclear
matter of state law. Rather, in making this determination, the Court is easily aided
by ordinary tools of statutory interpretation and context. See, e.g., Reprod. Health
Servs. v. Strange, 204 F. Supp. 3d 1300, 1331-32 (M.D. Ala. 2016) (applying state
rules of statutory construction to determine whether a statute is ambiguous for the
purposes of Pullman); see also infra at 15-17. Accordingly, the Court lacks the
discretion to exercise Pullman abstention in this case. See Harman v. Forssenius,
380 U.S. 528, 534 (1965) ("The doctrine...contemplates that deference to state
court adjudication only be made where the issue of state law is uncertain."
(emphasis added)).
B. Preemption
HILSTRA contends that Ordinance 22-7 is conflict-preempted by HRS § 46-
4(a), which prohibits counties from enacting zoning ordinances which discontinue
previously lawful residential property uses. Dkt. No. 60 at 15. Under Hawaii law,
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a municipal ordinance is preempted if. (1) "it covers the same subject matter
embraced within a comprehensive state statutory scheme disclosing an express or
implied intent to be exclusive and uniform throughout the state" ("field
preemption") or (2) "it conflicts with state law" ("conflict preemption").
Richardson v. City & Cnty. of Honolulu, 868 P.2d 1193, 1209 (Haw. 1994). This
test is "disjunctive" a county ordinance which conflicts with state law is invalid,
regardless of whether or not it is field-preempted." Ruggles v. Yagong, 353 P.3d
953, 961 (Haw. 2015); see also Richardson, 868 P.2d at 1213 ("if an ordinance
truly conflicts with Hawaii statutory law that is of statewide concern, then it is
necessarily invalid because it violates article VIII, section 6 of the Hawaii
Constitution and HRS §§ 50-15—the state's supremacy provisions."). In
considering whether a true conflict exists, the test is whether the ordinance
"prohibits what the statute permits or permits what the statute prohibits." Waikiki
Resort Hotel, Inc. v. City & Cnty. of Honolulu, 624 P.2d 1353, 1366 (Haw. 1981).
"In its Opposition, the City argues that"[a]n ordinance is only subject to conflict preemption if
it `truly conflicts with Hawaii statutory law that is of statewide concern. Legislative intent is the
controlling factor, and true conflicts only exist when county legislation tends to defeat the intent
of a state statute." Dkt. No. 72 at 13-14 (quotation marks and citations omitted). However, the
City appears to conflate the standards for conflict preemption and field preemption. Legislative
intent is determinative only under a field preemption analysis and, therefore, is irrelevant here.
See Syngenta Seeds, Inc. v. Cnty. ofKauai, 842 F.3d 669, 675 (9th Cir. 2016); Pac. Int'Z Servs.
Corp. v. Hurip, 873 P.2d 88, 94-95 (Haw. 1994); Dkt. No. 82 at 12 (explaining HILSTRA only
argues conflict preemption).
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As an initial matter, it is first necessary to determine the precise nature of the
alleged conflict. Relying on Yee v. City of Escondido, 503 U.S. 519 (1992), the
City asserts that the Supreme Court has recognized a distinction between "land use
(i.e., residential living activities)" and "the economic relationship between the
landlord and tenant (i.e., the rental agreement)." Dkt. No. 72 at 9-10. The City
argues that rental duration and advertising constitute the latter, such that Ordinance
22-7 is not a zoning ordinance at all, but rather a rental regulation authorized
pursuant to HRS § 46-1.5(20)." Id. at 6-13. This is consequential as "restrictions
on amortizing nonconforming uses created by HRS § 46-4(a) do not apply to rental
regulations authorized by HRS § 46-1.5(20)." Id. at 6.
The City's attempt to reframe the issue first presented during preliminary
injunction proceedings more than a year ago is unavailing. In Yee, the Supreme
Court explained that the ordinance at issue "regulate[d] petitioners' use of their
land by regulating the relationship between landlord and tenant." Yee, 503 U.S. at
528 (emphasis added). It did not create the land use versus landlord-tenant
distinction that the City now imagines.
Further, HRS § 464(a) grants the counties wide latitude to enact zoning
regulations, including, inter alia, through ordinances which specify "the areas in
"HRS § 46-1.5(20) authorizes counties to"regulate the renting, subletting, and rental conditions
of property for places of abode by ordinance."
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which particular uses may be subject to special restrictions" and the "designation
of uses for which buildings and structures may not be used." Pursuant to this
authority, the City drafted and passed Ordinance 22-7 as part of the Land Use
Ordinance of the City and County of Honolulu. See Stip. Facts at ¶¶ 86-102; Ord.
22-7; ROH § 21-10.1. Though the placement of the Ordinance is not, by itself,
determinative, its location and characterization belie the City's current attempts to
call it something it is not and never was—even according to the City.
Finally, beyond its locus within the Revised Ordinances of Honolulu, the
language and substance of Ordinance 22-7 are also consistent with a zoning
regulation. For instance, Section 10 provides that short-term rentals are permitted
within certain specified zoning districts.13 Such differentiation of particular
property uses by zoning district is a classic example of a zoning regulation and
explicitly authorized by HRS § 464(a). Similarly, Ordinance 22-7's stated
Findings and Purpose explain that "[s]hort-term rentals . . . are inconsistent with
the land uses that are intended for our residential zoned areas . . . [t]he purpose of
this Ordinance is to better protect the City's residential neighborhoods and housing
stock from the negative impacts of short-term rentals." Stip. Facts at ¶ 85; Ord.
13These districts include: "[t]he areas located within the Apartment Precinct of the Waikiki
Special District mauka of Kuhio Avenue," "[t]he areas located within the A-1 low-density
apartment zoning district and the A-2 medium-density apartment zoning district situated in close
proximity to the Ko Olina Resort," and"[t]he area located within the A-1 low-density apartment
zoning district situated in close proximity to the Turtle Bay Resort." Dkt. No. 82 at 8 n.2; Ord.
22-7 at 17-18.
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22-7 at 1. Language such as this evinces an intent to legislate pursuant to the
City's zoning authority, not its rental regulation authority.
Having found that Ordinance 22-7 is properly characterized as a zoning
ordinance, the Court turns to whether it is conflict-preempted by HRS § 464(a).
When considering preemption in the context of zoning, it is "fundamental that
authority to zone is conferred by the legislature on the counties." Save Sunset
Beach Coal., 78 P.3d at 16 (citing Kaiser Hawaii Kai Dev. Co. v. City & Cnty. of
Honolulu, 777 P.2d 244, 246 (Haw. 1989)). Indeed, the "counties are authorized to
zone only according to the dictates of HRS § 46-4." Id. Accordingly, "any
conflict between the State provisions and the county zoning ordinances is resolved
in favor of the State statutes, by virtue of the supremacy provisions in article VIII,
section 6 of the Hawaii Constitution and HRS § 50-15." Id. at 17.
Here, as the Court's previous Order has already explained at length, there is
no doubt that Ordinance 22-7 is conflict-preempted by HRS § 464(a). See Dkt.
No. 31 at 11-21. The language of both the Ordinance and the statute is clear.14
HRS § 464(a) states:
Neither this section nor any ordinance enacted pursuant to this section shall
prohibit the continued lawful use of any building or premises for any . . .
purpose for which the building or premises is used at the time this section or
the ordinance takes effect.
14The Hawaii Supreme Court has instructed "the fundamental starting point for statutory
interpretation is the language of the statute itself." Ho`omoana Found. v. Land Use Conran n,
526 P.3d 314, 320 (Haw. 2023) (citation omitted).
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Stated plainly and unambiguously, this statute prohibits counties from passing
zoning ordinances which discontinue any previously lawful uses.15 See Iddings v.
Mee-Lee, 919 P.2d 263, 269 (Haw. 1996) ("[w]here the language of a statute is
plain and unambiguous, [the Court's] only duty is to give effect to the statute's
plain and obvious meaning."). Further, there is only one exception:
[A] zoning ordinance may provide for elimination of nonconforming uses as
the uses are discontinued, or for the amortization or phasing out of
nonconforming uses or signs over a reasonable period of time in
commercial, industrial, resort, and apartment zoned areas only. In no event
shall such amortization or phasing out of nonconforming uses apply to any
existing building or premises used for residential (single-family or duplex)
or agricultural uses.
In other words, although HRS § 464(a) permits a county to phase out
nonconforming uses "over a reasonable period of time," this exception is clearly
limited to only four zoning districts: commercial, industrial, resort, and apartment.
Conversely, the counties are explicitly prohibited from phasing out non-
conforming uses in "any existing building or premises used for residential (single-
family or duplex) . . . uses." HRS § 464(a) (emphasis added).
15Indeed, Hawaii courts have confirmed this facially obvious reading of HRS § 46-4(a). See,
e.g., Waikiki Marketplace, 949 P.2d at 193 (explaining that to comply with HRS § 464(a), new
LUOs must include provisions grandfathering in nonconforming uses);Ferris Trust, 378 P.3d at
1028 ("[t]he statutory protection of lawfully existing uses and structures prior to the effective
date of a zoning restriction is grounded in constitutional law." (quotation marks and citation
omitted)).
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In this light, Ordinance 22-7 clearly violates HRS § 46-4(a) by eliminating
previously lawful 30-89 day rentals without any grandfathering provision. Before
Ordinance 22-7, it was legal to rent homes on Oahu for periods of between 30 and
89 days in any zoning district. After Ordinance 22-7, such activity is prohibited in
all non-Resort districts, regardless of whether such use existed prior to the
Ordinance's effective date. This sweeping prohibition therefore directly conflicts
with HRS § 46-4(a)'s bar against zoning provisions eliminating "lawful use[s] . . .
at the time . . . [an] ordinance takes effect." See also Waikiki Marketplace, 949
P.2d at 194 ("the grandfather protections afforded to a property owner under HRS
§ 46-4(a) and the LUO are intended to prohibit new zoning ordinances from
interfering with an owner's lawful uses of a building or premises under an existing
zoning ordinance.").
Further, HRS § 46-4(a)'s amortization exception cannot save Ordinance 22-
7 from preemption. That is because the exception applies only to "commercial,
industrial, resort, and apartment zoned areas." HRS § 464(a). Insofar as
Ordinance 22-7 seeks to eliminate or phase out existing lawful 30-89 day rentals in
any other zone—including residentially zoned areas—it is invalid. Moreover, even
in commercial, industrial, resort, and apartment zones, HRS § 46-4(a)'s
amortization exception applies only to non-residential uses. See HRS § 464(a)
("In no event shall such amortization or phasing out of nonconforming uses apply
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to any existing building or premises used for residential (single-family or duplex) .
. . uses."). As the Court has already explained at length, such "residential use"
includes rentals of 30 days or longer. See Dkt. No. 31 at 15-19 (explaining that
short-term rentals are residential in nature as the tenants use the properties for
ordinary living activities). Therefore, HRS § 46-4(a)'s amortization exception is
inapplicable in every zone which Ordinance 22-7 purports to regulate.
Finally, in what appears to be a last-ditch effort to save Ordinance 22-7 from
preemption, the City argues that the Ordinance does not truly conflict with HRS
§ 464(a), as ROH § 21-4.110 permits preexisting 30-89 day rentals to continue as
nonconforming uses16 subject to reasonable restrictions. Dkt. No. 72 at 16-22. In
other words, the City, again for the first time, argues that Ordinance 22-7 does not
need a grandfathering provision because Honolulu, in effect, already has one.
ROH § 21-4.110 provides:
Constraints are placed on nonconformities to facilitate eventual conformity
with this chapter. . . . Nonconforming . . . uses . . . may be continued,
subject to the following provisions.
(c)(2) Any nonconforming use that is discontinued for any reason for 12
consecutive months, or for 18 months during any three-year period, may not
be resumed; provided that a temporary cessation of the nonconforming use
16Under the LUO, a"nonconforming use"is "[a]ny use of a structure or a zoning lot that was
previously lawful, but does not conform to the applicable use regulations of the district where the
lot is located . . . as a result of any subsequent amendment to this chapter, or a zoning map
amendment." ROH § 21-10.1.
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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).
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In sum, nothing has materially changed since the Court granted HILSTRA's
request for a preliminary injunction in October 2022. The City's new, creative,
and ultimately implausible legal arguments do not stave off the inevitable:
HILSTRA's motion for summary judgment is granted on Count I.
IL Permanent Injunction
A. Grant of the Permanent Injunction
Having granted summary judgment in favor of HILSTRA on the merits of
its preemption claim, the Court considers the remaining factors relating to the
potential issuance of a permanent injunction: (1) irreparable injury; (2) inadequate
remedies at law; (3) balance of hardships; and (4) the public interest. See eBay
Inc., 547 U.S. at 391. For many of the same reasons explicated in the Court's prior
Order issuing a preliminary injunction, HILSTRA satisfies all four remaining
elements. See Dkt. No. 31 at 25-29.
First, HILSTRA has shown that absent a permanent injunction, its members
are likely to sustain imminent and irreparable injury. Without the injunction,
owners and advertisers of lawful 30-89 day rentals will be under credible threat of
citation for violations of an ordinance that conflicts with state law. See Dkt. No.
60 at 11-13, 23; Stip. Facts at¶ 105 (explaining "[s]ince the adoption of Ord. 22-7,
DPP has established a short-term rental enforcement group"); see also Valle del
Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (finding a likelihood of
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irreparable harm where the plaintiff faced threat of prosecution under a state law
conflicting with federal law). Further, HILSTRA additionally points to numerous
intangible injuries flowing from Ordinance 22-7, including hindrances to: (1)
service members' ability to easily transition to or from on-base military housing;
(2) traveling medical practitioners' ability to provide contracted care at Oahu
health care facilities; (3) local residents' ability to transition between homes; (4)
contractors' abilities to perform work on Oahu; (5) displaced residents' ability to
find housing following natural and man-made disasters, including the Red Hill fuel
leak, fire, and flood; (6) neighbor island residents' ease of travel to Oahu for
medical care or events; and (7) other individuals' ability to travel as they prefer.
Dkt. No. 31 at 27 n.27; Dkt. No. 13-1 at 4-5; Complaint at¶ 3. Such intangible
injuries are nearly impossible to remedy retrospectively and have been recognized
by the Ninth Circuit to "qualify as irreparable harm." See Rent-A-Ctr., Inc. v.
Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).
Second, HILSTRA has also shown that there is no adequate remedy at law
for these intangible harms. "Irreparable harm is traditionally defined as harm for
which there is no adequate legal remedy, such as an award of damages." Arizona
Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). Accordingly, as
HILSTRA has shown that it will sustain irreparable harm absent an injunction, it
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has necessarily also shown that there is a lack of adequate remedies at law.
Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017).
Finally, because the government is a party, the Court's consideration of the
balance of hardships and the public interest merge. Nken, 556 U.S. at 435. Here,
the Court finds that after weighing the balance of hardships, an equitable remedy is
warranted and would serve the public interest. The Ninth Circuit has explained, "it
is clear that it would not be equitable or in the public's interest to allow the state . .
to violate the requirements of federal law, especially when there are no adequate
remedies available." Valle del Sol, 732 F.3d at 1029. By that same reasoning, it
would be neither equitable, nor in the public's interest, to permit the City to
enforce an ordinance which violates the requirements of state law.17 Conversely,
there is no harm in compelling the City to comply with the statute that is the very
source of its ability to legislate. The public interest and balance of equities favor
granting a permanent injunction.
17The Court further notes that a permanent injunction merely prohibits the City from enforcing
Ordinance 22-7 insofar as it fails to establish a process to protect nonconforming uses. The City
is more than capable of establishing such protections. See, e.g., Stip. Facts at¶¶ 58, 60
(establishing, in Ordinance 89-154, a system of nonconforming use certificates for existing
rentals of less than 30 days); Kauai County Code § 8-17.10(a) (creating a nonconforming use
certificate program for existing short term vacation rentals following a 2008 zoning amendment);
Hawaii County Code § 25-4-16.1 (establishing the same following a 2019 zoning amendment).
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B. Scope of Injunctive Relief
Having met each of the requirements for a permanent injunction, the Court
turns to the only remaining question—that of scope. "A district court has broad
latitude in fashioning equitable relief when necessary to remedy an established
wrong." High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 641 (9th Cir. 2004)
(quotation marks and citation omitted). Nevertheless, the Supreme Court has
instructed that "injunctive relief should be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki,
442 U.S. 682, 702 (1979). Such "tailoring [is] particularly important where, as
here, plaintiffs seek injunctive relief against a state or local government."
Melendres v. Maricopa Cnty., 897 F.3d 1217, 1221 (9th Cir. 2018).
Here, HILSTRA requests that the Court invalidate the entirety of Ordinance
22-7 as "its very core purpose [of prohibiting 30-89 day rentals] is frustrated upon
striking its unlawful provisions." Dkt. No. 82 at 13-14; Dkt. No. 60 at 23. Such a
remedy, however, is overbroad. For instance, HILSTRA acknowledges that the
issue of whether "Ordinance 22-7 validly prohibits rentals of less than 90 days for
properties that were not lawfully used prior to its enactment . . . is not before the
Court, as Plaintiff's complaint was focused on the prior lawful uses." Dkt. No. 82
at 14 n.3. Moreover, Ordinance 22-7 contains an explicit severability clause,
providing:
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Section 16. Severability. If any provision of this ordinance, or the
application thereof to any person or circumstances, is held invalid, the
invalidity does not affect other provisions or applications of the ordinance
that may be given effect without the invalid provision or application, and to
this end the provisions of this ordinance are severable.
Ord. 22-7 at 38. This severability clause is indicative of the City Council's intent
that Ordinance 22-7 remain effective as regarding those sections not preempted by
HRS § 46-4(a). See Nat'l Advert. Co. v. City of Orange, 861 F.2d 246, 250 (9th
Cir. 1988) ("whether partial invalidation is appropriate depends on the intent of the
City in passing the ordinance and whether the balance of the ordinance can
function independently"); accord State v. Pacquing, 389 P.3d 897, 913 (Haw.
2016) ("if, when the [invalid] portion is stricken out, that which remains is
complete in itself and capable of being executed in accordance with the apparent
legislative intent, it must be sustained." (citation omitted)). Accordingly, the Court
declines to invalidate Ordinance 22-7 in its entirety, and instead enjoins its
enforcement only insofar as it prohibits the rental or advertisement of 30-89 day
rentals lawfully existing as of the Ordinance's effective date.
III. Counts II—X: State Law, Federal Law, and Constitutional Claims
In addition to Count I, HILSTRA asserts that Ordinance 22-7 violates the
state law doctrines of vested rights and/or zoning estoppel (Count II); substantive
due process under the United States Constitution (Count 111) and Hawaii
Constitution (Count IV); the Takings Clauses of the United States Constitution
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(Count V) and Hawaii Constitution (Count VI); the Contracts Clause of the
United States Constitution (Count VII); the Excessive Fines Clauses of the United
States Constitution (Count VIII) and Hawaii Constitution (Count IX); and civil
rights under 42 U.S.C. § 1983 (Count X). Dkt. No. 1. Because HILSTRA agrees
that a summary judgment ruling in its favor on Count I means that the balance of
its claims is not necessary and should be dismissed, see Dkt. No. 60 at 3, the Court
dismisses Counts II through X. That, in turn, means there is no need to adjudicate
the City's motions for partial summary judgment on Counts III through Vl, see
Dkt. Nos. 62, 64, 66, and those motions are DENIED AS MOOT.
CONCLUSION
For the reasons set forth herein, HILSTRA's motion for summary judgment,
Dkt. No. 60, is GRANTED IN PART and DENIED IN PART. Specifically, the
motion for summary judgment is GRANTED with respect to Count I, but the scope
of the resulting permanent injunction is limited to the following extent: The City
and County of Honolulu; the Department of Planning and Permitting; Dawn
Takeuchi-Apuna in her official capacity as Director of the Department of Planning
and Permitting; and all their respective officers, agents, servants, employees, and
attorneys, and persons in active concert or participation with them, are hereby
enjoined from enforcing or implementing Ordinance 22-7, which went into effect
October 23, 2022, insofar as it prohibits 30-89 day home rentals lawfully in
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existence at its effective date, or the advertisement of such rentals, in any district on
Oahu.
Counts II—X, as explained above, are DISMISSED at HILSTRA's request.
Accordingly, Defendants' three motions for partial summary judgment, Dkt. Nos.
62, 64 & 66, are DENIED AS MOOT.
The Clerk is instructed to enter Judgment in favor of Plaintiff Hawaii Legal
Short-Term Rental Alliance and CLOSE this case.
IT IS SO ORDERED.
DATED: December 21, 2023 at Honolulu, Hawaii.
y Derrick K.Watson
Chief United States District Judge
Hawaii Legal Short-Term Rental Alliance v. City and County of Honolulu, et al;
Civil No. 22-00247-DKW-RT; ORDER (1) GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT; AND (2) DENYING AS MOOT DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT
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