HomeMy WebLinkAbout2026-05-12 Appellant's Memorandum in Opposition to Motions to Dismiss (PL-BOA-2025-000119 & 121)
From: Claudia Rohr <crohr4@gmail.com>
Sent: Tuesday, May 12, 2026 5:06 PM
To: Planning Board of Appeals
Cc: Wan, Sylvia A; Richard Standke; Campbell,Jean K; Darrow, Jeffrey W.; Azevedo, Neil;
SalasFerguson, Sinclair; Spielman, Aaron; Morrison, Bethany J; Ley, Rachelle; Segawa,
Wesley; Holzman-Escareno, Juliana
Subject: 2026-5-12 Appellant Claudia Rohr's Memorandum in Opposition to Dismiss, Nos.
BOA-2026-000191 and 121
Attachments: 2026-5-12 Appellant Claudia Rohr's Memorandum in Opposition to Motions to
Dismiss.pdf
Follow Up Flag: Follow up
Flag Status: Flagged
Dear Parties- I filed Appellant Claudia Rohr's Memorandum in Opposition to Motions to Dismiss in EPIC
files for case Nos. BOA-2026-000191 and 121. Attached.
This is all I have time for now.
Claudia Rohr'
808-640-5976
i
I" Gmail Claudia Rohr<crohr4@gmail.com>
2026-5-12 Appellant Claudia Rohr's Memorandum in Opposition, Nos. BOA-2025-
000191 and 121
1 message
Claudia Rohr<crohr4@gmail.com> Tue, May 12, 2026 at 4:46 PM
To: Planning Board of Appeals <boardofappeals@hawaiicounty.gov>
Re: Appellant's Memorandum in Opposition to Appellee Planning Director and Director of
Public Works' Motions to Dismiss filed May 8 and 11, respectively.
To Madam Chair Cathy Lewis, and Members of the Board of Appeals,
Appellant Claudia Rohr has not consented to a Motion to Dismiss procedure. At the initial
scheduling conference, she objected to the scheduling of dispositive motions based on Ford v.
Board of Appeals, Civil No. 3 CCV-23-0000200 (Agency Appeal) PL-BOA-2022-00020 and
(Gage) PL-BOA-2022-00021, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
dated November 8, 2024, copy attached.
The Court's FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER equally applies to
Motions to Dismiss in this case, as follows:
• Summary_Judgment Procedure Unlawful
l. Section 91-2(a)(2), Hawaii Revised Statutes requires the Appellee
Board of Appeals to adopt rules "setting forth the nature and requirements of all formal and
informal procedures" that it employs in its "practice." (emphasis added) Noncompliance
invalidates the use of any unpublished rule of procedure. Section 91-2(b), Hawaii
Revised Statutes.
2. Rule 3-12 of the Appellee Board of Appeals Rules of Practice and
Procedure does not specifically authorize the use of a motion for summary judgment and simply
refers to the filing of a "motion," without more.
3. Under the statutory- scheme for agency proceedings under Chapter 91,
Hawaii Revised Statutes, an agency proceeding before the Appellee Board of Appeals is a quasi-
judicial proceeding in which the board engages in fact-finding through an evidentiary hearing
and then determines the case before it on the basis of the facts so found and the applicable law.
An unpublished summary judgment procedure, if allowed, would terminate an appeal before an
appellant is given the "opportunity" to proceed with the board's evidentiary, fact-finding portion of
the "contested case" hearing.
4. Even though the Appellee Board of Appeals may have used summary
judgment procedures "in other cases" as a "diapositive motion," that "practice" violates Section
91-2(a)(2). Hawaii Revised Statutes. Cf, Leslie a Board ofAppeals. supra, 109 Haw. at 394-
395, 126 P.3d at 1081-1082 (long- indulged agency practice not allowed if"practice" violates a
specific law).
5. Although Section 91-9(c), Hawaii Revised Statutes allows parties, with the
Board of Appeals' approval, to waive or to modify the legislative provisions for a "contested
case" or to allow for pre-hearing discovery or a one-time summary judgment procedure, that
can be done only with the consent of all parties and the Appellants Ford, et al. and Gage did
not consent to the use of a summary judgment procedure.
6. Further, the Appellee Board of Appeals Rules of Practice and Procedure do
not describe the standard that is to be used in the disposition of a motion for summary
judgment in an agency proceeding. Such a standard is critical to prevent the abuse of an agency
procedure.
8. Section 91-1(5) and Section 91-9(d), Hawaii Revised Statutes guarantee the
Appellants Ford, et al. and Gage an "agency hearing" with "opportunities ... to present evidence
and argument on all issues involved." The Appellee Board of Appeals' own Rule 8-11 (b) also
guarantees the Appel lants "a full hearing on the appeal in accordance with Chapter 91, Hawaii
Revised Statutes."
9. A summary judgment procedure, as it was applied below, denies the
Appellants Ford, et al. and Gage the "full hearing" to which they are entitled under Section 91-
9(d), Hawaii Revised Statutes and the board's Rule 8 11 (b). See In re Kauai Electric Division of
Citizens Utilities Company, 60 Haw. 166, 181-182, 590 P.2d 524, 536 (1978) ("full hearing"
assured to parties in an agency proceeding). In addition, the Appellee Board of Appeals could
have made findings and conclusions that explain why it used an unpublished summary judgment
procedure, but did not do so, which leaves this Court to guess on the board's reasoning.
10. The Appellee Board of Appeals erred when it utilized an unpublished
summary judgment procedure that violates Section 91-2(a)(2). Hawaii Revised Statutes and, as
applied below, that denies the Appellants Ford, et al. and Gage their right to a "full hearing."
Accordingly, the Appellee Board of Appeals' Orders must be reversed and vacated.
I will address the standing issue separately, preferably as part of my case in chief
in a contested case hearing. This is all I have time for now.
Respectfully submitted,
Appellant, pro se
FORD DECISION AND ORDER.pdf
1448K
Electronically Filed
THIRD CIRCUIT
3CCV-23-0000200
08-NOV-2024
01:42 PM
Dkt. 168 FOF
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
LAWRENCE FORD; JOHN KOONTZ; ) Civil No. 3CCV-23-0000200
DON DAVIS; PHILLIP KOSZAREK; ) (Agency Appeal)
WILLIAM ROBERT GAGE, JR.; AND )
REBECCA S. GAGE., ) PL-BOA-2022-00020 and
PL-BOA-2022-00021
Appellants-Appellants, )
FINDINGS OF FACT, CONCLUSIONS OF
V. ) LAW AND ORDER; CERTIFICATE OF
SERVICE
BOARD OF APPEALS, COUNTY OF )
HAWAII, )
Appellee. )
and )
ZENDO KERN, DIRECTOR, )
DEPARTMENT OF PLANNING, )
COUNTY OF HAWAII; RYAN A.NEAL; )
BEATA M. ZANONE, )
Appellees-Appellees. )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER
On September 24, 2024, the Hawaii Supreme Court rendered its
decision in Rosehill v. State of Hawaii Land Use Commission, SCAP-22-
0000371, _ Haw. _, _ P.3d _ (Slip Opinion, Sept. 24, 2024) that short term
vacation rental activity, which is a form of transient accommodation, is not a
direct permitted use in the State Land Use Agriculture District. The Hawaii
Supreme Court also held that this Court's decision in the "Rosehill Cases" in
3CCV-21-0000178 is void. As such, the Hawaii Supreme Court's decision in
Rosehill resolves the main issue that is raised in the agency appeal that is now
before this Court.
Nevertheless, this Court finds it necessary to address the
remaining questions that have been raised in this agency appeal, which are
susceptible of repetition in future administrative cases. These questions are (1)
whether the Hawaii County Board of Appeals used an unauthorized procedure
below, (2) whether the board met in an unauthorized executive session, (3)
whether the board failed to render written findings and conclusions to support
its orders and (4) whether the board ignored the pre-Rosehill decision of the
Fifth Circuit Court in the "Campos Case" that transient accommodation activity
is not a direct permitted use in the State Land Use Agriculture District? The
answer to each of these questions is "Yes."
That being said, this Court grants the appellants'joint agency
appeal, reverses and vacates the Hawaii County Board of Appeals' orders on
appeal and directs the Hawaii County Board of Appeals to enter orders that
grant the appeals taken in PL-BOA-2022-000200 and PL-BOA-2022-000201.
1
A.
PROCEDURAL HISTORY i
To the extent that any statement in this Part A is deemed to be a
conclusion of law, it shall be treated accordingly.
1. An Agricultural Project District is the creature of county
legislation that is based on Section 205-5(a), Hawaii Revised Statutes z and
Section 25-6-50, et seq., Hawaii County Code (the Zoning Code) and that is
supported by Save Sunset Beach Coalition v. Cite and County of Honolulu, 102
Haw. 465, 582, 78 P.3d 1, 18 (2003) (state and county have dual authority to
regulate uses in the State Land Use Agriculture District).
2. In 1997, the Hawaii County Council assigned about twenty-
two acres of land in the District of South Kona, Island of Hawaii to a county-
based Agricultural Project District at Kaawaloa, South Kona, County of Hawaii.
Ordinance 97-133. (Dkt. 17, JEFS page 1, ROA 114 to 122)
3. It is undisputed that the Appellees-Appellees RYAN A. NEAL
and BEATA M. ZANONE own a lot in the subject Agricultural Project District,
which is designated for real property tax purposes as Tax Map Key (3) 8-1-009-
044 and which has a street address of 81-905 Makahiki Lane, Captain Cook,
Hawaii, and that at all times relevant to this agency appeal used their property
for their personal residence and for transient accommodation purposes. (Dkt.
16, JEFS Page 49, ROA 049-050)
Complaints to the Planning Director
4. In July of 2021, the Appellants-Appellants LAWRENCE
FORD, JOHN KOONTZ, DON DAVIS, PHILLIP KOSZAREK, WILLIAM ROBERT
' The record on appeal is in two parts, one for each of two
separate cases that the Hawaii County Board of Appeals had opened
below. Similar papers were filed in each of the two cases.
2 " (a) Except as herein provided, the powers granted to counties
under section 46-4 [the Zoning Act] shall govern the zoning within the
districts, other than in conservation districts. Conservation
districts shall be governed by the department of land and natural
resources pursuant to chapter 183C. "
2
GAGE, JR. and REBECCA S. GAGE, along with others, filed separate
complaints with the Appellee-Appellee PLANNING DIRECTOR ZENDO KERN
(the "Appellee Planning Director") in which they asserted that the Appellees-
Appellees RYAN A. NEAL and BEATA M. ZANONE's use of their property in the
subject Agricultural Project District for transient accommodation purposes
violates state and county land use regulations. s
The Appellants-Appellants WILLIAM ROBERT GAGE, JR. and
REBECCA S. GAGE also asserted that the Covenants, Conditions and
Restrictions ("CCRs") (Dkt. 23, JEFS page 1, ROA 260-274; JEFS page 17, ROA
276-279) that apply to the use of any lot in the subject Agricultural Project
District prohibit the lot from being used for transient accommodation
purposes. (Dkt. 40, JEFS page 10, ROA 010).
5. Section 25-6-53, Hawaii County Code (the Zoning Code)
defines the uses that may be put on land that is assigned to a county-based
Agricultural Project District as follows:
Any uses permitted either directly or conditionally in the
A_ or IA districts shall be permitted in an agricultural project
district, and the overall density permitted in an agricultural
project district shall not be greater that one acre per building
site. . . . . (emphasis added)
3 The Record on Appeal for PL-BOA-2022-000200 shows that eight
individuals filed complaints with the Appellee Planning Director, but
the identities of the complainants were redacted for privacy purposes.
(Dkt. 16, JEFS page 37, ROA 039-046; Dkt. 18, JEFS page 12, ROA 145)
Four of the complainants are the Appellants-Appellants Lawrence Ford,
John Koontz, Don Davis and Phillip Koszarek. Two others, John Hazard
Trust and John Logerfo, elected not to join in PL-BOA-2022-000200.
The Hawaii County Board of Appeals did not hold an evidentiary hearing
to identify each of these eight complainants; however, the complaint
of Phillip Koszarek appears in a separate portion of the record
without redaction. On the other hand, the Record on Appeal for PL-
BOA-2022-000201 shows the identity of the Appellants-Appellants
William Robert Gage, Jr. and Rebecca S. Gage as the authors of their
own complaints. (Dkt. 40, JEFS page 10, ROA 010)
3
6. The "A" district is the county general Agricultural zoning
district and the permitted uses for such a district are set forth in Section 25-5-
72, Hawaii County Code (the Zoning Code). The "IA" district is the county
Intensive Agriculture zoning district and the permitted uses for such a district
are set forth in Section 25-8-82, Hawaii County Code (the Zoning Code).
7. Since the land that is included in the subject Agricultural
Project District also lies within a larger State Land Use Agriculture District,
Condition B of Ordinance 97-133 requires the owners of lots in the subject
Agricultural Project District to "comply[) with all requirements of Chapter 205,
Hawaii Revised Statutes, relating to permissible uses within the State Land Use
Agriculture District." (Dkt. 17, JEFS page 1, ROA 116) Condition K of
Ordinance 97-133 also requires the owners of lots to comply with "all other
applicable laws" (Id., ROA 119), such as Section 25-5-63, Hawaii County Code
(the Zoning Code).
8. It is also undisputed that the soil productivity rating for the
land located within the subject Agricultural Project District is Class C, which
fact is published on the Hawaii Land Study Bureau's online map for the
Kealakekua section, intersection of Napoopoo Road and Mamalahoa Highway.
(See Hawaii Statewide GIS System, Land Study Bureau map, published online,
ISB I Hawaii Statewide GIS Program) Soil productivity rating class is a critical
factor in determining the permitted use of land in the State Land Use Agricul-
ture District, as is discussed below.
9. Section 205-4.5, Hawaii Revised Statutes (effective 1976) has
three main subsections. Subsection (a) describes the direct permitted uses
that can be put on land with a soil productivity rating of Class A or B. Sub-
section (b) prohibits all uses on land with a soil productivity rating of Class A
or B that are not expressly permitted under subsection (a) as direct permitted
uses. If the soil productivity rating for the subject land is neither Class A nor
Class B, then subsection (c) provides that:
4
(c) . . all lands with soil classified by the land study
bureau's detailed land classification as overall (master)
productivity rating class C, D, E, or U shall be restricted to
the uses permitted for agriculture district as set forth in
section 205-5 (b) . (emphasis added)
to . Section 205-5(b), Hawaii Revised Statutes in turn states:
(b) Within agricultural districts, uses compatible to the
activities described in section 205-2 as determined by the [state
land use] commission shall be permitted; provided that accessory
agricultural uses and services described in sections 205-2 and
204-4.5 may be further defined by each county by zoning ordinance
. . . (emphasis added) 4
Planning Director's "Closure Letters"
11. In February of 2022, the Appellee Planning Director sent
identical "closure letters" to each of the complainants referred to in Part A. 4,
supra, stating that:
The Planning Department received your complaint alleging
that the property located at 81-905 Makahiki Lane, Captain Cook
is operating a Short-Term Vacation Rental ("STVR") , without
approvals from the Planning Department ("PD") and that the parcel
is located within an Agricultural Project District ("APD") .
Based on the findings and the definitions provided above,
we have determined that the parcel in question is not in viola-
tion of the Hawaii County Zoning code, Chapter 25 or County
Ordinance 97-133 . This case is now closed. (emphasis added)
(Dkt. 16, JEFS page 60, ROA 060-109; Dkt. 19, JEFS 2, ROA 151-153; JEFS
page 5, ROA 154-156, 157-159, 160-162; Dkt. 40, JEFS page 1, ROA 001-003;
JEFS 65, ROA 065-093; Dkt. 41, JEFS page 1, ROA 094-114)
12. In his "closure letters," the Appellee Planning Director did
not direct the complainants to the specific sections of published laws that
declare transient accommodation activity to be a direct permitted use in the
The process by which the State Land Use Commission is to make its
"determination" is not clear, whether the commission is to make that
"determination" by way of adjudication or by rule-making. See In Re
Hawaiian Electric Company, Inc. , 81 Haw. 459, 465-467, 918 P.2d 561,
567-569 (1996) (distinction between rule-making and adjudication) .
5
subject Agricultural Project District, leaving the complainants to guess as to
the reason for the planning director's statements.
13. In his "closure letters," the Appellee Planning Director also
did not make any reference to the Covenants, Conditions and Restrictions
(CCRs), the violation of which the Appellants-Appellants WILLIAM ROBERT
GAGE, JR. and REBECA S. GAGE had included in their complaint.
Petitions to the Board of Appeals
14. In March of 2022, the Appellants-Appellants LAWRENCE
FORD, JOHN KOONTZ, DON DAVIS and PHILLIP KOSZAREK (hereafter the
"Appellants Ford, et al.") petitioned the Appellee BOARD OF APPEALS,
COUNTY OF HAWAII (hereafter the "Appellee Board of Appeals") to review the
Appellee Planning Director's "closure letters" for error pursuant to Section 6-
9.2 of the Hawaii County Charter. (Dkt. 16, JEFS page 1, ROA 001-004; Dkt.
18, JEFS page 12, ROA 145) (Case No. PL-BOA-2022-0-00200, also referred
to as the "Ford Appeal")
15. Also, in March of 2022, the Appellants-Appellants WILLIAM
ROBERT GAGE, JR. and REBECCA S. GAGE (hereafter the "Appellants Gage")
petitioned the Appellee Board of Appeals separately for relief from the same
"closure letters." (ROA Dkt. 40, JEFS page 14, ROA 014-015; JEFS page 4,
ROA 004-006; Dkt. 41, JEFS page 42, ROA 135-146) (Case No. PL-BOA-
000201, also referred to as the "Gage Appeal")
The Parallel "Rosehill Cases"
16. The "Rosehill Cases" plagued the proceeding below. The
"Rosehill Cases" arose out of unrelated petitions that several landowners had
filed with the Appellee Board of Appeals" in 2020 that pertain to the use of land
in the State Land Use Agriculture District for "short-term vacation rentals,"
which is a form of transient accommodation activity. (Exhibit 10 to Opening
Brief, Dkt. 69, JEFS pages 5-7)
17. At the request of the parties, the Appellee Board of Appeals
allowed the disputants in the "Rosehill Cases" to seek declaratory orders from
the State Land Use Commission and suspended further proceedings on the
6
"Rosehill Cases" then pending before the Appellee Board of Appeals. s In May
of 2020, the "Rosehill" parties and the County of Hawaii filed their petitions for
declaratory orders with the State Land Use Commission. (Id.)
18. On May 20, 2021, the State Land Use Commission issued a
declaratory order that the use of a "farm dwelling" on land in the State Land
Use Agriculture District with a soil productivity rating of Class A or B for
"short-term vacation rentals" is not a direct permitted use under state law.
(Exhibit 9 to Opening Brief, Dkt. 68) s The commission's declaratory order
was made in a "contested case" under Chapter 205, Hawaii Revised Statutes
and the "Rosehill" parties then appealed to this Court in 3CCV-21-0000178.
No one assigned error to the State Land Use Commission's express finding that
a vacation rental is not a "compatible" use in the State Land Use Agriculture
District under Section 205-5(b), Hawaii Revised Statutes. (See Part D.12 to
D.16, Pages 30 to 31, infra)
19. On May 2, 2022, two months after the Appellants Ford, et al.
and Gage had filed their petitions with the Appellee Board of Appeals, this
Court reversed and vacated the State Land Use Commission's declaratory order
that prohibited the use of a "farm dwelling" for vacation rentals (Exhibit 10 to
Opening Brief, Dkt. 69). However, this Court did not rule on the State Land
Use Commission's unappealed finding that a vacation rental is not a "compa-
tible" use in the State Land Use Agriculture District under Section 205-5(b),
Hawaii Revised Statutes. (See Part D.12 to D.16, Pages 30 to 31 infra).
20. The State Land Use Commission then pursued its own
appeal from this Court's judgment to the Intermediate Court of Appeals in
5 There is no evidence as to whether the "Rosehill Cases" remain on
the Appellee Board of Appeals' dockets as active, but suspended cases.
6 On January 20,2022, shortly before the Appellants Ford, et al . '
filed their petitions with the Appellee Board of Appeals, they
informed the Appellee Planning Director, by their attorney, of the
State Land Use Commission' s May 20, 2021 declaratory order for his
consideration. (Dk. , JEFS page 7, ROA 482-484) .
7
CARP-22-000371, which appeal was transferred to the Hawaii Supreme Court
on June 8, 2023 in SCAP-22-0000371. The matter remained pending at the
Hawaii Supreme Court until September 24, 2024 when the Hawaii Supreme
Court rendered its decision in Rosehill u. State of Hawaii Land Use Commission,
supra.
21. This Court notes that on May 19, 2023, before the
Appellants Ford, et al. and Gage filed their Opening Brief herein on July 24,
2023 and before the Appellees Planning Director and Board of Appeals filed
their Answering Brief herein on September 5, 2023, the County of Hawaii (one
of the parties involved in the "Rosehill Cases" in 3CCV-21-0000178) filed a
pleading in SCAP-22-0000371 (Dkt. 3) and argued that this Court did not have
subject matter jurisdiction over the cause in 3CCV-21-0000178 because the
appellants in 3CCV-21-0000178 (the "Rosehill" parties) should have taken their
appeal directly to the Hawaii Supreme Court instead of to this Court pursuant
to Section 205-19, Hawaii Revised Statutes and that this Court's judgment in
3CCV-21-0000178 is therefore void. 8
22. According to Kanahele and the Hawaii Supreme Court in
Rosehill, this Court did not have subject matter jurisdiction over the "Rosehill
Cases" in 3CCV-21-0000178 and, therefore, this Court's decision in 3CCV-21-
0000178 is void. The Hawaii Supreme Court also ruled in Rosehill that the
State Land Use Commission's declaratory order is valid and binding and has
On May 22, 2023, the State Land Use Commission questioned this
Court' s subject matter jurisdiction to have heard the agency appeal in
the "Rosehill Cases" based on the decision rendered by the Hawaii
Supreme Court in In Re Kanahele, 152 Haw. 501, 510, 526 P.3d 478, 487
(2023) , decided on March 15, 2023 . (SOAP-22-0000371, Dkt. 5) . In
Kanahele, the Hawaii Supreme Court held that agency appeals from a
contested case held under Chapter 205, Hawaii Revised Statutes
proceedings are to appealed directly to the Hawaii Supreme Court in
accordance with Section 205-19 (a) , Hawaii Revised Statutes.
s This Court assumes that the Appellees Planning Director and Board
of Appeals, which are county agencies, agreed with the municipality
(the "County of Hawaii") that this Court did not have subject matter
jurisdiction over the "Rosehill Cases" in 3CCV-21-0000178.
8
administrative stare decisis effect on the Appellees Planning Director, Board of
Appeals, Neal and Zanone. See In Re Hawaiian Electric Company. Inc., supra,
81 Haw. at 468, 918 P.2d at 570 (administrative stare decisis of agency orders
applies in Hawaii).
Board of Appeals' Subject Matter Jurisdiction Below
23. Following an exhaustive description of the pre-petition
complaints and the petitions in their Answering Brief (Dkt. 98), the Appellees
Planning Director and Board of Appeals argue that before the Appellee Board of
Appeals could acquire subject matter jurisdiction over the Appellants Ford, et
al. and Gage's petitions, the appellants' petitions filed with the board s must
identify the specific sections of law that the planning director violated, failing
which the Appellee Board of Appeals would not have subject matter jurisdiction
over the petitions. However, the record indicates that the Appellee Board of
Appeals opened PL-BOA-2022-000200 and PL-BOA-2022-0002001 upon the
Ming of the petitions.
24. Further, the Appellee Board of Appeals' Rule 8-4(3),(4) & (5)
only require a petition to contain a "plain statement" of the dispute. 1-0
9 Section 6-9.2, Hawaii County Charter. See also Kona Old Hawaiian
Trails Group v. Lyman, 69 Haw. 81, 91-92, 734 P.2d 161, 167-168 (1987)
io The form of a general petition for an appeal shall conform to
Part 2 of these rules and shall include the following:
(1) The name, address, and telephone number of the appellant
and the name, title, and address of the appellant' s representative.
(2) A description of the property involved in the appeal
including the tax map key number of the property, and the appellant' s
interest in the property.
(3) A plain statement of the nature of the appeal and the
relief requested.
(4) A statement explaining
(A) How the decision appealed from violates the law; or
(B) How the decision appealed from is clearly erroneous; or
(C) How the decision appealed from was arbitrary or
capricious, or characterized by an abuse of discretion or
clearly unwarranted exercise of discretion.
(5) A clear and concise statement of any other relevant facts.
9
25. The pre-petition complaints that were filed with the Appellee
Planning Director (Dkt. 16, JEFS page 37, ROA 039-046; Dkt. 40, JEFS 10,
ROA O10), which are the subject of the petitions in question, show the
following:
a. Four complainants describe the Appellees Neal and
Zanone's property as being located in a county-based Agricultural Project
District, as did the Appellee Planning Director in his "closure letters;"
four complainants describe the property as being in the larger State Land
Use Agriculture District;
b. All of the complainants describe the Appellees Neal and
Zanone's use of their property, which is a form of rental activity, for
which a permit is,required, but that no permit has been issued therefor.
C. All of the complainants describe the Appellees Neal and
Zanone's use of their property as a violation of land use regulations; two
also describe how such use violates the project's Covenants, Conditions
and Restrictions (CCRs).
26. The Appellee Planning Director's "closure letters" (Part A.11,
supra) describe the dispute as whether the Appellees Neal and Zanone can use
their property, which is located in a county-based Agricultural Project District,
for transient accommodation purposes as a permitted use under the county
Zoning Code and Ordinance 97-133.
27. The Appellee Planning Director contends that he did not
have to identify the specific provisions of the county Zoning Code or Ordinance
97-133 that treat transient accommodation activity as being a direct permitted
use in a county-based Agricultural Project District, but at the same time he
contends that the petitioners must identify the specific provisions that declare
that such activity to be a prohibited use.
28. Contrary to the Appellees Planning Director and Board of
Appeals' assertion, the pre-petition January 20, 2022 letter that the attorney
for the Appellants Ford, et al.'s attorney sent to the Appellee Planning Director
(Dkt. 31, JEFS page 7, ROA 482-484) does not purport to augment, modify,
10
supersede or otherwise affect the complaints that the complainants had earlier
sent to the Appellee Planning Director. The letter on its face informs the
Appellee Planning Director that the State Land Use Commission had recently
rendered a declaratory order on the subject, nothing more (Part A.18, supra).
29. The Appellee Ford, et al.'s petition to the Appellee Board of
Appeals (Dkt. 16, JEFS page 1, ROA 001-004), which is written on the county's
pre-printed form (Revised April 2021), states:
Nature of Appeal and Relief Requested
On February 15, 2022, the Planning Director dismissed the
Appellants' complaints ... because he believed that the use of the lot
[Neal and Zanone's lot] for transient rental activity in the State Land Use
(SLU) Agriculture District as well as in the County Agriculture Zoning
District and County Agricultural Project District is a permitted use. 11
The Planning Director erred and the Appellants ask the Board of
Appeals to reverse his decision.
Statement of Error
(1) ..... [T]he State Land Use Commission, acting under Section
205-5(b), HRS, recently held that transient rental activity of a lot that is
located in the SLU Agriculture District is not a permitted use. 12 The
Planning Director did not address the foregoing subjects in his decision.
(2) ..... However, such activity [transient rental activity] is still
subject to the provisions of Chapter 205, HRS and the State Land Use
Commission's jurisdiction (see Point 1).
(3) ..... Ordinance 97-133 requires the land in the Project
District be used in conformance with Chapter 205, HRS and all
applicable laws.
The use of land that is located in these districts are covered by
Chapter 25, Hawaii County Code (the Zoning Code) , in which the Hawaii
County Council describes the kinds of uses that are allowed in a
specific zoning district.
'Z See discussion in Part A.10, supra. Since the soil productivity
rating for the Appellees Neal and Zanone's property is Class C,
Section 205-5 (b) , Hawaii Revised Statutes directs the State Land Use
Commission to "determine" the kind of activity that is "compatible"
with the activities set forth in Section 205-2 (d) , Hawaii Revised
Statutes.
11
Other Relevant Facts
..... [T)he lots in the subdivision are all subject to all of the
requirements of Chapter 205, HRS and the determinations of the State
Land Use Commission made under Section 205-5(b), HRS. .....
(emphasis added)
30. Perry v. Planning Commission, 62 Haw. 666, 685-686, 619
P.2d 95, 108 (1980) states that "technical rules" of pleadings do not apply in an
agency case. All that is required is "fair notice of what the ... claim is and the
grounds upon which it rests."
31. A plain reading of the petitions indicates that the petitioners
allege that the Appellee Neal and Zanone's use of their property for transient
accommodation activity violates the land use regulations that apply to land in
the State Land Use Agriculture District, in the County zoning districts and in
the county-based Agricultural Project District.
32. The petitions refer to Chapter 205, Hawaii Revised Statutes,
which includes Section 205-5(b), Hawaii Revised Statutes (Part A.10 and Part
A.29, supra), which is the statute that governs the use of land in the State
Land Use Agriculture District when the soil productivity rating of the land is
Class C and, further, allege that the Appellee Planning Director had miscon-
strued and misapplied the law governing the use of land in the county
Agriculture zoning districts and the county-based Agricultural Project District.
The fact that the Appellee Board of Appeals was not aware of this point does
not mean that the board lacked subject matter jurisdiction over the subject in
dispute.
33. The Appellee Gage's petition (Dkt. 40, JEFS page 14, ROA
015; JEFS page 4, ROA 001-006, 008-013; JEFS page 42, ROA 134-137, 141,
143), which is written on same pre-printed form (Revised April 2021), states:
Nature of Appeal and Relief Requested
DIRECTOR'S DECISION:
Closure Letter
Complaint: Operating a Short-Term Vacation Rental on ag
lands
12
RELIEF REQUESTED:
Reversal of Director's 2/15/22 decision.
Statement of Error
Hawaii Revised Statutes Chapter 205 violation
State Land Use Commission declaratory order dated
5/20/21
County Zoning Code violation
Ordinance 97-133 violation
STVRs on a farm dwelling is prohibited
Other Relevant Facts
The subdivision CC&Rs prohibit "businesses" and operation
of a STVR is a business.
34. A plain reading of the Appellants Gage's petition also informs
the Appellee Board of Appeals that the dispute concerns the Appellee Planning
Director's "closure letter" and his conclusion therein that the Appellee Neal and
Zanone's use of their property for transient accommodation activity is a direct
permitted use. And, further, that such activity violates the county Zoning
Code, Ordinance 97-133, Chapter 205 of the Hawaii Revised Statutes and the
State Land Use Commission's declaratory order as well as the Covenants,
Conditions and Restrictions governing the subject land.
35. If the petitions allegedly are vague or incomplete, the
Appellee Board of Appeals'jurisdiction was not affected thereby. The Appellee
Board of Appeals obtained subject matter jurisdiction immediately upon the
filing of the petitions under the provisions of Section 6-9.2 of the Hawaii
County Charter.
36. To cure any alleged ambiguity or uncertainty, the Appellee
Board of Appeals could have requested the Appellants Ford, et al. and Gage to
amend their petitions. In fact, the Appellee Board of Appeals held a pre-
hearing conference to identify the issues that are to be determined at the
agency hearing and to ensure procedural readiness.
13
37. On September 6, 2022, the Appellee Board of Appeals
issued scheduling orders that required all of the parties in the Ford Appeal and
in the Gage Appeal to submit (a) objections to the record on appeal as it was
then constituted, (b) supporting exhibits, (c) "dispositive motions" and
responses thereto, (d) legal memoranda or pre-hearing briefs, (e) witness lists
and (fl proposed testimony. (Dkt. 16, JEFS page 33, ROA 033-036; Dkt. 40,
JEFS page 38, ROA 038-041) All of the parties complied with this scheduling
order.
37. The petitions meet the requirements of Appellee Board of
Appeals' Rule 8-4(3), (4) & (5) and the "fair notice" requirement of Pegy v.
Planning Commission, supra.
Open Meeting; Law
38. The Appellee Board of Appeals then scheduled a consolidated
hearing on the Ford Appeal and the Gage Appeal for December 9, 2022. (Dkt.
32, JEFS pages 13, ROA 522-524; Dkt. 40, JEFS Page 38, ROA 038-041) 13
39. The "Sunshine Law" (Chapter 92, Part I, Hawaii Revised
Statutes) does not apply to an agency proceeding when the agency acts in an
adjudicatory capacity, Section 92-6(a)(2), 14 but the Appellee Board of Appeals'
notice of hearing nevertheless states that its hearing would be held pursuant
to the "Sunshine Law," specifically Section 92-7, Hawaii Revised Statutes and
Section 92-5(a)(4), Hawaii Revised Statutes pertaining to executive meetings.
40. Section 13-20(b) of the Hawaii County Charter states that
the Appellee Board of Appeals' meetings are to be open to the public and that
the Appellee Board of Appeals may hold an executive meeting that is closed to
13 Section 91-9 (b) (4) , Hawaii Revised Statutes states that in a
"contested case" the initial notice of hearing "may be limited to a
statement of the issues involved, and thereafter upon application a
bill of particulars shall be furnished."
14 " (a) This part [Part I of Chapter 92, the Sunshine Law] shall
not apply[] . . . [t]o adjudicatory functions exercised by a board and
governed by sections 91-8 and 91-9 [pertaining to contested cases] or
authorized by other sections of the Hawaii Revised Statutes. ."
14
the public when the privacy of an individual, examinations or questionnaires
are involved. See also Section 91-10(a), Hawaii Revised Statutes (agencies
must recognize "privileges").
41. Also, the Appellee Board of Appeals Rules of Practice and
Procedure recognize the attorney-client privilege and state that the Appellee
Board of Appeals may hold an executive meeting, closed to the public, "to
consult with the Board's attorney" pursuant to its own Rule 1-5(e), provided
that "the reason for holding such a meeting ... is recorded and entered into the
minutes of the meeting." ib
Contested Case Procedure
42. The proceedings before the Appellee Board of Appeals below
are "contested cases," as the term is defined in Section 91-1(5), Hawaii Revised
Statutes and Hawaii judicial precedent, see, e.g., Korean Buddhist Dae Won Sa
Temple v. Sullivan, 87 Haw. 217, 236, 953 P.2d 1315, 1335 (1998), as well as
the Appellee Board of Appeals own rule, Part 3
43. As such, under Section 91-9(d), Hawaii Revised Statutes, the
Appellants Ford, et al and Gage each have the "opportunity" to present
evidence and argument at a "contested case" hearing. is In addition, under
Section 91-12, Hawaii Revised Statutes each of the Appellants have the right to
receive an informed decision from the Appellee Board of Appeals that is
15 " (e) Executive Meetings. The Board may hold an executive
meeting, closed to the public, upon an affirmative vote, taken at an
open meeting, of two-thirds of the members present. The vote of each
member on the question of holding a meeting closed to the public and
the reason for holding such a meeting shall be recorded and entered
into the minutes of the meeting. A meeting closed to the public may
be held only for one or more of the following purposes: (1) [t] o
consult with the Board' s attorney; (2) [f] or any other specific
purpose authorized by law." (emphasis added)
16 "Opportunities shall be afforded all parties to present evidence
and argument on all issues involved. "
1-5
supported by written findings of fact and conclusions of law. 17 See In re
Hawaii Electric Light Compan Inc., 60 Haw. 625, 641-643, 594 P.2d 612, 623-
624 (1979); In re Terminal Transportation Inc., 54 Haw. 134, 139, 504 P.2d
1214, 121 (1972); Kilauea Neighborhood Association v. Land Use Commission, 7
Haw. App. 227, 232, 751 P.2d 1031, 1035 (1988).
More on the "Rosehill Cases"
44. In late September of 2022, five months after this Court
rendered its decision in 3CCV-21-0000178 and in advance of the hearing that
was scheduled on the petitions before the Appellee Board of Appeals, the
Appellants Ford, et al. filed a motion with the Appellee Board of Appeals to
exclude any reference to the "Rosehill Cases" (Dkt. 28, JEFS page 21, ROA
426-428; Dkt. 29, JEFS page 1, ROA 429-452; Dkt. 30, JEFS page 1, ROA
453-475; Dkt. 31, JEFS page 1, ROA 476-479) because (a) unlike the land in
the "Rosehill Cases," the subject land in question is located in a county-based
Agricultural Project District and the county Zoning Code regulates the use of
land within such a district, (b) neither the parties nor the circuit court in the
"Rosehill Cases" addressed the soil productivity rating class of the land that the
"Rosehill" parties owned, (c) the State Land Use Commission determines what
is a "compatible" use when the soil productivity rating is Class C and (d) that
the commission had actually found in the "Rosehill Cases" that the use of a
"farm dwelling" in the State Land Use Agriculture District for short-term
vacation rental purposes is not a "compatible" or direct permitted use in the
district. is
17 "The agency shall notify the parties to the proceeding by
delivering or mailing a certified copy of the decision and order and
accompanying findings and conclusions within a reasonable time to each
party or' to the party' s attorney of record. " The Board' s own Rule 3-
18 states that "The board shall render a written decision and order in
every contested case, which shall include separate findings of fact
and conclusions of law."
18 See Part D.12 to D.16, Pages 30 to 31, infra, for further
discussion. Also, as is stated above, on September 24, 2024, the
16
45. The Appellants Gage also requested that any reference to the
"Rosehill Cases" be excluded as well. (Dkt. 46, JEFS page 22, ROA 290-294)
46. In summary, the Appellants Ford, et al. and Gage argued
that the "Rosehill Cases" were neither applicable nor relevant and were
distinguishable from their own appeals before the Appellee Board of Appeals.
47. At the same time, the Appellees Neal and Zanone filed a
motion for summary judgment in both the Ford Appeal and the Gage Appeal,
asserting that this Court's ruling in 3CCV-21-0000178 (Exhibit 10 to Opening
Brief, Dkt. 69) allows them to use their property for transient accommodation
purposes as a matter of law (administrative stare decisis). In addition, the
Appellees Neal and Zanone argued that the Appellee Board of Appeals does not
have the authority to enforce private covenants that restrict the use of land.
(Dkt. 26, JEFS page 21, ROA 363-375; Dkt. 27, JEFS page 1, ROA 376-381;
Dkt. 46, JEFS page 4 ROA 272-289
48. The Appellants Ford, et al. and Gage filed objections on
October 5, 2022, including objections that the summary judgment procedure is
not an authorized procedure under Section 91-2(a)(2), Hawaii Revised Statutes.
(Dkt. 27, JEFS page 8, ROA 383-405; Dkt. 28, JEFS page 1, ROA 406-425;
Dkt. 46, JEFS page 28, ROS 296-300; Dkt. 47, JEFS page 1, ROA 301-307)
The Appellants Ford, et al. also included proposed findings and conclusions in
their objections. (Dkt. 27, JEFS page 16, ROA 391-393)
49. In addition, the Appellants Gage objected to said motion on
grounds that the Appellees Neal and Zanone's use of their property for tran-
sient accommodation purposes violated the Covenants Conditions and Restric-
tions (CCRs) that govern the use of a lot in the subject Agricultural Project
District. (Dkt. 46, JEFS 28, ROA 296-300; Dkt. 47, JEFS page 1, ROA 301-
307)
Hawaii Supreme Court determined that transient accommodation is not a
permitted use in the State Land Use Agriculture District, upheld the
State Land Use Commission' s declaratory order and nullified this
Court' s decision in 3CCV-231-0000178 .
17
The Board of Appeals' Hearing
50. On December 9, 2022, the Appellee Board of Appeals held its
first hearing on the Ford Appeal and the Gage Appeal. (Dkt. 32, JEFS page 16,
ROA 522-524; Dkt. 32, JEFS page 16, ROA 525-547)
51. At the start of the hearing, the Appellee Board of Appeals
addressed the Appellees Neal and Zanone's motion for summary judgment.
The Appellees Neal and Zanone grounded their argument on the "Rosehill
Cases" as they had in their written motion. (Dkt. 32, JEFS page 20, ROA
533-534, 537-538)
52. The Appellants Ford, et al. reasserted their position set forth
in their written objections and the Appellants Gage likewise reasserted their
position set forth in their separate written objections. (Id. ROA 535, 536, 538)
53. The Appellee Board of Appeals then voted to convene an
executive meeting that was closed to the public. (Dkt. 32, JEFS page 20, ROA
539) is 20
54. After holding the executive meeting in both the Ford Appeal
and the Gage Appeal, which lasted for approximately one-half hour, the
Appellee Board of Appeals reconvened the public meeting and voted to grant
the Appellees Neal and Zanone's motion for summary judgment in the Ford
Appeal and in the Gage Appeal. (Id. ROA 540-542, 544-546)
19 Board member Wiseman stated, "At this time, Madam Chair, I'm
going to move this summary judgment issue. I'm going to move for
executive session. I need some - I think we should consult with our
counsel on this matter. " (emphasis added) However, Mr. Wiseman did
not describe what the "matter" was that had to be discussed with the
Board' s attorney in an executive meeting. (Dkt.32, JEFS 20, ROA 539)
20 The Appellee Board of Appeals did not transmit the transcript of
the executive meeting to the Court even though the Appellants have
requested the same to be transmitted to the Court. (Dkt. 4 and Dkt.
13)
18
55. No member of the Appellee Board of Appeals, except for
board member Wiseman, explained the reason for his or her vote 21 and the
transcript does not show the reason for the board's vote.
56. This Court can notice that the "Rosehill Cases" originated in
an earlier proceeding that had once been before the Appellee Board of Appeals
in 2020 (Part A.16 and A.17, supra; Exhibit 10 to Opening Brief, Dkt. 69, JEFS
page 5) and might have been the subject of discussion in the executive
meeting, especially since the "Rosehill Cases" were at the center of the
Appellees Neal and Zanone's summary judgment motion. In the absence of a
transcript, written findings or other record, however, this Court can only
speculate on the subjects that were discussed and whether the discussion that
took place in the executive meeting fell within the scope of the attorney-client
privilege.
57. Later, as a part of their objections to the Appellee Board of
Appeals' proposed order, the Appellants Ford, et al. informed the Board of
Appeals that it had no authority to have held the executive meeting and,
further, that it had failed to rule on the Appellants' Ford, et al.'s proposed
findings and conclusions. (Dkt. 32, JEFS page 51, ROA 560-568; Dkt. 33,
JEFS page 1, ROA 569-572; Dkt. 34, JEFS page 1, ROA 600-627; Dkt. 35,
JEFS 1, ROA 626-646; DKT. 36, JEFS 1, ROA 647-659; Dkt. 49, JEFS page
47, ROA 415-424)
21 Board member Wiseman stated, "Yeah, I - in reviewing the Summary
Judgment and all the exhibits attached to it, I - I still, I still,
I'm of the position that the director' s - I'm of the position that the
director, that they correctly applied the Hawaii County Code when they
closed the complaint and that it's not their problem to get involved
in private property disputes . . . . .But I still believe that the
Planning Director's decision in this case - was there a motion on
that? Or no -- . . . . "Just to state that summary judgment is proper
when the record indicates there' s no genuine issue as to any material
fact, and therefore moving probably would be entitled to judgment of
law. That' s all I have." (Dkt.32, JEFS page 20, ROA 541-542)
(emphasis added)
19
The Summary Judgment Orders
58. On April 26, 2023, the Appellee Board of Appeals entered its
final decision and order entitled "Order Granting Landowners Ryan A. Neal
and Beata M. Zanone's Motion for Summary Judgment" in PL-BOA-2022-
000020 (the Ford Appeal) (ROA Dkt. 37, JEFS page 14, ROA 684-696) and
entitled "Order Granting Landowners Ryan A. Neal and Beata M. Zanone's
Motion for Summary Judgment" in PL-BOA-2022-000021 (the Gage Appeal).
(ROA Dkt. 49, JEFS page 70, ROA 443-446). These orders are referred to
collectively as the "Orders."
59. The Orders state that the appeals taken in the Ford Appeal
and in the Gage Appeal are dismissed and operate to terminate the Appellee
Board of Appeals' proceedings. However, the Orders do not contain the
findings of fact and conclusions that are described in Section 91-12, Hawaii
Revised Statutes 22 and Rule 3-18 of the Board's own rules, zs except for the
Appellee Board of Appeals' brief statement that there are no material facts in
dispute and that the Appellees Neal and Zanone are entitled to judgment as a
matter of law.
60. In addition, although the Appellants Ford, et al. had
submitted proposed findings and conclusions in the Ford Appeal (Dkt. 27,
22 "Every decision and order adverse to a party to the proceeding,
rendered by an agency in a contested case,' shall be in writing or
stated in the record and shall be accompanied by separate findings of
fact and conclusions of law. If any party to the proceeding has filed
proposed findings of fact, the agency shall incorporate in its deci-
sion a ruing upon each proposed finding so presented. The agency
shall notify the parties to the proceeding by delivering or mailing a
certified copy of the decision and order and accompanying finding and
conclusions within a reasonable time to each party or to the party's
attorney of record. "
23 " . . . . . The Board shall render a written decision and order in
every contested case, which shall include separate findings of fact
and conclusions of law. "
20
JEFS page 16, ROA 391-393), the Appellee Board of Appeals' Order in the Ford
Appeal does not contain a ruling on the Appellants' proposed findings and
conclusions of law described in Section 91-12, Hawaii Revised Statutes. 24
B.
AGENCY APPEAL TO THIS COURT
1. On May 23, 2023, the Appellants Ford, et al. and Gage filed
a joint agency appeal from the Appellee Board of Appeals' Orders with this
Court pursuant to Section 91-14(b), Hawaii Revised Statutes and Rule 72,
Hawaii Rules of Civil Procedure. (Dkt. 1)
2. In their joint Statement of the Case (ROA Dkt. 3), the
Appellants Ford, et al. and Gage contend that the Appellee Board of Appeals
erred because the Board had acted in violation of constitutional or statutory
provisions, in excess of its statutory authority or jurisdiction and upon
unlawful procedure. They also contend that the Appellee Board of Appeals'
Orders in question are affected by other error of law, are clearly erroneous in
view of the reliable, probative, and substantial evidence on the whole record
and are arbitrary, or capricious, or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.
3. In their Opening Brief (Dkt. 58) the Appellants Ford, et al.
and Gage contend that the Appellee Board of Appeals erred when it:
a. considered the Appellees Neal and Zanone's motion for
summary judgment because such a motion is not an authorized pleading
or procedure and because the Appellees Neal and Zanone are not entitled
to summary judgement even if their motion is an authorized pleading or
procedure;
24 ... If any party to the proceeding has filed proposed findings of
fact, the agency shall incorporate in its decision a ruling on each
proposed finding so presented. ..."
21
b. failed to make written findings and conclusions to support
its Orders and when it failed to rule upon the Appellants Ford, et al.'s
proposed findings and conclusions;
C. held an executive meeting that is not authorized by law; and
d. failed to rule on Appellants' Gage petition that the use of the
lot in question for transient accommodation activity violates the project's
Covenants, Conditions and Restrictions.
4. In response, the Appellee Planning Director and the Appellee
Board of Appeals argue in their Answering Brief(Dkt. 100) that:
a. summary judgment is an authorized procedure before the
Appellee Board of Appeals because Rule 81(b)(12) of the Hawaii Rules of
Civil Procedure extends the summary judgment procedure to the
Appellee Board of Appeals' proceedings; 25
b. the Appellee Board of Appeals provided sufficient findings
and conclusions in support of its Orders and even if those findings and
conclusions are not sufficient, such shortcomings do not constitute
reversible error;
25 Rule 81 (b) (2) states : "These rules shall apply to the following
proceedings except insofar as and to the extent that they are incon-
sistent with specific statutes of the State or rules of court relating
to such proceedings: . . . (12) [plroceedings under [] section 92-6 rela-
ting to public records; . . . (emphasis added)
Section 92-6, Hawaii Revised Statutes contains the list of agency
proceedings that are exempt from the "Sunshine Law, " which include
courts in the judicial branch of government. However, the Appellee
Board of Appeals is not a part of the judicial branch of government
and a proceeding before the Appellee Board of Appeals does not involve
"public records. " Further, Rule 81 (a) makes clear that the exception
pertains to proceedings that are filed in and that are prosecuted "in
any circuit court. " See also Rule 1 (a) that "These Rules govern the
procedure in the circuit courts of the State. . . . " Importantly, the
"Public records" law was republished as Chapter 92F, Hawaii Revised
Statutes (the Uniform Information Practices Act) .
22
C. the Appellee Board of Appeals' executive meeting was
authorized and was held in accordance with law; and
d. the Appellee Board of Appeals lacked subject matter
jurisdiction over the Appellants Ford, et al. and Gage's petitions because
the allegations in the petitions do not set forth the specific provisions of
the Zoning Code or state law that the Appellees Neal and Zanone are
alleged to have violated. 26
The "Campos Case"
5. In June of 2017, long before the "Rosehill Cases" came into
existence, the Fifth Circuit Court held that the use of property with a soil
productivity rating of Class B, C and D cannot be used for transient accommo-
dation purposes in the County of Kauai. On the property owner's appeal to the
Intermediate Court of Appeals, the appellate court rejected the property owner's
arguments and affirmed the circuit court's ruling. Campos u. Planning Commis-
sion, 153 Haw. 386, 539 P.3d 170 (Haw. App., 2023), decided on October 31,
2023.
6. As stated, Campos was not decided on appeal until October 31,
2023, after the Appellants Ford, et al. and Gage had already filed their joint
Opening Brief herein on July 24, 2023 (Dkt. 58) and the ruling in Campos
supports the Appellants' arguments in this agency appeal.
7. The Intermediate Court of Appeals held, in part:
b. HRS Chapter 205, Land Use Commission
"While the counties are empowered to enact zoning
ordinances, HRS chapter 205 clearly limits the permissible uses
allowed within an agricultural district. " Save Sunset Beach Coal.
v. City & Cnty. of Honolulu, 102 Hawaii 465, 482, 78 P.3d 1, 18
26 The Appellees Planning Director and Board of Appeals did not
address Appellants Gage's argument that the Appellees Neal and
Zanone's use of their property violated the Covenants, Conditions and
Restrictions that apply to land in the subject Agricultural Project
District. The Appellants Ford et al. and Gage filed their Reply
thereto, as shown in Dkt. 100.
23
(2003) . "Within agricultural districts . . . accessory agricultural
uses and services described in sections 205-2 and 205-4.5 may be
further defined by each county by zoning ordinance. " HRS § 205-
5 (b) (2017) .
HRS § 205-2 (d) (Supp. 2012) lists seventeen uses or
activities [that] agricultural districts "shall include, " and
transient vacation rentals is not expressly listed. (emphasis
added)
HRS § 205-4 .5 (a) (Supp. 2006 & 2016) delineates the
permissible uses in agricultural districts rated class A or B.
One permissible use in an agricultural district is a farm
dwelling, which was defined as "a single-family dwelling located
on and used in connection with a farm[.] " HRS § 205- 205 (a) (4)
(Supp. 2006 & 2016) . Of the fourteen permissible uses within the
agricultural district enumerated in subsection (a) , none
expressly included transient vacation rentals. HRS § 205-
4 .5 (a) (Supp. 2006) . (emphasis added)
Any use not expressly allowed in subsection (a) is
prohibited, unless an HRS § 205-6 (2001 & Supp. 2016) special
permit or an HRS § 205-8 (2001) nonconforming use certificate is
obtained. See HRS § 205-4 .5 (b) (Supp. 2016) . Thus, any use
permitted by a county not expressly allowed in HRS § 205-4 . 5 (a) ,
or by virtue of HRS §§ 205-6 or 205-8, conflicts with the
statutory regime. Save Sunset Beach Coal., 102 Hawaii at 482,
78 P.3d at 18 . (emphasis added)
153 Haw. at 393-394, 539 P.3d at 177-178.
8. On its face, Campos holds that transient accommodation
activity in the State Land Use Agriculture District and a county-based Agricul-
tural Project District lying therein is not a direct permitted use if the soil
productivity rating of the subject land is Class B or Class C (the soil produc-
tivity rating for the land in this agency appeal is Class Q. No party sought
further review of the Intermediate Court of Appeals' decision and Campos is
now settled law and is on "all fours" with the question presented in this agency ,
appeal. Further, Campos is consistent with the State Land Use Commission's
declaratory order in the "Rosehill Cases." 27
Z' As is stated in Part A.16 to A.20, Pages 8 to 9, supra, the State
Land Use Commission's declaratory order arose in a contested case
under Chapter 205, Hawaii Revised Statutes. Based on legislative
24
9. In their joint Answering Brief filed on June 3, 2024, after
Campos had been decided on October 31, 2023 (Dkt. 139), the Appellees Neal
and Zanone argue that:
a. summary judgment is an authorized procedure before the
Appellee Board of Appeals because it is a form of"motion" described in
Rule 3-12 of the Appellee Board of Appeals Rules of Practice and
Procedure; and
b. the Board of Appeals did not err in its application of the
"Rosehill Cases" and in its Orders. 28
10. The Appellees Neal and Zanone do not describe the status of
the "Rosehill Cases" or discuss Campos and insist that this Court's decision in
3CCV-21-0000178 (the "Rosehill Cases") is controlling, even though this Court
lacked subject matter jurisdiction over the "Rosehill Cases" in 3CCV-21-
000178 and even though Campos is controlling law.
11. Campos is consistent with the Hawaii Supreme Court's
recent decision in Rosehill u. State of Hawaii Land Use Commission, supra, and
both cases are controlling law on the use of land in the State Land Use
Agriculture District.
amendments, Section 205-19, Hawaii Revised Statutes, and Kanahele, an
appeal from such an order must be taken directly to the state supreme
court and not to the circuit court. Although the "Rosehill" parties
did not appeal the commission' s declaratory order to the state supreme
court, the Hawaii Supreme Court ruled in Rosehill that the court would
take jurisdiction over the "Rosehill" parties' appeal in 3CCV-21-
0000178 as if it had been filed directly with the Hawaii Supreme
Court. (Slip Opinion, Pages 18 to 21)
28 The Appellants Ford, et al . and Gage filed their Reply thereto,
as shown in Dkt. 141.
25
C.
STANDARD OF REVIEW
1. In Re Water Use Permit Applications, 94 Haw. 97, 119, 9 P.3d
409, 432 (2000), which is quoted below (with some editorial changes to terms
like "FOF" or "COL"), states that in an agency appeal,
Conclusions of law are freely reviewable to determine if
the agency's decision was in violation of constitutional or
statutory provisions, in excess of statutory authority or juris-
diction of agency, or affected by other error of law. Hardin v.
Akiba, 84 Hawai`i 305, 310, 933 P.2d 1339, 1344 (1997) ; (cita-
tions omitted) ; HRS §§ 91-14 (g) (1) , (2) , and (4) .
A conclusion of law that presents mixed questions of fact
and law is reviewed under the clearly erroneous standard because
the conclusion is dependent upon the facts and circumstances of
the particular case. " Price v. Zoning Bd. of Appeals of City and
County of Honolulu, 77 Hawai `i 168, 172, 883 P.2d 629, 633
(1994) .
A finding of fact or a mixed determination of law and fact
is clearly erroneous when (1) the record lacks substantial evi-
dence to support the finding or determination, or (2) despite
substantial evidence to support the finding or determination, the
appellate court is left with the definite and firm conviction
that a mistake has been made. See Leslie v. Estate of Tavares, 91
Hawaii 394, 399, 984 P.2d 1220, 1225 (1999) . "We have defined
`substantial evidence, as credible evidence which is of suffi-
cient quality and probative value to enable a person of reason-
able caution to support a conclusion." Id. (quoting State v.
Kotis, 91 Hawai`i 319, 328, 984 P.2d 78, 87 (1999) ) .
2. In Citizens Against Reckless Development v. Zoning Board of
Appeals, 114 Haw. 184, 193, 159 P.3d 143, 152 (2007), the Hawaii Supreme
Court added that where the interpretation of statutes or agency rules are
involved, statutory interpretation is a question of law reviewable de novo.
3. And a municipal ordinance must be interpreted to give
meaning to all of its parts and must be interpreted in the manner as other
statutes are interpreted. Leslie v. Board of Appeals, 109 Haw. 384, 395, 126
P.3d 1071, 1082 (2006). Further, if an administrative rule is consistent with
26
the policies of the governing statute and will not, if enforced, produce an
absurd or unjust result, then courts can enforce the rule's plain meaning.
Citizens Against Reckless Development v. Zoning Board of Appeals, supra.
4. An unappealed agency decision has the effect of administra-
tive stare decisis on future agency cases. In Re Hawaiian Electric Company,
Inc., supra
5. An unappealed finding of an agency that is not challenged on
appeal is binding on the parties to the agency proceeding. Ho'omoana Founda-
tion v. Land Use Commission, supra; Tauese v. Department of Labor, supra
6. When the eventual result of a case on remand is fore-
ordained, the appellate court may direct the entry of a prescribed judgment on
remand. Consolidated Amusement Companu, Ltd. v. Waikiki Business Plaza,
Inc. 6 Haw. App. 312, 319, 719 P.2d 119, 1124 (1986).
D.
CONCLUSIONS OF LAW
To the extent that any statement in this Part D is deemed to be a
finding of fact, it shall be treated as such and to the extent that any statement
in this Part D is deemed to be a mixed statement of fact and law, it shall be
treated as such.
• Summga Judgment Procedure Unlawful
1. Section 91-2(a)(2), Hawaii Revised Statutes requires the
Appellee Board of Appeals to adopt rules "setting forth the nature and
requirements of all formal and informal procedures" that it employs in its
"practice." (emphasis added) Noncompliance invalidates the use of any
unpublished rule of procedure. Section 91-2(b), Hawaii Revised Statutes.
2. Rule 3-12 of the Appellee Board of Appeals Rules of Practice
and Procedure does not specifically authorize the use of a motion for summary
judgment and simply refers to the filing of a "motion," without more.
27
3. Under the statutory scheme for agency proceedings under
Chapter 91, Hawaii Revised Statutes, an agency proceeding before the Appellee
Board of Appeals is a quasi-judicial proceeding in which the board engages in
fact-finding through an evidentiary hearing and then determines the case
before it on the basis of the facts so found and the applicable law. An unpub-
lished summary judgment procedure, if allowed, would terminate an appeal
before an appellant is given the "opportunity" to proceed with the board's
evidentiary, fact-finding portion of the "contested case" hearing.
4. Even though the Appellee Board of Appeals may have used
summary judgment procedures "in other cases" as a "dispositive motion," that
"practice" violates Section 91-2(a)(2), Hawaii Revised Statutes. Cf.., Leslie u.
Board of Appeals, supra, 109 Haw. at 394-395, 126 P.3d at 1081-1082 (long
indulged agency practice not allowed if"practice" violates a specific law).
5. Although Section 91-9(e), Hawaii Revised Statutes allows
parties, with the Board of Appeals' approval, to waive or to modify the legisla-
tive provisions for a "contested case" or to allow for pre-hearing discovery or a
one-time summary judgment procedure, that can be done only with the
consent of all parties and the Appellants Ford, et al. and Gage did not consent
to the use of a summary judgment procedure.
6. Further, the Appellee Board of Appeals Rules of Practice and
Procedure do not describe the standard that is to be used in the disposition of
a motion for summary judgment in an agency proceeding. Such a standard is
critical to prevent the abuse of an agency procedure.
7. Rule 81(b)(12), Hawaii Rules of Civil Procedure authorizes
the use of a summary judgment procedure (Rule 56) in cases in the circuit court
that involve "public records." First, the Hawaii Rules of Procedure apply only to
proceedings in the circuit court and not in a county agency proceeding. Rule
1(a), Hawaii Rules of Civil Procedure. Second, the Appellants Ford, et al. and
Gage's petitions do not involve "public records."
28
8. Section 91-1(5) and Section 91-9(d), Hawaii Revised Statutes
guarantee the Appellants Ford, et al. and Gage an "agency hearing" with
"opportunities ... to present evidence and argument on all issues involved."
The Appellee Board of Appeals' own Rule 8-11(b) also guarantees the Appel-
lants "a full hearing on the appeal in accordance with Chapter 91, Hawaii
Revised Statutes."
9. A summary judgment procedure, as it was applied below,
denies the Appellants Ford, et al. and Gage the "full hearing" to which they are
entitled under Section 91-9(d), Hawaii Revised Statutes and the board's Rule 8-
11(b). See In re Kauai Electric Division of Citizens Utilities Company, 60 Haw.
166, 181-182, 590 P.2d 524, 536 (1978) ("full hearing" assured to parties in an
agency proceeding). In addition, the Appellee Board of Appeals could have
made findings and conclusions that explain why it used an unpublished
summary judgment procedure, but did not do so, which leaves this Court to
guess on the board's reasoning.
10. The Appellee Board of Appeals erred when it utilized an
unpublished summary judgment procedure that violates Section 91-2(a)(2),
Hawaii Revised Statutes and, as applied below, that denies the Appellants
Ford, et al. and Gage their right to a "full hearing." Accordingly, the Appellee
Board of Appeals' Orders must be reversed and vacated.
• LUC Declaratory Order in "Rosehill Cases" Binding
11. The facts in the "Rosehill Cases" differ from the facts in this
agency appeal because the subject land in this instance is a county-based
Agricultural Project District and has a soil productivity rating of Class C. Zs-
In addition, the process to determine the permitted use for the subject land in
this agency appeal is described in Section 205-4.5(c) and Section 205-5(b),
29 In the "Rosehill Cases" there is no indication that the subject
properties are assigned to a county-based Agricultural Project
District and the parties informed this Court in 3CCV-21-0000178 by
their pleadings that the soil productivity rating class for the
subject properties are all Class A or B.
29
Hawaii Revised Statutes relating to the "compatibility" of a specific use and the
record is silent as to whether this process was utilized below. su
12. In fact, in the State Land Use Commission's declaratory
order, the commission determined at Page 22, Paragraph 68 of its order that
"A STVR is an incompatible use of a farm dwelling." (emphasis added) (Part
A.19, supra) Although the commission and the parties assumed that the
"Rosehill" parcels have a soil productivity rating of Class A or Class B, the
commission's finding is.equally applicable to land with a soil productivity rating
of Class C. (Exhibit 9 to Opening Brief, Dkt. 68, JEFS Page 24) 31
13. According to the record in 3CCV-21-0000178, none of the
disputants in the "Rosehill Cases" assigned error to the State Land Use Com-
mission's "compatibility" determination in Paragraph 68 (Part A.19, supra;
Exhibit 10 to Opening Brief, Dkt. 69) and that determination is now binding,
Ho'omoana Foundation v. Land Use Commission, 152 Haw. 337, 340, n. 2, 526
P.3d 314, 317, n. 2 (2023) (unchallenged finding is binding); Tauese v. Depart-
ment of Labor, 113 Haw. 1, 29-30, 147 P.3d 785, 813-814 (2000), and would
have res judicata effect as against the Appellees Planning Director and stare
decisis effect as against the Appellees Neal and Zanone and the Appellee Board
of Appeals.
30 Section 205-4 .5 (c) , Hawaii Revised Statutes provides that in
cases where the soil productivity rating is Class C, the State Land
Use Commission determines whether any proposed use is "compatible"
with the list of uses set forth in Section 205-2 (d) , Hawaii Revised
Statutes . The Appellee Board of Appeals ignored the State Land Use
Commission' s "determination" that transient accommodation activity is
not a "compatible" use.
31 At Page 9, paragraph 40 and at Page 29, paragraph 9 of its order,
the State Land Use Commission cites Section 205-5 (b) , Hawaii Revised
Statutes that describes the permitted uses of land with a soil produc-
tivity rating of Class C, D, E or U. (Exhibit 9 to Opening Brief,
Dkt. 68) Again, Section 205-5 (b) authorizes the commission to "dete-
rmine" what activity is "compatible" and, hence, permitted in the
State Land Use Agriculture District. See footnote 4, supra, as to
whether the commission is to make that "determination" by rule-making
or by adjudication.
30
14. Further, this Court lacked subject matter jurisdiction over
the appeal taken by the "Rosehill" parties in 3CCV-21-000178 and the Hawaii
Supreme Court's decision in Rosehill v. State of Hawaii Land Use Commission,
supra, upheld the State Land Use Commissions' declaratory order which is the
"law of the case" and has administrative stare decisis effect on the Appellees
Planning Director, Board of Appeals, Neal and Zanone.
15. The State Land Use Commission's declaratory order
supports the Appellants Ford, et al. and Gage's position in this agency appeal.
16. Furthermore, Campos v. Planning Commission, supra, not
only supports the State Land Use Commission's declaratory order, it is also
consistent with the Hawaii Supreme Court's recent decision in Rosehill v. State
of Hawaii Land Use Commission, supra
• "Campos Case" Controlling
17. In Campos v. Planning Commission, supra, the Intermediate
Court of Appeals held that the owner of land in the State Land Use Agriculture
District, the soil productivity rating of which is Class B, C and D, cannot use
his land for transient accommodation purposes. 12
18. The soil productivity rating for the Appellees Neal and
Zanone's property is Class C and according to Campos, the Appellees Neal and
Zanone cannot use their property for transient accommodation purposes as a
matter of law.
19. Campos is settled law, is consistent with the Hawaii
Supreme Court's recent decision in Rosehill v. State of Hawaii Land Use
Commission, supra, and is binding upon the Appellees Planning Director,
Board of Appeals, Neal and Zanone.
32 It is curious that Hawaii County officials were not in communica-
tion with Kauai County officials since the use of land in the State
Land Use Agriculture District for vacation rental purposes is an issue
of statewide concern on the neighbor islands. The Fifth Circuit
Court' s 2017 decision in Campos was pending appeal in 2020 when the
"Rosehill Cases" arose.
31
• Absence of Written Findings
20. Section 91-12, Hawaii Revised Statutes and the Appellee
Board of Appeals own rule, Rule 3-18, require the Board to make findings of
fact and conclusions of law. It is not sufficient for the Board to say that there
are no material facts in dispute and that the Appellees Neal and Zanone are
entitled to a favorable disposition of its summary judgment motion
(unauthorized).
21. It is a matter of long-standing that an agency is required to
make adequate findings and conclusions so a court can review the agency's
actions. In re Hawaii Electric Light Company, Inc., supra; In re Terminal
Transportation Inc., supra; Kilauea Neighborhood Association v. Land Use
Commission, supra.
22. The Appellee Board of Appeals erred in failing to make the
requisite findings and conclusions to support its Orders that granted summary
judgment in favor of the Appellees Neal and Zan one and against the Appellants
Ford, et al. and Gage.
23. A remand to the Appellee Board of Appeals to make findings
and conclusions would ordinarily be in order, In Re Hawaiian Electric Light
Company, Inc., 145 Haw. 1, 23-25, 445 P.3d 673, 695-697 (2019) (remand
required to remedy absence of findings and conclusions), but there is no need
for the Appellee Board of Appeals to make findings and conclusions on a
motion that it is not authorized to utilize, consider or adjudicate and, further,
when the Appellee Board of Appeals is bound by the declaratory order of the
State Land Use Commission that vacation rentals are not "compatible" uses in
the State Land Use Agriculture District (Parts D.13 and D.14, supra) and is
also bound by Campos v. Planning Commission, supra, and Rosehili v. State of
Hawaii Land Use Commission. supra(Part D.19).
• Unlawful Executive Meeting
24. In Office of Hawaiian Affairs v. Kondo, 153 Haw. 170, 180,
528 P.3d 243, 253 (2023), the Hawaii Supreme Court held that agency officials
32
have the right "to freely and fully consult legal counsel." See also Section 91-
10(a), Hawaii Revised Statutes.
25. Thus, even though the Hawaii County Charter limits an
agency's use of an executive meeting to only discuss matters involving the
privacy of individuals, examinations and questionnaires, Section 91-10(a),
Hawaii Revised Statutes, the Appellee Board of Appeals' Rule 1-5(e) and judicial
precedent allow members of the Appellee Board of Appeals to "consult" with
counsel in an executive meeting when necessary.
26. The only statement in the record as to the "reason" for the
executive meeting is board member Wiseman's motion that "I think we should
consult with our counsel on this matter." (emphasis added)
27. However, he did not state what "matter" compelled an
executive meeting, i.e., the "reason" for the executive meeting. Was "consulta-
tion" necessary to discuss, privately, the interpretation to be given to the
"Rosehill Cases," the history of the "Rosehill Cases" that were once before the
board, the continued viability of the "Rosehill Cases," the application of this
Court's decision in 3CCV-21-0000178, the interpretation to be given to the
pleadings, the law that is applicable to land with a soil productivity rating of
Class C, the use of a summary judgment procedure and the decision standard
that applies if such a procedure were authorized, the Fifth Circuit Court's June
2017 ruling in the "Campos Case" which was then on appeal at the Interme-
diate Court of Appeals, the thoughts of the board members on the "matter"
before the board and more?
28. In Civil Beat Law Center for the Public Interest, Inc. v. Citil
and County of Honolulu, 144 Haw. 466, 489, 445 P.3d 47, 70 (2019), a case
arising under the Sunshine Law (Section 92-5(a)(4), Hawaii Revised Statutes),
the court cautioned that "consultations in executive sessions must be
33
purposeful and unclouded by pretext." (emphasis added) 33 And CountU o
Kauai v. Office of Information Practices, 120 Haw. 34, 45-46, 200 P.3d 403,
414-415 (2009) illustrates the importance of maintaining records that can be
used to demonstrate that the "consultation" was in fact "purposeful,"
"unclouded by pretext" and confined to subjects that fall within the legitimate
bounds of the attorney-client privilege.
29. If the discussions that were held in the Appellee Board of
Appeals' executive meeting went beyond the attorney-client privilege, Section
13-20(d) of the Hawaii County Charter states that the meeting would be "null
and void" as would be any action arising therefrom.
30. The Appellee Board of Appeals could have but did not
produce a redacted transcript of its executive meeting to assure the Court that
the discussions that were held in the executive meeting were "purposeful and
unclouded by pretext" and were bonafide attorney-client discussions.
31. Without a transcript or other record of the executive
meeting, no one knows what discussions took place in the executive meeting.
32. The Appellee Board of Appeals has not demonstrated to this
Court that the "reason" for the executive meeting is set forth in the record, that
the "reason" stated, if any, justifies the convening of an executive meeting and,
further, that the scope of the executive meeting was not "pretextual" and was in
fact confined to matters covered by the attorney-client privilege.
33 In making this observation, the court looked back to the
time when it was sufficient for an agency to hold an executive
meeting simply " [t] o consult with [its] attorney" and when
agency officials could and would often engage in discussions
that cover "a broad range of matters" outside of the public' s
view. The State Legislature therefore "limited" the use of
executive meetings with counsel "to prevent the board ` from
inadvertently straying into discussion [s] or deliberations [s] of
a topic not directly related to the executive meeting' s purpose
34
33. The Appellee Board of Appeals erred when it conducted an
executive meeting, closed to the public.
34. Importantly, the Appellee Board of Appeals held an unlawful
executive meeting to consider action on an unauthorized and unlawful sum-
mary judgment procedure to the prejudice of the Appellants Ford, et al. and
Gage.
• CCRs not Addressed
35. The Appellee Board of Appeals' Orders do not contain
findings of fact and conclusions on law as to whether the Appellee Board of
Appeals can or will enforce private restrictive covenants that prohibit certain
use of land or whether the transient accommodation activity that the Appellees
Neal and Zanone have put on their property violate the subject Covenants,
Conditions and Restrictions.
36. The Appellee Board of Appeals, in its Answering Brief, does
not state whether the board can or will enforce such private covenants that
affect the use of land as a servitude.
37. Again, in the absence of the requisite findings and conclu-
sions on point, there is nothing for this Court to review and, further, in light of
the Hawaii Supreme Court's decision in Rosehill v. State of Hawaii Land Use
Commission, supra, the Appellants Gage's contention that Appellees Neal and
Zanone's use of their property for transient accommodation violates the
project's covenants could be decided in a different forum.
DISPOSITION OF THE AGENCY APPEAL
38. The Appellee Board of Appeals erred when it used and
applied an unpublished summary judgment procedure.
39. The Appellee Board of Appeals also erred when it (a) failed to
make findings of fact and conclusions of law in support of its Orders, (b) failed
to rule upon the Appellants Ford, et al.'s proposed findings and conclusions, (c)
failed to document the reason for conducting an executive meeting, (d) failed to
demonstrate that the private discussions that were held in the executive
35
meeting fell within the scope of the attorney-client privilege and (e) failed to
address the alleged violation of the Covenants, Conditions and Restrictions in
question, all of which errors are associated with the Appellee Board of Appeals'
summary judgment Orders.
40. The State Land Use Commission's declaratory order in the
"Rosehill Cases," including its statement that vacation rentals are not
"compatible" in the State Land Use Agriculture District (Part D.12 to D.16,
supra), Campos and Rosehill (Part D.19, supra) are controlling and, together,
constitute the "law of the case."
41. This Court can reverse the Appellee Board of Appeals' Orders
because the board violated applicable statutes, used an unlawful procedure,
committed errors of law, made decisions that are clearly erroneous and acted
in an arbitrary manner as is discussed hereinabove. Section 91-14(g), Hawaii
Revised Statutes.
42. The Appellee Board of Appeals' errors clearly prejudiced the
substantial rights of the Appellants Ford, et al. and Gage.
43. In light of this Court's conclusions, the outcome of the
Appellants Ford, et al. and Gage's petitions are "foreordained."
ORDER
IT IS HEREBY ORDERED THAT:
1. The Appellee Board of Appeals' Orders are reversed and
vacated;
2. The Appellee Board of Appeals is directed to enter orders in
PL-BOA-2022-000200 (the Ford Appeal) and PL-BOA-2022-000201 (the Gage
Appeal) that grant the appeals taken by the c ' appellants therein.
Dated at Kailua-Kona, Ha ail: 2024.
36