Campos v. Planning Commission of the County of Kaua'i.

FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2023
07:52 AM
Dkt. 76 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

---o0o---

RENE O. CAMPOS, Plaintiff-Appellant/Appellant, v.
PLANNING COMMISSION OF THE COUNTY OF KAUAʻI,
COUNTY OF KAUAʻI PLANNING DEPARTMENT, and
COUNTY OF KAUAʻI, Defendants-Appellees/Appellees.

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC16-1-000132)

OCTOBER 31, 2023

HIRAOKA, PRESIDING JUDGE, WADSWORTH AND MCCULLEN, JJ.

OPINION OF THE COURT BY MCCULLEN, J.

Plaintiff-Appellant/Appellant Rene O. Campos appeals

from the Circuit Court of the Fifth Circuit's 1 (1) June 13, 2017

Final Judgment, and (2) April 19, 2017 Findings of Fact and

Conclusions of Law, in favor of Defendants-Appellees/Appellees

1 The Honorable Kathleen N.A. Watanabe presided.
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the County of Kauaʻi, the County of Kauaʻi Planning Department,

and the Planning Commission of the County of Kauaʻi.

Campos owns real property "described as Unit A of the

Seacliff Plantation - Lot 25 Condominium Project Located in

[Kīlauea], Kauaʻi . . . containing an area of 5.0 acres"

(Property). 2 Findings of Fact (FOF) 1. 3 This project is

comprised of Campos's Property and two other "apartments with

improvements thereon." FOF 1.

Campos's "Property is located in a State Land Use

District . . . Agricultural District, the Kaua‘i County General

Plan Agriculture Land Use Designation Area, Special Management

Area . . . , the North Shore Development Plan Area, and the Open

Space, Special Treatment Scenic/Ecological . . . Resources

District." FOF 2. "Further, a portion is in the Comprehensive

Zoning Ordinance [(or CZO)] Agriculture District and another

portion is in the CZO Open District." FOF 2 (emphasis added).

According to Campos, the soil on the Property is rated B, C,

and D.

This secondary appeal arises from the Planning

Commission's revocation of a Provisional Nonconforming Use

2 According to the "Declaration of Condominium Property Regime Seacliff
Plantation - Lot 25" recorded with the Hawaiʻi Bureau of Conveyances, the
entire project was 12.41 acres with "Apartments" 1 and 2 being five acres
each and "Apartment" 3 being 2.41 acres. (Some formatting altered.)

3 Planning Commission's July 27, 2016 Findings of Fact, Conclusions of
Law, and Decision and Order.

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Certificate, issued to Campos, allowing the structure on the

Property (Guest House) to be used as a single-family transient

vacation rental. On appeal, Campos asserts that the revocation

violated Kaua‘i County's Comprehensive Zoning Ordinance, his

grandfather rights under the United States and Hawai‘i

Constitutions, his due process right, and its own rules.4

We affirm because use of the Guest House, as originally

built, violated the zoning permit obtained by the prior owner, and

consequently there was no prior legal use to be grandfathered. We

also hold that Campos was afforded due process and waived the

argument that the Planning Commission violated its own rules.

I. BACKGROUND

The background in this case spans over twenty years,

starting with the Property's prior owner.

A. Prior Owner

In 1998, the prior owner of the Property, Simon Potts,

applied to the Planning Department for a zoning permit. On the

application, Potts indicated that the lot size was 12.407 acres,

the zoning was "Ag/Open STR," and the existing land use had

4 Campos did not include a points of error section in his opening brief
as required by Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4). We
construe Campos's "Statement of Questions Presented for Decision" as his
points of error. (Formatting altered.)

Campos does not challenge the Planning Commission's FOF or conclusions
of law (COL) pursuant to HRAP Rule 28(b)(4). See Wisdom v. Pflueger, 4 Haw.
App. 455, 459, 667 P.2d 844, 848 (1983) ("If a finding is not properly
attacked, it is binding; and any conclusion which follows from it and is a
correct statement of law is valid.").

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"AG/Farm Dwelling." (Formatting altered.) Under "DESCRIPTION

OF PROPOSED USE, IMPROVEMENT, ALTERATION, AND/OR CONSTRUCTION,"

Potts wrote "CONSTRUCTION OF GUEST COTTAGE."

Architect Daniel Moran (Architect Moran) prepared

Zoning Plans for the Guest House, which were submitted as part

of Potts's zoning permit application. FOF 3. The Zoning Plans

indicated that the Guest House would consist of 484 square feet

of floor area, without a kitchen. FOF 3.

The Planning Department issued Potts a Class I zoning

permit in July 1998, Zoning Permit No. Z-437-98, to construct

the Guest House, and indicated the occupancy type as "OTHER."

After a permit was issued for a Gazebo in September 1998, no

other zoning permits were approved for the Property. FOF 4.

About two years later, in 2000, the Department of

Public Works, Building Section, approved Building Plans, also

submitted by Architect Moran, for the Guest House and issued a

Building Permit. FOF 5. However, the Building Plans differed

from the Zoning Plans because the Building Plans included a

kitchen for the same Guest House. FOF 5.

In 2006, Campos purchased the Property from Potts, and

began operating it as a transient vacation rental, "and

continued operation of the Noni Orchard situated thereon under

the same independent contractor as" Potts. FOF 6.

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B. Zoning Ordinance Nos. 864 (2008) and 904 (2010)

As explained infra in more detail, in 2008, the County

adopted Ordinance No. 864, prohibiting transient vacation rentals

that were not within the Visitor Destination Area, 5 pursuant to

Kauaʻi County Code (KCC) Title IV, Chapter 8, Article 17.

Ordinance No. 864, however, "also established a procedure for any

owner, operator, or proprietor of a single-family transient

vacation rental operating outside of" the Visitor Destination

Area, as of March 7, 2008, to obtain a nonconforming use

certificate to continue operating as a transient vacation

rental. KCC § 8-17.10(b) (2010); FOF 33.

Campos (providing a Texas address) sent the Planning

Department a letter authorizing his attorney in Līhu‘e and his

brother, David Campos (also providing a Texas address), "to act

as [his] agents for the filing and processing of the Application

for a Use Permit and Class III Zoning Permit, as well as any

other land-use permits and approvals relative to said

application."

About two years later, in 2010, Ordinance No. 904

amended the grandfather provision established by Ordinance

No. 864 and addressed single-family transient vacation rentals

operating on lands designated agricultural.

5 Ordinance No. 864 defined Visitor Destination Area as "those areas
designated as Visitor Destination Areas on County of Kaua‘i zoning maps."
Campos does not assert that the Property was in a Visitor Destination Area.

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C. Campos's Application for a Nonconforming Use Certificate

On October 15, 2010, following the adoption of

Ordinance No. 904, the Planning Department received Campos's

application to register his Guest House identified as the

"Hawaiian Romantic Cottage" as a transient vacation rental, and

requesting a nonconforming use certificate. FOF 8. Campos's

application identified the unit as a "studio, 1 bath SFR." FOF 8.

Campos represented the unit as a "single family vacation rental"

in the State Land Use Agricultural District. FOF 8.

Campos also represented that "Building permit

number(s) Z-437-98 was approved on 6-19-98 for all structures on

the property and there were no expansions, alterations,

improvements, or uses contrary to State and County land use and

planning laws" and "[t]here were not any legal expansion or

improvements made on the property after March 7th 2008." FOF 9.

The application included an "As Built Drawing" of the Guest

House, again by Architect Moran, showing a kitchen. FOF 10.

In his application, Campos requested: (1) a Special

Permit pursuant to Hawaiʻi Revised Statutes (HRS) § 205-6 and

Hawai‘i Administrative Rules Title 15, Subtitle 3, Chapter 15,

Subchapter 12 as "is required for the proposed use of the

Subject Property, which is within the State Land Use

Agricultural District, in conjunction with a transient vacation

rental use of the dwelling on the Subject Property"; (2) a Use

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Permit pursuant to "CZO Chapter 8, Article 20," "as it is not a

generally permitted use (although single family dwellings are

generally permitted under CZO Section 8-7.2(a)(15), the short-

term rental may trigger the need for a Use Permit)"; and (3) a

Class IV Zoning Permit pursuant to "CZO Sections 8-7.7(4), 8-

8.7, and 8-19.6."

The Planning Department "provisionally approved"

Campos's application, and issued the Provisional Nonconforming

Use Certificate. FOF 11.

Planning Department personnel inspected the Guest

House, and determined it indeed contained a kitchen, "but there

was no conversion permit to change 'the guest house to a legal

single family residence as mandated by Ordinance No. 904 nor

were the interior kitchen improvements authorized by permit.'"

FOF 12.

As a result, in a December 22, 2011 letter, the

Planning Department revoked Campos's Provisional Nonconforming

Use Certificate, and instructed Campos to stop using the Guest

House as a transient vacation rental or face fines "up to

$10,000 and/or up to $10,000 per day for each day the violation

persists." FOF 12.

D. Campos's Appeal to the Planning Commission

In January 2012, Campos appealed the Planning

Department's decision revoking the Provisional Nonconforming Use

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Certificate, and requested a public hearing. FOF 14. In March

2014, a Planning Department Inspection/Research Report confirmed

Campos was still operating his Guest House as a transient

vacation rental. FOF 16. As of November 2015, the Guest House

was being advertised online as containing "a kitchen with a

refrigerator, stove top burner, oven, dishwasher, blender, ice

maker, coffee maker and toaster." FOF 17.

Campos's contested case hearing was held in November

2015. The Hearing Officer issued his report, recommending the

Planning Commission deny Campos's appeal and affirm the Planning

Department's revocation of the Provisional Nonconforming Use

Certificate because "there was no conversion permit to convert

[Campos's] Guest House with a kitchen to a legal single family

dwelling unit as mandated by Ordinance No. 904, nor were the

interior kitchen improvements authorized by permit." The

Hearing Officer also recommended fining Campos $25,000 for

operating his Guest House as a single-family transient vacation

rental outside the Visitor Destination Area.

After holding oral arguments, the Planning Commission

agreed with the Hearing Officer's recommendations, and issued its

Findings of Fact, Conclusions of Law, Decision and Order

affirming the Planning Department's decision.

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E. Campos's Appeal to the Circuit Court

Campos appealed to the circuit court. The circuit

court heard arguments, and entered its Decision and Order

affirming the Planning Commission's Decision and Order.

Regarding the fines imposed, the circuit court stated

that from December 2011, "Campos knew that he was instructed by

the Planning Department to cease and desist use of the Guest

House as a [transient vacation rental] and terminate any further

advertising of the Subject Property for [transient vacation

rental] use." "However, as late as the morning of the Hearing

[Campos] was still advertising the Guest House on the internet

as the [transient vacation rental] 'Hawaiian Romantic Cottage.'"

The circuit court further determined that "[f]or over

four (4) years, Campos has failed to comply with the request of

the Planning Department to cease and desist use of the Guest

House as a [transient vacation rental] and terminate any further

advertising of the Subject Property for [transient vacation

rental] use." "Although the Planning Department could have

imposed a fine of up to $10,000 per day for each day the

aforesaid violation existed, . . . instead it requested a fine

'of at least $25,000 [payable] to the County of Kauaʻi for the

continued illegal operation of a [transient vacation rental]

without a [nonconforming use certificate].'"

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The circuit court then concluded that

Campos has not met his burden to establish by a preponderance
of the evidence that the Planning Director's decision to
impose a fine of at least $25,000 for violation of the
provisions of the CZO by operating a [transient vacation
rental] outside of the [Visitor Destination Area] without a
[nonconforming use certificate] was based upon an erroneous
finding of a material fact, arbitrary or capricious, or an
abuse of . . . discretion because he did not offer any
evidence to contest that decision.

On June 13, 2017, the circuit court entered its final

judgment affirming the Planning Commission's Decision and Order,

revoking Campos's Provisional Nonconforming Use Certificate and

imposing a $25,000.00 fine.

Campos timely appealed to this court.

II. STANDARDS OF REVIEW

A. Secondary Appeals

Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary appeal.
The standard of review is one in which this court must
determine whether the circuit court was right or wrong in
its decision, applying the standards set forth in HRS § 91-
14(g) . . . to the agency's decision.

Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 114, 120, 424 P.3d

469, 475 (2018) (citations omitted).

Pursuant to HRS § 91-14(g) (2012 & Supp. 2016),
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;

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(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.

Additionally, an "agency's decision carries a presumption of

validity and [an] appellant has the heavy burden of making a

convincing showing that the decision is invalid because it is

unjust and unreasonable in its consequences." Kauaʻi Springs,

Inc. v. Plan. Comm'n of Cnty. of Kauaʻi, 130 Hawaiʻi 407, 417,

312 P.3d 283, 293 (App. 2013) (citations omitted).

B. Construction of a County Ordinance

The construction of an ordinance is a question of law

reviewed de novo. See Coon v. City & Cnty. of Honolulu, 98

Hawaiʻi 233, 245, 47 P.3d 348, 360 (2002).

III. DISCUSSION

Campos contends the Planning Commission's revocation of

the Provisional Nonconforming Use Certificate violated the

Comprehensive Zoning Ordinance, his grandfather rights under the

United States and Hawaiʻi Constitutions, his due process right,

and the Planning Commission's own rules.

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A. Relevant Legal Authority

1. Hawaiʻi Constitution

The Hawaiʻi Constitution provides that "[n]o person

shall be deprived of life, liberty or property without due

process of law . . . ." Haw. Const. art. I, § 5; see U.S. Const.

amend. V (providing same).

The Hawaiʻi Constitution also mandates that our state

"conserve and protect agricultural lands, promote diversified

agriculture, increase agricultural self-sufficiency and assure

the availability of agriculturally suitable lands," and requires

the legislature to "provide standards and criteria to accomplish

the foregoing." Haw. Const. art. XI, § 3.

2. Statutory Law

a. HRS § 46-4, County Zoning

The counties within our state "derive their zoning

powers from HRS § 46–4(a) . . . , referred to as the Zoning

Enabling Act." Kaiser Hawaii Kai Dev. Co. v. City & Cnty. of

Honolulu, 70 Haw. 480, 483, 777 P.2d 244, 246 (1989). "Zoning in

all counties shall be accomplished within the framework of a

long-range, comprehensive general plan prepared or being

prepared to guide the overall future development of the county."

HRS § 46-4(a) (Supp. 2016).

The powers granted in this section must be "liberally

construed" in the counties' favor to promote orderly development

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according to the comprehensive general plan to ensure the

greatest benefit for the whole of Hawaiʻi by regulating zoning

and building:

The powers granted herein shall be liberally construed in
favor of the county exercising them, and in such a manner as
to promote the orderly development of each county or city
and county in accordance with a long-range, comprehensive
general plan to ensure the greatest benefit for the State as
a whole. This section shall not be construed to limit or
repeal any powers of any county to achieve these ends
through zoning and building regulations[.]

HRS § 46-4(a). And in accordance with the Hawaiʻi Constitution,

the counties cannot prohibit "continued lawful use" of a

building or premises at the time an ordinance takes effect:

Neither this section nor any ordinance enacted pursuant to
this section shall prohibit the continued lawful use of
any building or premises for any trade, industrial,
residential, agricultural, or other purpose for which the
building or premises is used at the time this section or
the ordinance takes effect[.]

HRS § 46-4(a) (emphasis added).

b. HRS Chapter 205, Land Use Commission

"While the counties are empowered to enact zoning

ordinances, HRS chapter 205 clearly limits the permissible uses

allowed within an agricultural district." Save Sunset Beach

Coal. v. City & Cnty. of Honolulu, 102 Hawai‘i 465, 482, 78 P.3d

1, 18 (2003). "Within agricultural districts . . . accessory

agricultural uses and services described in sections 205-2 and

205-4.5 may be further defined by each county by zoning

ordinance." HRS § 205-5(b) (2017).

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HRS § 205-2(d) (Supp. 2012) lists seventeen uses or

activities agricultural districts "shall include," and transient

vacation rentals is not expressly listed.

HRS § 205-4.5(a) (Supp. 2006 & 2016) delineates the

permissible uses in agricultural districts rated class A or B.

One permissible use in an agricultural district is a farm

dwelling, which was defined as "a single-family dwelling located

on and used in connection with a farm[.]" HRS § 205-4.5(a)(4)

(Supp. 2006 & 2016). Of the fourteen permissible uses within

the agricultural district enumerated in subsection (a), none

expressly included transient vacation rentals. HRS § 205-4.5(a)

(Supp. 2006).

Any use not expressly allowed in subsection (a) is

prohibited, unless an HRS § 205-6 (2001 & Supp. 2016) special

permit or an HRS § 205-8 (2001) nonconforming use certificate is

obtained. See HRS § 205-4.5(b) (Supp. 2016). Thus, any use

permitted by a county not expressly allowed in HRS § 205–4.5(a),

or by virtue of HRS §§ 205–6 or 205–8, conflicts with the

statutory regime. Save Sunset Beach Coal., 102 Hawai‘i at 482, 78

P.3d at 18.

The "burden to prove that a nonconforming use is valid

is on the owner, occupant or user, who must prove that a lot, a

structure, a use, a dwelling unit, or parking or loading was

legally established as it now exists." Save Diamond Head Waters

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LLC. v. Hans Hedemann Surf, Inc., 121 Hawai‘i 16, 26, 211 P.3d

74, 84 (2009) (cleaned up and emphasis added).

3. KCC, Comprehensive Zoning Ordinance

KCC Title IV, Chapter 8 is Kauaʻi County's Comprehensive

Zoning Ordinance.

a. Article 1, General Provisions

The purpose of the Comprehensive Zoning Ordinance is in

part, to "[regulate] the use of buildings, structures and land

for different purposes," "maintain the concept of [Kauaʻi] as 'The

Garden Isle[,'] thus assuring that any growth will be consistent

with the unique landscape and environmental character of the

Island," and "protect, maintain and improve the agriculture

potential of land located in the County." KCC § 8-1.2(b), (d),

and (k) ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)).

"The Agriculture District establishes means by which

land needs for existing and potential agriculture can be both

protected and accommodated, while providing the opportunity for a

wider range of the population to become involved in agriculture

by allowing the creation of a reasonable supply of various sized

parcels." KCC § 8-1.3(h) ((1987 & Supp. 1988 through Supp. 2006)

(approved June 30, 2006)).

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Article 1 ((1987 & Supp. 1988 through Supp. 2006)

(approved June 30, 2006)) also set forth the following relevant

definitions:

Dwelling: "means a building or portion thereof
designed or used exclusively for
residential occupancy and having all
necessary facilities for permanent
residency such as living, sleeping,
cooking, eating and sanitation."

Dwelling, Single- "means a building consisting of only
Family Detached: one (1) dwelling unit designed for or
occupied exclusively by one (1)
family."

Dwelling Unit: "means any building or any portion
thereof which is designed or intended
for occupancy by one (1) family or
persons living together or by a person
living alone and providing complete
living facilities, within the unit for
sleeping, recreation, eating and
sanitary facilities, including
installed equipment for only one (1)
kitchen."

Guest House: "means a building with a floor area of
(Amended 2008) no more than five hundred (500) square
feet, contains no kitchen, is used for
dwelling purposes by guests, and is
located on a parcel of at least nine
thousand (9,000) square feet that
contains one (1) or more dwelling
units."

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Kitchen: "means any room used or intended or
designed to be used for cooking and
preparing food."

Land Use: "includes 'building use' and 'use of
building.'"

Non-conforming "means a lawful use of a building or
Use: land existing at the time of the
adoption of this Ordinance or as a
result of any subsequent amendment, and
which does not comply with the
regulations for the zoning district in
which it is located."

Transient Vacation "means rentals in a multi-unit building
Rentals: (1987) for visitors over the course of one (1)
(Removed in 2008 or more years, with the duration of
by Ordinance occupancy less than thirty (30) days
No. 864) for the transient occupant."

Transient Vacation "means a dwelling unit which is
Rental: (2008) provided to transient occupants for
compensation or fees, including club
fees, or as part of interval ownership
involving persons unrelated by blood,
with a duration of occupancy of one
hundred eighty (180) days or less."

Use: "means the purpose for which land or
building is arranged, designed or
intended, or for which either land or
building is or may be occupied or
maintained."

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Use permit: "means a permit issued under the
definite procedure provided in this
Chapter allowing a certain use which is
conditionally permitted for the
particular district."

KCC § 8-1.5 (emphases added); 3C Shambie Singer, Sutherland

Statutory Construction § 77:7 (8th ed. 2022) ("When a statutory

definition declares what a term 'means,' any meaning not stated

is excluded, because the term 'means' denotes an exhaustive

definition. Conversely, the word 'include' ordinarily is a term

of enlargement rather than limitation.").

Importantly, "[n]o building, structure or portion

thereof shall be erected, or altered, nor shall any structure,

land or premises be used except in the manner indicated and only

for the uses permitted in the districts in which the building,

structure, land or premises is located." KCC § 8-2.2(d)(1)

((1987 & Supp. 1988 through Supp. 2006) (approved June 30,

2006)).

b. Article 7, Agricultural Districts

The purpose of Article 7 was in part to "protect the

agriculture potential of lands within the County of [Kauaʻi] to

insure a resource base adequate to meet the needs and activities

of the present and future" and "limit and control the dispersal

of residential and urban use within agriculture lands." KCC

§§ 8-7.1(a) and (c) ((1987 & Supp. 1988 through Supp. 2006)

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(approved June 30, 2006)). The KCC listed permitted uses and

structures, which included "Single family detached dwellings." 6

KCC § 8-7.2(15) ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)). The KCC then listed over ten structures and

uses in agricultural districts that require a use permit,

including "[a]ny other use or structure which the Planning

Director finds to be similar in nature to those listed in this

section and appropriate to the District." 7 KCC § 8-7.3(a)(14)

6 KCC § 8-7.2 ((1987 & Supp. 1988 through Supp. 2006) (approved
June 30, 2006)) listed the uses and structures permitted in agricultural
districts:

(1) Accessory structures and uses
(2) Aquaculture
(3) Diversified agriculture
(4) Forestry
(5) Grazing
(6) Historic sites
(7) Intensive agriculture
(8) Livestock, poultry, and piggeries . . .
(9) Minor food processing related to agricultural
products
(10) Orchards and nurseries
(11) Outdoor recreation
(12) Pet keeping and raising . . .
(13) Public parks and monuments
(14) Resource management
(15) Single family detached dwellings
(16) Specialized agriculture
(17) Undeveloped campgrounds
(18) Warehousing, storage and packing of plant products
(19) Wildlife management

7 KCC § 8-7.3(a) (1987) listed the uses and structures in agricultural
districts requiring a use permit:

(1) Animal hospitals
(2) Cemeteries
(3) Churches, temples and monasteries
(4) Commercial recreation
(5) Construction and worker temporary housing
(6) Development campgrounds
(7) Golf courses
(continued . . .)

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((1987 & Supp. 1988 through Supp. 2006) (approved June 30,

2006)). Transient vacation rentals were not on either list, and

the 2008 amendments pursuant to Ordinance No. 864 did not change

KCC §§ 8-7.2 or 8-7.3.

"No construction or other development for which

standards are established in this Chapter shall be undertaken

within any Agriculture District except in accordance with a valid

zoning permit." KCC § 8-7.7 ((1987 & Supp. 1988 through

Supp. 2006) (approved June 30, 2006)) (emphasis added). Zoning

permits were required as follows:

The following zoning permits, in accordance with
Article 19, shall be required for the following activities:

(1) Class I Permit. A Class I Permit shall be obtained
for construction or development on a parcel where:

(A) the parcel is not located in a Constraint
District or a Special Treatment District and is
not large enough to qualify for more than one
(1) dwelling unit under the density provisions
of this Article; and

(. . . continued)

(8) Mineral extraction and quarries
(9) Pet keeping and raising proposed within five hundred
(500) feet of any Residential District
(10) Poultry and piggeries when to be located within three
thousand (3000) feet of any Use District
(11) Private and public utility facilities
(12) Schools and day care centers
(13) Transportation terminals
(14) Any other use or structure which the Planning
Director finds to be similar in nature to those
listed in this section and appropriate to the
District.

In 2010, Ordinance No. 903 amended KCC § 8-7.3(a) to include "Farm
worker housing" as (a)(7), thereby moving items (a)(7) to (a)(14) included in
the 1987 version of KCC § 8-7.3(a) down by one. See County of Kauaʻi,
Ordinance No. 903 (Aug. 16, 2010); KCC § 8-7.3(a) (1987).

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(B) the construction or development does not require
a Use Permit or a Variance Permit.

(2) Class II Permit. A Class II Permit shall be obtained
for construction or development on a parcel where:

(A) the parcel is not located in a Constraint
District or a Special Treatment District and is
qualified for more than one (1) dwelling unit;
and

(B) the construction or development does not require
a Use Permit or a Variance Permit.

(3) Class III Permit. A Class III Permit shall be
obtained for construction or development on a parcel
where:

(A) for construction or development of a parcel for
which a Class I or Class II Permit would
otherwise be obtainable except that the parcel
is located in a Constraint District or a Special
Treatment District.

(4) Class IV Permit. A Class IV Permit shall be obtained
for construction or development on a parcel where:

(A) for construction or development for which a
Class I, II, or III Permit would otherwise be
obtainable except that a variance or a use
permit is required.

(5) To obtain any permit, the applicant shall show
compliance with the Standards established in this
Article and shall submit a plot plan and other
information as required by Sec. 8-3.8(d).

KCC § 8-7.7 (formatting altered).

c. Article 17, Time Sharing and Transient Vacation
Rentals

Article 17 of the KCC addressed Transient Vacation

Rentals.

By Ordinance No. 436 (September 22, 1982), "[e]xcept as

provided in this section, time share units, time share plans and

transient vacation rentals are prohibited." KCC § 8-17.1 ((1987

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& Supp. 1988 through Supp. 2006) (approved June 30, 2006)).

Ordinance No. 864 did not amend KCC § 8-17.1.

By Ordinance No. PM-255-92 (August 13, 1992),

Article 17 limited transient vacation rentals to certain areas:

Subject to the limitations contained in Section 8-17.5,
transient vacation rentals are allowed:

(a) In Hotels in Resort or Commercial Districts; and

(b) In Resort Districts or Residential Districts when such
districts are located within the visitor destination
areas of [Po‘ipū], [Līhuʻe], [Wailua-Kapaʻa] or
Princeville, as more particularly designated on County
of [Kauaʻi] Visitor Destination Area maps.

KCC § 8-17.3 ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)) (formatting altered). KCC § 8-17.5 provided that

"[n]othing in this Article shall impair the use in a project of

. . . an existing transient vacation rental, when such project is

not located within the visitor destination areas described in

Section 8-17.2." KCC § 8-17.5(a) ((1987 & Supp. 1988 through

Supp. 2006) (approved June 30, 2006) (repealed 2008)).

Ordinance No. 864 (2008) amended Chapter 8 by revising

KCC §§ 8-17.3 and 8-17.5 to apply to multi-family transient

vacation rentals and adding §§ 8-17.8 to 8-17.10 to specifically

address single-family transient vacation rentals. Ordinance

No. 904 (2010) amended particular provisions "relating to

previously implemented grandfathering provisions for existing

single-family transient vacation rentals outside the Visitor

Destination Area . . . ."

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KCC § 8-17.8 provided in part that "[n]otwithstanding

any underlying zoning designation and with the exception of

properties on the National or State Register of Historic Places,

single-family transient vacation rentals are prohibited in all

areas not designated as Visitor Destination Areas." KCC § 8-

17.8(a) (2008 and 2010).

KCC § 8-17.9 provided in part that "[n]o single-family

transient vacation rental shall operate outside a Visitor

Destination Area without a Nonconforming Use Certificate obtained

under Section 8-17.10." KCC § 8-17.9(b) (2008 and 2010).

KCC § 8-17.10 addressed "Nonconforming Use Certificates

for Single-Family Vacation Rentals."

KCC § 8-17.10(a) explained that the purpose of KCC § 8-

17.10 was to identify and register single-family transient

vacation rentals which have been in lawful use and to allow them

to continue by obtaining a nonconforming use certificate:

The purpose of this section is to provide a process to
identify and register those single-family transient vacation
rentals as nonconforming uses which have been in lawful use
prior to the effective date of this ordinance and to allow
them to continue subject to obtaining a nonconforming use
certificate as provided by this section.

KCC § 8-17.10(a) (2010) (emphases added).

KCC § 8-17.10(b) provided that "[t]he owner, operator

or proprietor of any single-family transient vacation rental

which operated outside of a Visitor Destination Area prior to

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March 7, 2008 shall obtain a nonconforming use certificate for

single family vacation rentals." KCC § 8-17.10(b) (cleaned up).

KCC § 8-17.10(c) prohibited issuing a nonconforming use

certificate unless the use as a single-family rental was legal

under the Comprehensive Zoning Ordinance:

No nonconforming use certificate shall be issued by
the Planning Director unless the use as a single-family
rental is a legal use under the Comprehensive Zoning
Ordinance, and the applicant provides a sworn affidavit and
demonstrates to the satisfaction of the Planning Director
that a dwelling unit was being used as a vacation rental on
an ongoing basis prior to March 7, 2008. The Planning
Director, in making the decision, shall take into
consideration, among other things, the following guidelines:

(1) The applicant had a State of Hawai‘i General
excise tax license and transient accommodations
tax license for the purpose of the lawful
operation of single-family transient vacation
rentals for a period long enough to demonstrate
actual payment of taxes.

(2) That prior to the effective date of this
ordinance, applicant had deposits for reservations
by transient guests in exchange for compensation
for use of subject property as a vacation rental.

(3) That applicant had transient guests occupy subject
property in exchange for compensation prior to the
effective date of this ordinance, with a pattern
of consistency that evidences an ongoing and
lawful enterprise.

KCC § 8-17.10(c) (2010) (formatting altered).

KCC § 8-17.10(d) permitted nonconforming use

certificates for land in agricultural districts if the single-

family transient vacation rental was built before June 4, 1976 or

the applicant obtained an HRS § 205-6 special permit:

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Applications for nonconforming use certificates for
single-family transient vacation rentals located on land
designated "Agricultural" pursuant to [HRS Chapter 205] shall
be made within sixty (60) days of the effective date of this
ordinance. If an operator as defined under Section 8-
17.10(c) fails to apply for a nonconforming use certificate
within sixty (60) days of the effective date of this
ordinance, then the Planning Director shall assess an
administrative late application processing fee of Fifteen
Hundred ($1,500.00) Dollars at filing. A nonconforming use
certificate may be issued for a single-family transient
vacation rental located on land in the State of Hawaii's land
use agricultural district if:

(1) It was built prior to June 4, 1976, or

(2) The Applicant has obtained a special permit
under [HRS §] 205-6 which specifically permits a
vacation rental on the subject property.

(A) An application for a special permit shall
include verification by the Applicant that the
farm dwelling unit was being used as a vacation
rental on an ongoing basis in accordance with
Section 8-17.10(c).

(B) An application for a special permit
pursuant to [HRS §] 205-6 and Chapter 13 of the
Rules of Practice and Procedures of the Planning
Commission that is deemed complete by the
Planning Director must be filed within one (1)
year of the effective date of this ordinance.
Upon completion of the application, the Planning
Director shall issue a provisional certificate
that will allow the transient vacation rental to
operate. The provisional certificate shall be
null and void after the Planning Commission or
the Land Use Commission makes a decision upon
the application.

(C) In addition to the Special Permit
standards set forth in [HRS §] 205-6 and
Chapter 13 of the Rules of Practice and
Procedure of the Planning Commission, the
Planning Commission may only grant a special
permit if, prior to March 7, 2008: (1) the
property upon which the transient vacation
rental is located had a registered agricultural
dedication pursuant to the guidelines set forth
in the County of [Kauai's] Department of Finance
Real Property Tax Division Agricultural
Dedication Program Rules; (2) a bona fide
agricultural operation existed, as shown by
State General Excise Tax Forms and/or Federal
Income Tax Form 1040 Schedule F filings; or
(3) the Planning Commission finds that the size,
shape, topography, location or surroundings of

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the property, or other circumstances, did not
allow an applicant to qualify for an
agricultural dedication pursuant to the County
of [Kauai's] Department of Finance Real Property
Tax Division Agricultural Dedication Program
Rules or inhibited intensive agricultural
activities[.]

(D) If the application for the special permit
is granted, then the transient vacation rental
operation shall be subject to conditions imposed
by the Planning Commission or the Land Use
Commission.

(E) If the application for special permit is
denied, then the nonconforming use certificate
shall not be issued and the transient vacation
rental must cease operation.

KCC § 8-17.10(d) (2010) (formatting altered and emphases added).

KCC § 8-17.10(e) placed the burden of proof on the

owner:

The owner, operator, or proprietor shall have the
burden of proof in establishing that the use is properly
nonconforming based on the following documentation which
shall be provided to the Planning Director as evidence of a
nonconforming use: records of occupancy and tax documents,
including all relevant State of Hawai‘i general excise tax
filings, all relevant transient accommodations tax filings,
federal and/or State of Hawai‘i income tax returns for the
relevant time period, reservation lists, and receipts showing
payment. Other reliable information may also be provided.
Based on the evidence submitted, the Planning Director shall
determine whether to issue a nonconforming use certificate
for the single-family transient vacation rental.

KCC § 8-17.10(e) (2008 and 2010).

KCC § 8-17.11 addressed the "Enforcement Against

Illegal Transient Vacation Rentals":

(a) In addition to other penalties provided by law,
including but not limited to Section 8-17.6, Section 8-24.1
and the Planning Commission Rules, as amended, the Planning
Director, or any member of the public who has duly obtained
standing pursuant to rules promulgated by the commission, may
initiate proceedings to revoke or modify the terms of a
nonconforming use certificate pursuant to the Rules of
Practice and Procedures of the Planning Commission, as
amended. Violations of conditions of approval or providing

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false or misleading information on the application or in any
information relating thereto at any time during the
application process shall be grounds for revocation or cease
and desist orders.

(b) Advertising of any sort which offers a property
as a transient rental shall constitute prima facie evidence
of the operation of a transient vacation rental on said
property and the burden of proof shall be on the owner,
operator, or lessee to establish that the subject property is
not being used as a transient vacation rental or that it is
being used for such purpose legally. If any unit is found to
be operating unlawfully, penalties established in Section 8-
17.6 and Section 8-24.1 shall apply.

KCC § 8-17.11 (2010) (cleaned up). The penalty for a violation

was "not less than $500 nor more than $10,000 for each offense,"

and "[i]f any person fails to remove such violation within one

month, such person shall be subject to a new and separate

violation for each day the violation continues to exist." KCC

§ 8-17.6 ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006)).

d. Article 19, Zoning Permits

Article 19 addressed zoning permits, providing that

"[n]o person shall undertake any construction or development or

carry on any activity or use, for which a zoning permit is

required by this Chapter, or obtain a building permit for

construction, development, activity or use regulated by this

Chapter, without first obtaining the required zoning permit."

KCC § 8-19.1 ((1987 & Supp. 1988 through Supp. 2006) (approved

June 30, 2006) (repealed 2012)) (emphases added). Article 19

also set forth the application process for obtaining a zoning

permit and the appeals process for challenging the Planning

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Director's decision. KCC §§ 8-19.2 to 8-19.7 ((1987 & Supp. 1988

through Supp. 2006) (approved June 30, 2006) (repealed 2012)).

e. Article 20, Use Permits

Article 20 addressed use permits. "The purpose of the

'use permit' procedure is to assure the proper integration into

the community of uses which may be suitable only in specific

locations in a district, or only under certain conditions, or

only if the uses are designed, arranged or conducted in a

particular manner, and to prohibit such uses if the proper

integration cannot be assured." KCC § 8-20.1 ((1987 & Supp. 1988

through Supp. 2006) (approved June 30, 2006) (repealed 2012)).

"No person shall undertake any construction or

development, or carry on any activity or use for which a Use

Permit is required by this Chapter, or obtain a building permit

for construction, development, activity or use for which a Use

Permit is required by this Chapter, without first obtaining a Use

Permit." KCC § 8-20.2 ((1987 & Supp. 1988 through Supp. 2006)

(approved June 30, 2006) (repealed 2012)) (emphases added).

Article 20 also set forth the application procedure for obtaining

a use permit and when an application can be resubmitted following

a denial. KCC §§ 8-20.3 to 8-20.7 ((1987 & Supp. 1988 through

Supp. 2006) (approved June 30, 2006) (repealed 2012)).

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B. The Planning Commission's Decision Did Not Violate the KCC
or Campos's Rights

1. KCC's Comprehensive Zoning Ordinance

Campos asserts that "the Planning Commission's decision

violates the express provisions and intent of CZO Article 17."

(Formatting altered.) In particular, Campos takes issue with

"the County's insistence that in order to apply for [a

nonconforming use certificate] the structure must be a 'legal'

structure," and argues that "neither the express provisions in

KCC Article 17 nor the express intent of KCC Article 17 require

or support this interpretation." Campos further asserts that "it

is undisputed that the guest cottage was a single family

dwelling" because it contained a kitchen. (Formatting altered.)

"[Z]oning laws and ordinances are strictly construed,

as they are in derogation of the common law, and their provisions

may not be extended by implication." Waikiki Marketplace Inv.

Co. v. Chair of Zoning Bd. of Appeals of City & Cnty. of

Honolulu, 86 Hawai‘i 343, 354, 949 P.2d 183, 194 (App. 1997)

(citation and internal quotation marks omitted). "The key to

interpreting a zoning statute is to ascertain and effectuate

legislative intent as expressed in the statute." 3C Singer,

Sutherland Statutory Construction § 77:7; see Kauai Springs, Inc.

v. Plan. Comm'n of Cnty. of Kaua‘i, 133 Hawai‘i 141, 163, 324 P.3d

951, 973 (2014) ("When construing a statute, our foremost

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obligation is 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.") (citation omitted).

"It is fundamental in statutory construction that each

part or section of a statute should be construed in connection

with every other part or section so as to produce a harmonious

whole." Id. (citation omitted). "We must read statutory

language in the context of the entire statute and construe it in

a manner consistent with its purpose." Id. (citation omitted).

We begin our analysis with KCC § 8-17.10(a), which

explained the purpose of the "Nonconforming Use Certificates for

Single-Family Vacation Rentals" section was "to provide a process

to identify and register those single-family transient vacation

rentals as nonconforming uses which have been in lawful use prior

to the effective date of this ordinance and to allow them to

continue subject to obtaining a nonconforming use certificate as

provided by this section." (Emphasis added.) "This purpose is

consistent with the requirements of HRS § 46-4(a) as well as the

constitutional protection provided to property owners with vested

rights to pre-existing lawful uses of their property." Robert D.

Ferris Tr. v. Plan. Comm'n of Cnty. of Kaua‘i, 138 Hawai‘i 307,

313, 378 P.3d 1023, 1029 (App. 2016).

Next, KCC § 8-17.10(c) provided, "No nonconforming use

certificate shall be issued by the Planning Director unless the

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use as a single-family rental is a legal use under the

Comprehensive Zoning Ordinance, and the applicant provides a

sworn affidavit and demonstrates to the satisfaction of the

Planning Director that a dwelling unit was being used as a

vacation rental on an ongoing basis prior to March 7, 2008

. . . ." 8 (Cleaned up and emphases added.) This section also

protected preexisting lawful use by exempting those legal single-

family rentals from the mandatory prohibition on issuing

nonconforming use certificates for transient vacation rentals on

property outside the Visitor Destination Areas. See Leslie v.

Bd. of Appeals of Cnty. of Hawai‘i, 109 Hawai‘i 384, 393, 126

P.3d 1071, 1080 (2006) (explaining that the term "shall," "is

generally imperative or mandatory") (citation omitted).

Finally, KCC § 8-17.10(d) provided the Planning

Department with the discretion to issue a nonconforming use

certificate for a single-family transient vacation rental located

on agricultural land under certain circumstances:

8 In Campos's argument, he asserts that COL 4 is incorrect. COL 4
states in relevant part, "[i]n order to qualify for the [nonconforming use
certificate], the 'dwelling unit . . . [must be] in compliance with all State
and County land use and planning laws . . . [as of] the time of application
for' that nonconforming use certificate" and cites KCC § 8-17.10(b).
(Formatting altered.)

This quoted language was present in KCC § 8-17.10(c) (in effect from
March 7, 2008 to August 16, 2010), but was not in KCC § 8-17.10(b) and was
deleted by Ordinance No. 904. Any error, however, does not require vacating
the circuit court's decision because KCC §§ 8-17.10(a) and (c) nonetheless
require that the single-family rental be a prior lawful and legal use under
the Comprehensive Zoning Ordinance.

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A nonconforming use certificate may be issued for a
single-family transient vacation rental located on land in
the . . . land use agricultural district if:

(1) [i]t was built prior to June 4, 1976, or

(2) [t]he Applicant has obtained a special permit
under [HRS §] 205-6 which specifically permits a vacation
rental on the subject property.

(A) An application for a special permit shall
include verification by the Applicant that
the farm dwelling unit was being used as a
vacation rental on an ongoing basis in
accordance with Section 8-17.10(c). . . .

KCC § 8-17.10(d) (emphasis added). An application for a special

permit requires that the dwelling unit was being used in accordance

with KCC § 8-17.10(c), which includes being "a legal use under the

Comprehensive Zoning Ordinance[.]"

In short, when viewing KCC § 8-17.10 as a whole within

the context of its purpose, a nonconforming use certificate for a

transient vacation rental outside of the Visitor Destination Area

could be issued only when the prior use as a single-family

transient vacation rental was lawful under the Comprehensive

Zoning Ordinance. Thus, on land (agricultural or not) outside

the Visitor Destination Area, prior lawful use was protected.

With this in mind, we turn to KCC § 8-19.1, which

provided that "[n]o person shall . . . obtain a building permit

. . . without first obtaining the required zoning permit."

Similarly, KCC § 8-20.2 provided that "[n]o person shall . . .

obtain a building permit . . . without first obtaining a Use

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Permit" where a use permit is required. As such, no person is

allowed to obtain a building permit for construction or use

without first obtaining the required zoning permit and, if

applicable, use permit.

We pause to reiterate that nonconforming use means "a

lawful use of a building or land existing at the adoption of" the

ordinance, transient vacation rental means a "dwelling unit . . .

provided to transient occupants for compensation," a dwelling or

dwelling unit contains facilities for cooking or a kitchen, and a

guest house has no kitchen.

Here, there was no single-family transient vacation

rental in lawful use, pursuant to the zoning laws, to identify or

register as a nonconforming use.

The Planning Commission found that Potts was issued a

Zoning Permit to build the Guest House in July 1998 on the

Property. FOF 3. Potts was also issued a zoning permit to build

a Gazebo a few months later, in September 1998, and "[n]o other

zoning permits were issued by the Planning Department for the

Subject Property after approval of the Gazebo." FOF 4.

In 2000, the Public Works Department approved the

Building Plans for the Guest House, however, the Building Plans

differed from the Zoning Plans as the Building Plans showed a

kitchen in the Guest House. FOF 5. In 2010, the As-Built Plans

submitted also depicted a kitchen in the Guest House. FOF 10.

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In 2011, a field inspection of the Guest House confirmed there

was a kitchen. FOF 12. And in 2015, Campos advertised the Guest

House as containing "a kitchen with a refrigerator, stove top

burner, oven, dishwasher, blender, ice maker, coffee maker and

toaster." FOF 17.

The Zoning Permit allowed for a guest house (i.e.,

building with no kitchen for use of guests) on the Property. In

other words, the Guest House was supposed to be used as a place

for guests, not as a single-family dwelling or a dwelling unit.

See KCC § 8-1.5. Per the zoning code, Potts was prohibited from

obtaining a building permit to construct or use a structure with

a kitchen if he did not first obtain the required zoning permit.

See KCC § 8-19.1. A kitchen built in contravention to the Zoning

Plans and Zoning Permit obtained did not convert use of the Guest

House into a lawful use as a single-family dwelling.

Thus, contrary to Campos's contention, there was no

single-family transient vacation rental in lawful use because his

use of the Guest House as a single-family transient vacation

rental was not a lawful use of the Guest House as permitted by

the Zoning Permit.

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2. Grandfather Rights

Second, Campos asserts that the "Planning Commission's

decision violates [his] grandfather rights under the U.S. and

[Hawaiʻi] State Constitutions and HRS section 46-4." (Formatting

altered.) He argues that "there is no evidence to dispute [his]

testimony and records that he was operating a [transient vacation

rental] on the Subject Property prior to March 7, 2008" and that

the "government cannot stop an existing nonconforming use by the

adoption of an ordinance prohibiting that use."

The Hawaiʻi Constitution provides that "[n]o person

shall be deprived of life, liberty or property without due

process of law . . . ." Haw. Const. art. I, § 5; see U.S. Const.

amend. V (providing same). HRS § 46-4 grants zoning power to the

counties, and in line with the Hawaiʻi Constitution, provides that

"[n]either this section nor any ordinance enacted pursuant to

this section shall prohibit the continued lawful use of any

building or premises for any trade, industrial, residential,

agricultural, or other purpose for which the building or premises

is used at the time this section or the ordinance takes

effect[.]" HRS § 46-4(a)(12) (Supp. 2016) (emphasis added).

Campos rented his Guest House as a single-family

dwelling to transient vacationers. Campos insists that the Guest

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House is really a single-family dwelling because it has a

kitchen.

However, as discussed above, the Zoning Permit issued

by the Planning Department allowed for a guest house (i.e., a

building with no kitchen for use by guests) on the Property.

Because Campos did not use the Guest House as permitted by the

Zoning Permit, it was not being used lawfully. Thus, there was

no lawful single-family transient vacation rental use which could

be grandfathered.

3. Due Process Rights

Third, Campos contends that "the Planning Department is

violating [his] due process rights as well as its own past

practice of allowing [nonconforming use certificate] applicants

to correct identified violations." (Formatting altered.) Campos

argues that the "presence or absence of structural violations was

not a factor" and "[i]f structural violations were found, the

applicants were told to fix them." Campos explains that the

"issue is whether or not the County allowed an applicant to

correct a violation prior to issuing the [nonconforming use

certificate], not whether the guest house itself was the

[transient vacation rental]."

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Campos also argues that the Planning Commission's

"application of this 'new' requirement that the structures cannot

be in violation of the KCC is a rule that cannot be enforced."

Campos further states "there is nothing in the record to even

remotely suggest that the Planning Commission's new rule

requiring the structures in which a transient vacation rental is

located to be free from violations was properly promulgated."

The "requirements of due process are flexible and

depend on many factors, but 'there are certain fundamentals of

just procedure which are the same for every type of tribunal and

every type of proceeding,' including those before administrative

agencies." Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136

Hawaiʻi 376, 389, 363 P.3d 224, 237 (2015) (citations and

brackets omitted). "The basic elements of procedural due

process are notice and an opportunity to be heard at a

meaningful time and in a meaningful manner." Id. Also, "due

process of law generally prohibits decisionmakers from being

biased, and more specifically, prohibits decisionmakers from

prejudging matters and the appearance of having prejudged

matters." Id. Substantive due process "guards against

arbitrary and capricious government action." DW Aina Leʻa Dev.,

LLC v. Bridge Aina Leʻa, LLC., 134 Hawai‘i 187, 219, 339 P.3d

685, 717 (2014) (citation omitted).

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Contrary to Campos's claim that the Planning Commission

applied a new requirement, the Planning Commission relied on and

applied the KCC. As stated, KCC § 8-17.10(a) explained its

purpose was "to provide a process to identify and register those

single-family transient vacation rentals as nonconforming uses

which have been in lawful use prior to the effective date of this

ordinance and to allow them to continue subject to obtaining a

nonconforming use certificate as provided by this section."

(Emphasis added.) In that vein, KCC § 8-17.10(c) provided, "[n]o

nonconforming use certificate shall be issued by the Planning

Director unless the use as a single-family rental is a legal use

under the [CZO], . . ." (Emphasis added.) Campos does not claim

KCC § 8-17.10 was not properly promulgated.

Moreover, in revoking Campos's Provisional

Nonconforming Use Certificate, the Planning Department notified

Campos of the revocation, explained its reasons for the

revocation, instructed Campos to discontinue any transient

vacation rental use on the Property, and informed Campos of the

possible penalties.

Campos appealed this decision and requested a public

hearing. A contested case hearing was held, and the Hearing

Officer issued a report and recommendation. The Planning

Commission heard oral arguments, and issued its Findings of

Fact, Conclusions of Law, Decision and Order. Campos then

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appealed to the circuit court, which heard oral arguments and

entered its Decision and Order affirming the Planning

Commission's decision. Campos was therefore afforded a

meaningful opportunity to be heard.

As to Campos's argument that he was not allowed to

correct the violation, Campos cites to his Exhibit 33 (plans

titled "Renovation + GH to SFR Conversion") and the testimony of

his brother. As an initial matter, Campos does not indicate

where in the record he made the application to correct the

violation or show that an appeal from the denial of the

application is properly before this court. And Campos does not

dispute that his application to convert the Guest House to a

single-family dwelling was submitted months after he appealed the

Planning Department's revocation of the Provisional Nonconforming

Use Certificate. Thus, this argument is deemed waived.

Even if we considered Campos's argument in the context

of this appeal, Campos has not provided this court with any law,

ordinance, or rule entitling him to convert his Guest House (that

does not comply with the Zoning Permit issued) into a single-

family dwelling, and then have that conversion retroactively

render the unlawful use of his Guest House into a lawful use as a

single-family dwelling.

As stated in an unchallenged finding, Planning

Department Enforcement Supervisor Michael Laureta testified that

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"in order for the Guest House to be approved as a 'Single-Family

Transient Vacation Rental[,]' a public hearing by the [Planning]

Commission would be required on [Campos's] Special Permit

Application." FOF 22. The Planning Commission also noted that

"for this reason, the Planning Department cannot simply allow

[Campos] to submit an application at this time for retroactive

approval of 'a guest house with a kitchen' as part of Z-437-98." 9

As such, Campos has not shown that denial of an application for

"Renovation + GH to SFR Conversion" was a denial of his due

process rights.

Based on the record in this case, Campos was afforded

notice and ample "opportunity to be heard at a meaningful time

and in a meaningful manner." Mauna Kea Anaina Hou, 136 Hawaiʻi

at 389, 363 P.3d at 237. And the Planning Commission's decision

was not arbitrary and capricious.

4. Fines

Finally, Campos contends that the "County violated its

own rules in fining" him. (Formatting altered.) Campos asserts

that the "County's own regulations specifically states [sic]

9 The summary of the transcripts from the contested case hearing stated
that Campos's attorney, Jonathan Chun, "noted that Mr. Laureta testified
earlier that there was another situation with a guest house with a kitchen
and questioned if he applied for a [transient vacation rental] to which
Mr. Laureta replied that he applied for two [transient vacation rentals], one
for the main house and one for the guest cottage." After removal of the
kitchen in the guest house, Mr. Chun questioned the Department's recommended
approval to which Mr. Laureta replied that "the Commission wouldn't accept
two applications. The guest cottage could be used as an accessory bedroom,
but couldn't be advertised separately from the main dwelling unit."

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that fines can only be assessed after a notice of violation has

been issued on the property" and the "record is devoid of any

indication that a notice of violation was issued[.]"

The Planning Department argues Campos waived this

issue because he raised it for the first time in his reply brief

to the circuit court. In his reply on appeal, Campos states the

"County ignores the fact that the issue regarding the County's

own failure to follow its own rules in fining Campos was raised

in the lower court" and cites "Amended RA, Volume 1, Part 2 of 2

at p. 129[,]" which is Campos's reply brief to the circuit

court.

Points raised for the first time in a reply brief are

deemed waived. See Hawaii Ventures, LLC v. Otaka, Inc. 114

Hawai‘i 438, 472 n.17, 164 P.3d 696, 730 n.17 (2007) (explaining

that Appellant's "point of error is deemed waived for failure to

present any argument in its opening brief in the first instance

and presenting such arguments in its reply brief to which no

answer could be made").

Moreover, Campos's argument to this court consists of

one paragraph, which does not specifically identify or quote the

rule on which he relies, but instead cites to "Amended RA,

Volume 1, Part 1 a of 2 at p. 391." See HRAP Rule 28(b)(8)

(requiring the opening brief to provide the "rules pertaining to

the points of error set out verbatim"). Campos's one-paragraph

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argument also does not analyze how the rules in "Amended RA,

Volume 1, Part 1 a of 2 at p. 391" apply to the facts of this

case, and does not explain why the December 22, 2011 letter

instructing him to stop using the Guest House as a transient

vacation rental or face fines "up to $10,000 and/or up to

$10,000 per day" was not sufficient notice of the fines he

faced.

IV. CONCLUSION

In sum, Campos fails to show that he is entitled to

relief under HRS § 91-14(g). We thus affirm the circuit court's

(1) June 13, 2017 Final Judgment, and (2) April 19, 2017

Findings of Fact, Conclusions of Law, Decision and Order.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Jonathan J. Chun,
for Plaintiff- /s/ Clyde J. Wadsworth
Appellant/Appellant. Associate Judge

Mark L. Bradbury, /s/ Sonja M.P. McCullen
for Defendant- Associate Judge
Appellee/Appellee
County of Kauaʻi Planning
Department.

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