By Bruce Voss July 24, 2012
Hawaii property owners now have a right to sue in court to enforce county land use ordinances, but must wait to file suit until the county has had an opportunity to enforce the law.
That important ruling was issued this month by the Hawaii Intermediate Court of Appeals in Pavsek v. Sandvold, a case arising from allegedly illegal use of residential property for transient vacation rentals. The Pavseks own land along Waialua's Laniakea Beach, best known as the set for the ABC television series "Lost". The Pavseks claimed that some of their neighbors were repeatedly renting out their properties for short-term visits, in violation of the City & County of Honolulu Land Use Ordinance. The Pavseks alleged that they had complained to the City "to no avail". Frustrated by what they saw as the City's inaction, the Pavseks filed a lawsuit in state court, asking the judge to stop the allegedly illegal rentals.
At issue was whether a state statute, HRS 46-4, creates a so-called "private right action" to sue in court to enforce county land use laws. The state court judge dismissed the lawsuit, finding that he did not have jurisdiction to issue an injunction.
On appeal, the ICA ruled that "directly affected" property owners do have a private right to sue under county land use laws. However, that right is subject to the "doctrine of primary jurisdiction"-a fancy legal way of saying that property owners must first demand that the county enforce the laws. In this case, the Pavseks must first pursue resolution of their claim regarding illegal vacation rentals with the City Department of Planning & Permitting and then the Zoning Board of Appeals, before they can go to court.
The ruling creates a dilemma for property owners who are aggrieved by a county's failure or refusal to enforce its own land use laws. The property owner must first spend its own time and money in an administrative proceeding-and essentially accuse the county of not doing its job-before it can go to court to get an injunction to enforce the law.