My regular column at Civil Beat last week examined the legal challenge by a coalition of community groups to Kyo-ya’s proposed new 26-story high-rise oceanfront tower on Waikiki Beach (“Hawaii Monitor: Shifting the Sands to Evade Waikiki’s Zoning Limits“). I would encourage you to take a look.
The proposed tower would mostly be within the 100-foot mandatory shoreline setback established by the Waikiki Special District zoning restrictions, designed protect the shoreline from continued overdevelopment. The new tower would violate both the setback, and the height limits for buildings near the ocean.
In order to proceed, the developer need a waiver to bypass the shoreline and height restrictions. And in order to approve the waiver, the city’s planning director relied on some mighty imaginative considerations. I’ll get to the key one in a moment.
Opponents say the city went way too far in order to approve the variance, and went to court. So far, they’ve lost in the administrative appeal process, and in a circuit court decision. But they’re now encouraged that the Hawaii Supreme Court has agreed to hear their appeal directly, without first waiting for a ruling by the Intermediate Court of Appeals.
They say it has been clear through the initial stages of their challenge that the case would have to go to the Supreme Court, and the court’s decision to make that happen sooner, rather than later, is seen as a good sign.
In approving the Kyo-ya variance, planning director (David) Tanoue also relied on a 1965 agreement between the state and the hotel-owners that set the ground rules for a planned sand restoration project.
The state agreed to use its “best efforts” to extend the beach seaward in line with recommendations of a 1963 study by the Army Corps of Engineers.
The hotel owners, for their part, consented to the project and agreed not to bring any legal or administrative challenges or complaints stemming from the work.
The particular beach extension project was never carried out, although there have been other sand replenishment projects over the years. However, Kyo-ya argued — and Tanoue agreed — that the state’s failure to complete that beach extension contributed to their “unnecessary hardship.”
If the beach had been extended as far as contemplated in 1965, Kyo-ya argued, it could have been some 180 feet farther out than the existing beach. And if the certified shoreline were also extended as a result, the new tower would no longer fall within the mandatory 100-foot set-back.
The mythical, desired shoreline contemplated by a plan nearly five decades ago, has never existed, but because of this interpretation, it could have very real results.
There are other issues being raised, including whether the planning director exceeded his authority by allowing variances to mandatory zoning restrictions, and without meeting each of the criteria required by the city charter.
But, to me, the idea of basing a variance on the shoreline that might have been if that sand project had gone forward, is the most mind-bending.
Here’s how I phrased it in my lead:
Can a distant fantasy shoreline — a nonexistent beach that theoretically extends hundreds of feet beyond the sands of Waikiki — provide the basis for granting a variance from zoning restrictions to allow a controversial new high-rise oceanfront hotel to be built?
So far, the answer from the city has been “yes”.
Will the Supreme Court have a different answer? We’ll see.
Remember that there were lots of politics behind this variance (“Kyo-ya execs campaigned for Hannemann while seeking city variances for new Waikiki hotel“).
Here are electronic versions of some of the key documents in the case.
• Opponents request to transfer case to the Hawaii Supreme Court, which spells out their view of the issues at stake.
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Mayor Mufi Hannemann’s trail of destruction continues to hit the fans.
It’s one shibai after another. We cannot have this man in public office ever again!!!!!!!!!
Perhaps you are personalizing things a bit. A former planning director made a decision that you disagree with but that has so far been upheld on appeal.
If you are truly concerned about over-development, there’s quite a bit at the doorstep of a certain little governor.
At any rate, you might want to stop shrieking and instead analyze the situation like a rational adult!!!!!!!!!
It’s interesting that the HCDA operates under rules that are stricter and more restrictive than those covering the DPP yet it’s the state agency that gets most of the (negative) media attention, not the City. The City plays it fast and loose with their variances and with significantly less transparency and public involvement than the State.
“Can a distant fantasy shoreline — a nonexistent beach that theoretically extends hundreds of feet beyond the sands of Waikiki — provide the basis for granting a variance from zoning restrictions to allow a controversial new high-rise oceanfront hotel to be built?”
Why not? But let’s be fair. Let’s use the”distant fantasy shoreline — a nonexistent beach that theoretically extends hundreds of feet beyond the sands of Waikiki”. With say a one meter sea level rise by 2060 (the five decade horizon above), a 100-foot mandatory shoreline setback for a future Waikiki will be interesting (see http://www.lifeofthelandhawaii.org/Hawaii_Climate_Change_Blog.html), so let’s apply it now.
yes yes yes…..like George Bush, everything wrong in the world even years later is Mufi’s fault. No worries, the polls say The Tea Party (Duke Aiona) is way ahead. Shocking in the most Democrat state in the country. That will really send a message even more than Eric Cantor’s defeat. Buckle up, it’s going to get bumpy.
George, this variance started under Mufi Hannemann — David Tanoue the DPP Director was appointed by Mayor Mufi Hannemann to give the store away.
Yes, Mufi Hannemann will be blamed for a trail of destruction because his administration was fast and loose. It’s no different with his ex Managing Director Kirk Caldwell — who has George Atta from Group 70 as the DPP Director.
It seems to me that Kyo-ya and Mufi’s henchman was trying to pull a fast one… what Kyo-ya is calling “reasonable use” in its redevelopment proposal would be considered “highest and best use” in other quarters.
If the Supremes are going to be extremely generous in their interpretation of what constitutes reasonable use in terms of allowing for this kind of zoning variance, then you might as well throw out the special district master plan. You’re going to have other oceanfront resort owners lining up to submit their fanciful plans of “reasonable use” for their properties.
The HCDA and City DPP variances are so blatantly corrupt it is mind boggling. A terrible black eye for our government. The general public feels powerless to do anything to intercede except sue.
The HCDA proceedings are like watching a fixed fight where the key players know the outcome but go through the motions.
The variance records of the DPP directors should be published. These directors invariably find employment for key development/ building firms immediately after they leave the City.
Thank God for you Ian for working all these years with your follow the money stories on the pay to play contributions these firms give to our politicians. I hope one day we can move past this.
Chris, you got a good point with the DPP directors.
David Tanoue — Mufi Hannemann’s DPP Director resigned to work for Towill Company.
George Atta — Kirk Caldwell’s ( who was Hannemann’s Managing Director) was with Group 70.
We are screwed.