Why we will not tell you how this comes out

Because nobody can, and an owner who plans on an injunction that never arrives has made an expensive decision. What we can do is describe the terrain honestly.

The argument for the owners is that amortization of a use lawfully established and relied on for two decades, on property bought at prices reflecting that use, is a taking in substance whatever the zoning label. Amortization periods are a recognised tool, but their reasonableness is judged against the investment.

The argument for the County is that Act 17 (2024) settled the state-law authority question directly and prospectively: transient accommodation uses “shall not be considered residential or agricultural uses and may be phased out or amortized in any zoning district by county zoning regulations.” And that a nonconforming use is by definition not a permanent entitlement.

Both are serious. Neither is a prediction.

The precedent everyone is watching

Honolulu already lost a § 46-4(a) fight. In Hawaii Legal Short-Term Rental Alliance v. City and County of Honolulu, the federal district court permanently enjoined enforcement of Ordinance 22-7 “insofar as it prohibits 30-89 day home rentals lawfully in existence at its effective date” — resting on § 46-4(a)’s limit on discontinuing prior lawful residential uses.

That case is not this case, and the difference is the statute. The Honolulu injunction addressed rentals of 30 to 89 days, which the court treated as residential; Act 17’s 2024 amendment expressly removes transient accommodations from residential protection. Whether the Maui ordinance sits on the safe side of that line is exactly what the litigation will decide.

Where associations sit in this

In the middle, and without a vote. An AOAO is not a party to either suit, but its budget outcome depends on them.

The board cannot plan on either result. Planning for the phase-out and being wrong costs an association a conservative budget. Planning against it and being wrong costs an association a delinquency wave it did not reserve for. The asymmetry favours planning for the deadline.

Funding the litigation is not a routine decision. Owners will ask. An association’s powers under HRS § 514B-104 are broad, but spending common funds on a suit that benefits one class of owners — investors — against another — residents — is a conflict whether a board surfaces it openly or resolves it quietly. Section 514B-148(e)’s twenty per cent budget cap and the resolution-of-findings requirement apply to unbudgeted legal spending like anything else.

Individual owners are on their own timeline. A class action does not toll an individual owner’s planning, and it does not pay a mortgage.

What to watch

Any ruling in Malter or class certification in Lynam; whether either court reaches the Act 17 question squarely; and whether the H-3/H-4 hotel rezoning process moots the dispute for particular buildings by giving them a lawful route to continue.