City seeks end run around court’s Kyo-ya ruling

How does the City and County of Honolulu enforce zoning laws?

Simple — ignore, circumvent and, if that doesn’t work, change the law.

And changing the law is what City Managing Director Roy K. Amemiya Jr. is trying to do with his proposed City Charter amendment to Section 6-1517 Zoning Variances.

Amemiya has proposed an amendment to the Zoning Variance Test that will excuse developers from complying with a Land Use Ordinance (LUO) on the grounds of “practical difficulties.”

It’s also an end run around the Sept. 23, 2015, Hawaii Supreme Court ruling against the city Department of Planning and Permitting (DPP) director’s variance that granted Kyo-ya Hotels &Resorts the right to build a hotel/condominium that would have encroached 74.3 percent into the required coastal height setback from Waikiki Beach.

As the court made clear, to quote the Honolulu Star-Advertiser’s Sept. 27, editorial reviewing the decision: “Rules are not made to be broken, or at least not without a very good reason.”

The court held that the Kyo-ya variance ignored the Waikiki Special Design District standards and did not meet any of the three unnecessary hardship criteria: (1) deprived of reasonable use of land or building, (2) request is due to unique circumstances, and (3) project is not contrary to the intent of the zoning ordinance.

Amemiya claims that his proposed amendment will establish a “dimensional zoning variance” with criteria based on “practical difficulties” rather than relying on unnecessary hardship as alternative grounds for granting a variance to the LUO.

However the LUO already has a mechanism — called “zoning adjustments” — for providing relief from the strict application of development standards when there are “practical difficulties.”

The criteria for granting zoning adjustments are carefully defined based on real-world experience with administering the zoning code over many years. This has proved to be a successful tool to allow some flexibility on development standards for properties with unique conditions, such as slopes or small or irregularly shaped lots.

The city continually examines where the use of zoning adjustments might be expanded to apply to similar situations of “practical difficulty.” This is far more preferable than taking a sledge- hammer to the LUO to open up a gaping opportunity to undermine the purpose and intent of zoning standards through the zoning variance process.

It is the big developers that will be the major beneficiaries of this opportunity, not the average homeowner or small property owner, and certainly not the community as a whole.

In its decision, the court reinforced its earlier ruling in Korean Buddhist Dae Won Sa Temple v. Zoning Board of Appeals that a variance applicant is not deprived of the reasonable use of its land or buildings simply because the applicant may not be able to utilize the maximum potential density of the site or make a greater profit without the requested variance. The court held that the charter’s hardship test requires that before granting a variance all reasonable alternatives must be fully considered and no other reasonable alternative is available.

It added that the extent of the variance requested must be taken into consideration and the greater the disparity of the requested variance from the ordinance’s restriction, the more compelling and specific the proofs must be that the grant of the variance will not be contrary to the intent and purpose of the zoning ordinance.

These standards protect not only the LUO, but the public’s interest in wise land-use planning, and they should not be compromised by the charter amendment proposed by the managing director, whose primary function should be to protect the public interest, not private developers.