Every 10 years, the people of Oahu have a chance to amend the City Charter. If approved by the Commission, these proposed amendments will be voted on in the next election in November.

In a recent article in the Start-Advertiser, David Rae, the chairman of the City Charter Commission, said that the Charter is “essentially the constitution, the framework of how things happen in the city.” He went on to say, “It affects everybody, whether they know it or not.”

Many proposals are brought forth by the people in an effort to make government more transparent, accountable and/or efficient. But other propositions are put forth by government officials who seem more interested in helping out business interests.

Small waves thrash the beach and sand in Waikiki. Honolulu. Hawaii. 2 march 2015. photograph cory Lum/Civil Beat
Proposition 81, under consideration by the City Charter Commission, would make it easier for developers to skirt setback limits and encroach on beach areas. Cory Lum/Civil Beat

Charter Amendment Proposal 81 appears to fall in the second category and actually goes against existing laws and a recent ruling by the Hawaii State Supreme Court. This will have far-reaching effects on the public, “whether they know it or not.”

Proposal 81 was proposed by our own city managing director in order to excuse developers from complying with existing zoning laws. But this proposal would undermine the Hawaii Supreme Court’s Oct. 23, 2015, ruling in a case about a variance that gave Kyo-ya Hotels & Resorts the right to build a hotel/condominium that would have encroached 74.3 percent into the mandatory Waikiki Special District coastal setback zone.

Basically, Kyo-Ya wanted to replace the Moana Surfrider’s fully functioning eight-story Diamond Head tower with one that was 26 stories high and violated existing height, density and shoreline setback laws.

In a classic David vs. Goliath story, the Surfrider Foundation and other grassroots environmental groups challenged one of the biggest resort developers in the state in a case that seemed stacked against us at every level. But the state Supreme Court ruled unanimously against the zoning variance for this luxury high-rise tower, affirming coastal zoning protections and the importance of open space.

Now, City Managing Director Roy K. Amemiya Jr. has proposed this amendment to the Zoning Variance Test that would exempt developers from complying with similar Land Use Ordinance criteria on the grounds of  “practical difficulties,” which are conveniently vague.

Amemiya claims that his proposed amendment will establish a “dimensional zoning variance” with criteria based on “practical difficulties” rather than relying on unnecessary hardship as alternative grounds for granting a variance to the LUO.

However, the LUO already has a mechanism — called “zoning adjustments” — for providing relief from the strict application of development standards when there are “practical difficulties.” The criteria for granting zoning adjustments are carefully defined based on real-world experience with administering the zoning code over many years.

This has proved to be a successful tool to allow some flexibility on development standards for properties with unique conditions such as slopes or small or irregularly-shaped lots. But Proposition 81 is basically a way to get around the State Supreme Court’s decision. Is this the “framework of how things happen in the city” by skirting around the law?

The city continually examines where the use of zoning adjustments might be expanded to apply to similar situations of “practical difficulty.” This is far preferable to taking a sledgehammer to the LUO to open up a gaping opportunity to undermine the purpose and intent of zoning standards through the zoning variance process. Big developers will be the major beneficiaries of this opportunity, not the average homeowner or small property owner, and certainly not the community as a whole.

The Court held in Surfrider v. Zoning Board of Appeals that the Charter’s hardship test requires that before granting a variance, all reasonable alternatives must be fully considered and no other reasonable alternative is available. It added that the extent of the variance requested must be taken into consideration and the greater the disparity of the requested variance from the ordinance’s restriction, the more compelling and specific the proofs must be that the grant of the variance will not be contrary to the intent and purpose of the zoning ordinance.

These standards protect not only the LUO, but the public’s interest in wise land use planning. They should not be compromised by the Charter amendment proposed by the managing director, whose primary function should be to protect the public interest, not the private developer.

The Hawaiian Supreme Court ruling in Surfrider v. Zoning Board of Appeals noted that the coastal setback requirement was established because of the need to “maximize public safety and the sense of open space and public enjoyment associated with coastal resources.”

Once a special design district’s zoning regulations are relaxed, the development that will follow will surely compromise the unique features of the neighborhood. When applied to shoreline areas, this kind of development will permanently endanger the natural shoreline and recreational resources that local businesses depend upon to generate tourism dollars.

Current Land Use Ordinances protect the public’s interest in wise land use planning. Weakening the zoning regulations would go against the public interests and undoubtedly jeopardize not only the coastal resources that Hawaiians hold so dear, but all land use planning on Oahu. If this charter amendment becomes law, it will undermine all land use ordinances.

On Monday at Honolulu Hale at 3:30 p.m., the Charter Commission will hear comments on Proposition 81, and we hope that they will not pass it.  The commission should only move forward amendments that protect the people’s interests, not those of big developers.

As Chair David Rae put it, these amendments “will affect everybody, whether they know it or not,” so we depend on those in the know on the Charter Commission to look out for the best interests of the public.

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