Hawaii Appeals Court: Let's Go Surfin' Now, Everybody's Learning How...

The Intermediate Court of Appeals (Judges Foley, Nakamura, Fujise on the panel) today issued an opinion in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008), a case about the administrative authority of the City and County of Honolulu's Director of Planning and Permitting and his ability to issue declaratory rulings, and the law of nonconforming uses. 

A Waikiki hotel constructed in the early 1950's on land presently zoned for apartment uses, but legally operating as a nonconforming use because the hotel use predated the apartment zoning, rented out one of its lobby shops to a surf school. The school uses the lobby shop as an assembly point for its customers, who are brought in from other locations by shuttles. Neighbors objected to the school's use, complaining of the usual problems: "noise, congestion, parking issues, vandalism, trespassing and 'other ills[.]'" Slip op. at 6.

The Save Diamond Head Waters group petitioned the Director, asserting that the use as a surf school expanded the nonconforming use, or was a change in use from the previous use of the lobby shop as a shop and as a place where hotel guests could rent surf boards, kayaks and other beach equipment. The Director replied that he had already considered a request for a declaratory ruling about whether the school was a lawful nonconforming use, and issued findings of fact and conclusions of law, and a declaratory ruling determining among other things that the school was a nonconforming use as long as it adhered to the Director's limits about class size and numbers. SDHW appealed to the Zoning Board of Appeals, which affirmed, and then appealed the ZBA's decision to the circuit (trial) court, which vacated the ZBA's decision.

The ICA framed the issue two different ways:

whether the Director, in response to SDHW's petition for a declaratory ruling, acted beyond his authority to issue that ruling when it set the permissible limits of a lessee's use of its leased space under the LUO [Land Use Ordinance].

. . .

Thus, the issue before the circuit court and before this court is whether the Director abused his discretion by issuing a declaratory ruling that [the school]'s use of [the lobby shop] was a proper change in nonconforming use so long as that use remained within certain limits.

Slip op. at 9, 14. SDHW argued that the Director had no authority to "cure" any of the effects on the neighborhood by limiting class size and numbers. The ICA rejected this argument. First, the court held the Director has the express power under state law and the Department's rules to issue declaratory rulings.  Slip op. at 12-13.  Next, the Director correctly determined the surf school was a nonconforming use. Third, the Director has the authority to make the determination that if the school's use of its property exceeded the use associated with legal nonconforming use status, the Director had the authority to issue a declaratory ruling telling the school what uses would keep it within nonconforming status. As stated by the ICA:

In short, even where the property owner expanded the use of the property beyond permissible limits, the [Land Use Ordinance] does not prevent a use that is scaled back to those permissible limits.

Slip op. at 25.