Rigotti v. Planning Department of the County of Kauai

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2024
09:26 AM
Dkt. 59 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

ELIZABETH RIGOTTI and STEPHEN RIGOTTI,
Petitioners-Appellants-Appellants,
v.
PLANNING DEPARTMENT OF THE COUNTY OF KAUAI/PLANNING
COMMISSION OF THE COUNTY OF KAUAI; SEAN MAHONEY, in his
official capacity as Chairperson of the Planning Commission,
Respondents-Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC191000108)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

In this secondary appeal, Petitioners-Appellants-

Appellants Elizabeth Rigotti and Stephen Rigotti (collectively,

the Rigottis) appeal from the Final Judgment (Judgment) entered

by the Circuit Court of the Fifth Circuit (Circuit Court) on

April 1, 2020.1

The Rigottis operated a transient vacation rental (TVR)

in Hanalei on the north shore of Kaua#i. The property at issue

(the Property) falls outside of the designated Visitor

1
The Honorable Kathleen N.A. Watanabe presided.
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Destination Areas (VDAs), and as such the Rigottis were required

to renew their transient vacation rental nonconforming use

certificate (Non-conforming Use Certificate) annually. They

successfully did so every year from 2014 to 2017. In 2018,

however, they did not file their renewal application before the

deadline; the Rigottis claim that they would have done so but for

a severe storm that impacted Kaua#i, particularly the north

shore. They subsequently filed their application one day late,

and they argue that the Kaua#i Planning Department (Planning

Department), Kaua#i Planning Commission (Planning Commission),

and the Circuit Court all erred in failing to conclude that the

Respondent-Appellee-Appellee the County of Kaua#i (the County)

and its agencies could and should have accepted their late

Nonconforming Use renewal application (Renewal Application).

The Rigottis raise five points of error on appeal,

contending that the Circuit Court erred when it: (1) concluded

that the Planning Department's issuance of the May 1, 2018 Cease

and Desist, and Forfeiture of Non-Conforming Use Certificate

letter (Forfeiture Letter), which denied the Renewal Application,

complied with the law; (2) concluded that the strict enforcement

of the renewal deadline did not violate the due process clauses

of the United States and Hawai#i Constitutions; (3) concluded

that an emergency proclamation did not suspend the zoning

ordinances, when the proclamation provided a mechanism to accept

the Rigottis' renewal packet after the renewal deadline; (4) did

not address the fact that the Planning Department and/or Planning

Commission possessed the equitable power to accept the renewal

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packet just one day after the arbitrary renewal date; and (5)

concluded that the blatant procedural errors on the part of the

Planning Department and the Planning Commission hearing officer

(Hearing Officer) did not amount to a violation of the Rigottis'

right to due process.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve the Rigottis' points of error as follows:
(1) The Rigottis argue that the Circuit Court erred

when it concluded that the Planning Department's issuance of the

Forfeiture Letter and denial of the Renewal Application complied

with the law; they submit that the only way the Rigottis'

nonconforming use can be eliminated in compliance with Hawaii

Revised Statutes (HRS) § 46-4 (Supp. 2023) is if the use is

discontinued. The County argues that the Planning Department was

not delegated the authority to deviate from the Kaua#i

Comprehensive Zoning Ordinance (CZO), Kaua#i County Code, which

imposes a strict deadline, and as a result, neither the Planning

Department nor the Planning Commission could grant the relief
sought by the Rigottis - a variance from the renewal deadline -

and thus both entities acted lawfully.

HRS § 46-4 states, in pertinent part:
§ 46-4 County zoning. (a) This section and any
ordinance, rule, or regulation adopted in accordance with
this section shall apply to lands not contained within the
forest reserve boundaries as established on January 31,
1957, or as subsequently amended.
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

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development of the county. . . The zoning power granted
herein shall be exercised by ordinance which may relate to:
(1) The areas within which agriculture, forestry,
industry, trade, and business may be conducted;
(2) The areas in which residential uses may be
regulated or prohibited;

. . . .
(4) The areas in which particular uses may be
subjected to special restrictions;
. . . .
The council of any county shall prescribe rules,
regulations, and administrative procedures and provide
personnel it finds necessary to enforce this section and any
ordinance enacted in accordance with this section. The
ordinances may be enforced by appropriate fines and
penalties, civil or criminal, or by court order at the suit
of the county or the owner or owners of real estate directly
affected by the ordinances.

. . . .
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. . . .
. . . .

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; provided that a zoning ordinance may
provide for elimination of nonconforming uses as the uses
are discontinued[.]

(Emphasis added).

Prior to 2008, the CZO permitted single-family

residences to be used as TVRs. In 2008, Ordinance 864 amended

portions of the CZO to regulate the operation of TVRs outside

VDAs and required those homeowners to register their TVRs as

nonconforming and submit an annual renewal application. The CZO

was again amended in 2012 by Ordinance 935, which amended, inter

alia, the date the renewal application was required from July 31

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of each year to "the date of issuance of the non-conforming use

certificate." In 2013, Ordinance 950 again amended the CZO and

added a clause providing for the automatic denial of late

applications. Ordinance 950 stated, in pertinent part:
SECTION 5. Chapter 8, Article 17, of the Kaua#i
County Code 1987, as amended, shall be amended to read as
follows:

§ 8-17.10 Nonconforming Use Certificates for Single Family
Vacation Rentals.
. . . .

(h) The owner or lessee who has obtained a
Nonconforming Use Certificate under this
section shall apply to renew the Nonconforming
Use Certificate annually on the date of issuance
of the nonconforming use certificate.
(1) Each application to renew shall include
proof that there is a currently valid
State of Hawai#i general excise tax
license and transient accommodations
tax license for the nonconforming use
and shall be received by the Department
prior to the expiration date of a held
Nonconforming Use Certificate. Failure
to meet this condition will result in the
automatic denial of the application for
renewal of the Nonconforming Use
Certificates.

Similarly, the Interpretive Administrative Zoning Rules

and Regulations (Interpretive Zoning Rules) that took effect in

November 2017 state, in pertinent part:
1. NON-CONFORMING USE CERTIFICATE (NCUC) RENEWAL
A. Requirements for Renewal. Applications
for renewal shall be accepted by the
Planning Department ... no earlier than
[sixty (60)] days prior to the NCUC's
expiration date. The annual renewal
deadline is on the same day and month of
the original determination made by the
Planning Department[.]
. . . .

C. Late Renewal Applications. Failure to submit an
application to renew the NCUC by the NCUC's
expiration date will result in the automatic
denial of the application. The Planning
Department shall not accept applications
submitted after the expiration date.

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The County exercised the authority granted under HRS

§ 46-4 by enacting, inter alia, Ordinance 950 § 8-17.10(h)(1),

which requires homeowners with Nonconforming Use Certificates to

annually renew their registration with the County and states that

"[f]ailure to meet this condition will result in the automatic

denial of the application for renewal of the Nonconforming Use

Certificates."

HRS § 46-4(a) grants counties zoning power in several

enumerated areas, including "[t]he areas in which particular uses
may be subjected to special restrictions[.]" The CZO and

Interpretive Zoning Rules unambiguously prohibit the Planning

Department from accepting late renewal applications.

The Rigottis argue, in essence, that their failure to

fulfill the zoning ordinance's condition nevertheless cannot be

construed as a "discontinuing" of the use under HRS § 46-4. To

the contrary, we conclude that the County may lawfully determine

when the use is discontinued by conditioning the retention of the

nonconforming use on the performance of a reasonable condition,

such as annual registration. See, e.g., Texaco, Inc. v. Short,

454 U.S. 516, 525-26, (1982) (states have "the power to provide

that property rights . . . shall be extinguished if their owners

do not take the affirmative action required by the State."); Bd.

of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1030-31 (Ind. 1998)

(forfeiture of the nonconforming use of a rental property based

on the failure to file a registration did not implicate the

owners' constitutional rights).

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The CZO did not prohibit or eliminate the Rigottis'

nonconforming use; their failure to comply with the CZO's

administrative deadline did. Had the Rigottis continued to renew

their Nonconforming Use Certificate in a timely manner, as they

had done from 2014 to 2017, their Nonconforming Use Certificate

would not have discontinued. Instead, they discontinued their

Nonconforming Use Certificate by failing to comply with the

conditions imposed by the CZO. To conclude that HRS § 46-4

prohibits zoning ordinances from determining the manner in which
nonconforming uses are discontinued would undermine the County's

delegated authority and instead would permit the Rigottis to

disregard the strict requirement to timely renew their

certificate and otherwise comply with CZO.

(2) The Rigottis contend that the Circuit Court erred

when it concluded that the County's enforcement of the renewal

deadline did not violate the due process clauses of the United

States and Hawai#i Constitutions. The Rigottis argue that their

due process rights were violated when the Planning Commission and

Circuit Court construed CZO § 8-17.10(h)(1) as authorizing the

forfeiture of nonconforming use by missing an "arbitrary" renewal

deadline.

"Even with respect to vested property rights, a

legislature generally has the power to impose new regulatory

constraints on the way in which those rights are used, or to

condition their continued retention on performance of certain

affirmative duties." U.S. v. Locke, 471 U.S. 84, 104 (1985).

Further, "[a]s long as the constraint or duty imposed is a

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reasonable restriction designed to further legitimate legislative

objectives, the legislature acts within its powers in imposing

such new constraints or duties." Id.

Courts review zoning ordinances to determine whether

the challenged regulations are rationally related to a legitimate

government interest. See City of Cleburne v. Cleburne Living

Cntr., 473 U.S. 432, 448 (1985) (applying the rational basis test

to a challenge to a city zoning ordinance). When reviewing for

rational basis, "the court essentially asks whether a statute
rationally furthers a legitimate state interest." Kaneohe Bay

Cruises, Inc. v. Hirata, 75 Haw. 250, 260, 861 P.2d 1, 7 (1993)

(brackets omitted). Then, "[o]nce it is determined that the

legislature passed the statute at issue to further a legitimate

government purpose, then the pertinent inquiry . . . is only

whether the Legislature rationally could have believed that the

. . . classification would promote its objective." Id.

(citation, some internal quotation marks and brackets omitted).

Here, the State of Hawai#i has granted the counties

various zoning powers, subject to certain limitations. See HRS

§ 46-4; see also HRS § 514E-4 (2018) ("The several counties

shall, by amendment of their zoning ordinances, limit the

location of time share units, time share plans and other

transient vacation rentals, within such areas as are deemed

appropriate."). The County articulated its rationale for

classifying and regulating TVRs in 2008 in Ordinance 864, which

stated, in pertinent part:

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SECTION 1. Findings and Purpose.

The Council of the County of Kaua#i finds that there
is a compelling need to regulate single-family transient
vacation rentals on Kaua#i. Single-family transient
vacation rentals are occurring at a greater rate and
inflicting a larger impact on the community of Kaua #i than
was ever anticipated in the County's original Comprehensive
Zoning Ordinance. While this type of visitor unit could be
compatible with the character and nature of Kaua #i and while
it has certain positive advantages to the community and is
desirable in terms of offering a mix of accommodations to
the visitor, the uncontrolled proliferation of vacation
rentals in residential and other areas outside the Visitor
Destination Areas (VDAs) is causing significant negative
impacts to certain residential neighborhoods, foreshadowing
similar potential impacts on other areas of the island.

Ordinance 950 stated that its purpose was to amend the

CZO 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 March 7, 2008 and to allow them

to continue subject to obtaining a nonconforming use certificate

as provided by this section." This court has previously held

that the purpose of this portion of the Kaua#i CZO 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 Kauai, 138 Hawai#i 307,

313, 378 P.3d 1023, 1029 (App. 2016). The County had a rational

basis for regulating TVRs and requiring that those properties

"grandfathered in" with Nonconforming Use Certificates meet

certain requirements, such as an annual filing of the Renewal

Application. The renewal requirements are rationally tied to a

valid County interest, and we conclude that the County rationally

could have believed that its CZO and Interpretive Zoning Rules

would promote its objective. See Kaneohe Bay Cruises, 75 Haw. at

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260, 861 P.2d at 7. Thus, we conclude there is no substantive

due process violation.

With respect to procedural due process claims, the

Hawai#i Supreme Court has held that:
This court conducts a two-step analysis to determine whether
there was a due process right to a contested case hearing,
considering: "(1) whether the particular interest which the
claimant seeks to protect by a hearing is 'property' within
the meaning of the due process clauses of the federal and
state constitutions, and (2) if the interest is 'property,'
what specific procedures are required to protect it. [Sandy
Beach Def. Fund v. City Council of Honolulu, 70 Haw. 361,
376, 773 P.2d 250, 260 (1989)].

Protect & Pres. Kahoma Ahupua#a Ass'n v. Maui Plan. Comm'n, 149
Hawai#i 304, 312, 489 P.3d 408, 416 (2021) (original brackets

omitted).

The Rigottis have owned the Property since 2014. When

they purchased the Property, it came with a then-current

Nonconforming Use Certificate. We conclude the preexisting

lawful use of the Property as a nonconforming TVR is a property

right. See Robert D. Ferris Tr., 138 Hawai#i at 312, 378 P.3d at

1028.

Regarding the second prong:
Procedural due process "requires that parties be given a
meaningful opportunity to be heard. This implies the right
to submit evidence and argument on the issues. Application
of Haw. Elect. Light Co., 67 Haw. 425, 430, 690 P.2d 274,
278 (1984). However, "[d]ue process is not a fixed concept
requiring a specific procedural course in every situation,"
and "calls for such procedural protections as the particular
situation demands." Sandy Beach, 70 Haw. at 378, 773 P.2d
at 261 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972)) (emphasis added). In
determining the procedures required to comply with
constitutional due process, courts consider the following
factors: "(1) the private interest which will be affected;
(2) the risk of an erroneous deprivation of such interest
through the procedures actually used, and the probable
value, if any, of additional or alternative procedural
safeguards; and (3) the governmental interest, including the
burden that additional procedural safeguards would entail."
Id.

Kahoma Ahupua#a, 149 Hawai#i at 313, 489 P.3d at 417.

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Here, the Rigottis were properly grandfathered in to

the County scheme that permitted nonconforming use outside of

VDAs. They were notified of their failure to comply and provided

an opportunity to appeal the Planning Department's decision to

issue the Forfeiture Letter. There is also no dispute that they

knew the required renewal date. Indeed, the Rigottis

successfully complied with the CZO every year between 2014 and

2017. And while the Rigottis repeatedly refer to the renewal

deadline as "arbitrary," this is merely an apt description of the
nature of a deadline, not evidence of a due process violation.

See Locke, 471 U.S. at 100-01 ("[R]egardless of where the cutoff

line is set, some individuals will always fall just on the other

side of it. Filing deadlines, like statutes of limitations,

necessarily operate harshly and arbitrarily with respect to

individuals who fall just on the other side of them, but if the

concept of a filing deadline is to have any content, the deadline

must be enforced.").

After receiving the Forfeiture Letter, the Rigottis

participated in a contested case hearing and had the ability to

submit evidence on their behalf, cross-examine witnesses, and

present argument on the evidence. Notwithstanding the flooding

that hindered (but did not completely prevent) the filing of the

Renewal Application in the final days before the deadline, there

was nothing in the record evidencing that the Renewal Application

could not have been filed well before the deadline.

We conclude that the risk of erroneous deprivation of

the Rigottis' right was low, and the probable value of additional

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or alternative procedural safeguards was minimal.2 The Rigottis'

due process rights were not violated.

(3) The Rigottis argue that the Circuit Court erred

when it concluded that the Governor's April 15, 2018 Proclamation

regarding weather events on Kaua#i (Proclamation) did not suspend

the zoning ordinances, and failed to conclude that the

Proclamation provided a means for the Planning Department to

accept the renewal packet after the renewal deadline. The

Proclamation stated, in pertinent part:
NOW, THEREFORE, I, DAVID Y. IGE, Governor of the State
of Hawai#i, hereby determine that an emergency or disaster
contemplated by section 127A-14, [HRS] has occurred in the
above areas in the State of Hawai#i, and do hereby proclaim
the County of Kauai, State of Hawai#i, to be a disaster area
for the purpose of implementing the emergency management
functions as allowed by law, authorizing the expenditure of
State monies as appropriated for the speedy and efficient
relief of the damages, losses, and suffering resulting from
the emergency or disaster, and hereby authorize and invoke
the following measures under [the HRS]:

. . . .
2. Sections 127A-13 and 127A-12, [HRS], I hereby
suspend as allowed by federal law and to the
extent necessary to provide emergency relief as
a result of this event, the following statutes:
. . . .

e. Chapter 46, [HRS], county organization and
Administration as any county ordinance,
rule, regulation, law, or provision in any
form applies to any county permitting,
licensing, zoning, variance, processes,
procedures, fees, or any other
requirements that hinder, delay, or impede
the purpose of this Proclamation.

(Emphasis added).

The Governor possesses broad authority to declare an

emergency and exercise his or her powers under HRS chapter 127.

See For Our Rights v. Ige, 151 Hawai#i 1, 10, 507 P.3d 531, 540

2
Specific alleged procedural deficiencies raised in the Rigottis'
fifth point of error are discussed infra.

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(App. 2022). Here, the Governor exercised those powers and

stated that the Proclamation's intent was to "implement[] the

emergency management functions as allowed by law, [and]

authoriz[e] the expenditure of State monies as appropriated for

the speedy and efficient relief of the damages, losses, and

suffering resulting from the emergency or disaster[.]" To that

end, the Proclamation suspended "to the extent necessary to

provide emergency relief" HRS chapter 46 and county ordinances

regarding permitting, licensing, zoning, or variances "that
hinder[ed], delay[ed], or impede[d] the purpose of this

Proclamation." (Emphasis added).

The Rigottis argue that "requiring someone to drive on

the roads in unsafe conditions while emergency workers are trying

to repair the damaged area, hinders the purpose of the Emergency

Proclamation." Such an interpretation of the Proclamation

ignores that the Proclamation suspended certain statutes and

ordinances "to the extent necessary to provide emergency relief"

and did not otherwise suspend or extend deadlines under those

statutes or ordinances. Permitting a post-deadline renewal of a

nonconforming use certificate was not necessary to provide

emergency relief, nor did the relevant portion of the CZO hinder,

delay, or impede the purposes of the Proclamation.

We conclude that the Proclamation did not suspend the

filing deadline or otherwise provide the Planning Department a

means to accept the Rigottis' late Renewal Application.

(4) The Rigottis argue that the Planning Department

and Planning Commission had the equitable power to accept the

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renewal packet after the deadline, and that both entities should

have exercised those equitable powers. However, the Planning

Department and Planning Commission were limited to the authority

delegated to them by the County. Article XIV of the County of

Kaua#i Charter states, in pertinent part:
ARTICLE XIV
PLANNING DEPARTMENT
. . . .
Section 14.03. Duties and Functions of the Planning
Commission. The planning commission shall:

. . . .
D. Hear and determine petitions for varying the
application of the zoning ordinance with respect to a
specific parcel of land and may grant such a variance
pursuant to the variance provisions established by the
council in the zoning ordinance.

(Emphasis added).

CZO § 8-17.10 and the Interpretive Zoning Rules did not

authorize the Planning Department or Planning Commission to grant

a variance, and instead respectively state that "[f]ailure to

meet this condition will result in the automatic denial of the

application for renewal of the Nonconforming Use Certificates,"

and that "[f]ailure to submit an application to renew the NCUC by
the NCUC's expiration date will result in the automatic denial of

the application. The Planning Department shall not accept

applications submitted after the expiration date."

We conclude that the Circuit Court did not err

concerning the denial of equitable relief.

(5) The Rigottis further argue that the Circuit Court

erred when it concluded that the Planning Department's and

Hearing Officer's alleged procedural errors did not amount to a

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violation of the their due process rights. First, they submit

that the Forfeiture Letter incorrectly stated the time the

Rigottis had to appeal. Second, they claim they were wrongfully

denied discovery, thus hindering their ability to prepare their

case. Third, they argue that they were wrongfully denied an

opportunity to present oral argument to the Planning Commission.

The County acknowledges that the Forfeiture Letter

contained incorrect information regarding the date for appeal.

However, the Rigottis nevertheless timely filed their first
notice of appeal. We thus deem the error harmless. See Hawai#i

Rules of Civil Procedure (HRCP) Rule 61 ("The court at every

stage of the proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights of the

parties."); HRS § 91-14(g) (Supp. 2023) (permitting a court to

reverse or modify an agency decision if the substantial rights of

the parties have been prejudiced) (emphasis added).

Regarding discovery, the Rules of Practice and

Procedure of the [Planning Commission] (RPPC) § 1-6-9(b) states

that the presiding officer of a planning commission hearing

"shall not order or approve civil style discovery against non-

parties; and unless stipulated by all parties, the Presiding

Officer shall not order or approve civil style discovery between

parties." The Rigottis argue that the lack of certain discovery

(such as communications regarding the Rigottis' case, policy

documents, and any communications regarding the emergency

proclamations and the Planning Department) resulted in

deprivation of their right to procedural due process. They cite

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no binding precedent to support their claim, nor do they explain

how the requested discovery would have impacted the issue of

whether they failed to file the renewal by the deadline; they

instead make conclusory statements regarding the requested

discovery and their right to due process.

Upon review of the record and arguments, we cannot

conclude that relief is warranted. The Rigottis cite HRS §

91-11 (2012)3 in support of their argument that they were

wrongfully denied an opportunity to present oral argument to the
Planning Commission. The County argues that HRS § 91-11's

requirements were satisfied because the Hearing Officer offered a

recommended decision, the Rigottis filed exceptions and presented

argument, and then the Planning Commission issued its decision

and order.

RPPC § 1-6-19 states, in pertinent part:
1-6-19 Post Agency Hearing Procedures for Hearing
Conducted by Hearing Officer.
. . . .

(d) Oral Argument Before the Commission.

(1) If a Party desires to argue orally before
the Commission, a written request with
reasons therefore shall accompany the

3
HRS § 91-11 states:
§ 91-11 Examination of evidence by agency . Whenever
in a contested case the officials of the agency who are to
render the final decision have not heard and examined all of
the evidence, the decision, if adverse to a party to the
proceeding other than the agency itself, shall not be made
until a proposal for decision containing a statement of
reasons and including determination of each issue of fact or
law necessary to the proposed decision has been served upon
the parties, and an opportunity has been afforded to each
party adversely affected to file exceptions and present
argument to the officials who are to render the decision,
who shall personally consider the whole record or such
portions thereof as may be cited by the parties.

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exceptions filed. The Commission may
grant the request.

(Emphasis added).

There is no procedural right to oral argument under

RPPC § 1-6-19(d)(1) and HRS § 91-11. We recognize that if there

was evidence that had not been heard or examined, then a decision

could not be made before the Rigottis had an opportunity to file

exceptions and present argument. See White v. Bd. of Educ., 54

Haw. 10, 13, 501 P.2d 358, 361 (1972) ("The general rule is that

if an agency making a decision has not heard the evidence, it

must at least consider the evidence produced at a hearing

conducted by an examiner or a hearing officer.") (citation

omitted). However, the Rigottis filed Petitioners' Exceptions to

Hearing Officer's Report and Recommendation of Contested Case on

June 4, 2019. The Rigottis noted their exceptions, and provided

argument, and it does not appear that they presented any new

evidence for consideration.

Accordingly, we conclude that the Planning Commission

complied with HRS § 91-11. See Trivectra v. Ushijima, 112

Hawai#i 90, 107, 144 P.3d 1, 18 (2006). We thus conclude that

the Circuit Court did not err in declining to grant relief

pursuant to HRS § 91-14.

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For these reasons, the Circuit Court's April 1, 2020

Judgment is affirmed.

DATED: Honolulu, Hawai#i, October 30, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Gregory W. Kugle,
Joanna C. Zeigler, /s/ Keith K. Hiraoka
(Damon Key Leong Kupchak Associate Judge
Hastert),
for Petitioners-Appellants- /s/ Karen T. Nakasone
Appellants. Associate Judge

Matthew M. Bracken,
County Attorney,
Chris Donahoe,
Deputy County Attorney,
Office of the County Attorney,
for Respondents-Appellees-
Appellees.

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