This seems like deja vu but to clear up any misconceptions regarding the State law, I have decided to post the State law for all to see. My position is simply this:
The County Council is not the vehicle to allow overnight accomodations on ag land. The State law needs to be changed. The County Council, if they want to see this changed, should be introducing a resolution requesting the State Legislature consider changing the law. To try and get around a State law with a County ordinance is very dangerous, and invites litigation.
This Council should be working on an ag tourism ordinance, as authorized in the Hawaii Revised Statutes. This is the appropriate vehicle that the State law allows the counties to pursue. I'm not sure why this option is not being pursued.
§205-5 Zoning.
(a) Except as herein provided, the powers granted to counties under section 46-4 shall govern the zoning within the districts, other than in conservation districts. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.
(b) Within agricultural districts, uses compatible to the activities described in section 205‑2 as determined by the commission shall be permitted; provided that accessory agricultural uses and services described in sections 205‑2 and 205‑4.5 may be further defined by each county by zoning ordinance. Each county shall adopt ordinances setting forth procedures and requirements, including provisions for enforcement, penalties, and administrative oversight, for the review and permitting of agricultural tourism uses and activities as an accessory use on a working farm, or farming operation as defined in section 165‑2; provided that agricultural tourism activities shall not be permissible in the absence of a bona fide farming operation. Ordinances shall include but not be limited to:
(1) Requirements for access to a farm, including road width, road surface, and parking;
(2) Requirements and restrictions for accessory facilities connected with the farming operation, including gift shops and restaurants; provided that overnight accommodations shall not be permitted;
(3) Activities that may be offered by the farming operation for visitors;
(4) Days and hours of operation; and
(5) Automatic termination of the accessory use upon the cessation of the farming operation.
Each county may require an environmental assessment under chapter 343 as a condition to any agricultural tourism use and activity. Other uses may be allowed by special permits issued pursuant to this chapter. The minimum lot size in agricultural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that the minimum lot size for any agricultural use shall not be less than one acre, except as provided herein. If the county finds that unreasonable economic hardship to the owner or lessee of land cannot otherwise be prevented or where land utilization is improved, the county may allow lot sizes of less than the minimum lot size as specified by law for lots created by a consolidation of existing lots within an agricultural district and the resubdivision thereof; provided that the consolidation and resubdivision do not result in an increase in the number of lots over the number existing prior to consolidation; and provided further that in no event shall a lot which is equal to or exceeds the minimum lot size of one acre be less than that minimum after the consolidation and resubdivision action. The county may also allow lot sizes of less than the minimum lot size as specified by law for lots created or used for plantation community subdivisions as defined in section 205-4.5(a)(12), for public, private, and quasi-public utility purposes, and for lots resulting from the subdivision of abandoned roadways and railroad easements.
(c) Unless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts:
(1) Low density residential uses;
(2) Agricultural uses;
(3) Golf courses, golf driving ranges, and golf-related facilities; and
(4) Public, quasi-public, and public utility facilities.
In addition, the minimum lot size for any low density residential use shall be one-half acre and there shall be but one dwelling house per one-half acre, except as provided for in section 205-2. [L 1963, c 205, pt of §2; Supp, §98H-5; HRS §205-5; am L 1969, c 232, §1; am L 1977, c 140, §2; am L 1978, c 165, §1; am L 1991, c 281, §4; am L 1994, c 270, §2; am L 2005, c 205, §4; am L 2006, c 237, §5 and c 250, §3]
Thanks Mel, It seems our planners have gotten so used to breaking the law, now they are trying to enact laws that break the law. wow. Did you see the garden island report on how much the county spends on outside litagation to defend the planning dept? Wonder why Bernard lets this continue?
ReplyDeleteThen why in the world would the Kauai County Council be even considering this bill? Is Mel that far off base?
ReplyDeleteWhy does Mayor Carvalho allow the Planning Dept. Personel to break the law? Simple, I'm sorry to say, our head of government does not have the authority to make decisions for the people. They are "Puppets" and I'd give anything to find out who is pulling their strings. Ofcourse, we all realize again, it's all about money one way or another. Really it is. I'm no longer naive about Politics. Very few people are honest anymore sad to say. Mel, you'll always get our vote.
ReplyDeleteI'm not sure who is driving this movement. The plain language of the State law is very clear. I have to believe that Bernard is being given bad advice. I know that there is a lot of pressure being put on our decision makers by the TVR/real estate industry. In my view, the decision is a simple one. Until the State law is changed, the County is really not in a position to grandfather any TVR on ag land. Of course, this is my view and I am not a lawyer.
ReplyDeleteThe TVR industry is extremely powerful. The real estate industry is the most powerful lobby group in the State. They will stop at nothing to sell every piece of property to off shore buyers. Those the try to stop them will be shouted down. The politicians that take the industry money do their bidding. Even if they are breaking the law, the law is only as good as it is Enforced !! If no one enforces, no need worry about the law. Kauai and Maui are turning in to a suburb of LA.
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