Surfrider Foundation v. Zoning Board of Appeal, City and County of Honolulu.
136 Haw. 95
| Haw. | 2015Background
- In 1976 Honolulu created the Waikiki Special District (WSD) with a Coastal Height Setback: a 100-foot no-build zone from the certified shoreline and a 1:1 (45°) height setback beyond that, to preserve public beach access, open space, and a "Hawaiian sense of place."
- Kyo-ya owns the Moana Surfrider complex and proposed replacing an 8‑story Diamond Head Tower (DHT) with a 26‑story tower; the project would encroach roughly 74.3% into the Coastal Height Setback.
- Kyo-ya obtained a PD‑R permit for increased density/height but required a separate variance under the City Charter (RCCCH § 6‑1517) to encroach into the Coastal Height Setback. The Charter variance test requires (1) deprivation of reasonable use without the variance, (2) unique parcel circumstances, and (3) no alteration of neighborhood character nor conflict with ordinance intent.
- The DPP Director granted a partial variance (conditioned on measuring a hypothetical shoreline based on a 1965 private Beach Agreement and planned beach replenishment), finding the three Charter requirements satisfied.
- Surfrider et al. appealed to the ZBA, then the circuit court, and finally the Hawai‘i Supreme Court challenging the Director’s factual findings and use of the 1965 Beach Agreement and future beach projects in evaluating the variance.
Issues
| Issue | Plaintiff's Argument (Surfrider) | Defendant's Argument (Kyo‑ya/Director) | Held |
|---|---|---|---|
| Whether Kyo‑ya was deprived of "reasonable use" absent the variance | Kyo‑ya can make reasonable use (renovate/replace within LUO); Director relied on unsupported economic claims and hypothetical beach width | Director/Kyo‑ya: DHT is economically nonviable without redevelopment; PD‑R entitles higher density and alternative designs are impractical | Reversed — Director’s finding clearly erroneous: record lacked substantial evidence of deprivation; reliance on 1965 Agreement and future beach project was improper and prejudicial |
| Whether the parcel had "unique circumstances" justifying the variance | Site is not uniquely burdened; Director improperly treated common neighborhood conditions (setbacks, shoreline projects) as parcel‑specific | Kyo‑ya: narrow lot, presence of historic Banyan Wing, and shoreline conditions create unique constraints | Reversed — Director erred: setbacks and shoreline conditions are common to Waikiki parcels and not unique attributes; narrowness/Banyan Wing not shown to preclude reasonable conforming use |
| Whether grant would alter the essential character of the neighborhood | A 74% encroachment would alter Waikiki's Hawaiian sense of place and crowding protections; Director failed to assess impact of the encroachment itself | Kyo‑ya/Director: Waikiki is dense and many nonconformities exist; project meets several WSD objectives and public benefits | Reversed — Director didn’t assess whether the magnitude of the 74% encroachment conflicted with WSD/Coastal Setback purpose; reliance on neighborhood nonconformity is improper |
| Proper use of evidence (1965 Beach Agreement and planned beach projects) | Director improperly relied on hypothetical/irrelevant shoreline changes and private 1965 Agreement to justify/shape variance | Director/Kyo‑ya: 1965 Agreement and beach maintenance are relevant to the reasonableness and extent of variance | Reversed — Consideration of the unexecuted 1965 Agreement and anticipated beach projects was irrelevant to the statutory variance test measured from the current certified shoreline and prejudiced the decision |
Key Cases Cited
- Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, [citation="87 Hawai'i 217, 953 P.2d 1315"] (Haw. 1998) (applicant bears burden to show inability to make any reasonable use without variance)
- McPherson v. Zoning Bd. of Appeals, 67 Haw. 603, 699 P.2d 26 (Haw. 1985) (absence of evidence of inability to make reasonable use defeats variance)
- Bremer v. Weeks, [citation="104 Hawai'i 43, 85 P.3d 150"] (Haw. 2004) (appellate standard: findings reviewed for clear error on whole record)
- Packer v. Hornsby, 286 Va. 61, 743 S.E.2d 139 (Va. 2013) (existing nonconformity cannot justify further nonconformance)
- Ten Stary Dom P’ship v. Mauro, 216 N.J. 16, 76 A.3d 1236 (N.J. 2013) (variance analysis must target impacts implicated by the specific deviation sought)
- Town of Chesterfield v. [Developer], 157 N.H. 361, 950 A.2d 197 (N.H. 2008) (legislature/municipality may change neighborhood character via zoning despite preexisting conditions)
- Shorba v. Bd. of Educ., 59 Haw. 388, 583 P.2d 313 (Haw. 1978) (admission of incompetent evidence is harmless unless agency relied on it and it was prejudicial)