HomeMy WebLinkAbout06/23/2010 Public Hearing re: Bill #2364PUBLIC HEARING
JUNE 23, 2010
A public hearing of the Council of the County of Kauai was called to order by
Jay Furfaro, Chair, Planning Committee, on Wednesday, June 23, 2010,
at 1:45 p.m. at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, and the
presence of the following was noted:
Honorable Tim Bynum
Honorable Dickie Chang
Honorable Jay Furfaro
Honorable Lani T. Kawahara
Honorable Bill "Kaipo" Asing, Council Chair
Excused: Honorable Daryl W. Kaneshiro
Honorable Derek S. K. Kawakami
The Clerk read the notice of the public hearing on the following:
BILL NO. 2364 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING
TO THE COMPREHENSIVE TONING ORDINANCE (Relating to
Single-Family Transient Vacation Rentals),
which was approved on first reading and ordered to print by the Council of the
County of Kauai on May 26, 2010, and published in The Garden Island newspaper
on June 7, 2010.
Mr. Furfaro: Before I start, I'm Jay Furfaro, I'm the chairman of
the planning committee of which this bill is being heard. We do have a special
guest in the audience. Brandon, would you mind coming up, introducing yourself?
He is here to earn his government and civics badge, I believe. Why don't you
introduce yourself real quick and tell us your intent. Please sit. Go ahead Brandon,
introduce yourself.
BRANDON IIDA: I'm $randon Iida.
Mr. Furfaro: Pull the mike a little closer to you, Brandon Iida.
Mr. Iida: My name is Brandon Iida. I'm in Boy Scouts
Troup 148. I'm taking the citizenship in the community badge.
z
Mr. Furfaro: Well, we're delighted to have you here for the
public hearing, and if I need to document your attendance, you let me know.
Please, you can go back to the audience. Thank you Brandon for being here.
I want to again share with the audience this is a public hearing, and during a
public hearing, we have an opportunity to take testimony from you on the bill, and
not necessarily as Councilmembers engaged in discussion, but rather, take
testimony during the public hearing. So that would be the point of today's hearing.
The following communications were received for the record:
1. Barbara Robeson, dated June 23, 2010
2. Marj Dente email, dated June 4, 2010
3. David R. Houston, dated June 23, 2010
4. Barney and Julie Feinblum email, dated June 23, 2010
5. Sky Roversi-Deal email, dated June 22, 2010
6. Chad Deal email, dated June 22, 2010
7. Lee Roversi and family email, dated June 22, 2010
8. Gerald Shinn email, dated June 22, 2010
9. Robin Lyons, dated June 22, 2010
10. James Piretti, dated June 22, 2010
11. Peter Giovale email, dated June 22, 2010
12. Michele Hughes email, dated June 22, 2010
13. Lorna A. Nishimitsu, Belles Graham Proudfoot Wilson & Chun, LLP,
dated June 21, 2010
14. George Volker (2), dated June 14, 2010 and June 21, 2010
The hearing proceeded as follows:
GUY CROYDEN: Good afternoon. My name is Guy Croyden. It's
nice to see all of you. I really didn't prepare for this; it's kind of a last minute thing.
I'm kind of surprised that I'm the first person speaking. But I'm just here to give
you my opinion on this bill. I believe that the bill as it is written, appears to me to
be a fair bill. In my opinion, the previous vacation rental bill was an over-reach
with respect to...excuse me...the provision pertaining to building violations.
Nowhere else in the State are businesses put out of business because they have a
structural violation. There's laws in place, State laws and county laws in place,
that already address that issue, and those are not grounds for putting a business
out of business. In my opinion, the grandfathering law that's in place that allowed
for vacation rentals to be grandfathered, the intent was to protect businesses that
were in place and legally doing business as a legal entity. And initially in the
process o£..as I watched the county council work on putting together the law, they
had pretty much a pretty good law, I thought, and it was in the eleventh hour, last
minute, a big change was added in, and I think it only was floored for a matter of an
hour maybe, and then it was pushed through. And in my opinion, I'm not an
l'
attorney or anything. I believe that the law as it stands is an over-reach, and it
puts out county at jeopardy for lawsuits. I would hope that the current council
would think fairly, as opposed to simply thinking in terms of what might be popular
in terms of garnishing votes or anything else like that. I know that sometimes
these issues come up and it's the popular thing to move one way or the other, but
one has to look at the law and think about fairness to the people that the law
affects. And I appreciate the time, and I wish my thoughts were a little more
organized, but I hope you understand where I'm coming from. Thank you very
much.
Mr. Furfaro: Chairman has a question for you.
Council Chair Asing: Yes, I... You make reference to the law, what you
call the law. Are you aware that there is a attorney general's opinion that it is
illegal to have vacation rentals on ag zoned lands? Are you aware of that opinion?
Mr. Croyden: You know, I'm not speaking particularly about the
ag zoning, but the provision that I'm focused on is the last minute change that was
amended on the original proposed law that caused...that basically stated that the
transient vacation rental had to be in accordance with all provisions of the law,
zoning ordinances, etc., etc., etc. And as far as my knowledge of the laws pertaining
to the vacation rentals on ag land, I don't know the particulars.
Council Chair Asing: Thank you, appreciate that.
Mr. Croyden: Thank you, Kaipo.
Mr. Furfaro: Mr. Clerk, before you call up the next speaker,
maybe I can have a minute just to encapsulate the purpose of today's public
hearing. First and foremost, the county's general plan implied, and it is a document
that should be reviewed every 10 years with the citizens, and I was fortunate to
serve on that committee as well before I was transferred to Tahiti. The reality is it
pointed out that certain transation...transient vacation rentals began operating
outside the visitor destination area. The county of Kauai has a visitor destination
area that permits this zoning. In 1999 there was a county attorney opinion that
was made public and often references...is referenced as the Kobayashi opinion, and
that opinion said, although there are zoning issues in place, the fact of the matter
that certain portions of the law really were directed at multifamily units outside the
VDA that did not qualify for vacation transient accommodations, and therefore, it is
recommended that the appropriate legislation action tighten up those
opinion...that opinion.
In 2002 and with the support of the chairman of the council, we funded a
stakeholders committee to review that issue within the county's general plan. And
the general plan did not come out and say to terminate it; it came out and said we
need to regulate it. There are some existing laws on the books, especially as they
related to agricultural lands, and there's two parts to this bill today. There is some
modifying processes that are in the hands of the planning commission that deal
with those units on residential land outside the vacation rental areas. And the
other particular piece that this addresses is the fact that vacation rentals are and
should not be allowed, according to some interpretations, on agricultural land. The
reference that was just recently made was made on a document submitted on
August 19, 2009, from the attorney general's office, of which five points were made.
This document was brought to our attention, and in fact, most oftenly is read
on two sections where activities by the land use commission control on vacation
rentals on ag land have some definition of accessory use, and I'll read the section
that is not often referred to in number 3, that the law allows special permits to be
issued for unusual and reasonable uses, although these items are not defined and
the potential impact of farm agricultural activities are not defined. The region that
this is relevant to is determining whether the use is unusual and reasonable and
consistent with the objectives of Chapter 205. There is no directive to the counties
to affirmatively analyze these special factors. But it also is noted that the county
can regulate activity in the ag zone that are under 15 acres. And my interpretation
of what the message was in the goals of the general plan was to draw a line in the
sand and go forward by restricting any further proliferation. This meant those
people, in my mind, who paid taxes both GET, the transient accommodation tax,
needed to demonstrate that they could apply for a special use permit that fell under
the unreasonable...the unusual and reasonable use of this land. That doesn't mean
that was the primary use of the transient vacation; it could be an accessory use.
Some people define accessory use as being the barn. Other people define accessory
use as the complement of revenue that goes against the farm, and it is certainly
recommended that farm activity exists. So it is the goal of this bill, in my opinion,
to draw the line, have everybody declare their position for those that were actually
operating legally prior to the March 7, 2008 date. So there's two parts in this public
hearing, and the piece that 1 read...just read to you is the short answer on page 2 of
the attorney general's commentary. We have often heard from others about item 1
and item 2. We have rarely heard about this exception in item 3 that I just read.
Item 3 further goes on in page 14 of this definition, it goes on to say there are some
classifications that need to be considered by special use permit that deal with fair
and reasonable use, and that may trigger a special use permit. So I wanted to make
sure that we all understood after we kind of got some distraction as to the purpose
of this bill.
The bill then came back to us with recommendations from the planning
commission that said that there should be some consideration, but farming activity
should be the primary function of that ag parcel, and the vacation rental use permit
should be considered a secondary use for the land, not a primary use. So I hope in a
quick scenario I've given you the highlights of what is in this piece. It is available.
I'm referencing item 3 as reported by the attorney general, and I'm also referencing
our general plan document whose intent was to stop the proliferation going forward
since the date we passed bill 864, okay. So we're not going to get into a lot of
dialogue, but I want to make sure, as some of you, the first time I've seen you here,
you needed to know what we're referencing, but also, it is your time to talk in terms
of your testimony in support or against this bill. So I think I got most of that
correct, mister attorney, if there's anything you want to clarify for me before I go on
to take public testimony. I'm directing... Were you okay with everything that I
said? To the county attorney's office... Were ,you okay with everything that I just...
AL CASTILLO, JR., County Attorney: I was.
Mr. Furfaro: Okay, and I'm seeing a couple of other deputy
attorneys acknowledging that in the back of the room. Okay. Thank you very much
for the courtesy. Mr. Chair...
Council Chair Asing: Yes. I have some objections to your, you know,
bringing out your analysis of the case and picking up different sections. And I
would hope that we would not get into that area. Now, my intent when I questioned
the original speaker was to the point, and when I make reference to the point, I'm
saying that the speaker mentioned the law, and I wanted the speaker to be aware of
the fact that there is an attorney general's opinion which I consider the law, and
that's the only reason I made reference to that and not going into detail about the
particular opinion. So I don't think that, you know, we should get into that depth,
because it is your opinion o£..and it is also your opinion of the general plan.
Now, the general plan is not law. The general plan is a guideline, so I want
to make that plain. When you make reference to the general plan, the general plan
is not law; it is merely a guideline and to be used as such, and stated in the general
plan's preference(sic) area. So thank you.
Mr. Furfaro: Mr. Chair, let me extend my apologies if you felt
that I breached the area, but I do need to share with you and I started in my
testimony, in previous testimony here, only the first two portions of this
general...the attorney general's opinion had ever been read into the record. I just
wanted to make that clear. And secondly, the general plan is a ordinance which is
voted on, so... On that note, I extend my apologies to the chair if I breached my
role, but let's move on to the public testimony.
THOMAS BEEBE: Aloha. Good afternoon members of the council.
I've come today as I have on previous occasions... I'm sorry, my name is Thomas
Beebe, and I manage a vacation rental on the north shore that is on agriculture
land. My interest in this topic is is my livelihood, but I also believe that we're all
seeking a fair solution to this problem, and it seems like there are many nuances
that complicate it, one of which, of course, if the dedication of agriculture land, and
what areas are ag land and why they're ag land, and if it's realistic to farm on these
lands. The property that I manage is not suitable for agriculture-the soil is
terrible, the exposure to the ocean makes it very salty. I've been nurturing an
orchard on this property for 9 years now, and I have trouble producing good fruit.
It's expensive. Amendments are expensive. But the property, when... I don't own
the property, but as I said, I manage it, and when the owner purchased the
property, he purchased it from somebody who had an ag dedication, so there was a
commitment to agriculture through that dedication, and I've done my utmost over
the years to try to fulfill that, and also in hopes that there will be a fair solution to
this ongoing problem that have been aware for years.
So I'm here today just to express my strong desire for a solution. This bill
seems like a good solution. There's certainly...I think more important than just
solving it right now is reevaluating our agriculture lands and deciding where it's
realistic to grow food for the island or wherever, and where there are other uses
that, you know, they can be valuable to the island. I feel that over the many years
that I've met and greeted visitors from the mainland, I've given them an experience,
given them fruit, although sour citrus sometimes, I've given them a great
experience sharing my love and knowledge of Hawaii and Kauai, and I feel that it
would be a loss if vacation rentals, especially in rural areas, were made illegal. I
understand that officially some opinions are that they are already illegal, but we've
paid taxes for many years and we've done what we could to follow the letters of'the
law, and I believe that the fair solution would be to grandfather in the existing
vacation rentals and to...as Mr. Furfaro said, to stop the proliferation. So I hope
you'll consider a solution that is reasonable.
Mr. Furfaro: Excuse me, are you aware that the State has
mandated a review of important agricultural lands currently, and we do have a
committee appointed working with the planning department to make some
recommendation? Are you aware of the important ag land activities?
Mr. Beebe: I am. Yeah, I'm eagerly awaiting the results.
Mr. Furfaro: Thank you. Thank you for your testimony, and
we'll call the next speaker.
JONATHAN CHUN: Good afternoon Mr. Chair and members of the
council. I'd just like to offer my short comments in support of the proposed bill. Oh,
my name is Jonathan Chun. Thanks. Just like to offer my short comments in
support of the proposed bill. This bill, while not perfect in any regards, it's a good
effort at a compromise. It doesn't make anybody...everybody happy; there are some
people that coin to "I think it doesn't go far enough, one way or the other." But I
recognize it for what it is-it is a fair compromise to allow persons that have
property on ag land, existing...existing TVRs on ag land, to at least have a fair
forum to decide whether they should continue or not, and that's all we're asking.
From the very beginning, on the client...the clients that I've been representing;
y
that's all we've been asking, just a fair opportunity to show that we have been doing
a TVR for the past so many years, even before the bill was...original bill was
passed, and that is a fair situation for the neighborhood. It doesn't guarantee...this
bill does not guarantee that they will get the TVR, but it gives them a forum, and
that's all we're asking-to give them a chance to present their story and their
position in a fair tribunal. And that's why I reason, on behalf of my clients, we will
support...we do support this bill. I am open to any questions if the council
may have.
Mr. Furfaro: Mr. Bynum.
Mr. Bynum: Mr. Chun...
Mr. Chun: Yes.
Mr. Bynum: Yeah, I...what I recall of your testimony and
for 864 was repeatedly you coming and and saying not that we should allow TVRs
on ag but that people who are currently existing should have an opportunity for due
process to determine whether they are legal under State law.
Mr. Chun: Correct.
Mr. Bynum: Have I got that correct?
Mr. Chun: Yes, and that's been our position...at least my
position all along in my testimony in front of the council. We're not...this does not
open the door to any new people. That door was closed when the original ordinance
was passed. All we're saying is that people who have been doing TVRs in the past
before the ordinance...the original 864 was passed, they should be given an
opportunity to show that they are a valid use that should be allowed in the ag
district. If through this process the commission and ultimately the courts decide no,
then so be it. That's what the proper answer should be.
Mr. Bynum: So this bill does accomplish that-allowing people
to apply and go through the process at the planning commission.
Mr. Chun: Yes.
Mr. Bynum: And the process that they go through will have to
determine whether their use is legal under State law, is that correct?
Mr. Chun: Correct. Under this proposed ordinance, they'll
have to show, at a minimum, at a minimum that is a fair...unusual and reasonable
use under ag...in the ag district.
s
Mr. Bynum: And so in your opinion this bill does not legalize
vacation rentals on agricultural land.
Mr. Chun: No. It does not open the door to new issues. It just
allows them to apply for a State special permit.
Mr. Bynum: Because the county does not have the authority to
override the State law, right?
Mr. Chun: No.
Mr. Bynum: Okay, are you familiar...
Mr. Chun: In deference to the county attorney, but I don't
believe the answer would be yes.
Mr. Bynum: In your opinion,...I'm asking your opinion.
Mr. Furfaro: Excuse me, Mr. Bynum, (inaudible) also I would
like to stay very true to the fact that this is, rather than a Q&A period for us, I will
allow a few questions, but not to have dialogues specifically at this public hearing,
but to let the public speak.
Mr. Bynum: I'm asking the witness his opinion, so...
Mr. Furfaro: I don't think he's a witness. I think he's here for a
public testimony.
Mr. Bynum: Well, the testifier, excuse me. Yeah, we didn't
swear you in.
Mr. Chun: Thank you.
Mr. Bynum: Are you familiar with the attorney general's
opinion that's been referenced here today?
Mr. Chun: Yes, I've read that, and I believe the
Councilmembers have also read that.
Mr. Bynum: And in your opinion, does that... does that opinion
from the attorney general say that all transient vacation rentals on ag land
are illegal?
Mr. Chun: I would probably defer to the county attorney on
the proper interpretation and reading of that attorney general opinion. I really
~r
don't want to... In all deference to you, Councilmember Bynum, I don't think...I
don't think the council should listen to one way or the other what my opinion is on
that, but I think the county attorney's opinion would matter in terms of what the
attorney general said or did not say in his opinion.
Mr. Bynum: Okay, thank you.
AL CASTILLO, JR., County Attorney: Council Chair, may I make a comment
regarding... I know we've been discussing the opinion on the attorney general's
opinion, and you know, I would caution everyone here to understand that that is an
opinion. And right now, what's been...what is happening is I wouldn't want anyone
one person to be picking out any phrase or any sentence that would bolster your
argument. I think I would like to...for this body to hear testimony, rather than
everyone talking about the opinion or some case law or statute. I think that is in
the province of my office and if the council wants guidance regarding the law, then I
will be able to do that and guide the council in executive session. Thank you.
Mr. Furfaro: To the county attorney, I would honor your request.
I just felt, and I would like to point out, that after the first person that testified and
the fact that previous people have read from...testif"iers have read from portions of
the attorney general's statement, I felt it was important to summarize the purpose
of this public hearing, and we will attempt to stay on target with the
public's testimony.
Mr. Chun: Thank you Mr. Chair... I mean I have the opinion,
but like you said, you know, we can pick out portions one way or the other, you
know, to support what I have to say or to, you know, or to against what other people
have to...you know, but that... Is that constructive, you know, and I think at this
point in time really, the best thing if you have questions is to consult the county
attorney on that.
Mr. Furfaro: Well, since the county attorney is my attorney and
represents others, but I think it was important to point out that there is that
interpretation. I believe this is a public document.
Mr. Chun: Right, and that's fine. I mean I just said from my
perspective on that question from Councilman Bynum, you know, I didn't want to
get involved in that kind of discussion.
Mr. Bynum: Thank you.
Mr. Chun: Thanks.
Mr. Furfaro: Thank you. Does anybody else have any questions
for Mr. Chun? No? Jonathan, thank you very much. The next speaker please.
io
Mr. Chun: Thank you very much, Chair.
LORNA NISHIMITSU: Good afternoon Council Chair and members of the
council. I previously submitted like a 4-page letter, and I'm not going to read it into
the record. I just want to summarize our support bases, you know, on behalf of our
clients for this draft bill. What happened two years ago was we have a special
permit process and a use permit process so that people could apply to the planning
commission to do uses that their lands were not outright classified for or zoned for,
and the ordinance removed the right only as to this class of ag TVR operators to
apply for a special permit and a use permit. And we support your attempt to allow
them to go through the vetting process with the planning commission. You know,
the planning commission will consider the testimony of neighbors and other people
about whether there are impacts created by these proposed uses, and will vet those
impacts and try to mitigate them through conditions. You are giving them no
greater rights than Kapa`a Middle School had when it applied for its permit to put
up the middle school on ag land, because there's nowhere in this State where
schools are outright permitted. Many of our churches have to go through the special
and use permit process because there aren't enough zoned lands that are large
enough that allow those unusual and reasonable uses. And that's all we're asking
that this council support, give them the right, not all of them will make it.
And the second thing, the most important thing is, these people who are
engaging in ag TVR uses will also have to engage in agricultural activities, because
the lands are classified agriculture. The only request we had made was to do a little
revision on the draft language, because if you have a lot that is less than 5 acres in
size, you cannot immediately petition the real property division for dedicating that
lot. They consider it too small, unless you have five consecutive years of engaging in
that same agricultural activity and proof that you've engaged in it. So you
might...what you would do is you would foreclose some people who have been
engaging in agricultural activity but haven't reached the level of dedication yet. I
also have a client who is doing agricultural activity on the common element of an
agricultural CPR, because the limited common element where the home is located is
too small and too sloped to engage in that. Real property rules do not allow
dedication of the common element, even if the association of homeowners is fine,
you know, go ahead and do your ag use and dedicate it. So we just ask that as long
there is a non-dedicable agricultural activity, that these TVR operators also be
allowed to apply for the special permit and go through the hearing process with the
planning commission. Thank you.
Ms. Kawahara: If I had specific questions on two of her items?
Mr. Furfaro: Yes, if you had a question for her.
~i
Ms. Kawahara: Is that okay? You know, your... are you... In your
letter to us, your testimony, I'm having a hard time understanding. Are you
comparing schools and churches to TVRs, saying they have equal...equal weight as
a reasonable use?
Ms. Nishimitsu: I am saying that there are certain uses which are
not outright permitted under zoning and land use laws, and in order for them to get
established, they do have to go through the public hearing process and get the
special and use permits from our planning commission, and sometimes the land use
commission if the lot in question is more than 15 acres. I'm not saying they're the
same kind of use. The planning commission will make the decision about whether
each proponent's application proposes an unusual and reasonable use for that
particular locale.
Ms. Kawahara: Okay. Is there...what does commercialization play
in any of that?
Ms. Nishimitsu: Well, commercialism plays into anything where
rent, I guess, is collected, which also involves long-term rental of agricultural
homes, and this... You know, nothing is being done...you know, that's kind of like a
silent thing; nobody wants to deal with that. But the fact that rental income is
collected from rental of the homes is no different than income that is collected from
the sale of agricultural products. I mean it's, you know, this society is driven by
economics, and I guess the difference is the amount of money, and I don't know how
this council would want...if this council would want to get a handle on that and try
to regulate how much money can be earned from rental of homes, rental of
commercial buildings, or sales of agricultural products.
Ms. Kawahara: Okay, and the second question was I noticed you
were talking .about the comment element and the limited common element. So
you're asking us to consider allowing the CPR that decides to put, like in Po`ipu
they have their little turf farm yeah, and the CPR'd lands or all the other little
parts that don't do the turf. So you're saying... You know, the bill right now only
the little part of that whole CPR lot would be allowed for common use and
dedication, but you're asking for every single lot that's in that CPR that doesn't
happen to have that little turf on it to be considered.
Ms. Nishimitsu: I think what would have to happen is that the
planning commission would listen to the testimony about who is engaging in the
agricultural activity on the common element, with the consent of the association,
and who is deriving the income from that agricultural activity, if...and determine
whether under all of those circumstances it is fair and reasonable to allow that TVR
operator to get a special permit to engage in transient vacation rental use, because
that agricultural activity on the common element is linked to that particular limited
common element.
~.
Ms. Kawahara: Okay, because we've had...common elements been
brought up before, and they're very...I'm...I just have serious reservations about
common elements on CPRs for ag. So I just wanted to clarify that that's what
you're talking about, is allowing that common element to be used as a part of the
dedication for each...
Ms. Nishimitsu: For all of the limited common... I think the owner
or the applicant for the special permit has to have satisfactory evidence for the
planning commission to agree that that agricultural activity on the common
element is linked to that limited common element, not that it's going to give
everybody else a free ride into getting a special permit for the transient vacation
rental activity.
Ms. Kawahara: Okay, thank you Vice Chair.
Mr. Furfaro: You're quite welcome. Is there anymore questions?
Lorna, thank you very much for your testimony. Next speaker please.
GEORGE VOLKER: Good afternoon council, my name is George Volker.
With your permission, I would like to read from my two letters that I've submitted
as testimony regarding this. They're short; they're a page each.
Mr. Furfaro: I will extend you a total of 6 minutes for your
testimony. Go right ahead.
Mr. Volker: My first letter is dated June 14, last week. Dear
Council Chair Asing and Councilmembers, in the interest of preserving our
agricultural lands and supporting our existing visitor industry, I wish to express my
opposition to bill number 2364 which proposes to allow transient vacation rentals to
operate on State agricultural lands. Ostensibly, bill number 2364 is intended to
correct shortcomings of ordinance number 864 with regards to nonconforming TVRs
operating on agricultural land. However, ordinance number 864 needs no
amending and is correct as it stands. Pursuant...quote, pursuant to HRS
chapter 205, no nonconforming use certificate shall be issued for any single family
transient vacation rental located on land designated agricultural by State law.
That's from ordinance number 864.
Ordinance number 864 does provide for instances where, quote, the applicant
has a special permit under Hawaii Revised Statutes section 205.6 which specifically
permits a vacation rental, and the permit was secured prior to the enactment of this
ordinance. That's in our existing ordinance number 864. It is bill number 2364
with its aim to give legitimacy to prior illegal use, which runs afoul of both HRS
chapter 205 and the county mandated farm dwelling agreement. The farm dwelling
agreement clearly precludes owners from using a farm dwelling as a transient
~a
vacation rental. Also, like ordinance number 864, the farm dwelling agreement
acknowledges special permits if they were granted. And most important, the farm
dwelling agreement requires that the farm dwelling owner indemnify and hold the
county of Kauai harmless from any and all claims. This is a recorded agreement
that becomes a covenant which runs with the land.
Bill number 2364 is merely a ploy to legitimize illegal vacation rentals on ag
land in the guise of amending, quote, particular provisions, unquote, of ordinance
number 864. Bill number 2364 violates the purpose and intent of HRS chapter 205
and violates the mandates of the farm dwelling agreement. It defeats the use of
State agricultural lands for agricultural purposes, and it diverts visitors away from
visitor destination areas and away from existing legitimate transient vacation
rentals. This bill does not serve the best interest of Kauai. I urge the council to
vote no on bill number 2364.
Then in my second letter dated June 21, this is more addressing my own
personal observations regarding transient vacation rentals on ag land. Dear
Council Chair Asing and Councilmembers. As stated in my previous letter dated
June 14, 2010, I oppose bill number 2364. My opposition to this bill stems from
both the legal standpoint and from my own personal experience. In 1999 my wife
and I purchased unit one of an undeveloped 3-unit agricultural CPR. We planned to
build a house, retire, and supplement our retirement income with produce raised on
this unit. We cleared the land, put in a road, water lines, utilities; and built a
modest 2-bedroom home. Since then, the other two units have been bought and sold
three times each. The current owners of the other two units both operate illegal
transient vacation rentals. These owners have never consulted us or asked for our
permission.
Blissful waters on unit 2 is a two-story 4-bedroom house with pool that rents
for $400 per night. Dilly dally on unit 3 consists of a two-story house, guesthouse,
and pool, and boasts four accommodations ranging from $115 to $185 per night.
That's a total of $620 per night. Neither the house nor the guesthouse has a
certificate of occupancy. In May 2008, I approached the other two owners as a
co-owner and citing ordinance number 864, asked them to stop operating their
illegal TVRs. One owner immediately called me a bad neighbor, and the other
owner asked if I was drunk. Both of these owners continue to operate their illegal
TVRs, both now live on the mainland. For the last two years, my wife and I have
endured a relentless onslaught of tourists, construction crews,. film crews, wedding
receptions, birthday parties, and large family gathering complete with sound bands
and live DJs. We have listened to a continuous parade of rental cars coming and
going day and night, loud voices, door slams, car alarms, and parties late into the
night. We have had to install signs and a chain just to keep cars from turning
around in our front yard.
,~
In July 2008, I filed a complaint with the county planning department. I filed
a second complaint in April 2010. As of today, both TVRs continue to advertise and
operate. Transient vacation rentals to do not belong on agricultural land. They are
disruptive to the rural community. They encourage land speculation at the expense
of local land ownership.
Mr. Furfaro: Excuse me just a second. That's the 6-minute
notice, but I'm going to let you continue please.
Mr. Volker: One sentence. They do not support the use of land
for agricultural purposes. I urge the council to vote no on bill number 2364.
Mr. Furfaro: Thank you very much, especially for both of your
written testimonies. May I ask, within your 3-unit CPR, are there no covenants
amongst the individual lot owners that deal with noise (inaudible).
Mr. Volker: The condominium documents do, you know,
prohibit illegal use. If I wanted to pursue that in a civil matter if I had the
wherewithal, I could.
Mr. Furfaro: You've answered my question. I just wanted to
make sure that we do know that within the documents of those CPRs there are
various conditions in each association.
Mr. Volker: Yeah, they're prohibited from engaging in illegal
activities, which doesn't seem to deter them at all.
Mr. Furfaro: I appreciate your written testimony, George. Let
me see if there's any further questions.
Mr. Bynum: Thanks for your testimony, George.
Mr. Volker: You're welcome.
Ms. Kawahara: I wanted to thank you, because you actually sent in
a real life farm dwelling agreement in your testimony.
Mr. Volker: Yeah, my own.
Ms. Kawahara: Yeah. If I could, I'm not sure how this got to us, if
you dropped it off yourself?
Mr. Volker: I did.
~;
Ms. Kawahara: Oh, okay, because I would have wanted to contact
you, but I'm glad you're here. So if next time you can put information on the
documents that you send in. I looked you up in the phone book, though, and was
going to call you.
Mr. Volker: You can.
Ms. Kawahara: Okay.
Mr. Volker: Thank you.
Mr. Furfaro: Next speaker I believe is Shawn Smith, am
I correct?
SFIAWN SMITH: Good afternoon. Shawn Smith. I'm just here...I
won't go...I won't need your 6 minutes, I won't even need your 3 minutes. Just here
to put my name on the list of being in support for this. I'm just going to reiterate a
couple other people that came up and said that the things that I just want to point
out is there was a vessel for people who have done this and who have done this for a
long time, who have paid their. taxes and are supplementing the economy to
continue. And like Lorna said, there's still many obstacles those people have to
face-going in front of the planning commission, getting approvals there, and like
Jay mentioned, waiting for the important ag lands, is a very strong component that
we have to wait to see, and also there's still many things that can happen. But let
the people that have been contributing to the island on so many different areas of
the economic side of it continue. They do it the right way. They fill out all the
paperwork. They do it legally. They should be allowed to continue. And as the
gentleman before me sat through, it doesn't make a difference who's in the house
next to you. You very well could live next to a family who's just as loud. It's unfair
to say that people visiting are the ones that are making all the noise. I live next to
a family that makes noise all the time, and they live here fulitime. So I don't...I
hate to throw that emotional side into it in any kind of deliberation. So I hope that
we can all kind of sit down to a fair and just solution. There's a lot of wonderful
families here who not only live on the mainland part-time, but also live here and
rent their properties, and it's an important survival tool for them, as well as all the
other families that are involved in their production of their business. Thank you.
Mr. Furfaro: Thank you. Annie, you're next I believe.
ANNE PUNOHU: Aloha. My name is Anne Punohu for the record.
I'm going to talk about how I personally feel about this, and some of my own
personal experiences, and why sometimes I get really angry. When somebody
comes up and says they can't grow an orange tree so they get to have a vacation
rental... if that guy would have called me, I could have farmed his land and given
him a ton of crops in 6 months. But nobody calls me for land, do they? If I had had
,~
a piece of land to farm for the last 30 something odd years that I have lived here
and I could have been able to put my hands in the soil and I could have been able to
do what I do best. You know, I could have been able to much better support my
family and raise my part-Hawaiian children much easier than I've had to do for the
last many years. But like everybody else, because I didn't own land and I couldn't
afford it and I was working for plantation and other things after the hurricane, I
had to go work for K-Mart or for Costco or for the hotel or in tourism. I'm kind of
really upset right now because I think it is so unfair that people like myself cannot
produce the food that this island could use to be completely self-supportive when
there are people sitting behind me who have all the advantages and all the benefits
and have the land but were too incompetent as a farmer to make the land work.
The land on the beachside is very fertile if you know how to farm and if you know
what to farm. My only acception(sic) to people being able to do activities on
agricultural and to have people come is for one purpose and one purpose only, and
I've made this statement very many times-for education, for cultural reasons. If
you're a kalo farmer, you should be able to have people come on your land and learn
how to perpetuate the...because I'm a taro farmer. All my entire family grow kalo.
It is so important. That is something that is worthy, valuable, important, and when
I read this bill and it said, you know, an unusual purpose or whatever that was so
unusual, that was the one thing that I thought I could agree with is that yes, that is
unusual, and that is important to have the culture represented well in agriculture
and the right for people to come on the property and to learn how to perpetuate it.
And in my opinion, if I had land, I would plant ulu, I would plant lauhala because
we need to have our own weavers here, I would wauke because we are getting
overrun with tapa from everywhere else in Polynesia... There is value to that, yes.
There is no value, in my mind, of having people buy the land that they should be
farming for the express purpose of having it be a little blessing waters, whatever,
thing to put up. I don't agree with that. Aloha no.
Mr. Furfaro: Thank you Ann. The next speaker I believe is
Lonnie Sykes(sic).
LONNIE SYKOS: Good afternoon. For the record, my name is Lonnie
Sykos. I moved to Kauai 7 years ago. I have been and I am a farmer, and I also
have been and I am engaged in agriculture. And there was a truth spoken by a
housewife in Illinois which was printed in the Garden Island in 6/10 of this year,
which is what prompted me to come speak today. Everyone is doing it, that's just
politics in Illinois, nobody knows right from wrong because everyone is doing it and
getting away with it. Mrs. McGowen quoted is a self-described housewife.
Everyone is doing it. I lived in Hana, Maui, for 25 years. My calabash aunt sold me
her home in her ahupua`a, and for $50,000 I was in ag business. I took a chainsaw
and I cut 5 acres of guava and African tulip trees down on the most marginal land
you can imagine and created a very successful tropical flower business. Lie number
one about everybody is doing it is small parcels of land and parcels of land that are
not declared as prime land are unsuited for agriculture. The truth of the matter is,
in this State today, almost all diversified agriculture takes place on marginal lands
because there's no good land available. Just like on Kauai, you have hundreds of
thousands of acres, I think, tens of thousands of acres of prime ag land sitting there
and the ag businesses are forced into the marginal lands. If you want to kill
agriculture entirely, then make the value of the land based on the value of using the
land not for agriculture.
I have a question for the county council which I don't expect them to answer,
because it drives to the heart of the legal issues in this. A statement first, as a
taxpayer, these people that have TVRs on ag land, if I understand correctly, they
need hotel zoning. I don't understand correctly. They need some type of a zoning to
engage in a business activity that is not agriculture. You cannot engage not in an
agricultural business on ag land. Part of the issue here is are the term farming and
agriculture synonyms.
Mr. Furfaro: Lonnie, that's 3 minutes, but I'll let you continue.
Mr. Sykos: And I'll wrap this up. If they're synonyms, then
when you mow your yard you're engaged in agriculture. Right? Oh, and thank you.
I was very impressed by everything that you had to say. When I was farming, when
I owned my house, Iwrote-off the packing shed that I built in my carport, I
wrote-off the land that I actually used, Iwrote-off the improvements engaged in
agriculture, but because I had an outside job and my wife at the time had an outside
job, we could not write-off the bedrooms. We could not write-off the living room.
They were not solely for agriculture; it was our home. So to me, looking at this
issue, the county needs to decide, which is a huge legal issue, can you build on ag
land improvements that are not related to agriculture. And then when you say,
well geez what is that mean, my observation is the ultimate arbiter in this is State
law, federal law, and federal tax law. And so when I was farming in another county
and in other States, we were never led to believe that we could go create
non-agricultural improvements on land that that was prohibited on, and if you
wanted to make improvements, you needed to be able to write them off. And so my
question for the county is, shouldn't everything that is an improvement on ag zoned
land be part of a business, therefore, should it not be a business expense? And it's
up to the IRS and the owner as to why the owner would choose not to claim the
exemption on their taxes. This cuts to the heart of all the homes that were built on
ag land, and the people that...even if you have a $35,000 cash flow, right, are you
going to go in front of the IRS and justify writing the mortgage and all your farm
expenses and all that in which your business plan doesn't show you're going to be
making $350,000 in a few years to justify it. And so for all the taxpayers, for
everybody who's not doing this, we get stolen from us the opportunity to engage in
agriculture, and the land and the ability to engage in agriculture has ended up in
the financial pockets of the people not conducting agriculture. Real war going on
here, and the war is between whether there will be small agriculture in the future,
or whether all the land will sit here waiting for its best use, which is single family
,q
dwellings. So thank you. You guys inherited a horrible tough issue to deal with. I
apprec...even though I disagree with you all at times about things, I hold you all in
the highest regard for being willing to sit here and take the heat in public. Right`?
God bless you all in these very difficult decisions you have to make.
Mr. Furfaro: Lonnie, thank you for your testimony. Let me see if
there's anybody have any questions. And I think you did hit on the fact that, you
know, the Hawaii administrative rules are very, very vague in many of these areas.
Mr. Sykos: Oh absolutely.
Mr. Furfaro: And we find ourselves needing to come to this...
Mr. Sykos: Cleaning up a long history of events.
Mr. Furfaro: Let me see if there's any questions. None`? Lonnie,
thank you very much.
Mr. Sykos: Thank you very much.
DAN HEMPEY: Good afternoon members of the council. My name
is Dan Hempey. As you know from previous incarnations of this bill, I represent
KAVA, which stands for the Kauai Alternative Vacation Accommodation
Association, and they asked me to come and express their support for this bill, and
I'il keep it very short as well. We've previously submitted lots of written testimony
with respect to this bill's predecessors, and also the current ordinance, and so we
would incorporate that. You've heard our legal arguments ad nauseum at this
point. Just at this point we'd like to say we support the bill because we believe it's
fair and it's the right public policy, and it also will make county law consistent with
State law. And we believe it's fair, because it simply would give people an
opportunity to apply for a special use permit under State law. We're not saying
they get the permits here today; we're saying they can apply and make the case
under State law that they ought to be able to continue their pre-existing use as
connected with a farm.
Mr. Furfaro: Excuse me. Thank you for clarifying that there is
no intent for any approvals today. The intent is they can demonstrate their case to
the planning commission...
Mr. Hempey: Exactly.
Mr. Furfaro: ... on this bill.
Mr. Hempey: Exactly.
Mr. Furfaro: I just want to clarify for (inaudible).
Mr. Hempey: And that's what I'm trying to say as well-we're not
approving any. We're not asking to approve any TVR today, and in fact you've
clearly limited any possible approvals to TVRs that existed prior to the...
Mr. Furfaro: March 7th date.
Mr. Hempey: Right, under 864. And finally, we think it's good
policy because it promotes farming, and that's the point. You know, we're talking
about a limited number of transient vacation rentals -that existed before 864, and
it's our position that allowing them is much... How to put this? Promoting farming
and allowing them to continue farming, which is supple....when they need the
income supplement for a TVR is a good policy. The point is it's...we believe it'll
allow to promote farming, it will create farm employment, and that's more
important than legislating who sleeps upstairs. That's all.
Mr. Furfaro: Mr. Hempey, let me see if anybody has any
questions. Councilwoman Kawahara, you had a question? Go ahead.
Ms. Kawahara: Thank you, yes. When you say it promotes
farming, I just...we've just been hearing people come up saying they have TVRs and
they can't farm. Is there a ratio of how much is income comes in from the TVR
versus how much income comes in from the farming that makes it allowable?
Mr. Hempey: I think that's what needs to be put before planning,
if you pass this, when people apply, so the planning commission can make an
informed decision-is this really a farm, or is it a TVR in disguise. What I vision,
and I hope it's right if this passes, is that those relatively few people that were
running TVRs before are going to need employees to work the farm, and because
they can do both at this point; and they'll be able to afford it.
Ms. Kawahara: Okay, so there's no real way of saying that the
farming has to have more income than the TVR.
Mr. Hempey: It seems to me. I mean I certainly can't speak for
everybody at KAVA, but it seems to me that's a case by case basis, and I think we
got to trust our bureaucrats to look at it and make a decision whether this is a scam
application or a real application. But again, my position is here coming here and
saying we believe it supports farming, and it's also fair, and a lot of these people
started...let's face it, a lot of people started TVRing after a previous county attorney
put in writing that that was okay.
Ms. Kawahara: Okay, thank you.
Mr. Furfaro: Is there anyone who has not testified for the first
time that would like to testify now? If there...Barbara, please come up, and could
the staff get other people to sign up? This would be the last opportunity f'or those
that are here to add on.
BARBARA ROBESON: Thank you Councilmember Furfaro, and I'm sorry
this is incorrectly addressed; I have the procedure incorrect.
Mr. Furfaro: No, it's quite alright. My office is right next door to
his, so...
Ms. Robeson: Groat, very good. Barbara Robeson testifying again
today on behalf of protect our neighborhood `ohana, which is comprised of residents
living in the Wainiha and Ha`ena area. And again, providing rele... as I've testified
recently, providing relevant and informed testimony is very difficult without
knowing what the true motive behind this bill is. Hopefully throughout this process
as it moves forward, many of these question and assumptions that I currently have
will be answered. First I'd like to talk about the original purpose of the bill 864
and 870...we11, 864 as of March 7th 08 stated... it described the purpose of that
particular bill as, quote, single family transient vacation rentals are occurring at a
greater rate and inflicting a larger impact on the community of Kauai than was
ever anticipated in the county's original CZO. The uncontrolled proliferation of
vacation rentals in residential and other areas outside the visitor destination areas
is causing significant negative impacts to certain residential neighborhoods. And
the purpose of the bill is to promote a high quality of life for all people on this island
to preserve the residential character of the neighborhoods.
So my question is, how does this proposed new bill support the original
purpose? On March 10, 2010, the cover letter for bill 2355, which resurrected the
existing transient vacation bill ordinance, stated the intent was to, quote, clarify
standards and permit processes for regulating alternative visitor accommodation
structures and operations in residential, agricultural, open, and resort zoning
districts...that was clarify standards. But when bill 2355 appeared on the April 27,
2010 planning commission agenda, it stated that the bill related to the
improvement of standards to regulate alternative visitor accommodations and
structures within the agricultural, open, residential districts outside of the
designated VDAs. So which is? Is it to clarify, or is it to improve the standards,
and how does this new bill specifically accomplish this? The justification and the
details should be provided to the public, and how can major deletions of the portions
of the current bill, the one that's in effect right now, achieve the goals that I
previously outlined?
We believe this proposed bill is premature, and to avoid the further...to
further compounding of existing problems, we believe that a county audit should be
conducted before moving forward. An audit could include the following actions:
z!
investigate the process whereby the current TVR applications and permits were
researched, and document how the information was verified before those TVR,s was
approved, and also disclose any internal issues and/or problems that should be
solved or corrected before moving forward.
Next, identify any errors and omissions that occurred as part of the
procedures and processes for approving current TVRs, if such procedures exist. And
finally, clean up any existing problems before further complicating them, before
compounding current errors, and before increasing the complexity of enforcement on
applications that, for example, submitted false and/or incorrect information.
The conclusion-solve the problems first before creating new ones.
I've also attached my testimony as of March 17, 2010 which contains
comments and questions on this topic, and then I do have some additional questions
that I hope as this process moves forward that you Councilmembers will address
and answer. Number one, what is the true motive behind the current bill? Number
two, who drafted the original March 10, 2010 bill 2355? Number three, how will
this new bill clarify standards and the permit processes? Four, how many new
TVRs will this bill create that are outside the VDA? Five, can a new TVR
application have a building, zoning, flood, and SMA violation and still get a new
transient vacation rental nonconforming use permit? Six, how will this bill ensure
that new TVR applicants don't provide false information on their applications and
sworn affidavits? Seven, how much longer will the general public continue to
subsidize alternative visitor accommodations, i.e., TVRs currently don't pay
commercial property taxes or commercial rates for county services. I know that was
addressed a month ago in this meeting, but still, it's on the front burner. And
number eight, are TVRs spot-zoning without a zoning change?
I think that's all, and I do thank you for the opportunity to testify.
Mr. Furfaro: Barbara, I want to say that I didn't have the last
page, the one you were reading from. So...and I don't promise response to you at
today's meeting, but I never got the questions you read from.
Ms. Robeson: Can I give them to you in the future?
Mr. Furfaro: Absolutely. You can do that. Barbara, and I want
to thank you for pointing out that the question about property taxes are in fact in
my comment last month, I think I made it publicly...
Ms. Robeson: Correct.
r, ~~~
Mr. Furfaro: I am working with Steve Hunt basically to find out
at the conclusion of all of this that there may be a new tax category for those that
are successful.
Ms. Robeson: I'm going to keep bugging you.
Mr. Furfaro: Well, I would be glad to meet with you and Steve
Hunt over coffee, so that I can share with you what we're doing. But we have to
remember, it deals with a completely different chapter, and so we cannot commingle
(inaudible).
Ms. Robeson: Oh I know. I'm just putting it out there, as I
said before.
Mr. Furfaro: But I'll be glad to have a cup of coffee with you and
Steve Hunt.
Ms. Robeson: Thank you very much.
Mr. Furfaro: Let me see if there's any more questions.
Mr. Bynum.
Mr. Bynum: Barbara, thank you for your testimony, and I would
appreciate getting those, when you can, the questions in writing, because I was
trying to write them down and you were going quick.
Ms. Robeson: Oh no, I'll send them to you. If I can email, I'll do it
that way.
Mr. Bynum: Yes, please do, and but I did want to answer
a couple.
Ms. Robeson: Okay.
Mr. Furfaro: Excuse me. Before you do, I need to make a call at
three o'clock, and I'm going to ask the chair to run the meeting `till I come back. I
had a three o'clock quick conference call.
Mr. Bynum: I'll answer two, and then the first one you said...
Ms. Robeson: I can read them again.
Mr. Bynum: What was the motive...and I'm only for myself,
speaking for myself, okay. What was the motive for the bill? The motive for the bill
from my perspective is to make sure that the law is correctly applied. Okay, so I
-, 'i
wanted to answer that. The...regarding taxes, I just want to point out that last
term, as the last term came to a close, we had a comprehensive tax bill that we
worked on for many months that I supported that would have taxed according to
use as opposed to zoning. And so it would have accomplished taxing the use of any
zoning category as a vacation rental differently than it...as it currently is, and so I
think the... Those are the two that I remember that I can answer. And I also want
to take this opportunity to say that I have always agreed with most of the problem
statement related to transient vacation rentals. In the history of this there's been
moving testimony, including from George today, about difficulties that can occur
from transient vacation rentals. I agree with George that transient vacation rentals
should not be happening on agricultural lands, and as of March 7, 2008, no new
vacation rentals on agriculture lands will be created legally. This whole discussion
is what do we do about the people who ordered their economic life around what
clearly as the status quo prior to the council finally answering that question,
because the problem was glaringly apparent in 2000. Why did it take until 2008 to
regulate going forward. So that...but I...so I agree with much of the problem
statement, and I'm glad that we have brought some clarity on at least this issue.
And then regarding agriculture lands, there is, in my opinion, very little
clarity about what you can and cannot do. And if I should be fortunate enough to
remain on this council, I intend to systematically try to address and bring truth and
clarity into our land use policies, because clearly in many instances, that does not
exist now. But I do believe that this bill was a step in that direction...the bill...the
original bill that finally said, from this point on, here's some clarity. And I hope
that the community has clarity that you cannot create a vacation rental outside of
the VDA on ag land or residential or any other zoning category unless it's in that
designated visit... So thank you for allowing me to use this opportunity to answer a
couple questions, and also make a statement. Thank you.
Mr. Furfaro: Okay. And Barb, I will attempt to answer those
questions. Thank you.
Ms. Robeson: I'll send them to you.
Mr. Furfaro: Thank you. I have four more speakers, and I just
want to confirm that there's nobody else that... This is the third opportunity to sign
up. If not, we're going to call up Chad Deal.
CHAD DEAL: Aloha Council, Council Chair and councilman and
one councilwoman. My name is Chad Deal. I could probably sit here for a week or
two and discuss this with you. I would love to. I have...I come from both a personal
standpoint, also business standpoint, but I would like to say that in... I am in
support of this bill because I feel that it does allow for the fair treatment of both
pre-existing and ones that are no longer to be allowed on ag land, the TVRs on ag
~,.C
land. As I said, I can get into a whole personal thing, which I won't do, because I
don't think that's what we're here for today.
Mr. Furfaro: And you only have six minutes.
Mr. Deal: And I only have six minutes, so I'm going to take
less than six minutes and I'll call it quits right now and just say that I am for this
bill, I think it treats everyone fairly, and it allows for regulations, and it treats each
one on their own individual level because they will have to go in and apply for a
permit if they have been pre-existing. I'd like it to go further and say that... I'll
take this another 30 seconds or so. I don't feel that it's right to limit it to just those
that have been doing TVRs on ag land. I think...I've traveled around the world and
I know as many of you have. I've also stayed on farms, active farms, where they
have supplemented their income through tourism. My daughter just spent
Christmas, last Christmas, in Italy and she was put in charge of the baking for the
farm, which had 60 people staying on this farm, an agro-tourism farm in Italy. So it
exists around the world. I think it's a wonderful opportunity for people who are
coming to our island to enjoy the ruralness of the island, and the lifestyle, and to
interact with local people, rather than staying in a designated tourism area. That's
all I have to say, unless anyone has any questions.
Mr. Furfaro: Chad, let me ask that question...
Mr. Deal: Yes sir.
Mr. Furfaro: ...if there is anyone that has questions of Chad? If
not, thank you very much for your testimony.
Mr. Deal: Thank you very much for your time...and you have
a very difficult decision.
CAREN DIAMOND: Good afternoon Council, Caren Diamond. I'm sure
by now you know that I do not support this bill. In my testimony today I am going
to address the parts that do not deal with the agriculture part, and because I think
that's the part that is so confusing. And you know, we have...this Council, the last
Council, had passed ordinance, you know, the TVR ordinance, and challenged the
planning department to implement it. What happened? Does anyone know? We've
had no transparency, no accountability, no ability to look at the records, no ability
to know who got approved, the rules never got approved, planning commission has
approved every single application that has come before them even though planning
department has given zero information along with the request; it just always says,
we recommend you approve these, and they all say, yeah, yeah, okay fine, we
approve. So if you're hoping that whatever you do here today has any meaning, give
up that hope. How can it happen (inaudible), unless you as the Council hold the
planning department to some kind of accountability. If there is no accountability,
~s
why do we continue on? So I think your job as the Council is to do an audit, see
what happened to the first part of this ordinance. How can you give them more to
do until you do that?
The north shore was one of the most spectacular areas in the entire planet. If
you guys talk about law and you talk about ordinances, the north shore was never a
resort, not ever. And if you look at the special management area, it has overriding
protections. If you're going to do a business in our residential area, you need a use
permit. So everyone who's here...not here today, but who is saying, oh yes we've
been legal all along, where is the use permit? There is a procedure available. I
don't see why this county is acting like their hands are tied.
Now the inspections seem problematic, so we take that out of the law. Okay.
No more. No need to have inspections. Okay, well the rules were problematic, so
we'll take that out. Okay, what was problematic to comply with the federal flood
ordinance. Okay, never mind, never mind. The CZO too, okay, why should we
bother complying with our county zoning ordinance? So what are we doing here?
Why bother writing any laws if there's no need to comply with any of them?
So to sum it up, the accumulated impacts to the north shore are devastating.
So if you approve this bill that's going to add more to it, what is that going to do to
the north shore? You guys think the north shore is an appropriate resort? You
think that the place that has tsunami warnings and has been devastated two times
in recent history is the place to put our visitors, and never mind the federal flood
ordinance? There is zoning, and the whole parameters of how we had our visitor
destination areas is in place, and if you wanted to do a resort unit, then there is
that use permit that we talked about that you could have gotten or could get. But I
don't support you changing the law as this bill is to just allow everyone and
everything to come in and essentially turn the north shore into one big resort,
because it is the north shore that is the most affected here. So I hope you will do
your due diligence-ask for an audit before expanding any other part of this
ordinance. Thank you.
Mr. Furfaro: Are there any questions? No? Thank you Caren.
Ken Taylor please.
KEN TAYLOR: Chair and members of the Council, my name is Ken
Taylor. I want to just say that I'm not in favor of this particular bill the way it's
written that it should move forward. I agree with the issues that were raised by
George and by Barbara and by Carol. I think it's time, I think it's time for the
County to start looking. I hear rhetoric all the time as we want to save agriculture.
Agriculture cannot afford to pay more than 10, 12, maybe $15,000 per acre at the
most. When you start allowing these kinds of activities on ag land, it raises the
price, the value of the land, to a point where a small farmer can't afford to exist. I
think that if you're going to consider moving forward with this bill, you should
Z~f'
include in it that... something like a minimum of 70 or 80 percent of the total income
off of that land should be derived from agricultural activities, minimum. That's
easy to verify. That's easy to take care of. If that's not happening, it's not an ag
operation, and what it really boils down to is that it's strictly somebody bought some
land and built some vacation rental opportunities on it. And so let's call a spade a
spade. If it's going to be ag land, let it be ag land...by percentage, major percentage,
and that the supplemental part of that ag land then be considered as vacation
rental, but not the other way around, not the majority of the income from that land
be vacation rental operation and the supplemental being agriculture. That doesn't
solve our problems at all. So I really hope that at this point in time you'll not move
forward with this bill as it's written. Take another look. I think it was Carol
indicated, and I think it was others also suggested, doing a complete audit of the
whole process as we are where we're at today. Then after the conclusion of that
audit, have the opportunity to digest it, look at it, and then possibly re-write this
document. Thank you.
Mr. Furfaro: Thank you Mr. Taylor. I would like to make note to
correct the record. I said that I have four sets of testimony, I have five. But I also
would like to indicate that if Caren said that she submitted testimony, I do not have
that, and could you tell me...you did not. Okay, thank you. And then the last
speaker we have for today is Mary Paterson, and I'm very sorry to have you as last,
but that's the way the sign-up sheet got to me; somebody's got to be last.
MARY PATERSON: Thank you very much for doing this very difficult
job. This is certainly not an easy topic. I'm actually...I'm just here as a bystander.
I've been on the island for 23 years. I've earned and tried to farm several... Oh,
excuse me, my name is Mary Paterson. I farmed a few small pieces of acreages, no
more than five acres. I know how difficult it is to do it. But I'm really thinking that
instead of looking back and blaming everybody that's been doing the thing maybe
illegally or not illegally, there's still some concern about which is which. I think we
need to look forward, and I think this bill does look forward at how to deal with
what we have and how to move forward and how to regulate those. The bill is not
saying it's opening the door to every ag nonconforming use that's wanting to do
vacation rentals. It very specifically says, we're only dealing with the ones that
have already applied. And so I think we should really approve the bill. I'm very
much in favor of it. I think Mr. Bynum's done an extraordinary job of trying to put
together a bill that pleases both sides, which I think is a very difficult thing to do.
It's certainly not going to be easy for many of these nonconforming TVR
use...applicants to even get their nonconforming use approved, because there may
be things that are within their applications that are not going to pass some other
situation. But I think to me, though, the strangest thing is that a lot of these places
got a license to do business from the State, have been paying their taxes to the State
and the county all these years, and all of a sudden it's oh, you've been doing this
illegally. I don't quite understand how you can be given a license to do business in
one place, and then be told that it's illegal in the other, and the county's been using
fi
the money all this time. That confused me a little bit, and I'm sure maybe
somebody can answer that.
But anyway, I actually represent a lot of vacationers who come here, and so I
know a lot of them like to stay in places that are not necessarily within the VDA.
Bed & Breakfasts for instance, or some of the larger properties that are available to
them, many of which are actually on small acreage that have been CPR'd, and so
they're not in any position right now to do agriculture of pretty much any kind,
because it's either on a cliff or their house has taken up the flat lot space, whatever
the situation. There's many of those that I think need to be looked at as far as
being rezoned in the future. I know this bill doesn't address that, but I do think
that they should comply with any inspections, and that they should be given the
opportunity to apply for a special use permit, which is what this bill is all about.
So I would love to see... I agree with a lot of things on both sides that have
been stated here today. I really do. I respect both sides of the case, but instead of
looking back and seeing what's been done, I think we need to look forward at what's
going to be happening in the future, and I think that this bill goes a long way in
saying let's regulate what's here and let's not continue with the proliferation of
TVRs outside the VDA. So I really appreciate very much you being here, and I'm
willing to answer any questions you might have.
Mr. Furfaro: Thank you very much, Mary. I just want to make a
statement to clarify something. The taxes are all collected by the State. We get our
distributed share, but transient accommodation, general excise, go into the State
coffer, and then by legislative activity, they send us our share, which we almost
recently lost. So I just want to make sure we're square on that. And the fact of the
matter, this bill does not address bed & breakfasts, never did, and bed & breakfasts
are not here. And obviously, you know, we cannot stop the process of this bill here.
It's gotten on the agenda. It will be going to a committee for work, and hopefully at
that time we'll be able to respond to some of the questions that came up in today's
public hearing. But this will end the public hearing today on this item.
Ms. Paterson: Then if I may just rebut to your comment. There
seems to be to me that there needs to be some sort of a communication between the
State and the County. If you're applying for a permit and a license and your
property is on ag land and you're applying for a license that the county says isn't an
applicable use, then why would you be given the license? I don't understand that.
It seems like there's a breakdown in communication between...
Mr. Furfaro: I need to clarify my statement. The county does
have jurisdiction on items less than 15 acres that do not go to the land use
commission for zoning changes. So I'm sorry if I just kind if skimmed over that.
But I was really focusing on them. They collect taxes, and then they make a
distribution to us. Okay?
~r,~
Ms. Paterson: Did that...that didn't really answer that last
question that I had, did it?
Mr. Furfaro: I would like to say that I believe it did, as we get
into the working committee and we reference some of the things that came in the
county attorney's opinion, but it's really been something that by request of the
Chair, we hadn't planned to discuss today.
Ms. Paterson: I understand.
Mr. Furfaro: And so I'm trying to be as respectful as I can.
Ms. Paterson: Thank you.
Mr. Furfaro: But that would be part of the response to you-we
do have jurisdiction on parcels less than 15 acres.
Ms. Paterson: Okay, thank you, and thank you.
Mr. Furfaro: On that... You have a question, Mr. Bynum.
Mr. Bynum: Mary, thank you for your testimony. I appreciate
you looking forward, okay, because...and so I want to know, you're clear, though,
that this bill does not allow anyone to apply who can't demonstrate that they were
operating prior to March 7, 2008.
Ms. Paterson: Absolutely. I think that's the very clearest thing,
and that's why I think a lot of the other people are saying, this is just opening it up
to anybody applying for a nonconforming use, but it doesn't; it specifically says,
those people who've already been doing business for a certain period of time, and it
was prior to the March 2008...
Mr. Furfaro: March 7, 2008. We reiterated that a couple times.
Ms. Paterson: So it is not open. It's not open to everybody. It's
just a... Really, does anybody have any idea of how many numbers we're talking
about? It's not a huge quantity of applicants. I mean I'm not even sure if I know
what the number is, but it's not a huge amount, and if they're looked at case by case
basis, if there are some people who've been...submitted their applications and they
put false details on those, then absolutely they should be prosecuted. But those who
have legitimately tried to do their best and to follow the laws of paying taxes and
getting the permits and they've been doing it for this period of time, I personally feel
they should be grandfathered in, but I know that that's not part of this bill either.
L.
Mr. Bynum: Well, I wanted to thank you for your testimony and
that focus going future. And you answered my question about whether you're clear,
because I agree with you that going back and pointing fingers and blaming is not
productive. I think anybody who has followed this knows that there are plenty of
people who were dismayed at the notion that what they were doing was illegal,
because it was clearly the status quo. If there's a culprit here, in my opinion it's
government, because we never provided that clarity. And even when the problem
statement was clear, it took us 8 years.
Council Chair Asing:
Mr. Bynum:
now, okay.
Council Chair Asing:
than statements.
Mr. Chairman...
But I'm glad to hear you say that you're clear to
How about we stick to questions, rather
Mr. Furfaro: Excuse me, your time and question and the time
directed at Mary is finished. Thank you Mr. Bynum. Thank you Mr. Chair for the
reminder. Mary, I will let you go. And on that note, the only one that wanted to
raise their hand again who had not given extended over three minutes, Ann, you
may come up again, and I'd like to close the hearing after that.
Ms. Punohu: Okay. Aloha everybody. I'm not going to take six
minutes, but...
Mr. Furfaro: You're not going to get six minutes; you're going to
get another (inaudible)...
Ms. Punohu: Okay, so I'll just...
Mr. Furfaro: You got three.
Ms. Punohu: Okay, let me go then. Lani, remember how you
were talking about what constitutes farming, what kind of thing can we look at? In
my opinion, the more I hear about this, the more I think about it in my mind, the
connection between the farm worker housing bill and this bill is absolutely
connected. If these guys don't come in and they don't need farm worker and they
don't need farm worker labor, well then they're not farming, are they? Also too in
the farm worker bill, there is a limit as to what money...you set a limit already as to
what constitutes the need for agriculture labor. That way I think that that would
also be a good litmus test for this situation as well. Also too, there are federal
guidelines that clearly state what is ag, and what is not ag, and if you really have a
problem with it, I'll come out, I'll go out, and I'll tell you if they're doing ag or not.
I'll be happy to help you with that. Okay, aloha.
3m
Mr. Furfaro: 'T'hank you Ann. Is there anyone who I did not
extend more than three minutes that would like to speak a second time? Guy, you
can come up please.
Mr. Croyden: Yeah, I'm Guy Croyden, you saw me a minute
ago...or a few minutes ago. Just a couple of points. It's always alluded that all
these vacation rentals are owned by people from the mainland who don't even live
here and don't run their money in the county here, and that everyone that applied
for vacation rentals was approved. I agree-the due process that the planning
commission used to decide whether you agreed, or that whether you're legal or not
legal, was rather subjective. There was not real clear guidance or guidelines as to
determining, well is this proper use or not proper use. And just as many people
were hurt and disapproved as people who were approved. Maybe the numbers isn't
exactly the same, but there are people that are local families that got disapproved
because their structure was not in local compliance. And even that may have been
questionable. Either there was no outstanding violation, with the government
saying you're in violation of your structure, and you got disapproved. So it was very
subjective, and I just wanted to make it clear that I don't believe any other
businesses get shut down because they have a structural violation, without being
cited by the laws that pertain to structure violations, and allowed to fix the
violation. I also believe that, you know, it's not opening it up wide open to a
plethora of new vacation rentals starting out there. You know, there's a limited
number that were in business up to this point. And I also agree that, you know,
there's a real problem. We have enough land here on this island to do diversified
agriculture and probably support most of the State, but the big problem is the large
tracts of land are being held by corporations from the mainland and who knows
where else, and it's land that's fallow. You know, if the county really wants to
promote agriculture here, what they need to do is somehow craft bills to leverage
these big landowners. Rather than making new subdivisions and new tracts of land
and new...leverage them to allow the land to be farmed by people who want to farm.
I'm sure there's obviously lots of people who want to farm, but it has to be made
affordable; the land has to be made affordable. Only the people that own the big,
big tracts of land are the ones who are going to make it affordable. The little people
who are doing vacation rentals on their land to try and supplement their... not all of
them, but I know some, are trying to do farming. Whether they're doing vacation
rental or not is not going to make the big picture different here on Kauai. And I
also would like to see Kauai remain the way it is. Thank you.
Mr. Furfaro: That was your second three minutes for your
testimony. On that note, I am going to close this public hearing, and this will
appear on a future committee meeting with the planning committee. So that date is
tentatively set for July 7. Thank you very much. This public hearing is complete.
,,
There being no further testimony on this matter, the public hearing
adjourned at 3:27 p.m.
Respectfully submitted,
~~
PETER A. NAKAMURA
County Clerk
/ao