Agenda - Planning Commission - 03/05/2009

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"- Zoning Bulletin January 25, 20091 Volume 3 I No.2 .,') parking issues, vandalism, trespassing, and "other ills" caused by the Surf School. They petitioned the Director (the "Director") of the Depart- ment of Planning and Permitting of the City and County (the "DPP"), asking him to determine whether the operation of the Surf School was in "compliance with the regulations of the [city's] zoning ordinance for nonconformities." In particular, they asked the Director to determine whether the Surf School's operation was: (1) an unlawful expansion of a nonconforming use; and/or (2) a change in use to one that had an ad- verse effect on its neighboring properties. In response to SDHW's petition, the Director made the following find- ings: While hotel use and "accessory commercial uses" (businesses in the Hotel that primarily served the Hotel guests) were permitted in the Ho- tel's zoning district at the time the Hotel was constructed, pursuant to a 1982 city ordinance (the "Ordinance") those uses were no longer per- mitted in that district. The Director ruled that: (1) the hotel use sUrvived as a permitted nonconforming use; but (2) the Silrf School's operation was not an accessory use of the Hotel since the Surf School's students were drawn primarily. from the general public and not guests of the Ho- tel. However, the Director also ruled that the Surf School qualified as a change in nonconforming use-from accessory-hotel to principal-office use. Under the Ordinance, change in nonconforming use was permitted if the change did not increase the. adverse effects on surrounding proper- ties within the neighborhood compared to those caused by the original nonconforming use. Because the Director found that the size of a surf- ing class could involve greater adverse effects on surrounding properties within the neighborhood than those caused by a hotel accessory use, the Director permitted the change in use with a condition that class size and number limits apply to the Surf School's operation. SDHW appealed the Director's ruling to the Zoning Board of Appeals (",ZBA"). It argued that the Director exceeded his authority by ruling that the Surf School's use of the Shop was a proper change in noncon- forming use so long as certain use limits were imposed. The ZBA af- firmed the Director's ruling. SDHW appealed the ZBA decision to the circuit court. The circuit court vacated the ZBA's ruling, concluding that the Director's ruling was outside of his authority under the city charter (the "Charter") and the Ordinance. Hedemann appealed. DECISION: Circuit Court reversed. The Intermediate Court of Appeals of Hawai'i first held that the is- suance of the Director's ruling was within the Director's discretion and therefore would be overruled by the court only if it found the Director abused his discretion. . @ 2009 Thomson Reuters 5 83