New permit not needed for 801 South developer

The developer of the planned 801 South St. Building B condominium tower does not have to seek a new development permit for the project in Kakaako under a court order clarification issued Tuesday, but does have to halt construction.

State Circuit Court Judge Karl Sakamoto issued a preliminary injunction on Friday that halted tower construction after he found that two state agencies failed to follow state law protecting historic places and burials. The injunction halts construction until a lawsuit involving the project is resolved.

The Hawaii Community Development Authority, the state agency regulating development in Kakaako, notified 801 South developer Downtown Capital LLC on Tuesday that construction on Building B is required to stop based on Sakamoto’s ruling, though work to seal up exposed interiors of the News Building will be allowed to finish.

In his Friday ruling, Sakamoto said an archeological inventory survey should have been done by Downtown Capital.

Carl Varady, an attorney who challenged 801 South B’s permit in a March lawsuit representing condo unit owners in the neighboring Royal Capitol Plaza tower, had asked Sakamoto to also invalidate the development permit.

Sakamoto said in a clarification order on Tuesday that Downtown Capital’s permit is still valid. Sakamoto said similar cases involving improper practices over archeological inventory surveys did not result in invalidated permits. The cases involved the city’s rail line and redevelopment at Kawaiaha‘o Church.

"The court finds that plaintiff’s request to invalidate (801 South B’s permit) fails to show likelihood of success on the merits," Sakamoto’s order said. "Plaintiff has not sufficiently shown any other legal authority justifying or supporting the invalidation of the permit."

The State Historic Preservation Division, or SHPD, informed the developer in October that an archeological inventory survey should be done, in part because of numerous past discoveries of Native Hawaiian burials in Kakaako.

However, SHPD reversed its position in December two days before the HCDA board approved the 801 South B permit.

SHPD’s reversal was based on a review of arguments presented by Aki Sinoto Consulting LLC, an archaeological consulting firm retained by attorneys for Downtown Capital, according to SHPD letters.

The consultant’s report said a survey, which involves digging numerous trenches, would be impeded by the presence of the historic News Building occupying 40 percent of the development site as well as staging activities for ongoing construction on the first phase of 801 South that includes a tower adjacent to a parking garage.

The Aki Sinoto report also said that archeological monitoring during construction of the first tower found no evidence of burials or other historical artifacts, therefore suggesting the potential for finding burials or other historic artifacts on the Building B site is low.

SHPD thus revised its recommendation, and instead asked for archaeological monitoring during construction.

Construction of 801 South B has consisted of some ground preparation work and demolishing about half of the former News Building, built in 1929, to make room for a parking garage.

Downtown Capital said SHPD did not require an archaeological inventory survey for 801 South’s first phase because most of the site was covered by warehouse buildings.

Downtown Capital representatives have reserved comment until it can discuss the court ruling with HCDA.