(Amended 12/14/18)

No. SCAP-17-0000823, Thursday, March 7, 2019, 10 a.m.

UNITE HERE! LOCAL 5, Appellant-Appellant, vs. DEPARTMENT OF PLANNING AND PERMITTING/ZONING BOARD OF APPEALS, CITY AND COUNTY OF HONOLULU; LYLE ISHIDA, in his official capacity as Chairperson of the Zoning Board of Appeals, Appellees-Appellees.

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

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

Attorneys for Appellant Unite Here:
 Gregory W. Kugle, Christopher J.I. Leong, Loren A. Seehase, and Joanna C. Zeigler of Damon Key Leong Kupchak Hastert

Attorney for Appellee Department of Planning and Permitting and City and County of Honolulu:

Brad T. Saito, Deputy Corporation Counsel

Attorneys for Appellee-Intervenor PACREP 2 LLC:

Terence J. O’Toole, Sharon V. Lovejoy, and Maile S. Miller of Starn O’Toole Marcus & Fisher

NOTE: Order granting Application for Transfer, filed 07/27/18.

NOTE: Order granting request for rescheduling of oral argument from 01/17/19 to 03/07/19 at 10:00 a.m., filed 12/14/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:
 This appeal arises from Appellee-Appellee City and County of Honolulu Department of Planning and Permitting’s (DPP) decision to approve a Waikīkī Special District permit for Appellee-Intervenor PACREP 2 to develop a 39-story condo-hotel at 2139 Kuhio Avenue (2139 Kuhio Permit). The condo-hotel would share an 8-story building podium and common amenities with an adjacent condo-hotel tower at 2121 Kuhio Avenue that had been previously approved by the DPP.

Appellant-Appellant Unite Here! Local 5 (Local 5) appealed the DPP’s decision to the Zoning Board of Appeals (ZBA), contending that a restrictive covenant condition in the permit for the 2121 Kuhio Avenue tower (2121 Kuhio Permit) should similarly be included in the 2139 Kuhio Permit. In response, the DPP and PACREP 2 noted that the DPP removed the condition from the 2121 Kuhio Permit before the DPP approved the 2139 Kuhio Permit. The ZBA affirmed the decision of the DPP.

Local 5 appealed to the Circuit Court of the First Circuit (circuit court). The circuit court affirmed the ZBA’s decision, concluding that it did not have jurisdiction over the modification of the 2121 Kuhio Permit, and that the ZBA’s valid findings and conclusions supported its decision to affirm the DPP’s approval of the 2139 Kuhio Permit.

Local 5 appealed to the Intermediate Court of Appeals, and the case was transferred to this court. On secondary appeal, Local 5 argues that:

 (1) The circuit court erred in concluding that it lacked jurisdiction over the modification of the 2121 Kuhio Permit, or that the ZBA lacked jurisdiction over the modification;
  (2) The circuit court erred in failing to decide that the modification of the 2121 Kuhio Permit was illegal;
  (3) The circuit court erred in failing to find a due process violation when Local 5 did not receive notice of the modification of the 2121 Kuhio Permit;
  (4) The circuit court erred in affirming the 2139 Kuhio Permit without including conditions similar to the conditions in the 2121 Kuhio Permit; and
  (5) “Hotel,” as defined by the Land Use Ordinance, is unconstitutionally vague.