2026-05-12 Appellant's Memorandum in Opposition to Motions to Dismiss (PL-BOA-2025-000119 & 121)

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"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