Green v. Zoning Board of Appeals

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAY-2024
07:47 AM
Dkt. 92 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HOWARD R. GREEN, Appellant-Appellant, v.
ZONING BOARD OF APPEALS, CITY AND COUNTY OF HONOLULU;
DIRECTOR OF PLANNING AND PERMITTING, CITY AND COUNTY
OF HONOLULU; INTERVENOR KANEOHE YACHT CLUB,
Appellees-Appellees,
and
DOES 1-10, Respondents

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC18-1-1144)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and McCullen and Guidry, JJ.)

In January 2015, Appellant-Appellant Howard R. Green
(Green) submitted a petition to Appellee-Appellee Director (the
Director) of the Department of Planning and Permitting (DPP),
City and County of Honolulu, requesting a declaratory ruling as
to whether Appellee-Appellee Kaneohe Yacht Club's (KYC) boat
"haul-out" activities were permitted as a nonconforming use under
the former Comprehensive Zoning Code (CZC) and the later-enacted
Land Use Ordinance (LUO) of the City and County of Honolulu. In
a declaratory ruling issued in 2015 and amended in 2017, the
Director concluded, among other things, that KYC's operations as
a yacht club were authorized under a 1955 zoning use variance
(the 1955 Variance) and were thus not a nonconforming use, and
KYC's haul-out activities were a permissible accessory use under
the 1955 Variance.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Green appealed to Appellee-Appellee Zoning Board of
Appeals (ZBA), City and County of Honolulu. Following a
contested case hearing, the ZBA affirmed the Director's amended
declaratory ruling. Green then appealed the ZBA's decision to
the Circuit Court of the First Circuit (Circuit Court).1/ After
further briefing and a hearing, the Circuit Court affirmed the
ZBA's decision.
Green appeals from the July 23, 2019 Final Judgment,
entered in favor of the ZBA, the Director, and KYC by the Circuit
Court. Green also challenges the Circuit Court's April 22, 2019
Order Affirming Zoning Board of Appeals.
On appeal, Green contends that the Circuit Court and
the ZBA erred in affirming the Director's conclusions that: (1)
the 1955 Variance "exempts" KYC's "large boat haul-out and hull-
resurfacing operation begun in 1980" from compliance with the
LUO; and (2) KYC's "large boat haul-out and hull-resurfacing
operation" is a permissible accessory use under the 1955
Variance. Green also contends that the Circuit Court erred in
concluding that the 1955 Variance permitted "a reasonable level
of haul out operations."2/
In this secondary appeal, we apply the standards of HRS
§ 91–14(g)3/ to determine whether the Circuit Court's decision was

1/
The Honorable Jeffrey P. Crabtree presided.
2/
Green's points of error are difficult to discern. They are
restated and condensed for clarity.
3/
HRS § 91-14(g) (Supp. 2016) provides in relevant part:

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;

(continued...)

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right or wrong. Save Diamond Head Waters LLC. v. Hans Hedemann
Surf, Inc., 121 Hawai#i 16, 24, 211 P.3d 74, 82 (2009).
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Green's contentions as follows, and affirm.
(1) Green contends that the Circuit Court and the ZBA
erred in affirming the Director's declaratory ruling, because
"[a] 1955 Variance granted for the purpose of building a
clubhouse does not exempt KYC's non-conforming large boat
haul-out hull-resurfacing operation begun in 1980 in a R-10
Residential District from compliance with" various provisions of
the LUO, the former CZC, and the Revised Charter of Honolulu.
Relatedly, Green argues that "[t]he Director erroneously employed
an expansive interpretation of the scope and reach of KYC's
limited 1955 Variance to excuse a non[-]conforming use that began
in 1980, 25 years after the Variance was granted . . . ." Thus,
Green appears to challenge the conclusion of the Director,
affirmed by the ZBA and the Circuit Court, that KYC's yacht club
use and related haul-out activities are permitted under the 1955
Variance and are therefore not a nonconforming use.
We first note that Green has not challenged any
specific findings of fact (FOFs) in the ZBA's June 21, 2018
Findings of Fact, Conclusion of Law, and Decision and Order. The
FOFs are therefore binding on appeal. See Poe v. Haw. Labor
Rels. Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002) (ruling
that an agency's unchallenged findings are binding on appeal).
Based on these FOFs, the ZBA reached the following relevant
conclusions of law (COLs):

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(...continued)
(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.

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7. The Director did not make an erroneous finding
of material fact, or act arbitrarily or capriciously, or
commit a manifest abuse of discretion in concluding that
KYC's yacht club use is a variance use authorized by the
1955 variance and not a nonconforming use.

8. The 1955 Variance was issued under the City's
1942 zoning code. Both the [CZC] and the [LUO] provide that
"[a]pplications previously approved other than by an
ordinance shall continue to be approved." 2017 Declaratory
Ruling at 18; See CZC § 21-l.5(b) and LUO § 21-2.20(f).
9. A variance use is separate and distinct from a
nonconforming use.
10. A nonconforming use is an existing lawful use
that becomes unlawful due to a subsequent amendment to the
zoning code or zoning map. LUO § 21-10.1.
11. A variance use is a use not allowed by the
zoning code but permitted as an exception to the code if
certain criteria are met. See Rev. Charter of Hon. § 6-1517
(stating a variance may be granted if three criteria are
met: (1) applicant deprived of reasonable use of land; (2)
unique circumstance; and (3) will not alter character of
neighborhood nor be contrary to the intent and purpose of
the zoning ordinance).
12. Under the 1942 zoning code, KYC's operations
were not permitted in the area where it operates until KYC
sought and received the 1955 variance.
13. The Director's interpretation of the scope of
the 1955 variance is supported by the record and entitled to
deference.

In reviewing the conclusions of the Director and the
ZBA, the Circuit Court ruled in part: "On the issue whether
KYC's operations are governed by the 1955 variance, or by the law
pertaining to nonconforming uses, the court sees no error. The
court agrees with DPP's and ZBA's analysis that because of the
timeline of events, the variance controls, rather than the
application of a nonconforming use."
We, too, agree there was no error in the conclusion
that KYC's operations as a yacht club are a variance use
authorized by the 1955 Variance and not a nonconforming use.
See, e.g., LUO § 21-10.1; Rev. Charter of Hon. § 6-15174/; see

4/
When the 1955 Variance was issued, the 1942 Revised Ordinances of
Honolulu in effect at that time permitted the city planning commission to
issue a variance from zoning regulations "upon such terms and conditions and
for such a period of time as the facts may warrant[,]" and "upon a finding by
the commission . . . that the application presents a situation wherein strict
enforcement of the existing regulation would involve practical difficulty or
unnecessary hardship and further, that desirable relief may be granted without
substantially detracting from the intent and purpose of the zoning
(continued...)

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also Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of
Appeals of City & Cnty. of Honolulu, 86 Haw. 343, 353, 949 P.2d
183, 193 (App. 1997) (quoting definition of "nonconforming use"
in former LUO § 21-9.1, and concluding that "for purposes of
determining whether a structure was grandfathered in as a
'previously lawful' nonconforming structure under the LUO, the
lawfulness of the structure should be measured by reference to
the zoning code or ordinance in existence at the time the
structure was built."). The ZBA's legal conclusions are not
wrong, and to the extent COL 7 presents mixed issues of fact and
law, Green has not shown that the ZBA's conclusion (or the
Director's underlying conclusion) was clearly erroneous in view
of the reliable, probative, and substantial evidence on the whole
record.
(2) Green contends that the Circuit Court and the ZBA
erred in affirming the Director's conclusion that KYC's haul-out
activities are a permissible accessory use under the 1955
Variance. In particular, Green argues that KYC's haul-out
activities do not meet the definition of "accessory use" under
LUO § 21-10.1 because the activities are not "clearly incidental
to and customarily found in connection with the principal use."
Green further argues that "[t]here is no evidence in the Record
of any other private yacht club located in an R-10 Residential
District in the State of Hawaii that conducts a large boat
haul-out hull-resurfacing operation."
The ZBA made the following FOFs related to the
accessory use issue, none of which Green has specifically
challenged on appeal:

10. Historical records show that KYC has provided
haul out operations to its members from the time it opened
at the present location in 1955 or 1956. Director's Exhibit
D-11 at 18; KYC Exhibit B.
11. Appellant's Request for Declaratory Ruling,
filed January 30, 2015, states that prior to 1980, KYC
members' boats were "hauled, cleaned, sanded, repaired and

4/
(...continued)
regulations." Revised Ordinances of Honolulu 1942 § 112; see also id. § 113
(permitting variances in restricted residential districts "provided this can
be done in such a way as to grant relief and at the same time protect the
public interest and general welfare").

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painted" in KYC's parking/storage spaces. Director's
Exhibit D-11 at 33.
12. KYC has always had significant club and marina
structures and facilities, including docks, wet and dry
stored areas, a boat hoist and haul out areas for onshore
boat maintenance and repairs. Id.

13. In the 1980's, KYC changed its haul out
operations, increasing the size of boats that could be
hauled out to 12,000 - 20,000 pounds with the use of a
crane, and limiting the haul out to several months of the
racing off-season. Testimony of Howard Green.
14. KYC's current haul out operations include
cleaning, sanding, painting, repairing and related
activities.
. . . .

25. Wet stored boats eventually need to be hauled
out to maintain the under-water portion of the boats, and
the type of maintenance activities do not differ based on
the size of the boat. Testimony of Ned Murphy.

26. Similar to KYC, Waikiki Yacht Club also conducts
haul out operations, which includes pulling out wet and dry
sail boats and dry-stored boats with a hoist and performing
maintenance in the location of the hoist. Testimony of Ned
Murphy; Testimony of Mike Rothwell.

27. Waikiki Yacht Club also allows sanding and
painting the bottom of boats. Id.

28. The Director identified other yacht clubs as
well that allow Haul Out and maintenance activities.
Director's Exhibit D-11 at 15.

Based on these FOFs, the ZBA reached the following COLs
on the accessory use issue:

14. The Director did not make an erroneous finding
of material fact, or act arbitrarily or capriciously, or
commit a manifest abuse of discretion in concluding that
KYC's haul out activities are an accessory use to the
principal use of a "private yacht club."

15. The 1942 zoning code does not expressly address
accessory uses; however accessory uses are implied as a
matter of law when they are subordinate to and customarily
associated with the principal use. The Director correctly
found that KYC's Haul Out operations meet this criteria.

16. Similarly, LUO § 21-10.1 defines an "accessory
use" as a use which meets the following conditions:
(l) Is a use which is conducted on the same
zoning lot as the principal use to which
it is related . . .;
(2) Is clearly incidental to and customarily
found in connection with the principal
use; and
(3) Is operated and maintained substantially
for the benefit or convenience of the
owners, occupants, employees, customers or

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visitors of the zoning lot with the
principal use.
17. KYC's haul out activities are conducted on the
same zoning lot as the principal yacht club use.

18. Hauling boats out of the water to perform
essential maintenance and repairs on the boats is an
incidental activity to the primary use of the property for a
yacht club/marina facility and is customarily done at yacht
clubs.
19. The haul out activities are conducted by KYC
members for their benefit.
20. KYC's haul out operations satisfy the LUO
requirements for an accessory use.
21. The Director's interpretation of accessory uses
under the zoning regulations is entitled to deference.

In reviewing the ZBA's conclusions, the Circuit Court
ruled in part: "On the issue whether haul out operations as a
general concept are an accessory use under the 1955 variance
(since the operations were not part of the principal use
described in the 1955 variance), the court sees no error. A
reasonable level of haul out operations are necessary for a yacht
club, and therefore an implied accessory use."
We agree there was no error in the conclusion that
KYC's haul-out operations as a general concept are an accessory
use under the 1955 Variance, and that a reasonable level of haul-
out operations are thus an implied accessory use under the 1955
Variance. The ZBA's underlying legal conclusions are not wrong,
and to the extent COL 14 presents mixed issues of fact and law,
Green has not shown that the ZBA's conclusion (or the Director's
underlying conclusion) was clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole
record.
(3) Green contends that the Circuit Court erred in
concluding that the 1955 Variance permitted "a reasonable level
of haul out operations." Green does not present a discernible
argument supporting this contention, and it is therefore deemed
waived. See Hawai#i Rules of Appellate Procedure Rule 28(b)(7).
Instead, Green pivots to an argument that the Director violated
the Revised Charter of Honolulu, the LUO, various environmental
statutes, and Article XI, Sections 1 and 9 of the Hawai#i

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Constitution by failing to enforce their provisions to remedy
alleged environmental harms caused by KYC's haul-out activities.
In Green's request for a declaratory ruling, he raised
relatively narrow legal issues based on specific provisions of
the CZC and the LUO. The Director resolved these issues in
rulings that were affirmed by the ZBA, the Circuit Court, and,
now, this court. Green did not raise arguments based on the
statutory and constitutional provisions he now relies on. His
arguments based on these provisions are thus deemed waived for
purposes of this appeal. See Alpha, Inc. v. Board of Water
Supply, 153 Hawai#i 564, 579, 542 P.3d 1259, 1274 (App. 2023);
Keep the N. Shore Country v. Bd. of Land & Nat. Res., 150 Hawai#i
486, 517, 506 P.3d 150, 181 (2022) (citing Waikiki Resort Hotel,
Inc. v. City & Cnty. of Honolulu, 63 Haw. 222, 250, 624 P.2d
1353, 1372 (1981)).
For the reasons discussed above, the July 23, 2019
Final Judgment, entered by the Circuit Court of the First
Circuit, is affirmed.

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

On the briefs:

Linda M.B. Paul /s/ Clyde J. Wadsworth
for Defendant-Appellant. Presiding Judge

Gregory W. Kugle and
Joanna C. Zeigler /s/ Sonja M.P. McCullen
for Appellee-Appellee Associate Judge
Kaneohe Yacht Club
and
Brad Saito, /s/ Kimberly T. Guidry
Deputy Corporation Counsel, Associate Judge
for Appellee-Appellee
Director of the Department of
Planning and Permitting, City
and County of Honolulu

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