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HomeMy WebLinkAbout2017-01-19 Leeward Exh A (Bill 227 Draft 2 re Agricultural Tourism) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JANUARY 19, 2017 A regularly advertised hearing on the COUNTY COUNCIL INITIATED AMENDMENT TO CHAPTER 25 OF THE HAWAI‘I COUNTY CODE, RELATING TO AGRICULTURAL TOURISM was called to order at 9:33 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Keith F. Unger presiding. COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Scott Church, Collin Kaholo, Perry Kealoha, Barbara Nobriga and Sonny Shimaoka ALSO PRESENT: Malia Ho (Counsel for the Commission), Daryn Arai (Deputy Planning Director), Jeff Darrow (Planning Program Manager) and Noriko Sauer (Commission Secretary) And four people from the public in attendance. INITIATOR: COUNTY COUNCIL (BILL NO. 227, DRAFT 2) An Ordinance amending Chapter 25, Article 1, Article 2, and Article 4 of the Hawai‘i County Code 1983 (2005 Edition, as amended), relating to Agricultural Tourism. The purpose of this bill is to amend the definition of “agricultural tourism” and include new definitions for “agricultural products” and “agriculturally-related products”; and defining requirements for plan approval review of and use regulations for agricultural tourism operations. The County Council is referring Bill 227, Draft 2 to the Planning Director and the Windward and Leeward Planning Commissions for comment and recommendations. UNGER: First item on the agenda. New Business, Initiator County Council, Bill No. 227, Draft 2, an ordinance amending Chapter 25, Article 1, Article 2, and Article 4 of the Hawai‘i County Code 1983, 2005 Edition, as amended, relating to agricultural tourism. The purpose of this bill is to amend the definition of “agricultural tourism” and include new definitions for “agricultural products” and “agriculturally-related products,” and defining requirements for Plan Approval review of and use regulations for agricultural tourism operations. The County Council is referring Bill 227, Draft 2, to the Planning Director and the Windward and Leeward Planning Commissions for comment and recommendations. Normally, at this time in our procedure we ask for the County to make their presentation. We have a special request from a member of the public to be able to present her testimony first, and we would like to allow that at this time. So if you would come forward and introduce yourself, we can hear your testimony. PALMA-GLENNIE: Aloha. Good morning. UNGER: Do you swear or affirm to tell the truth before the Planning Commission? 1 EXHIBIT A PALMA-GLENNIE: Yes, I do. UNGER: Please state your name and your residence. PALMA-GLENNIE: My name is Janice Palma-Glennie and I live – would you like my address or just – I’m from Keauhou. UNGER: That’s fine. You may proceed. PALMA-GLENNIE: Okay. Thank you. Aloha, Commission members. As background, I’m a 40-year Hawai‘i resident with 30-plus years in agriculture-related business in Kona. I’ve gone from giving positive input for maybe five years on ag tourism legislation to feeling like there’s little hope that my representatives are really hearing people who have already suffered, and will continue to suffer more widely and deeply, if farmers and those not involved in potential ag tourism continue to be left out of weak legislation. Even Ms. Wille’s bill and part or mostly this draft is still extremely unprotective. The problems with so-called “ag tourism” that people like my neighbors and my ‘ohana have experienced are being ignored by this bill. We’ve lived through and fought fake ag tourism that’s noisy, has nothing to do with real farmers and has been allowed to continue by County and State agencies who have, except for we’re talking about some other things in the positive, from my best of knowledge, refused to come to our aid, even when lawsuits proves that those activities were illegal. This body has already heard those tales. But here I am again. “The visitor industry, or tourism, continues to grow as a major element in the economy of Hawai‘i County,” so states this bill – I had a little trouble understanding the document, so if I get something wrong, that isn’t because I didn’t try – and that is front and center. Yes, but this, but is the goal of ag tourism to protect farming or increase tourism? “The failure to define and regulate agricultural tourism in Hawai‘i County has already resulted in complaints from surrounding property owners and residents due to excessive noise and unsafe traffic conditions.” Indeed. But this bill does little and even less to protect surrounding property owners and the environment, especially since ironclad enforcement continues to be missing. “Eliminate the need for a site inspection prior to the issuance of final Plan Approval for a ‘major’ ag tourism operation.” And instead of providing a daily visitor count, minor ag tourism apparently allows 350 visitors per week; that’s 200 for one day and 150 the next or maybe 350 in one day. Or, because I did find this bill difficult to understand, is it 100 visitors per week but still lacking daily limits? Either way, the public has asked over and over again – I don’t know how many time for how many years – for a daily limit for minor ag at least and for no more than five days a week operation. This bill ignores those relentless requests. Six a.m. instead of 8:00 a.m. visitors and noise when it could still be dark? And the most nebulous and unenforceable of guidelines: “20 minutes after sunset.” Busses, jet-lagged tourists talking in 2 EXHIBIT A outdoor voices on cell phones to their mainland friends while real working people are still sleeping? And, by the way, who does one call at 5:45 a.m. or 25 minutes after sunset to enforce these regulations? And I can tell you from experience, no one. No permits except for structures? The bill we are looking at is full of the holes the public has tried to fill for years – rules that would protect agriculture, ag lands, neighbors, and the natural environment. My neighbors and I complained when so-called “garden tours” were taking place in our ag subdivision. It took a costly, wasteful lawsuit to stop the intrusive activities. My other friends weren’t so lucky; they won several lawsuits, including an appeal, against a so-called “ag tour operation” in their ag neighborhood. Yet, over a decade later, that property is still being used as a hotel, wedding and events venue. Our friends ended up selling their dream retirement home and viable farm instead of continuing to endure the illegal intrusions that were ignored by government agencies. And you don’t need to reinvent the wheel. A Sierra Club testimony stated to the Windward Commission, the County can check integrating safety into agri tourism checklist. Two hundred- plus items that continue to be missing from our County’s ag tourism bills. And as we’ve asked again and again, please:  Add daily visitor counts, not weekly;  Don’t depend upon the honor system to prevent intrusive noise or anything else. That only works for those who already follow the rules;  Strike wording that allows extended hours under any circumstances. There is no one to call 25 minutes or two hours after sunset when the band plays on or ATVs go round and round under bright lights that keep neighbors awake and disorient the endangered ‘io that take shelter in trees;  Don’t pit neighbor against neighbor by asking them to snitch on each other. Not only isn’t it pono, it’s a strategy that can lead to long-term bad blood and even violence – and I have been threatened;  Don’t leave residents to squabble over shared easements like driveways because of a bad law that creates an untenable situation that didn’t previously exit;  Add wording that requires the County to undertake frequent, random visits, site visits, to ag tourism operations to insure compliance with the law. The bill should read, “There shall be a minimum of one unannounced, random visit each year and more, if there are complaints or reason to believe violations are taking place”;  Create restrictions that make the noise of ag operations undetectable to neighbors;  “May”s are not enough. “Shall” is the acceptable language to be used in this bill, or any bill;  A fine of a thousand dollars would be a slap on the wrist for some operators. A thousand dollars per day is more appropriate for those who continue to knowingly break the law. Finally and most important, there must be a guaranteed mechanism to insure funding for enforcement of any ag tourism rules. And it must be clearly shown that ag tourism legislation will actually help real farmers rather than increase tourism on ag lands. 3 EXHIBIT A Without strong enforcement language and clearly defined funding for enforcement as well as rules suggested by the Sierra Club and others, Bill 227 would make rural and agricultural lands open to continued and possibly increased abuse. Please do not pass this or any ag tourism bill that doesn’t meet that criteria because, honestly, no ag tourism bill is better than a bad one. Mahalo for the time. I appreciate your work. UNGER: Thank you. Commissioners, are there any questions for the testifier? Ma’am, if you want to ask some questions. CARR SMITH: Thank you. Thanks for your testimony. I’m just wondering, what is your ag- related business in Kona? PALMA-GLENNIE: I have a landscape nursery and I’m a landscape designer. CARR SMITH: Okay. PALMA-GLENNIE: So I’ve had that for 30, at least 30 years. CARR SMITH: And you, do you consider that an ag tourism business? PALMA-GLENNIE: No. I don’t have tourists coming and, no, but my neighbors have attempted to do that and, anyway, yeah, I don’t — CARR SMITH: So with your business, would you want to be limited to a certain number of visitors or customers per day? PALMA-GLENNIE: Well, I think customers are different than visitors. In, for my understanding, State Ag Laws, when I sell plants, I generally deliver them, but I have had probably a total of six different landscapers who I’ve known, because, I’m, you know, we are very, we are private, we don’t want a lot of people coming up to our property or my neighbors because we share a driveway. We have a shared easement, and I think all of us have, except for my one neighbor, have been quite respectful of that. So I only have ever had people who I’ve known for years come and pick up plants. As far as limiting my customers I really don’t think that’s the question; I think that the question is how many people are going to be, you know, close to my home. And our houses are wide-open; screens, security is based on, you know, knowing people and trusting people. And when my neighbors had their so-called ag tourism garden parties down the hill, there were about, it’s about 500 feet from me, and I could hear everything, I mean, they had a lot of things going on. They had tour buses on the driveway; we have a little tiny easement, I couldn’t even get home. But the thing is that I’ve seen this happening on many different properties, including my friends who did go through the legal process to stop the ag tourism across the street from them and their shared driveway. And like I said, they, even the people there built more and more structures, they kept building more structures and they kept renting them out and they kept having bigger and bigger events, and none of it was, they could call 4 EXHIBIT A it a garden party all day long, but, I, no, I mean, even the hotels were sending their overflow to them. So — CARR SMITH: Okay, thank you very much. PALMA-GLENNIE: I could go on. Thanks for your question by the way. I appreciate it. UNGER: Commissioner Kaholo. KAHOLO: No, no, I don’t have any — SHIMAOKA: I’ve got a question. When you talk about the neighbors, how many in your definition called ag tourism businesses surround your business? PALMA-GLENNIE: Well, there are, I think the only one that I know about is the Chocolate Factory folks, and they don’t share my easement. One thing I, I mean, I think that they have probably done it as low-key, I mean, I haven’t heard a lot of people complaining about them but I can’t say, you know, I don’t know them, and they are close to me, but the only thing that I notice is the vans on Walua Road. So, I mean, there is a lot of issues. One of them is access, like, Walua Road really wasn’t made to carry today’s traffic. And so, you know, you see their vans. I’m not complaining about them, I’m really not; I think they seem to be doing a better job than a lot. But still, there are factors that change because depending how many visitors they have, and they have a small van, they have a larger property, I think theirs is over five acres. Like in my neighborhood it’s five and one and a half acre, there’s two and a half, anyway, I think, you know, I think there’s a difference between small ag and minor and major. I think buffers are really important. I do think a daily visitor count makes a difference because, like I said, my neighbors were having 250 people one or two nights a week, I mean, those nights were working nights. Even if they weren’t, who knows, I work every day, so, you know. I don’t know how many other people, I just know there’s a lot of illegal buildings being built — SHIMAOKA: When you talked about — PALMA-GLENNIE: — on ag land around us. SHIMAOKA: — the 250 people, is that the one that you say are doing weddings and parties? PALMA-GLENNIE: They were doing, they weren’t doing weddings, they were doing garden parties, so they call them, garden parties. And I was just talking to Scott, he said that they, the County did end up investigating them and filing, you know, they did, complaints against them or whatever, but, honestly, we had called for a long time and we didn’t know of anything happening in the neighbors below us. This whole subdivision got a lawyer, and that was when things changed whether, you know, I mean, it took them a lot of thousands of dollars to do that. And we had called and called, the people lived in my subdivision but, you know, we weren’t as well healed and, well, anyway. So it did take, it did seem to take a lawsuit to make it finally, you know, come to fruition, but then again, my friends went through all the proper channels and never ended. 5 EXHIBIT A SHIMAOKA: Okay, thank you. PALMA-GLENNIE: Thanks. CHURCH: I’ve got something, too. To what extent is enforcement, or lack thereof, a bigger problem than the language changes that are actually proposed? It sounds to me like that’s part of the problem there. PALMA-GLENNIE: Yeah, I mean, I don’t really see ironclad, I, I just don’t see, there is not funding for enforcement. One thing I don’t see is where the funding for enforcement is coming, and if you don’t have funding for enforcement, you have an overtaxed Planning Department already with so many things going on and so many places to go with so few inspectors. I mean, you’ve got to have, you know, you can only get so much blood from a stone. And so I’m not really blaming anyone; I’m just saying that before there is an ag tourism bill, there needs to be things that cover all the problems that are going to come. I know there’s people doing ag tourism now for one under the other, an old bill, which seems like it’s kind of working, and there’s people that are doing it illegally. And I just, I think that there needs to be definitely site visits, they have to be random. I think permitting and renewing your permits, I mean, I’m not a lawyer but I know that, I’ve just seen people get away with a lot of stuff because it’s either not clearly written or nobody would come and do anything. So I just, you know, and the last, I don’t know if it’s this bill or the last incarnation of bill, there’s been so many, but one of them said that was relying upon neighbors to report their neighbors. Well, I received death threats, so, I mean, for just even asking about the simplest things. So I don’t really think that’s the way to go. And, and, and without a bill I feel like we just might not have more problems, or as many problems, than having a new bill that says, okay, now you can do it, this, you know, because people just break the law. I mean, a lot of people are great, and a lot of people, and a lot of, and one thing that somebody had asked, and I think super important, is for the people, the landowners to be living there, because a lot of times you have absentee owners who are just making money off of this operation; they don’t suffer the consequences what’s going on in their, you know, it’s the same with Airbnb and a lot of it, you know, so. I mean you folks just are really our frontline for, you know, helping to prevent what is just going to cause, I mean, nobody wants to do lawsuit. Lawsuits are horrible; they cost us all money and time that we just don’t need. So I’m just not sure if we, so many people have said this through the years is why are we, maybe we don’t need this bill, maybe that’s the an- maybe we just need to rely on the old trust — CHURCH: All right, thank you. PALMA-GLENNIE: Thank you for your question. Thanks. UNGER: Thank you. PALMA-GLENNIE: I really appreciate your letting me go first — UNGER: Yeah, I hope you are able to stick around because a lot of these issues will be discussed with the Planning Department’s presentation, and really focus more on what they are trying to do 6 EXHIBIT A in this, in their recommendation. So hopefully, you are able to stay and watch the conversation involved. So, thank you. PALMA-GLENNIE: Thanks. I’ll stay as long as I can. I have some commit— UNGER: Great, thank you. Are there any other members of the public who would like to testify at this time? I need a motion, Commissioners, to close public testimony. KAHOLO: So move. NOBRIGA: Second. UNGER: We have a motion by Commissioner Kaholo, second by Commissioner Nobriga. All in favor? COMMISSIONER: Aye. UNGER: Opposed? \[None.\] Motion passed. Public \[testimony\] hearing is closed. Jeff, do you want to begin your presentation then? DARROW: Sure. Thank you, Mr. Chairman. I’d like to begin by wishing you all a happy New Year. I think this is our first time this year together. And unfortunately, I have to apologize because our first presentation is going to be quite wordy and lengthy. So if you can bear with me on this. And I’ll try along the way to address some of the issues that Ms. Palma-Glennie had brought up. And I would also suggest that it might, and this is just a request, if there is a question maybe during the presentation, it might be good, if you feel appropriate, to ask a question at that time. UNGER: Good. I agree. Let’s go ahead and do that. Commissioners, let’s work on that. DARROW: Great. Thank you. So with that, we’ll begin our presentation. Our application is a bill that has been brought down from the County Council. They have initiated Bill 227 relating to agricultural tourism. What I wanted to do first of all was to give the Commission a brief chronological background regarding agricultural tourism, that the ordinances that have come forward as well as certain laws that affect agricultural tourism on the island. In 2008 the Hawai‘i County Council adopted Ordinance No. 08-155. This ordinance was created to define and regulate agricultural tourism in Hawai‘i County in response to HRS Sections 205-2(11) and 205-4.5(13), which both state the following: “Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5.” 7 EXHIBIT A Just for your reference we passed out two portions of, well, one portion of the current code, as well as the Planning Director’s alternative language. The paper that is identified as “(Current) Section 25-1-5. Definitions” at the top, this is the current code as it relates to Ordinance 08-155. That basically comes out of Section 25-4-15, as well as the Plan Approval section and the definitions. And so, to be able to see it without ramseyer version, it’s all right there on that paper. So during our discussion you can look back at what our current code says. So this, what we currently have in our Zoning Code was adopted through Ordinance 08-155 in response to these sections. And again, it says, under Section 205-5, this section states the following: “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.” It goes on to say that these ordinances shall include: Requirements for access to a farm, including road width, road surface, and parking; requirements and restrictions for accessory facilities connected with the farming operation, including gift shops and restaurants; activities that may be offered by the farming operation for visitors; days and hours of operation; and, automatic termination of the accessory use upon the cessation of the farming operation. So based on these ordinances, or these laws out of HRS, the County Council adopted Ordinance 08-155. Currently, Hawai‘i County is the only county that has adopted ordinances relating to ag tourism in the State of Hawai‘i; so we are actually the only one that has complied with that requirement. Continuing on, in 2009 the Hawai‘i County Council adopted Ordinance 09-143. The purpose of this ordinance was to extend the amnesty period for unpermitted agricultural operations, as included in Ordinance 08-155, from November 20, 2009, to May 30, 2010, from twelve months to 18 months after the effective date of Ordinance \[08-\]155. So since 2008 the only change to agricultural tourism, to our ordinance has been this minor change. There have been several attempts to make over those. But you’ll see the difficulty in passing such a bill, because it seems like, you are hearing from the public this morning about certain negative aspects of agricultural tourism, but there is also people that are pushing very hard for promoting agricultural tourism in a sense that they want it less restrictive than it currently is. So there is two oppositions going on, and we’ll go into a little detail. So in 2012, based on these problems that we’ve been occurring in enforcing this particular ordinance, and I’ll explain some of these problems. One of them is the fact that, as Ms. Palma-Glennie stated, is that, you know, they don’t want to be the bad guys and calling and complaining about a neighbor. So the problem that the Planning Department is faced with is, how do we know where they are, or who they are? The ordinance requires that if you are wanting to be an agricultural tourism operation, you have to come in and submit Plan Approval. Most of the farmers feel that’s too excessive, too restrictive. And they haven’t done it. We’ve had very few agricultural tourism operations come in throughout the island since 2008 for Plan Approval. Additionally, we’ve had very few complaints. In Hilo we’ve only had one complaint and that was in a residential zone since 2008. Sometimes, we’ve had other complaints, these happened over a 8 EXHIBIT A period of time prior to 2008 agricultural tourism operations, but there was no ordinance in place, so we treated them simply as a zoning violation; whatever they were doing was not permitted in the Code without a Special Permit. And so they were issued a violation and they were supposed to come in for a Special Permit. But in 2012 the Planning Director initiated an amendment to the Code, and these are all within your background report for reference. The Planning Director’s proposed amendment was presented before the Windward and Leeward Planning Commissions who both forwarded a favorable recommendation to the Hawai‘i County Council. Councilmember Pete Hoffman introduced Bill 266, Draft 1, in 2012. Over the course of about one year, Bill 266 went through five different drafts. So what’s you have in your background is Draft 5. This was, you’ll hear the phrase “major” and “minor” agricultural tourism operations. This was presented through this proposed bill, and basically what they were trying to do was have a limit where, if you were under that limit, you would be considered a minor agricultural tourism, and it wouldn’t be as restrictive; if you are a major agricultural tourism operation, you had other hoops you had to go through, if you are a major. So — CARR SMITH: Excuse me, can I — DARROW: Sure. CARR SMITH: Is it defined somewhere what the major and minor is? DARROW: That would be in Bill 2- now, this is not adopted, but this would be in — let me pull that out. KEALOHA: Is it the 30,000 visitor count? DARROW: Yeah, well, let’s see, 09, I believe it is Planning Department Exhibit No. 4, and if you look in the definitions, you’ll see the definitions for agricultural tourism, minor and major. It’s on Page 2. So for minor it’s that they do not exceed 15,000 visitors annually, a maximum of 350 visitors per week for a total not to exceed 15,000 visitors annually. So on January 8, 2013, the Council’s Planning Committee voted to forward a negative recommendation on Bill No. 266, Draft 5. Then on January 23, 2013, the County Council voted to postpone indefinitely Bill 266, Draft 5, in order to allow the Council to introduce its alternative bill, which is Bill 25, Draft 2 — and that would be your Exhibit No. 5 — in order to allow the Council to intro- I’m sorry, Draft 25, I’m sorry, the bill was presented before the Windward and Leeward Planning Commissions, who both forwarded a favorable recommendation to the Hawai‘i County Council. Bill 25, Draft 2, was postponed to the call of the chair on August 6, 2014, and was never taken back up at Council. So that springs us to today. Councilmember Margaret Wille had introduced Bill 227, Draft 2. It was sent down to the Planning Director, as well as the Planning Commissions for review. And what I’d like to do is briefly touch upon some of the key points of this bill. Bill 227, Draft 2, 9 EXHIBIT A attempts to make the permitting process less burdensome by providing changes to the Plan Approval section to only require applicants to submit for Plan Approval prior to construction or installation of a new structure and for any addition to an existing structure that exceeds ten percent of the existing structure. Additionally, the bill offers an option for the applicant to request a waiver from the Planning Director from the requirement for a site drainage plan, upon providing evidence to the Director’s satisfaction that there would be no significant run-off resulting from the proposed development. And lastly, Bill 227, Draft 2, creates a yearly registration process along with a 100-dollar processing fee, which includes submitting financial records and a daily visitor count record annually. Here are some key points that have been changed in Bill 277, Draft 2. In the definitions, they had added in, along with agricultural tourism, what’s called “agricultural-based commercial operations.” And what’s, to give you a little background on that, agricultural-based commercial operations was, is now considered a permitted use under State Law. And it allows for roadside stands, it allows for enclosed retail structures, as well as food establishments. And we have an agricultural certification form that we’ve been using, agricultural-based commercial op certification form, which is your Exhibit 6, and it actually has the law there written. So as long as these, the roadside stand, the retail activities and the retail food establishment, prepares and serves food at, or it uses products, agricultural products grown in Hawai‘i, as well as value-added products that were produced using agricultural products grown in Hawai‘i, then it’s okay to operate these. The problem is, with the Planning Department with this law is that there’s no real tie-in to a working farm. And so what the attempt here was to have commercial agricultural operations be tied in to agricultural tourism, which is supposed to be tied to a working farm. And so for you to be able to do a commercial-based, ag-based commercial operations, you need to, you’re considered, that’s considered almost like ag tourism; they are tied in together. If you are going to be doing roadside stands, retail establishment, food, retail food establishment, people come to your property, they are visitors, it’s tied in to ag tourism. That was the attempt here; that’s what they are, what the Council is trying to do in this particular change in the Code. The Planning Department agrees with this change. Because of the difficulty we’ve had trying to permit these agricultural-based operations. What’s happened is we have people that come in, they say, “I’m going to be only serving locally grown food and using value-added items produced in Hawai‘i,” yet, there is no tie-in to agriculture; they could go to Costco and get it, or wherever, and we have no way of knowing that. So we’ve created a form that kind of has, this is kind of our basis for what we are looking at as a registry form, but right now it’s kind of a certification form that they are going through. UNGER: Jeff, a question. DARROW: Sure. UNGER: So, if this is based on a commercial farming operation or ranching operation, what is your definition of a commercial ranching operation? DARROW: The definition of a working farm, as mentioned in the law comes under 165-2, which has the definition of a working farm. And I’m not sure if we have that available – let me see if I have that. 10 EXHIBIT A UNGER: Because I did notice one of your recommendations is to not make a gross sales amount part of a requirement for a viable commercial farming or ranching operation. I think the County Council is looking at 30,000 bumped down to 10,000, and the Planning Department recommendation is no, no proof of income from this farming operation, is that correct? DARROW: It’s, the numbers get a little confusing; the 30,000 and the 10,000 has to do with visitor count. There is a, currently in the Code, if you look at the paper I was mentioning, right there (d)(1) it refers to the agricultural activity having a minimum gross sales of 10,000 dollars. UNGER: Okay, so that’s still even in with your proposal — DARROW: No — UNGER: — recommendation back to the County Council? DARROW: Yeah, we’ll, if it’s okay, if I could address that question when we — UNGER: No problem, no problem, I just — DARROW: Okay. UNGER: — I just did remember seeing that. DARROW: In fact, I think that’s taken out of, in Bill 227 as well. UNGER: Good, we’ll get back to that then. DARROW: Yeah. So back to the commercial operations, it’s good you brought up that point regarding the definition of a working farm. So we’ve been having these meetings; this whole endeavor has not been without a lack of many meetings with different people and agencies. One of them was with Office of Planning and different members of the County’s throughout the island. They had, we were unaware of this, but apparently, the legislature when they adopted this bill for agricultural based commercial operations, also included that as a farming operation. So in a sense it wasn’t just talking about a farming operation like cattle and raising, you know, fruit or whatever; it also said that if you are doing an agricultural-based commercial operation, that is defined as a working farm. So that really put a wrench in our process there. But the nice thing about the law is it does allow the counties to further restrict or define the law, and that’s what we are attempting to do here. Again, to bring it back to where both ag tourism and commercial agricultural operations are linked to a working farm, and that they are secondary and accessory to the main use, which is a working farm. CHURCH: Jeff, I’ve got a question here. DARROW: Sure. 11 EXHIBIT A CHURCH: I don’t have issue with a well-crafted ordinance and so forth, but I go back to enforcement again. I saw this when I was the chairman of the Tax Board of Appeals for years where there were so many violations of people who were in ag zoning getting ag assessment benefits and clearly weren’t conforming to the requirements. And so the issue here is, how do you go about enforcement? And then the question is, somebody has to do it and how do you pay for it? And to me, it seems pretty simple; people driving around, stopping these operations, checking them out, how do you pay for it? And I think that the mechanism, which I don’t see here at all, is penalties which are severe enough to fund these types of things where they self-fund themselves and, you know, for people get slapped on the wrist, they get some notice, they ignore it completely. You are not going to get enforcement here. You know, I don’t care how well it’s crafted or not, you are not. The provisions here don’t provide for that. I don’t think you have an answer to it, but unless we start thinking in those directions, we will have limitless ordinances, which are well-intended and well-crafted, which people ignore. SHIMAOKA: A question I’ve got is, is there any I guess mechanism that allows for site visits to define, or determine, that these guys are agricultural, as far as our definition of that? DARROW: What I’ll do is, I’ll answer the questions. Maybe it’s better if I answer them now versus wait until, so let me answer Chairman Unger’s question first regarding the minimum 10,000 gross. So let’s do that, and then I’ll touch upon it when we go through it. Both in Bill 227, if I can refer you to that item, I believe it’s in Exhibit 2 — I’m going to be jumping around here, so please, I apologize for taking a little time, okay, so, yes — Exhibit 2, okay, this would be Section, this is on Page 6 of the bill, or it actually goes to 7 — wait, wait, am I even in the right — UNGER: Yeah, Page 7 — DARROW: — yeah, so, it looks like, for some reason I thought she took it out, but it appears to still be in there, I want to make sure this is the right bill, but it looks different from, okay, that’s why, all right, I believe it’s Exhibit 1, okay — so Exhibit 1, Page 3, (d)(1), that’s where it references the minimum verifiable gross sales of 10,000 dollars; that’s been crossed out. And so at that point there was no minimum requirement. Basically, what the, if you look at No., the new No. 4, which is on Page 4 down at the bottom, it’s basically making a statement that the gross revenues from agricultural tourism shall not exceed the gross revenues of the associated agricultural activity and/or agricultural processing facility. So the reason why, I think, she took it out is because, and this is in discussions with Councilman Wille, we have several meetings talking about the bill and the changes that the Planning Director was looking at making to make sure that she was not really against it but understood where we were going, so we just didn’t do this without counseling with Councilman Margaret Wille. But what happened was is that apparently the people that had come and talked to her said this process is not working, it’s too restrictive, we can’t, we don’t have the means of being able to come in and do all this stuff, we are just farmers; that’s kind of the reasoning behind some of these changes to make it less restrictive and less burdensome. One of the big burdens they said was having to provide financial records, being able to show this relationship between the agriculture versus other agricultural tourism activities. I’m not sure how true that is or, you know, anything about that; one thing I do know is that in our other 12 EXHIBIT A meetings with other counties, they did say that one of the most difficult things for them to enforce was determinations regarding tax records or financial records and making those calls. They just felt like they weren’t able, it was just too much for them, as far as the planning departments; it was almost as if you had to have a tax person or somebody that was more experienced in financials to be able to make those determinations. But regardless of that, the change in the bill is that they have to be able to show proof, if requested — okay, that’s the key there. If there is a clear indication that there’s, it’s lopsided, the agricultural tourism is beyond the agricultural uses on the property, the Planning Director, and this gets to Commissioner Shimaoka’s question, there is a provision under (k), which is on Page 8, that says — SHIMAOKA: “May.” DARROW: — yeah, “may conduct a site inspection for any proposed agricultural tourism \[operation\] and may make periodic inspections on any agricultural tourism operation without prior notification.” Now, in getting to Commissioner Church’s question regarding enforcement, this is a difficult issue, because as mentioned, and this was mentioned at the Council hearing, is that without receiving complaints or without any indication other than somebody driving around and actively looking for this, there is no real way to be able to know that these activities exist, without us being, without us receiving some sort of Plan Approval or Special Permit, or this proposal is for registry form that would be filled out. And so that’s the difficulty that even the Director had mentioned at Council. CHURCH: Jeff, let me ask you. Do you think that if you had somebody driving around, you would find violators? DARROW: Well, I’m sure that you could. And, you know, there are means to do it; there could be sweeps, sometimes just going on the Internet and looking for agricultural tourism operations, a lot of these operations that aren’t permitted are most likely doing other unpermitted things as well. So it wouldn’t just be the ag tourism. As mentioned, some of these hold weddings. In our current code now, if you do certain activities even with the agricultural tourism, it triggers a need for a Special Permit; overnight accommodations, weddings, these parties, those kind of things currently require a Special Permit beyond that. But, yes, it could be done. Now, in regards to the question of how much to enforce, we’re, we’re again, there are certain laws in place, and unless we change those laws, we are kind of stuck to having to deal with those laws. Right now there’s, most of these, if not all of these, agricultural tourism operations are located within the State Land Use Agricultural district as well as the County Agricultural district. Before the County can issue a violation in the County’s Agricultural district, if the violation is in a State Land Use Agricultural district, there is a code, there is a law that states we have to send out a warning letter first, we have to give them 60 days to comply, and if they don’t comply, at that point we can issue a small fine, and then we can issue our notice and our fines apply. And so that’s why in our proposed language we made it more general so that we just have, we just utilize the enforcement procedures available. 13 EXHIBIT A Now, let me just say this so that we can all be aware of what the Planning Department is trying to do. The Planning Department is not sending up a new bill right now, okay? It was posed with the question whether or not we should, you know, look at this bill, change it, and send up a new bill. But we looked at the past and realized that once it gets up to Council, a lot of times they go through numerous drafts because of changes that occur through public testimony, that it’s better to try to bring up some alternative language that they can consider and possibly draft up a new ordinance in relation to all these issues that are being brought up through testimony that we’ve received through the Commission. I mean, even since we’ve received this and done our background, we’ve got other issues we’d like to deal with. Lot size is a question that came up; should we create a minimum lot size, maybe five acres or ten acres? But right now, the way the Code is, it allows it in certain districts that are small that allow half-acre lots. RA zoning district allow for half acre. Our current code for ag tourism allows ag tourism on rural zone lots. So again, that’s a consideration that may minimize some of these issues. I mean, the reason why we considered that is because a lot of these subdivisions are one-acre, two-acre, three acres in size. If these agricultural tourism operations are operating there, most likely they are having a significant impact on the surrounding property owners. So we were thinking maybe five acres might be a good minimum to consider. Some people may say but that’s unfair, we are zoned Agriculture, we should be allowed to do that. But again, that’s the reason for the ordinance is to be able to try to vet this out and create minimum impacts. Anyway, I hope I’ve addressed your questions. NOBRIGA: I have a question. DARROW: Sure. NOBRIGA: Is this on? DARROW: I think it’s on. NOBRIGA: Do you have any idea, any guesstimate, of how many of these operations are in progress now? DARROW: I, I don’t, I mean, we’ve tried to figure out how many there are, we just have no clue. We’ve been working with Hawai‘i Agricultural Tourism Agency, HATA, and they informed us they had, I believe she said 200 members, but I think that’s island-wide, I mean state-wide. As far as on the island, we are just not sure. I mean a lot of these may not be, they may be doing tourism and they may be on an agricultural zoned lots but not ag tourism. You know what I mean? Because, again, they probably, a lot of these guys are just zoning violations; there is no agriculture on the property. And so that’s the dilemma we are running into is trying to figure out how many there are, where they are, and the process that would kind of bring them in, you know, because right now our process isn’t working. CHURCH: So the, you know, and I’m not trying to give you a hard time, you guys are doing the best you can, I understand. But the goal is not, is simply to know, to be able to identify all of them, I mean, that’s the goal, and not necessarily shut them down or anything, but to know that they are there, and that they conform to the requirements under the law, which then makes the entire situation work better. This law doesn’t do this; this ordinance change doesn’t do it. It has 14 EXHIBIT A great objectives, it has good goals and all that; so I’m not giving a hard time on it. But we are not going to get there with this, if that’s the goal. The goal is to know how many, to be able to answer Barb’s question, a pretty reasonable question — DARROW: Sure. CHURCH: — where are they, how are they operating, and get them to conform to the communities that they are in and comply to the general definitions of what ag’s operation should be. We can’t get there with this ordinance; it won’t get us there, Jeff. DARROW: Right — SHIMAOKA: Well, I’ve got, can I address Ms. Palma-Glennie on this issue? UNGER: Actually, I’d rather stay right within the realm that we are at right now. SHIMAOKA: Okay. DARROW: If I can just address Commissioner Church’s, I think my answer may have not been correct. My, what I’m trying to say is we don’t have an idea of how many unpermitted agricultural tourism operations there are. We, as far as the Planning Department goes, we’ve had two Plan Approvals for agricultural tourism on the Hilo side since 2008, and we have six, seven, one withdrew, on the west side of the island. So for a total of the entire island of agricultural tourisms, there’s eight permitted through ordinance 08-155. And there were several prior to that that were approved through Special Permit; some of the larger operations that have been operating prior to 2008. Doutor Coffee is a good example of one of those. KEALOHA: Can you elaborate on the challenge you mentioned of the proof of income? I mean, if you are commercial agricultural operation in the County of Hawai‘i, you are required to report G-49’s, General Excise Tax statement, that would in effect determine farm production, wholesale, retail production of the farm. That’s pretty generic; it’s not a complex tax question. DARROW: I, again, I’m not sure about that. Just in discussions with counties that have been doing this, they said it’s been a very difficult process for them. And they actually are trying to get away from that as far as being the means of determining this relationship financially. And again, I’m not privy to that. Our division, as far as the Planning Division, is not the ones that actually do this, as far as monitor it. But again, the, since 2008 we’ve only had a handful of people come in. Currently, I don’t think they’ve been, you know, consistently asking every year for records to come in. This bill is asking annually that these farmers come in. We can’t even get them to come in with step No. 1, let alone a yearly step. UNGER: Jeff, why don’t you go ahead and go through your presentation at this point? And then, Commissioners, let’s hold our questions till the end. I’d like to just let you go through your presentation. 15 EXHIBIT A DARROW: Sure. Thank you. So we are back on Bill 227, Draft 2; this is the bill that has been sent down from County Council. These are just some of the key points. We touched upon the change to the agricultural tourism. Commissioner, or Councilmember Wille also added in the Definitions, a section that says, “but not include educational tours sponsored and conducted by public \[or\] private schools located within the County.” We were unsure about that, but in discussion it was because this is actually permitted under another section of the Code and they didn’t want those to be combined together; agricultural education tours are a separate permitted use. There’s new added definitions for “agricultural products” and “agriculturally-related products.” Under the Plan Approval section, as mentioned earlier, there is a change. Instead of having each person come in for Plan Approval, or each applicant, only the ones that would be doing new construction or any addition to an existing structure that exceeds ten percent of the existing structure. Additionally, there has been changes to the requirement for information to be provided with Plan Approval, including, but not limited to: allowing on-street parking, if adequate; deleting the 1,000-square foot limit for facilities principally utilized for the agricultural tourism activity; and, adding an allowance to request a waiver from the Planning Director from the requirement for a site drainage plan upon certain circumstances. Under the Agricultural Tourism section, which is 25-4-15, she has removed, I’m sorry, the section has been removed, that had the requirement to provide evidence of a minimum of 10,000 dollars in verifiable gross sales, exclusive of any income from agricultural tourism activities or any other non-agricultural activities for the year preceding the commencement of the agricultural tourism activity. Additionally, the bill has reduced the maximum amount of visitors allowed before requiring a Special Permit or a Use Permit from 30,000 visitors annually to 10,000 visitors annually. Hours of operation have been changed from 8:00 a.m. to 6:00 p.m. daily to sunrise to 6:00 p.m. daily unless otherwise approved by the Planning Commission upon a finding there will be no significant adverse impact on the surrounding neighborhood. That’s, the Planning Director’s alternative language has that being approved by the Director; for just a request to come before the Planning Commission, it should be for a Special Permit or a Use Permit or some type of permit from the Commission. Added requirement to provide adequate road and site access for fire, ambulance, police and any other vehicles related to emergency response. The deletion of the 1,000-square foot limit, as mentioned earlier. Continuing on, changes to allow a waiver process from the Director to allow additional time under certain circumstances to meet the requirement of gross revenues from the agricultural activity exceeding gross sales from agricultural tourism; sometimes there’s situations that arise, maybe your crops don’t do well or maybe you are just starting off and it’s going to take you a period of time for those trees or the revenue to build up to that level for the agricultural aspect. So there is a waiver process. This also includes a section that prohibits agricultural tourism in Waipi‘o Valley or where the property is only accessible by four-wheel drive. And it extends the compliance deadline to July 1, 2017, for existing non-compliant agricultural tourism operations. This is the process now versus our current process of Plan Approval. It would be a yearly registration, it would probably be a form with questions regarding what are the minimum or standards for agricultural tourism where the applicant would have to fill it out and identify that they meet the standards. We would have the information as far as where they are at. And that 16 EXHIBIT A would be a big step there; at least at that point we know there is an operation in this location. We would have a certification that verifies that they have said they’ve met the standards and they understand in the process that if they don’t meet the standards, they are going to need a Use Permit or a Special Permit. This comes with a 100-dollar processing fee, and they would need to submit financial records and a daily visitor count record annually. And then, again, that section where the Director could conduct site inspections at any time prior to notification, and a section for enforcement of the violations. As mentioned, going through the bill the Planning Director is recommending that the Planning Commission send up an unfavorable recommendation with this bill, but is recommending that the County Council consider alternative language that the Planning Director is sending up. These are the reasons: The Planning Director is generally in favor of the direction of this attempting to be defined by the bill, which is to make the permitting process less restrictive and less burdensome for the agricultural tourism operations, but issues this unfavorable recommendation based on the need for further clarification and changes within the bill that are structurally significant from that represented in the bill. If there was minor changes that the Planning Director was suggested, we could send it up with a favorable with a request for minor changes, but the changes that the Planning Director is recommending are significant, so at that point we need to recommend unfavorable for this particular bill. And again, rather than send up a new bill we send up alternative language and allow the Council to be able to determine which way they would like to go as far as direction with the agricultural tourism ordinance. The Planning Director is offering alternative language and suggesting to simplify the process even more by deleting altogether the requirement for Plan Approval and to have all agricultural tourism operations be required to register one time instead of a yearly registration. The registry form will have questions to verify compliance with the standards and guidelines of the agricultural tourism operation as listed in 25-4-15(d), but will also have questions currently listed on the Department’s Agricultural-Based Commercial Operation Certification Form, and that, again, I think was Exhibit 6 in your background. Similar to the current permitting process, if an agricultural tourism operation goes beyond the limits of Section 25-4-15(d), the operations will need to submit for a Special Permit or a Use Permit, which can be determined through the information submitted in the registration form or if a complaint is received and the Planning Department conducts a site inspection and observes the operation is operating beyond the limits of 25-4-15(d). These are some of the changes that the Planning Director is proposing. We agree with the change of the adding in the agricultural-based commercial operations but the taking out the reference to the agricultural education tours. We’ve added in a new definition so that people understand the definition of what an “agricultural-based commercial operation” actually is, as well as “agricultural products.” We’ve deleted in its entirety the Plan Approval section for agricultural tourism. And then in the Agricultural Tourism, we have also removed the requirement to provide evidence of the minimum 10,000 in verifiable gross sales, exclusive of any income from agricultural tourism activities or any other non-agricultural tourism \[sic\] activities for the year preceding the commencement of the agricultural tourism. We are suggesting instead of 10,000 as the maximum, we feel 15 \[000\] might be more appropriate. There might be a number of these agricultural tourism operations that are operating right around 10,000 or maybe a little more, which would require them to have to go through this, the Special Permit or Use Permit process. So 15,000 seemed a bit more reasonable. We would suggest keeping the hours of operations the 17 EXHIBIT A same, but it allows if, the Planning Director would approve a change to that, if there is a finding that there would be no significant adverse impact on the surrounding properties. We’ve kept in the requirement, different from the Bill 227 Draft 2, we’ve kept in the current requirement, which states they need to show that they have an existing legal access to a public highway, which may be via a private road or easement. Again, this was the previous requirement of agricultural tourism, of the Plan Approval section. Additionally, we’ve also agreed to the waiver process for up to two years, if the operator can provide written evidence to the Director’s approval that the revenue from the associated agricultural activity and/or agricultural processing facility was adversely impacted due to unforeseen environmental or economic conditions. There is a change to allow the sales of agricultural products grown in Hawai‘i and produced \[sic\] agricultural products where the main ingredient was grown in Hawai‘i, instead of only grown on the Island of Hawai‘i. Our current ordinance states that it’s on our island versus in the State of Hawai‘i. We’ve also added in a section regarding prohibiting agricultural tourism in Waipi‘o Valley or where the property is only accessible to four-wheel drive. In regards to non-compliant agricultural tourism operations, instead of putting a date on it, if there is to be an ordinance that’s passed, the allowance would be for a period of 90 days from the effective date of the ordinance that is passed. Continuing on, we’ve added sections regarding agricultural tourism operations that are currently permitted through Plan Approval, Special Permit or Use Permit; it’s kind of a non-conforming or grandfather clause. The addition section of a registration process with a 100-dollar processing fee, which will allow the Director an option to request for additional information, such as financial records or daily and yearly visitor counts, if needed. And again, that section regarding the site inspection without prior notice by the Director, and the added section for enforcement. I think that concludes our presentation. Thank you for your patience on this. UNGER: Thank you. DARROW: I’m available for questions, if there are any. Thank you. UNGER: So we do want to open up for questions again, Commissioners, so, if you have any questions at this time. SHIMAOKA: Yeah, I saw one that got my attention, the change from yearly to one time registration for the agricultural tourism businesses. What’s, I see that the reasoning was, it didn’t seem to make sense to me because of what we are dealing with. DARROW: Yeah, it’s a suggestion. And again, the reason behind it is that we’ve had very little success in what little we’ve required already. And so we didn’t, to be able to think that these agricultural tourism operators are going to all of a sudden based on a new ordinance come into compliance with that is, might not be, I mean it may be very hopeful. But the reality is if we can get them to come in and register at least once, we know where they are, we know who they are. If we receive a complaint, we can go out, we can deal with that, we can look and see if they are compliant; if they are not, then we have them go through a Special Permit at that point. So it’s more, it is a situation that will be more, as far as if these agricultural tourism operations aren’t affecting surrounding property owners or anybody, we are not going to hear about it most likely. If they are, we are going to hear about it and we are going to address that accordingly through our 18 EXHIBIT A enforcement section, as well as our normal procedure is to give them an opportunity to come into compliance, which in this case would be coming in through a Special Permit or Use Permit. UNGER: I heard that a conflict in number of complaints received; the testifier explained there were numerous complaints lodged and then lawsuits followed because nothing was followed up, and then your presentation you talked about really a minimal amount of complaints. Did members of the Kona community complain in the last couple of years over ag tourism? DARROW: I asked for information regarding that from our inspectors; unfortunately, I didn’t get any. But in speaking with our testifier the situations that she was referring to were situations prior to the adoption of this ordinance. I, it’s ironic that I happened to be the zoning inspector on one of those, but that was probably right when I was transitioning to planner. But again, there, these operations even back then would have required a Special Permit because they were not — UNGER: Right, there’s no ordinance. DARROW: — yeah, there was no ordinance so it would require a Special Permit. I’m not sure what the problem was as far as enforcement. I know that the one I was dealing with we did issue violations. But again, there comes a time where attorneys get involved and it becomes a legal issue. Thank you. KEALOHA: Sorry for putting you on the spot here, but I’m trying to get my head around some of these amendments. So on the one end we are eliminating the 10,000, the proof of 10,000 in ag production to begin operations because it’s too complex to analyze. But then we are saying they need to prove that gross revenues from the farming activities exceed the gross revenues from the ag tourism activities, which is a little bit more complex to decipher. And finally, we are talking about acceptable levels of production, if there was some kind of force of nature that prevents them from reaching agricultural goals, which is even more complex. And if you don’t have a baseline for what their production is, how do you then determine, you know, what was the exigent circumstance that prevented them in any given year from meeting agricultural goal? It seems like, it seems like we are kind of going on a slippery slope here where there’s no baseline, yet we have all these restrictions to check back on their operation. I don’t know how, I don’t know how you would be able to enforce any of the second two without having some established baseline before you approve the ag tourism upfront. DARROW: I understand your concern, I mean, we’ve been struggling with this for eight years. The, again, the problem we’ve had is lack of response. And so we are trying to figure out a way. I think the intention of the County Council was to try to simplify a process, and we are saying okay, we agree with that, let’s try to see if we can simplify this to see if we can get a better response from what we’ve got in the last eight years. Now, as far as determining gross agricultural versus gross agricultural tourism, I think it’s just going to be a matter, again, if we are receiving complaints that, you know, tour buses or activity is generated that’s causing significant impacts to the surrounding properties, then we can go out and do a site inspection and determine whether or not they actually are complying with the terms of the ordinance. It’s going to be to the point that, I mean, if they come in and register, they have to verify on this registration form that they are going to meet these standards or limits. If they cannot verify that, we are just going to inform 19 EXHIBIT A them they’ve got to come to the Special Permit for them. If they end up later we get a call or complain and we find out that they are not actually complying with the certification or registry that they submitted, then we would again enforce that by either fines, but again, giving them an opportunity to come in and go through a Special Permit. The Special Permit is going to be if they do not meet the standards, they will have to come in, or if they even exceed the standard beyond what the limits are. So there, it’s a tough situation. I think the Planning Director had mentioned the same thing in a Council hearing is that it’s a tough, tough situation to try to come to a process that works unless we try a change and see if that works. I mean we can, you know, we can create an ordinance that’s very restrictive and enforce and, I don’t know, maybe that will work but maybe that will, maybe that will just make it more difficult and these guys end up not responding at all in regards to that. Again, to enforce, either we’ve got to go drive around and find them or we get a complaint. I mean we can do an active search, but right now I know our zoning inspectors are pretty maxed out just keeping their head above water with the complaints we receive on a daily basis island-wide. So to try to do a sweep, or, is difficult without more manpower. UNGER: Thank you. Commissioner Carr Smith. CARR SMITH: Yeah, I have a couple of comments. I’m surprised that there’s only nine registered agri businesses around, or tourism — DARROW: There are several that are under Special Permit as well. CARR SMITH: Oh, okay, okay. Yeah, it seems to me like we are just making it more difficult for people to follow the rules with all of the restrictions. I would assume that that’s why a lot of people perhaps don’t come forward and maybe register. It seems pretty restrictive again, and I think that’s unfortunate. Many people are just trying to make a living and have their business, and to have limitations, like you have to prove that you can make a certain amount of money, I don’t think that’s reasonable at all. I appreciate that the previous Planning Director and the Department went through and tried to clean up some of this stuff. Most of it makes sense to me. I am confused, though, why the ag tourism is only related, if it’s an accessory business, I mean I would think that there’s plenty of businesses that are ag-related and ag tourism businesses that are not an accessory business to a farm or ranch. Can you speak to that at all? DARROW: Sure. There is quite a number of operations similar to that; we have lodges, people come and stay overnight in agricultural lodges, rural zoned areas, very little agricultural activity going on on the property. And these properties may have the potential for agriculture; they just choose not to do that because that’s not what they wanted to do. So their option available to them is coming in through the Planning Commission for a Special Permit. We have a number of different types of uses that come before the Planning Commission that are in agriculturally zoned areas that bring tourists or visitors to the property, but are not considered ag tourism because there’s no relationship to the agriculture occurring on the property. But if they do want to become an agricultural tourism operation, I mean, a lot of them are, you have a coffee farm that they want visitors to come and see the process of how you grow coffee and how you process coffee, and it’s all tied in together. So again, there has to be that balance of agricultural primary and visitor tourism secondary. 20 EXHIBIT A CARR SMITH: Thank you. CHURCH: Jeff, I just, one more thing here, and I don’t mean to sound like a broken record, but, you know, I don’t know if you’ve ever tried to liaise with the tax department over there; they have some of the same issues of enforcement. They think they are leaving millions dollars on the table because of people that abuse of the tax assessments and versus zoning, and they are unsure how to go about it. I tossed that crazy idea, which is to put them on commission for the tax dollars that they recover, and I know it would be unpopular. But they have enforcement issues, you know, you could issue a rubber nose and glasses, you know, so that they wouldn’t be identified, but they have some of the same issues, and I don’t know if you’ve ever tried to liaise with them to try to create one or more positions where they could self-fund and tighten up things. DARROW: Thank you. We’ll definitely look into that. Thank you. UNGER: Commissioners, any other questions? Thank you, Jeff. DARROW: Thank you. UNGER: Sure, go ahead. ARAI: I think, and Jeff did a wonderful job with the presentation and trying to provide clarity in what was, what is, and continues to be a very complex situation. But let me try to, I don’t mean to overly simplify this, but I also want to also make sure that we have proper perspective. The State, the Legislature found it fit to basically classify agricultural tourism and even ag-based commercial operations as permitted uses, and then empowered the counties to decide whether they wanted to implement it within their local zoning laws. County of Hawai‘i elected to do so as it pertains to agricultural tourism and also ag-based commercial ops. So the Legislature, which defines the use of agricultural lands, has said they see it as consistent with the intent and purpose of the State Land Use Law when it comes to the perpetuation of agricultural land and agricultural uses. So I always keep that in the back of my mind when I try to assess something; what is the original legislative intent? Then I also take into consideration that what is agriculturally designated lands, and in many ways we are not here simply to preserve the sanctity of someone’s property. It is ag lands first and foremost; it allows for cultivation, propagation of crops, animals, you can have piggeries, I mean, there is just so much. Noise levels under State Department of Health laws can go up to 74 decibels, I think, which is, or 75 decibels, which is pretty loud. So I’m trying to keep all those things in mind. But I have also come to the conclusion over many years of trying to deal with this is that we are first and foremost a land use agency; we are not a police agency. We try to define what classes of uses are considered reasonable, and the Zoning Code and the State Land Use Law then defines it. There is a point where I feel if you overregulate something, then maybe it’s not worth allowing it in the first place, as simple as that. And that’s where we are trying to find that balance. We understand that individuals, like Ms. Palma-Glennie here has unfortunately had to deal with issues personally, but I think the record will show that with everything that we have to deal with in the 21 EXHIBIT A County of Hawai‘i, we just have not had that many complaints or that many issues when it comes to ag tourism and ag-based commercial ops. Yes, there is the potential for abuse. But with limited controls and the ability for the Planning Department to respond to complaints, we can each then assess each case individually and, hopefully, appropriately. So I just kind of wanted to cast that broad, you know, and hopefully, provide some, better perspective of how we are trying to deal with this, trying to be sensitive to the concerns, but at the same time not create a situation that basically people just avoid us, or they go underground. So — SHIMAOKA: So the question then I was wanting to determine is that, with this particular lady here, has this been the majority of the complaints that we were getting, is from her area? ARAI: I, Jeff, I don’t believe that has been the case, it has been somewhat scattered, right? I mean not centralized in one specific area. I know closer towards like the south end of North Kona and the South Kona area has experienced some issues. I think we’ve had a few complaints in the Puna District, if I remember, was it in Puna? DARROW: Yeah, we’ve, in regards to complaints, there’s been very few complaints. That’s the issue. We’ve only had one complaint in Hilo and it was on a residentially zoned property; it wasn’t even agriculture. SHIMAOKA: So my question is, if this is an isolated incident — DARROW: These were prior to the ordinance — SHIMAOKA: Oh, okay. DARROW: — and that’s why I was trying to get clarity from her. I’m very familiar with the situations we are talking about. These were years ago. It sounds like — UNGER: Prior to 2008. DARROW: Yes. SHIMAOKA: But it seems like it’s still taking place — DARROW: I’m not sure it’s — SHIMAOKA: — according to her. DARROW: — I didn’t get that impression from her when I was talking to her; it sounded like it was resolved legally, but they had to go to that extent to resolve it. You know, sometimes the Planning Department can be there and issue a violation, but we can’t be there all the time. And these guys will do things even when we are not there, and our powers only go so far. Even issuing fines, they still will conduct their activities, thinking, well, we are making more than the fines, and they’ll just keep operating. And we have to go to the point where we end up having to get our legal help to go to a judge to ask for help on these. 22 EXHIBIT A UNGER: Great. Thank you. Very good. At this time I’d like to ask for a motion. And to clarify what we are making a motion on, again, the County Council has put forth Bill 227, Draft 2, and basically we are either making a positive recommendation for that or a negative recommendation for that. So one recommendation can be just straight up a motion to forward a positive recommendation to the County Council on Bill 227, Draft 2. As we’ve heard, the Planning Department with their recommendation has come up with an unfavorable recommendation for the points mentioned. So a motion again can be either favorable or unfavorable, and your unfavorable recommendation, if that’s how you choose to make your motion, can be as simple as forwarding to the County Council an unfavorable recommendation in order to further clarify changes proposed, or a recommendation could be as proposed by the Planning Department. So with that, I would like it open up to a motion, and if you do make a motion, try to be as specific as possible. Thank you. Commissioner Church. CHURCH: Mr. Chairman, I would, I would move that we, that an unfavorable recommendation be forwarded to the County Council on Bill 227, Draft 2, based on the Planning Director’s recommendation that Bill 227, Draft 2, needs further clarification and changes and proposed alternative language, which shall be adopted. UNGER: Do I have a second? KAHOLO: So move. UNGER: We have a motion on the table. Open for discussion. Commissioner Carr Smith? CARR SMITH: Shouldn’t that further state, “as proposed by the Planning Department?” UNGER: Yes, and that’s what the motion is; Commissioner Church did make that motion. CARR SMITH: Okay, I didn’t understand that the way he stated it. Thank you. UNGER: Yeah. So motion is on the table. Open for discussion. Carr Smith. CARR SMITH: I support the motion. I think the bill is complicated, and I’m not sure it’s the answer. But the Planning Department’s attempt to clarify and simplify some of these things is a step in the right direction, I believe, so I’ll be supporting it. Thank you. UNGER: Thank you. I support the motion also. And it is a complicated issue, and I do give credit to the County Council for addressing it and for the Planning Department to spend this much time addressing it also. It is a difficult situation. And I went back to the, to the Kona Community Development Plan, and in the Vision for the Future of Kona it calls for considering all aspects of agriculturally profitable areas. In the CDP Goals it talks about ag lands are preserved in the manner that supports small family farms, eco-tourism and the self-sufficient agricultural economy that encourages the local use of local products; so that is what we are talking about. The problem with the Community Development Plan is that it talks about vision, it talks about goals; where we are at is community members going, okay, how do we implement this thing, and it’s not easy. It’s 23 EXHIBIT A not easy, but for me I simplified it. And this motion, again, I simplified it, and exactly what you said, okay, we are trying to do this, we are trying to give this opportunity to farmers to do this, if they, right now, and, and we’ve said it in the Community Development Plan, right now they are not doing it. They are not doing it, and so while the current ordinance goes, it recognizes and goes somewhat down that path to simplify, this goes even further down the path to simplify it. And I like the part about not duplicating; there is no reason to have a plan and a certificate. Do one or the other. In this case it’s a certificate. That’s great. As far as clarify, if an ag tourism business goes over 15,000 people, that’s pretty straightforward, not talking enforcement, but if it goes over that, believe me, that ag operator will know he’s over 15,000 a year, will know he’s over 15,000 a year, and by that, by that definition it flips over to a Special Use or Use Permit, and believe me, that’s when you get into, dust control, forklifts being covered, water, educating tourists, I mean, you can go on and on. Like Daryn said, okay, at what point do you create an ordinance that takes into account every situation that could possibly happen, and you ordina- and you write that into the ord- you’ll have a 300-page document that nobody will apply for. Right now nobody is applying for what we have in the books right now. So I would like to see this pass and, again, this is just a recommendation to the County Council, and I’m really glad members of the County Council are here because we are speaking to you. These are just recommendations and they are going to be going through their entire thought process also. But I think our main point by having this discussion, and making this motion and approving this motion is, hey, it’s not working right now. And we are not talking about lightening the regulations; this is more lightening the process to where a farmer who wants to set up a roadside stand can — he comes in, he fills out his application, his certificate of, his certificate. And that really should get him well on his way to opening up his fruit stand. And I live in South Kona, and South Kona Fruit Stand is a great example. Twenty years ago they popped up a cardboard table and an umbrella; today they are a full-blown operation, they bulldozed their parking lot, they put up their stand, it is a viable operation. I’d love to see 30, 40, 50 South Kona fruit stands set up and working under the guidelines of this ordinance. And in order to get there, we need to make some changes, and so I like these changes. Any other comments? We have a motion on the table. Mr. Darrow, can you call for a roll call? DARROW: Sure. The motion before us is to send an unfavorable recommendation for Bill 227, Draft 2, to the Hawai‘i County Council. With that, we’ll take the roll call. Commissioner Church? CHURCH: Aye. DARROW: Commissioner Kaholo? KAHOLO: Aye. DARROW: Commissioner Carr Smith? CARR SMITH: Aye. DARROW: Commissioner Kealoha? 24 EXHIBIT A KEALOHA: Aye. DARROW: Commissioner Nobriga? NOBRIGA: Aye. DARROW: Commissioner Shimaoka? SHIMAOKA: Aye. DARROW: And Mr. Chairman? UNGER: Aye. DARROW: The motion passes, seven to zero. UNGER: Thank you. The discussion ended at 11:08 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 25 EXHIBIT A