{"id":9772,"date":"2017-06-30T18:28:13","date_gmt":"2017-06-30T18:28:13","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=9772"},"modified":"2021-01-03T19:44:44","modified_gmt":"2021-01-03T19:44:44","slug":"kahala-hotel-beach-weddings-not-sanctioned-by-dlnr-permit","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=9772","title":{"rendered":"Kahala Hotel Beach Weddings\u00a0Not Sanctioned by DLNR Permit"},"content":{"rendered":"
\"\"<\/a>
Some of the pre-set lounge equipment on the beach fronting the Kahala Hotel & Resort.<\/figcaption><\/figure>\n

If it weren\u2019t for us, you wouldn\u2019t even have a beach and you promised us we could use it, so cut us a break.<\/p>\n

That appears to have been the attitude of representatives for the Kahala Hotel & Resort over the past several years, and the state Department of Land and Natural Resources\u2019 Land Division appears to have pretty much acquiesced.<\/p>\n

In other beach areas that are not adjacent to a hotel, the division has pursued and won hefty fines for unpermitted commercial activities, such as kayak tours. But not for the beach fronting the Kahala (or a number of other Waikiki hotels, for that matter).<\/p>\n

\u201cPrior to the development of the Kahala Hilton Hotel in 1963-1964, there was no beach available for public use in the area between the Waialae Golf Course and Waialae Beach Park,\u201d wrote attorney Kenneth Marcus, representing the hotel, in a June 12, 2012, memo sent to the DLNR. The hotel\u2019s developer had sought approval from the state Board of Land and Natural Resources to improve the beach at Waialae by dredging and filling the area, importing sand, and constructing two small islets and two groins.<\/p>\n

\u201cThe developer expressly agreed to permit the newly created beach to \u2018be used by the public for public beach\u2019 and was described as \u2018similar to the Outrigger Canoe Club agreement with a few changes.\u2019 The most significant change \u2026 expressly provided that \u2018[t]he no-structure clause in the Outrigger Canoe Club agreement is deleted from this agreement,\u2019\u201d Marcus wrote.<\/p>\n

He noted that since that 1963 agreement, the hotel had been paying the state a monthly fee to maintain the beach \u201cpursuant to a license permitting the use for recreation and maintenance purposes.\u201d<\/p>\n

\u201cAs contemplated in the minutes [of the Land Board meeting where the agreement was approved] \u2026 the hotel has continuously since the creation of the beach (i) pre-set its beach furniture in portions of the beach thus created \u2026 and (ii) permitted its functions on the lawn of the hotel to spill over into the grassy area outside the hotel\u2019s property line although off the beach thus created. Until March 2009, there were no material complaints, by the state or the hotel\u2019s neighbors, with regard to such activities,\u201d he wrote.<\/p>\n

\u201cIt is clear from the language of the Board minutes, as well as the uninterrupted use by the hotel for fifty years, that the parties intended and understood that the hotel could place its equipment and structures in the beach area. \u2026 [I]n reliance on that understanding the hotel expended substantial sums,\u201d he wrote. \u201cThe state is therefore estopped from requesting the hotel to remove the equipment under Hawai`i\u2019s judicial doctrine of equitable estoppel.\u201d<\/p>\n

While he repeatedly cited the minutes of the Land Board meeting held back in the 1960s, the actual agreement contains no provision granting rights to the hotel to use of the property. The agreement simply states: \u201cTitle to and ownership of all filled and reclaimed lands and improvements seaward of the makai boundaries of Land Court Applications Nos.\u00a0 828 and 665 shall remain in and vest in the state of Hawaii and shall be used as a public beach.\u201d It mentions nothing about the hotel being allowed to conduct activities or build structures.<\/p>\n

Public or Private Beach?<\/i><\/b><\/p>\n

Marcus\u2019s memo was apparently prompted by Land Division efforts to get the hotel to apply for a permit to cover its pre-setting of chairs on the beach. On the same date as Marcus\u2019s memo, the City and County of Honolulu\u2019s Department of Parks and Recreation had referred to the division a complaint by Council member Stanley Chang about the hotel\u2019s treatment of his constituents.<\/p>\n

\u201cConstituent reports the Kahala Hotel has filled the public beachfront with blue beach chairs for its guests with no space for the general public to sit. Also observes there is No-Trespassing signage positioned on the `Ewa side of the beach leading to the hotel, and weddings are being held in the beach area fronting the hotel,\u201d a county report states.<\/p>\n

In a September 4, 2012, memo, Marcus reported that the \u201cPrivate Property, No Trespassing\u201d sign had been removed and a gazebo that was within the city\u2019s 40-foot shoreline setback area was relocated. With regard to the chairs, he stated that they \u201cmay now be used by Kahala guests and the public on a \u2018first-come, first-served\u2019 basis, free of charge.\u201d The number of chairs to be set would also be tailored to the anticipated usage \u201cso as to keep out only so many as are necessary.\u201d<\/p>\n

Cabanas, however, would not be free, although they would be made available to the public, he wrote. \u201cKahala is willing to offer to pay to the state eight percent of revenues from such rentals, exclusive of GET,\u201d he wrote.<\/p>\n

As to the weddings, he wrote, \u201cKahala is willing to pay a per-event fee similar to that now payable by the public for wedding licenses from DLNR or, in the alternative, will simply no longer hold weddings or other events on state land.\u201d<\/p>\n

He noted that the hotel would prefer to obtain a long-term easement over the area to justify the cost of maintaining the state\u2019s property. At the time, the hotel was paying the state about $1,244 per month.<\/p>\n

By the next day, however, he had changed his mind about the beach equipment, having been convinced by Land Division staff of the visual impact of pre-set equipment on the beach. In a follow-up memo, he wrote, \u201cAll chairs, cabanas and other beach equipment will be removed from the sand nightly, and shall not be brought back unless and until requested for use by Kahala guests.\u201d<\/p>\n

\u201cHopefully this \u2026 will make it unnecessary to get into elaborate and costly valuation discussions,\u201d wrote attorney Ivan Lui-Kwan in a September 5, 2012, letter to Land Division administrator Russell Tsuji.<\/p>\n

Honeymoon\u2019s Over<\/i><\/b><\/p>\n

Six months after agreeing to stop pre-setting equipment on the beach, Marcus wrote Tsuji a letter on March 18, 2013, arguing why it should resume. He attached a survey of other beachfront hotel properties. \u201cYou\u2019ll observe that just about every other one we surveyed not only pre-set their beach equipment, but also stores substantially all of it in the sand and other public areas.<\/p>\n

\u201cWhen the management of these hotels were asked how this came about, just about everyone that was willing to respond answered that it was part of an understanding they had with the state, an understanding that mirrored the situation at Kahala before complaints were received by the DLNR from Kahala\u2019s neighbors: we (the Kahala) maintain the beachfront for the public, at substantial expense to the hotel, and the state accepts that the hotel fronting the beach may make use of the area in a way that is both tasteful and beneficial to the public\u2019s right to use,\u201d he wrote.<\/p>\n

He said the equipment that the hotel has had to pull off the beach is now an \u201ceyesore for both guests and public users,\u201d and has also increased workers\u2019 compensation claims, \u201cas someone needs to pull the extremely heavy furniture off the beach nightly.\u201d<\/p>\n

Given the hotel\u2019s insistence on using the beach it had created, the Land Division began\u00a0 working to help the hotel secure an easement over a large swath of the beach as well as some fast land that would cover all of the hotel\u2019s desired uses.<\/p>\n

Back in 2014, attorney Tim Lui-Kwan (Ivan\u2019s brother) stated that the hotel was seeking a term easement and had no plans to build any new structures on the state land. But now, three years later, according to a March 29, 2017, draft environmental assessment for a perpetual easement, the hotel wants to create paved paths and place tiki torches and gas lines along the shorefront and expand its wedding sites from two to three. It wants to continue pre-setting and storing equipment on the beach (including 40 to 50 cabana loungers and about 100 beach lounge chairs), maintain its existing wedding gazebo and open-air hut, and conduct outdoor wedding ceremonies. It also plans to improve lateral access and replenish the sand, among other things.<\/p>\n

A Violation?<\/i><\/b><\/p>\n

The Kahala hotel has been conducting weddings on the public beach fronting its property for years. According to its website, an oceanfront ceremony can cost from $3,600 to $7,100.<\/p>\n

Under a right-of-entry permit for recreation and maintenance activities approved by the\u00a0 Land Board on October 21, 2014, the hotel may only conduct surf lessons or place beach equipment or improvements on the beach with prior written approval from the DLNR. The Land Division\u2019s original recommendation on the permit was to include wedding ceremonies in that list of activities that need approval, but the Land Board chose to leave it out.<\/p>\n

The Kahala hotel \u2014 and even the Land Division \u2014 seemed to have taken the Land Board\u2019s omission of any ban on wedding as permission to conduct them on state property. In a June 30, 2016, letter to Tsuji, Tim Lui-Kwan wrote, \u201cConsistent with our earlier discussions on weddings conducted on the state parcel occupied pursuant to R.P. No. 7849, \u2026 the Kahala Hotel and Resort [owned by Resorttrust Hawai`i, LLC] will commence on July 1, 2016 the collection of a site fee of $100.00 for each wedding held. The site fee collected for these wedding events shall be in addition to the monthly rent of $1,244 paid by Resorttrust for occupancy and use of the land under R.P. No. 7849.\u201d<\/p>\n

Within two weeks, Land Board chair Suzanne Case wrote Tim Lui-Kwan informing him that weddings aren\u2019t actually allowed under the permit, which was for recreational and maintenance purposes only. \u201cNo other commercial activities shall be conducted thereon without authorization from the Land Board,\u201d she wrote.<\/p>\n

\u201cWe understand wedding ceremonies on the premise are an activity that is intended by both sides to be covered in a long term disposition. However, weddings are not currently authorized under the subject revocable permit,\u201d she wrote. She then asked the hotel to cease conducting any wedding ceremonies planned for the premises immediately and until Land Board authorization is obtained.<\/p>\n

When asked whether he was aware of whether the hotel was still holding weddings on the state land, Tsuji said he didn\u2019t know and that he wasn\u2019t aware of the letter Case sent to Lui-Kwan.<\/p>\n

The Kahala hotel did not indicate by press time whether or not the oceanfront wedding ceremonies it holds are on the state property. Nothing in the files at the Land Division suggest staff has ever followed up on Case\u2019s letter or pursued any enforcement action for weddings held on state land in the past year.<\/p>\n

\u2014 Teresa Dawson<\/i><\/b><\/p>\n","protected":false},"excerpt":{"rendered":"

If it weren’t for us, you wouldn’t even have a beach and you promised us we could use it, so cut us a break. That appears to have been the attitude of representatives for the Kahala Hotel & Resort over … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":9773,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[421],"tags":[3],"class_list":["post-9772","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-july-2017","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9772","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=9772"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9772\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/9773"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9772"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9772"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9772"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}