The Hawaii Supreme Court has ruled that the city shouldn’t have granted a variance to allow a 26-story hotel and residential tower to encroach on a Waikiki shoreline.

Several community groups — the Surfrider Foundation, Hawaii’s Thousand Friends, Ka Iwi Coalition and KAHEA — The Hawaiian-Environmental Alliance — brought the case against the city after the Department of Planning and Permitting approved a coastal height setback variance requested by Kyo-ya Hotels & Resorts in 2010.

Stuart Coleman, Hawaiian islands manager for the Surfrider Foundation, said Wednesday he was happy and relieved because the hotel would have set a “dangerous precedent.”

“If citizens and lawmakers spend all this time to make these rules and put them in place, and if we just disregard them willy-nilly and let corporations really violate those laws, then what effect does the law really have?” he said.

Passing showers blanketed Waikiki's landmark Diamond Head.  9 june 2015. photograph Cory Lum/Civil Beat
A Supreme Court ruling said the city shouldn’t have approved a development that’s too close to the ocean. Cory Lum/Civil Beat

“I think (the ruling) sends a message to developers that this is not something that you should plan on because it’s not consistent with the planning that we’ve already done and the laws that we’ve created,” Coleman said. “We have good laws on the books; what we don’t have is a lot of enforcement.”

The 308-foot hotel would have encroached nearly three-fourths of the way into a 100-foot shoreline height setback. The ruling notes that the City Council established the 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.”

Attorneys for the city, Kyo-ya Hotels & Resorts and the 20,000 Friends of Labor organization argued that the project met the conditions to warrant a variance.

Associate Justice Richard Pollack, who wrote the majority opinion, wasn’t convinced.

“We have good laws on the books; what we don’t have is a lot of enforcement.” — Stuart Coleman, Surfrider Foundation

He found that there wasn’t enough evidence to show that Kyo-ya would have been “deprived of the reasonable use” of its property if the variance hadn’t been granted, and that the city and developer didn’t prove there were unique circumstances necessitating the variance.

They also didn’t show that the high-rise wouldn’t “alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance.”

“It is evident that the City Council was greatly concerned with the changing character of Waikiki and thus took affirmative steps to preserve Waikiki’s unique Hawaiian identity,” Pollack wrote. “Therefore, the fact that there are nonconforming properties in the Waikiki Special District that were built prior to the enactment of the special district in 1976 does not provide a basis for a finding that the variance is consistent with the essential character of the neighborhood.”

Kyo-ya representatives could not be reached for comment Wednesday afternoon. A city spokesman said the Department of Planning and Permitting is reviewing the decision and cannot comment.

To read a summary of the case, check out Ian Lind’s column, Hawaii Monitor: Shifting the Sands to Evade Waikiki’s Zoning Limits.

Read the majority opinion below:

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