Irwin Park will Helene Irwin Fagan, daughter of sugar magnate William Irwin, donated to the territory of Hawaii in 1930 a half-acre fronting Aloha Tower to become a public park.
remain a park
Developers wanted to lift restrictions
placed on the park in the original deedBy Debra Barayuga
dbarayuga@starbulletin.comIn a decision lauded by Fagan's heirs and preservation groups, Land Court Judge Gary W.B. Chang ruled yesterday that the restrictions and conditions on the deed will stay in place, and Irwin Memorial Park will remain a park.
Chang denied a request filed in May 2001 by the Aloha Tower Development Corp., the state agency in charge of developing the area around Aloha Tower, to remove existing restrictions in the deed.
Fagan had conveyed the property to the territory on conditions that it would revert back to her or her heirs if it were not used as a public park and that she would have the right to erect a memorial to her father there.
The court's decision ensures that Fagan's wishes will continue to be honored, said Susan Ichinose, attorney for Fagan's grandchildren, William Olds Jr. and Jane Olds Bogart, of San Francisco.
Ichinose said her clients fought this fight on behalf of the people of Hawaii. "It was in line with their grandmother's wishes that the people of Hawaii should benefit from this property," she said. "It was a very emotional result and a fitting one."
Aloha Tower LP, owner of Aloha Tower Marketplace, had proposed in 1999 to build a two-level parking garage similar to the city's municipal garage, with one level underground and a park on top.
During a 3 1/2-day trial in early October and concluded yesterday, Andrew Beaman, a special attorney general who represented Aloha Tower Development Corp., argued that a Jan. 31, 1952, letter signed by Fagan waived the restrictions to allow a portion of the park be used for Nimitz Highway.
Dennis O'Connor, attorney for the Irwin Family Charity Foundation, had argued the document was simply an "agreement" to exchange land for Fagan's interest in Irwin Park and had no impact in Land Court.
Ichinose argued that the letter was not a waiver of title and that the executive order issued by Gov. Lawrence Judd in March 1931 that set aside the property for park purposes remains in force today.
Chang ruled that the letter was genuine and while the evidence showed Fagan clearly intended to waive the restrictions in the future, the 1952 letter in itself did not waive those restrictions.
"At most it only expressed intent to relinquish those conditions," he said.
During closing arguments, Beaman said the state appreciated the gift Fagan made more than 70 years ago and that the Aloha Tower Development Corp. wishes to make appropriate use of the property.
Beaman declined comment until he can discuss the ruling with the state attorney general.
Ron Hirano, executive director of the Aloha Tower Development Corp., could not be reached for comment.
Jeannette Holmes, who represented various preservation organizations, said that if the petitioners prevailed, the ruling would have had a "chilling effect" on private donors of land who want to donate to the state for a specific public purpose.
It was Fagan's intent to preserve Irwin Park as open space, Holmes said as she displayed a recent photograph of Irwin Park in court. Irwin Park stood out as a splash of green surrounded by the concrete jungle of downtown Honolulu.
No one wants to give a grant to the state so the state can do whatever it wants with it, Ichinose said. Potential donors can take some satisfaction from the court's decision that their wishes will be honored, she said.
William Olds Jr., who was in the courtroom during the ruling, also declined comment, but his eyes were moist as he left the courtroom.
Michelle Spalding Matson, whose great-great-grandmother was William Irwin's sister, hailed the ruling as "one of the nicest Christmas presents the Honolulu public could have received from the court."
Matson, who has been working with preservation group Scenic Hawaii, which spearheaded the Save Irwin Park efforts, said they plan to restore Irwin Park as the public gathering place that Fagan intended it to be.
Fagan died May 30, 1966, in California.
Ichinose said she hopes the new administration will "take a good close look at this case and make the decision that this is where it should end."
Irwin Park was placed on the Hawaii Register of Historic Places in December 1999. The Aloha Tower Development Corp. is also challenging the designation, and a contested-case hearing is pending.
William Irwin, a successful businessman and philanthropist, had also contributed 26 acres of land in 1896 at what is now known as Kapiolani Park.
Hawaii Register of Historic Places
State of Hawaii
