NO. 27804 – Thursday, May 7, 2009 – 9 a.m.

SAVE DIAMOND HEAD WATERS, LLC, a Hawaii limited liability corporation; KAPIOLANI PARK PRESERVATION SOCIETY, LLC, a Hawaii limited liability corporation; MIKE BEASON, an individual; and RICHARD K. QUINN, an individual, Appellants-Appellees, vs. HANS HEDEMANN SURF, INC., Appellee-Appellant, and CITY AND COUNTY OF HONOLULU, by and through the DEPARTMENT OF PLANNING AND PERMITTING, Appellee-Appellele, and McINERNY FOUNDATION, a Hawaii corporation; and HOTEL KAIMANA, INC., a Hawaii corporation, Appellees.
(Agency Appeal)

Attorney(s) for Petitioners/Appellants-Appellee(s)
Dane L. Miller and Wilma Sur (Miller Tokuyama & Sur)

Attorney(s) for Respondent/Appellee-Appellant(s)
William W. L. Yuen and Philip W. T. Chang (Ching, Yuen & Morikawa)

Attorney(s) for Respondent/Appellee-Appellee(s)
Honorable Carrie K. S. Okinaga, Corporation Counsel, and Don S. Kitaoka, Deputy Corporation Counsel, City & County of Honolulu

NOTE: Order assigning Judge Steven S. Alm due to a vacancy, filed 02/09/09.

COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Circuit Judge Steven S. Alm assigned by reason of vacancy.

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Brief description:

The central issue in this case is whether a change in land use from a hotel to a surf shop constitutes a permissible change in a nonconforming use under the plain language of the Land Use Ordinance (LUO) § 21-4.110(c)(4).

Petitioner/Plaintiff-Appellee Save Diamond Head Waters, LLC; Kapiolani Park Preservation Society, LLC; Mike Beason; and Richard K. Quinn (collectively SDHW) petitions this court to review the January 9, 2009 judgment of the Intermediate Court of Appeals (ICA) based on its Opinion in Save Diamond Head Waters, LLC. V. Hans Hedemann Surf, Inc., No. 27804, 119 Hawai`i 452, 198 P.3d 715 (2008). The ICA’s opinion reversed the April 19, 2006 Amended Final Judgment on Administrative Appeal, Vacating and Modifying Decision of the Zoning Board of Appeals Matter Number 2004/ZBA-04 of the Circuit Court of the First Circuit (circuit court).

In its Application, SDHW argues that the ICA gravely erred by not applying the de novo standard of review to ascertain the scope of authority granted to the Director of the Department of Permitting and Planning (DPP) and his interpretation of the LUO. SDHW also challenges the following conclusions by the ICA: (1) the Director did not misinterpret the plain language of LUO § 21-4.110(c)(4) when the he set the standard for the impact of the surf shop to “no greater than if it operated as an accessory use of the hotel”; (2) the Director had the authority to impose conditions that would ameliorate the potential harm of a changed nonconforming use; (3) the Director did not abuse his discretion in relying upon DPP Interpretation No. 88/INT-6 (December 19, 1998) because it was a reasonable interpretation of LUO § 21-4.110(c)(4); and (4) the Director did not unlawfully delegate the DPP’s public authority when he ordered the nonconforming user to “take appropriate actions” to maintain order on a seawall.