BY ROBERT THOMAS – The Hawaii Intermediate Court of Appeals issued an opinion June 13, 2012, in Pavsek v. Sandvold, No. 29179 (June 13, 2012), holding that a person complaining about a vacation rental cannot circumvent the City’s enforcement procedures and the administrative appeal process by instituting an original jurisdiction lawsuit claiming that a homeowner is renting her property in violation of the City’s prohibition on rentals of less than thirty days:
We hold that: (1) HRS § 46-4(a) does create a private right of action in favor of a real estate owner directly affected by an alleged LUO [Land Use Ordinance] zoning violation, but that the owner’s action is subject to the doctrine of primary jurisdiction; (2) under the doctrine of primary jurisdiction, the Pavseks are required to seek an administrative determination of their claim that their neighbors have been violating the LUO before proceeding with their suit to obtain judicial enforcement of the LUO; (3) the nuisance claims raised by the Pavseks in their complaint were derived from their claim of the LUO violation and therefore are also subject to the primary jurisdiction doctrine; (4) the Circuit Court properly dismissed the claims alleging breach of fiduciary duty and unjust enrichment for failure to state a claim for relief; and (5) the Circuit’s Court’s remedy of dismissal with prejudice of the claims subject to the primary jurisdiction doctrine is not consistent with the remedies applicable to the doctrine.
Slip op. at 2-3 (emphasis original).