Posted by: Patricia Salkin | February 3, 2008

Hawai’i Supreme Court Finds No Violation of Nonconforming Use Statute for Restaurant

In 1961, the owner of Colony Surf, a residential apartment building, subleased a ground-floor restaurant to Colony Surf Development Corporation for the purpose of operating Michel’s Restaurant.  At the time, the restaurant was considered an accessory use. In 1982, the area was rezoned and the accessory restaurant became nonconforming. In October 1995, the restaurant was temporarily closed as a result of a mortgage foreclosure. By January 1996, a new owner purchased the restaurant in foreclosure, began renovations, and reopened part of the restaurant in August 1996. For about a month, the restaurant operated from 4:30pm to 2:00am and offered a Sunday brunch.  From December 1996 to June 1997, there was limited daytime use of the restaurant.  In January 1998 daytime operations began to accommodate periodic private functions including weddings.  Following a second phase of renovations in September and October 1998, the restaurant entered into a contract with Wedding Emporium to host wedding services and receptions.  Because the use of the restaurant for weddings resulted in “noise, traffic and congestion” in the residential neighborhood, severely affecting the neighborhood quality of life, in December 1998 the owner of Colony Surf sent a letter to the director of the Department of Planning and Permitting challenging the use of the premises for weddings, receptions and other private functions. The Director responded that such uses were subsumed within the scope of restaurant uses.  The owner of Colony Surf then questioned the hours of operation of the restaurant, alleging that the restaurant had reduced its hours of operation, to which the Planning Director again ruled against Colony Surf. The zoning board of appeals upheld the decisions of the Planning Director and the Circuit Court reversed.  

In reversing the Circuit Court, the Hawai’i Supreme Court determined that the daytime operation of the restaurant did not constitute an “expanded” nonconforming use under state statute because the use was not changing just the hours of operation.  The Court noted that the zoning board did not review the question of whether the type of daytime operation itself constituted an expansion of a nonconforming use and that therefore this question was not properly before the Circuit Court.  Further, the Court determined that the operator did not take an “action” that reduced the negative effects of the nonconforming use pursuant to the statute because the nineteen month cessation of the daytime operation was within the statutory permissible discontinuance of a nonconforming use (the statute allows for nonconforming uses to be temporarily discontinued for less than twelve consecutive months for any purpose plus 120 days for ordinary repairs during any twelve month period; or for less than eighteen months during any three year period for any purpose plus 120 days for ordinary repairs during any twelve month period, and then resumed) since during the nineteen months, four of those months were used for ordinary repairs.     

Colony Surf, Ltd v. Director the Department of Planning and Permitting, 2007 WL 4533435 (12/26/2007).   

The opinion can also be accessed at:

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