HomeMy WebLinkAboutCOM 0211.005 2004-2006 Page 1 of 4
Murashige, Laura
J I B i ~ ~ i
From Charles Flaherty [oneheart@aoha.net]
Sent: Monday, April 18, 2005 10:13 AM r'
To: oneheart@aloha.net `;,(j~l,,,,
Subject: Bill 80 testimony
Aloha members of the County Council,
I am writing in support of Bill 80 with a request for amendment.
Bill 80 in its current form is a bold move in the right direction. Any law which provides better clarification and
guidance as to existing law is pono.
However, Bill 80 does not help residents or County employees from better understanding of what constitutes
"agricultural activities".
As a result, the County continues to issue building permits for non-farm dwellings in the State Agricultural Land
Use District, a practice that undermines the intent of Bill 80, that is, control of inappropriate speculation within the
Ag District.
While Bill 80 shores up the dam, there are so many small holes in it that it will still soon wash away. These holes
must be plugged.
Bill 80 does not require the County Planning Department to proactively determine whether an applicant for a
building permit in the Ag District will be farming and/or whether agricultural activities will be the primary use of the
property (Third Circuit Court's test).
Yes, the Planning Department does request that all permit applicants sign a "First Farm Dwelling Notice', but this
is on a strictly volunteer basis. An applicant can refuse to sign the "Notice". Rather than considering this an act
of bad faith, the County administration still issues a building permit to the applicant.
If the applicant subsequent builds anon-farm dwelling in the State Ag District, the County administration has
already publicly stated it has no intention of enforcing HRS 205 to force compliance, despite that the County could
assess up to $5,000 every six months until the subject property comes into compliance.
The County administration has stated it does not enforce HRS because, again, what constitutes "agricultural
activities"?
In the Hokuli'a ruling the Third Circuit Court found that allowing the construction of luxury homes on property on
which agricultural is not a primary purpose is a violation of HRS 205. Attorney General Opinion 75-8 further
clarified HRS 205 for all Counties by stating the law requires the Counties to make a predetermination as to
whether agricultural activities will be occurring on a property in the State Ag District.
Unscrupulous individuals and privates businesses are using the uncertainty surrounding agricultural activities and
the County's admitted lack of enforcement to destroy the State Ag District.
Therefore, I would hope the Council will amend Bill 80 to include language that:
1) defines "agricultural activities",
2) insures that the County Planning and Building Departments approve building permits for proven, bona
fide farm dwellings only within the State Ag District,
3) requires substantive proof from applicants for building permits within the State Ag District, proof
substantial enough to allow the County to subsequently enforce HRS 205 with ease,
4) requires strict zoning enforcement by the County,Planning Department,
5) requires penalties and fees to be assessed for violations and allows penalties and fees to fund Ag
zoning enforcement within the Planning Department. 2
Comm. No.
Ref. TO: P_
twae~~y~i
Ref. Late Nt'ft j, 9 Z~D~
4/18/2005
Page 2 of 4
A drive into any agricultural area in the County allows us to see the countless non-farm dwellings that have been
and are being built. Please fill all the legal holes that are allowing illegal construction activity within the State Ag
District before the County falls even deeper into the HRS 205 Hokuli'a hole and before the State Ag District is
essentially destroyed.
Mahalo ia'oukou,
Charles Flaherty
83-5544A Middle Ke'ei Road
Captain Cook HI 96704
-----Original Message-----
From: Bob and Julie Jacobson [mailto:jacobs@hgea.org]
Sent: Sunday, April 17, 2005 12:06 PM
To: Bob and Julie
Subject: 3 very important bills heard Tuesday, April 19
Aloha kakou,
The County Council is considering 3 very important bills heard Tuesday, April 19.
You can call in you support for these three bills at 961-8225, fax to 961-8912, or send email
testimony to jjaco ct co.hawaii.hi.us to be passed out that day. Please send today or tomorrow
At 1:30 that day, the Committee on Planning considers Bill 80. This bill would prevent future
subdivisions that are not really agricultural from being built on agricultural land (unless
rezoned). While the Third Circuit Court ruled that what Lyle Anderson attempted to do at
Hokulia is inconsistent with the law; and the Land Use Commission similarly ruled that the
proposed development at Keopuka was inconsistent with the law, developers continue to
subdivide agricultural land for speculators. We see this in South Kona and Hamakua in
particular. Developers would have to seek rezoning (a public process), rather than subdivision
approval (which is done behind closed doors) for non-ag projects on ag. land. A copy of the bill
is at the end of this message. It would only apply to new subdivisions.
Earlier that day, at 9:30, the Committee on Finance meets to consider Bill 78, establishing a
Public Access, Open Space and Natural Resources Preservation Fund and providing a
dedicated source of revenue (2% of annual property taxes).
Also, Bill 79 would authorize a $10 million bond float to buy and preserve open space.
Without your support, these bills may not get the 5 votes needed.
Sorry for the late notice, but these bills will get at least one more hearing after this, and one more
hearing after that to pass them at second and final hearing of the council.
You need to encourage Mayor Kim to support these bills. He is fiscally conservative and needs
to know that we taxpayers support these 2 measures for open space. Please forward this to
people you may think would support this.
Mahalo nui loa,
Bob and Julie Jacobson
4/ 18/2005
Page 3 of 4
Bill 80
AN ORDINANCE AMENDING CHAPTER 23, ARTICLE 3, DIVISION 1, SECTION 23-23
HAWAII COUNTY CODE 1983 (1995 EDITION), RELATING TO SUBDIVISION OF LAND.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI I:
SECTION 1. The Hawaii State Constitution Article XI, Section 3
mandates the State to "conserve and protect agricultural lands." Article XI,
Section :L requires the State to "conserve and protect Hawaii's natural beauty
and all natural resources." Article XIi, section 7 places an affirmative duty
on the State to preserve and protect traditional and customary native
Hawaiian rights. The County of Hawaii is a political subdivision of the
State.
The Land Use Law, HRS Chapter 205, serves to protect agricultural lands,
natural resources and native Hawaiian rights. As noted by the state
legislature in passing Act 5 in 2003 and Act 199 in 1976 classification and
protection of agricultural lands has been subverted and undermined by the
development of gentlemen estates, for which the primary purpose is not
agricultural, but luxury residential. Urban type residential subdivisions
are not authorized on agricultural land. Such subdivisions inflate the value
of agricultural land, making farming uneconomical. They increase the demand
to install costly infrastructure. They undermine the ability of the county
and the state to protect natural beauty, natural resources, and native
xawaiian rights. Luxury residential development proposals on agricultural
land avoid public scrutiny; reduce the affordability and productivity of
agricultural land; frustrate the ability of the county to foster intelligent,
effective and orderly la
nd planning; reduce open space; lead to scattered premature development;
increase county infrastructure costs; and jeopardize constitutionally
protected native Hawaiian rights, natural beauty, and natural resources.
SECTION 2. Chapter 23, Article 3, Division 1, Section 23-23 is
amended to read as follows:
"Section 23-23. Compliance with State and County regulations required.
(a) Subdivisions shall conform to the County general plan and shall take
into consideration preliminary plans made in anticipation thereof.
Subdivisions shall conform to the requirements of State law, County
department of public works, State department of health, State department of
transportation, County department of environmental management, and County
department of water supply requirements and the standards established by this
chapter.
(b) No subdivision of land classified as agricultural by the state land
use commission, or zoned family agricultural, agricultural or intensive
agricultural by the county, shall include:
(1) covenants that restrict any agricultural practices except those that
protect environmental or cultural resources;
(2) resort-like features;
(3) an inadequate supply of water to support agricultural operations;
(4) a golf course with lots for residential use;
(5) gated or limited entry to more than four lots where access to the
general public is restricted through the use of security guards, automatic
gates and similar features of gated communities; or
(6) any farm dwelling greater than 3500 square feet; or
(7) Cw liinq L' _ d:r: .tly ass .;i it ad w?C}'i I'a~r. [~r.d/ is Y.er
4/ 18/2005
Pabe 4 of 4
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.,.s Li b tiro pr L~3. _y u: s oc!:ur _i ny o". i. hey cr oFuetty. ~~t_r~E rw'. _ :.o '_1
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. ° J 6.' c wry sir z oath, Lcr ?o.r t)nf~.~rm'_~ g pr oj'P.rtiPs.
SECTION 3. Material to be repealed is bracketed and stricken. New material
is underscored. In printing this ordinance, the brackets, bracketed material
and underscoring need not be included.
SECTION 4. If any provision of this ordinance, or the application thereof to
any person or circumstance, is held invalid, such invalidity shall not affect
other provisions or applications of the ordinance which can be given effect
without the invalid provision or application, and to this end, the provisions
of this ordinance are declared to be severable.
SECTION 5. This ordinance shall take effect upon its approval and shall
apply prospectively only to all subdivisions that have not received final
subdivision plat approval by the effective date of this ordinance.
4/18/2005