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HomeMy WebLinkAboutCOM 0675.040 2022-2024 January 23, 2024 Hawai'i County Council Committee on Planning, Land Use, and Development 74-5044 Ane Keohokalole H Bldg A Hwy, g c;: Kailua Kona HI 96740 RE: Comment on Bills 121 and 123 Aloha Chair Kierkiewicz and members of the Committee, This testimony is my personal opinion based upon my knowledge and experience. I am not dni attorney. The following terms should be defined in Bill 121: "non-conforming use", "farm dwelling"and "related agricultural activities" to provide essential context and clarity. These bills are being brought forth into a long-time, on-going litigious environment when it comes to dwellings in the state Agricultural Land Use District(ALUD)that are not farm dwellings or related to agricultural activities. The state Land Use Commission has ruled on numerous occasions that a dwelling situated on land located in the state ALUD is subject to HRS 205 and must be a "farm dwelling"or related to agricultural activities. The county is aware of this fact because it has been issuing a"farm dwelling notice" for any building permit for dwellings in the state ALUD. This notice states that HRS Chapter 205 does not authorize residential dwellings in the state ALUD, unless the dwelling is related to agricultural activities or is a"farm dwelling". Bill 121 should include specific language acknowledging the fact that this state law prevails over county law, rules, and regulations, including use permits. There are currently several cases challenging transient accommodation rentals (TAR) in the state ALUD. So it is likely this issue will come before the state Supreme Court within the next few years. If the county council is going to wade into this litigious environment, it must draft and pass legislation with language that clearly complies with existing state law and legal precedent in order to prevent errors in future discretionary and/or administrative approvals. Bill 121 should include language that clearly communicates restrictions and requirements to prevent misunderstandings in any transactions involving HRS 205 and dwellings located in the state ALUD. For instance,this would assist realtors, sellers, or developers from making material misstatements of fact that dwelling(s) within the state ALUD can be used as transient accommodation to create additional income to justify a higher market price, which would then increase the cost of neighboring ag properties and property tax valuations. Comm. No •LI1/ Ref. To: I Ref. Date AN 2 1, Bill 121 should include language that would prevent such instances as the following. A property was purchased in a subdivision in the state ALUD. The owner subsequently converted an ohana to a TAR. When neighbors filed a complaint with the Planning Department to disallow the TAR in the state ALUD, the Planning Director refused to take appropriate action. The only option available to the neighbors was to then file a case with the county Board of Appeals (BOA) to appeal the decision. For unknown reasons, the BOA did not allow a"full and fair"hearing and instead issued a summary judgment, which it is not allowed to do. The only option for the neighbors was then to go to a state Circuit Court in order to force the BOA to give them the"full and fair"hearing that the laws and rules require. Meanwhile, the offending property owner applied for a building permit for another TAR on the property, which was approved, despite the on-going litigation. So while the neighbors are spending thousands of dollars trying to enforce the county's laws, rules, and regulations, the property owner is spending thousands of dollars building another non-conforming dwelling without a use permit. In another instance under a previous county administration, a property owner was granted an agricultural Condominium Property Regime for an eight-acre property near Napoopoo village on the slopes of Pali Kapu 0 Keoua. The property owner built a luxury home on one parcel. The property owner then applied to build additional farm dwellings on each of the other two parcels. These were also granted. The property owner subsequently converted all dwellings into vacation rentals. A complaint was made and a county inspector went to the property. The property owner was not cited because there was a tool shed on the property allegedly being used for agricultural activities, despite the factihere were no actual agricultural activities occurring on the properties. Because of the frequency in which these types of situations have been occurring,there is an. understandable impression within the agricultural community that this is a scheme by the county to grant non-conforming uses in the state ALUD and that these uses have been undermining the socio-economic environment necessary for Hawaii and its agricultural communities to achieve food self-sufficiency, not to mention the negative impact on affordable housing for farmers and farm workers. The bottom line is that Bills 121 and 123, as currently written, do not come close to addressing non-conforming uses in the state ALUD for dwellings that are not related to agricultural activities or are"farm dwellings". Language must be added to make it crystal clear to the county government, business, and the general public that dwellings in the state ALUD that are not related to agricultural activities or are "farm dwellings" are strictly prohibited. With further regard to Bill 121, why is the April 1, 2019 "grandfather"effective date of Ordinance 18-114 being removed and a new"grandfather"effective date of January 1, 2024 being proposed? Specifically, are illegal uses that have occurred between these dates being legitimized? With further regard to Bill 123, an"accessory dwelling unit" on FA or RA zoned land is an "additional farm dwelling". So the term "additional farm dwelling" should be defined and language added to the bill to differentiate between the two allowed uses. Also,regarding Section 8 of Bill 123, existing Zoning Code Section 25-6-30 and all parts of Section 25-6-31 should not be repealed or amended, except to the extent necessary to accommodate the change to "accessory dwelling unit" and inclusion of"additional farm dwelling". Mahalo for your consideration, jru Chuck Flaherty