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 10 of 28 PagelD.3070 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. - 10 -