A lengthy environmental battle over a planned oceanfront hotel and condominium tower next to the Moana Surfrider Hotel in Waikiki is moving to the Hawaii Supreme Court.
The court’s decision to hear the case is a victory for environmental groups that object to replacing the Moana Surfrider’s existing eight-story Diamond Head Tower, built in 1952, with a 26-story oceanside hotel.
In February 2013 it looked like Kyo-ya Hotels and Resorts, the owner of the Moana, had won a victory when the city’s Zoning Board of Appeals upheld an earlier decision to allow the planned tower to encroach into ground and airspace setbacks prohibited under zoning rules.
The Japanese-based hotelier argued for a variance on the grounds that zoning rules and an unfulfilled commitment by the state to widen the beach were preventing it from making needed improvements.
However, a hui of four environmental advocacy groups and Michelle Spalding Matson objected to Kyo-ya’s plans. The hui argued in favor of upholding current Waikiki Special District zoning rules, which state that hotels must be at least 100 feet from the shoreline. The existing Diamond Head Tower of the Moana, which was built before the 1976 zoning provisions were adopted, is less than 100 feet from the shore.
"We are glad the Supreme Court has decided to hear the case," Linda Paul, attorney for the hui, which includes Hawaii’s Thousand Friends, the Surfrider Foundation, KAHEA — the Hawaiian-Environmental Alliance, and the Ka Iwi Coalition, said Tuesday. "It’s a case that asks an important and fundamental question: Does the mayor or his agents have unlimited power to grant exemptions of any magnitude from any ordinance?"
Kyo-ya leadership could not be reached for comment Tuesday. City officials would not comment.
The opponents said allowing further encroachment into shoreline setbacks would damage the environment, cast shadows on the beach, ruin public views and erode the sand.
"We want view corridors where you can see the mountains and the ocean and feel the wind," said Donna Wong, executive director of Hawaii’s Thousand Friends.
Wong said the group is hoping for a Hawaii Supreme Court decision that protects the public’s coastal interests.
"We think this could be a landmark decision because the state Supreme Court would be reviewing the ability of the city’s planning director to make these kinds of decisions," she said. "We’re hopeful because protection against encroachment is part of the Waikiki Special District guidelines, and there have been other Hawaii Supreme Court Cases that have upheld protection of public shorelines."
Decisions by the Hawaii Supreme Court under Chief Justice Ronald Moon, who retired in 2010, tended to favor environmental groups, said David Callies, the Benjamin A. Kudo professor of law at the University of Hawaii’s William S. Richardson School of Law.
The court under Moon "decided 90 percent of their cases in favor of the environmental community, and 70 percent of the cases overturned the decision by the Intermediate Court of Appeals," Callies said.
The Hawaii Superferry filed for bankruptcy in 2009 after the Hawaii Supreme Court ruled that its operation was unconstitutional absent an environmental impact statement. And, in 2010 the state Supreme Court said the owners of Turtle Bay Resort had to complete a new environmental study if they wanted to add hotel rooms to Oahu’s North Shore.
"I think the environmental community is hoping that the Supreme Court’s decision to hear the case is a sign that there are enough votes to overturn the past decisions," said Callies, who has represented Kyo-ya.
But, in this case Callies said that it’s hard to say what will happen "because the makeup of the Supreme Court is different. The only justice left from the Turtle Bay days is Justice Paula Nakayama."
He said that Justices Sabrina McKenna and Richard Pollack come from business backgrounds, and it would be hard to predict where Chief Justice Mark Recktenwald will stand on the issue.
"I hope that they’ll be more evenhanded then they have been before and they’ll uphold the earlier decisions," Callies said. "When that eight-story monolithic, architecturally uninteresting block comes down, you’ll have a nice-looking building that you’ll be able to see the ocean around. That strikes me as a plus. As a I understand it, every Waikiki owner is in favor of the project except the Hyatt, which will lose ocean views. It’s hard to argue that it won’t be an attractive, architecturally significant addition to Waikiki."
Linda Wong, chairwoman of the Diamond Head/Kapahulu/St. Louis Heights Neighborhood Board, said she hopes the Hawaii Supreme Court will shoot down the project.
"It’s very good news that the Hawaii Supreme Court is going to hear this case. Our whole neighborhood board was totally up in arms against it. They didn’t want a whole big tower on the beach. It was overbearing," Wong said. "When things are illegal, you have to keep challenging them. You can’t just be blown over by the powers that be."
While there’s no guarantee as to what will happen next, Callies said any further delays are likely to favor environmentalists. Kyo-ya said earlier it has spent seven years and $10 million attempting to get the project approved.
Donna Wong, who represents Hawaii’s Thousand Friends, said environmentalists have paid dearly, too.
"It’s been a very costly battle thus far. It’s always really a shame when we have to sue our governments and spend our donations and contributions doing that instead of trying to do other things for the environment," she said. "Still, I don’t see anyone withdrawing from this case. It’s just so egregious. We felt that we had to protect the public’s interest. We can’t ring all of our coastlines with tall buildings."
