Word comes our way that a bill has been introduced in the Hawaii legislature that would eliminate the primary jurisdiction doctrine and the requirement to exhaust administrative remedies for a narrow class of cases to allow a neighbor to “enforce zoning violations related to transient vacation rental on neighboring property.”
In Pavsek v. Sandvold, 127 Haw. 390, 279 P.3d 55 (Haw. App. 2012), the Intermediate Court of Appeals concluded that a state statute (Haw. Rev. Stat. § 46-4(a)) allowes a person directly affected by an alleged violation of a county’s land use or zoning ordinance to bring a private enforcement action. The court also held, however, that this private right of action is subject to the usual rules of primary jurisdiction. In other words, you can sue to enforce the zoning code, but you’ve got to do it by first going through the county’s administrative review process before you go to court. [Disclosure: our Damon Key colleague Greg Kugle represented the prevailing property owners in Pavsek, and argued the case.]
The Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 93, 734 P.2d 161, 168 (1987)
“`Primary jurisdiction’ … applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body[.]” United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-65, 1 L.Ed.2d 126 (1956). When this happens, “the judicial process is suspended pending referral of such issues to the administrative body for its views.” Id. at 64, 77 S.Ct. at 165 (citation omitted). In effect, “[t]he
courts are divested of whatever original jurisdiction they would otherwise possess[.]” B. Schwartz, supra, § 8.24, at 488 (emphasis omitted). And “even a seemingly contrary statutory provision will yield to the overriding policy promoted by the doctrine.” Id.