Saturday, August 15, 2009

Musings: Planning Overhaul

For the first time in several days I saw stars — Orion, to be exact — when Koko and I went walking this morning. Even Kalepa and Haupu were visible, although Waialeale’s summit was still socked in and a bank of deep blue clouds laid low over Makaleha.

As dawn approached, the eastern sky turned pink and gold, and though the faintest breeze stirred the trees, it wasn’t enough to cool a day that was already hot and sticky at 6 a.m. The muggy days of August are fully upon us.

And so, it seems, is the reality of the state’s budget crisis, with The Advertiser reporting today that proposed layoffs in the Department of Agriculture could imperil food imports and exports.

On the import side, [Big Island Rep. Clifton] Tsuji said, he's already heard from a major produce importer who warned that a dramatic slowdown in the time it takes to have items inspected could spell the end of the import of certain types of lettuce or other food products that perish easily.

"If they don't have the inspectors, they might have to cease importing these items," Tsuji said.

It’s a double-edged sword.

If some stuff’s not coming in, it could increase demand for locally-grown veggies and so spur production. But if we don’t have enough inspectors, it harms exporters, who are a major force in Hawaii’s diversified ag sector. It also increases the risk of more pest species being introduced, which is a major concern for the native environment, farmers and our overall quality of life.

It raises, once again, the question of whether Hawaii is serious about ensuring that agriculture is part of its future.
That question will be front and center as Kauai goes through the process of identifying its Important Ag Lands. We’re the first county to do such a study, which is mandated by Act 233. Dr. Karl Kim of UH has been awarded the county contract, and he’ll be talking about the process at a meeting set for 6 to 8 p.m. Monday, Aug. 24 at the Kapaa Library.

I was talking to Farmer Jerry the other day, and he said the most important message that needs to be conveyed about the IAL process is “it’s not gonna be the third Mahele for the developers.”

He was referring to the Great Mahele, which launched the Western land grab, and the Kuleana Act, which attempted to address the needs of commoners who had been aced out.

Some seem to have the attitude that whatever isn't classified IAL will be opened for development. Jerry and others disagree, saying that the process is only intended to identify the very best irrigated lands, with the intent of ensuring they are protected and made more productive. It doesn’t mean the rest of our ag lands aren’t useful.

Some 1.9 million acres of land are zoned ag statewide, but according to Jerry, the best guess is that perhaps only a few thousand acres — and at best, 400,000 to 500,000 acres — will be designated IAL. So as you can see, an awful lot is at stake in this process, both in terms of money to be made and a viable future for ag in Hawaii.

And that brings us to two related issues: transient vacation rentals on ag land and our messed up planning department. In a comment left on Monday’s post, a reader made a good point in asking:

Why is it that a TVR on Ag land cannot be considered a legal use, but a long term rentals on Ag land supposedly are legal? Don't they both involve commercial profit based on a non-Ag use?

The reader then went on to state:

But the general plan (the one embraced by the charter amendment last year) says that TVRs in non-VDA are good things and it instructs the County to "regulate" them. …..
So the general plan embraces TVRs. The State taxes them like lawful businesses. County attorneys say they are legal. Then suddenly the Council declares that all TVRs have been illegal on AG land all along and they must all stop operations immediately.

While I agree that the county has been totally slack in enforcing state law regarding farm dwellings, which quite clearly says that all houses on ag land must be tied to farm operations, I'm not sure where the reader got the idea that the General Plan says TVRS outside the VDA are "good things" or that it "embraces" such uses. The actual language is:

“ Alternative Visitor Accommodations

(a) The County of Kaua`i shall recognize alternative visitor accommodations, such as B&Bs, vacation rentals, inns, cabins, and retreat centers.

(b) The County shall enact clear standards and permit processes for regulating alternative visitor accommodation structures and operations in Residential, Agriculture, Open, and Resort zoning districts.

(c) County development standards and permit processes shall be scaled to the size and potential impact of the use: […]

(d) Permitting processes should consider the cumulative impact that a large concentration of alternative visitor units have on a residential neighborhood.”

I’m no attorney, but it seems the process of regulating such units could include saying they are not allowed at all unless they are associated with a farm use. And as the PONO folks on the North Shore would credibly argue, the county has completely failed to consider the cumulative impact of TVRs on residential neighborhoods and Special Management Areas.

They’re still trying to get the county planning commission to provide some justification as to why it suddenly approved some 33 TVR applications that had been denied, without any documentation provided to the public. They’ve also submitted a letter asking the panel to reconsider its action:

The decision by the Planning Commission to "consent" to the issuance of Non-Conforming Use Certificates [was] based on the "facts at hand", yet no facts were on hand, and no facts were in the public record.

The group also is objecting to amended rules adopted by the panel that make it extremely onerous for citizens to appeal TVR permits, contrary to the intent of the law passed by the Council. The process now requires citizens to:

1. File an appeal of the TVR NUC permit (or annual re-issuance?), but only if you reside within 50 yards of the TVR.
2. BTW, your appeal is really not an “appeal,” it’s a request for revocation of the TVR permit.
3. After having filed your Petition to Appeal (or is it Revoke?) there will be a hearing in front of a Commission Panel where you are required to present evidence such as:
_ Providing a sworn affidavit
_ Bringing witnesses
_ Providing proof (photos, advertisements, building permit records, etc)
_ Documenting instances of disturbances
_ Providing written, audio, video, or photographic evidence, police reports, etc.
4. Or…you can, as you should probably have done in the first place, hire an attorney at considerable cost to you.

How is it that the burden of proof documenting illegal activity of TVRs has now shifted from government to enforce the law, to the public who is then forced into going through the process outlined above?

It seems that we’re going about things all wrong here on Kauai. Before we attempt to overhaul our ag land classification system and TVR regulations, we really need to overhaul our planning department. Otherwise, we’re never going to properly sort things out.

That ball is squarely in Mayor Carvalho’s court. Or to use a metaphor that’s more familiar to him, is he gonna run with the ball or punt?


Anonymous said...

"I’m no attorney, but it seems the process of regulating such units could include saying they are not allowed at all unless they are associated with a farm use."

I knew you weren't an attorney because a prohibition based on criteria that something must be "associated with farm use" is one giant loophole big enough to drive anything through.

Joan Conrow said...

Hawaii Revised Statues Chapter 205, adopted in 1976, already prohibits any housing but farm dwellings on land zoned for agriculture.

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.”

Anonymous said...

carvalho has the ball is right; lets hope he doesn't dribble it off his foot.

Anonymous said...

"in the absence of a bonafide farming operation."

Is a meditation room wherein meditation in a darkened room to channel positive growing energy to help grow healthy crops a "bonafide farming operation"? How might a government official determine if someone is sleeping rather than meditating?

Anonymous said...

"provided that overnight accommodations shall not be permitted.”

What is this overnight? When does night begin? When does night end? Is the length of night seasonal? If one leaves for a time between the beginning of and end of night, and then returns has an accommodation been provided?

Anonymous said...

August 15, 2009 2:41 PM
August 15, 2009 3:06 PM

Trying to justify your illegal ag TVR? When common sense fails and greed prevails then condition are ripe for a bumper crop of lawsuits.

Anonymous said...

"Trying to justify your illegal ag TVR? When common sense fails and greed prevails then condition are ripe for a bumper crop of lawsuits."

Does asking questions imply I have an illegal TVR? Is trying to help plants grow with directed positive thoughts greedy? Are the laws based upon common sense?

Anonymous said...

I think we should definately allow transcient vacation rentals on ag land. All ag land. Little resorts on ag land.
An amusing thought: Imagine what would happen if our entire farmlands become infected with some unknown plant disease, and we lost all our crops? Hey, at least we'd still have our precious little vacation rentals. That's right! More vacation rentals...

Anonymous said...

That ball is squarely in Mayor Carvalho’s court. Or to use a metaphor that’s more familiar to him, is he gonna run with the ball or punt?

You mean to mix a metaphor! Maybe he's going to punt the ball from his court for a home run!