Thursday, June 24, 2010

Musings: Bogus

So the public hearing on ag land vacation rentals was held.

On the public’s side were citizens — people who took time out of their day, unpaid, to attend.

The vacation rental owners sent their paid property managers and attorneys, including three from Belles, Graham, Proudfoot, Wilson & Chun — all of them formerly in the county’s employ. You would think one attorney could have spoken for all the firm’s clients, but then, all three couldn’t have racked up billable hours. The owners, apparently, were too busy to attend themselves. More likely, they live off island or are part of an investment consortium.

Unless Councilwoman Lani Kawahara has the courage to break free of Councilman Tim Bynum’s spell, or bill-pushers Tim and Councilman Jay Furfaro have dream epiphanies, this bogus bill is gonna go through.

The day before, the planning commission approved a bogus “farm dwelling” at Sea Cliff Plantation that will cover nearly half an acre — almost as much as the one acre of turf the owners plan to have someone “farm” for them.

The owners, Steven and Diane Dechka, were assisted in this charade by the Commissioners, of course, and also Rep. Roland Sagum. It was all so blatant that even Commission Chair Caven Raco couldn’t resist saying something about it, right after Commissioner Camilla Matsumoto had the nerve to say the state was having problems enforcing farm dwelling compliance, like the county has no responsibility in the matter.

“You know what I’m thinking, right? It’s kinda funny ... and perhaps it’s a coincidence, that the applicant has representation from somebody that has power in the Legislature,” said Raco, referring to Sagum.

Ho, ho, ho. Yeah, funny like a heart attack, seeing how some of our bogus lawmakers are bought and sold.

Meanwhile, Aunty Louise Sausen came on KKCR yesterday, trying to raise $5,000 to defend against a bogus lawsuit filed by Joe Brescia. He’s suing her, and others, for alleged damages stemming from alleged civil conspiracy, vandalism and terroristic threatening and other offenses for opposing the spec house he's building atop ancient burials at Naue.

“A lot of us guys in the front line have to go with what’s thrown at us and we look at you as the backbone,” she told listeners. “I stood up not just for myself, but all of you and future generations. I hope you can kokua me in my time of need.”

Aunty Louise’s attorney, Harold Bronstein, is volunteering his time, but money is needed to pay for depositions, court filings and other expenses. So her husband, Papa Sau, has made a surfboard that will be auctioned off to raise money. She’s also looking for donations, which can be sent to her at PO Box 944 Hanalei, 96714. Or contact her at

“The precedent on Naue is a big thing,” Aunty Louise said. “Now we have another place besides Honokahua [the mass burial ground uncovered to build the Ritz Carlton Kapalua on Mau] to look at and say, ‘this is what we don’t want.’”

You can be sure Brescia, who has made a tidy fortune developing and flipping properties here on Kauai, won’t be holding a bake sale to finance his legal vendetta.

Unfortunately, he’s not the only one trying to frighten people into silence. The developers of the two Coconut Marketplace resorts that the county approved without even requiring an Environmental Impact Statement — and Judge Kathleen Watanabe upheld — aggressively came after Aunty Nani Rogers for legal fees, even though the case was headed for an appeal.

But if she would agree to drop the appeal, the developers’ attorneys told her, they wouldn’t press for the legal fees. Problem is, Nani wasn’t the only plaintiff — Kauai’s Thousand Friends also had to go along. And because they were worried about the prospect of Nani losing her house, they did.

So the appeal got dropped and the two resorts are now free to move forward — if and when the economy picks up again — even though concerns about burials, traffic and other environmental issues have not been explored or addressed.

Just a few more bogus incidents in what is rapidly becoming a bogus paradise for the rich.


Mel Rapozo said...

Unfortunately I was in court yesterday and could not attend the public hearing. I will be at the committee meeting(s) to strongly oppose the TVR on Ag bill. I have testified at the Planning Commission as well as at the Council. They simply do not listen. Except for Kaipo and Derek, this Council is supporting this illegal bill. I am hopeful that enough people will stand up and be counted. This is a blatant attempt to circumvent State law, even though the Attorney General has stated that the County cannot allow TVRs on ag lands. This is a very bad precedent to set. Rather than do the right thing, and lobby the State to change their laws, this Council is attempting to violate State law using a County ordinance as the vehicle to do so. This is not good.

Anonymous said...

See "More, More, More" my comment of June 23, 2010 4:12 PM.

Our kung fu is stronger...

Anonymous said...

He who knows and accepts how the game is played and has the leverage to manage the political and legal systems to his advantage wins.

Romance (with "old Kauai") without finance ain't got a chance.

The makeover continues.

Wahine Warrior said...

These "makeover" comments are ridiculous. The writer of them needs a makeover him or herself.

AS for the meeting I was there, and testified in opposition to it. Its always hard for me to go against people i generally like, but I am starting to do it more and more. It gets easier everytime you do it.

I refuse to agree to something that will do nothing but give loopholes to the "I cant grow an orange by the ocean so I need to have a vacation rental" crowd.

Nothing made me see more steam at that meeting then that particular testifier. When I got up to testify I was really not a happy camper. I was really incredulous that we could even be talking about such an enormous loophole for these people.

This is called "makeover" is going to backfire bigtime. Kauai knows how to do its own makeovers. They work really well. They are called "Iniki, Iwa, floods and tsunamis, high winds, ect". Kauai does its own makeovers thank you.

We do not need some mainland hick quacks to do it for us.

Anonymous said...

Wahine...Time for the "Locals" to take resposibility for what has happened on is your fault.

Anonymous said...

the leverage to manage the political and legal systems to his advantage
why don't you say what you really mean, he who has the money to buy off our corrupt public oficials?

wahine warrior said...

I have been fighting against stuff like this for almost 20 years.

The problem is that people do NOT listen to what people like me say. Thats the problem. They only listen to MONEY. Or to lawyers.

Anonymous said...

Notice how the county legislates in pieces. First the county will make the ordinance to say the law is just for those that already applied and its only a set amount.
But after it passes(if the corruption continues unabated) a whole new crop of landowners will come in and say their rights were violated because TVR's on ag land was not permissible under the ordinance, and they want a chance to apply , it's only fair after all... to avoid another 500 lawsuits they will have to amend the law again.

This council cannot be unseated quick enough.

Anonymous said...

Is anyone interested in actually reading the AG opinion? Mel like Joan only shares the parts of the opinion/story that suports their position. Acts of omission.

Anonymous said...

Is anyone interested in actually reading the AG opinion? Mel like Joan only shares the parts of the opinion/story that suports their position. Acts of omission.

Anonymous said...

The Hawaii State Attorney General’s 2009 opinion, so often cited by opponents of AG TVRs, does not say that transient vacation rentals are prohibited on lands in the State Land Use Agricultural district and recognizes the Special Permit process for “unusual and reasonable uses”.

Anonymous said...

"the county has no responsibility in the matter"

OMG you got something right, oh, no I just read you WRONG. The jurisdiction you are refering to is with the State Department of Agriculture, see enabling legislation under 205. good luck, you know, reading...

Anonymous said...

Aloha Mr. Sagum,
As a resident of Kauai and an enthusiast of reputable politics I would like to try to understand your tendency to testify before county boards on behalf of private interests.
This is the second time I have witnessed this type of action by you and noticed that you are the only legislator that takes this freedom.
Could you please clarify because you are on the publicʻs dime. Paid by us. And you are supposed to be representing the residents, through the mandates of our laws, not the loopholes. But it just doesnʻt feel or appear that way.
There are many of us who are curious and call it influence peddling; so exactly what do you offer as services for these people or are you a lobbyist?
I look forward to your reply.

Since June 19, I have resent this email 4Xʻs with no reply.

Do I need to file a complaint with the governorʻs liaison over here?
Would anybody else like to give a try because I believe he is too important to hear only from me.

Joan Conrow said...

OMG you got something right, oh, no I just read you WRONG. The jurisdiction you are refering to is with the State Department of Agriculture, see enabling legislation under 205. good luck, you know, reading...

Your comment is so rude it doesn't deserve a reply, yet so wrong I feel compelled to provide one. The county very clearly has review, oversight and enforcement responsibilities under 205:

§205-12 Enforcement. The appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted by the land use commission and the restriction on use and the condition relating to agricultural districts under section 205-4.5 and shall report to the commission all violations. [L 1963, c 205, pt of §2; Supp, §98H-12; HRS §205-12; am L 1976, c 199, §2]

Anonymous said...


Can you respond to the entire AG opinion (did you read it?)including the part regarding "unusual and reasonable use"? The Kauai does not anticipate using the accesory use provisions.

Anonymous said...

a vacation rental is not unusual and reasonable use

Anonymous said...

To Anonymous June 24, 2010 9:51 PM:

I don't think you read the entire opinion. If you did, you don't understand it. It is clear that the Attorney General agrees that in order for a use to be "unusual and reasonable," it has to be an exceptional circumstance that promotes the effectiveness and objectives of Chapter 205. TVRs do not promote Chapter 205.

Anonymous said...

gee, doesn't say anything about regulating or enforcing ag plans, now does it?

Anonymous said...

Chapter 205 is the enabling legislation that establishes the four land classifications. The bulk of it refers to Ag land but it is the enabling legislation for all four existing land classifications. It really has to be read without bias because it addresses the needs of landowners as well as the general public.

It states that the minimum lot size for a parcel of ag land is one acre. Pretty small for full time agriculture.

The definition of ag dwelling is really interesting because it defines an ag dwelling as "a single family residence located on and used in connection with a farm, ...or where agricultural activity provides income to the family occupying the dwelling."
You don't have to make money on a farm to qualify the single family residence as a farm dwelling. The common definition of farm doesn't have reference to making money.

I think that the part about ag tourism and the county needing to establish rules relates to farm tours rather than short term rentals. Short term rentals refers more to the definition of single family dwelling rather than ag tourism although short term rental clients are primarily tourists.

The American flag represents protection of private property interest as well as promoting investment. It's going take quite a trim tab to turn that oil tanker.

Joan Conrow said...

Can you respond to the entire AG opinion (did you read it?)including the part regarding "unusual and reasonable use"? The Kauai does not anticipate using the accesory use provisions.

Yes, I read it back in April when I did a post on it.

I think these excerpts sum it up well:

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)

The law clearly requires counties to consider the impact of such uses on agriculture. As the opinion notes:

And we are not aware of any justification for a B&B or TVR as being compatible with any other agricultural use or activity.

Btw, if you're interested in various takes on the farm dwelling/ag TVR issue, check out the article I did for Honolulu Weekly. I wrote it two years ago, and nothing has really changed.

wahine warrior said...

Give me one acre of land, I could do a LOT of agriculture on it.

But then, ag lands do not go to people like me, who can actually farm, know what to plant and where and how to ammend the soil and make things grow.

It goes to rich greedy fake so called "farmers", who come here, don't know what the heck they are doing, fail, and then cry and moan that they HAVE to have a vacation rental, or they can not possibly make it!!

What a ridiculous, unfair farce.

Anonymous said...

You can rent a plot of land for $7 a month at the Malama Kauai Community garden to farm to your heart's delight - instead of just hating the people who have land.
And if this TVR law is passed, expect a lot of those evil rich landowners to be opening their farms to local people who want to use the land for farming - that would be a good result.
The actual AG opinion states "it appears that the Legislature intended the proviso to apply only to
agricultural tourism, rather than prohibit all B&Bs and TVRs in agricultural districts."

charley foster said...

The actual AG opinion states "it appears that the Legislature intended the proviso to apply only to
agricultural tourism, rather than prohibit all B&Bs and TVRs in agricultural districts."

That is true, and that was going to be the headline of a post I'm working on about the AG opinion. If the copy I've got will hold up for one more scan I will post it online.

Joan Conrow said...

Thanks, Charley, I was hoping you would post it since I don't know how to post PDFs.

In the meantime, I'm reminded of the Clash lyrics:

"to understand what's right and wrong the lawyers work in shifts...."

charley foster said...

Sandinista! was a great album. So was London Calling. Combat Rock was disappointing.

Anonymous said...

"Give me one acre of land, I could do a LOT of agriculture on it."
Rent an acre, prove yourself. There are operations out there where the "rich" landowner is providing the land and partners are providing the skills to reclaim loi and produce ag goods for the island.
The landowners are also infusing the island with tax dollars that keep the infrastructure afloat.
Without those taxes we regular people lose services such as the handi van, police and trash pickup.
Embrace those people and their dollars and see what good neighbors they can be.

Joan Conrow said...

How interesting. Perhaps you could provide us with the names of these landowners, or information on how people can hook up with them. If you don't want to do so publicly, you can always send me an email at eastsidegrrrl at yahoo.

Anonymous said...

To rent garden land ....

more coming.

Anonymous said...

"How interesting. Perhaps you could provide us with the names of these landowners, or information on how people can hook up with them."
Sorry, but that's not my place to intrude what my be others private affairs.
Just let it be said that there are options and creative solutions being attempted.

Farming not Smarming said...

Not YOUR land, not a loan, not to work and sweat for SOMEONE ELSE to benefit. There are those of us myself included who already did that. It is called PLANTATIONS. Remember those?
You are telling me, all of these rich landowners are going to LEASE me land? Guess what. For me to actually do FARMING on a scale where it will make money, I need capital. Start up funds. I need equipment, I need soil ammendments, and I need the crop, break lines and irrigation. Guess what? You can't get Federal loans for that stuff unless YOU are the landowner in most cases.
And just to also set the record straight, a community garden is NOT A FARM!! It is not an agricultural business in the sense of ACRERAGE!!
It is useful productive, I am one hundred support of it. BUT, again we are talking about FARMING and ACRERAGE. You are talking about apples and oranges.
And again, if these land owners lease the land, the leases put in the improvements, then loose their lease guess who benefits? The land owners. Thats who. WIthout having to bend their backs once or put their hands in the soil.
If the idea is to be a farmer on Kauai, then lease it out to others to do your work for you,and I can tell you that landowners will demand a share of the profits from what you will make, then that makes you a sharecropper.
It makes you essentially a farm worker. An employee. Someone whose sweat equity will only go to benefit someone else. Its not your land. Its not even your crop. You will owe a good portion of what you grow to the owner. Who will use that profit to prove that HE IS a farmer. Because of YOUR hard work. After the out of pocket expenses YOU will incur from windbreaks, and all other start up costs associated with start up farming, since that is exactly what each lesee would have to do, then you will not be making much depending on what your crop is or how many years it takes to get your crop in. Truck farming is a fast turn around, but replanting is expensive and requires labor.
Lesees would not be able to house their workers. Because they are not the land owner. Where is the water coming from? Will the owner provide the wells? Will irrigation lines be set? Will each lesee need to build and their own wells? What structures will be allowed on each parcel? They would have to get their labor from outside. There would be a huige scramble for labor. WHich is a good thing. However, what are you planting> will the market be flooded> What will the prices be set at? Where are the brokers?
In the past, land leases have been essentially for 2 ag operations. Taro farming, and cattle ranching.
Taro is easy to walk away with and let go fallow. ALso grazing is just that, grazing. Taro farming is very non intrusive to a property owner. Grazing to most landowners is not an issue, except with fencing.
What I am talking about is really working the land. Actually planting crops, turning the soil, and production. This requires more of an intrusive use and intensive agricultural use of the land. It is a lot harder for a landowner to get rid of laid irrigation, and planted feilds, then taro patches, or shutting the cows out. A lot of leased land has gone to grazing pastures for horses as well. Intensive farming is rarely allowed on leased land.
I am all for every single land owner leasing out land. Hell, If thats really happening I will be the first one in line. But I dont want to be some sharecropper, making money for the big Massah on de Hill in de fancy house with de swimming pool.

Anonymous said...

Not all of the land is good for farming, some of the land is best for grazing and some is better suited to tree farms or lettuce farms or whatever.

What the island really needs is the Important Agricultural Lands to be identified. This is only part of the solution but a big part of the picture.

Development and land use patterns based on actual highest and best use of the land and based on the needs of the community?


Anonymous said...

Give me 40 acres...

...and I'll turn this rig around!

Anonymous said...

I just love Wahine Warrior! So great your response to the "Let the makeover begin" guy. Although I know name calling is usually not the best way to go, I have to go one step further than your "hick quacks from the mainland" comment. I'm from the mainland, and over there we call them "knuckleheads!"

Wahine Warrior said...

OMG! A complement! *faints from shock!*

Ty anonymous...whoever u are!!
(psssssssst...farming not smarming is my evil twin! *wink*)

Anonymous said...

Farming not Smarming- It’s kinda hard to go into any business (farming IS a business) with no money. Having the knowhow and getting a land lease are, as you pointed out, only two of the many elements necessary to make a go of farming. This is what the sustainabiilies don’t get. They think it’s easy to take some land and grow enough food to support yourself and your family. Farming here in Hawaii is one of the most difficult ventures to do successfully. That’s why I tend to agree with some poster who said earlier that local farming for making Hawaii’s food needs independent of the mainland will never happen. There’s so much investment in time and money and the returns are iffy at best.

Anonymous said...

Mel! Maybe you should have asked the State’s Attorney General the right question.

It’s all about the definition of “TVR”. What is a TVR?

I recommend that if you think TVR’s on Ag land are illegal, try read eminent North shore attorney Charley Foster’s blog: Planet Kauai.


He gives an easy to understand reason why even the TVR’s on Ag land (or elsewhere prior to the enactment of Kauai Ordinance 864) were/are not operating illegally. The simple truth is that the State’s regulations (as well as the County’s) defined TVR’s as “multi-unit buildings”, such wording having been aimed at hotels, time shares, etc. The concept of single family transient rentals is not covered at all by State law. No matter what one would like to argue, that’s the way the law works. If it ain’t illegal, it’s legal. Kinda like snuff laced with opium a number of decades ago used to be legal.

HRS §514E-1: “"Transient vacation rentals" means rentals in a multi-unit building….”

So decrying the “illegality” of TVR’s on Ag land merely reveals one’s ignorance of the facts and the law.