IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI=I
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KAIMANA BEACH COALITION, an unincorporated association; RICHARD S. BERNSTEIN, Plaintiffs, vs. CITY & COUNTY OF HONOLULU; JEREMY HARRIS; JAN N. SULLIVAN; JOHN DOES 1-10; JANE DOES 1-10; DOE BUSINESS ENTITIES 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10,
Defendants. |
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CIVIL NO. 99-2440-06 (Other Civil Action)
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER; NOTICE OF ENTRY |
FINDINGS OF FACT AND
CONCLUSIONS OF LAW AND ORDER
	Plaintiffs filed on July 1, 1999, their Motion for Preliminary Injunction; said motion regularly come on for evidentiary hearing before the Honorable Gary W.B. Chang, Judge of the Above-entitled Court, in his courtroom on July 23, 27, and 28, 1999; plaintiffs KAIMANA BEACH COALITION and RICHARD S. BERNSTEIN were represented by James J. Bickerton, Esq., William W. Saunders, Jr., Esq., and Douglas A. Codiga, Esq.; and defendants CITY AND COUNTY OF HONOLULU, JEREMY HARRIS, and JAN N. SULLIVAN were represented by David Z. Arakawa, Esq., Corporation Counsel, Randall K. Ishikawa, Esq., Deputy Corporation Counsel, Tedson H. Koja, Esq., Deputy Corporation Counsel, and Gary Y. Takeuchi, Esq., Deputy Corporation Counsel; and based upon the credible evidence adduced herein and good cause appearing therefor, the court hereby makes the following Findings of Fact and Conclusions of Law and Order.
FINDINGS OF FACT
	1.	If it should be determined that any of these Findings of Fact should have been set forth herein as Conclusions of Law, the court so concludes as to such issues.
	2.	Plaintiff KAIMANA BEACH COALITION is an unincorporated association of individuals based in the City and County of Honolulu, State of Hawai`i, whose members consist primarily of residents of the City and County of Honolulu, who use and enjoy Kaimana Beach, Sans Souci State Recreational Area, and the areas surrounding and abutting the Waikiki War Memorial and Natatorium, or who reside in relative close proximity to said areas.
	3.	Plaintiff RICHARD S. BERNSTEIN [hereinafter ABernstein@] is a resident of the City and County of Honolulu, State of Hawai`i, who uses and enjoys on six or seven days a week the Kaimana Beach, Sans Souci State Recreational Area, and the areas surrounding and abutting the Waikiki War Memorial and Natatorium.
	4.	The court takes judicial notice that defendant CITY AND COUNTY OF HONOLULU [hereinafter the ACity@]is a municipal corporation governmental entity. The City is the owner and developer of the Waikiki War Memorial and Natatorium restoration project.
	5.	Defendant JEREMY HARRIS is the Mayor of the City and County of Honolulu and is a resident of the City and County of Honolulu, State of Hawai`i.
	6.	Defendant JAN N. SULLIVAN is the Director of the Department of Planning and Permitting of the City and County of Honolulu [hereinafter ADepartment of Planning and Permitting@] and is a resident of the City and County of Honolulu, State of Hawai`i.
	7.	The Waikiki War Memorial and Natatorium [hereinafter ANatatorium@] was constructed in 1927 as a monument to the 101 members of the United States Armed Services from Hawai`i who were killed in World War I.
	8.	The Natatorium is listed on both the National and the Hawai`i Register of Historical Places.
	9.	The Natatorium is a concrete structure located in Waikiki along the shoreline area situated between Kaimana Beach and the shoreline area fronting the Waikiki Aquarium.
	10.	The Natatorium has three primary features: (1) the arch, facade, and restrooms, (2) the bleachers, and (3) the salt water swimming pool (sometimes referred to herein as a Aswimming course@).
	11.	The Natatorium is situated in a Special Management Area [hereinafter referred to as an ASMA@] as defined in HRS ' 205A-22.
	12.	On or about July 30, 1997, the Building Department of the City and County of Honolulu, together with the City [hereinafter collectively referred to as the AApplicants@] submitted to the Department of Land Utilization an application for a Special Management Area Use Permit and a Shoreline Setback Variance to restore the Natatorium.
	13.	The entire restoration project for the Natatorium includes the restoration (including partial demolition of portions of the Natatorium in order to restore) of the arch, the arcade wall or facade, the bleachers, the public restrooms, the courtyards, and the swimming pool, and the installation of two groins [hereinafter referred to as ARestoration Project@].
	14.	In the course of the SMA permit approval process, the City Council had the opportunity to consider and evaluate before said SMA permit was granted, information that included, but was not limited to, the following:
a.	all of the environmental impact concerns relating to the design, demolition, construction, operation, and use of the Restoration Project, including but not limited to, the environmental impact of Natatorium restoration construction activity upon the terrain and vegetation, the ocean waters, the marine life, the waves, the sand, the currents, and the ocean and shoreline topography in and around the area where the Natatorium is located;
b.	the pros and cons of the proposed pool design, and whether the flushing system was capable of achieving the Applicants= stated goal of having the water quality inside the pool being the same quality as the surrounding ocean water outside the pool;
c.	whether the water quality, as proposed, inside the pool is acceptable, if it is the same quality as the surrounding ocean water; and
D.	evaluating whether the clarity of water in the pool, in its proposed renovated state, would meet acceptable public health goals contained in Department of Health administrative rules Title 11, Chapter 13A [hereinafter ARules 11-13A@].
	15.	The City Council also had the opportunity to consider and evaluate during the SMA permit hearings, some of the evidence and arguments offered herein by plaintiffs. Such evidence and arguments were presented to the City Council in opposition to the Applicants= SMA application.
	16.	On or about December 2, 1998, the City Council exercised its discretionary authority under HRS Chapter 205A and ROH Chapter 25 by adopting Resolution 98-265, which granted the Special Management Area Use Permit and the Shoreline Setback Variance [hereinafter collectively referred to as the @SMA permit@] to the Applicants.
	17.	The Applicants submitted their SMA application in good faith, with the intention to restore the entire Natatorium, including the pool.
	18.	Applicants were granted the SMA permit for the entire Restoration Project.
	19.	The Applicants have not wavered in their commitment to restore the entire Natatorium, including the pool.
	20.	The City currently intends to proceed with the Aland-based@ portion of the Restoration Project, and will postpone, not abandon, the Aocean-based@ portion of the project until the new salt water swimming pool regulations are promulgated as part of Rules 11-13A and adequate funding is secured.
	21.	Rules 11-13A were enacted primarily for the protection of public health:
'11-13A-1 Scope This chapter sets forth minimum requirements for the protection of public health respecting swimming pools.
Haw. Admin. R. (Dept. Of Health) ' 11-13A-1 (eff. 11-12-88) (emphasis added).
	22.	Resolution 98-265 provides, in part, as follows:
A.	Prior to the implementation of the project, the Applicant must meet the requirements and obtain approval of all government agencies normally required for such projects.
. . . .
G.	Construction shall be in general conformity with the plans on file with the Department of Land Utilization and in accordance with the Land Use Ordinance. Any change in the size or nature of the project which has a significant effect on coastal resources addressed in Chapters 23 and 25, ROH, shall require a new application. Any change which does not have a significant effect on coastal resources shall be considered a minor modification and therefore permitted under this resolution, upon review and approval by the Director of Land Utilization.
	23.	Neither Resolution 98-265 nor any other aspect of the SMA permit prohibit the City from performing the Restoration Project by beginning with the Aland-based@ portion (arch, facade, bleachers, restrooms, and the courtyard) and then proceeding to the Aocean-based@ portion (pool and groins).
	24.	Neither Resolution 98-265 nor any other aspect of the SMA permit set forth any deadline or time limitation within which to complete the entire Restoration Project.
	25.	The subcontractor who has been engaged to perform the construction work on the Restoration Project, U.S. Pacific Construction, has always planned to perform the construction work in stages, phases, or increments of work in a logical sequence.
	26.	Said subcontractor plans to commence its performance of the Restoration Project with the Aland-based@ portion, and then proceed to the Aocean-based@ portion once all normally required government approvals and requirements are obtained or met.
	27.	One of the first orders of business for the Restoration Project is the installation of a chain link fence to secure the construction site.
	28.	The chain link fence will render unavailable, parking areas fronting the Natatorium for approximately 2 or 3 months, requiring plaintiffs to park in the public parking stalls or areas around Kapiolani Park while using or enjoying the areas surrounding and abutting the Natatorium.
	29.	After the initial 2 or 3 month period, the fence will be relocated so that all of the parking spaces (plus one or two additional parking spaces) that were available before the Restoration Project began will, once again, be available for use.
	30.	Applicants have already obtained or met all government approvals or requirements that are normally required to proceed with the Aland-based@ portion of the Restoration Project, including, but not necessarily limited to, the SMA permit, the Diamond Head Special District permit, the Historical Preservation Review, the ADA compliance Review, and the building permit.
	31.	There is insufficient evidence to show that any restoration construction activity on the Aland-based@ portion involves any construction activity below the high water mark.
	32.	Section 401 Water Quality Certification from the Clean Water Branch is required to be obtained prior to the commencement of any restoration construction activity that occurs below the high water mark.
	33.	Section 404 certification from the United States Army Corps of Engineers is required to be obtained prior to the commencement of any restoration construction activity that occurs below the high water mark.
	34.	A Conservation District Use Permit from the Department of Land and Natural Resources, State of Hawai`i, has already been obtained by the Applicants, but only applies to the construction of the two groins, which is not part of the Aland-based@ portion of the Restoration Project.
	35.	Revised Ordinance of Honolulu ' 25-9.6(a) provides in part as follows:
(a)	A special management area use permit . . . may be revoked or modified without the consent of the permittee for any of the following reasons:
(1)	The permit was granted in violation of HRS Chapter 205A or this chapter;
(2)	A material breach of the terms of the permit has occurred;
(3)	A material violation of HRS Chapter 205A or this chapter following the granting of the permit has occurred;
(4)	A material mistake of fact or a material misrepresentation was made by the permit applicant in the application or otherwise made by the applicant to the agency or the council in relation to the permit application;
(5)	A material mistake of fact was made by the council in the issuance of the permit such that the findings required to be made by the council as a prerequisite to the issuance of a permit under HRS Section 205A-26 and ROH 25-3.2(b) were erroneous; or
(6)	A material change in circumstances has occurred following the issuance of the permit that would cause the development, as approved and conditioned in the permit, to pose a substantial threat to public health or safety, as determined by the state department of health, the state department of labor, the U.S. Army Corps of Engineers, the Surgeon General, the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, the U.S. Coast Guard, or any other state or federal agency having jurisdiction over the development or with respect to the type of health or safety threat posed by the development.
Rev. Ord. Hon. 1990 ' 25-9.6(a) (emphasis added).
CONCLUSIONS OF LAW
	1.	If it should be determined that any of these Conclusions of Law should have been set forth herein as Findings of Fact, then the court so finds as to such issues.
	2.	Plaintiffs have standing to bring the above-entitled action and this court has jurisdiction over the parties and the subject matter of this case.
	3.	The three-element test for determining whether a motion for preliminary injunction should be granted is as follows:
1.	Is the plaintiff likely to prevail on the merits?
2.	Does the balance of irreparable damage favor the issuance of the preliminary injunction?
3.	Does the public interest support granting the injunction?
	4.	The Restoration Project requires an SMA permit from the City Council before any aspect of the Restoration Project will be allowed to proceed.
	5.	On or about December 2, 1998, the City Council issued an SMA permit for the Restoration Project.
	6.	The law does not prohibit the City from performing the Restoration Project in stages, phases, or increments of work.
	7.	The evidence is insufficient to show that Applicants are about to commence any restoration construction activity without first obtaining or meeting any of the government requirements or approvals normally required for such activity.
	8.	The evidence is insufficient to show that defendants, or any of them, have violated paragraph AA@ of Resolution 98-265.
	9.	The evidence is insufficient to show that defendants, or any of them, have violated paragraph AG@ of Resolution 98-265.
	10.	Therefore, this court concludes that the evidence is insufficient to show that plaintiffs are likely to prevail on the merits of their claims against the defendants, or any of them.
	11.	There is insufficient evidence to show that the balance of irreparable damages favors the issuance of the preliminary injunction.
	12.	Under the current state of affairs relevant to this case, the City Council=s and the Department of Planning and Permitting=s management options to control development in the area of the Natatorium along Oahu=s shoreline under HRS Chapter 205A and ROH Chapter 25 have not all been foreclosed.
	13.	This court concludes that the City=s plan to proceed immediately with the Aland-based@ portion and to postpone the Aocean-based@ portion does benefit the public interest and, therefore, supports the denial of plaintiffs= Motion for Preliminary Injunction.
	14.	Plaintiffs have failed to sustain their burden of proof on their Motion for Preliminary Injunction and, therefore, the Motion for Preliminary Injunction must be denied.
ORDER
	Based upon the foregoing Findings of Fact and Conclusions of Law, and good cause appearing therefor,
	IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Plaintiffs= Motion for Preliminary Injunction be and hereby is DENIED. The issuance of this order concludes the hearing on plaintiffs= Motion for Preliminary Injunction filed on July 1, 1999.
DATED: HONOLULU, HAWAI`I, August 4, 1999 .
JUDGE OF THE ABOVE-ENTITLED COURT
Kaimana Beach Coalition, et al. vs. City & County
of Honolulu, et al., Civil No. 99-2440-06
(Circuit Court of the First Circuit, State of Hawai`i)
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER
NOTICE OF ENTRY
	The foregoing Findings of Fact and conclusions of Law and Order in Civ. No. 99-2440-06 has been entered and copies thereof served on all parties by placing the same in either the attorney=s court jacket or by placing the same in the United States mail, postage prepaid.
			DATED: HONOLULU, HAWAI`I, August 4, 1999.
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Clerk, Fourteenth Division