COLONY SURF, LTD. v. DIRECTOR OF THE DEPARTMENT OF PLANNING AND PERMITTING

December 26, 2007 (No. 26037)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendants/Appellees-Appellants, director of the Department of Planning and Permitting, State of Hawai'i, Michel's Inc., and D.G. Anderson (collectively referred to as "Appellants"), appeal from the first circuit court's July 23, 2003 judgment on appeal in favor of Plaintiff/Appellant-Appellee, Colony Surf, Ltd. ("CSL").  Appellants assert the following points of error on appeal: (1) the circuit court erred by ruling that the daytime operation of Michel's "constitute[d] an 'expanded' nonconforming use" under section 21-4.110(c)(1) of the Land Use Ordinance, codified as Revised Ordinances of Honolulu ("ROH") § 21-4.110(c)(1); (2) the circuit court erred by ruling that the daytime operation of Michel's following its temporary cessation constituted "action" within the meaning of ROH § 21-4.110(c)(5), inasmuch as it did not intend to reduce its hours; (3) the circuit court erred by construing ROH §§ 21-4.110(c)(2), (c)(3), and (c)(5) in pari materia and by ruling that the daytime operation of Michel's violated ROH § 21-4.110(c)(5); an (4) the circuit court erred by ruling that the daytime operation of Michel's increased its hours of operation within the meaning of ROH § 21-4.110(c)(1).

Based upon the following analysis, we reverse the circuit court's July 23, 2003 judgment. [footnotes omitted]