Unite Here! Local 5 v. Dep't of Planning & Permitting
| Decision Date | 13 December 2019 |
| Docket Number | SCAP-17-0000823 |
| Citation | 454 P.3d 394 |
| Parties | UNITE HERE! LOCAL 5, Appellant-Appellant, v. 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, and PACREP 2, Intervenor-Appellee. |
| Court | Hawaii Supreme Court |
Gregory W. Kugle, Honolulu, Loren A. Seehase, and Joanna C. Zeigler, Honolulu, for appellant-appellant
Brad T. Saito, for appellee-appellee City and County of Honolulu Department of Planning and Permitting
This case involves Appellee-Appellee City and County of Honolulu Department of Planning and Permitting's (DPP) approval of two Waikiki Special District (WSD) permits for Intervenor-Appellee PACREP 2 and its affiliate PACREP, to develop a condo-hotel at 2121 Kuhio Avenue and 2139 Kuhio Avenue.1
When the Director of the DPP approved PACREP's application for a WSD permit at 2121 Kuhio Avenue (2121 Kuhio Permit) in March 2013, he included several restrictive covenant conditions in the permit to ensure compliance with the Land Use Ordinance (LUO) should any hotel unit be converted to a residential unit. The Director placed these conditions in the 2121 Kuhio Permit at the behest of Appellant-Appellant Unite Here! Local 5 (Local 5), a union representing hotel and restaurant employees, which had raised several concerns regarding the use of the condo-hotel. Neither PACREP nor Local 5 appealed the 2121 Kuhio Permit.
In 2014, PACREP 2 applied for a WSD permit for the second phase of the condo-hotel project at 2139 Kuhio Avenue. The Director approved the permit (2139 Kuhio Permit) in July 2014, but did not include the same restrictive covenant conditions that had previously been placed in the 2121 Kuhio Permit.
Local 5 appealed the 2139 Kuhio Permit to the Zoning Board of Appeals (ZBA), and argued that the Director abused his discretion when he approved the 2139 Kuhio Permit without these conditions. In response, the DPP stated that on a request from PACREP, the Director removed the restrictive covenant conditions from that permit in September 2013, prior to the approval of the 2139 Kuhio Permit in July 2014.
The ZBA concluded that (1) it did not have jurisdiction to address any "modification" of the 2121 Kuhio Permit in Local 5's appeal of the 2139 Kuhio Permit, and (2) the Director's decision to approve the 2139 Kuhio Permit was not an abuse of discretion. On appeal, the Circuit Court of the First Circuit (circuit court) affirmed the ZBA's decision. Local 5 filed a secondary appeal to the Intermediate Court of Appeals (ICA), and this court granted Local 5's subsequent application for transfer.
When the Director removed certain conditions from the 2121 Kuhio Permit, conditions that he knew Local 5 had advocated for, Local 5 should have had an opportunity to challenge the removal of those conditions from the permit. However, Local 5 did not receive notice that the Director had removed these conditions. Under these circumstances, we conclude that Local 5's right to due process was violated, and pursuant to Hawai‘i Revised Statutes (HRS) § 91-14(g), we remand the Director's decision to remove these conditions from the 2121 Kuhio Permit to the ZBA so that Local 5 may challenge this decision.
Finally, because the 2139 Kuhio project is fully integrated with the 2121 Kuhio project and the decision to approve the 2139 Kuhio Permit rested in part on the then-existing 2121 Kuhio Permit, we also vacate the ZBA's decision to approve the Director's approval of the 2139 Kuhio Permit, and remand to the ZBA to decide whether the Director's decision to approve that permit without the restrictive covenant conditions was an abuse of discretion.
Because of its significance as "a recognized symbol of Hawaii," the LUO designates Waikiki as a "special district" and sets forth specific objectives and design controls "to guide carefully Waikiki's future and protect its unique Hawaiian identity." Revised Ordinances of the City and County of Honolulu (ROH) § 21-9.80 et. seq. (1999); see also Surfrider Found. v. Zoning Bd. of Appeals, 136 Hawai‘i 95, 98, 358 P.3d 664, 667 (2015). Any planned development project in the Waikiki Special District must go through a "major permit" permitting process as described in the LUO. See ROH Table 21-9(C) (2003) and § 21-2.40-2 (1999).
Pursuant to the LUO's "major permit" permitting provisions, in 2012, PACREP, a principal of PACREP 2, requested a WSD (Major) permit for a thirty-seven story, 350-foot-high condo-hotel at 2121 Kuhio Avenue in Waikiki.
On February 11, 2013, Local 5 submitted written testimony to the DPP objecting to its consideration of PACREP's WSD permit. Therein, Local 5 contended that PACREP had not taken measures to ensure the building would be used solely for hotel accommodations and had not ensured adequate parking on the premises for guests and workers. Additionally, Local 5 argued that because the project's draft Environmental Assessment was currently being challenged, issuance of a WSD permit was premature.2
On March 19, 2013, the Director approved PACREP's application and issued the 2121 Kuhio Permit. Therein, the Director noted that at the public hearing on PACREP's application, twenty-three people testified in opposition to the project. The Director also noted that a Local 5 representative "commented on the discrepancies in the number of parking spaces, job estimates, and unit types (hotel versus residence) represented in the Final [environmental assessment] and the [WSD permit] application." Pursuant to the Director's findings of fact and conclusions of law, the Director approved the PACREP's application for a WSD permit, "subject to [certain] conditions."
The Director therefore imposed two conditions, Conditions C and G, which provided:
As Local 5 argues, these conditions were important to ensuring that any conversion of units from hotel use to residential use comply with the LUO. The LUO prescribes different requirements for developments described as "multi-family dwellings" and developments described as "hotels."4 For example, in the Waikiki Special District, hotels are only required to provide one parking space for every four dwelling or lodging units, while multi-family dwellings require one parking space for every dwelling unit. See ROH Ch. 21 Table 21-6.3 (2003).
Additionally, ROH chapter 22 article 7 requires that every developer, as a condition precedent to issuance of a building permit for a multi-family development, "shall provide land in perpetuity or dedicate land for park and playground purposes, for the joint use by the occupants of lots or units in subdivisions as well as by the public." ROH § 22-7.3(a) (1996). This park dedication requirement applies "to any conversion in use of any existing non-dwelling unit to dwelling units, and such conversion shall not be undertaken unless the provisions of this article have been met." ROH § 22-7.3(i). However, under the LUO, a "hotel" is excluded from the definition of "multi-family development." ROH § 22-7.2 (1983). Therefore, hotels need not comply with the park dedication requirements of ROH chapter 22 article 7. Conditions C and G of the 2121 Kuhio Permit addressed the possible conversion of hotel units to multi-family dwelling units to ensure that these converted units adhered to LUO requirements.
The 2121 Kuhio Permit also contained the following general conditions regarding any modification of the permit:
To continue reading
Request your trial
-
Wheelan v. City of Gautier
...Ass'n of Louisiana Loc. 1374 v. Par. of Jefferson , 117 So. 3d 246 (La. Ct. App. 2013) )); Unite Here! Local 5 v. Dep't of Planning and Permitting , 454 P.3d 394, 406 (Haw. 2019) ("The interpretation of a statute, ordinance, or charter is a question of law reviewable de novo." (internal quo......