Monday, July 26, 2010


Chapter 205-6 of the Hawaii Revised Statutes defines the process for applicants to request a special permit for a use that is not permitted. Here is the process:

§205-6 Special permit.

(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition. Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment.

(b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur. The county planning commission shall notify the land use commission and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

(c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission.

d) Special permits for land the area of which is greater than fifteen acres or for lands designated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting the approval, including the adherence to representations made by the applicant.

(e) A copy of the decision, together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands designated as important agricultural lands, shall be transmitted to the land use commission within sixty days after the decision is rendered.

Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

(f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U. [L 1963, c 205, pt of §2; Supp, §98H-6; HRS §205-6; am L 1970, c 136, §1; am L 1976, c 4, §2; am L 1978, c 166, §1; am L 1979, c 221, §1; gen ch 1985; am L 1998, c 237, §6; am L 2005, c 183, §5]

Doubting the Attorney General?

If there is a question regarding the opinion, why wouldn't the Council seek a Declaratory Relief from the Circuit Court? Why the rush? Worried about a decision from the Court?

Declaratory relief refers to a judgment of a court which determines the rights of parties without orderin
g anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is seeking for an official declaration of the status of a matter in controversy. Optimally, the resolution of the rights of the parties involved will prevent further litigation.

Make sense? Why not do it? Have deals already been made?

Sunday, July 25, 2010


From The Garden Island newspaper (with my comments in red):

NAWILIWILI — The Kaua‘i County Council Planning Committee, after several deferrals, on Wednesday approved a controversial bill that would allow vacation rental owners to apply for non-conforming use permits.

The full council is expected to consider the legislation for final decision-making next week. Council Chair Asing and Councilmember Kawakami are the only 2 members expected to vote against this proposal.

“This bill is not about grandfathering TVRs. This bill is about allowing a process to apply (for a permit),” Planning Committee Chair Jay Furfaro said. There is no need for the County to "allow" a process as Chapter 205-6 of the Hawaii Revised Statutes clearly lays out the process for applying for a Special Use Permit for uses that are not permitted on ag lands.

Bill 2364, introduced by Councilman Tim Bynum, has been attracting a lot of attention since it passed first reading in May. Each time it had been up for discussion, community members have crowded the Nawiliwili council chambers.

The proposed bill was fashioned after Bill 2204, which in 2008 grandfathered TVRs that had been operating outside Visitor Destination Areas (Po‘ipu, Kapa‘a, Princeville) and had been paying general excise and hotel room taxes.

That legislation also barred new TVRs outside VDAs. If the vacation rental started operating after March 7, 2008, the owner is not allowed to apply for a non-conforming use permit.

The 2008 bill also prohibited TVRs in ag lands, regardless of how long the owners had been operating the vacation rentals. Because TVRs on ag lands are in direct conflict with Chapter 205 of the Hawaii Revised Statutes.

Bynum’s new bill would give those TVRs left out in 2008 a chance to now apply for a non-conforming use permit. The owners would still have to show they had been in operation prior to March 7, 2008, and meet many of the original requirements and some additional ones. Chapter 205 clearly states that TVRs on ag lands are an unpermitted use.

The new bill says the Planning Department “may physically inspect” the TVR, whereas the original one made it a mandatory requirement. Many who oppose the bill feel the removal of the mandatory requirement weakens the bill. This proposed bill also removes any and all requirements for the applicant to be in compliance with local, state and federal laws.

But the new bill requires TVRs in ag lands to prove that bona fide agricultural operations existed prior to the cut-off date, unless the Planning Department finds that intensive agricultural activities were inhibited by a set of factors. Unless the applicant can convince the Planning Commission that they cannot farm on the lands. This is the most subjective criteria I have ever seen. Can you imagine what will happen to our ag lands if this passes?

Opponents of the bill say it’s illegal to have TVRs on ag land, even if they have been paying transient accommodation taxes.

Many, like former Councilman Mel Rapozo, have questioned why some bill supporters keep relying on an interpretation of an opinion made in 2000 by then-County Attorney Blaine Kobayashi, despite a 2008 opinion from Attorney General Mark Bennett interpreting operation of TVRs in ag lands as illegal. The Kobayashi Opinion did not address ag lands. They keep bringing up this opinion even though they know that is did not refer to ag lands. It was requested because the County Zoning Ordinance didn't state that single family dwellings were not allowed as TVRs outside of the VDA, so therefore they could not be excluded. Chapter 205 EXPRESSLY PROHIBITS TVRs on ag lands.

“Apparently, nobody is concerned with the attorney general’s opinion,” Rapozo said.

Bill supporters say owners have been paying taxes for years, and it’s only fair that they receive the same treatment as other TVRs operating outside VDAs. Chapter 205 prohibits the activity. They have been paying taxes on an illegal activity, therefore they have no right to the same treatment that legal operators have.

The meeting drew many TVR owners and employees in person. In prior meetings, owners had sent real estate representatives and lawyers to testify on their behalf.

Major land owners, such as Michelle Hughes, and several owners of TVRs in small Condominium Property Regime lots testified on behalf of TVRs in ag lands, arguing compliance with the law and creation of jobs for the community.

High taxes and maintenance costs, they said, have driven them to supplement their agricultural income with TVR activities.

Attorney Lorna Nishimitsu, who represents several TVR owners, was silent throughout the meeting.

The possibility of lawsuits has not been brought up, but in 2007, when Bill 2204 was moving through meetings, attorney Jonathan Chun referenced several lawsuits that TVR owners had won, and that should have set precedence.

Bynum and Furfaro have said in the past they took an oath to protect the county, and it included avoiding lawsuits. They took an oath to uphold the law. Chapter 205 is the law and it is not being protected by this Council.

North Shore resident Barbara Robeson questioned the legality of some TVRs advertised as farm dwellings, some with as much as 12 rooms, charging thousands of dollars per night, despite that according to current county law, it is illegal to have a TVR on ag land.

Rapozo said violation of the Farm Dwelling Agreement could bring in a $5,000 fine and the requirement to remove the farm dwelling at the owner’s expense. Even if there was no law in place, the Farm Dwelling Agreement prohibits TVRs on ag lands. This agreement is recorded with the Bureau of Conveyances and should be enforced as well.

Joan Conrow, a former Honolulu newspaper reporter, said if this was a perfect world and only legit TVRs got approved, she wouldn’t have a problem with the bill.

“But that isn’t the way the Planning Department works on Kaua‘i,” she said.

Until there are “big discrepancies” in inspection, enforcement and equal application of the law, Conrow said she has a “real problem” with opening a door to allow those who have “tremendous influence through their money and their political contributions” to make maneuvers with the Planning Commission and the department to get “questionable uses” allowed.

Conrow’s testimony prompted Council Chair Kaipo Asing, an ex-officio member of the Planning Committee, to defend the department.

“I want to correct a statement that you made that may not be accurate,” Asing told Conrow, explaining that the department has done numerous inspections in the last 10 years and that the process is not easy or simple.

“I want to give some credibility to the Planning Department,” he said. “I’ve seen records of what they have done, and violations that have been issued.”

Conrow thanked Asing for clarifying the issue.

At the end of the day, Committee Vice Chair Daryl Kaneshiro introduced an amendment requiring the connection of agricultural activity with the TVR.

Kaneshiro, along with Furfaro and Bynum, voted for the bill. Councilman Derek Kawakami, who comes from a traditional farming family on Kaua‘i, voted against the bill. Councilwoman Lani Kawahara remained silent, and her vote counted toward the majority favoring the bill.

The bill will reach full council next Wednesday. Asing and Councilman Dickie Chang will be able to fully join the discussion and add their votes to the bill.

Asing has been a vocal opponent of the bill. Chang hasn’t made his opinion public. During the bill’s first reading in May, he said he would like to see discussion so he could make a decision he could “live with.” I don't believe that Councilmembers Furfaro, Bynum, Kaneshiro and Kawahara will change their votes. Therefore, all we can hope for is that Councilmember Chang votes no on Wednesday, and that Mayor Carvalho vetoes the bill when it gets to his desk. For the Council to override the veto, they require 5 votes. If Councilmembers Asing, Kawakami and Chang maintain their "No" votes, and the Mayor vetoes the bill, ag lands will be preserved on Kauai, and Chapter 205 will have been respected.

Saturday, July 24, 2010

Save Kauai's Agricultural Lands

We have two more chances to save our Kauai agricultural lands. Next Wednesday, the Council will decide whether to pass the law that will allow vacation rentals on ag lands. It appears that Councilmembers Furfaro, Bynum, Kaneshiro and Kawahara will support the bill. Chair Asing and Councilmember Kawakami will oppose it. Councilmember Chang is undecided as of last night. We need you to call them ASAP.

If the bill passes on Wednesday, we need to encourage the Mayor to VETO the bill. This bill, in addition to being illegal (as stated by the Attorney General), will punish the local ag land owners that have followed the law by not putting rentals on the lands, and reward the illegal operators that have been operating vacation rentals ILLEGALLY on Kauai prior to 2008. Please email me if you need to see the real facts. I can email you all the documents that clearly show that this is an illegal bill.

We need farmers to show up on Wednesday. We need everyone to call or email ALL councilmembers to let them know that this action will not be forgotten.Ag lands on Kauai are in danger. If this bill passes, ag parcels will be mini-resorts. This will effectively destroy the farming industry on Kauai. When we should be helping ag on Kauai, we are killing it with this bill. Please help our ag lands by standing up and being counted.

Last Wednesday, many vacation rental operators testified to the Planning Committee of the Council and gave their sad stories about not bring able to afford their mortgages and taxes. They need this bill to pass so that they can become legal. Some even said that they might have to leave Kauai if this bill doesn't pass. What about the locals that are struggling? Where do they go? We have nowhere to go. The economy is no reason to legalize an activity that is clearly illegal under state law.

Sorry for the ranting but this is a critical issue for the culture of Kauai. We are The Garden Island, not the TVR island. We must preserve ag lands. This bill will change Kauai as we know it. If this bill should pass, we will not be able to unwind the damage that it will instantly create. Trust me on this.

Please call or email Mayor Carvalho and ask him to commit to vetoing this bill should it pass. We need the commitment from our leaders that they will do what is right for the PEOPLE OF KAUAI, not special interests. Thank you.

Tuesday, July 6, 2010

Coffee Hours to Begin Tomorrow Night

Aloha everyone. It has been a very long time since I've posted a message on this blog. Like most of you, I have been extremely busy trying to keep everything on track. Life has been busy, but the time has come to actively kick off our campaign for election to the Kauai County Council. I am very excited for what will be a very interesting campaign season. The next five months will be grueling and hopefully, at the end of it all, we will be successful in our quest to be elected to the Kauai County Council.

We are starting our coffee hours tomorrow night, at 7pm, at the Kekaha Neighborhood Center. This is the first of many coffee hours that we will be hosting throughout the island that will allow the people of Kauai to ask the questions that they want to ask. These are not forums with predetermined questions. These are opportunities to find out where I stand on issues. I look forward to the dialog, and I am hopeful that the people of Kauai will have a better understanding of why I want to return to the Kauai County Council. There are many issues that face our leaders. It actually seems like deja vu to me. Drugs, traffic, solid waste, taxes, economy, preservation of ag lands, affordable housing, etc. It appears that nothing has changed since I first ran in 1998. The reality is that these issues are serious, and it will take serious leadership to resolve them. I submit that I am a serious leader.

Here is our coffee hour schedule:

Wednesday, July 7, 2010 at 7:00 pm

Kekaha Neighborhood Center

Tuesday, July 13, 2010 at 7:00 pm

Waimea Neighborhood Center

Thursday, July 22, 2010 at 7:00 pm

Hanapepe Neighborhood Center

Thursday, July 29, 2010 at 7:00 pm

Koloa Neighborhood Center

Friday, July 30, 2010 at 7:00 pm

Kilauea Neighborhood Center

Thursday, August 5, 2010 at 7:00 pm

Kalaheo Neighborhood Center

Tuesday, August 10, 2010 at 7:00 pm

Lihue Neighborhood Center

Tuesday, August 17, 2010 at 7:00 pm

Kapaa Neighborhood Center

I hope you can join us tomorrow night at the Kekaha Neighborhood Center. Stop by and say hello, and don't hesitate to ask the tough questions. It will be a fun evening for everyone. Take care and God bless.