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The Honolulu Advertiser
Posted on: Sunday, October 25, 2009

Kauai council extends ag land exception again

By Michael Levine
The Garden Island

LIHU‘E, Kauai — For the sixth time since the ‘ohana zoning amendment was first passed 20 years ago, the Kaua‘i County Council this week extended the window to acquire building permits for additional dwelling units on agricultural land.

The council debated the original purpose of the legislation, agreeing for the most part that “the intent of the bill has been lost.”

While many members said the sixth extension — for five full years, to Dec. 15, 2014 — should be the final one and spoke out against inappropriate land use, when it came time to vote, the measure passed unanimously Wendesday morning.

“This bill is not perfect,” said Council Vice Chair Jay Furfaro, who introduced the bill, noting that it is a difficult time to secure money through loans to perform infrastructure improvements. “This is the compassionate way to close the door.”

Council Chair Bill “Kaipo” Asing presented a detailed ADU history, which includes ordinances passed in March 1989, October 1991, December 1993, August 1996, November 1998, November 2006 and finally October 2009.

“Ag zoned lands should be for ag purposes, and we should keep that in mind,” Asing said, criticizing the original idea and all the subsequent extensions to it.

“What have we created?” he asked, referring to transient vacation rentals and second homes along Hanalei Bay.

Furfaro said he has no intent to revisit the issue in five years and he sees the extension as an “exit strategy” to help bring county law back into compliance with the General Plan.

“There is no way I can see that this will be justifiable in five more years,” Lani Kawahara said, urging those Kauaians who have waited 20 years to pick up their building permits to do whatever is necessary to complete the job before the 2014 deadline so they can provide housing for their descendants, because “this is the end.”

“Proliferation of de facto residential on ag lots was not good for Kaua‘i,” Tim Bynum said, admitting to personally living on ag land without operating a farm. He said the value of agricultural properties has “skyrocketed” to “astronomical” levels, pricing out working-class people. “We need to close these giant loopholes.”

Despite the criticism, all seven council members voted in favor of the extension.

“I don’t like it, I think it’s wrong, but I’ll go with it,” Asing said.

Only Derek Kawakami refused to rule out the possibility of another extension in 2014, saying that he has not heard any “horror stories” of ADU-eligible lots being “flipped” for big profits, even at the height of the most recent real estate boom. He said despite the fear of speculation and abuse — there are always people who will “let greed ruin it” — the American way is to “grant opportunity” to those who ask for it.

A request filed with the Kaua‘i Planning Department for the full list of the approximately 375 eligible landowners — those on lots that were already in existence at the end of 2006 and who had already completed their ADU Facilities Clearance Form by June 15, 2007 — was pending as of press time. Under state law, a response is due by Nov. 3.

Kapa‘a resident Glenn Mickens — whose name appears on the list, according to a preliminary review of the document — testified Wednesday morning that the entitlement should run with the family rather than with the land to prevent circumvention of the ordinance’s original intent and avoid the possibility of for-profit speculation.

Deputy County Attorney Ian Jung, who specializes in planning issues and advises the Kaua‘i Planning Commission, said Wednesday afternoon, “Generally speaking, when you have regulatory land use controls or entitlements, they run with the land” because “planning authorities can control the land and not the person.”

He said many large land transactions are designed around one investment company buying property, doing the legwork to obtain entitlements and permits, then selling the land for a higher price.

For example, a proposal earlier this year that would have tied a multi-year permit extension for a proposed development at Coco Palms in Wailua to the current owner and not allowed a transfer to any new investors was shot down by the Office of the County Attorney, Jung said, due to concerns about the legality of selective or discriminatory regulation and equal protection guarantees.

Instead, timeline restrictions in the form of sunset dates are often used to control and limit the extent and influence of an ordinance, permit or other entitlement, Jung said, by regulating a non-person in a non-discriminatory way.

Another bill for second reading was deferred for two weeks. A proposed ordinance that would create exemptions to existing shoreline setback legislation to ease the planning and permitting process for public projects was deferred after a potential amendment drew concern from the Office of the County Attorney.

Kawakami said the amendment would clarify that Bill No. 2319 is compliant with Special Management Area rules, and suggested waiting two weeks to perform due diligence.

County Attorney Al Castillo said while some county projects are time sensitive — one member of the public speculated that federal funding for big-ticket items like the multi-use coastal path could be at stake — a two-week delay would be acceptable.

For more information on the requested Planning Department list of ADU permit holders and other requests, visit www.kauaiworld.com/sunshine.