Oh No Kyo-Ya

In a 76-page ruling, Justice Richard Pollock of the Hawaii Supreme Court found that the Developer, Kyo Ya, could not construct a 26-story high rise 50 feet from the shoreline makai of Kalakaua Avenue yesterday.

Procedural Posture 

The case has wended its way through the administrative and legal system for over 5 years. In 2010 Kyo Ya sough a variance for its project and obtained a partial one, meeting the three prong criteria for a variance, in short, (1) deprivation of reasonable use of the land  (2) unique circumstances and (3) no alteration to the character of the neighborhood. Plaintiffs appealed this decision which was denied. The case found its way to the Circuit Court where the Court found that Plaintiffs "failed to satisfy its burden to demonstrate  [the zoning board's decision]  . . . was based on erroneous findings of material fact." The environmental groups had lost again. Plaintiffs appealed once again and the case was transferred to the Supreme Court.


Decision

In yesterday's ruling the Court found that the project did not in fact deprive Kyo Ya of reasonable use of its land stating that "the standard to evaluate deprivation of reasonable use under the charter is that the property owner must establish an inability to make reasonable use of its land . . . without the variance." Relying on Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, the court held "that an applicant who sought a variance to construct a taller building than authorized by the ordinance had not demonstrated deprivation of reasonable use because . . . the applicant could have constructed a shorter, compliant building." Kyo Ya also relied on the argument that because the PD-R (Planned Development-Resort) license would allow such a high rise building, it should build such a building. The Court did not agree. “[T]he director used Kyo Ya’s inability to obtain the full benefit from the PD-R permit as a reason to find that Kyo Ya a would be denied reasonable use of the site if the coastal height setback was applied. In other words, by obtaining the PD-R permit prior to seeking the variance, Kyo-ya was able to argue that it was deprived of the reasonable use of its land by pointing to the loss of the increased density and height. The judge found that reasoning circuitous.

Implications

This case will have long reaching ramifications for Developers who wish to build on Waikiki shoreline. With Court effectively holding that reasonable use can be obtained with hotels the are similar to the ones now standing, increased development as we have come to understand it will be limited. "Equally  Dense" buildings, but perhaps not the new beachfront high-rises Developers were hoping for.