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Rule deemed unenforceable so tower glass will remain

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    The board of the Hawaii Community Development Authority agreed to accept a $1 million payment from the developer of the Symphony Honolulu tower and waive its rule over the reflectivity of tower windows — a rule without an enforceable standard.

The super-shiny glass on the Symphony Honolulu tower nearing completion in Kakaako will remain because no rule exists to mandate a less reflective wall surface, a state board ruled Wednesday. But the developer will pay $1 million to mitigate sun beams bouncing off the building.

The board of the Hawaii Community Development Authority voted 6-1 to accept a $1 million mitigation payment and waive what essentially is a faulty rule that was intended to regulate reflectivity of tower glass windows but doesn’t do so.

“HCDA rules do not have an enforceable standard to limit the reflectiveness of glass,” said John Whalen, board chairman of the agency that regulates development in Kakaako.

Symphony’s developer, San Diego-based OliverMcMillan, offered the $1 million for HCDA to spend on public facilities. The company also was ordered to pay a $2,000 fine, which is the maximum allowed for failing to follow HCDA’s glass rule, and reimburse the agency $24,000 it spent on a glass consultant that assisted with the rule violation case.

Whalen suggested that HCDA spend the $1 million on planting trees and other landscaping to create shade for the public in Kakaako.

Dan Nishikawa, president of OliverMcMillan’s local affiliate, said the company is satisfied with how the case was resolved. “I know it was a tough decision,” he said.

The only no vote from the board was made by Tracy Ban, administrative services officer for the state Department of Budget and Finance. Two board members were absent.

The decision was made after six public hearings that began in July, and involved hours of discussions with state lawyers who advised board directors.

Some Kakaako residents complained about blinding reflections off the 45-story Symphony tower, which is rising at the mauka-Ewa corner of Ward Avenue and Kapiolani Boulevard and has almost all its glass windows installed. A few people testified that allowing a developer to break a rule and not correct it by replacing the glass would set a bad precedent and encourage other developers to disregard rules.

However, Whalen said the board couldn’t legally require OliverMcMillan to replace the glass because there is no effective standard in the rules.

HCDA’s glass rule expressly prohibits “highly reflective, mirrored and opaque” windows. But the term “highly reflective” is not defined, so it is deemed subjective and unenforceable.

The reflectivity of Symphony’s glass is about 45 percent, which compares with a range from 4 percent to about 45 percent among more than 100 glass window products from three dominant manufacturers reviewed by HCDA’s consultant.

Another HCDA rule requires that tower glass allow at least 50 percent of visual light in from the outside. This visual light transmission, or VLT, rule also was intended to limit reflectivity on the presumption that more light passing through the glass limits how much reflects back out. However, glass consultants retained by HCDA and OliverMcMillan agreed that there is no correlation.

OliverMcMillan nonetheless violated the VLT rule by installing glass with a VLT of 28 percent. Consultants for the developer have said they were unaware of the rule until after the glass was selected.

The agency discovered that Symphony didn’t meet the VLT rule after staff discussions on another proposed tower led the agency earlier this year to ask OliverMcMillan whether the Symphony glass complied. At that point, much of the tower’s glass was already installed. HCDA notified the developer of the violation and said the glass must be replaced. The developer petitioned the board to waive the rule because it achieves no public purpose.

One other tower faces a similar predicament, 801 South St. Building A, which was completed earlier this year. An initial hearing is slated by HCDA for Oct. 7.

Whalen said there should be design rules that address sunlight reflecting off high-rises in Honolulu as more and more towers are built in the city.

HCDA could amend its rules to effectively limit glass reflections, which can create heat islands, or hotter areas on the ground, especially where towers are concentrated. A rule amendment, however, would take a long time and involve public hearings. Also, about 20 towers that are part of master plans by Howard Hughes Corp. and Kamehameha Schools would be exempt because they are grandfathered under older rules.

A possibly more attractive alternative, Whalen said, is to apply a standard through a design review process required for towers in Kakaako before the board approves development permits. This would apply to all future tower construction in Kakaako, including projects in the Hughes Corp. and Kamehameha Schools master plans.

The best way though, in Whalen’s view, would be to amend the city’s building code so that limits on glass tower reflectivity would apply beyond the Kakaako area bounded by Ala Moana Boulevard and King, Piikoi and Punchbowl streets.

“Climate doesn’t change once you cross the HCDA boundary,” he said.

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