Musings: Fighting Faux Farmers

Koko and I greeted the day on the mountain trail, where the ohia lehua — the orange-colored blossoms are really coming on now — and beautiful cloud formations stole the show from a rather muted sunrise.

I noticed similar dramatic cloud patterns – cumulus, cirrocumulus and contrails, which some people apparently mistake for ”chemtrails,” could all be seen, moving in different directions across the sky — late yesterday afternoon at the beach.

On the way down from the trail, which crosses state lands leased for pasture, I got to thinking about agriculture, especially since I’ll be joining Jimmy Trujillo to host a show on that topic at 4 p.m. today on KKCR. You can listen at 91.9 FM or live on line.

Our guest will be Jerry Ornellas — aka Farmer Jerry — and he’ll be talking about all the hot ag topics currently under discussion on Kauai: farm worker housing, vacation rentals on ag land, water availability, obstacles to farming, the challenge of feeding our island, important ag lands and whatever else folks who call in (826-7771) want to discuss.

They’re all topics of interest to me, but I’ve been especially tuned in to the transient vacation rental (TVR) issue, which The Garden Island touched on in an article last weekend.

It discussed a proposed amendment to county zoning laws that would “temporarily” allow TVRs on ag land until the important ag lands are designated. Deputy Planning Director Imai Aiu recommended the planning commission oppose the bill and defer action; the matter will be back on the commission’s agenda June 23.

Instead, the planning department wants applicants to use the special permitting process that has been set up to legitimize TVRs in neighborhoods outside the Visitor Destination Area. A whopping 500 such applications have already been received, and 41 of them were for TVRs on ag lands, although I’m quite certain that doesn’t reflect the full count.

Now here’s where things get squirrely, which pretty much sums up the entire TVR issue. The proposed ordinance, Bill 2298, would allow TVRs on ag lands through “enforcement agreements.” But as TGI reported:

Such agreements would actually be non-enforcement agreements contrary to state law, which mandates county government to enforce state Land Use Commission approved uses within state Land Use Districts, said Deputy County Attorney Ian Jung.

TVRs are not specifically allowed on state Land Use District agricultural lands according to state law — Hawai‘i Revised Statutes chapter 205.

And as I reported in a Honolulu Weekly article last year:

Kauai’s (TVR) measure was created when Tony Ching, then-director of the state Land Use Commission, issued the opinion that such accommodations were not allowed based on his reading of the law.

That opinion does not mesh with the view taken by the attorneys who represent the real estate industry, Lorna Nishimitsu and former state Senator Jonathan Chun among them.

At the planning commission meeting, Lorna first whined, then threatened:

TVR owners outside the VDA are being “targeted,” said Lorna Nishimitsu, an attorney representing several owners of land within the state agricultural Land Use District operating TVR and a member of the county’s Cost Control Commission.

Nishimitsu predicted that litigation will result if her clients’ and others’ non-conforming-use applications are denied.

“Unless it’s prohibited, it’s permitted,” she said.

Here’s what Chapter 205 actually says:

The law defines farm dwelling as “a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling.”

The law also allows for agricultural tourism on working farms or as part of a farming operation, but prohibits such tourism in the absence of a bonafide farming operation. It further directs the counties to establish ordinances for overseeing and enforcing activities on ag land, including “requirements and restrictions for accessory facilities connected with farming operations, including gift shops and restaurants; provided that overnight accommodations shall not be permitted.”

As Jonathan noted in the article I wrote:

“Neither my clients nor us [the law firm of Belles, Graham, Proudfoot, Wilson & Chun] have taken the position you don’t have to do any ag use,” he says. “The question is how much ag do you have to do? Nobody has ever taken that bull by the horns and said, under state law, this is how much ag use is required to satisfy the law.”

And that’s one of the key issues that’s hanging up the worker housing bill, because the law has to be drafted not just to meet the needs of the real farmers, but to prevent abuses by the faux farmers. You know, the folks who plant a few trees and claim they’re farming, but in fact want to advantage of the lucrative side businesses — ag tours, TVRs, healing retreats.

Heck, I even noticed Michele Rundgren (Todd’s wife) is staging an event at the “Wailapa Road amphitheater,” which I know is on ag land. What I don’t know is whether the county issued a permit for such a use.

A source told me that the planning department is going to allow TVRs on ag land, but they're going to push hard to make the applicants prove there's a legitimate farming operation. And that's great, because that's as it should be. But how, exactly, are they going to do that in the absence of a clear policy on what constitutes farming?

We can continue to approach this issue through the back and side doors, but until the county and state get serious about defining a bonafide farm — and are willing to stand up to the real estate industry — we’re not going to be giving the real farmers any relief. Instead, we’ll just be letting the faux farmers slide in as we keep spinning our wheels on Kauai’s slick red clay.