Shadows on the Beach

KYO-YA HOTELS & RESORTS / A glance at Google Earth reveals a new problem with Kyo-ya’s plans to build a 26-story beachfront hotel/apartment building in the middle of Waikiki Beach, right next to the surf racks and police substation at Kuhio Beach Park. The problem is the tower’s morning shadow on the beach during summer months.

In Google’s view of Waikiki, dated Sept. 28, 2008, the shadows indicate mid-morning. If the shadows cast by the 40-story twin towers of the Hyatt Regency Waikiki are any indication, every morning for about half the year, Kyo-ya’s tower will shade some part of the busiest sand in Hawaii–in front of the Moana and the Outrigger Reef hotels, and perhaps all the way to the Royal Hawaiian during the early morning when shadows are longest. That stretch of sand is probably the state’s most important natural resource.

And it’s a public–and historic–beach.

Next door, the old Moana’s legendary Banyan Courtyard will lose its morning sparkle for much of the year.

The increasingly controversial “castle-in-the-sand” is just part of Kyo-ya Hotels & Resorts’ massive, $700 million redevelopment scheme for its Princess Kaiulani and Moana/Surfrider properties. The plan’s 1,500-page Environmental Impact Statement includes an illustrated boilerplate shadow study but is silent about potential shadow impacts on the public beach. In the back-and-forth over the city’s spineless, slow-motion surrender of its laws to this steamroller of a project (see the Honolulu Star-Advertiser’s Oct. 8, 2010 editorial, “City weak on Waikiki planning”), the shadow issue doesn’t really come up.

Instead, lawyers are seriously arguing about a 1965 deal wherein the state of Hawaii had promised the landowners along Waikiki’s central beachfront (including Kyo-ya) that it would widen the beach substantially but never did (surprise, surprise!).

Because of this broken contract with the state, and for the purposes of the tower’s setback needs, Kyo-ya, which is now owned by a New York-based hedge fund called Cerberus Capital Management, argues that the site’s “shoreline” should be set 180 feet seaward from the actual, real-world, certified shorelin –or about 100 feet out into Waikiki’s famously limpid waters–so that the tower’s bulk will fit into a legal-ish geometry.

It’s as if Kyo-ya’s legal beagles want to pretend that something that didn’t happen instead happened, or as though they feel they deserve something…because something else didn’t happen.

But an absence of facts never stopped a lawyer. Seeking “relief from the strict application of the coastal height setback,” attorney Randall Sakumoto of the Honolulu firm of McCorriston, Miller, Mukai and MacKinnon makes the slam-dunk argument for Kyo-Ya: “Had the beach been constructed by the State as contemplated by the 1965 beach agreement,” Sakumoto wrote in a March 7, 2010, memorandum to the city’s Department of Planning and Permitting (DPP), “it is likely that the beach fronting the Diamond Head Tower site would be approximately 180 feet wider than it is today. In turn, the certified shoreline would be makai of Line B [a reference to a diagram] and perhaps more than 180 feet more seaward than the shoreline shown in Diagram 2 above. Had this occurred, we believe that almost no portion of the proposed Diamond Head Tower would encroach into the coastal height setback.”

Last month, DPP Director David Tanoue, an attorney by training, announced that he had swallowed Sakumoto’s topsy-turvy logic whole. In the “findings of fact” that accompany his Dec. 1 approval of Kyo-ya’s variance, he dwells on the 1965 agreement, gives it a “closer look,” and notes how the shoreline indeed could have been 180 feet further seaward.

“The [tower] proposal, viewed in that context, is not excessive,” he wrote, declaring that measurements for the tower’s allowable setback should, indeed, be made from a mark 180 feet seaward of the existing shoreline. In a nutshell, the City and County of Honolulu’s chief planning officer, using that logic, agreed to let Kyo-ya impinge on the public beach, quadruple its small lot’s allowable building volume and double its height.

Community groups that had turned out to testify against the variance at a DPP hearing in September scrambled to unite and submit a single petition appealing Tanoue’s decision to the city’s five-member Zoning Board of Appeals (ZBA). The letter was sent Dec. 28 and time-stamped Jan. 3 by the ZBA, according to board secretary Jean Sumida.

As required, the petition counts the ways granting the variance will “adversely affect” them:

It will allow a building to encroach on the public beach, the petition claims, and will degrade “shoreline quality” and the “beach experience.”

Encroachment inside the coastal setback zone will “set a dangerous precedent for other hotels to follow” and “the building will block sunlight and cast shadows, thus reducing morning use and enjoyment.” The variance undermines the petitioners’ “trust in the City’s ability to follow and enforce existing laws.” Granting the variance will cause erosion and increase public costs for continual beach replenishment and for armoring against sea-level rise.

The petitioners include Hawaii’s Thousand Friends, the Surfrider Foundation, the ‘Ka Iwi Coalition, KAHEA, and longtime Honolulu watchdog Michelle Matson, a member of the Kapahulu/St. Louis Heights Neighborhood Board. The coalition is struggling to raise money to fund legal help because it may have to take the matter to court should its appeal fail. As of press time, the coalition said it planned to represent itself before the ZBA.

The appeal will be considered at the next scheduled ZBA meeting on Feb. 10. If the appeal is accepted, a contested case hearing will be scheduled. Already,there’s talk that the board’s persuasive chairman, David Minkin, will have to recuse himself from the matter due to a conflict of interest: He works for McCorriston, Kyo-ya’s law firm. Additionally, two sitting board members’ terms have expired, but they will remain at their posts until Mayor Peter Carlisle re-appoints them or appoints replacements. The five-member board includes Minkin, the Vice Chairman and attorney Ronald Ogomori, engineer Herbert Chock, ILWU Oahu Director Dave Mori and small-business owner Susana Berardy.