2025-11-07 PD Legal Memo (PL-BOA-2025-000119)

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The Landowners hold a valid non-conforming use certificate ("NUC")to operate a short- term vacation rental ("STVR") on their property. The NUC was issued in 2019. Any appeal period relating to issuance of the NUC has long since elapsed. Hawaii County Code §25-2-20(a) allows that"[a]ny person aggrieved by the decision of the director in the administration or application of this chapter, may, within thirty days after the date of the director's written decision, appeal the decision to the board of appeals." [emphasis added] The Return of Application Letter makes no mention of the NUC or of the Landowners' operation of a STVR at their property. This appeal must be limited to the Director's current decision and is not an opportunity reopen appeal periods for unrelated matters which have long ago lapsed. Thus, all matters raised by Appellant concerning STVR usage or the NUC must be disregarded as outside the scope of this appeal. III. Conclusion The Director respectfully requests that this Board find in favor of the County, affirming the Director's determination that no SMA Use Permit is required as set forth in Return of Application Letter dated April 11, 2025 because the lot in question is not a shoreline lot and the proposed uses meet the definition of activities that are "not development" and thus exempt from SMA permitting. The Director's Return of Application Letter did not violate the law, was not clearly erroneous, and was not arbitrary or capricious, characterized by an abuse of discretion or a clearly warranted exercise of discretion. The Director correctly applied the law and exercised appropriate discretion in determining (1)that, factually, the lot is not a shoreline lot, (2)that the proposed uses meet the definition of activities which are "not development"pursuant to HRS §§ 205A-22(2) (A), (F), and (N) and Planning Commission Rule 9-4(i)(2)(A), (F), and (0), and(3) 9