Tuesday, February 7, 2012

Musings: Legitimizing "Agritainment"

Today's full moon, perched above the mountains, illuminated the night so brightly that the Norfolk pines cast long shadows on the cold, wet grass when the dogs and I went to check things out. Later, big swoops of charcoal clouds tinged with orange and overlaid with smaller puffs of silver-gray spoke to unsettled weather ahead.

It's extremely unsettling to see SB2341 making its way through the Legislature, for a couple of reasons. First, it amends the law to allow short-term rentals of less than 30 days on ag lands, which opens up them up to the kind of mini-resorts we've seen pop up all over the North Shore of Kauai. This works to drive up the price of ag land so it's no longer affordable for farming, which we've also seen happen here.

And second, it shows that Kauai County has been violating the law by allowing vacation rentals on ag land, and that attorneys representing ag TVR owners are lying when they claim these uses are legit.

Because if ag TVRs aren't illegal, why must state law be amended to specifically allow them?

In its testimony, the Office of State Planning states the law quite clearly (emphasis added):

HRS Chapter 205 specifically limits the permissible uses in the Agricultural District to discourage the use of agricultural land by higher value, non-agricultural land uses. The only dwellings defined as permissible uses in the Agricultural District are farm dwellings that are located on and used in connection with a farm or a dwelling occupied by persons or families deriving income from agriculture, as defined in HRS Section 205-4.5(a)(4).

Allowing short-term or vacation rentals as a permissible use in the State Agricultural District would increase land values in the Agricultural District and make land less affordable for farmers. This would contribute significantly to the loss of agricultural lands to higher-value non- farm uses, and could adversely impact the viability of diversified agriculture in Hawai'i as well as food and energy security for Hawaii's people.


So why are some of our Council members, planners and planning commissions so dense that they believe otherwise?

The measure also deletes the provision that prohibits ag tourism activities in the absence of bona fide farming operations, something that rightly registered alarm with the City and County of Honolulu's planning department. As it testified:

No agricultural uses need be present on the property. The language could be interpreted to refer to hotels. The allowance of overnight accommodations would be contrary to the purpose and intent of retaining agricultural lands to support agricultural activities and services.

U no dat. Yet here on Kauai, the attitude is, “No farm? No problem. You can still have a permit for your luxury hotel, I mean TVR. But down the road, we might look and see if you do have a farm.”

As the Hawaii Farm Bureau astutely noted in its testimony:

These types of activities are called agritainment in other areas of the country and are not considered agriculture. Allowing such activities on agricultural lands has the potential to result in conflicts and negative impacts on farming operations.

To make sure these “agritainment” uses can proliferate, the Senate is also considering SB2350, which permits the construction of “ohana” units in the ag district, with no requirement that they be linked to farm operations.

Interestingly, this bill is supported by politicians, but opposed by the group it is supposedly intended to benefit: farmers. Both the Hawaii Farm Bureau Federation and Russell Kokubun, director of the state Department of Agriculture submitted testimony against the measure, saying it would lead to the proliferation of residential on ag lands.

The Farm Bureau pretty much summed up the issue with this comment:

Rather than increasing non-agricultural uses on agricultural lands, we suggest creating mechanisms to increase farm and ranch viability so farms and ranches will not need non-agricultural activities to supplement their incomes.

Both of these bills are currently before the Senate Committees on Agriculture, and Water, Land, and Housing, which are set to vote Thursday afternoon. It's super easy to submit testimony; just follow the Senate bill links above and click on the blue Submit Testimony button.

It may be too late for Kauai, but at least we can keep the rest of the state from following our miserable lead.

26 comments:

Anonymous said...

Regarding the tvr drama on Kauai, It is noteworthy to mention that Kauai is not allowed to diminish state law,making our current tvr ordinance pretty questionable. It seems Al Castillo has either been giving the county really bad advice, or things are so bad here, that the county gives the state the finger, and "poor Al" is stuck ruining his credibility by playing politics rather than giving the county good legal advice. So where does that leave commissioners who are basically threatened with having to follow the county attorney's advice in decision making and then find that they broke the law? It's pretty sad when the county intentionally breaks state laws to allow what their contributors want."oh it will be a taking" look who's taking who... I guess this is like an after the fact permit for the county, one that will really hurt farming and agriculture across the state.
Wonder if the planning commission will just keep on winking and nodding and give more permits for resorts on AG land? Or will they have to overturn any that were illegally granted so far?

Anonymous said...

Why not sue their a$$es so they get off the land and allow it to truly go to REAL farming activities?

Anonymous said...

"if ag TVRs aren't illegal, why must state law be amended to specifically allow them?"

Because, the county is requiring special permits under HRS 205.6 for the TVRs it is grandfathering in. That makes them legal. Under the new law, there would be no need to obtain special permits.

Anonymous said...

You can't "grandfather" in an illegal use.

Anonymous said...

Why give special permits to people already breaking the law? They should be banned from applying. How can the county give special permits to people who are not farming.

Anonymous said...

"How can the county give special permits to people who are not farming."

Because it is an unusual and reasonable use of the structures under HRS 205-6, especially those on tiny lots which could in no way support an agricultural operation anyway.

Anonymous said...

"Because it is an unusual and reasonable use of the structures"

That's total bullshit.

Anonymous said...

What do YOU suggest doing with a house on an 8000 square foot lot on rocky sandy soil that happens to also be in the ag district? If short term renting it is illegal, then so is long term renting it. So is living in it not in conjunction with a farm, for that matter. Guess you have to just let it rot.

Anonymous said...

YOU bought it and YOU signed the farm dwelling agreement. YOU can go to the LUC and get the land use classification changed. YOU can do long term rentals they are not prohibited under 205.

Instead YOU break the law and try to play the victim.

Anonymous said...

Or, I can get a special permit under 205-6 which is allowed under state and county laws. Sorry if it pisses you off.

Anonymous said...

"long term rentals they are not prohibited under 205"

They are if they're not in conjunction with a farm or ag operation, they are.

Anonymous said...

Planning has been exchanged for a develop this island mentality. The will be no food sustainability planning here.

Your representatives are not interested in the islands well being. Stand up and fight this obvious abuse of the land.

Anonymous said...

Other reasonable uses of the land - if not farmable does not mean that it cannot be used as a dwelling.

Your ability to rent it for profit is not guaranteed under any reasonable use.

Anonymous said...

I really prefer "develop the island" rather than sustainability.

The need to be totally self-sufficient is unreasonable.

Anonymous said...

Spoken by someone who obviously was not here during United Airlines strike, Iwa, Iniki....

We're not even 5% self-sufficient.

Anonymous said...

"Your ability to rent it for profit is not guaranteed under any reasonable use."

No, but its allowable.

not allowing a use solely because someone is offended by the profit motive would not be allowable.

Anonymous said...

Not in conservation district.

Anonymous said...

You can't "grandfather" in an illegal use.bingo

Anonymous said...

"You can't "grandfather" in an illegal use."

You can render it legal by granting it a special use permit.

Bingo!

Joan Conrow said...

"You can't "grandfather" in an illegal use."

You can render it legal by granting it a special use permit.


Ah, therein lies the crux of the illegality of the county's ag TVR ordinance, which I will address in another post.

Anonymous said...

The County's efforts to preserve ag land are appalling. We have encouraged mansions, resorts, commercial tours and every non-ag endeavor on ag land. It doesn't matter who the mayor is because it occurred during Kunimura, Yukimura, Kusaka, Baptiste and Carvalho's administrations. So politicians, quit paying lip service to the politically correct but factually incorrect assertion that you want to preserve ag land because you don't. Admit that you are controlled by the realtors, contractors and aina rapists that line your campaign coffers and stroke your fragile egos.

Anonymous said...

I kinda remember Kaipo, Derek and Mel trying to make this point years ago. Nobody listened.

I wonder what Al Castillo will say to this. He was responsible for convincing the Planning Commissioners and Council Members that it was legal. Did he not read Chapter 205? Apparently not. Of course, this is the same guy that claims that SHALL is not mandatory.

Anonymous said...

Have you ever heard of after-the-fact permitting? where something was "illegally" built without a permit, or was being used for something it was not permitted to be used for, the person applies for an after the fact permit. It's the county's choice to grant it. Nothing illegal about it.

Anonymous said...

Have you ever heard of after-the-fact permitting? where something was "illegally" built without a permit, or was being used for something it was not permitted to be used for, the person applies for an after the fact permit. It's the county's choice to grant it. Nothing illegal about it.
Except when it is in conflict with state law

Anonymous said...

Legal? The County gives a shit about legalities? That's news!

Anonymous said...

Please READ Jesse Souki (director of the state office of planning) comments on the Ag bill. Shows specifically how he county is wrong in there interpretation of state law!!

You have until 2:30 TODAY (Thursday) to submit comment or support the State Director of Planning's position.