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Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment on Counts II and III of the Complaint and Granting in Part and Denying in Part Defedants' Counter Motion for Summary Judgment on Counts II and III, Kauai Beach Villas-Phase II, LLC, v. County of Kauai, No. 12-00483 LEK-RLP (D. Haw. June 28, 2013)

Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment on Counts II and III of the Complaint and Granting in Part and Denying in Part Defedants' Counter Motion for Summary Judgment on Counts II and III, Kauai Beach Villas-Phase II, LLC, v. County of Kauai, No. 12-00483 LEK-RLP (D. Haw. June 28, 2013)

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Published by robert_thomas_5
Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment on Counts II and III of the Complaint and Granting in Part and Denying in Part Defedants' Counter Motion for Summary Judgment on Counts II and III, Kauai Beach Villas-Phase II, LLC, v. County of Kauai, No. 12-00483 LEK-RLP (D. Haw. June 28, 2013)
Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment on Counts II and III of the Complaint and Granting in Part and Denying in Part Defedants' Counter Motion for Summary Judgment on Counts II and III, Kauai Beach Villas-Phase II, LLC, v. County of Kauai, No. 12-00483 LEK-RLP (D. Haw. June 28, 2013)

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08/06/2013

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAIIKAUAI BEACH VILLAS-PHASE II,LLC,Plaintiff,vs.COUNTY OF KAUAI, KAUAI COUNTYCOUNCIL, KAUAI PLANNINGDEPARTMENT AND DOE DEFENDANTS1-20,Defendants._____________________________))))))))))))))CIVIL 12-00483 LEK-RLP
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND III OF THECOMPLAINT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’COUNTER MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND III
On March 1, 2013, Plaintiff Kauai Beach Villas - PhaseII, LLC (“KBV”) filed the instant Motion for Summary Judgment onCounts II and III of the Complaint (“KBV Motion”) and its ConciseStatement of Material Facts in support of the KBV Motion (“KBVCSOF”). [Dkt. nos. 15, 16.] On May 6, 2013, Defendants Countyof Kaua`i (“the County”), Kaua`i County Council (“the Council”),and Kaua`i Planning Department (“the Planning Department”, allcollectively “Defendants”) filed their Counter Motion for SummaryJudgment on Counts II and III (“Counter Motion”) and theirConcise Statement of Facts (“Defendants’ CSOF”). [Dkt. nos. 18,19.] KBV filed a joint reply in support of the KBV Motion andopposition to the Counter Motion (“Reply”) on May 14, 2013.
Case 1:12-cv-00483-LEK-RLP Document 27 Filed 06/28/13 Page 1 of 48 PageID #: 518
 
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The Charter is available to the public through the Countyof Kaua`i website: http://www.kauai.gov/Government/PublicDocuments/tabid/362/Default.aspx. KBV provided relevantsections of the Charter with its KBV CSOF as Exhibit C to theDeclaration of Gregory K. Markham (“Markham Declaration”).2[Dkt. no. 23.] Defendants filed a reply in support of theCounter Motion (“Counter Reply”) on May 21, 2013. [Dkt. no. 24.]These matters came on for hearing on May 28, 2013. Appearing onbehalf of KBV was Gregory Markham, Esq., and appearing on behalfof Defendants was Ian Jung, Esq. After careful consideration ofthe motions, supporting and opposing memoranda, and the argumentsof counsel, the KBV Motion and Defendants’ Counter Motion areHEREBY GRANTED IN PART AND DENIED IN PART for the reasons setforth below.
BACKGROUND
KBV filed the instant action on August 12, 2012 tochallenge: 1) a 2008 amendment to the County of Kaua`i Charter(“the Charter” or “the County Charter”) that was codified asSection 3.19; and 2) a 2011 ordinance adopted to implementSection 3.19 (“Ordinance No. 912”). Section 3.19 provides:
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Implementation of the General PlanA.The power to process and to issue anyzoning, use, subdivision, or variance permit formore than one transient accommodation unit shallbe vested in and exercisable exclusively by thecouncil. As used in this Section,
“transientaccommodation unit” shall mean an accommodationunit or a portion thereof in a hotel, timesharefacility, resort condominium, fractional ownershipfacility, vacation rental unit or other similarly-
Case 1:12-cv-00483-LEK-RLP Document 27 Filed 06/28/13 Page 2 of 48 PageID #: 519
 
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used dwelling that is rented or used by one or more persons for whom such accommodation unit isnot the person’s primary residence under theInternal Revenue Code
.B.Any applicant seeking the issuance of azoning, use, subdivision or variance permit formore than one accommodation unit shall certify tothe planning department whether any use of theunits as a transient accommodation unit isprojected by the applicant.
Prior to granting anysuch permit for a transient accommodation unit,the council shall conduct a public hearing and  make a finding that granting such permit would beconsistent with the planning growth range of thegeneral plan and in the best interest of thecounty and its people.
Approval of any suchapplication shall require a favorable vote of twothirds (2/3) of the entire membership of thecouncil. Appeals of any decision by the councilrelating to such permits must be instituted in thecircuit court within thirty (30) days afterentrance of the final decision of the council.C.The council may by ordinance authorizethe planning commission to process and issue suchpermits, or certain of them, on terms andconditions as the council may deem advisable, onlyupon the council’s enactment of a rate of growthordinance that limits the rate of increase in thenumber of transient accommodation units in thecounty to no greater than one-and-one-half percent(1.5%) per annum on a multi-year average basis, orsuch growth rate that is within the planninggrowth range of a future general plan adoptedpursuant to Section 14.08.D.The council shall adopt such ordinances,laws, rules and regulations as are necessary tocarry out the terms and intent of this amendmentto the Charter.E.If any provision of this amendment shallbe held by a final order of a court of competentjurisdiction to be invalid, all of the other termsof the amendment shall remain in full force andeffect. (Amended 2008)
Case 1:12-cv-00483-LEK-RLP Document 27 Filed 06/28/13 Page 3 of 48 PageID #: 520

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