Wednesday, April 28, 2010

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.”


Anonymous said...

I am thinking about using farm interns channeling capabilities to help crops grow. The interns will rent "meditation spaces" for a "voluntary" fee where they meditate and visualize healthy crop growth.

Anonymous said...

Did you read the Mark Bennett Stuporferry opinion? AWESOME, and yet totally wrong...stand behind this one, great idea.

Anonymous said...

"He really should recuse himself from voting."

-- id


Anonymous said...

In the Superferry case, Lingle was telling Bennett what to say. Why juice an opinion to the chair of the Board of Ag about TVRs on ag land especially when it says you can't do it?

Anonymous said...

Did you read Thursdays paper? Tim lays on the crap about the county being liable if they don't allow the entire island to become a resort. So even though the state says it would be illegal for the county to approve vacation rental use in agricultural lands, the county still desparately wants to make our ag lands resort? Tim should lose the election on this kind of crap,
The people who built in ag, all were supposed to be building farm dwellings, unless they applied for and received a land use permit for operating a transient vacation rental, the county really does not have their hands tied the way they want us to believe. This is a political decision, one who's impact will hurt, not help the people of Kauai to maintain healthy farms and communities.
They opened the bill up for all, not just ag land, with no requirement for inspection, the county cannot inspect. This has been the worst county council ever,(except Derek) compounding matters, the planning commissioners fail to do their job.We hear it is behind the scenes threats from the county attorney, do what i say, or you will be personally liable, keeps them from deciding anything other than the way the county attorney wants them to decide. This is all done in the back room. Did you notice how every discussion and question happens in the guise of an executive session, no sunshine here at all. Commissioners Never have questions or discussion in front of the camera, and every time they come back, there is a quick motion to approve, no discussion in public. Nice the Attorney General does not keep his opinions secret like Kauai county attorney. And why is Paula the only one who makes the motions to approve these days. It's like a rigged game

Anonymous said...

why did the one guy have a toothpick in his mouth when he was talking?

Anonymous said...

Here's a great idea: WE SHOULD ALLOW VACATION RENTALS ONLY ON AG. LAND - No where else! That way we have them out of our neighborhoods, hidden from view, and wouldn't have to look at the damn things.......

Anonymous said...

Still would like to see the attorney general opinion. Why won't anyone make it available online?

Anonymous said...

Ask Tim Bynam to post it, he introduced the bill

Anonymous said...

So he is supposedly the only one in the whole county who had discovered the attorney general opinion? Palease. And even if that is true, why would he wait to "spring it" at the televised meeting instead of sometime during the last years this has been debated. Holding onto it and springing it at a meeting on TV is good theatre, but seems a divisive and poorly thought out tactic. Such a tactic does not seem consistent with good leadership.

Anonymous said...

I'd rather be wrong but indemnified of liability than right and exposed if things go south.

Not worth the risk.

If you think county councils are rough...try a contentious BOD at a condo association. Better have your ass covered there!

Anonymous said...

And to those who would say: "Then we should let lawyers run everything?", the answer is "they already do...didn't you get the memo?"

Anonymous said...

why would he wait to "spring it" at the televised meeting instead of sometime during the last years

Hello, the opinion was just rendered in 2009, not years before. What, you wanted him to go have a back room talk with the planners and their attorneys. Mel did it the right way, during the public testimony on this bill. mahalo Mel for bringing this opinion out in public.

Anonymous said...

"I'd rather be wrong but indemnified of liability than right and exposed if things go south."

The Council, like all other legislative bodies, has complete immunity.