![\"\"](\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2015\/02\/Screenshot-2018-09-28-16.46.09.jpg\")
<\/a><\/p>\nIn discussing the matter with the hotel\u2019s attorneys, Land Division staff agreed with them that the permit\u2019s requirement that uses be only recreational or maintenance-related was \u201ctoo vague\u201d and \u201ccreates ambiguity in terms of possible enforcement actions,\u201d the division\u2019s report states.<\/p>\n
Attorneys Jennifer Lim and Jon Yamamura, representing hotel owner ResortTrust Hawai`i, LLC (RTH), argued that while it does store and charge for use of its cabana tents and clamshell lounge chairs ($200\/day and $100\/a day, respectively) that occupy lands covered by its revocable permit with the DLNR, such uses could be considered recreational.<\/p>\n
\u201cThe term \u2018recreational\u2019 in RP 7849 means something, but it is not defined within RP 7849. The Oxford dictionary defines the word \u2018recreational\u2019 to mean \u2018relating to or denoting activity done for enjoyment when one is not working,\u2019\u201d they wrote in an August 6 letter to Case. They also cited county land use ordinances throughout the state. Honolulu\u2019s ordinance, for example, defines outdoor recreational facilities as \u201cpermanent facilities for active outdoor sports and recreation, other than golf courses. Typical uses include: parks, playgrounds, botanical gardens, golf driving ranges, tennis courts, riding stables\u2026\u201d<\/p>\n
\u201cWhile there may not be one uniform definition of the term \u2018recreational,\u2019 it is clear that in the context of permitted land uses, \u2018recreational\u2019 authorizes far more intensive use than mere access to property,\u201d they wrote.<\/p>\n
\u201cRTH, as did prior owners of the hotel, views the recreation and maintenance rights granted under RP 7849 as allowing recreational uses that would normally be associated with the operations of the hotel, such as the placement of clamshell lounge chairs and cabana tents for hotel guests, as well as storage of those items. These types of uses have been ongoing for decades,\u201d they wrote.<\/p>\n
A previous revocable permit for the area held by the hotel\u2019s owner in the 1980s covered a surfboard rack, volleyball and badminton courts, and a walkway. That was all. But over the years, new uses crept into the area without ever coming to the attention of the Land Division or the Land Board. For example, ResortTrust\u2019s attorneys informed the division in the August 6 letter that nearly 2,000 square feet of the permit area had been used for open-air dining since 2008. (The company acquired the hotel in 2014.)<\/p>\n
Efforts by the hotel in recent years to transition from a revocable permit to a long-term or permanent easement and to vastly expand its use of the area backfired after members of the public became aware of the scope of the proposal.<\/p>\n
The hotel has since scaled back its footprint, removing all Seaside Grill seating and shade cloths from the permit area and ending its practice of pre-setting chairs and lounges on the beach. Even so, the hotel has sought to maximize the uses of the property and has proposed establishing 40 different \u201cuse\u201d areas spanning some 5,000 square feet. The Land Division supported the idea and recommended on September 14 that the Land Board approve a new permit for it.<\/p>\n
If approved, the permit would allow the hotel to store beach equipment; set up tents, lounges, and chairs; and even establish an overflow seating area for its Seaside Grill, among other things. Rent, which for years had held steady at $1,244 a month, would be set by appraisal. The division also proposed issuing right-of-entry permits for two corporate events to be held on the RP area this month.<\/p>\n
Enforcement<\/i><\/b><\/p>\n
In response to the Sierra Club\u2019s June letter to Case, Land Division staff inspected the site, and even seemed to corroborate one of the group\u2019s claims \u2014 that the cabanas and chairs for rent were set up on the parcel \u2014 but did not go so far as to call it a violation in its report to the Land Board. Rather than penalizing the hotel for weddings that had already been held, staff simply informed the hotel that the events were not allowed without prior approval.<\/p>\n
When the Land Division\u2019s proposal for a new permit came to the board, however, members of the public and the Office of Hawaiian Affairs (OHA) suggested that the board should fine the hotel, as well.<\/p>\n
OHA public policy manager Jocelyn Doane urged the board to determine what violations had occurred and said some of them should warrant financial penalties. \u201cWeddings, the restaurant, cabanas, loungers \u2026 other money-making activities [going on] for I don’t know how long, we should be thinking about compensation,\u201d she said. Because the parcel is ceded land, OHA receives 20 percent of all revenue generated from it.<\/p>\n
Community member Tyler Ralston, who said he\u2019s frequented the area for decades, testified to and showed photos of weddings being held within the permit area well after Case issued a letter in July 2016 ordering the hotel to cease and desist such events because they are not allowed under the permit.<\/p>\n
\u201cThere were two weddings on the same day in June after chair Case sent a letter saying no more weddings. \u2026 They\u2019ve had many, many weddings,\u201d he said.<\/p>\n Frankel also attested that about a year ago, hotel staff tried to stop him from traversing the RP parcel during a wedding there.<\/p>\n Hotel manager Gerald Glennon told the Land Board that it had stopped taking reservations for events planned on state lands immediately after he learned in the middle of last year about the prohibition of such events and provided the department with a spreadsheet detailing its event commitments.<\/p>\n Wedding revenue aside, Ralston estimated that the hotel may have generated some $2 million from food and alcohol sales and the rental of the tents and lounges on the property.<\/p>\n \u201cOver the years, there was moderate commercial use. It ebbed and flowed. \u2026 With the recent owners, there\u2019s not only been unprecedented use of the RP parcel [and] the end result is we\u2019re being squeezed out,\u201d he told the board.<\/p>\n In discussing whether or not to grant the new permit, Land Board member Stanley Roehrig argued that some effort be made to recover the restaurant income that was generated from the state parcel.<\/p>\n Glennon told him that because the restaurant serves food not just to Seaside Grill customers, but to the pool and beach area, it\u2019s hard to decipher how much money was generated from those seated on the state parcel.<\/p>\n \u201cWaiters and waitresses have table numbers,\u201d board member Keone Downing noted.<\/p>\n \u201cThey have sections,\u201d Glennon replied, adding later that since the hotel has removed the seating from the permit area, the restaurant has taken \u201csignificant hits in revenue.\u201d<\/p>\n In any case, Roehrig wanted some accounting of any ill-gotten gains.<\/p>\n \u201cWhatever we do is precedent. \u2026 We try to treat everybody the same,\u201d he said, adding later that he didn\u2019t think it was in the public interest to ignore the matter.<\/p>\n Board member Yuen, however, seemed less inclined to dig up the past since he wasn\u2019t sure if the Land Division ever objected to the restaurant seating. He said he would defer to the Department of the Attorney General on that issue.<\/p>\n <\/p>\n Blurred Lines<\/i><\/b><\/p>\n In addition to recommending that the Land Board pursue enforcement, OHA\u2019s Doane urged it to \u201ctake a step back\u201d and consider whether a disposition of beachfront property that includes commercial uses was appropriate.<\/p>\n \u201cWith long-term dispositions, three decades in this case, often times lessees feel some vested ownership [and] when that\u2019s unchecked, we find ourselves in situations like this,\u201d she said.<\/p>\n \u201cIf you\u2019re going to allow commercial uses, you shouldn\u2019t lump them in with recreational uses. It could start a bad precedent and be confusing for other permittees,\u201d she continued.<\/p>\n Land Division administrator Russell Tsuji, however, said that this particular property fronting the hotel was different from a normal beach, where commercial uses are generally prohibited. \u201cThe reason I’m in support, I did the \u2018but for\u2019 analysis. But for Kahala creating the beach, you would have what you have in the rest of the stretch\u201d \u2014 a rocky shoreline and no good swimming areas. \u201cI think there was a benefit, clearly,\u201d he said.<\/p>\n He then stressed that neither the 1960s agreement with the hotel, nor the subsequent RPs prohibited structures from being placed in the permit area. Therefore, he argued, the hotel\u2019s request to use 5,000 square feet for seating, showers, storage, etc., was reasonable.<\/p>\n \u201cHow about construction of a restaurant? How\u2019s about putting up a hotel right there? If you could put a restaurant, you could put a building,\u201d Roehrig said.<\/p>\n Tsuji started to explain that the permit was modeled after the leases of fast land issued by his division, when Roehrig continued, \u201cThis says \u2018recreation and maintenance,\u2019\u201d referring to the permit\u2019s proposed uses. \u201cIn order to have a restaurant and bar, that requires only \u2018recreation\u2019 or something different? If we have a building there two stories tall, is that recreation?\u201d he asked.<\/p>\n Tsuji replied that the hotel argues that the lounges, cabana tents, and restaurant seating are consistent with recreational use. \u201cIt\u2019s a real broad category and can be subject to many interpretations. It\u2019s best to articulate what, exactly, is recreation and maintenance \u2026 and to itemize,\u201d he said.<\/p>\n With regard to the proposal to set up chairs, lounges and cabanas within the permit area, board member Downing asked how the land fronting the Kahala hotel differed from the beaches in Waikiki or Kaanapali, where the department has prohibited pre-setting of such things.<\/p>\n The department has also stopped the Kahala hotel\u2019s practice of presetting on the sandy beach and Downing suggested the permit area should be treated the same.<\/p>\n \u201cTo me, it\u2019s the beach,\u201d he said of the permit area.<\/p>\n Board chair Case interjected that the public beach was below the shoreline and was not subject to the proposed permit. \u201cThis disposition is from the shoreline up. \u2026 Although it\u2019s related, this disposition doesn\u2019t cover the beach,\u201d she said. (This despite the language in the 1960s agreement stating that the filled lands shall be used as a public beach.)<\/p>\n Even so, Downing told Tsuji, \u201cThis is my point to you: where the grass is now is probably reclaimed beach. It was not grass. Just because we grow these things or put a wall up doesn\u2019t mean it\u2019s correct. \u2026 When they built that hotel, it was not on land that it looks like today. I\u2019m trying to understand because I’m in a position where I’ve got to be fair.\u201d<\/p>\n To Tsuji, however, the land wasn\u2019t the beach. It was reclaimed land, not so different in terms of usability from Sand Island Industrial Park, he told Downing.<\/p>\n \u201cWhere are you trying to take me with this?\u201d Downing asked.<\/p>\n \u201cThey\u2019re using it as land<\/i>,\u201d Tsuji replied.<\/p>\n Regardless of how the parcel itself is defined, Frankel echoed points raised by Doane and others that some of the recreational uses being proposed were clearly commercial. He pointed out that Hawai`i Administrative Rules for unencumbered state land (including beaches) defines commercial activity as “the use of or activity \u2026 for which compensation is received by any person for goods or services or both rendered to customers or participants in that use or activity.\u201d<\/p>\n Rent<\/i><\/b><\/p>\n In its June letter to Case, the Sierra Club argued that commercial use of beachfront property was inappropriate. But if the Land Board chose to allow the hotel\u2019s uses to continue, the group recommended that it should charge $200,000 a month.<\/p>\n According to the Land Division\u2019s recommendation, an appraiser would determine fair market rent for the hotel\u2019s use of 5,153.5 square feet of the 1.28-acre parcel.<\/p>\n Tsuji told the board that if the parcel had been created without government approval, it would be valued as fast land, but because the state gave its approval, it would be valued as submerged land. Appraisers commonly set the value of submerged lands as a percentage of the value of adjacent fast lands. The more dependent the fast land uses are on the submerged lands, the higher that percentage is. If the uses are significantly dependent, an appraiser might value submerged lands as high as 50 percent of the value of the fast lands.<\/p>\n Downing pointed out that the hotel\u2019s estimate that it will need exclusive use of about 5,000 square feet was based on the measurements of each item it wants to keep there. \u201cIt had nothing to do about the use of the product,\u201d he said, noting that once all the clamshell lounges and cabanas are set up, there won\u2019t be much room for the public. \u201cYou\u2019ve got to look at the totality of the uses, not the square footage of the chair. \u2026 They should be charged for the area, not the equipment,\u201d he said.<\/p>\n Frankel argued that if the state can only charge ResortTrust rent based on submerged land values, \u201cwhy let these guys lease it at all? There\u2019s so little money.\u201d<\/p>\n Whether or not the public was allowed to use the parcel would also factor into the permit\u2019s value as well. But in discussing whether or not the public could use the permit area, it again became clear that few understood that the area originally was to be used as a public beach.<\/p>\n \u201cDoes the public have the right to just go and sit on the RP right now? Is there any signage that explains that? I\u2019ve seen the sign that says, \u2018public access,\u2019 which is different,\u201d Yuen asked Tsuji.<\/p>\n Tsuji replied that the permit does not provide for exclusive use by the hotel.<\/p>\n Case said if the permit is going to be for non-exclusive use, \u201cwe should be clear,\u201d she said.<\/p>\n In his motion to approve the permit, Yuen proposed adding amendments to make it clear that public use is allowed except in areas authorized for the hotel\u2019s exclusive use and to establish a marked path with signage for public lateral access on the Diamond Head side of the parcel.<\/p>\n \u201cThe toughest issue is the request for commercial uses \u2026 the rentals, the overflow [restaurant] seating ,\u201d he said. He suggested that the covered chairs should be clustered and include gaps to ensure the public can maneuver around them.<\/p>\n \u201cI agree with David Frankel\u2019s comments. Is it worth it what we get out of these uses? \u2026 If the commercial uses paid for two to three schoolteachers or [conservation enforcement] officers, OK. But if it\u2019s $1,200 a month? No,\u201d Yuen said.<\/p>\n Downing seemed to suggest that money wasn\u2019t the only issue to consider. \u201cWhat about [uncovered] beach chairs? If they\u2019re free, do they get 200 of them?\u201d he asked.<\/p>\n Yuen ultimately proposed charging the hotel 10 percent of its gross income from the parcel, pending the outcome of the appraisal, which he asked be brought to the board. Case added that charging a percentage rent \u2014 rather than something just based on a submerged land value \u2014 be considered in the appraisal.<\/p>\n When the hotel\u2019s attorney Jennifer Lim interjected that the hotel already spends $250,000 to $300,000 a year maintaining the property and infrastructure on the state parcel, Downing reminded her that the state wasn\u2019t the only beneficiary of that work. \u201cYou\u2019re doing it for yourself,\u201d he said.<\/p>\n Before the board could vote, Frankel asked for a contested case hearing, which prevented the board from taking action on the permit. In his follow-up written petition, Frankel stated that his \u201crecreational, aesthetic and environmental interests would be adversely affected\u201d by the hotel\u2019s use of the permit parcel, as well as the beach and ocean areas, if the permit were renewed or a new one is issued under the conditions proposed by the Land Division.<\/p>\n (For more background on this, see, \u201cKahala Hotel Beach Weddings Not Sanctioned by DLNR Permit<\/a>,\u201d from our July 2017 issue and our September 2018 \u201cBOARD TALK<\/a>\u201d column. Both are available at www.environment-hawaii.org)<\/p>\n \u2014 Teresa Dawson<\/i><\/b><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" In February 1967, officers with the Kahala Hilton Hotel Company signed an agreement with the state that allowed for the hotel’s creation of a public beach and swimming area fronting what is now the Kahala Hotel & Resort in south … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":10644,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[441],"tags":[3],"class_list":["post-10659","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-october-2018","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10659","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10659"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10659\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/10644"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10659"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10659"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10659"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}<\/a><\/a><\/a>