HomeMy WebLinkAboutCOM 0675.614 2022-2024 P/ PCPwO
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From: Erin Gallogly
Sent: Tuesday, November 5, 2024 1:52 PM
To: Council Testimony
Subject: TAR BILL 121 Draft 4 - Written Testimony
Attachments: Title 11 Chapter 46 Hawaii Admin Rules 11-46 HAR.pdf; HRS 711-1101 Disorderly
Conduct Unreasonable Noise - capitol.hawaii.gov_hrscurrent_Vo114_Ch0701-0853
_HRS0711_HRS_0711-1101 for TAR BILL 121.pdf; 20240924 Rosehill -
scap-22-0000371 No STVR on AG.pdf; 20241105 TAR Bill 121 Recommendations for
DRAFT 4 meeting 20241108.pdf
Aloha Council Members,Attached pls find my written testimony for TAR BILL 121 DRAFT 4 dated
11/1/2024. I also include SLH 1989 ACT 212, 11-46 HAR, and 711-1101 HRS regarding Noise.
It's difficult to see a differentiation for"Owner-hosted" in any Agriculture district in light of the Hawaii
Supreme Court's decision stating no STVR on AG.
The Land Use Committee(LUC)was clear on its definition of farm dwelling. A single-family home on an
AG lot IS a farm dwelling. The second and subsequent structures are additional farm dwellings.
Hawaii County Code Chapter 25 is also clear on definitions.
Perhaps the County Members' attorney and Planning Department attorney could confer with the Hawaii
Supreme Court for clarification.
This TAR Bill 121 Draft 4 is creating unenforceable standards.
Mahalo for your time.
i
Erin J Gallogly, 808.478.6071, erin.gallogly@gmail.com
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1
Ref. Date NOV — 6 tu24
Recommendations to Bill 121 Draft 4—meeting on 11/8/2024
Bottom Line Up Front:
• The Hawaii Supreme Court ruled NO short-term vacation rentals (aka transient
accommodation rentals)on AG Land(A,A-#,APD, FA-#, RA-#)
• There should be NO difference in the districts in which an Owner-hosted, Operator-hosted,
and Un-Hosted transient accommodation rental is allowed.
• Do NOT encourage or promote AG land being re-zoned to Residential.
Specific Recommendations:
1. Explicitly state districts in which an Owner-hosted transient accommodation rental may be
registered.
DELETE:
Section 25-4- 16. 1 Owner-hosted transient accommodation rentals. (EMPHASIS ADDED)
a)Where permitted.When the transient accommodation rental is subordinate and clearly or
customarily incidental to its use as the principal home of the owner, a transient accommodation
rental may be registered at any time in any zoning district subject to the following requirements:
INSERT:
Section 25-4-16. 1 Owner-hosted transient accommodation rentals.
a)Where permitted.When the transient accommodation rental is subordinate and clearly or
customarily incidental to its use as the principal home of the owner, a transient accommodation
rental may be registered at any time subject to the following requirements in the following districts:
1)V,CG,CN,CV, and CDH districts, including these districts situated within a project district;
2)The transient accommodation rental shall be located in a single-family dwelling, inclusive of a
detached bedroom or guesthouse;
3)The transient accommodation rental shall not be permitted in a farm dwelling,an additional farm
dwelling,additional dwelling unit, or ohana dwelling; and
4)The owner shall live on the building site of the transient accommodation rental.
DELETE:
• (for RA District)Section 12(a)(18) Transient accommodation rentals, owner-hosted.
• (for FA District)Section 13(a)(19) Transient accommodation rentals, owner-hosted.
• (forA District)Section 14(a)(22)Transient accommodation rentals, owner-hosted.
1
Recommendations to Bill 121 Draft 4—meeting on 11/8/2024
JUSTIFICATION:
The Hawaii Supreme Court decision(SCAP-22-0000371 dated 24-SEP-2024)states. on pg. 44:
"V.CONCLUSION
For the reasons stated above,we hold that .... (3)farm dwellings may not be used as short-term
vacation rentals under HRS chapter 205."
The HI Supreme Court did not differentiate between Owner-hosted, Operator-hosted, Un-hosted. If
there is one dwelling on an AG lot, it is still a Farm Dwelling. A second, third, or fourth dwelling is an
additional farm dwelling.
Please also see relevant Land Use Committee(LUC)administrative rules for definitions in SCAP-22-
0000371,g 13:
"Dwelling"means a building designed or used exclusively for single family residential occupancy,
but not including house trailer, multi-family unit, mobile home, hotel, or motel.
"Farm dwelling"means a single-family dwelling located on and used in connection with a farm or
where agricultural activity provides income to the family occupying the dwelling.
"Single-family dwelling"means a dwelling occupied exclusively by one family.
Similarly. Chapter 25, Hawaii County Code states:
"Dwelling"means a building or part thereof designed for or used for residential occupancy or both
and containing one or more dwelling units, and includes double-family dwelling or duplex, mobile
dwelling, multiple-family dwelling and single-family dwelling.
"Farm dwelling"means a single-family dwelling located on or used in connection with a farm, or if
the agricultural activity provides income to the family occupying the dwelling.
"Single-family dwelling"means a building containing only one dwelling unit.
SO, how can an Owner reside in his principal home called a Dwelling also known as a Farm
dwelling or Single-family dwelling while simultaneously renting to a transient visitor?
• Does this mean the Owner will move out of his principal home and move into a second farm
dwelling,which must be an approved additional farm dwelling, in order to"live on the
building site of the transient accommodation rental?"
• The Planning Department should also review the definitions:
o "`Main building'means a building in which is conducted a principal or main use on
the building site on which it is situated."
o —Use'means the purpose to which land or any structure or improvement thereon or
both are or may be put.The word'use'is synonymous with terms'land use'and'use
of land'unless the context clearly indicates otherwise."
THEREFORE,TAR Bill 121 should explicitly state the districts in which an Owner-hosted transient
accommodation rental may be registered.There should be no difference amongst Owner-hosted,
Operator-hosted,and Un-hosted.
2
Recommendations to Bill 121 Draft 4—meeting on 11/8/2024
2. Modifying the reference for Noise,Section 25-4-16.17,(2)(G).
DELETE:Section 25-4-16.17,(2)(G).
(G)Quiet hours shall be from 10: 00 p.m.to 8: 00 a.m., during which time the noise from the
transient accommodation rental shall not disturb adjacent neighbors.Sound that is audible beyond
the property boundaries during non -quiet hours shall not exceed the standards set forth in title 1.
1,chapter 46, Hawai' i Administrative Rules. For the purposes of this section,audible" means
perceptible by person without the use of a sound detection device or audio aides.Violations of this
standard shall be reported to the Hawaii County police department.
INSERT:Section 25-4-16.17,(2)(G).
(G) Noise from the transient accommodation rental shall not disturb adjacent neighbors.
Noise shall not exceed the standards set forth in SLH1989 ACT 212(HSL, 1989,212, Chapter Noise
Pollution)or Chapter 711-1101, Disorderly conduct/Makes unreasonable noise.The presence of
sound as measured by standard testing devices as established by the noise rules adopted by the
department of a volume or_in quantities and for durations which endangers human health,
welfare or safety, animal life, or property or which unreasonably interferes with the comfortable
enjoyment of life and property in the State or in such areas of the State as are affected thereby.
Violations of this standard shall be reported to the Hawaii County police department.
JUSTIFICATION:Again,title 11, chapter 46, Hawai`i Administrative Rules is the incorrect reference.
It should really be ACT 212(HSL, 1989, 212, Chapter Noise Pollution)or Chapter 711-1101,
Disorderly conduct/Makes unreasonable noise.
Please contact the Points of Contact to confirm this information.The standards listed in 11-46-4,
Table 1,ONLY apply to stationary noise and equipment related to agricultural, construction,and
industrial activities. It does not apply to non-fixed, non-stationary noise such as noise from
amplified music sources, microphones, bands,etc. UNLESS you are simply using the definition of
"Noise"found in 11-46, HAR.
The definitions found in 11-46, HAR:
"'Excessive noise source' means any stationary noise source;and equipment related to
agricultural, construction, and industrial activities which emits sound in excess of the maximum
permissible sound levels specified in section 11-46-4, as measured at any point at or beyond the
property line."
"`Noise'means any sound that may produce adverse physiological or psychological effects or
interfere with individual or group activities, including but not limited to communication,work, rest,
recreation,or sleep." This definition maybe used for non-fixed, non-stationary noise, for which
there are neither hours nor decibel(dBA)standards.
"`Stationary noise source' means any mechanical source of noise fixed in or on a station,course,
or mode within any premises, including but not limited to mechanical air conditioning units,
exhaust systems, generators, compressors, pumps, or other similar equipment."
3
Recommendations to Bill 121 Draft 4-meeting on 11/8/2024
Points of Contact:
Hawaii Department of Health: HAR 11-46
Shawn Haruno
Indoor& Radiological Health Branch, Noise Section Supervisor
Hawai'i State Department of Health I Ka `Oihana Olakino
99-945 Halawa Valley Street, Aiea, HI 96701
Office: (808) 586-4700 I Mobile: (808) 294-9695
https://health.hawaii.gov/irhb/noise/
County of Hawaii Police Department: HRS 711-1101
LT Brandon Mansur,Acting Admin LT&Community Policing, 808-326-4646 ext 249;808-
327-9689
4
Recommendations to Bill 121 Draft 4—meeting on 11/8/2024
3. Modifying the definitions for Gathering and Event in Section 2.
GATHERING: Bill 121 Draft 4 is a disservice to local residents. The Draft 4 definition:
"`Gathering" means an assembly that is consistent with activities of residential areas, informal in
nature and with limited scale, including but not limited to a picnic,family dinner, birthday
celebration, and fitness or educational activities.
CHANGE DEFINITION OF GATHERING:
"`Gathering' means an informal congregation typical of residential areas such as a picnic,family
dinner, or small birthday party,where attendees stay within the parking area accompanying a
transient accommodation rental."
JUSTIFICATION:adding fitness activities and educational instruction will encourage the current
bad behavior of fitness/educational/cultural activities such as luaus,fire knife performances,
aerobics, and other events that are NOT normal activities of residential areas especially if there is
NQ limit on the number of bedrooms, rental limits,and/or guests. If renters and their guests are
inside receiving a massage, acupuncture, lei-making, or origami class,the neighbors will have NO
idea of the activity, instruction, event,and/or gathering. However, if there are weekly or monthly
luaus,fitness,cultural, and/or other educational instructions,there will be no end to renters and
their guests shouting"AAAAL0000HAAA"and"Hana Hou! Hana Hou!"
EVENT: Bill 121 Draft 4 is a disservice to local residents. The Draft 4 definition:-Event'means an
assembly,generally by invitation or ticket purchase,that extends beyond the scope of typical
residential living, including but not limited to weddings,wedding receptions, promotional events,
and concerts"
CHANGE DEFINITION OF EVENT: —Event'means an assembly that extends beyond the scope of
typical residential living, including but not limited to weddings,wedding receptions, retreats,
performances,promotional events,and concerts."
JUSTIFICATION:adding generally by invitation or ticket purchase will create a loophole.
5
CONTACT INFORMATION:
LT Mansur, CoH Police Department,Acting Admin LT&Community Policing,808-327-9689
When making a report there is no hour restriction and the complainant should request the
responding officers follow up after their visit or report is filed.
REFERENCES:
capitol.hawaii.gov/hrscurrent/Vo114 Ch0701-0853/HRS0711/HRS 0711-1101.htm
§711-1101 Disorderly conduct. (1) A person commits the offense of disorderly conduct if,with intent
to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a
risk thereof,the person:
(a) Engages in fighting or threatening, or in violent or tumultuous behavior;
(b) Makes unreasonable noise;
(c) Subjects another person to offensively coarse behavior or abusive language which is likely to
provoke a violent response;
(d) Creates a hazardous or physically offensive condition by any act which is not performed under any
authorized license or permit; or
(e) Impedes or obstructs, for the purpose of begging or soliciting alms,any person in any public place
or in any place open to the public.
(2) Noise is unreasonable, within the meaning of subsection(1)(b), if considering the nature and
purpose of the person's conduct and the circumstances known to the person, including the nature of the
location and the time of the day or night,the person's conduct involves a gross deviation from the
standard of conduct that a law-abiding citizen would follow in the same situation; or the failure to heed
the admonition of a police officer that the noise is unreasonable and should be stopped or reduced.
The renter,resident, or owner-occupant of the premises who knowingly or negligently consents to
unreasonable noise on the premises shall be guilty of a noise violation.
(3) Disorderly conduct is a petty misdemeanor if it is the defendant's intention to cause substantial
harm or serious inconvenience, or if the defendant persists in disorderly conduct after reasonable warning
or request to desist. Otherwise disorderly conduct is a violation. [L 1972, c 9,pt of§1; am L 1973, c 136,
§9(a); am L 1974, c 164, §1; am L 1978, c 182, §1; am L 1979, c 79, §1;gen ch 1993; am L 2003,c 48,
§2]
Note
Urinating or defecating in public(repealed December 31, 2016). L 2004, c 84, §2;L 2008, c 77;L
2010, c 75;L 2014,c 50; L 2015,c 35, §51.
Revision Note
In subsection(1)(a), (b), and(c), "or" deleted pursuant to §23G-15.
COMMENTARY ON§711-1101
1
The offense of"disorderly conduct" has been very broadly defined in the past(see below)to include
numerous petty annoyances to the public. Section 711-1101 gives a far narrower definition to the offense,
both because some of the matters previously treated under that heading are now treated elsewhere and
because some of the previous provisions seem unwise. The section requires proof of an intent to cause
physical inconvenience or alarm, or at least a reckless creation of a risk thereof. Subsection(1)(a)is a
standard clause in disorderly conduct legislation,aimed at actual fights and at other behavior tending to
threaten the public generally, for this section requires public alarm, etc.,as distinguished from the private
alarm which may accompany assault. This is an important point. A person may not be arrested for
disorderly conduct as a result of activity which annoys only the police,for example.[1] Police officers are
trained and employed to bear the burden of hazardous situations, and it is not infrequent that private
citizens have arguments with them. Short of conduct which causes "physical inconvenience or alarm to a
member or members of the public" arguments with the police are merely hazards of the trade,which do
not warrant criminal penalties. -
Subsection(1)(c) is directed at"free" speech which exceeds the bounds of constitutional protection. It is
important not to limit free expression, so the formula adopted--"offensively coarse"--is meant to apply
only to obscene and scatalogical language, and not to language that is politically or religiously
offensive. The defendant must know, or must consciously disregard the risk,that the defendant's coarse
language will be offensive. The subsection also prohibits abusive language likely to evoke a violent
reaction from the hearer(though no such reaction need be proved)in order that the public peace will be
promoted by its prohibition.
Subsection(1)(d)is defined to include creation of a hazardous or physically offensive condition by an
act not covered by any authorized license or permit. It would prohibit, for example,the use of a"stink
bomb," strewing garbage or other noxious substances in public places,and turning off the lights in a
public auditorium. Although there is some degree of overlap in some situations between this provision
and §708-828 (criminal use of noxious substances)and §708-829 (criminal littering), subsection(1)(d)is
needed to cover those cases of public annoyance where a private property owner does not wish to file a
complaint or where title to property is not clear.
Disorderly conduct is a violation unless it is the defendant's intention to cause substantial harm or
serious inconvenience, or if the defendant persists in disorderly conduct after a reasonable warning or
request to desist.
The previous Hawaii statute covered a wide range of activity. The text of the former statute follows:,
Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may
be occasioned, commits any of the following acts shall be deemed to have committed the offense of
disorderly conduct:
(1) Uses offensive, disorderly,threatening, abusive or insulting language, conduct or behavior;
(2) Congregates with others on a public street or sidewalk and refuses to move on when ordered by
the police;
(3) By his actions causes a crowd to collect,except when lawfully addressing such a crowd;
(4) Shouts or makes a noise either outside or inside a building during the nighttime to the annoyance
or disturbance of any three or more persons;
2
(5) Interferes with any person in any place by jostling against such person or unnecessarily crowding
him or by placing a hand in proximity of such person's pocket,pocketbook or handbag;
(6) Stations himself on the public streets or sidewalks or follows pedestrians for the purpose of
soliciting alms,or who solicits alms on the public streets unlawfully;
(7) Frequents or loiters about any public place soliciting men for the purpose of committing a crime
against nature or other lewdness;
(8) Causes a disturbance in any street car,railroad car,omnibus or other public conveyance, by
running through it,climbing through windows or upon the seats,or otherwise annoying passengers or
employees therein;
(9) Stands on sidewalks or street corners and makes insulting remarks to or about passing pedestrians
or annoys such pedestrians;
(10) Makes or causes to be made repeated telephone calls with intent to annoy and disturb another
person or his family;
(11) Wears clothing of the opposite sex in any public place with intent to deceive other persons by
failing to identify his or her sex.[2]
The above offense of disorderly conduct was punishable by a fine of not more than$1,000 or
imprisonment of not more than 1 year,or both.[3]
It should be noted that all of the conduct covered by the previous law,except that included in paragraphs
(6),(7),and(11), is covered by various sections of this chapter, if not by the offense of disorderly conduct
itself.
SUPPLEMENTAL COMMENTARY ON§711-1101
When the legislature adopted the Code in 1972,it changed the wording of the Proposed Draft's
subsection(1)(c),which is now subsection(1)(d). The Proposed Draft had recommended that the offense
apply where the perpetrator commits an act"which serves no legitimate purpose of the actor." The
legislature changed that phrase to any act"which is not performed under any authorized license or
permit", since it felt the language of the Proposed Draft was unconstitutionally vague. Conference
Committee Report No.2(1972).
Act 136, Session Laws 1973,made two amendments. The offense of disorderly conduct was amended to
require an intent to cause physical inconvenience or alarm by members of the public. Previously,the
offense merely required an intent to cause"public inconvenience, annoyance,or alarm." In addition,
subsection(1)(b)(now subsection(1)(c))was changed by adding the language "which is likely to provoke
a violent response" after the word "present."
Act 164,Session Laws 1974,further amended the section by clarifying the offense when it involved the
making of unreasonable noise. Conduct involving a gross deviation from the standard of conduct that a
law abiding citizen would follow would be a violation of this provision. Senate Standing Committee
Report No. 967-74,states:
The addition of a new subsection(2)defines the quality of unreasonable noise, as a general principle of
penal liability,used throughout the Hawaii Penal Code,which can be found in §702-206. This definition
3
sets forth an intelligent, flexible and reasonable standard by which enforcement of this provision can be
made. The enforcement of this section is not intended to interfere with reasonable necessary commercial
activities justifiable in their profession or trade and technologically tenable. For example, it is not an
offense that commercial activity causes inconvenience upon a person or persons if, considering the nature
and purpose of such activity and the circumstances surrounding the activity including the location,the
nature of the day(whether a weekend or a holiday)and the time of the day or night,such activity is
reasonable and prudent.
Your Committee has categorically ruled out the argument that people who sleep during the day should
not bear a greater burden than those people who sleep at night. We are well aware that because of
Hawaii's diverse educational,commercial and recreational activities, some people have to sleep during the
day through a degree of noise activity. But we believe that to limit the noise level of the day to that of the
night would impose a dangerous evil that will cause irreparable damage to the general health and welfare
of this state. However,the Committee finds that it is necessary to establish a reasonable standard that can
be applied to all noise situations and not just the quiet of the night.
Enforcement of proposed decible standards is impractical at this time. The state of the art and present
technology do not lend themselves to an acceptable justification for their use in everyday enforcement.
Act 182,Session Laws 1978,added subsection(1)(e). Conference Committee Report(Senate No. 31-
78,House No.27)states: "The conduct which your Committee believes should be regulated is the
impeding and obstructing while begging in a public place or place open to the public. Your Committee
does not find that the specific conduct of begging alone is offensive but begging done in the specified
manner which is offensive to the public should be regulated."
Act 79, Session Laws 1979,added subsection(2)in order to clarify the offense of unreasonable
noise. Conference Committee Report No.63 states:
Your Committee finds that under current statutes, in order to convict a person under the disorderly
conduct statute for making unreasonable noise, one must prove that such person's actions involved a gross
deviation from the standard of conduct of a law-abiding citizen. Prosecution has been difficult using this
broad, if not vague,definition. This bill authorizes any police officer to make a determination of what is
unreasonable noise and makes the failure of a person to heed his warning a punishable offense.
Act 79 also holds a renter,resident or owner-occupant of a premises guilty of a noise violation if he
knowingly or negligently consents to unreasonable noise on his premises.
Act 48, Session Laws 2003,amended this section by updating the crime of disorderly conduct to punish
"video voyeurism" in public places. Senate Standing Committee Report No.637.
Case Notes
Police officers did not violate plaintiffs clearly established constitutional rights by arresting plaintiff
without probable cause. 872 F. Supp. 746(1994).
Sufficiency of complaint to charge offense under section discussed. 58 H. 279, 567 P.2d 1242(1977).
Sufficiency of conduct that annoys the police only. 61 H. 291,602 P.2d 933 (1979).
Harassment not a lesser included offense. 63 H. 548,632 P.2d 654(1981).
4
Noise level not adequate to constitute violation of subsection(1)(b). 64 H. 101,637 P.2d 770 (1981).
Police may testify as to "physical inconvenience or alarm". 68 H.238, 709 P.2d 607(1985).
Lack of substantial evidence to support finding of"gross" deviation under subsection(2). 1 H.App. 10,
612 P.2d 123 (1980).
State failed to show that defendant possessed requisite state of mind for conviction under this section. 1
H.App. 10,612 P.2d 123 (1980).
Evidence supported finding of disorderly conduct. 5 H.App. 120, 678 P.2d 1107 (1984).
State failed to prove that defendant intended to cause physical inconvenience or alarm or recklessly
created a risk thereof to a member or members of public,where disorderly arrest was based on
defendant's actions within apartment after police arrived. 77 H.314(App.), 884 P.2d 377 (1994).
Subsection(2)interpreted as implicitly requiring that a police officer's decision that noise is
unreasonable must be supported by police officer's objectively reasonable finding that the noise is gross
deviation from law-abiding citizen's standard of conduct;there was insufficient evidence of defendant's
unreasonable noise to support the conviction of disorderly conduct/unreasonable noise either as a petty
misdemeanor or as the lesser-included violation. 78 H. 282(App.), 892 P.2d 475 (1995).
Insufficient evidence to establish that defendant's intent was to cause physical inconvenience or alarm by
members of the public where all of defendant's statements and profanity were directed only at police
officers and theatre manager. 79 H. 538 (App.), 904 P.2d 552 (1995).
Insufficient evidence to convict defendant under this section where evidence indicated there was perhaps
one other patron in the library on the day defendant raised defendant's voice, no physical disruption of
library services was caused, and there was no finding that defendant acted with the intent to cause
physical inconvenience to, or alarm by, a member or members of the public, or that defendant acted with
reckless disregard that defendant's conduct might produce such a result. 107 H. 159 (App.), 111 P.3d 54
(2005).
Mentioned: 9 H.App. 315, 837 P.2d 1313 (1992).
§711-1101 Commentary:
1. An individual police officer may,however,be the object of harassment under§711-1106.
2. H.R.S. §772-2.
3. Id. §772-3.
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*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-22-0000371
24-SEP-2024
11:47 AM
Dkt. 44 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
LINDA K. ROSEHILL, Trustee of the Linda K. Rosehill Revocable
Trust dated August 29, 1989, as amended; MARK B. CHESEBRO and
CAROLINE MITCHEL, Trustees of the First Amendment and
Restatement of the 1999 Mark Brendan Chesebro and Caroline
Mitchel Revocable Trust U/D/T dated January 6, 1999; SOMTIDA S.
SALIM, Trustee of the Somtida Salim Living Trust dated February
15, 2007; TODD M. MOSES; PSALMS 133 LLC; JOHN T. FENTON, Trustee
of the John T. Fenton Revocable Trust dated February 27, 2014;
FRANCES T. FENTON, Trustee of the Frances T. Fenton Revocable
Trust dated February 27, 2014; DIRK AND LAURA BELLAMY HAIN,
Trustees of the Bellamy-Hain Family Trust dated September 13,
2017; ROBERT STOPPEK; LAURA B. STOPPEK; NEIL ALMSTEAD; DOYLE
LAND PARTNERSHIP; CHARLES E. and NANCY E. ROSEBROOK; MICHAEL
CORY and EUGENIA MASTON; PAUL T. and DELAYNE M. JENNINGS,
Trustees of the Jennings Family Revocable Trust dated January 5,
2010; MAGGHOLM PROPERTIES LLC; NETTLETON S . and DIANE E. PAYNE,
III, Appellants-Appellees,
vs .
STATE OF HAWAI`I, LAND USE COMMISSION,
Appellee-Appellant,
and
COUNTY OF HAWAI`I,
Appellee-Appellee.
*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
SCAP-22-0000371
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CAAP-22-0000371; CIV. NO. 3CCV-21-0000178)
September 24, 2024
RECKTENWALD, C. J. , McKENNA, EDDINS, AND GINOZA, JJ. , AND
CIRCUIT JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Hawai`i land use is broadly guided by state law. The
counties play an important role, however. They propose land use
maps to the State, implement the land use scheme through zoning
ordinances, and carve out permissible exceptions to the State' s
broad scheme . In 2019, the County of Hawai'i passed an ordinance
banning short-term vacation rentals in the agricultural district
on lots built after 1976 . The Rosehill Petitioners challenge
the County' s ordinance, seeking permission to use farm dwellings
as short-term vacation rentals . We hold that farm dwellings in
the agricultural district may not be used as short-term vacation
rentals because such relief would undermine the purpose of the
agricultural district.
In brief summary, Hawai'i Revised Statutes (HRS)
§ 205-4 . 5 (2017) details all permissible uses of land in the
agricultural district. HRS § 205-4 . 5 (a) (4) (2017) defines a
"farm dwelling, " a permissible use, as "a single-family dwelling
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*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
located on and used in connection with a farm . . . or where
agricultural activity provides income to the family occupying
the dwelling. " In 2019, the County of Hawaii amended its zoning
code to regulate the use of short-term vacation rentals by
requiring owners to register and obtain nonconforming use
certificates from the County Planning Department. Under the
ordinance, the County may only issue a nonconforming use
certificate for land in the agricultural district where the lot
existed before June 4, 1976. Anyone operating a short-term
vacation rental without first obtaining a nonconforming use
certificate is subject to criminal prosecution and
administrative penalties .
After the ordinance was enacted, the Rosehill
Petitioners, who all own lots created after June 4, 1976, sought
nonconforming use certificates . The County denied the
certificates, and the Rosehill Petitioners appealed to the
County Board of Appeals . The County and the Rosehill
Petitioners agreed to stay the appeal and each file a petition
with the Land Use Commission (LUC) , seeking to establish whether
the County' s denial was proper under state law. The LUC ruled •
on the County' s petition and found that farm dwelling use and
short-term vacation rental use are not compatible uses — i. e. ,
that farm dwellings cannot be used as short-term vacation
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*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
rentals . The LUC also concluded that the Rosehill Petition was
speculative and hypothetical.
The Rosehill Petitioners appealed to the circuit
court, which reversed the LUC. The circuit court held that farm
dwelling use and short-term vacation rental use are "not
incompatible." It compared the County ordinance to HRS
§ 205-4 . 5 (a) and held that a dwelling can simultaneously meet
the definition of a farm dwelling and a short-term vacation
rental.
The LUC appealed to the Intermediate Court of Appeals
(ICA) , where the case was extensively briefed. While the case
was pending before the ICA, this court issued In re Kanahele,
which held that declaratory orders entered by the LUC have the
"same status" for judicial review as orders in contested cases .
152 Hawaii 501, 512, 526 P. 3d 478, 489 (2023) . Here, that would
mean that the Rosehill Petitioners should have appealed directly
to this court from the LUC order (rather than, as they did to
the circuit court) . The Rosehill Petitioners then applied for
transfer, which we granted.
This case raises several questions . Preliminarily,
there are two procedural issues raised by Kanahele: (1) Can this
case be transferred from the ICA to this court, nunc pro tunc to
June 18, 2021, the date this appeal was initially filed in the
circuit court; and (2) if the case can be transferred nunc pro
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tunc, what record may the Court consider, and which party should
have the burden of showing error? There are also two
substantive issues : (3) Could the LUC grant the declaratory
order to the County while denying the Rosehill Petition, and
(4) can a farm dwelling in the state agricultural district be
used as a short-term vacation rental?
We hold as follows : (1) yes, we may transfer the case
nuric pro tunc because it is within the statutory and inherent
power of this court to do so and would accord with our
longstanding policy to hear cases on the merits; (2) this court
can use the entirety of the record (though the circuit court' s
findings of fact and conclusions of law have no weight) , and the
Rosehill Petitioners have the burden of showing that the LUC
order was arbitrary and capricious; (3) yes, the LUC properly
granted the declaratory order for the County while denying the
Rosehill Petition because the two parties were not similarly
situated; and (4) no, a farm dwelling in the agricultural
district may not be used as a short-term vacation rental because
that use does not accord with the agricultural district' s
purpose.
We therefore vacate the circuit court' s judgment and
affirm the LUC' s declaratory order.
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II. BACKGROUND
A. Statutory Background
HRS § 205-4 . 5, originally enacted as Act 199 in 1976,
governs the LUC and agricultural lands :
205-4.5 Permissible uses within the agricultural
districts.
(a) Within the agricultural district, all lands with soil
classified by the land study bureau's detailed land
classification as overall (master) productivity rating
class A or B and for solar energy facilities, class B or C,
shall be restricted to the following permitted uses:
(4) Farm dwellings, employee housing, farm buildings,
or activities or uses related to farming and animal
husbandry. "Farm dwelling", as used in this
paragraph, means a single-family dwelling located on
and used in connection with a farm, including
clusters of single-family farm dwellings permitted
within agricultural parks developed by the State, or
where agricultural activity provides income to the
family occupying the dwelling[.]
(b) Uses not expressly permitted in subsection (a) shall be
prohibited, except the uses permitted as provided in
sections 205-6 and 205-8, and construction of single-family
dwellings on lots existing before June 4, 1976. Any other
law to the contrary notwithstanding, no subdivision of land
within the agricultural district with soil classified by
the land study bureau' s detailed land classification as
overall (master) productivity rating class A or B shall be
approved by a county unless those A and B lands within the
subdivision are made subject to the restriction on uses as
prescribed in this section and to the condition that the
uses shall be primarily in pursuit of an agricultural
activity.
Any deed, lease, agreement of sale, mortgage, or
other instrument of conveyance covering any land within the
agricultural subdivision shall expressly contain the
restriction on uses and the condition, as prescribed in
this section that these restrictions and conditions shall
be encumbrances running with the land until such time that
the land is reclassified to a land use district other than
agricultural district.
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HRS § 205-6 (2017) allows counties to "permit certain
unusual and reasonable uses within agricultural and rural
districts other than those for which the district is
classified. "
B. Zoning Code Background and County Planning Procedure
The County of Hawai'i zoning code regulates land
development and use within the County. See Hawai'i County Code
(HCC or the Code) § 25-1-2 (b) . In April 2019, the County
amended its zoning code to regulate the use of short-term
vacation rentals by requiring the owner to register and obtain a
nonconforming use certificate from the Planning Department. HCC
§§ 25-4-16, 25-4-16. 1, Hawai'i County Ordinance, No. 18-114
(2018) . Anyone that operates a short-term vacation rental
without obtaining a nonconforming use certificate may be subject
to criminal prosecution and administrative penalties . HCC
§§ 25-4-16 (b) (7) , 25-2-31, 25-2-35 (2019) . The Code provides,
" [i] n the State land use agricultural district, a short-term
vacation rental nonconforming use certificate may only be issued
for single-family dwellings on lots existing before June 4,
1976. " See HCC § 25-4-16. 1 (e) (2019) . 1
1 June 4, 1976 was the effective date for Act 199, H.B. No. 3262-
76, the act in which the legislature designated the permissible uses within
the agricultural districts now codified at HRS § 205-4.5.
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The County defines a short-term vacation rental as "a
dwelling unit of which the owner or operator does not reside on
the building site, that has no more than five bedrooms for rent
on the building site, and is rented for a period of thirty
consecutive days or less. " HCC § 25-1-5 (b) (2019) . Short-term
vacation rentals are permitted in several areas of the County,
including its resort-hotel district, the general commercial
district, village commercial district, multiple-family
residential district, and General Plan Resort and Resort Node
areas . HCC §§ 25-4-16 (a) (1) , 25-5-90 (2019) .
The Rosehill Petitioners applied for a non-conforming
use certificate for their short-term vacation rental operated on
a lot created after June 4, 1976 in an agricultural district,
which the County denied.
Subsequently, the Rosehill Petitioners appealed the
denials of their application for nonconforming use certificates
to the County' s Board of Appeals . See HCC § 25-4-16. 1 (f) . The
County and the Rosehill Petitioners jointly stipulated to stay
the proceedings at the Board of Appeals pending the disposition
of LUC petitions .
C. The LUC Proceedings
In May 2020, the County and the Rosehill Petitioners
separately filed petitions for declaratory orders before the
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LUC, which were subsequently consolidated. The County presented
the following factual situation: petitioners (a subset of whom
are now the Rosehill Petitioners) who sought and were denied
nonconforming use certificates for short-term vacation rentals
have appealed the denials . The County requested "a Declaratory
Order that 'farm dwellings' may not be used as short-term
vacation rentals pursuant to [HRS] §§ 205-2 and 205-4 . 5, and
Hawaii Administrative Rules (HAR) § 15-15-25 . " (Emphasis
added. ) The Rosehill Petitioners requested a declaratory ruling
"to clarify and affirm that the rental of farm dwellings for
periods of 30 days or less was not prohibited in the State
Agricultural District as of June 4, 1976. " The Rosehill
Petition described the Petitioners as owners of various parcels
of land in the agricultural district, but did not specifically
describe how the Petitioners were using the land.
On May 20, 2021, the LUC entered a consolidated order
denying the Rosehill Petition and granting the County' s
petition.
The LUC concluded:
62. The farm dwelling use and a [short-term vacation
rental] use are not compatible uses. A farm dwelling'
defined under HRS § 205-4.5(a) (4) as a single-family
dwelling that either must be located on and used in
connections with a farm, or where agricultural activity
provides income to the family occupying the dwelling.
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63. In the present proceedings, no facts were submitted
which would contradict the conclusion that a [short-term
vacation rental] use is basically a transient accommodation
effectively for vacation or tourist use, which has no
connection to a farm and is not accessory to an
agricultural use, and does not meet either of the
requirements of the farm dwelling definition. A [short-
term vacation rental] use would therefore improperly
displace the required agricultural use of a farm dwelling.
64. A [short-term vacation rental] is not a permitted use
of a farm dwelling in the Agricultural District under HRS
chapter 205. HRS §§ 205-2 (d) and 205-4.5 (a) expressly lists
the permitted uses in the Agricultural District as a matter
of law. If a use is not listed, it is prohibited. (Short-
term vacation rentals] are not listed permitted uses of a
farm dwelling under HRS chapter 205, and therefore, are
prohibited.
65. Residential use of a farm dwelling without any
connection to an agricultural use has never been allowed in
the Agricultural District. The law has always required that
a farm dwelling be used in connection with a farm or
accessory to an agricultural use.
69. A [short-term vacation rental] is not a permitted use
as a farm dwelling under HRS chapter 205.
The order cited Save Sunset Beach Coal . v. City &
Cnty. of Honolulu, 102 Hawai'i 465, 482, 78 P. 3d 1, 18 (2003) , in
which we held, " [t] o the extent that the Hawai'i County Council
has exercised its legislative judgment to regulate [short term
vacation rentals] to protect and preserve agricultural land in a
•
manner more restrictive than that provided by the LUC, the
County Ordinance controls and must be followed. "
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The LUC Order further held that the petition filed by
the Rosehill Petitioners was speculative under HAR § 15-15-
98 (a) :
79. Without a "specific factual situation" presented to the
Commission, the ROSEHILL PETITIONERS are putting forth a
speculative or purely hypothetical scenario "which does not
involve an existing situation or one which may reasonably
be expected to occur in the near future." Therefore, the
ROSEHILL PETITIONERS' request for relief should be denied,
leaving only the County's question of whether a farm
dwelling may be used as a [short-term vacation rental] for
the Commission's consideration.
D. Court Proceedings
In June 2021, the Rosehill Petitioners appealed the
LUC Order to the Circuit Court of the Third Circuit. 2 In May
2022, the circuit court entered "Findings of Fact, Conclusions
of Law, Decision and Order Reversing the State of Hawaii Land
Use Commission' s Consolidated Declaratory Order. " It held that
the County' s petition should be denied and the Rosehill petition
granted for two reasons . First, it concluded that the "LUC
abused its discretion when it denied the Rosehill Petition on
the grounds that it was `speculative or purely hypothetical. '"
It found that the questions were substantially similar and based
on the same factual situation, so the LUC' s denial was an abuse
of discretion. Second, it concluded that "language of HRS
§§ 205-2 and 205-4 . 5 is plain and unambiguous, " and that " [a]
comparison of [the County ordinance] with HRS Chapter 205 as of
2 The Honorable Wendy M. DeWeese presided.
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June 4, 1976 reveals that a dwelling may simultaneously meet the
definition of a 'farm dwelling' pursuant to HRS Chapter 205 and
the County' s definition of `short-term vacation rental . '"
The LUC appealed the circuit court' s order and
judgment to the ICA. First, the LUC argued that the circuit
court failed to recognize the distinctions between the two
petitions, which were critical to the LUC' s decision. Namely,
the LUC :never 'found that the Rosehill Petitioners actually had
farm dwellings, so it concluded that their petition was
hypothetical . The County, on the other hand, needed to know if
it could enforce its ordinance. Because of this, the LUC
argued, the parties were not similarly situated — so granting
the County petition while denying the Rosehill petition was
permissible.
Second, the LUC argued that short-term vacation
rentals are not a permissible use of farm dwellings in the
agricultural district. The LUC argued (1) short-term vacation
rental was not a permitted use under HRS § 205-4 . 5, which
specifically states that "uses not expressly permitted . . .
shall be prohibited"; (2) short-term vacation rentals would not
align with the purpose of the agricultural district, which is to
protect agricultural land for agricultural use; and (3) the
LUC' s interpretation of its own ambiguous statute should be
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accorded deference. Under the relevant LUC administrative
rules:
"Dwelling" means a building designed or used exclusively
for single family residential occupancy, but not including
house trailer, multi-family unit, mobile home, hotel, or
motel.
"Farm dwelling" means a single-family dwelling located on
and used in connection with a farm or where agricultural
activity provides income to the family occupying the
dwelling.
"Single-family dwelling" means a dwelling occupied
exclusively by one family.
HAR § 15-15-03 (emphasis added) .
As an "accessory building or use, " a farm dwelling
must also be "a subordinate building or use which is incidental
to and customary with a permitted use of the land. " HAR § 15-
15-03. The LUC argued that transient uses cannot coexist with
agricultural activity, and that it used its expertise in land
use when making that determination. And because its
interpretation is consistent with the underlying legislative
purpose of HRS chapter 205 ("to prevent 'the development of
urban type residential communities in the guise of agricultural
subdivisions'") , the LUC argued it did not err.
The County filed an answering brief, agreeing with the
LUC' s arguments . The Rosehill Petitioners also answered,
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defending the circuit court' s decision. First, they argued that
they and the County presented the same fundamental question to
the LUC, so the LUC could not deny the Rosehill petition as
speculative or hypothetical while granting the County petition.
Second, they argued that the plain language of HRS § 205-
4 . 5 (a) (4) , which defines a farm dwelling as a permissible use of
agricultural land, does not set out a minimum rental period. On
the other hand, the County' s definition of a short-term vacation
rental relies solely on how long the premises are rented and not
by the actual usage — so a farm dwelling can also be a short-
term vacation rental.
Extensive briefing followed, in which the parties
reiterated their arguments for and against the use of farm
dwellings as short-term vacations rentals . The Honolulu
Department of Planning filed an amicus brief in support of the
County' s actions . The brief reiterated the County' s and LUC' s
arguments, but also raised the jurisdictional issue following
this court' s holding in Kanahele, which had recently been
published. It argued:
there appears to be a question of whether the Third Circuit
Court possessed jurisdiction to hear an appeal from the
LUC's consolidated order. HRS § 205-19(a) states "[a]ny
other law to the contrary notwithstanding, including
chapter 91, any contested case under this chapter shall be
appealed from a final decision and order or a preliminary
ruling that is of the nature defined by section 91-14 (a)
upon the record directly to the supreme court for final
decision." HRS § 205-19(a) (2017 and Supp. 2019) . In
addition, on March 15, 2023, the Hawaii Supreme Court
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issued an opinion in In re Kanahele, [152] Haw[ai`i] [501,
526 P.3d 478] (2023) ; No. SCOT-19- 0000830, 2023 Haw. LEXIS
75 (2023) , in which it accepted jurisdiction over a direct
appeal from an LUC order. See, Kanahele, 2023 LEXIS 75 at
pp. 21-27. DPP respectfully declines to take a position on
the proper disposition of this case in light of HRS § 205-
19(a) and Kanahele because jurisdictional matters are
outside of its area of expertise and interest. However, DPP
notes the issue raised by HRS [] and Kanahele based on
counsel's duty to make this court aware of relevant law.
The Rosehill Petitioners responded. They claimed that
the circuit court had appellate jurisdiction under Lingle v.
Haw. Gov' t Emps . Ass' n, 107 Hawaii 178, 111 P. 3d 587 (2005) , and
no party disputed that jurisdiction. Alternatively, they
requested the ICA transfer the case to this court nunc pro tunc.
The LUC opposed the Rosehill Petitioners' request to transfer.
Instead, the LUC asserted that the "correct, non-prejudicial way
to dispose of the instant appeal, in light of Kanahele, is to
vacate the circuit court order, strike any associated
proceedings, " and then proceed. (Emphasis in original. )
The Rosehill Petitioners followed their last brief
with a motion to transfer the case to this court. They argued
that when the LUC issued its declaratory order in 2020, all
parties understood that the proper procedure to appeal was to
the circuit court under Lingle. Then Kanahele changed that.
Nunc pro tunc transfer, then, was necessary to preserve their
right to appeal. The LUC and County both opposed the motion.
They argued that in light of Kanahele, the only action that the
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ICA could take was to vacate the circuit court' s decision for
lack of jurisdiction.
The Rosehill Petitioners also filed an application to
transfer with this court. We accepted transfer in June 2023 . 3
III. STANDARDS OF REVIEW
A. Statutory Interpretation
"The interpretation of a statute is a question of law
which this court reviews de novo. " Kanahele, 152 Hawai`i at 509,
526 P. 3d at 486 (quoting Keep the N. Shore Country v. Bd. Of
Land & Nat. Res . , 150 Hawai`i 486, 506, 506 P. 3d 150 (2022) ) .
In reviewing questions of statutory interpretation, we are
guided by the following principles:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
State v. Castillon, 144 Hawai'i 406, 411, 443 P. 3d 98, 103 (2019)
(quoting Panado v. Bd. Of Trs . , Emps . ' Ret. Sys . , 134 Hawai'i 1,
10, 332 P.3d 144, 153 (2014) ) .
3 The County and LUC objected to transfer on jurisdictional
grounds. But a jurisdictional defect in the case does not deprive this court
of its ability to review the jurisdictional question. See Lingle, 107 Hawai'i
at 182-83, 111 P.3d at 591-92 ("When reviewing a case where the circuit court
lacked subject matter jurisdiction, the appellate court retains
jurisdiction . . . for the purpose of correcting the error in
jurisdiction.") .
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B. Agency Appeals
A court' s review of administrative agency decisions is
governed by HRS § 91-14 (g) (Supp. 2016) , which provides :
Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.
"Under HRS § 91-14 (g) , conclusions of law are
reviewable under subsections (1) , (2) , and (4) ; questions
regarding procedural defects under subsection (3) ; findings of
fact under subsection (5) ; and an agency' s exercise of
discretion under subsection (6) . " Kanahele, 152 Hawai'i at 509-
10, 526 P.3d at 486-87 (brackets omitted) (quoting Paul' s Elec.
Serv. , 'Inc. v. Befitel, 104 Hawai'i 412, 416, 91 P. 3d 494, 498
(2004) ) .
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IV. DISCUSSION
As discussed below, we hold as follows : (1) the case
can be transferred nunc pro tunc because under Honoipu Hideaway,
LLC v. Land Use Comm' n, 154 Hawaii 372, 550 P. 3d 1230 (2024) ,
it is within the inherent power of this court and is in pursuit
of our longstanding policy to hear cases on the merits; (2) we
may use the record from the lower courts in the interest of
judicial efficiency, though: we owe the circuit court' s holding
no deference and the Rosehill Petitioners have the burden of
showing that the LUC order was arbitrary and capricious;
(3) the LUC could grant the County petition while denying the
Rosehill petition because the two parties were not similarly
situated; and (4) a farm dwelling in the agricultural district
cannot be used as a short-term vacation rental because that use
fails to accord with the purpose of the agricultural district.
Accordingly, we vacate the circuit court' s order and
judgment, and affirm the LUC' s declaratory order.
A. The Case Can be Transferred Nunc Pro Tunc to Accord with
Hawaii Courts' Longstanding Policy to Reach the Merits of a
Case
This court recently issued Honoipu, in which a party
appealed a declaratory order from the LUC. Its reasoning
applies with equal force here . There, the circuit court
reserved a question for this court: "Whether [the circuit court]
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has the inherent and statutory authority to transfer nunc pro
tunc an appeal, which was timely filed with [the circuit court] ,
to the Supreme Court of Hawaii as the court with appellate
jurisdiction. "4 Honoipu, 154 Hawaii at 373, 550 P. 3d at 1231
(brackets in original) . The question was briefed by both
Honoipu (who was represented by the same lawyers as the Rosehill
Petitioners) and the LUC (who is party to this case) . We
answered yes to the reserved question because " [a] llowing such a
transfer in these limited circumstances accords with our
longstanding policy to hear cases on the merits, and there is
both inherent and statutory power for the courts to do so. " Id.
at 374, 550 P. 3d at 1232 . The reasoning in Honoipu applies
here, as the circumstances are nearly the same. Honoipu
appealed a LUC declaratory order and that appeal was pending
before a circuit court when Kanahele was published. This case,
also an appeal of a LUC declaratory order, was pending before
the ICA when Kanahele was published.
In Honoipu, we held that:
There is both statutory and inherent power to transfer
[the] case. . this court has the authority "to make and
issue any order or writ necessary or appropriate in aid of
its jurisdiction." HRS § 602-5 (a) (5) (2016) . This court
may also
4 "Nunc pro tunc translates to 'now for then.' Nunc pro tunc
actions allow courts to remedy clerical issues, clear errors, and prevent
manifest injustice." Honoipu at 374 n.2, 550 P.3d at 1232 n.2 (citing Nunc
Pro Tunc, Black's Law Dictionary (11th ed. 2019) ) .
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make and award such judgments, decrees, orders
and mandates, issue such executions and other
processes, and do such other acts and take such
other steps as may be necessary to carry into
full effect the powers which are or shall be
given to it by law or for the promotion of
justice in matters pending before it.
HRS § 602-5(a) (6) (emphasis added) .
Article VI, section 1 of the Hawai'i Constitution entrusts
courts with the "judicial power of the State." This court
has interpreted the judicial power as inherently including
"the power to administer justice." Farmer[ v. Admin Dir.
of Ct., State of Haw.] , 94 Hawai'i [232, ] 241, 11 P.3d
[457, ] 466 [ (2000) ] (quoting State v. Moriwake, 65 Haw. 47,
55, 647 P.2d 705, 712 (1982) ) . Hawai'i courts "have
inherent equity, supervisory, and administrative powers as
well as inherent power to control the litigation process
before them. Inherent powers of the court are derived from
the state Constitution and are not confined by or dependent
on statute." State v. Harrison, 95 Hawai'i 28, 32, 18 P.3d
890, 894 (2001) (quoting Kawamata Farms, Inc. v. United
Agric. Prods. , 86 Hawai'i 214, 242, 948 P.2d 1055, 1083
(1997) ) . These powers include, but are not limited to, the
power to "create a remedy for a wrong even in the absence
of specific statutory remedies[, ] . . . to prevent unfair
results[, ] . . . and to curb abuses and promote a fair
process."
[T]he power to "do such other acts and take such other
steps as may be necessary to carry into full effect the
power which are or shall be given to them by law or for the
promotion of justice" gives the circuit court the power to
correct a jurisdictional mistake that was no party' s or
court's fault. HRS § 603-21.9(6) .
Honoipu, 154 Hawaii at 375-76, 550 P.3d at 1233-34 .
This court further held that nunc pro tunc transfer
was appropriate to accord with "our longstanding policy to hear
cases on the merits . " Id. at 374, 550 P. 3d at 1232 . If nunc
pro tunc transfer was not deemed appropriate in Honoipu, the
appellant likely would have lost their right to appeal and their
day in court. Id. at 376-77, 550 P. 3d at 1284-85 . Similarly,
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here, unless the transfer is made nunc pro tunc to when the
Rosehill Petitioners filed their initial appeal, they will lose
their right to an appeal. The case is ripe for review now.
Thus, for the same reasons expressed in Honoipu, we
hold that this case can be transferred using this court' s
inherent and statutory powers and that the transfer is effective
nunc pro tunc to June 18, 2021, the date the Rosehill
Petitioners filed their initial appeal of the LUC declaratory
order.
B. This Court May Review the Entire Record on Appeal,
Including the Circuit Court and ICA Proceedings, but the
Circuit Court' s Ruling Holds No Weight
The LUC and County argue that we should only review
the agency record and disregard the circuit court and ICA
records entirely. They contend that if the Rosehill Petitioners
had properly brought the case under Kanahele' s ruling, " [t] he
record accompanying a direct appeal would have included only the
LUC' s record and Consolidated Order, not the record developed by
the circuit court or the ICA briefing. " Further, they contend
that because the circuit court lacked jurisdiction, that record
and references to that court' s decision will "taint the
arguments" on appeal . The LUC specifically argued that our
holding in Kanahele stated "that the proper record is the record
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from the LUC' s proceedings that resulted in the LUC' s
declaratory order — nothing less, and, importantly, nothing
more." See Kanahele, 152 Hawai'i at 511-12, 526 P. 3d at 488-89
(citing HRS § 205-19) ("any contested case under this chapter
shall be appealed from a final decision and order or a
preliminary ruling that is of the nature defined by section
91-14 (a) upon the record directly to the supreme court for final
decision. ") .
For the sake of judicial efficiency, we may review the
briefing from both the ICA and the circuit court. If the
Rosehill Petitioners had properly brought their appeal to this
court under Kanahele' s holding, then we would have reviewed the
case in the same posture as the circuit court did here. The
circuit court acted as an appellate body in precisely the same
manner as this court does now.
The LUC and County do not contend that additional
evidence was introduced at the circuit court level that would
have affected that court' s review of the agency' s record below.
They want us to ignore the entire record from the lower courts
and dismiss the case. We decline to do so.
This court held in Kanahele that it may directly
review agency decisions on petitions for declaratory relief.
152 Hawai'i at 511, 526 P. 3d at 488 . Prior to that holding,
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there was confusion among litigants as to the proper procedural
avenue. Some petitioners, like Kanahele, appealed directly to
this court. Others, such as the Rosehill Petitioners, appealed
their agency decision to the circuit court. Kanahele' s
jurisdictional rule aimed to align appeals of agency decisions
with the legislature' s intent in passing HRS § 205-19 (a) (as
amended by Act 48) to provide for this court' s direct review of
contested cases and declaratory orders because they have the
"same status" under HRS §§ 91-8, 91-14 and 205-19. Id. at 512,
526 P. 3d at 489.
While we may review the record from the lower court,
the circuit court' s findings of fact, conclusions of law, and
judgment hold no weight. We primarily consider the briefing by
the parties because those briefs set forth the parties '
positions on direct appeal from the LUC. We review the LUC
order de novo. See Kanahele, 152 Hawaii at 509-10, 526 P. 3d at
486-87 (brackets omitted) (quoting Paul' s Elec. Serv. , Inc. v.
Befitel, 104 Hawaii 412, 416, 91 P. 3d 494, 498 (2004) ) .
Because the Rosehill Petitioners had the initial burden on
appeal to show that the LUC acted arbitrarily and capriciously,
they still have that burden now.
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C. The LUC Did Not Act Arbitrarily or Capriciously in Granting
the County' s Declaratory Order While Denying the Rosehill
Petition because the Two Parties Were Not Similarly
Situated
The Rosehill Petitioners argue that the LUC acted
outside of its authority by denying their petition. They claim
that because both petitions were premised on the same facts, the
LUC acted arbitrarily and capriciously in denying one petition
and ruling on the other. We disagree. While the two petitions
were consolidated by the LUC for factfinding, the two parties
are not similarly situated. The County is required to construe
and enforce HRS chapter 205 through its own ordinances . By
presenting the LUC with a question of whether it had the
authority to enforce that code against landowners, the County
showed it was not dealing with a hypothetical or speculative
situation. The County needed to know if it could enforce HCC §
25-4-16 against landowners in violation of the ordinance. . There
is nothing hypothetical or speculative about that situation.
The Rosehill Petitioners, on the other hand, did not
provide evidence in the record for the LUC to hold that they had
farm dwellings connected to agricultural use of the land. Their
counsel stated the following on the record: "As a matter of
candor, I have no idea how these particular properties are used.
I don' t know, because that doesn' t matter; " and "we talked about
this, the [County] Corp Counsel and I, we specifically discussed
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what facts should be presented to the Commission, whether it was
necessary to present issues related to any particular property
or any particular use, and we both agreed that it was not . . .
and that there was no need for any particular information about •
any particular property because that' s not why we' re here. "
Determining whether the Rosehill Petitioners actually
had farm dwellings was the LUC' s obligation. The LUC found that
the Rosehill Petitioners "have not submitted a sufficientrecord
demonstrating that their use or intended use of their subject
.properties are 'farm dwellings' or related to agriculture. " It
found that the Rosehill Petitioners showed only that they had
lots in the agricultural district created after June 4, 1976 and
that they had rented those lots for periods of less than thirty-
one days . The Rosehill Petitioners argue that the County
"admitted" that the Petitioners had farm dwellings, and that
admission should carry the day. The Rosehill Petitioners are
wrong. In the hearing that the Rosehill Petitioners refer to for
County' s "admission, " a deputy planning director for the County
said, " [the Rosehill lots] are all on ag property and parcels
that were created after June 4th, 1976, therefore, we consider
all of their dwelling units on their property to be farm
dwellings . " But that is not all it takes to be a farm dwelling.
A farm dwelling must also be "used in connection with a farm. "
For the LUC to find that the Rosehill lots were farm dwellings,
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the Rosehill Petitioners would have had to also show that their
dwellings were "used in connection with a farm. " It found that
they did not provide such evidence. If a representative from
the county used, the wrong definition for a farm dwelling, there
is no reason for the LUC to credit her "admission" that the
Rosehill lots were farm dwellings .
The Rosehill Petitioners asked the highly-specific
question to the LUC: whether "the rental of farm dwellings for
periods of 30 days or less was not prohibited in the State
Agricultural District as of June 4, 1976. " This attempt to
narrow the question while not showing "any particular
information about any particular property" fails to "involve an
existing situation or one which may reasonably be expected to
occur in the near future" required by HAR § 15-15-
100 (a) (1) (A) (2013) . Therefore, the LUC' s conclusion that the
Rosehill Petition was hypothetical was reasonable.
D. The LUC Did Not Act Arbitrarily or Capriciously in Holding
that Farm Dwellings in the Agricultural District Cannot Be
Used as Short-Term Vacation Rentals
The central merits issue of this appeal is whether
farm dwellings in the agricultural district can be used as
short-term vacation rentals under HRS chapter 205 . We hold that
they cannot.
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1. HRS § 205-4.5 is ambiguous as to short-term vacation
rentals
The Rosehill Petitioners contend that the text of
HRS chapter 205 controls and is unambiguous . They argue that
because HRS § 205-4 . 5 (a) (4) does not mention how long farm
dwellings need to be rented for, and because the County
Ordinance defines short-term vacation rentals in part as being
rented for thirty days or fewer, farm dwellings may be used as
short-term vacation rentals . That narrow view of the statute,
which would allow for the subversion of the purpose of
HRS chapter 205, cannot stand.
In interpreting statutes, we start with the statute' s
language. If there is ambiguity, we look to the intent of the
legislature. See Citizens Against Reckless Dev. , 114 Hawai`i
184, 194, 159 P. 3d 143, 153 (2007) (quoting Peterson v. Haw.
Elec. Light Co. , 85 Hawai`i 322, 327-28, 944 P. 2d 1265, 1270- 71
(1997) ) .
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HRS § 205-4 . 55 states :
205-4.5 Permissible uses within the agricultural
districts. (a) Within the agricultural district, all
lands with soil classified by the land study bureau's
detailed land classification as overall (master)
productivity rating class A or B and for solar energy
facilities, class B or C, shall be restricted to the
•
following permitted uses:
(4) Farm dwellings, employee housing, farm buildings, or
activities or uses related to farming and animal husbandry.
"Farm dwelling", as used in this paragraph, means a single-
family dwelling located on and used in connection with a
farm, including clusters of single-family farm dwellings
permitted within agricultural parks developed by the State,
or where agricultural activity provides income to the
family occupying the dwelling.
By the statute' s text, there appear to be two types of
single-family dwellings that qualify as farm dwellings : the
first is a single-family dwelling located on and used in
connection with a farm,. The second is one in which agricultural
activity provides income to a resident or family occupying the
•
dwelling.
There is ambiguity in the first type of farm dwelling
as to what "in connection with" a farm means . In the past, this
5 In 2021, the legislature amended "used in connection with" to
"accessory to" following a State Office of Planning "Study of Subdivision and
[Condominium Property Regime] on Agricultural Lands on Oahu" in 2021. 2021
Haw. Sess. Laws Act 77, §§ 1-2 at 247-48. The Office of Planning
recommended the change after it found that there was a "proliferation of
dwellings in the agricultural district without any significant farm
component." Off. of Planning, State of Haw. , Act 278 Study of Subdivision and
CPR on Agricultural Lands on Oahu, at 17 (Dec. 29, 2020)
https://files.hawaii.gov/dbedt/op/lud/20201221%20Act%20278%20SLH%202019%20Pro
ject/Act278FinalReporttoLeg20201230.pdf [https://perma.cc/59QG-5L7P] . The
shift from "used in connection with" to "accessory to" supports our
analysis. If anything, it confirms that farm dwellings are not, and were
never intended to be, properly used as short-term vacation rentals.
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court has interpreted "in connection with" to mean "related to, "
"linked to, " or "associated with. " See Laeroc Waikiki Parkside,
LLC v. K. S.K. (Oahu) Ltd. P' ship, 115 Hawai'i 201, 225, 166 P. 3d
961, 985 (2007) . But that definition does not shed more light
on what the relationship between the single-family dwelling and
the farm must be. It might mean that a farmer tenant has a
long-term lease to grow a particular crop, and that tenant lives
in the single-family dwelling. The dwelling is "linked to" the
farm in that it houses the person that, farms there. Or it might
also mean that a visitor to the County of Hawai'i stays at a
single-family dwelling on a farm that operates as a short-term
vacation rental. "Reasonably well-informed persons" can
understand the statute "in two or more different senses . "
Sutherland Statutory Construction § 45 :2 (7th ed. ) . Thus, the
statute has some ambiguity.
The fact that HRS chapter 205 does not require a
minimum rental period for farm dwellings does not mean that they
can be short-term vacation rentals . Rather, the text prohibits
"uses not expressly permitted. " HRS § 205-4 . 5 (b) . And "it is
`generally presumed that the legislature acts intentionally and
purposely in the disparate inclusion or exclusion' of terms in
its statutes ." Matter of Gas Co. , LLC, 147 Hawai'i 186, 200, 465
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P. 3d 633, 647 (2020) (quoting State v. Savitz, 97 Hawai'i 440,
447, 39 P. 3d 567, 574 (2002) (holding that the legislature could
have drafted a statute to include a limitation on the court' s
discretion and noting that " [t] he fact that it did not do so
manifests its intent that it chose not to do so") . Expressio
unius est exclusio alterius principles apply here. 6 The 1976
legislature could have accounted for some type of transient
vacation accommodation in its extensive list of permitted uses .
But it did not .
Of the twenty-four expressly permitted uses under
HRS § 205-4 . 5, of which farm dwellings are but one, none of them
resemble anything close to the type of transient accommodation
that a short-term vacation rental is . A somewhat comparable use
is "agricultural tourism, " which was not added until later and
is only permissible in Maui County. 2012 Haw. Sess . Laws Act
329, § 2 at 1113 . Overnight camps, another somewhat close use,
are explicitly prohibited. HRS § 205-4 . 5 (a) (6) ; see Ho'omoana
Found. v. Land Use Comm' n, 152 Hawai'i 337, 526 P. 3d 314 (2023)
(holding that prohibited uses in the agricultural district
cannot be permitted via special use permits) .
6 Expressio unius est exclusio alterius means "the expression of
one thing is the exclusion of the other." Expressio unius is "a canon of
construction holding that to express or include one thing implies the
exclusion of the other." Expressio unius est exclusio alterius, Black's Law
Dictionary (12th ed. 2024) .
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The LUC argued that "if farm dwellings could be used
for transient accommodations the Legislature would not have
needed to add a provision expressly permitting agricultural
tourism in HRS Chapter 205 . " While "the views of a subsequent
[legislature] form a hazardous basis for inferring the intent of
an earlier one, " the more recent statutory language can provide
some context for the scope of HRS chapter 205 from 1976. United
States v. Price, 361 U.S . 304, 313 (1960) . It can tell us what
the subsequent legislature thought was permissible and what was
not. See Keliipuleole v. Wilson, 85 Hawai'i 217, 225, 941 P. 2d
300, 308 (1997) ("a court may look to `subsequent legislative
history or amendments to confirm its interpretation of an
earlier statutory provision. '") (quoting Franks v. City & Cnty.
of Honolulu, 74 Haw. 328, 340 n. 6, 843 P.2d 668, 674 n. 6
(1993) ) ; see also Cnty. of Hawai'i v. Ala Loop Homeowners, 123
Hawai'i 391, 415, 235 P. 3d 1103, 1127 (2010) (holding that a
report from a subsequent legislature "is not dispositive in our
analysis since it cannot change the meaning of article XI,
section 9 as approved by the voters in 1978, and since it sets
forth the views only of the joint committee, rather than the
legislature as a whole. Nevertheless, it is relevant to the
extent that it provides an explanation for the non-action of the
legislature, which is the body that would be charged with
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enacting legislation to implement the provision if it was not
self-executing. ") (emphasis added) .
Both parties cite to Curtis . There, this court wrote
that because land use statutes are in derogation of the common
law, their provisions must, be strictly construed. But because
the court determined that the term "utility lines" in HRS § 205-
4 . 5 (a) (7) was ambiguous, it looked to the purpose of the
statute. We therefore do the same.
2 . The purpose of HRS § 205-4 .5 is to restrict the use of
specific land to agricultural purposes, and short-term
vacation rentals undermine that purpose
Because the meaning of "farm dwelling" is ambiguous,
we undertake our "obligation to ascertain and give effect to the
intention of the legislature. " Castillon, 144 Hawaii at 411,
443 P. 3d at 103 (quoting Panado, 134 Hawaii at 10, 332 P. 3d at
153) . While we primarily look at the statute' s text, in some
situations "an examination of the debates, proceedings and
committee reports is useful. " Nelson v. Hawaiian Homes Comm' n,
127 Hawaii 185, 198, 277 P. 3d 279, 292 (2012) . As discussed
supra, the text of HRS § 205-4 . 5 and HRS chapter 205 more
broadly cut against the use of transient short-term vacation
rentals in agricultural districts . The text specifically
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excludes any unenumerated use, 7 and the requirement that the farm
dwelling be "used in connection with a farm" also cuts against
transient rental uses . See HRS § 205-4 . 5 (a) (4) .
When creating the LUC in 1961, the legislature wrote
that,
[i]nadequate controls have caused many of Hawai'i's limited
and valuable lands to be used for purposes that may have a
short-term gain to a few but result in a long-term loss to
the income and growth potential of our economy. . . .
Scattered subdivisions with expensive, yet reduced, public
services; the shifting of prime agricultural lands into
nonrevenue producing residential uses when other lands are
available that could serve adequately the urban
needs . . . these are evidences of the need for public
concern and action.
1961 Haw. Sess . Laws Act 187, § 1 at 299.
A standing committee report described the purpose of
the bill proposing the LUC to be, in part, "to protect and
conserve through zoning the urban, agricultural, and
conservation lands within all the counties. A coordinated,
balance [d] approach . . . is essential in order to . . .
[c] onserve forests, water resources and land, particularly to
preserve the prime agricultural lands from unnecessary
urbanization. " H. Stand. Comm. Rep. No. 395, in 1961 House
Journal at 855 (emphasis added) .
7 HRS § 205-4.5 (b) reads, in part: "Uses not expressly permitted in
subsection (a) shall be prohibited, except the uses permitted as provided in
sections 205-6 and 205-8, and construction of single-family dwellings on lots
existing before June 4, 1976."
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Fifteen years later, seeking to protect agricultural
lands from increasing urbanization, the legislature found that,
[a] fter careful consideration, your Committee finds there
is, a danger that agricultural subdivisions may be approved
by the counties, and thus, put agricultural lands to uses
other than for an agricultural pursuit. Inasmuch as the
purpose of the agricultural district classification is to
restrict the uses of the land to agricultural purposes, the
purpose could be frustrated in the development of urban
type residential communities in the guise of agricultural
subdivisions.
To avoid possible abuse within the agricultural
district, this bill more clearly defines the uses
permissible within the agricultural district. Except for
those uses permitted under special use permits in Section
205-6 and those non-conforming uses permitted in Section
205-8, uses not specifically permitted by this bill shall
be prohibited. This bill further provides that the
restrictions on uses and the condition that the uses shall
be primarily in pursuit of an agricultural activity shall
be expressly contained in the instruments of conveyance and
shall be encumbrances running with the land.
[T]his bill is not intended to change the existing
permitted uses on lands within the agricultural district
. . . . Rather, the intent of this bill is to give
additional protection to those lands within the
agricultural district . . . .
Conf. Comm. Rep. No. 6, in 1976 House Journal, at 1095 (first.
emphasis added, second emphasis in original) .
The definition of "farm dwelling" was codified by
House Bill 3262-76. Remarks from the chair of the House
Committee on Water, Land Use Development, and Hawaiian Homes add
more color to the findings and purpose of the bill:
We, in Hawaii, have always been proud of our Land Use
Law and its effectiveness in regulating land use activities
in the State. The economic importance of agriculture, the
imminent pressures of land development, and the prospect of
urban sprawl were factors behind the establishment of land
use laws. In fact, when the Legislature enacted Chapter
205, it declared that `inadequate controls have caused many
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of Hawai'i's limited and valuable lands to be used for
purposes that may have a short-term gain for a few, but
would result in long-term losses to the income and growth
potential of our economy.'
As part of our land use regulation scheme, we
established land use classifications, among which is the
agricultural district. Within an agricultural district, we
define certain permitted uses. These uses include growing
of crops, raising livestock, grazing, farm buildings,
public buildings necessary for agricultural practices,
utility lines, some open-type recreation, and other uses
necessary for conducting agricultural activities.
The administration of permitted uses within
agricultural districts was left to the counties which, by
ordinance, could set more restrictive regulations if they
so desired.
Mr. Speaker, we have laws, we have regulations and we
have county ordinances which govern the uses of
agricultural lands. But, today, we have agricultural
subdivisions within agricultural districts which can only
be viewed as a subterfuge of the spirit and intent of our
land use laws.
What has been happening, Mr. Speaker, is that
landowners have found it difficult to get land reclassified
from agriculture to urban. Therefore, they have taken
advantage of county zoning provisions and, under the
pretext of agricultural subdivisions, have been subdividing
prime agricultural lands into two-acre sites for
residential purposes.
In practice, these agricultural subdivisions are not
only circumventing county zoning provisions but are being
offered at prices very few can afford and becoming, in
fact, agricultural estates.
House Bill 3262-76, House Draft 2, amends the land
use law by listing permissible uses of Class A and B lands
within agricultural districts. Further, the bill
specifically states that no subdivision of Class A or B
lands within an agricultural district shall be approved by
a county unless the land within the subdivision is subject
to the use restrictions in the law and only on the
condition that the Use shall be primarily in pursuit of
agricultural activity. The bill provides for county
regulation of uses for Class C, D and E lands.
The bill further requires that any deed, lease,
agreement of sale, mortgage or any instrument of conveyance
on land located within an agricultural subdivision shall
expressly contain a restriction on use, and that such
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restriction shall provide that the use will be primarily
agricultural in nature. This condition on any instrument
of conveyance shall remain with the land until it is
reclassified for another use.
1976 House Journal at 532-33 (Statement of Representative
Richard Kawakami, Chairman, H. Comm. on Water, Land Use Dev. &
Hawaiian Homes) (emphases added) .
While only some of the issues motivating the passage
of House Bill 3262-76 are relevant here, it is clear that the
general intent of the legislature was to protect land in the
agriculture district from being used for non-agricultural
purposes .
There is no indication either in the statute' s text or
its legislative history that the legislature intended to allow
for farm dwellings to be used as short-term vacation rentals
untethered from agricultural purposes . Rather, transient
accommodations are antithetical to the legislature' s intent. In
Curtis, this court held that there was ambiguity in whether
cellphone towers were "utility lines" or "communications
equipment buildings" under HRS § 205-4 . 5 (a) (7) . 90 Hawai`i at
395-96, 978 P. 2d at 833-34 . We therefore looked "to the `reason
and spirit' of state land use law to determine whether a
cellular phone tower falls within what the legislature
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contemplated as utility lines . " Id. at 396, 978 P. 2d at 834
(quoting HRS § 1-15 (2) ) . This court wrote:
In sum, the overarching purpose of the state land use law
is to "protect and conserve" natural resources and foster
"intelligent," "effective," and "orderly" land allocation
and development. See 1961 Haw. Sess. L. Act 187, § 1 at
299 ("[I]n order to preserve, protect and encourage the
development of the lands in the State for those uses to
which they are best suited for the public welfare . . ., the
power to zone should be exercised by the State.") . See
also Pearl Ridge Estates Community Ass'n v. Lear Siegler,
Inc. , 65 Haw. 133, 144 n. 9, 648 P.2d 702, 709 n. 9
(Nakamura, J. , concurring) ("Thus, conservation lands must
be reserved if practicable, agricultural lands should be
protected, and urban lands should be developed in orderly
fashion.") .
Id.
This court therefore held that "wholesale inclusion of
cellular telephone towers in agricultural districts as `utility
lines' under HRS § 205-4 . 5 (a) (7) unreasonably expands the
intended scope of this term and frustrates the state land use
law' s basic objectives of protection and rational development. "
Id. (emphasis added) . Including short-term vacation rentals in
the definition of "farm dwellings" would similarly unreasonably
expand the intended scope of the term and frustrate the state
land use law' s basic objectives of protection and rational
development.
A farm dwelling must be a "single-family dwelling
located on and used in connection with a farm, " or "where
agricultural activity provides income to the family occupying
the dwelling. " HRS § 205-4 . 5 (a) (4) . In other words, it must be
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used in connection with agricultural activities . The use of a
dwelling as a short-term vacation rental is not connected to
agricultural activities .
3. This court defers to the LUC' s interpretation of an
ambiguous statute unless it is plainly erroneous or
inconsistent with the underlying legislative purpose
When there is ambiguous statutory language, "the
applicable standard of review regarding an agency' s
interpretation of its own governing statute requires this court
to defer to the agency' s expertise and to follow the agency' s
construction of the statute unless that construction is palpably
erroneous . " Pofolk Aviation Haw. , Inc. v. Dep' t of Transp. , 136
Hawai'i 1, 5-6, 354 P. 3d 436, 440-41 (2015) (quoting Gillan v.
Gov' t Emps . Ins . Co. , 119 Hawai'i 109, 114, 194 P. 3d 1071, 1076
(2008) ) . Of course, the "court must still independently analyze
the ambiguous statute to determine whether the agency' s
interpretation is palpably erroneous . " Id. at 7, 354 P. 3d at
442 , (citing Chun v. Emps . Retirement Sys . , 61 Haw. 596, 600-02,
607 P. 2d 415, 419 (1980) . Palpable error can occur when the
agency' s interpretation is "inconsistent with the underlying
legislative purpose. " Dist. Council 50, of Int' l Union of
• Painters & Allied Trades v. Lopez, 129 Hawai'i 281, 287, 298 P. 3d
1045, 1051 (2013) (quoting Haw. Teamsters & Allied Workers v.
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Dep' t of Labor & Indus . Rels . , 110 Hawai'i 259, 265, 132 P. 3d
368, 374) . This deference to the agency " 'reflects a
sensitivity to the proper roles of the political and judicial
branches, ' insofar as 'the resolution of ambiguity in a
statutory text is often more a question of policy than law. '"
Gillan, 119 Hawai'i at 118, 194 P. 3d at 1080 (quoting In re Water
Use Permit Applications, 94 Hawai'i 97, 145, 9 P. 3d 409, 457
(2000) ) .
As discussed supra, the text of HRS § 205-4 . 5 is
ambiguous as to whether a farm dwelling can be used as a short-
term vacation rental. Here, the LUC' s interpretation of
HRS § 205-4 . 5 was not palpably erroneous and was consistent with
the underlying legislative purpose of the statute. The LUC
correctly concluded that the State and the County have
concurrent jurisdiction over land in the agricultural district,
and, quoting this court' s decision in Save Sunset Beach, 102
Hawai'i at 482, 78 P. 3d at 18, "only a more restricted use as
between [the county zoning and State Land Use law] is
authorized. " The LUC ruled that unless a dwelling is in fact
used in connection with a farm, it is not a farm dwelling; that
a short-term vacation rental is a use antithetical to farm
dwelling usage; and that therefore a farm dwelling may not be
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used as a short-term vacation rental. Therefore, it determined
that the County ordinance was enforceable.
The LUC Order conforms with HRS § 205-4 . 5, resolving
the ambiguity in a manner that is consistent with the underlying
legislative purpose. The underlying purpose, discussed supra
Section IV(D) (2) , is to protect land in the agriculture district
from being used for non-agricultural purposes . The LUC Order
concluded that farm dwellings cannot be used as short-term
vacation rentals, protecting land in the agriculture district
from what it found to be non-agricultural use. This decision
accords with the legislative purpose of the statute discussed
above, and we therefore affirm.
We note that Hawai'i' s approach to administrative
deference now differs sharply from federal precedent . These
days, the United States Supreme Court seems determined to ensure
that "settled law easily unsettles . " City ,& Cnty. of Honolulu
v. Sunoco LP, 153 Hawaii 326, 361, 537 P. 3d 1173, 1208 (2023)
(Eddins, J. , concurring) . Recently, the court toppled forty
years of precedent that shaped the "warp and woof of modern
government. " Loper Bright Enters . v. Raimondo, 144 S. Ct. 2244,
2294 (2024) (Kagan, J. , dissenting) . The court overruled
Chevron U.S.A. Inc. v. Nat. Res . Def. Council, Inc. , 467 U.S .
837 (1984) , which molded administrative law doctrine. Under
Chevron, the reviewing court would, upon close inspection, ask
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if Congress had "directly spoken to the precise question at
issue. " Id. at 842 . If it had, "that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress . " Id. at 842-43 . If
the statute was silent or ambiguous as to the question at hand,
the court would defer to the administrative agency' s reasonable
interpretation of the statute. Id. at 844 .
Chevron' s well-reasoned analysis allowed agencies to
function in a modern nation using older statutes — statutes
that, at the time they were written, could not possibly account
for the many nuanced situations that arise in a rapidly changing
world. Justice Kagan' s dissent in Loper Bright cites to
paradigmatic examples of agency deference. See Loper Bright,
144 S . Ct. at 2296-97 . Chevron made for good, balanced
governance, whereby Congress made laws while agencies, subject
to accountability from a duly-elected President, implemented
those laws and reasonably filled in the gaps. As is often the
case, policy implementation requires substantial know-how.
Under Chevron, agencies had the ability to allow experts to,
within reason, make the rules .
Now, the U. S . Supreme Court considers itself and other
federal courts the experts on exceedingly complicated areas of
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American life, including worker safety, 8 air quality, 9 food and
drug safety, 10 airplane safety, 11 telecommunications, 12 and the
integrity of our financial markets . 13 We do not believe the
expertise of courts outstrips that of the agencies charged with
implementing complex regulatory schemes on a day-to-day basis . 14
In Hawai'i, we defer to those agencies with the na'auao
(knowledge/wisdom) on particular subject matters to get complex
issues right. "Ku'ia ka hele a ka na'au ha'aha'a (hesitant walks
the humble hearted) . " Sunoco, 153 Hawai'i at 363, 537 P. 3d at
1210 (2023) (Eddins, J. , concurring) . A court' s domain is the
law, and judges should recognize the limits of their expertise.
4. The County ordinance is a valid legislative act
accorded deference
When the County passed Ordinance 18-114, amending
Chapter 25 of the HCC, it required that existing short-term
E See, e.g. , Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) .
9 See, e.g. , EPA v. EME Homer City Generation, L.P., 572 U.S. 489
(2014) .
to See, e.g., Teva Pharmaceuticals USA, Inc. v. FDA, 514 F. Supp.
3d 66 (D.D.C. 2020)
11 See, e.g. , Newton v. F.A.A., 457 F.3d 1133 (10th Cir. 2006) .
12 See, e.g., City of Arlington v. F.C.C. , 569 U.S. 290 (2013) .
13 See, e.g. , U.S. v. O'Hagan, 521 U.S. 642 (1997) .
14 E.g., Ohio v. EPA, 144 S. Ct. 2040, 2049 (2024) (In Court's
initial opinion, pausing EPA's plan to bring several states into compliance
with ozone pollution-control requirements, confusing "nitrogen oxides," a
group of gases that the EPA is targeting to stem air pollution, with "nitrous
oxide," commonly known as laughing gas) .
•
42
*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
vacation rentals obtain nonconforming use certificates .
HCC §§ 25-1-5; HCC § 25-4-16. 1 (a) , (e) . The scheme generally
prohibited the issuance of nonconforming use certificates in the
agricultural district — only single-family dwellings on lots
existing before June 4, 1976 could obtain a certificate. HCC
§ 25-4-16. 1 (e) . 15 This court held in Save Sunset Beach that a
zoning ordinance passed by the County of Honolulu was a
legislative act and is subject to the deference given
legislative acts . 102 Hawai'i at 474, 78 P. 3d at 10 .
We also held in Save Sunset Beach that "only a more
restricted use as between [the County zoning and the State Land
Use law] is authorized. " 102 Hawai'i at 482, 78 P. 3d at 18 . The
State adopted a dual land use designation approach,
"envision[ing] that the counties would enact zoning ordinances
that were somewhat different from, but not inconsistent with,
the statutes . " Id. Here, the ordinance is more restrictive
than HRS § 205-4 . 5 in that it defines short-term vacation
rentals and the County will not issue nonconforming use
certificates unless lots were existing before June 4, 1976.
When read in conjunction with HRS § 205-4 .5 (b) ' s mandate that
is The County defines a short-term vacation rental as "a dwelling
unit of which the owner or operator does not reside on the building site,
that has no more than five bedrooms for rent on the building site, and is
rented for a period of thirty consecutive days or less." HCC § 25-1-5.
43
*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
uses are prohibited unless expressly authorized, the County
ordinance is "different from, but not inconsistent with" the
state statute.
The Rosehill Petitioners argue that because HRS § .205-
4 . 5 (a) (4) does not mention a minimum rental period, it allows
for their less-than-30-day rentals . But that conclusion ignores
the Sunset Beach holding that allows counties to make more
restrictivezoning rules. than the state, so long as those rules
are consistent with the purpose of state zoning. Here, the
County' s ordinance is consistent with state zoning.
V. CONCLUSION
For the reasons stated above, we hold that (1) this
case' s transfer is nunc pro tunc to June 18, 2021; (2) the
Rosehill Petitioners have failed to show that the LUC acted
arbitrarily or capriciously in granting the County' s petition
while denying the Rosehill Petition; and (3) farm dwellings may
not be used as short-term vacation rentals under HRS chapter
205 .
Because it lacked jurisdiction, we (1) vacate the
circuit court' s May 2, 2022 "Findings of Fact, Conclusions of
Law, Decision and Order Reversing the State of Hawaii Land Use
Commission' s Consolidated Declaratory Order"; and (2) vacate the
44
*** FOR PUBLICATION IN WEST' S HAWAI`I REPORTS AND PACIFIC REPORTER ***
circuit court' s May 2, 2022 Judgment. On the merits, we affirm
the LUC' s May 20, 2021 declaratory order.
Calvert G. Chipchase /s/ Mark E. Recktenwald
Christopher T. Goodin
(Roy A. Vitousek III and /s/ Sabrina S . McKenna
Katherine E. Bruce, ` ° •
on the briefs) /s/ Todd W. Eddinseo
for appellants-appellees
/s/ Lisa M. Ginoza
Douglas S . Chin
Christine N. Ohira /s/ Jeannette H. Castagnetti
Eric S. Robinson
Cori J. Terayama
(Julie H. China,
on the briefs)
for appellee-appellant
Mark D. Disher ,
(Jean Campbell and
Lerisa L. Heroldt,
on the briefs)
for appellee-appellee
Brad T. Saito,
on the briefs
for amicus curiae
45
59.
6 • \��)J
_1 _ir�y
Q'8.9•RIA•�,0
TITLE 11 •
HAWAII ADMINISTRATIVE RULES
DEPARTMENT OF HEALTH
CHAPTER 46
COMMUNITY NOISE CONTROL
§11-46-1
HAWAII ADMINISTRATIVE RULES
TITLE -11
DEPARTMENT OF HEALTH
CHAPTER 46
COMMUNITY NOISE CONTROL
§11-46-1 Purpose
§11-46-2 Definitions
§11-46-3 Classification of zoning districts
§11-46-4 Maximum permissible sound levels in dBA
§11-46-5 Exemptions
§11-46-6 Noise prohibited
§11-46-7 Permits
§11-46-8 Variances
§11-46-9 Measurements of sound levels
§11-46-10 Certification
§11-46-11 Powers and duties
§11-46-12 Inspection of premises
§11-46-13 Other ordinances and rules
§11-46-14 Enforcement
§11-46-15 Records
§11-46-16 Penalties
§11-46-17 Citation
§11-46-18 Administrative penalties
§11-46-19 Injunctive and other relief
§11-46-20 Public records
§11-46-21 Litigation
§11-46-22 Severability.
Historical Note; Chapter 46 is based
substantially on Chapter 43 of Title 11, Hawaii
Administrative Rules, Community Noise Control for Oahu,
Department of Health, State of Hawaii. (Eff 11/6/81;
R SEP 23 1996 l
§11-46-1 Purpose. It is the purpose of this
chapter to define the maximum permissible sound levels,
and to provide for the prevention, control, and
abatement of noise pollution in the State from the
46-1
1969
§11-46-1
following excessive noise sources : stationary noise
sources; and equipment related to agricultural,
construction, and industrial activities . It is also
the purpose of this chapter to establish noise quality
standards to protect public health and welfare, and to
prevent the significant degradation of the environment
and quality of life. [Eft SEP 2 3 1996 ] (Auth:
HRS §§342F-3, 342F-31) (Imp: HRS §§342F-3 , 342F-31)
§11-46-2 Definitions . ' As used in this chapter,
unless the context otherwise requires:
"Activity" means an act or combination of acts
which create noise, and which is associated with any
excessive noise source.
"Agricultural activities" means any or all
activities necessary or incidental for the purpose of
agricultural functions, such as land cultivation, crop
production, and harvesting.
"Ambient or background noise" means the totality
of sounds in a given place and time, independent of the
sound contribution of the specific source being
measured.
"Applicant" means a person or persons responsible
for. the excessive noise source.
"Authorized emergency vehicles" means police and
fire vehicles; private and public ambulances; and state
and county vehicles used for emergencies .
"Best available control technology" means any
limitation based on the maximum degree of noise
reduction which would be' emitted from any excessive
noise source which the director, on a case-by-case
basis, considering environmental and economical impacts
and other costs, determines is achievable for that
source through application of production processes or
available methods, systems, and techniques. If the
director determines that technological or economic
limitations would make the imposition of the provisions
of this chapter infeasible, a design, equipment, work
practice, or operational standard, or a combination
thereof, may be prescribed instead to satisfy the
requirement for the application of the best available
control technology.
"Complaint" means any written charge filed with
the department that a person is violating any provision
of this chapter or order adopted pursuant to this
46-2
:1969
§11-46-2
chapter.
"Construction activities" means any or all
activities, including but not limited to those
activities necessary or incidental to the erection,
demolition, assembling, renovating, installing, or
equipping of buildings, public or private highways,
roadways, premises, and parks.
"Construction equipment" means any device designed
and intended for use in construction, including but not
limited to any air compressor, pile driver, bulldozer,
pneumatic hammer, steam shovel, derrick, crane,
tractor, grader, loader, power saw, pump, pneumatic
drill, compactor, on-site vehicle, and power hand tool.
"Construction site" means any or all areas,
necessary or incidental for the purpose of conducting
construction activities.
"Council" means the legislative body of a county.
"County" means the city and county of Honolulu,
county of Hawaii, county of Kauai, or county of Maui,
State of Hawaii.
"dBA" means the A-weighted sound level or unit of
measurement describing the total sound level of all
noises as measured with a sound level meter using the
"A" weighting network.
"Decibel" means the unit for measuring the volume
of sound, equal to twenty times the logarithm to the
base ten of the ratio of the pressure of the sound
•
measured to the reference pressure, which is twenty
micropascals (0 .0002 dynes per square centimeter) .
"Department" means the department of health, State •
of Hawaii. ,
"Device" means any mechanism or instrument which
is designed to or which actually produces sound when
operated or handled.
"Director" means the director of the department of
health, State of Hawaii, or the director' s duly
• authorized agent .
"Dwelling" means a room or rooms connected
together constituting an independent housekeeping unit
Xor an individual or a family, containing facilities
for bathing or cooking, or both.
"Emergency" means any condition which would
require immediate attention or corrective action to
avoid probable danger to property, or to the health and
safety of people.
"Equipment-" means any or all devices used in an
46-3
1969 .
§11-46-2
operation or activity.
"Excessive noise" means the presence of sound as
measured by standard testing devices, and of a volume,
or in quantities, and for durations, as established by
this chapter.
"Excessive noise source" means any stationary
noise source; and any equipment related to
agricultural, construction, and industrial activity
which emits sound in excess of the maximum permissible
sound levels specified in section 11-46-4, as measured
at any point at or beyond the property line.
"HRS" means Hawaii Revised Statutes.
"Holiday" means a day 'observed by federal or by
state law for suspension of operations in whole or
part.
"Impulsive noise" or "impact noise" means any
sound with a rapid rise and decay of sound pressure
level, lasting less than one second, caused by sudden
contact between two or more surfaces, or caused by a
sudden release of pressure, including but not limited
to any hammering, pile driving, and explosion.
"Industrial activities" means any or all
activities necessary or incidental to manufacturing,
refining, or processing of materials and products.
"Maximum permissible sound levels" means the 'sound
levels assigned to zoning districts, as established by
the director. The maximum permissible sound levels are
specified in section 11-46-4(a) .
"Muffler" means a mechanical apparatus designed to
allow the flow of gas, air, and steam, and to reduce
the noise created by intake from or exhaust to the
atmosphere by such flow.
"Noise" means any sound that may produce adverse
physiological or psychological effects or interfere
with individual or group activities, ,including but not
limited to communication; work, rest, recreation, or
sleep.
"Noise pollution" means noise emitted from any
excessive noise source in excess of the maximum
permissible sound levels.
"Off-hour roadwork" means any roadway construction
between the hours of 6 :00 p.m. and 7:00 a.m. , which
would require a variance from the director. For the
purpose of this definition, roadway construction shall
be limited to any activity, necessary or incidental to
reconstruction or resurfacing of public or private •
46-4
1969
§11-46-2
highways or roads .
"On-site vehicles" means fuel-, electric-, and
air-powered vehicles, stationary and mobile, which are
operated within the boundaries of a construction site
or agricultural or' industrial premises .
"Open space" means any zoning district or parcel
essentially free of structures that serves the purpose
of visual relief and buffering from building or
structural mass.
"Operate" means perform or conduct any activity
associated with an excessive noise source.
"Owner" means the owner of the freehold of the
premises or lesser estate therein, or mortgagees
thereof, a lessee or agent of any of the aforementioned
persons, a lessee of a device or the lessee's agent, a
tenant, operator, or any other person who has regular
control of the premises, or of an equipment, or of a
device.
"Party" means each person or agency named as party
or properly entitled to be a party in any court or
agency proceeding.
"Permit" means written authorization from the
director to operate any excessive noise source.
"Person" means any individual, partnership, firm,
association, public or private corporation, trust
estate or any other legal entity, , or the State or any
of its political subdivisions.
"Premises" means any property, including its
structure and other surrounding property, which is used
as a dwelling, or as a place of business, or as a place
to construct, manufacture, or conduct any activity.
"Property line boundary" means a line drawn
through the points of contact of adjoining lands,
apartments, condominiums, townhouses or duplexes,
owned, rented, or leased by different persons; a
demarcation or a line of separation of properties; and
also, for any two or more buildings sharing common
grounds, the line drawn midway between any two said
buildings. For the purpose of this chapter, the
property line includes all points on a plane formed by
projecting the property line in a manner deemed
appropriate by the director.
"Public space" means any zoning district or parcel
used, owned, or managed by the federal government, the
State of Hawaii, or the counties to fulfill a
governmental function, activity, or service for public
46-5
19 6 9, ,. irr
§11-46-2
benefit, including but not limited to libraries,
satellite city halls, public schools, and post offices .
"School activity" means a public or private school
function for students up through the twelfth grade
which is approved by the school principal or an
authorized representative.
"Sound" means an oscillation in pressure, particle
displacement, particle velocity, or other physical
parameter, in a medium with internal forces that causes
compression and rarefaction of that medium. The
description of sound may include any characteristic of
such sound, including duration, intensity, and
frequency.
"Sound level" means the sound pressure level
obtained by the use of a sound level meter and
frequency weighting network, such as A, B, or C, as
specified in American National Standards Institute
specifications for sound level meters .
"Sound level meter" means an instrument or
combination of instruments, which meets or exceeds the
requirement for a type I or type II sound level meter
as specified in the American National Standard
Institute, ANSI S1 .4-1983, specifications for sound
level meters .
"Sound pressure level" means twenty times the
logarithm to the base ten of the ratio of the measured
sound pressure to the reference sound pressure of
0 .0002 dynes per square centimeter or twenty
micropascals .
"Stationary noise source" means any mechanical
source of noise fixed in or on a station, course, or
mode within any premises, including but not limited to
mechanical air conditioning units, exhaust systems,
generators, compressors, pumps, or other similar
equipment.
"Variance" means a special written authorization
from the director to cause or emit excessive noise in a
manner or amount in excess of applicable standards, or
to do an act that deviates from the requirements of
this chapter or any rules adopted under chapter 342F,
HRS.
"Zoning districts" means the land use districts
established by rules or ordinances adopted by council,
legislature, county, or state government agencies .
[Eff SEP 2 3 1996 i (Auth: HRS §§342F-3, 342F-31)
(Imp: HRS §§342F-1, 342F-3, 342F-31).
46-6
1969 ....
§11-46-4
§11-46-3 Classification of zoning districts.
This section shall describe the zoning districts as
specified in Table 1, maximum permissible sound levels
in dBA, found in section 11-46-4, and as provided in
section 11-46-4:
(1) Class A zoning districts include all areas
equivalent to lands zoned residential,
conservation, preservation, public space,
open space, or similar type.
(2) Class B zoning districts include all areas
equivalent to lands zoned for multi-family
dwellings, apartment, business, commercial,
hotel, resort, or similar type.
(3) Class C zoning districts include all areas
equivalent to lands zoned agriculture,
count , industrial, or similar type.
(Eff SEP 2 3 199 } (Auth: HRS §§342F-3,
342F-31) (Imp: HRS §§342F-3, 342F-31)
§11-46-4 Maximum permissible sound levels in dBA.
(a) The maximum permissible sound levels specified in
Table 1, as provided in this subsection and in section
11-46-3, shall apply to the following excessive noise
sources : stationary noise sources; and equipment
related to agricultural, construction, and industrial
activities .
Table 1. Maximum permissible sounds levels in dBA.
Zoning Districts Daytime Nighttime
(7 a m to 10 p m ) (10 D m to l a m )
Class A 55 45
Class B 60 50
Class C 70 70
(b) The maximum permissible sound levels in Table
1, as provided in subsection (a) , shall apply to any
excessive noise source emanating within the specified
zoning district, and at any point at or beyond (past)
the property line of the premises in a .manner deemed
46-7
19 6 9 ;...
§11-46-4
appropriate by the director.
(c) Noise levels shall not exceed the maximum
permissible sound levels for more than ten per cent of
the time within any twenty minute period, except by
permit or variance issued under sections 11-46-7 and
11-46-8 .
(d) For mixed zoning districts, the primary land
use designation shall be used to determine the
applicable zoning district 'class and the maximum
permissible sound level .
(e) The maximum permissible sound level for
impulsive noise shall be ten dBA above the maximum
permissible sound levels specified in Table 1 of
subsection (a) . "Fast" meter response shall be used to
measure these types of noise. (Eff SEP 3 1996 )
(Ruth: HRS §§342F-3, 342F-31) (Imp: HRS §§342F-3,
342F-31)
§11-46-5 Exemptions. This chapter shall not
apply to the following:
(1) Any authorized emergency vehicle or vehicles
responding to an emergency call or acting in
an emergency;
(2) The sounding of any emergency signaling
device, including but not limited to civil
defense warning systems, burglar and fire
alarms, sirens, whistles, or similar
signaling devices;
(3) Activities related to the emergency
maintenance and repair of state and county
highways, parks, and public utilities
including but not limited to water, sewer,
electric, gas, and telephone systems,
provided the noise is confined to only the
equipment in use;
(4) Operation of emergency generators, when
installed and used as required and necessary
for the protection of public health and
safety, provided the best available control
technology is implemented;
(5) Backup alarm devices on any vehicle, where
such device is required by federal or state
occupational safety and health regulations;
(6) Construction and remedial activities related
to the emergency repair of damages caused by
46-8
1969
§11-46-7
natural disasters, including but not limited
to tsunamis and hurricanes; and
(7) Any school activity which is approved by
school authorities; provided that this
exemption shall limit these activities w� o the
hours of 7 :00 a.m. to 10:00 p.m. (Ef 2 3 ) 1996
(Auth: HRS §§342F-3, 342F-31) (Imp: HRS
§1342F-3, 342F-30, 342F-31)
§11-46-6 Noise prohibited. (a) General
prohibition. Without a permit or variance issued •
pursuant to section 11-46-7 or 11-46-8, no person
within the State shall operate, from any premises or
land owned, rented, leased, occupied, or controlled by
that person, any excessive noise source.
(b) Specific prohibitions.
(1) Mufflers.
(A) No person shall operate nor shall its
owner permit the operation of an on-site
vehicle, construction equipment, or
device, with a motor or exhaust system
or both, without a muffler. This sub-
paragraph shall not apply to pile
hammers and pneumatic hand tools •
weighing less than fifteen pounds; and
('B) No person shall operate nor shall its
owner permit the operation of an on-site
vehicle, construction equipment, tool,
or device, on any premises or a
construction site, with a motor or
exhaust- system or both, which has been
altered, modified, or repaired; provided
this subparagraph shall not apply if the
operator or owner can show that the
altered, modified, or repaired component
is equally or more effective than the
ri in �a 2 m,po� pt in reducing noise.
(Eff ] (Auth: HRS
§§342F-3, 342F-30, 342F-31) (Imp: HRS
5§342F-3 , 342F-30, 342F-31)
§11-46-7 Permits. (a) Applicability. In
accordance with section 342F-4, HRS, the director may
grant, renew, modify, suspend, revoke, or deny permits
46-9
19 69
§11-46-7
•
to operate any excessive noise source which emits or
may emit noise levels in excess of the maximum
permissible sound levels specified in Table 1, Maximum
permissible sound levels in dBA, of section 11-46-4 (a) ,
which is in the public interest, and which may be
subject to such reasonable conditions as the director
may prescribe.
(b) The following factors in granting an
application for permit or an application by a permit
holder for the modification or renewal of a permit, may
be considered by the director:
(1) The best available control technology is
provided to control -noise levels from the
excessive noise source;
(2) The proposed noise emitting activity is in
the public interest, as defined by subsection
(c) ;
(3) The services or activities for which the
permit is sought are temporary and cannot be
delayed, postponed, or rescheduled to a time
period in which such services are permitted;
(4) The applicant requires additional time to
alter or modify the applicant' s activity or
operation to comply with this chapter;
(5) The applicant has disclosed any possible
impact from noises created by any proposed
nighttime activity which may affect the
immediate surrounding; and
(6) The applicant plans to notify the people in
the surrounding area of planned nighttime
activity.
(c) In determining public interest, the director
shall consider the environmental impact of the proposed
action, any adverse environmental effects which cannot
be avoided should the action be implemented, the
alternatives to the proposed action, the relationship
between local short-term uses of the environment and '
the maintenance and enhancement of long-term
productivity, any irreversible and irretrievable
commitments of resources which would be involved in the
proposed action should it be implemented, and any other
factors which the director may by rule prescribe.
(1). Any determination of public interest shall
promote the optimum balance between economic
development and environmental quality.
(d) Application for permit or renewal .
(1) Every application for permit or renewal
46-10
19bq
§11-46-7
shall be submitted on forms furnished by the
director.
(2) The applicant shall submit sufficient
information to enable the director to make a
decision• on all applications. Subject to the
request of the director, every application
for permit or renewal may include the
following information:
. (A) Applicant identification;
(B) Type and purpose of activity; .
(C) Location and time of activity; •
(D) A list of vehicles, construction or
agricultural equipment, tools, and any
devices;,
(E) A description of the stationary noise
source, including information pertaining
to the purpose of the noise producing
source including supporting facts which
demonstrate that termination of the
noise source operation would constitute
an unreasonable hardship on the
applicant, on the community, or on other
persons;
(F) Information pertaining to other
available alternatives to replace the
operation of the noise source;
(G) Estimated duration and schedule of
activity;
(H) A detailed schedule of plans,
procedures, and specifications for the
attenuation of noise level emissions
from the excessive noise source;
(I) Description of the immediate impact
area; and
(J) Such other information as the director
may request.
(3) The director shall not act upon or consider
any incomplete application for permit or
renewal . An application shall be deemed
complete only when all required and requested
information, including the application form,
plans, schedules, specifications, and other
information have been timely submitted.
(4) Every application shall be signed by the
applicant and shall constitute an
acknowledgment and agreement that the
46-11
1969
§11-46-7
applicant will comply with all the terms and
conditions of the permit, this chapter, and
chapter 342F, HRS .
(5) The failure of the director to act on a
completed application within one hundred
eighty days of the receipt of such
application, shall be deemed a grant of such
application; provided' that the applicant acts
consistently with the application process .
(6) The director may require the submission of
additional information after the application
has been submitted, and may ensure that, if
an application' is incomplete or otherwise
deficient, processing of the application
shall not be completed until such time as the
applicant has supplied all required
information or otherwise corrected the
deficiency.
(e) Period of permit.
(1) The director shall determine the effective
period of the permit, which shall be for any
term not exceeding five years .
(2) On written request, the director may extend
the period of the permit upon showing that an
extension is justified; provided in no case
shall an extension be granted if the combined
term of the originally issued permit and any
extension or extensions exceed five years.
Any extension or extensions shall be subject
to annual fees as provided in subsection (i) .
(3) The director, on application, may renew a
permit from time to time, for any term• not
exceeding five years.
(f) Application for modification of permit .
(1) Every application for the modification of a
permit shall be submitted in writing to the
director; and
(2) The director shall not act upon or consider
any incomplete request for a modification of
a permit. A request for modification of a
permit shall be deemed complete only when all
required and requested information, including
plans, schedules, specifications, and other
information have been timely submitted.
(g) No applicant for renewal of a permit shall be
held in violation of this chapter during the pendency
46-12
1969
§11-46-7
of the applicant' s application provided that the
applicant acts consistently with the permit previously
granted, the application of all plans, specifications,
and other information submitted as a part thereof.
(h) Fees. •
(1) The director may establish reasonable fees
for the issuance of permits and renewals to
cover the cost of granting thereof and .for
the implementation and enforcement of the
terms and conditions of permits;
(2) Every applicant for permit or renewal shall
pay the applicable annual fees as provided in
subsection (i) ;
(3) Fees shall not be refunded or applied to any
subsequent application; and
(4) Fees shall be made payable to the State of
Hawaii .
(i) Fee schedule. The annual fee schedule for a
permit or a renewal to a permit shall be as follows:
(1) Permit fees for construction activities ;
(A) $25 per year for activities involving
demolition, construction, extension,
additions, or renovation of a single
family dwelling.
(B) $50 per year for all other activities,
including but not limited to demolition
of building structures, construction of
buildings, residential subdivisions,
shopping centers, bridges, reservoirs,
utilities, roadway (including
improvements) , . and site work for
• subdivisions and golf courses.
(2) Permit fees for operation of stationary noise
sources or equipment related to agricultural
and industrial activities shall be $50 per
year.
(j) Specific permit restrictions for construction
activities .
(1) No permit shall allow any construction
activities which emit noise in excess of the
maximum permissible sound levels for the
hours before 7:00 a.m. and after 6 :00 p.m. of
• the same day, Monday through Friday;
(2) No permit shall allow any construction
activities which emit noise in excess of the
maximum permissible sound levels for the
46-13
1969 i;;
§11-46-7
hours before 9 :00 a.m. and after 6 :00 p.m. on
Saturday; and
(3) No permit shall allow any construction
activities which emit noise in excess of the
maximum permissible sound levels on Sundays
and on holidays.
(k) Transfer of permit .
(1) Each permit is nontransferable either from
one location to another, from one activity to
another, or from one person to another
without the written approval of the director.
(1) Suspension, revocation, or denial . The
director may suspend, revoke, or deny any permit if,
after affording an opportunity for a hearing in
accordance with chapter 91, HRS, it is determined that:
(1) There is a violation of any condition of the
permit;
(2) There is a violation of this chapter;
(3) There are deviations from, or there is a
failure to comply with, all information or
, facts contained within the permit;
(4) The permit was obtained by misrepresentation
or failure to disclose fully all relevant
facts;
(5) There is a change in any condition that •
requires either a temporary or permanent
reduction or elimination of the excessive
noise emission; or
(6) Such action is in the public interest .
(m) Termination of permits . The director shall
be notified, in writing, of the permanent termination
of the activity for which the permit has been granted.
If such notice is not received by the expiration date
specified in the permit, the permit shall automatically
terminate and the permittee shall be divested of all
rights therein.
(n) Records. The director shall keep records of
all permits and their disposition. [Eff StP 2 3 •1996 ]
(Ruth: HRS §§342F-3, 342F-4, 342F-I4, 342F-31) (Imp:
HRE §§342F-3, 342F-4, 342F-14, 342F-31)
§11-46-S Variances. (a) Applicability. In
accordance with section 342F-5, HRS, the director may
grant, renew, modify, suspend, revoke, or deny
variances to operate any excessive noise source which
46-14
1969
•
§11-46-8
emits or may emit noise levels in excess of the maximum
permissible sound levels specified in Table 1, Maximum
permissible sound levels in dBA, of section 11-46-4 (a) ,
and which use or operation does not conform to the
requirements of section 11-46-7, or other applicable
provisions of this chapter.
(b) No variance, modification, or renewal shall
be granted by the director unless the application and
the supporting information clearly show that :
(1) The continuation of the function or operation
involved in the emission occurring or
proposed to occur by the granting of the
variance is in the public interest, as
defined in section 11-46-7 (c) ;
(2) The emission occurring or proposed to occur
does not substantially endanger human health
or safety; and
(3) Compliance with the provisions of this
chapter from which the variance is sought
would produce serious hardship without equal
•or greater benefits to the public.
(c) Application for variance, modification, or
renewal .
(1) Every application shall be submitted on forms
furnished by the director.
(2) Every application shall be accompanied by a
complete and detailed description of present
conditions, how present conditions do not
conform to standards, and such other
information as the director may by rule
prescribe.
(3) Every application shall be reviewed. in light
of the descriptions, statements, plans,
histories, and other supporting information
submitted with the application; any
additional information as may be submitted
upon the request of the director; and the
effect or probable effect upon the maximum
permissible sound levels established pursuant
to this . chapter.
(4) The applicant shall submit sufficient
information to enable the director to make a
decision on the application. Subject to the
request of the director, every application
for variance may include the following
information:
46-15
§11-46-8
(A) Applicant identification;
(B) Type and purpose of activity, including
a brief description of the applicant' s
activity which results in the proposed
emission;
(C) Location and time of activity;
(D) A list of vehicles, construction or
agricultural equipment, tools, and any
devices;
(E) Estimated duration and schedule of
activity;
(F) Plans and procedures for the attenuation
of noise emission from noise sources to
minimize excessive noise levels;
(G) Description of the immediate impact
area;
(H) Any adverse environmental effects which
cannot be avoided;
(I) Description of alternatives to the
proposed activity;
(J) Discussion of the relationship between
short-term use of the environment and
the maintenance and enhancement of long-
term productivity;
(K) Discussion of any irreversible and
irretrievable commitments of resources
which would be involved in the proposed
activity;
(L) Disclosure of any possible impact from
noise created by any proposed nighttime
activity which may affect the immediate
surrounding;
(M) Plans for notification of the people in
the surrounding area of planned
nighttime activities; and
(N) Such other information as the director
may request.
(5) The director shall not act upon or consider
any incomplete application for variance,
modification or renewal. An application
shall be deemed complete only when all
required and requested information, including
the application form, plans, schedules,
specifications, and other information have
been timely submitted.
(6) Every application shall be signed by the
46-16
1969
§11-46-8
applicant and shall constitute an
acknowledgment and agreement that the
applicant will comply with all of the terms
and conditions of the variance, this chapter,
and chapter 342F, HRS.
(7) The director may require the submission of
additional information after the application
has been submitted, and may ensure that, if
an application is incomplete or otherwise
deficient, processing of the application
shall not be completed until such time as the
applicant has supplied all required
information or otherwise corrected the
deficiency.
(8) Every application for renewal shall be made
at least one hundred eighty days prior to the
expiration of the variance. The director
shall act on a completed application for
renewal within one hundred eighty days of the
receipt of such application.
(9) Every application for renewal shall meet all
conditions specified in the immediately
preceding variance; and shall provide for
emission not greater than that attained
pursuant to the terms of the immediately
preceding variance at its expiration.
(d) Public participation requirements.
(1) Any application for a variance, submitted
pursuant to this chapter, shall be subject to
the public participation requirements.
(2) Public notices of every completed application
for a variance, except an application for
off-hour road work, shall be circulated in a
manner designed to inform interested and
potentially interested persons of the
proposed emission.
(3) Procedures for the circulation of public
notices shall include at least the following:
(A) Notices shall be circulated within the
geographical areas of the proposed
emission; such circulation shall include
publishing in local newspapers and
periodicals, or, if appropriate, in a
daily newspaper of general circulation;
(B) Notice shall be mailed to any person
upon request; and
46-17
1969 , :sr.
§11-46-8
(C) The director shall add the name of any
person, upon request, to a mailing list
to receive copies of notices for all
variance applications within the State
or within a certain geographical area.
(4) The director shall provide a period of not
less than thirty days following the date of
the public notice during which time •
interested persons may submit their written
review with respect to the variance
application and the tentative determinations
of the department, if any. The period for
comment may be extended at the discretion of
the director.
(5) The contents of the public notice of
applications for variances shall include at
least the following:
(A) Name, address, and phone number of
agency issuing the public notice;
(B) Name and address of each applicant;
(C) Brief description of each applicant' s
activities or operations which result in
the emission described in the variance
application;
(D) A short description of the location of
each emission indicating whether such
emission is new or existing;
(E) A brief description of the procedures
for the formulation of final
determinations, including the thirty-day
comment period required by paragraph
(4) , and any other means by which
interested persons may influence or
comment upon those determinations; and
(F) Address and phone number of state agency
premises at which interested persons may
obtain further information and inspect a
copy of the variance applications and
supporting and related documents.
(6) The director may hold a public hearing, if,
after reviewing the comments submitted under
paragraph (4) , the director determines that a
public hearing is warranted. Any hearing
brought pursuant to this subsection shall be
held in the geographical area of the proposed
emission or other appropriate area, at the
46-18
1969
§11-46-8
• discretion of the director.
(e) Fees .
(1) The director may establish reasonable fees
for the issuance of variance and renewals to
cover the cost of issuance thereof and for
the implementation and enforcement of the
terms and conditions of variances.
(2) Every applicant for variance or renewal shall
pay the applicable fee as set forth in
subsection (f) ;
(3) Fees shall not be refunded nor applied to any
subsequent application; and
(4) Fees shall be made payable to the State of
Hawaii .
(f) Fee schedule. The fee for a variance or
renewal of a variance shall be $100 per year and all
costs associated with the public participation
requirements as provided in subsection (d) , including
but not limited to costs for'publication of public
notices, circulation of public notices, and public
hearing. Public notices shall be prepared by the
department .
(g) Granting of variances, modifications, or
renewals .
(1) If a variance, modification, or renewal is
granted on the grounds that there is no
practicable means known or available for the
adequate prevention, control, or abatement of
the excessive noise involved, it shall. be
only until the necessary means for
prevention, control, or abatement become
practicable, and subject to the taking of any
substitute or alternate measures that the
director may prescribe.
(2) Every variance, modification, or renewal
granted under this section shall include
conditions requiring the grantee to perform
noise sampling and report the results of such
sampling to the director.
(h) Period of variance, modification, or renewal.
(1) The director may issue a variance or renewal
for a period not exceeding five years.
(2) The period of modification shall be the
period of the variance originally issued, for
the term not exceeding five years .
46-19
1969
§11-46-5
(3) On written request, the director may extend
the period of the variance upon showing that
an extension is justified; provided in no
case shall an extension be granted if the
combined 'term of the originally issued
variance and any extension or extensions
exceeds five years . Any extension or
• extensions shall be subject to annual fees as
provided in subsection (f) .
(i) Variance conditions. Each variance may be
subject to such reasonable conditions as the director
may prescribe.
(j ) Suspension, revocation, or denial . The
director may suspend, revoke, or deny any variance if,
'after affording an opportunity for a hearing in
accordance with chapter 91, HRS, it is determined that:
(1) There is a violation of any condition of the
variance;
(2) There are deviations from, or failure to
comply with, all information or facts
contained within the variance;
(3) The variance was obtained by
misrepresentation or failure to disclose
fully all relevant facts;
(4) There is a change in any condition that
requires either a temporary or permanent
reduction or elimination of the excessive
noise emission; or
(5) Such action is in the public interest .
(k) Termination of variances. The director shall
. be notified, in writing, of the permanent termination
of the activity for which the variance has been
granted. If such notice is not received by the
expiration date specified in the variance, the variance
shall automatically terminate and the applicant shall
be divested of all rights therein.
•
(1) Records. The director shall keep records of
all re vests for variance and their disposition.
[Eff StP 2 3 1996 l (Ruth: HRS §§342F-3, 342F-5, 342F-
14- , 342F-3I) (Imp: HRS §§342F-3, 342F-5, 342F-14,
342F-31)
§11-46-9 Measurement o.f sound levels. (a) The
director may adopt procedures which set forth criteria
for the measurement of sound. Such procedures may be
46-20
19 6 9 Pii
§11-46-10
in substantial conformity with standards and
recommended practices established by the American
National Standards Institute or the Society of
Automotive Engineers, and the latest revisions thereof .
(b) The director may revise such measurement
procedures from time to time to reflect current
engineering judgment and advances in noise measurement
techniques.
(c) For the purpose of this chapter, sound level
measurements shall be conducted using standard
procedures, with sound level meters, using the "A"
weighting network and "slow" meter response unless
otherwise stated.
(d) Sound level meters and calibrators shall
conform to specifications provided in the American
National Standard, ANSI S1.4-1983, specification for
sound level meters.
(e) Windscreens shall be used whenever
appropriate.
(f) The various factors affecting the accuracy of
a measurement shall be evaluated to the extent
necessary for the implementation of this chapter. For
example, if the accuracy with which a measurement can
be made with specific instruments at a specific
location is plus or minus two dBA, then any measured
level greater than the specified maximum permissible
sound level, plus two dBA, will indicate. that excessive
noise has been emitted.
(g) Measurements shall normally not be used for
enforcement unless the noise level at a point of
measurement is more than three decibels greater than
the ambient or background noise level .
(h) The ambient noise level may be estimated from
sound levels measured during nonoperation of the noise
source or by sound levels measured at one or more
points near the point of measurement where the noise
source is inaudible. [Eff SEP 2 3 1996 ] (Auth: MRS
§§342F-3, 342F-31) (Imp: HRS §§342F-3 , 342F-31)
§11-46-10 Certification. Persons conducting
noise measurements for the enforcement of this chapter
shall have been trained in the techniques of sound
measurement and the operation of sound level meters and
other sound measuring instruments and shall have been
certified by the director. [Eff SEP 2 3 1996
(Auth: HRS §§342F-3, 342F-31) (Imp: • HRS §§342F-3,
342F-31)
46-21
1969 yr
§11-46-11
§11-46-11 Powers and duties , In order to
implement and enforce this chapter and for the general
purpose of prevention, control, and abatement of noise
pollution in the State, the director shall have, in
addition to any other vested authority, the power to:
(1) Conduct research programs for the purpose of
determining the causes, effects, and hazards
of excessive noise and the means whereby
noise may be monitored, controlled, or
abated;
(2) Conduct programs of public education
regarding the causes, effects, and general
methods of abatement and control of noise;
the actions prohibited by this chapter and
the procedures for reporting violations;
(3) Cooperate, to the extent practicable, with
all appropriate state, federal, and county
agencies;
(4) Coordinate noise programs with appropriate
county agencies in providing technical
assistance in areas such as development of
regulatory control of activities creating
noise disturbances, and in sound measurement;
(5) Conduct state educational and training
programs on noise prevention, control, and
abatement, including the preparation and
distribution of information relating to
excessive noise and its effect on people;
(6) Request any other department or agency
responsible for any proposed or final
standard, regulation, or similar action to
consult on the advisability of revising the
action, if there is reason to believe that
the action is not consistent with any
provision of this chapter;
(7) Develop and recommend for promulgation,
provisions regulating the use and operation
of any product; and
(8) Develop and promulgate standards, testing
methods, and procedures. (Eff $Ep 2 3 196 1
(Ruth: HRS §§342F-3, 342F-31, 342F-33)
(Imp: HRS §§342F-3, 342F-31, 342F-33)
•
§11-46-12 Inspection pf premises. (a) The
director upon receiving reports of, or identifying any
46-22
19 6 9 • ��r:
§11-46-13
actual or suspected excessive noise source, is
authorized, upon presenting appropriate credentials to
the owner, operator, or agent in charge:
(1) To enter at all reasonable hours, any
premises, to conduct an investigation, to
ascertain compliance or noncompliance with
this chapter, or any permit, variance or
modification issued pursuant to this chapter,
to make reasonable tests in connection
therewith, and to recommend requirements for
any noise attenuation measures;
(2) To inspect at reasonable times and within
reasonable limits and in a reasonable manner,
any premises and all pertinent equipment or
devices; and
(3) To require that the owner, operator, or agent
of any premises cease operation of all
pertinent equipment, or devices for the
purpose of conducting an investigation and
inspection thereof.
(b) No confidential information secured pursuant
to this section by any official or employee of the
department, within the scope and course of the
official' s or employee' s employment, in the prevention,
control, or abatement of excessive noise, shall be
disclosed by the official or employee, except as it
relates directly to the excessive noise, - and only in
connection with the official's or employee' s official
duties and within the scope and course of VA
official' s or employee' s employment. [Effacr 2 3 1996 ]
(Auth: HRS §5342F-3, 342F-6, 342F-31) (Imp: HRS
§§342F-3, 342F-6, 342F-31)
§11-46-13 Other ordinances and rules.- The
council of any county may adopt and provide for the
enforcement of ordinances regulating any matter
relating to excessive noise. No such ordinance shall
be held invalid on the ground that it covers any
subject or matter embraced within any statute or rule
bf the State; provided that in any case of conflict
between the statute or rule and ordinance, the law
which affords the most protection to the public shall
apply. [Ef£ SEP 2 3 1996 ] (Auth: HRS §§342F-3,
342F-20, 342F-31, 46-17) (Imp: §§342F-3, 342F-20,
342F-31)
46-23
19 69 ;;r
§11-46-14
'§11-46-14 Enforcement. (a) Initial violation.
If the director determines that any person has violated
or is violating this chapter, or any condition of a •
permit, variance, or modification issued pursuant to
this chapter, the director:
(1) Shall cause written notice to be served upon
the alleged violator or violators . This
notice shall specify the alleged violation
and may contain an order specifying a
reasonable time during which that person
shall be required to take any measures that
may be necessary to correct the violation and
give periodic progress reports;
(2) May require that the alleged violator or
violators appear before the director for a
hearing at a time and place specified in the
notice and answer the charges complained of;
and
(3) May impose penalties as provided in section
342F-11, HRS, and section 11-46-18 by sending
a notice, in writing, either by certified
mail or by personal services, to the alleged
violator or violators describing the
violation.
. (b) Continuing violation. If the director •
determines that any person is continuing to violate
this chapter, or any condition of a permit, variance,
or modification issued pursuant to this chapter after
having been served a notice of violation, the director:
(1) Shall cause written notice to be served upon
the alleged violator or violators. The
notice shall specify the alleged violation
and shall contain an order requiring that
person to submit a written schedule within
thirty days specifying the measures to be
taken and the time within which the measures
shall be taken to bring that person in
compliance with this chapter, or the
conditions of a permit, variance, or
modification issued pursuant to this chapter;
(2) Shall accept or modify the submitted schedule
within thirty days of receipt of the
schedule. Any schedule not acted upon after
thirty days of receipt by the director shall
be deemed accepted .by the director;
(3) Shall issue to the alleged violator or
46-24
1969.
§11-46-14
violators a cease order against the
activities that violate this chapter, or any
condition of a permit or variance issued
pursuant to this chapter if that person does
not submit a"written schedule to the director
within thirty days. This order shall remain
in effect until the director accepts the
written schedule; and'
(4) May impose penalties as provided in section
342F-11, HRS, or section 11-46-18 by sending
a notice, in writing, either by certified
mail or by personal service, to the alleged
violator or violators describing the
violation.
(c) Violation of abatement schedule or order. If
the director determines that any person has violated
the provisions of an accepted schedule or has violated
an order issued under this section, the director shall
impose penalties by sending a notice in writing, either
by certified mail or by personal service, to that
person, describing such nonadherence or violation.
(d) Violation order.
(1) Any order issued under this chapter shall
become final, unless no later than twenty
days after the notice of order is served•, the
person or persons named therein request, in
writing, a hearing before the director.
(2) Any penalty imposed under this chapter shall
become due and payable twenty days after the
notice of penalty is served, unless the
person or persons named therein request, in
writing, a hearing before the director.
(3) Whenever a hearing is requested on any
penalty imposed under this chapter, the
penalty shall become due and payable only
upon completion of all review proceedings and
the issuance of a final order confirming the
penalty in whole or in part.
(e) Contested hearing.
(1) Upon request for a hearing, the director
shall require that the alleged violator or
violators appear before the director for a
hearing at a time and place specified. in the
notice and answer the charges complained of .
(2) Any hearing conducted under this section
shall be conducted as a contested case under
46-25
1969
§11-46-14
chapter 91, HRS .
(3) If, after a hearing held pursuant to this
section, the director finds that a violation
or violations have occurred, the director
shall affirm or modify any penalties imposed,
or shall modify or affirm the order
previously issued, or issue an appropriate
order or orders for the prevention,
abatement, or control of the violation
involved, or for the taking of such other
corrective action as may be appropriate.
(4) If, after a hearing on an order or penalty
contained in a notice, the director finds
that no violation has occurred or is
occurring, the director shall rescind the
order or penalty.
(5) An order issued after hearing may prescribe
the date or dates by which the violation or
violations shall cease and may prescribe
timetables for necessary action in
preventing, abating, or controlling the
violation.
(f) Civil action.
(1) If the amount of any penalty is not paid to
the department within thirty days after it
becomes due and payable, the director may
institute a civil action in the name of the
State to collect the administrative penalty
which shall be a government realization.
(2) In any proceeding to collect the
administrative penalty imposed, the director
need only show that notice was given, .a
hearing was held or the time granted for
requesting a hearing expired without a
request for a hearing, the administrative
penalty was imposed, and the penalty remains
unpaid.
(g) Subpoena.
(1) In connection with any hearing held pursuant
to this section, the director shall have the
power to subpoena the attendance of witnesses
and the production of evidence on behalf of
all parties.
(h) The director shall enforce the provisions of
this chapter. (Eff SEP 2 3 1996 1 (Auth: HRS
§§342F-3, 342F-9, 342F-31) (Imp: HRS §§342F-3, 342F-
9, 342F-31)
46-26
19 6 9 1, ►►;;
§11-46-17
§11-46-15 Records.
(1) The director may require that the owner,
operator, or agent of any premises establish
and maintain all pertinent records.
(2) The director shall have access to all
pertinent records.
(3) The director may require that the owner,
operator, or agent of- any premises develop
and submit reports of all pertinent records; .
(4) The director may require that the owner,
operator, or agent of any premises produce
copies of all pertinent records upon request
by the director.
-(5) The director may require that the owner,
operator, or agent of any premises conduct
measurements of sound levels of any source in
accordance with established methods and
procedures, at such locations and times as
the director may reasonably prescribe, and to
furnish reports of the results of such
measurements. (Eff SEP 2 3 1996 ] (Auth:
HRS §§342F-3, 342F-7, 342F-31) (Imp: HRS
§§342F-3, 342F-7, 342F-31)
§11-46-16 Penalties. (a) Any person who
violates any provision of this chapter, or. any permit,
variance, or modification issued pursuant to this
chapter, shall be subject to fines of not more than
$10, 000 for each separate offense. Each day of
violation shall constitute a separate offense. Any
action taken to impose or collect the penalty provided
for in this subsection shall be considered a civil .or
administrative action, as the case may be.
(b) Any person who denies, obstructs, or hampers
the entrance or inspection by any duly authorized
employee of the department of any premises, or vehicle
that the employee is authorized to enter and inspect,
shall be fined not more than $500. Any action taken to
impose or collect the penalty provided for in tpAR3 ]1996
Section shall be considered a civil action. [Ef
(Auth: HRS §§342F-3, 342F-9, 342F-31) (Imp: HRS
§§342F-3, 342F-9, 342F-31)
§11-46-17 Citation. (a) Any person who commits
46-27 '
1969
§11-46-17
a violation of this chapter may be issued a summons or
citation for such violation by any person authorized to
enforce this chapter, hereinafter referred to as
enforcement officer.
(b) The summons or• citation shall warn the person
to appear and answer to the charge• against the person
at a certain place and at a time within seven days
after the issuance of the summons or citation.
(c) The summons or citation shall be printed on a
form adopted or prescribed by the state district
courts .
.(d) Summons and citations shall be consecutively
numbered and the carbon copy or copies of each shall
bear the same number.
(e) The summons or citation shall be designed to
provide for all necessary information.
(f) The original of a summons or citation shall
be given to the purported violator and the other copy
or copies distributed in the manner prescribed by the
district courts; provided that the district courts may
prescribe alternative methods of distribution of the
original and any other copies.
(g) In the event any person fails to comply with
a summons or citation issued to such person, the
enforcement officer shall cause a complaint to be
entered against the person and shall 'secure the
issuance of a warrant for the person' s arrest. Failure
to comply with a summons or citation is. a misdemeanor.
(Eff SEP 2 3 1996 ] ' (Ruth: HRS §5342F-3, 342F-10,
342F-31) (Imp: HRS §§342F-3, 342F-10, 342F-31)
§11-46-18 Administrative penalties . (a) In
addition to any other administrative or judicial remedy
provided by this chapter, the director is authorized
to .impose by order the penalties specified in section
342F-9 (b) and (c) , HRS, and section 11-46-16.
(b) Factors to be considered in imposing an
administrative penalty include:
(1) The nature and history of the violation and
of any prior violations;
(2) The economic benefit, if any, resulting from
the violation;
(3) The opportunity, difficulty, and history of
corrective action;
(4) Good faith efforts to comply; and
46-28
1969
§11-46-22
(5) Any other matters that justice may require.
(c) It is presumed that the violator's economic
and financial conditions allow payment of the penalty,
and the burden of proof to the contrary shall be on the
violator. [Eff SEP 2 3 1996 1 (Auth: HRS §§342F-3,
342F-11, 342F-31) (Imp: HRS §§342F-3, 342F-11, 342F-
31)
§11-46-19 Inisinctive and other relief . The
director may institute a civil action in any court of
competent jurisdiction for injunctive and other relief
to prevent any violation of this chapter, any rule
adopted pursuant to this chapter, or any condition of a
permit or variance issued pursuant to this chapter,
without the necessity of a prior revocation of the
permit or variance, to impose and collect civil
penalties, to collect administrative penalties, or
obtain other relief. The court shall have the power to
grant relief in accordance with the Hawaii rules of
civil procedure. (Eff SEP 2 3 1996 ) (Auth: HRS
§§342F-3, 342F-12, 342F-31) (Imp: HRS §5342F-3, 342F-
12, 342F-31)
§11-46-20 Public records. Reports submitted to
the department on the emission of excessive .noise shall
be made available for inspection by the public during
established office hours unless such reports contain
information of a confidential nature concerning secret
processes or methods of manufacture.
[Eff SEP 2 3 1996 1 (Auth: HRS §§342F-3, 342F-
15, 342F-31) (Imp: HRS §§342F-3, 342F-15, 342F-31)
§11-46-21 Litigation. No part of this chapter
shall be allowed as a defense against suit brought by
any person for damage alleged to occur as a result of
noise. (Eff SEP 2 3 1996 1 (Auth: HRS §§342F-3,
342F-31) (Imp: §§342F-3, 342F-31)
§11-46-22 Severability. If any provision of this
chapter, or the application thereof to any person or
circumstance is held invalid, the remainder of this
46-29
1969 •;•
§11-46-21
chapter, and the application of the chapter to other
persons or circumstances, shall not be affected
thereby. [Eff SEP 2 3 199b ] (Auth: HRS §§342F-3,
342F-31) (Imp: HRS §§342F-3, 342F31)
46-30 1
969 ! iii
DEPARTMENT OF HEALTH
The repeal of Chapter 11-43 and the adoption
Chapter 11-46, Hawaii Administrative Rules, on the
Summa Pa a dated SEP 23 1996 were adopted on
SEP 231996 , following public hearings held on
June 24, 1996 on the island of Kauai; June 25, 1996 on
the island of Maui; June 26, 1996 in Hilo, Hawaii; June
27, 1996 in Kona, Hawaii; and July 1, 1996 on the
island of Oahu, after public notices were given in the
Honolulu Advertiser, Honolulu Star-Bulletin, Garden
Isle, Maui News, Hawaii Tribune Herald, and West Hawaii
Today on May 24, 1996.
The repeal of Chapter 11-43, and the adoption of
Chapter 11-46, Hawaii Administrative Rules, ,shall take
effect ten days after filing with the Office of the
Lieutenant Governor.
LAWRENCE MIIKE
u5 Director
Department of Health
e_
rs; APP.- ED:
•
ailo
BENJAMIN J. CAYETANO
GOVERNOR
STATE OF HAWAII
Date: �11rq�
APPROVED AS TO FORM:
_ 0'
Oep ,ty Attorney General SEP 1 2 1996
Filed:
1969