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 the past several years, and the state Department of Land and Natural Resources’ Land Division appears to have pretty much acquiesced.
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).
“Prior 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,” wrote attorney Kenneth Marcus, representing the hotel, in a June 12, 2012, memo sent to the DLNR. The hotel’s 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.
“The developer expressly agreed to permit the newly created beach to ‘be used by the public for public beach’ and was described as ‘similar to the Outrigger Canoe Club agreement with a few changes.’ The most significant change … expressly provided that ‘[t]he no-structure clause in the Outrigger Canoe Club agreement is deleted from this agreement,’” Marcus wrote.
He noted that since that 1963 agreement, the hotel had been paying the state a monthly fee to maintain the beach “pursuant to a license permitting the use for recreation and maintenance purposes.”
“As contemplated in the minutes [of the Land Board meeting where the agreement was approved] … the hotel has continuously since the creation of the beach (i) pre-set its beach furniture in portions of the beach thus created … and (ii) permitted its functions on the lawn of the hotel to spill over into the grassy area outside the hotel’s property line although off the beach thus created. Until March 2009, there were no material complaints, by the state or the hotel’s neighbors, with regard to such activities,” he wrote.
“It 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. … [I]n reliance on that understanding the hotel expended substantial sums,” he wrote. “The state is therefore estopped from requesting the hotel to remove the equipment under Hawai`i’s judicial doctrine of equitable estoppel.”
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: “Title to and ownership of all filled and reclaimed lands and improvements seaward of the makai boundaries of Land Court Applications Nos. 828 and 665 shall remain in and vest in the state of Hawaii and shall be used as a public beach.” It mentions nothing about the hotel being allowed to conduct activities or build structures.
Public or Private Beach?
Marcus’s 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’s memo, the City and County of Honolulu’s Department of Parks and Recreation had referred to the division a complaint by Council member Stanley Chang about the hotel’s treatment of his constituents.
“Constituent 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,” a county report states.
In a September 4, 2012, memo, Marcus reported that the “Private Property, No Trespassing” sign had been removed and a gazebo that was within the city’s 40-foot shoreline setback area was relocated. With regard to the chairs, he stated that they “may now be used by Kahala guests and the public on a ‘first-come, first-served’ basis, free of charge.” The number of chairs to be set would also be tailored to the anticipated usage “so as to keep out only so many as are necessary.”
Cabanas, however, would not be free, although they would be made available to the public, he wrote. “Kahala is willing to offer to pay to the state eight percent of revenues from such rentals, exclusive of GET,” he wrote.
As to the weddings, he wrote, “Kahala 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.”
He noted that the hotel would prefer to obtain a long-term easement over the area to justify the cost of maintaining the state’s property. At the time, the hotel was paying the state about $1,244 per month.
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, “All 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.”
“Hopefully this … will make it unnecessary to get into elaborate and costly valuation discussions,” wrote attorney Ivan Lui-Kwan in a September 5, 2012, letter to Land Division administrator Russell Tsuji.
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. “You’ll 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.
“When 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’s 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’s right to use,” he wrote.
He said the equipment that the hotel has had to pull off the beach is now an “eyesore for both guests and public users,” and has also increased workers’ compensation claims, “as someone needs to pull the extremely heavy furniture off the beach nightly.”
Given the hotel’s insistence on using the beach it had created, the Land Division began 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’s desired uses.
Back in 2014, attorney Tim Lui-Kwan (Ivan’s 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.
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.
Under a right-of-entry permit for recreation and maintenance activities approved by the 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’s 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.
The Kahala hotel — and even the Land Division — seemed to have taken the Land Board’s 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, “Consistent with our earlier discussions on weddings conducted on the state parcel occupied pursuant to R.P. No. 7849, … 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.”
Within two weeks, Land Board chair Suzanne Case wrote Tim Lui-Kwan informing him that weddings aren’t actually allowed under the permit, which was for recreational and maintenance purposes only. “No other commercial activities shall be conducted thereon without authorization from the Land Board,” she wrote.
“We 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,” 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.
When asked whether he was aware of whether the hotel was still holding weddings on the state land, Tsuji said he didn’t know and that he wasn’t aware of the letter Case sent to Lui-Kwan.
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’s letter or pursued any enforcement action for weddings held on state land in the past year.
— Teresa Dawson