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Home My WebLink About2026-03-02 Appellant's Supplemental Prehearing Brief Claudia Rohr 369 Nene St. Hilo, HI 96720 (808)640-5976 crohr4@gmail.com Appellant, pro se BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII CLAUDIA ROHR, No. PL-BOA-2025-000119 Appellant, APPELLANT'S SUPPLEMENTAL vs. PREHEARING BRIEF; CERTIFICATE OF SERVICE JEFFREY DARROW, PLANNING DIRECTOR; RICHARD STANDKE; DEBORAH STANDKE, Appellees APPELLANT'S SUPPLEMENTAL PREHEARING BRIEF The Appellant CLAUDIA ROHR, pro se ("Rohr") submits her Supplemental Prehearing Brief for the hearing set for March 13, 2026, based on the Second Amended Petition. This Supplemental Prehearing Brief is filed pursuant to ORDER GRANTING CONTINUANCE OF HEARING; BOARD OF APPEALS', dated January 6, 2026, the Amended Scheduling Order, item #3 therein; and Board Rule 3-1. I. INTRODUCTION 1 During the process of preparing her case, Appellant discovered that the zoning code prohibits a nonconforming use to increase to occupy a greater area of land, as follows: Zoning Code, Section 25-4-61 Continuance of nonconforming uses of land and buildings: (a) Any nonconforming use of land or use of a building may continue to the extent it existed on December 7, 1996 or at the time of the adoption of any amendments to this chapter, provided that a nonconforming use may be enlarged within the building it occupies, but shall not be enlarged or increased to occupy a greater area of land, nor shall it or the portion of the building housing it be moved in whole or in part to any other portion of the building site occupied by such nonconforming use, except as provided in this division. (emphasis added in bold and italics) II. POINT OF ERROR Thereafter, Appellant filed Second Amended Petition to include the claim that the Planning Director violated the law—the SMA guideline requiring consistency with the zoning, HRS §205A-26(2)(C) by violating Zoning Code, Section 25-4-61 Continuance of nonconforming uses of land and buildings. [Second Amended Petition, pg. 5, item #3.1 III. ARGUMENT A dispositive fact is a fact that, if proven with necessary certainty, resolves a legal dispute on its own. The facts, the law, and the substantial supportive evidence in the record (in brackets) that must be considered by the Board in deciding this case are as follows: 2 1. Appellant appeals the Planning Director's approval of the Landowners' proposed addition of a covered deck over a concrete lanai and a new enclosed stairway as exempt action under SMA laws and Rules. [Appellant Exhibit-6, "PL-SAA-2025-000280 Exemption Determination Letter."] 2. The subject property is TMK-(3)2-1-18-13, 14 Oeoe St., Hilo Hawaii 96720. [Id.] 3. The Landowners are Richard and Barbara Standke. [Id.] 4. A building permit application is first assigned to the Planning Department for Land Use Review for compliance with the County's Zoning Code, HHC Chapter 251; and if applicable, for SMA Review for compliance with HRS Chapter 205A2 and Rule 9 of the Planning Commission Rules of Practice and Procedure. [Appellant Exhibit-1, "Memo No. 2024-10 Building Permit Rejection Process."] 5. If one or both reviews are rejected, the building permit application is returned and requires resubmittal by the applicant. [Id.] 6. The Landowners do not reside on the building site and have been offering transient accommodations on the subject property since before the amendment of the zoning code by Ordinance 18-114, regulating "short-term vacation rentals" ("STVRs"). [Appellant Exhibit-11, "STVR- 19-359757 application." Appellate Exhibit-13, "Hawaii County Code (HCC) Chapter 25, Article 1, Article 2, Article 4, And Article 5. Appellate Exhibit-14, "County of Hawaii Planning Department, Rules of Practice and Procedure, Rule 23." ] 7. Ordinance 18-114, SECTION 1. Findings and Purpose: The short-term rental of residential units, as an alternative to traditional resort and hotel accommodations, 1 Section 25-2-2. Issuance of permits or licenses in conformance with chapter. All departments, officials, and public employees authorized to issue permits or licenses shall conform to the provisions of this chapter and no permit or license for any use, building, or other purpose shall be issued where the license or permit would be in conflict with the provisions of this chapter. Any permit or license, if issued in conflict with the provisions of this chapter, shall be void. 2 §205A-29 Special management area use permit procedure. (b) No agency authorized to issue permits pertaining to any development within the special management area shall authorize any development unless approval is first received in accordance with the procedures adopted pursuant to this part. For the purposes of this subsection, county general plan, state land use district boundary amendments, and zoning changes are not permits. 3 is an emerging trend in the visitor industry that continues to grow in popularity. The purpose of this ordinance is to manage the impacts of these short-term vacation rentals by: 1) defining where this use will be allowed; 2) establishing provisions and standards to regulate this use; and 3) providing an avenue for an existing use deemed to be improper by this ordinance, to apply for a nonconforming use certificate that would allow them to continue to operate in a non permitted district. (emphasis added in bold and italics) [Judicial Notice: go to Council Records, Ordinances, 2018, 18-114 starting at https://www.hawaiicounty.gov/our-county ] 8. ""Short-term vacation rental" means 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. This definition does not include the short-term use of an owner's primary residence as defined under section 121 of the Internal Revenue Code." Zoning Code, Section 25-1-5. Definitions (2018). [Appellant Exhibit-13, "Hawaii County Code (HCC) Chapter 25, Article 1, Article 2, Article 4, and Article 5."] 9. The Landowners timely applied to register their STVR and acquired a Nonconforming Use Certificate in 20193. [Appellant Exhibit-11, "STVR- 19-359757 application."] 10.""Nonconforming use" means a use lawfully in existence on September 21, 1966 or on the date of any amendment to this chapter, but which does not conform to the regulations for the zoning district in which it is located." Zoning Code, Section 25-1-5. [Appellant Exhibit-13, "Hawaii County Code (HCC) Chapter 25, Article 1, Article 2, Article 4, and Article 5."] 11.The Landowners' building application is clear evidence that the proposed addition of a covered deck over a concrete lanai and a new enclosed stairway will increase the building footprint and will occupy a greater area of land than what is existing. [Appellant Exhibit-3, Building Plans.] s Issued in 2020. 4 12.Zoning Code, Section 25-4-61 Continuance of nonconforming uses of land and buildings, provides: (a) Any nonconforming use of land or use of a building may continue to the extent it existed on December 7, 1996 or at the time of the adoption of any amendments to this chapter, provided that a nonconforming use may be enlarged within the building it occupies, but shall not be enlarged or increased to occupy a greater area of land, nor shall it or the portion of the building housing it be moved in whole or in part to any other portion of the building site occupied by such nonconforming use, except as provided in this division. (emphasis added in bold, italics, and underline) 13.Zoning Code, Section 25-2-2. Issuance of permits or licenses in conformance with chapter, provides: All departments, officials, and public employees authorized to issue permits or licenses shall conform to the provisions of this chapter and no permit or license for any use, building, or other purpose shall be issued where the license or permit would be in conflict with the provisions of this chapter. Any permit or license, if issued in conflict with the provisions of this chapter, shall be void. (1996, ord 96-160, sec 2; ratified April 6, 1999.) (emphasis added in bold, italics, and underline) 14.HRS §205A-26 Special management area guidelines: In implementing this part, the authority shall adopt the following guidelines for the review of developments proposed in the special management area: (2) No development shall be approved unless the authority has first found: (B) That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and (C) That the development is consistent with the county general plan, community plan, and zoning; provided that a finding of consistency shall not preclude concurrent processing where a general plan, community 5 plan, or zoning amendment may also be required. (emphasis added in bold) IV. CONCLUSION The Appellant requests that the Board of Appeals reverse the Planning Director's decision to approve the Landowners' proposed addition of a covered deck over a concrete lanai and a new enclosed stairway as exempt action under SMA laws and Rules, based on the facts, the law, and evidence provided above, as a matter of law. Dated: Hilo, Hawaii, March 2, 2026. Respectfully submitted, t/ uPj�, R,�, CLAUDIA ROHR, Plaintiff Pro Se 6 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served upon the following parties shown below, via electronic mail service on March 2, 2026. 1. Planning Director Jeffrey Darrow Jef£Darrow@hawaiicounty.gov 2. JEAN CAMPBELL, jeank.campbell@hawaiicounty.gov Deputy Corporation Counsel Attorney for the Planning Director 3. SYLVIA WAN, SylviaA.Wan@hawaiicounty.gov Deputy Corporation Counsel For the Board of Appeals 4. Board of Appeals boardofappeals@hawaiicounty.gov 5. RICHARD AND DEBORAH STANDKE richard.standke@gmail.com DATED: Hilo, Hawaii, March 2, 2026. CLAUDIA ROHR, Plaintiff Pro Se 7