Musings: That Fairness Thang

Venus was a brilliant jewel sparkling in the western sky last night and the moon, headed toward full on Saturday, shone brightly through a mosaic of clouds. It had been a while since I’d seen either, or awakened in the wee hours to deep silence, broken only by the haunting song of the bufos and a cricket chorus.

The rain reprieve continued into morning, and Koko and I walked under a patchwork quilt of white and blue. I was admiring the way salmon-colored mist was draping Makaleha when we ran into my neighbor Andy, whom I hadn’t seen since the most wonderful time of the year. He gave Koko a biscuit to ease her agitation at being unable to join his dog Momi in off-the-leash frolics, and we talked of knee surgery, the growing Gestapo-like nature of the Kauai Humane Society and transient vacation rentals (TVRs).

Andy had been amused to learn from my recent post that judges are among those who have been operating illegal vacation rentals on Kauai, and said he’d have to ask Cliff Nakea about it the next time he sees him. Cliff’s a nice man — he officiated at my wedding, granted my divorce and sent my ex-husband to jail for violating a restraining order — and I know other folks on that list, and some of them are nice, too.

The issue, however, is not niceness, but fairness. As it stands now, folks will be grandfathered in to the exclusion of people who had been waiting for the county to develop regs so they could operate a TVR legally. It seems to make more sense to determine how many TVRs can be allowed outside of the Visitor Destination Areas after conducting a study on impacts to a neighborhood. Instead, those impacts will continue. Perhaps the number of TVRs won’t increase, but those who are already suffering the ill effects won’t get any relief, either.

Still, incremental progress is being made on this issue. First, the County Council’s planning committee yesterday did clean up the TVR bill to ensure the public is able to view the list of TVR applicants in time to comment before the planning department grants approval.

And even though the full Council hasn’t acted yet, the first 132 names have been posted on the county’s website. Deputy planning director Imai Aiu reportedly has promised to publish all 500 in increments of 100 or so.

Funny how just a couple of months ago, a citizen was told by planning it would cost thousands of dollars up front for her to secure that list, and now, voila, here it is for free. The log is different than the list released by the real property division, which Imai reportedly said he had never seen, so who knows what is going with that. At any rate, the new log includes the zoning of the parcel in question, and some of those seeking applications for TVRs are in the open and conservation district.

None, so far, are in the ag district, although I imagine that will change if Councilman Tim Bynum has his way. It seems Tim wants to introduce a bill that would allow TVRs on ag land to be grandfathered in just like the other ones.

According to an article in today’s Garden Island:

“In my opinion, the laws about what you can and cannot do on ag land are not clear,” he [Bynum] said. “It wasn’t fair to say ‘if you’re on ag land, you can’t continue.’ It’s still very controversial what’s legal and what’s illegal on ag land. The county needs time to figure it out.”

Bynum said the Important Ag Land study could take years, and clarified that the grandfather clause — which applies to any vacation rentals that were created “appropriately” before the law was passed — could extend to ag land rentals even beyond the conclusion of that study.

“Fairness is a big important issue to me. (Landowners) had ordered their economic life around the status quo, which was at that point to do vacation rentals (on ag land),” Bynum said. “To take that away without good reason would be devastating for some people. They’d lose their property on Kaua‘i.”

Bynum said he voted against the original law, the only member to do so, because of the ag land issue.

“Now it looks like there is a will, at least from some people, to correct that mistake,” he said.

Just where is that will coming from, Tim? The real estate industry, which fattened up selling overpriced ag land to folks on the promise that they could make their mortgages by doing a vacation rental on the side?

And there is a good reason to take that use away. It's called the state law that prohibits anything but farm dwellings on ag land.

As to fairness, if that was really his concern he would be taking steps not to grandfather in all the people who are running ag TVRs with no farm in sight, but to offer a chance for real live legit farmers to operate a TVR if that’s what they need to make their farms go.

Instead, those guys will be shut out of TVRs forever in favor of people who bought land they couldn’t afford, many of whom don’t even live here.

I’ve said before that if anyone is allowed to operate a TVR outside the VDA it should be farmers who are actually farming and contributing something to this island. For everyone else, it’s just a total hand out at the expense of others.

As for Tim’s argument that people ordered their economic lives around the status quo, which just so happened to be illegal, well, hey, the same could be said of those who used to make good money growing pakalolo before Operation Wipe Out was introduced. Is Tim going to become their champion now, too?

At least that would bring some much-needed cash to the locals and contribute to the island's economy. Instead, Tim wants to help people build equity in land whose value has been artificially inflated because it’s being used for everything but agriculture.

And that just perpetuates the vicious cycle of speculation that is undermining efforts to make agriculture viable on Kauai.

What, pray tell, is fair about that?