Measures target abuse of ag land

Honolulu Star Advertiser - February 26, 2017
Rob Perez

Regulators will gain more authority to crack down on illegal structures and uses on agricultural land if two bills advancing at the Legislature become law.

The legislation was introduced to address enforcement gaps that emerged over the past several years as dozens of unregulated buildings, including illegal dwellings, were erected in an off-the-grid ag development in West Oahu.

Houses with generators or solar panels and makeshift water systems have been built in the 854-acre Kunia Loa Ridge Farmlands even though a state law and the project’s own bylaws prohibit residential use.

A dog day care operation, Buddhist temple, vacation rentals and a church have been among other unauthorized uses that appeared in the development despite zoning regulations limiting activities to agribusiness only.

Regulators have struggled to enforce the rules because of a variety of factors, including their inability to access a property — even if officials suspected unauthorized uses — without the permission of the owner or tenant.

Senate Bill 698, which has cleared several Senate committees, would give state and county agencies specific authority to enter leased or subdivided ag property to conduct investigations if they suspect violations and provide sufficient notice to the owner or occupant. A similar measure, SB 689, also is advancing.

Sheila Valdez, chairwoman of Na Wahine Kunia O Lihue, a Native Hawaiian group that advocates for the protection of culturally significant sites within Kunia Loa, maintains the legislation is sorely needed. She said government oversight of Kunia Loa has been poor.
“The enforcement system is very dysfunctional,” Valdez said. “Everybody is just passing the buck.”
For the past few years, the Honolulu Star-Advertiser has chronicled the proliferation of unregulated building and activities at Kunia Loa and the struggles of the city and landowner to crack down on violations.

The development, nestled in the foothills about a mile off Kunia Road and several miles from the H-1 freeway, is unconnected to Oahu’s power, water, sewer and phone grids. It has no paved roads, formal street names or addresses — but has stunning views of Pearl Harbor and beyond.

The project was launched about seven years ago and promoted as way to get small farm and ranch operations onto ag land that largely was sitting fallow. Buyers purchased membership interests in the nonprofit cooperative that owns the land. As part of the transaction, they received proprietary leases for specific parcels.

Although some members are successfully farming their land, the development has become better known for the proliferation of unregulated construction, especially over the past two to three years as dozens of houselike structures sprang up.

“It’s just like mushrooms growing wild,” said Romy Mindo, who has largely given up farming his lot there because of difficulties in getting sufficient water.

The legal structure of Kunia Loa’s ownership and a 2012 law have added to the challenges facing regulators.

The 854 acres are owned by a nonprofit, Kunia Loa Ridge Farmlands, but the land, which is zoned Agriculture 1, was never formally subdivided into the 99 lots — no smaller than 5 acres — that were shown on initial planning maps and other documents.

So the city considers the development one giant ag parcel, rather than a bunch of small ones. And the 5-acre minimum lot size that normally would apply to Ag 1 land does not in this case, given that the parcels weren’t officially subdivided.

That has enabled the property to be split into parcels as small as 1 acre, resulting in denser development than what would typically be found on Ag 1 land.

And the 2012 law that exempts certain nonresidential ag structures under 1,000 square feet from building permit requirements has exacerbated the regulatory challenges, leading to numerous buildings being erected without any government oversight.

Legislators passed the exemption law to help cut red tape and costs for farmers and ranchers wanting to erect small toolsheds and other such ag buildings.
But the law has led to abuses at Kunia Loa by individual users.

The city’s Department of Planning and Permitting has issued more than 40 citations to Kunia Loa’s landowner and members since 2010, but most have come since the Star-Advertiser started reporting on the unchecked development several years ago.

In the face of continuing publicity, the city launched an aggressive enforcement operation in June, using aerial visuals taken from a drone and inspections by on-the-ground teams who scoured the property.

“That was music to my ears,” Sen. Mike Gabbard, who was dismayed by the city’s earlier efforts, said of the June operation.

Gabbard (D, Kapolei- Makakilo), a supporter of the bills advancing at the Legislature, contends the proposed changes will help prevent future abuses like those happening at Kunia Loa.

“We support measures that will assist us not only in our enforcement of zoning and building codes, but also in the monitoring of activity on agricultural land,” said acting Planning Department Director Kathy Sokugawa in a statement to the Star-Advertiser. “These measures would provide us with a mechanism to increase our enforcement of the unregulated parceling, sale and lease of agricultural land, and unpermitted uses on land for non-agricultural purposes.”

The city’s June enforcement effort led to the issuing of more than 30 citations, including three for illegal dwellings, online department records show.

At least one of the cited homes features a full kitchen with a stainless steel double-door refrigerator, stove and oven, microwave, sink and multiple cabinets, according to a photo the city used in issuing a violation notice. The citation described the structure containing the kitchen as a two-family detached dwelling.

At least 13 of the citation cases, including two of the dwelling ones, remain unresolved. One of the violation notices for an unauthorized dwelling was resolved when a refrigerator and stove were removed from the unit, according to city records. The structure must have a refrigerator, cooking appliance and a sink to be considered a dwelling.

The city can impose fines and pursue legal action if violations go uncorrected.

Attorney Christopher Shea Goodwin, who represents Kunia Loa’s landowner, declined comment for this story.

The sponsors of SB 698 are Sens. Gil Riviere, Will Espero, Josh Green, Breene Harimoto, Les Ihara, Lorraine Inouye, Donna Mercado Kim and Maile Shimabukuro. It passed the Ways and Means Committee on Friday on a 9-0 vote, with four abstentions.

Other legislation indirectly affecting Kunia Loa also is advancing at the Legislature, including a bill (SB 988) that would amend the 2012 exemption law and require owners proposing to construct ag structures in flood-prone areas to obtain building permits. A hearing on that bill will be held at 9:50 a.m. Tuesday in Room 211 at the Capitol.

The federal government has threatened to suspend the sale of federally backed flood insurance in Hawaii unless the state amends or revokes the law, which conflicts with the national insurance program. The changes proposed in SB 988 would address the federal government’s concerns, according to legislative testimony.