Agenda - Planning Commission - 12/03/2015

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November 10, 2015 1 Volume 9 1 Issue 21 Zoning Bulletin "(2) the request of the applicant [was] due to unique circumstances and not the gen- eral conditions in the neighborhood, so that the reasonableness of the neighborhood zoning [was] not drawn into question; and "(3) the request, if approved, [would] not alter the essential character of the neighbor- hood nor be contrary to the intent and purpose of the zoning ordinance." Kyo-ya maintained that the Project satisfied the City Charter's three require- ments for issuance of a variance in that: (1) it would be deprived of the reason- able use of its land if the LUO was strictly applied because the ordinance would "reduce the buildable portion of the property to roughly .. . 33% of the whole lot area"; (2) its variance request was due to unique circumstances in that its Project site was "among the narrowest parcels of land along Waikiki Beach" that was subject to the Coastal Height Setback; and (3) the variance would "not alter the essential character of the locality nor be contrary to the intent and purpose of the zoning code" because Waikiki was "a densely developed, urbanized area, filled with large hotels, condominiums, and mixed-use projects" which already encroached into the Coastal Height Setback. Additionally, Kyo-ya asserted that the Project was consistent with WSD objectives to "[p]rovide for the ability to renovate and redevelop existing structures which might otherwise experience deterioration" and allow for "creative development capable of substantially contributing to rejuvenation and revitalization of the [WSD]." The Director of the Department agreed that Kyo-ya met the variance require- ments and granted partial approval of Kyo-ya's variance application to allow the Project to encroach approximately 74% into the Coastal Height Setback. Surfrider Foundation, Hawaii's Thousand Friends, Ka Iwi Coalition, and KAHEA—The Hawaiian Environmental Alliance (collectively, "Surfrider") filed a petition to the City's Zoning Board of Appeals ("ZBA"). Surfrider maintained that Kyo-ya did not meet the three requirements for a variance. The ZBA denied Surfrider's appeal. Surfrider appealed to the circuit court. The circuit court also concluded that Surfrider had failed to show that the Director's actions were erroneous. Surfrider again appealed. DECISION: Judgment of circuit court reversed. The Supreme Court of Hawai'i held that Kyo-ya had failed. to demonstrate that it met the three -requirements necessary for the area variance it sought in the WSD. With regard to the first requirement of deprivation of reasonable use of the land or building if the zoning code were strictly enforced, the court said: "Rea- sonable use," within the meaning of the City's Charter, "[was] not necessarily the use most desired by the property owner"; rather, to be deprived of the reason- able use of its property, Kyo-ya had to establish an inability to make reasonable use of its land or building without the variance. The fact that Kyo-ya might make a greater profit by using the property in a manner prohibited by the ordinance was irrelevant, since almost any individual applicant could make that same show- ing, said the court. Here, the court found that the Project was not necessary to maintain economic viability because renovation or replacement of a nonconforming structure, such as the DHT, was expressly authorized by the LUO, and there was an alternative building design that could achieve the increased density authorized by Kyo-ya's building permit without encroaching into the Coastal Height Setback. 10 © 2015 Thomson Reuters