![\"\"](\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2019\/11\/Screenshot-2019-10-28-22.24.12-1024x551.png\")
Credit: ResortTrust Hawaii, LLC<\/figcaption><\/figure>\n\n\n\n
Despite the apparent permit violations in January, as well as other instances of\npossible violations documented by Frankel\nand Tyler Ralston \u2014 and even DLNR\nstaff \u2014 the division did not recommend\npenalizing RTH.\n<\/p>\n\n\n\n
\u201cThere were a few instances,\u201d Land Division administrator Russell Tsuji told the board. The clearest example of commercial activity was a vendor \u2014 the Hans Hedemann Surf School \u2014 seen using the state parcel for stand-up paddle instruction. \u201cWe understand that\u2019s since been corrected,\u201d Tsuji said. <\/p>\n\n\n\n
RTH\u2019s attorney, Jennifer Lim, assured\nthe board that the hotel had advised the surf\nschool on where it is supposed to operate\nand that hotel staff had been informed that\nthere should be no food or drink service on\nthe state parcel. \u201cThat has been stopped\nentirely … and we continue to strive to do\nbetter and better all the time,\u201d she said.\n<\/p>\n\n\n\n
Frankel lamented the Land Division\u2019s\ndecision not to recover money that had been\ngenerated improperly or punish RTH. He also\nopposed the idea of allowing the hotel to preset\n70 lounges on the prime areas of the parcel\nand asked for a contested case hearing.\n<\/p>\n\n\n\n
As it did with Frankel\u2019s request last year,\nthe board voted to deny him a contested\ncase hearing.\n<\/p>\n\n\n\n
Board member Chris Yuen, however, did\nseem to think RTH should be penalized for\nthe activities that occurred in January.\n<\/p>\n\n\n\n
\u201cBy serving customers on the clamshells\nin the RP, they exceeded the permitted\nscope of the RP. Shouldn\u2019t there be some\npenalty for that?\u201d Yuen asked Tsuji.\n<\/p>\n\n\n\n
\u201cWe didn\u2019t bring it up. We don\u2019t have\nevidence of it,\u201d Tsuji replied.\n<\/p>\n\n\n\n
Yuen pointed out that RTH had basically admitted that it did do things it wasn\u2019t allowed to under the permit. <\/p>\n\n\n\n
Tsuji said he sympathized with the hotel having to deal with demanding guests. \u201cIt\u2019s not an excuse. It\u2019s your guys\u2019 prerogative how much you want to charge for a penalty,\u201d he said. <\/p>\n\n\n\n
The board ultimately chose to fine RTH $702 for using 13 clamshell loungers without first obtaining the city\u2019s permission. However, because the board\u2019s agenda did not include an item regarding alleged violations by RTH, and the company did not want to admit to a violation that wasn\u2019t fully supported by facts, the board characterized the fine as additional rent, for the first month. After the first month, the monthly rent would revert to $1,320.50. <\/p>\n\n\n\n
\u2018Public Beach\u2019 Dispute\n<\/strong><\/p>\n\n\n\n Before the board voted on the permit,\nFrankel and Land Board chair Suzanne\nCase debated whether or not the parcel\ncould be used for anything other than a\npublic beach.\n<\/p>\n\n\n\n The new permit states that the public would have rights of access and use of 97 percent of the parcel, with the other 3 percent being occupied by the hotel\u2019s lounges, hammocks, a shower, a towel caddy, and a portion of a cabana hale. <\/p>\n\n\n\n The reduced footprint of the hotel\u2019s activities did not go unappreciated. Frankel testified that there was no question that the use of the parcel was significantly better than it had been. There is no more restaurant seating, weddings are no longer held there, and the rentable cabanas and clamshell loungers are gone. <\/p>\n\n\n\n Even so, Frankel and Ralston, another\nvocal critic of the hotel, disputed the way\nthe Land Division had calculated the area\noccupied by the permitted uses. When set\nup and spread out, they argued, the space\nthe lounges occupy is much more than the\nsum of the square footage of each lounge.\nWhat\u2019s more, those lounges are placed in\nthe areas that members of the public would\nwant to use, they said.\n<\/p>\n\n\n\n In recounting the history of the parcel,\nthe Land Division report states, \u201cAs part of\nthe development [of the hotel], the state,\nthe Kahala Hilton Hotel Company, Inc.,\nand [Kamehameha Schools] agreed that the\nhotel would create a new piece of fast land\nby filling submerged land makai of existing\nland. The new land would continue to be\nowned by the state and would be used by\nboth the Hotel and the public.\u201d\n<\/p>\n\n\n\n The report leaves out language in that\n1963 agreement stating that the land \u201cshall\nbe used as a public beach.\u201d Frankel criticized\nthe omission.\n<\/p>\n\n\n\n \u201cPlease, do not think the beach was created out of the goodness of the hotel\u2019s heart. It was created in order to obtain zoning for the hotel. And please, keep in mind that [the parcel] has been dedicated in a Land Court document, to be used as a public beach,\u201d he stated in written testimony. <\/p>\n\n\n\n \u201cThere was a quid pro quo. … You\nshould know this context so you know you\ndon\u2019t owe them anything for this beach,\u201d\nFrankel said.\n<\/p>\n\n\n\n Earlier in the meeting, the Land Division\u2019s Tsuji had characterized the parcel as reclaimed lands, the kind which the state has issued easements for and even sold in the past. And today, with the hotel\u2019s preset beach chairs and tables with \u201cReserved\u201d signs on them, the parcel looks more like the hotel\u2019s lawn than a public beach. <\/p>\n\n\n\n Frankel pointed out that the area that has been grassed in over the years was sandy when he was a child. \u201cThat\u2019s how this land should be used,\u201d he argued. <\/p>\n\n\n\n Land Board chair Case recalled that\nFrankel had made the same arguments when\nthe permit renewal came up last year and\nthat the Land Division had determined the\npublic beach area to be seaward of the high\nwash of the waves, not the makai boundary\nof the hotel\u2019s land.\n<\/p>\n\n\n\n Frankel again cited the 1963 agreement,\nand argued that Case\u2019s frame of reference\nwas inaccurate.\n<\/p>\n\n\n\n \u201cWe have a difference of opinion,\u201d Case\nsaid.\n<\/p>\n\n\n\n To which, Frankel insisted, \u201cIt\u2019s unquestioned<\/em>. There\u2019s a Land Court document saying this shall be used as a public beach. … Don\u2019t shake your head at it.\u201d <\/p>\n\n\n\n The Land Division\u2019s report to the board\nconceded that the filled land was originally\nsandy, and acknowledged that there was\nlanguage in the 1963 agreement about the\nintended use of the parcel. However, it also\nnoted that the mauka portion has been\ngrassed for decades.\n<\/p>\n\n\n\n \u201cStaff disagrees that the board has a duty \u2014 trust or otherwise \u2014 to ensure in perpetuity that the land remain untouched and wholly open to the public. And staff also points out that the public has unfettered access to 94 percent \u2014 now to be 98 percent \u2014 of the premises. Also the alleged \u2018dedication\u2019 to public beach use arises out of the same 1963 agreement by which the developer made the filled land. The state agreed to the hotel\u2019s use as part of the agreement. Nothing in the 1963 agreement prohibits issuance of the RP. Staff does not agree that it is a breach of the public trust to allow RTH to use a small portion of the premises for presetting, especially when the public interest is so well served by the money and services that the State receives in return,\u201d it stated. <\/p>\n\n\n\n RTH\u2019s attorneys have also pointed out in correspondence with the DLNR that in the 1963 agreement, Kamehameha Schools [formerly Bishop Estate] reserved its right of access to the beach and improvements, \u201csubject to all applicable laws, regulations, etc.\u201d <\/p>\n\n\n\n — Teresa Dawson<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" On January 7, 2019, David Kimo Frankel emailed deputy attorney general William Wynhoff about activities on the state parcel in front of the Kahala Hotel and Resort rented by ResortTrust Hawai‘i (RTH), the hotel’s owner: “After removing a lot of … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11963,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,460],"tags":[3],"class_list":["post-11910","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-november-2019","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11910","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=11910"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11910\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11963"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11910"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11910"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11910"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}