Musings: Doling Out Rewards

The first applications for vacation rentals (TVRs) on agricultural land are now starting to trickle in for Planning Commission approval, with the panel considering three at its meeting yesterday.

The applications are raising a number of thorny questions, including how such approvals would affect the value of the property, how it’s going to work on property that has been divided through the CPR process — this affects 37 of the 65 applicants — and most important, just how these commercial uses of agricultural land can be justified under state law as “unusual and reasonable uses.”

One of the first up to bat was Bruce Fehring, who wants approval for a TVR in the Wailapa ag subdivision, just south of Kilauea town. He told commissioners that he’s been doing a vacation rental since 1995-96. But when I checked out the Internet, which is a good place to find out what people are actually doing with their TVRs, as opposed to what they tell the county, I saw that he has two: Hale Kai Kalani and Twin Hearts, which is advertised as (emphasis added) “a wonderful private new one bedroom, one bath handcrafted rental honeymoon cottage on our organic 7.5 acre Kauai North Shore estate/gardens parcel.”

You notice there’s no mention of the word “farm,” even though that is supposed to be a requirement for an ag TVR.

The ad goes on to note (emphasis added) that Twin Hearts is located “about 100 yards (and lots of hedges and trees) from our house, and 250 similar yards from Hale Kai Kalani, our larger vacation rental home."

Yet Fehring told commissioners that he lives in his TVR about 60 percent of the time and rents it out for the remainder. How can that be, when he clearly has a primary residence on the land?

Though Commissioner Caven Raco asked — twice — how much the property would increase in value if the TVR use was approved, Fehring ducked the question, replying instead that the TVR revenue “offsets the dollars to run the property.”

Indeed. But should other property tax payers, legit farmers and people who chose to follow the law by not doing illegal TVRs on ag land, be asked to subsidize Fehring’s lifestyle and real estate investments? Surely the big settlement from Jimmy Pflueger has helped to cover some of his bills.

Another person who can’t actually need the money is Falko Partners owner Larry Bowman, who wants approval for a TVR at Valley House. But though the company has already created a web page for the property, which is described as “a secluded luxury estate on lush acreage in Kealia, Kauai” — again, no mention of a “farm” — access to the site was blocked. Perhaps it will be lifted when approval is granted and no one cares whether the application reflects reality.

Another sticky bit of reality comes into play regarding properties divided through a CPR. Commissioner Wayne Katayama was curious about a few things, including how TVR approval would affect the value of the entire TMK. Other questions: can someone get approval for a TVR on a CPR if it’s another landowner in the CPR who actually has the "farm?” Who in the CPR signed the farm dwelling agreement? And is anyone else in the CPR coming in for a TVR?

Those are only a few of the unanswered questions arising as the county wades into the ag TVR quagmire. PONO — Protect Our Neighborhood Ohana — raised others in its testimony, which is essentially an evaluation of the process, using state law (Chapter 205) as the guide.

As the group’s cover letter to Commissioners noted:

This testimony is being submitted on behalf of Protect Our Neighborhood Ohana as we believe the cumulative and secondary impacts of the nonstop expansion of these transient vacation rental commercial resort uses outside the Visitor Destination Area, into residential areas, and now on to agricultural lands in the North Shore Special Planning Area, will continue to increase the negative impacts in our residential neighborhoods and undermine good planning.

Our testimony today is not specific to any of the above applications, but makes suggestions about evaluating these and other future applications. The paper provides material about the standards and criteria we believe you need to consider prior to making a decision on each of the above, and any future applications for commercial uses on Ag lands.

The evaluation raises a number of good questions:

Is this agricultural tourism? Will the County require an environmental assessment
under Chapter 343? Does the application meet the “farm dwelling” definition? Is there a signed farm dwelling agreement? Does “bona fide” farming exist on the parcel? Is the TVR use “ancillary” to the farming operation? How does this transient vacation rental comply with the farm dwelling agreement? Will people and/or corporations who violated the farm dwelling agreement be rewarded?

One can only hope that Commissioners and planners take those questions into consideration as they decide whether to dole out lucrative rewards at the expense of our agricultural land.