Kunia farmlands: Off-the-grid parcel zoned for ag draws concern

Honolulu Star Advertiser - April 10, 2016

By: Rob Perez

Nestled in the Kunia foothills, the facility is billed as Hawaii’s first “doggy theme park.”

The company that operates the doggy day care touts it as being unlike any other in the islands, with “a million dollar view” from six different parks spread over 2.5 acres.

“Kama‘aina K9 Adventures goes beyond the traditional day care concept by providing nearly unlimited space to sniff, splash, run and explore in a safe, outdoor, theme park environment,” the company says on its website.

There’s one problem.

The Kama‘aina K9 facility is on land zoned Ag 1, which limits use to agribusiness. City regulations specifically list animal kennels as an unpermitted use.

Yet the day-care business has operated for the past year at Kunia Loa Ridge Farmlands, an off-the-grid 854-acre development that’s supposed to be restricted to agriculture. The entire property has become a hub for unregulated construction.

It also has become the focus of growing controversy, raising concerns among diverse groups ranging from environmental organizations to the Hawaii Farm Bureau and the state Department of Agriculture.

Dozens of houselike structures have been built or are under construction throughout the sprawling development, which has no paved roads or addresses and is unconnected to Oahu’s power, water, sewer and telephone grids.

Some structures have people living in them despite statutory and Kunia Loa prohibitions against residential use, numerous people connected to the project have told the Honolulu Star-Advertiser. The newspaper has chronicled the rise of this unusual development for the past two years.

Many of the structures that have been built or are under construction there are not subject to building permit requirements, according to the city, because of a state law passed several years ago.

Hawaii Revised Statutes Chapter 46-88, enacted in 2012, was designed to help farmers erect tool sheds, storage units and other small ag facilities on commercial farms outside the urban district by exempting the structures from the building code.

The idea was to free farmers from the long waits and high costs of obtaining building permits for small nonresidential facilities. The law’s proponents said the ag structures carried little risk of becoming safety hazards in a rural environment.

At Kunia Loa, however, numerous structures that look like houses have gone up, and some critics question whether they are ag buildings or comply with the exemptions allowed under the law. The Star-Advertiser counted about a dozen under construction during a visit last month.

One recently completed unit sits in a gulch that, according to people familiar with the area, flows with water after periods of prolonged heavy rain.

The pace of building at Kunia Loa has become so intense and general oversight so haphazard – a Buddhist temple openly operated there illegally for months – that some environmentalists, legislators and others are calling for the state to revisit the laws that allowed Kunia Loa to take hold.

“There’s nobody minding the store,” said Donna Wong, executive director of Hawaii’s Thousand Friends, an environmental advocacy group.

The city, which opposed the 2012 legislation creating the building-code exemptions, contends the proliferation of unregulated construction at Kunia Loa has created a potentially dangerous environment and public safety risk.

“Any time significant structures are built without a permit, regardless of location, we have life-safety concerns,” said George Atta, director of the Department of Planning and Permitting, which enforces building code and zoning violations, in written responses to the Star-Advertiser.

Over the past several years, the city has issued more than 40 construction and zoning-related citations at Kunia Loa, including many for building structures without a permit or not following approved plans, according to data obtained by the newspaper under a public records request.

But almost all the building-related citations eventually were dismissed after city inspectors determined the structures were nonresidential and met the other requirements under the 2012 exemption law, according to the data and the city.

Some people familiar with Kunia Loa, including a farm bureau official, told the Star-Advertiser that the laws aren’t the problem; they say the city is falling short of its oversight responsibility.

Several cited the Buddhist temple, whose owners were ordered by the city to discontinue worship services only after the Star-Advertiser wrote about it, and the doggy day care as examples.

“I really think what is needed is for DPP to enforce the law,” said Sen. Mike Gabbard (D, Kapolei-Makakilo), who is serving his first year as chairman of the Senate Committee on Water, Land and Agriculture.

Brian Miyamoto, executive director of the farm bureau, said in written comments to the Star-Advertiser that his organization’s understanding is that illegal structures have been erected at Kunia Loa but there is little, if any, enforcement.

He noted that the exemption law applies to limited types of structures, such as pre-engineered commercial buildings no more than 1,000 square feet in floor area, but not to dwellings.

Miyamoto said the bureau and others met with the city in 2014 to discuss Kunia Loa. At the time, Atta acknowledged that the situation was “not really the fault of the legislation and he agreed that DPP needed to do enforcement but that they were having trouble due to access and limited GPS capabilities,” Miyamoto wrote.

But Art Challacombe, DPP’s deputy director, disputed the notion that the city is failing in its oversight.

He said in a written statement that his agency has responded to every filed complaint about Kunia Loa despite the challenges of locating alleged illegal structures in an 854-acre project without directional signs, street names or addresses. Challacombe added that his inspectors need permission to enter the private development and the structures to inspect them and that DPP lacks the staff to do regular “sweeps” of such a huge area.

Even with the challenges of limited resources and the constraints of the exemption law, “we are doing our best to meet the demands of the community,” he said.

The complicated ownership structure at Kunia Loa has contributed to the muddied enforcement environment. The project is exempt from city rules regarding lot size, roadways, infrastructure and other improvements.

Individuals who bought into the project do not own their lots but own shares in the nonprofit Kunia Loa Ridge Farmlands, which owns the entire 854 acres and, through an association, oversees governance of the development’s bylaws. Some Kunia Loa farmers, who have long-term leases for specific lots, have described that oversight as insufficient. An association representative could not be reached for comment.

Sen. Laura Thielen (D, Hawaii Kai-Waimanalo-Kailua), former director of the state Department of Land and Natural Resources, said Kunia Loa’s designation as a condominium property regime, or CPR — an ownership form more typically used for high-rise residential buildings — has meant the huge development bypassed multiple state and county requirements dealing with land use and other areas.

“When you apply it to ag lands, that not only means a lot of concerns about bypassing land use laws but a lot of safety concerns,” Thielen said, citing as one example the difficulty firefighters would have responding to emergencies in a private development with unpaved, unnamed roads and no addresses.

Thielen is among those who are concerned that other landowners might replicate the Kunia Loa model — some refer to it as a “horizontal CPR” – to develop large ag parcels around the state while capitalizing on confusion surrounding the building code exemptions.

On Kauai, alarm bells already are sounding.

Kauai County’s planning director, Mike Dahilig, said in an email to the Star-Advertiser that horizontal CPRs have had a negative impact on agricultural lands.

“The recent changes to state law do make it harder to catch and enforce cheaters who try to put residential units on agricultural lands,” Dahilig wrote.

Residential units are not the issue at Kama‘aina K9, which lists on its website rates for daily and extended stays for dogs.

Asked how such a business can operate on Ag 1 land, a DPP spokesman said his agency intends to send an inspector to the property.

Kama‘aina K9 representatives did not respond to multiple requests for comment.