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Oral Argument Before the Hawaii Supreme Court

No. SCAP-13-0005781, Thursdsay, February 19, 2015, 8:45 a.m.

SURFRIDER FOUNDATION; HAWAI`I’S THOUSAND FRIENDS; KA IWI COALITION; and KAHEA – THE HAWAIIAN-ENVIRONMENTAL ALLIANCE, Petitioners/Appellants-Appellants, vs. ZONING BOARD OF APPEALS, CITY & COUNTY OF HONOLULU; DIRECTOR OF THE DEPARTMENT OF PLANNING & PERMITTING, CITY & COUNTY OF HONOLULU; KYO-YA HOTELS & RESORTS LP; and 20,000 FRIENDS OF LABOR, Respondents/Appellees-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Linda M. B. Paul

Attorneys for Respondent Kyo-Ya Hotels & Resort:

Peter T. Kashiwa, Lisa Woods Munger, Randall C. Whattoff, and David J. Hoftiezer

Attorneys for Respondent Dept. of Planning and Permitting:

Don S. Kitaoka and Brad T. Saito, Deputies Corporation Counsel

Attorneys for Respondent 20,000 Friends of Labor:

William Meheula and Natasha Baldauf

NOTE: Order granting request for transfer, filed 05/15/14.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Kyo-ya Hotels & Resorts LP (Kyo-ya) is the fee simple owner of the Moana Surfrider Hotel Complex located on a combined zoning lot on Waikiki Beach. The lot includes three adjacent buildings: (1) the 21-story Surfrider Tower; (2) the Banyan Wing (the historic Moana Hotel); and (3) the 8-story Diamond Head Tower. Kyo-ya plans to replace the existing Diamond Head Tower with a 26-story hotel and residential tower.

In 2010, Kyo-ya applied to the Department of Planning and Permitting for a zoning variance from section 21-9.80-4(g)(2) of the Revised Ordinances of Honolulu, which provides that “no structure shall be permitted” within 100 feet of the certified shoreline and that “[b]eyond the 100-foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.”

The Director of the Department of Planning and Permitting (“Director”) found that Kyo-ya’s application satisfied the three-part variance test set forth in section 6-1517 of the Revised Charter of the City and County of Honolulu. Specifically, the Director found as follows: 1) Kyo-ya would be denied reasonable use of the land or building if the provisions of the zoning code were strictly applied; 2) Kyo-ya’s variance request is due to unique circumstances and not the general conditions in the neighborhood, and does not call into question the reasonableness of the neighborhood zoning; and 3) Kyo-ya’s request would not alter the essential nature of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance. The Director partially approved the variance subject to conditions that, inter alia, required Kyo-ya to submit revised plans that show its new tower complies with the 1-to-1 (45-degree angle) coastal height setback as measured from the existing seawall 180 feet seaward (the approximate beach width intended in a 1965 Agreement with the State of Hawai`i). Thereafter, Surfrider Foundation, Hawai?i’s Thousand Friends, Ka Iwi Coalition, and Kahea – The Hawaiian-Environmental Alliance (collectively, “Surfrider”) appealed the Director’s decision to the Zoning Board of Appeals (“Board”). Kyo-ya and 20,000 Friends of Labor subsequently intervened in the action, and following a contested case hearing, the Board affirmed the Director’s decision.

Surfrider appealed the Board’s decision to the circuit court. The circuit court affirmed the Board’s decision, concluding that Surfrider failed to satisfy its burden to demonstrate that the Director’s action in partially approving Kyo-ya’s variance application was based upon erroneous findings of material facts.

On October 30, 2014, Surfrider appealed from the circuit court’s findings of fact, conclusions of law, and order affirming the Board’s decision. In its appeal, Surfrider raises four issues. First, Surfrider argues the circuit court erred in affirming the Board’s finding that the Director was entitled to ordinary deference in granting the variance because the coastal setbacks set forth in the Land Use Ordinance are mandatory and cannot be varied. In response, the Director, Kyo-ya, and 20,000 Friends of Labor (collectively, “Appellees”) argue the Revised City Charter authorizes the Director to approve variances from the Land Use Ordinance, including coastal height setbacks, upon satisfaction of the three-prong variance test.

Second, Surfrider argues the circuit court and the Board erred in affirming the Director’s decision to condition the variance on compliance with a non-existent shoreline based on the 1965 agreement between Kyo-ya’s parent company and the State to extend the beach in front of Kyo-ya’s property 180 feet seaward of the current certified shoreline. The Appellees maintain that the Director did not rely on the 1965 agreement to determine whether Kyo-ya had satisfied the variance test, but rather to determine the reasonableness and the scope of the variance.

Third, Surfrider argues the circuit court erred in affirming the Board’s decision because Kyo-ya did not satisfy the three-part variance test. In response, the Appellees argue that the Director correctly found that each part of the variance test had been satisfied and that Surfrider did not carry its burden to prove otherwise.

Finally, Surfrider argues the circuit court erred in affirming the Board’s decision because the Board failed to consider and review the complete record. The Appellees argue the Board considered the whole record before it and was not required to consider the record of the other distinct permits and approvals required for the new tower.

Surfrider filed an Application for Transfer from the Intermediate Court of Appeals to this court on April 10, 2014, which was subsequently granted on May 15, 2014.