Surfrider Found. v. Zoning Bd. of Appeals
| Decision Date | 23 September 2015 |
| Docket Number | No. SCAP–13–0005781.,SCAP–13–0005781. |
| Court | Hawaii Supreme Court |
| Parties | SURFRIDER FOUNDATION; Hawaii's Thousand Friends; Ka Iwi Coalition; and Kahea–The Hawaiian–Environmental Alliance, Petitioners/Plaintiffs–Appellants, v. 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/Defendants–Appellees. |
136 Hawai'i 95
358 P.3d 664
SURFRIDER FOUNDATION; Hawaii's Thousand Friends; Ka Iwi Coalition; and Kahea–The Hawaiian–Environmental Alliance, Petitioners/Plaintiffs–Appellants,
v.
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/Defendants–Appellees.
No. SCAP–13–0005781.
Supreme Court of Hawai‘i.
Sept. 23, 2015.
As Corrected Oct. 6, 2015.
Linda M.B. Paul, for petitioners Surfrider Foundation et al.
Peter T. Kashiwa, Lisa Woods Munger, Randall C. Whattoff, David J. Hoftiezer and
Lisa A. Bail, Honolulu, for respondent Kyo–Ya Hotels & Resorts, LP.
William Meheula, Honolulu, and Natasha Baldauf, for respondent 20,000 Friends of Labor.
Donna Y.L. Leong, Don S. Kitaoka and Brad T. Saito, for respondent Department of Planning and Permitting City and County of Honolulu.
NAKAYAMA, McKENNA, POLLACK, and WILSON, JJ., with RECKTENWALD, C.J., concurring separately.
Opinion of the Court by POLLACK, J.
I. INTRODUCTION
In 1976, the Honolulu City Council established the Waikiki Special Design District in response "to the rapid development of the 1960s and 1970s, and the changes produced by that development." The City Council found that "[t]o the world, Waikiki is a recognized symbol of Hawai‘i [ ] and the allure of Waikiki continues, serving as the anchor for the state's tourist industry." The Council concluded that while "Waikiki needs to maintain its place as one of the world's premier resorts in an international market [ ], the sense of place that makes Waikiki unique needs to be retained and enhanced." Accordingly, the City Council developed specific requirements and design controls "to guide carefully Waikiki's future and protect its unique Hawaiian identity."
Among the provisions enacted to protect Waikiki's Hawaiian identity is a limitation on development next to the shoreline. The Council established a coastal height setback requirement because of the "need to step back tall buildings from the shoreline to maximize public safety and the sense of open space and public enjoyment associated with coastal resources." The Council also provided for a variance process when compliance with the Land Use Ordinance would result in unnecessary hardship.
In this case, we are called upon to determine whether a variance granted for a proposed 26–story hotel and residential tower that permitted a 74 percent encroachment into the coastal height setback along the Waikiki shoreline was properly issued.1
II. BACKGROUND
A. The Waikiki Special District
The Land Use Ordinance of the City and County of Honolulu (LUO) designates "certain areas in the community in need of restoration, preservation, redevelopment or rejuvenation" as special districts. Revised Ordinances of the City and County of Honolulu (ROH) § 21–9.20 (1990). For each special district, the LUO sets forth objectives, identifies prominent view corridors and historic properties, and outlines requirements and design controls to guide development to "protect [and] enhance the physical and visual aspects of [the district] for the benefit of the community as a whole." ROH § 21–9.20–1.
The Honolulu City Council (City Council) designated the Waikiki Special District2 "to guide carefully Waikiki's future and protect its unique Hawaiian identity." ROH § 21–9.80. Within the Waikiki Special District (WSD), the City Council recognized the need to step back buildings from the shoreline in order to optimize "the sense of open space and public enjoyment along the beach." ROH § 21–9.80–4(g)(2). To accomplish this objective, the City Council established the following minimum setbacks that "apply to all zoning lots along the shoreline" within the WSD:
(A) There shall be a building height setback of 100 feet in which no structure shall be permitted. This setback shall
be measured from the certified shoreline;[3 ] and
(B) Beyond the 100–foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.
ROH § 21–9.80–4(g)(2) (Coastal Height Setback).
The WSD requirements and design controls set forth in the LUO are "supplemented by a design guidebook" (WSD Design Guidebook) that "shall be used as a principal tool by the director to express those ... elements which demonstrate consistency with the intent, objectives, guidelines, and standards of the [WSD]." ROH § 21–9.80–4. With respect to the Coastal Height Setback, the WSD Design Guidebook provides, "A setback from the shoreline is required to maximize public safety, the sense of open space, lateral access along the beach, and the public enjoyment associated with our coastal resources."4 Additionally, the Coastal Height Setback is designed to "contribute to a Hawaiian sense of place" by "reduc[ing] the perception of crowding, enhanc [ing] the aesthetics of Waikiki and impart[ing] a greater sense of Hawaiiana in the built environment." WSD Design Guidebook at 25.
Although the City Council enacted the LUO to "provide reasonable development and design standards for the location, height, bulk and size of structures," a party may apply for a variance on the basis of unnecessary hardship by submitting an application to the Honolulu Department of Planning and Permitting. Revised Charter of the City and County of Honolulu (RCCCH) § 6–1517 (2000 Edition, 2003 Supp.). In order to establish unnecessary hardship, the applicant must demonstrate that the following three requirements as prescribed in the City Charter have all been met:
(1) the applicant would be deprived of the reasonable use of such land or building if the provisions of the zoning code were strictly applicable;
(2) the request of the applicant is due to unique circumstances and not the general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question; and
(3) the request, if approved, will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance.
Id. Upon receipt of a variance application, the Director of the Department of Planning and Permitting must hold a public hearing. Id. If the variance application is granted, the Director, in its decision, "shall specify the particular evidence which supports granting of [the] variance." Id.
B. Kyo-ya's Variance Application to Encroach into the Coastal Height Setback
Kyo-ya Hotels & Resorts LP (Kyo-ya) is the fee-simple owner of the Moana Surfrider hotel complex, which contains three hotel buildings—the Surfrider Tower, the Banyan Wing, and the Diamond Head Tower (DHT)—on a combined zoning lot located on Kaldkaua Avenue along the Waikiki shoreline. In 2010, Kyo-ya submitted a land use permit to redevelop the existing 8–story DHT with a 26–story, 282 foot hotel and residential tower (the Project). Due to the Project's size, location, and design, the Project required several permits and approvals, including a variance to allow the Project to encroach into the Coastal Height Setback.
On March 19, 2010, Kyo-ya submitted variance application No. 2010/VAR–9 (variance application) to the Department of Planning and Permitting requesting that the Project be allowed to encroach into the Coastal Height Setback. As proposed, the Project would encroach about 40 feet into the 100–foot coastal setback at the building's ewa corner5 and about 60 feet at the Diamond Head corner. Additionally, a significant portion of the building up to the 16th floor would encroach into the 1:1 height setback measured from the certified shoreline, and "from the 17th floor, the entire building encroaches into the coastal height setback." In total, "about 74.3 percent of the building encroaches into the Coastal Height Setback"; "Conversely, only 25.7 percent of the building complies with the coastal height setback."
In its variance application, Kyo-ya maintained that although the Project was "unable to comply with the strict requirements of [the Coastal Height Setback]," the Project satisfied the three requirements for issuance of a variance.
i. First Requirement: Deprived of the Reasonable Use of the Applicant's Land or Building
Kyo-ya argued it would be deprived of the reasonable use of its land if the LUO was strictly applied because the ordinance would "reduce the buildable portion of the property to roughly 11,283 square feet, or approximately 33% of the whole lot area." If the LUO "were strictly followed," Kyo-ya contended that it "would not even be able to rebuild the existing [DHT]."6
Kyo-ya maintained that the State of Hawai‘i entered into an agreement in 1965 with the owners of certain beach...
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