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Posted at 12:50 p.m., Monday, April 23, 2007

Maui senators make position known on 'fake farms'

By EDWIN TANJI
The Maui News

HONOLULU — An attempt by state House members to protect agricultural lands by strictly defining ag subdivisions to prevent "fake farms" is expected to undergo a major rewriting today – if it survives a Senate-House conference committee at all.

Although none of the Maui County legislative delegation is on the conference committee that will take up an amended Senate Bill 1236, all three Maui senators sat in on the opening of the committee review Friday to make their position known.

"By all three of us sitting there, we made it well known that this is not acceptable to Maui County," said Sen. J. Kalani English, whose 6th District includes the agricultural areas of East Maui, Molokai and Lanai.

English said the amended version of SB 1236 set up by the House water/land and agriculture committees overturns all of Maui County's laws on managing agricultural lands, which includes existing county requirements for anyone building a home on agriculture-zoned land to provide a farm plan for ag use of the property.

Maui County also set up a sliding-scale policy for subdivisions of large tracts of agricultural land – as is occurring with former sugar plantation land around the state – to limit the number of small, 2-acre lots that could be created.

"Maui County is the only one that was able to establish a working land-use policy for farms, requiring a farm plan and having a planning inspector look at it," English told The Maui News. "It's been working for the most part."

Maui Reps. Mele Carroll and Angus McKelvey said they understand the intent of the bill is to preserve agricultural use of ag lands, but it achieves that goal by usurping all authority of counties to control land use and by putting existing ag land owners in a legal limbo.

"There is no grandfathering for those who are in compliance with county-approved uses of ag lands," said McKelvey. "It would make a lot of people illegal. That's why people started freaking out."

Since the House ag committee version of the bill was approved by the full House on third reading on April 4, there has been an explosion of protests to the Legislature from ag landowners who would be affected.

A key provision of the House version would establish a 5-acre minimum lot size for all subdivisions of agricultural lands. With no provision to allow existing lots of less then 5 acres, the proposed bill would mean smaller ag lots would be nonconforming and future use of those properties would be restricted.

The proposed bill also would require strict adherence to existing provisions of Hawaii Revised Statues 205 that the only buildings allowed on ag land would be "farm dwellings" or structures accessory to a farming activity. No guesthouses or other nonfarm buildings would be allowed.

A third provision in the House version would also have eliminated references to the state Land Study Bureau soil classification system that gives priority to protection of high-productivity lands and is less restrictive on land that is less productive.

Carroll, who is on the Committee on Water, Land, Ocean Resources & Hawaiian Affairs that approved the House version, said she believes the entire bill should be set aside.

"It should be, based on the home-rule issue. I do know that the language in the House draft wanted to address fake farms and encourage use of ag lands more for food production," she said.

"That being said, I think with Maui County going through a General Plan review, the Legislature should be waiting for that to be in place, and work with the county councils and community groups before doing a blanket law on these issues.

"The county should be able to work with the state on the issue of protection of our agricultural lands."

McKelvey said he can support the intention of preserving prime agricultural lands for food production and for biofuel production.

"They are addressing the issues, what they call the fake-farm phenomenon and that the fact that people are speculating, buying properties and building what they call 'farm dwellings' and selling the properties at market rates with no agricultural productivity, nothing going on," Mc-Kelvey said.

He said that is an issue with the thousands of acres of former Pioneer Mill lands that have been sold off across West Maui and are open for real estate development – even with Maui County's agricultural subdivision standards in place. But the House version of SB 1236 also would have barred existing use of properties, which would amount to an illegal "taking" of the property, he said.

McKelvey said he reviewed a "conference draft," a proposed revision of the bill that will be considered by the conference committee today and believes it resolves the major concerns. Among other things, it would grandfather existing properties, restore the soil classification standards and reallocate county authority over use of ag lands.

But English said he would oppose even the conference draft if it goes to the Senate for final approval.

"I'm not supporting what would undo all of my hard work over all the years. It would usurp home rule and undo all the work done when I was on the County Council," he said.

"The draft doesn't meet the needs of Maui. I really feel for the people who are in accord with all of the land-use laws that we put in place in the late '90s, and this comes up and simply abolishes all of that."

The conference draft does not address the concerns of existing family farmers who may wish at some point to subdivide their lands for their children, he said.

"I will be trying my best to make sure the bill doesn't survive in its current form. I'm working on an amendment to try to lessen the impact on the counties, to establish that if a county ordinance is in place as it is on Maui, the county ordinance is superior," he said.

Sen. Roz Baker, whose 5th District includes West Maui and South Maui regions with large blocks of open agricultural land, said the bill "is not going to come out of conference in that shape, and it may not come out of conference at all."

As a top Senate leader as chairwoman of the Senate Ways and Means Committee, Baker said she sees the House version of the bill interfering with county authority because legislators have not had cooperation from the Honolulu City Council in taking necessary steps to preserve agricultural lands.

"The Neighbor Island guys can work with their county councils and come to agreements on what needs to be done, but a lot of the same provisions they can't get the Honolulu City Council to do," she said.

The impetus for the severe restrictions on use of agricultural land was seen to be coming from House members in Windward Oahu districts, where there is heavy pressure on farm lands to be used for nonfarming purposes. When ag land can be used for residential purposes, an increased demand for similar land can sharply increase land values – pricing farm land out of the reach of farmers.

"There is a law of unintended consequences," Baker said. "I'm concerned that even if they may think this fixes a problem, this is something the counties ought to be doing."

The conference committee assigned SB 1236 is scheduled to convene at 4 p.m. today in the Capitol, Room 414. The Senate members are agricultural committee Chairman Russell Kokubun, Jill Tokuda and Sam Slom; House members are water/land committee Chairman Ken Ito, Agriculture Chairman Clift Tsuji, Pono Chong and Colleen Meyer.

For more Maui news, visit The Maui News.