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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 (emphasis added) Noncompliance invalidates the use of any unpublished rule of procedure.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