BOARD TALK: Kahala Hotel’s Beach Use; Helicopters on Kaua`i

posted in: Board Talk, September 2018 | 0

Hawai`i Sierra Club Takes Aim At Kahala Hotel’s Beach Uses

How much money has the Kahala Hotel & Resort made off state lands covered by a permit that restricts its usage to recreation and maintenance? Similar to resort hotels throughout the state — in Waikiki, Ka`anapali, Wailea and elsewhere — the Kahala has for years pre-set lounge chairs and umbrellas for guests to use and cabanas for them to rent. That, alone, has raised the ire of some members of the public, who feel the beach is effectively being privatized. But according to a June 23 letter from the Sierra Club, Hawai`i Chapter to Department of Land and Natural Resources director Suzanne Case, the Kahala hotel has been getting away with far more unauthorized commercial uses.

Weddings, part of a restaurant and bar, storage of a canoe used to take paying customers out for a paddle. Some of these uses occur on land covered by the permit, for which Kahala pays the Department of Land and Natural Resources $1,244 a month; others are on state land outside the permit area, for which they pay the state nothing at all, the group alleges.

“During daylight hours, more than half of TMK (1)3-5-023:041 is occupied by chairs, tables, cabanas, pre-set beach chairs, and a wedding gazebo (on wheels) that make more than half of the parcel inaccessible to members of the public and is being exclusively used to generate profits by Resorttrust Hawaii, LLC. On king tide days, which will only occur more frequently with sea level rise, there is almost no room for members of the public,” the group wrote.

The letter included several photographs taken this past summer illustrating the claims. It also argued that the structures the resort had placed on state lands — pavers under the cabanas, the cabanas themselves, a storage cabinet — had apparently not been authorized by either the Board of Land and Natural Resources or the City and County of Honolulu, which would likely have required a special management area use permit and a shoreline setback variance.

The group stated that commercial use of public beachfront property was not appropriate. However, should the Land Board decide that the hotel should be allowed to continue, or even expand, its commercial uses, the board should charge $200,000 a month and require the hotel to install an easily identifiable, five-foot wide public walking path and provide 10 public parking stalls that would be available from 5 a.m. to 11 p.m.

“Resorttrust Hawaii LLC is owned by a multi-billion dollar multinational corporation. This corporation pays only $1,244 per month for the ability to use this state land. It makes far more than that in a single day (in fact, in a single hour),” the letter stated. Citing the hotel’s website, the group pointed out that the cabanas cost $165 to rent for the day and a beachside wedding package costs $7,100. What’s more, it pointed out that the snorkel concession at Hanauma Bay pays the city more than $150,000 a month, the shuttle concession pays about $3,000 a month, the food concession pays more than $30,000 a month, and the gift shop concession pays more than $20,000 a month.

As Environment Hawai`i reported in its July 2017 issue, the last time the DLNR tried to reassess the permit rent to reflect the hotel’s commercial usage of the area, the hotel backed off, deciding instead to remove its equipment and activities off state land. Restricting its commercial activities to private lands would “make it unnecessary to get into elaborate and costly valuation discussions,” as the hotel’s attorney Ivan Lui-Kwan put it in a September 5, 2012, letter to DLNR Land Division administrator Russell Tsuji.

That decision, however, has apparently been reversed, according to the photos in the Sierra Club’s letter.

Should the Land Board decide that commercial uses are not appropriate for the permit area, the group recommended several conditions or amendments that would explicitly identify prohibited uses, including surf schools and weddings.

Fireworks

On August 13, attorney and Sierra Club member David Kimo Frankel raised the Kahala hotel permit issue during the Land Board’s discussion of a right-of-entry permit request by Hawai`i Explosives, a contractor for the hotel, for a beachside fireworks show.

He first argued that the hotel’s year-to-year revocable permit had expired on July 1 without having been renewed since then by the Land Board. “I would like the Land Division to grasp that. There are a number of RPs that are not compliant with the law,” he said.

DLNR director and Land Board chair Case reminded Frankel that the board was being asked to approve a right-of-entry permit to a company that sets up fireworks shows.

“The applicant is really the hotel, not the subcontractor,” Frankel said. He argued that the Sierra Club’s June letter detailing the hotel’s alleged violations contradicts a claim in the Land Division’s report to the board that the applicant was not in default of permit terms.

Frankel told the board, “This multinational corporation has engaged in repeated violations of the law and violated even a letter that you wrote to them telling them they couldn’t have weddings on state land. … I’m asking you not to accommodate their desire for a fireworks show because they have not accommodated the state’s desire to comply with the law.”

Case assured the board members that the Land Division was working on the matter with the Sierra Club and the hotel.

With regard to Frankel’s argument that the hotel’s permit for the shoreline area had expired, Tsuji said both he and the Department of the Attorney General disagreed. Tsuji seemed to argue that as long as the permit is renewed as a part of the annual group renewal of the division’s RPs, it shouldn’t matter if it doesn’t happen the exact same time of year, every year.

Board member Stanley Roehrig wasn’t so sure. He said he wanted to know, if, under state land use law, “has this expired? Not what our custom and practice is. I would like to have the AG put it in writing whether or not this is an expired RP.”

The board ultimately approved the permit with the understanding that the hotel’s uses of the state parcel would be brought to the board at some point.

Hotel general manager Gerald Glennon told Environment Hawai`i the objectionable restaurant seating and shade structures have been removed and that there have been no weddings or pre-setting of chairs within the permit area for some time. He conceded that the cabanas may not be in compliance, depending on whether or not the Land Board decides their rental is a recreational use. “We tried to be as compliant as possible. I’m looking forward to the ruling of the board. We want a definition of recreation. That’s where we’re having a difference of opinion,” he said. Should the board allow the cabanas to stay, he said the hotel would be more than happy to discuss paying fair market rent for them.

(For more background on this, see, “Kahala Hotel Beach Weddings Not Sanctioned by DLNR Permit,” from our July 2017 issue.)

 

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Board Seeks Ways to Stop

Copter Flights Over Salt Ponds

 

At the Land Board’s August 13 meeting, Kaua`i mayor Bernard Carvahlo testified in support of a proposal to grant the county a right-of-entry permit to install boulders and a gate at Port Allen to block vehicles from driving onto the beach there and disturbing the nearby salt beds at Hanapepe, where native Hawaiians have produced sea salt for generations.

“In recent years, Salt Pond has experienced frequent trespassers who impact the culturally significant salt making practice. According to pa`akai (sea salt) practitioners and observers of the area, the ponds are exposed to the dust and pollutants created by the vehicles, which traverse the perimeter of the area,” a state Department of Transportation (DOT)  report to the Land Board states.

While the county’s proposal wasn’t on its own controversial — in fact, board members praised it — it did lead to a heated discussion about how tour helicopters have become a nuisance in communities throughout the state.

After hearing the DOT’s report on the county’s request, Kaua`i Land Board member Tommy Oi argued that vehicle traffic isn’t the only activity kicking up dust there. “What about the helicopters that fly over the area?” he asked.

On DOT lands adjacent to the salt ponds, Smoky Mountain Helicopters (doing business as Maverick Helicopters) holds a lease for 9,100 square feet from which it launches helicopter tours. Last year, Maverick appeared to some to have done an end run around the Land Board’s efforts to ensure that commercial tour operations at Port Allen did not infringe upon the salt-making families that work the ponds. And according to a member of one of those families, the company has been a terrible neighbor.

“They fly directly over us, they hang out over us so people can see what we’re doing and then they leave,” said Ku`ulei Santos, who successfully helped thwart previous attempts by helicopter tour companies February 2016 and again in September 2017 to expand/set up shop next to them.

At the February 2016 Land Board meeting, in response to opposition expressed by Santos and others, the DOT withdrew its request that Smoky Mountain be allowed to expand its operating area. Then at the board’s September 2017 meeting, Oi said that he, as well as the county Planning Department, opposed a DOT request to allow Smoky Mountain’s lease to be transferred to AlexAir, Inc., a Maverick-related company. After reviewing public testimony against the transfer, the DOT’s Ross Smith again withdrew the item with a promise to bring it back later. In allowing the withdrawal, the board advised Smith that the DOT reach out to the salt pond users, and when the item returned, it would be accompanied by a DOT report on discussions with them. Also, the board wanted to see diagrams of flight plans that direct the helicopters away from the salt ponds.

None of those requests were met. Instead, Maverick simply bought all of Smoky Mountain’s stock, thereby taking over the lease (which has about a decade left on it) without having to get Land Board approval.

At the boards meeting last month, Smith tried to shrug off Oi’s suggestion that the helicopters are also sending dust to the salt ponds.

“Once they are off the ground we cannot control them,” Smith said, suggesting that only the Federal Aviation Administration (FAA) has that power.

This did not sit well with board member Keone Downing. “You’re saying it’s somebody else’s problem. … If you see them doing it enough, it can be your problem because you can stop them from flying,” he said.

Smith replied that there are diagrams showing where helicopters should be going and his agency could ask the FAA for approval to terminate the lease, but the DOT could not take away the company’s ability to fly.

“I don’t buy that,” said Land Board member Stanley Roehrig.

Smith said pursuing that would result in long litigation.

“That’s okay,” Roehrig said.

“A lot of things take a long time,” Downing added.

Roehrig advised Ross to have his department’s attorney write a memo describing the ways by which the Land Board can stop helicopters from straying from their recommended flight paths.

“There’s lots of ways to skin a cat. … If we have any leverage, we’re gonna use it,” Roehrig said. He added that injunctions have been used to prevent helicopters from flying over certain places. “I’ve seen the cases. They’ve blocked them because they’re a nuisance,” he said.

Board chair Suzanne case said if the helicopters are, indeed, taking off and flying over the salt ponds, that could be a problem.

Santos testified that the company is constantly practicing taking off and landing and its disturbing the salt ponds.

“I have to say this. We have a problem in Hawai`i with the FAA not being responsive to community concerns about helicopter flight paths, so we’re going to have to tackle that somehow. We have it in Puna. We have it on O`ahu. I’m sure we have it a lot of places,” Case said.

“You guys did try. I appreciate it,” Santos said.

In the end, the Land Board unanimously approved the permit to the county, but included a condition that the DOT provide the board wit ha report on the types of injunctive relief available to prevent helicopters from flying over historic sites.

Before the vote, Roehrig told Smith, “When you bring your report, tell your attorney to see if the state can get a mandatory injunction of going over the salt ponds. … If that’s feasible, we should have the state AGs go after them. We can’t be powerless.”

Salt pond users have been fighting for decades to curtail helicopter flights in the area. In 1999, Wilma Holi, a native Hawaiian activist and member of one of the families that uses the ponds, successfully sued the DOT’s Airports Division over its environmental assessment for Inter-Island Helicopters’ Port Allen operations. The DOT had prepared the EA as part of its effort to obtain an after-the-fact special management area use permit from the county Planning Commission, but failed to include any discussion of alternative sites for the helicopter operations.

One Maverick employee — who said his family also has a salt bed at Hanapepe — disputed Santos’ claims. “We don’t ever fly over the beds, a far as I know. …We would never come directly over the salt ponds,” he told Environment Hawai`i, adding, “We met with everybody we needed to [and] planned our flight path accordingly and it was approved.”

— Teresa Dawson

 

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