Musings: Sell Outs

It’s shaping up to be a tough week for folks who are concerned about protecting Kauai’s agricultural lands and stymieing the spread of resort uses around the island.

But it’s looking like a very good week for the Realtors and speculators and off-island second-home owners and investment consortiums that wield such tremendous power here.

Yesterday, with virtually no discussion — and in spite of a 2009 opinion from the state Attorney General’s office to the contrary — the Planning Commission approved a transient vacation rental (TVR) bill that will allow TVRs on ag lands and open the door to an expansion of that industry.

And today the Council takes up the so-called “farm worker housing” bill, which gives certain ag land owners the chance to build a home on land they bought dirt cheap — we’re talking $10,000/acre — knowing full well it had no housing rights. Furthermore, it allows unscrupulous ag land owners, of which there are more than a few, a chance to build a little hale or two or three that they can use for any number of purposes, including vacation rentals.

Because let’s face it, inspection and enforcement are not Kauai’s strong suit. The TVR bill eliminates inspections altogether, and even though the Council has tried to build in safeguards against abuse, the planning department has already said it cannot enforce the farm worker housing bill. So why, given the long history of land use abuse on this island, are we even going there?

I mean, how many farmers, especially the dirt poor ones grossing $35,000 year, which is all you have to make to qualify for a farm dwelling, are going to let someone live for free in a unit they could be renting out for $1,000 to $1,500 per month? The temptation is just too great to cheat and say OK, pay me under the table and I’ll list you as a worker. Worse, the bill allows interns — read tourists — to occupy the units, so they don’t even have to prove they’re paying a worker wages.

Both of these bills are essentially handouts to landowners. Just ask Councilman Daryl Kaneshiro, a rancher, who has been trying to water down the farm worker housing bill so he can build some units on his land. He really should recuse himself from voting.

The bills also work to legitimize illegal dwellings and activities, which brings us to the AG’s opinion regarding TVRs on ag land.

The Aug. 19, 2009 opinion was issued in response to an Oct. 7, 2008 request from Sandra Kunimoto, chair of the state Board of Agriculture. She specifically asked: is it legal for a county to allow a vacation rental or B&B on a working farm that is conducting ag tourism allowed by county ordinance? May counties allow such uses on ag land with no ag activity? Are counties required to assess and consider the cumulative potential impact to farms, ag activites and an area’s ag resources prior to issuing Special Permits in the ag district?

After saying that the state Land Use Commission should appropriately interpret legal uses of ag lands and standards for Special Permits, Deputy Attorney General Bryan C. Yee offered his opinion, which was approved by AG Mark Bennett. It’s lengthy, but I’ll just touch on two extremely relevant points.

The first is that B&Bs and TVRs created solely for ag tourism purposes are not allowed. The second is that people do have the right to build houses on ag lots created before 1976, without the need for agricultural activities.

But there is nothing to suggest that the right to build a single family dwelling (without the need for agricultural activities) encompasses a right to use that single family dwelling for a B&B or a TVR.

In summary, we are not aware of any justification by which a county may allow a B&B or a TVR on agricultural lands as a permissible use under section 205-2(d), 205-4.5(a), or 205-5(b)

Given that, exactly how does the county think the TVR bill can legally fly? To his credit, Planning Commission Chairman Caven Raco wanted to defer action on the bill to review the AG’s opinion, presented by former Councilman Mel Rapozo. But the others just wanted to be rid of the bill — heck, they didn’t even have any questions — so he did not prevail.

It seems that on Kauai, the opinion of the AG means nothing, but the opinion of a junior county attorney, well, that’s gold.

These bills are the handiwork of Jay Furfaro, Tim Bynum and JoAnn Yukimura, all of whom want you to elect them again, and all of whom believe they’re doing the right thing.

Tim thinks he’s saving the county from an expensive lawsuit from TVR owners, while JoAnn and Jay think they’re saving agriculture. But given the history of rampant land use abuses on this island, they’re simply opening two new cans of worms that could still expose the county to lawsuits while making it even harder to ensure that ag land is affordable and actually used for farming.

They’re also helping resort uses become more firmly established in what used to be residential and farm communities, even though the county’s General Plan clearly states that the values and lifestyles of the residents should not be compromised to accommodate the visitor industry.

As one advocate for the people expressed it so aptly: “Sold out, we is.”