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HomeMy WebLinkAboutCOM 0351.002 2016-2018 Pi Pc cam 351 COUNTY CLERK COUNTY OF HAWAII 1017 AUG 15 PH 1: 511 Administrative OFFICE OF HAWAIIAN AFFAIRS TestimonyTestimony of Kamana`opono Crabbe, Ph.D Ka Pouhana, Chief Executive Officer Hawaii County Council Planning Committee Bill 52 AN ORDINANCE ADOPTING THE COUNTY OF HAWAII KA`O COMMUNITY DEVELOPMENT PLAN (CDP) August 15, 2017 2:00 p.m. West Hawaii Civic Center The Administration of the Office of Hawaiian Affairs (OHA) offers the following COMMENTS on Bill 52, which adopts the Ka`a Community Development Plan (CDP). OHA appreciates the CDP's inclusion of several previously-recommended amendments in its current draft form. OHA, however, respectfully requests further consideration and inclusion of the additional amendments described below, which would serve to better protect the cultural integrity and traditional rural character of the Kali district, ensure the appropriate administration of Ka`Ci's public trust water resources, and mitigate the potential impacts of transient vacation rental's on housing opportunities and costs for Ka`ii residents. General Comments OHA recognizes and appreciates the CDP's protection of KaTi's cultural and 'natural resources, traditional and cultural practices, open spaces, natural areas, view planes, public access to trails, mauka to makai access, coastal lands, agricultural lands and agricultural activities, rural lands and the rural quality of the area, and subsistence opportunities. OHA notes that the CDP envisions that any future development be located in existing towns, villages, and subdivisions, to preserve the rural character of the area into the future. OHA further appreciates the CDP's focus on local agricultural production and the need to support "buying local." Native Hawaiian Traditional and Customary Practices The perpetuation of traditional and customary practices in Ka`Ci is particularly significant to the Native Hawaiian community. After statehood, many of the prime undeveloped lands needed for agriculture, used for traditional and customary practices, and containing sacred cultural sites were transformed into large-scale developments, displacing many Native Hawaiians from their ancestral lands and traditional gathering areas, while also reducing the overall food self-sufficiency potential of our islands. The devastating impact of the staggering post-statehood development boom on Native Hawaiian culture and cultural resources is well-documented: Dr. Davianna McGregor, a 2. km. No. 1 - . Ref. To: ifc. Ref. Date leading scholar and expert on Native Hawaiian traditional and customary practices and values, notes that today only a handful of Native Hawaiian communities have managed to continue, unbroken, the traditions and customs of their ancestors. Dr. McGregor explains that protecting these cultural "kipuka" is essential to the perpetuation of Native Hawaiian culture throughout Hawaii, because they are oases from which "Native Hawaiian culture can be regenerated and revitalized in the setting of contemporary Hawaii."1 Ka'u is home to some of the very "kipuka" communities that have continuously few retained their cultural integrity and traditional rural character.' Access to and protection of natural and cultural resources is critical for the large number of Native Hawaiians who reside in Ka`0,3and who actively perpetuate traditional and customary practices including fishing, gathering, cultivating lo`i, hunting, caring for burials, and accessing sacred and religious sites. OHA reiterates that Native Hawaiian cultural resources and natural resources are one and the same, and that these resources continue to be essential to place- based Native Hawaiian traditional and customary practices, as well as to the perpetuation of Native Hawaiian traditional knowledge. OHA appreciates that in many instances the CDP recognizes the connection between Native Hawaiian cultural practices, cultural resources, and the natural environment. OHA further notes that the CDP appears to acknowledge the delicate balance that must be struck in providing greater public access to our natural areas, while also ensuring that improved access does not lead to the destruction of natural and cultural resources that may be found in these areas. OHA also appreciates the CDP's express references to the Hawaii State Constitution's call for the protection of traditional and customary rights. OHA notes, however, that in addition to Hawai`i's Constitution, state statutes and judicial decisions also direct state and county agencies to reasonably protect the exercise of traditional and customary Native Hawaiian practices.' Given that future county planners and policymakers may not necessarily have consistent levels of background knowledge regarding the laws protecting cultural rights and cultural perpetuation, OHA respectfully requests that the CDP be amended to recognize that, in addition to Hawai`i's Constitution, various statutes and judicial decisions also provide for the protection of traditional and customary Native Hawaiian practices.' By more explicitly describing the sources of state and countyS obligations agencies' legal obli ations with respect to Native Hawaiian rights, the CDP 1 DAVIANNA POMAIKA'I MCGREGOR, NA KUA'AINA,LIVING HAWAIIAN CULTURE 8(2007). 2 Id.at 12. 3 Based on the Census County Division for the Ka`u subdivision,data indicate that the number of Native Hawaiians living in the subdivision were 1,729 in 2000 and 2,409 in 2010,comprising 29.7%of the population in 2000, and 28.5% in 2010. Between 2000 and 2010,the number of Native Hawaiians in the subdivision grew by 39.3%. 4 See,e.g., HAW.CONST.ART.XII SEC.7, HRS§§ 1-1, 7-1; Ka Pa'akai o ka -Tina v. Land Use Comm'n,94 Hawaii 31 (2000); Pele Defense Fund v. Paty,73 Haw. 578(1992). 5 The CDP could, for instance, refer to the statutory provisions and judicial decisions included ill footnote 5. may help to ensure a more consistent accommodation of Native Hawaiian cultural practices in the kipuka communities of Ka`u. OHA offers the following additional suggested amendments and additions to Chapter 1 of the CDP to further protect, preserve, and enhance Hawai'i's cultural and natural resources: Amend Policy 14 (p.40) to read as follows: "Plan approval and related conditions shall consider forest and coastal ecosystems; agricultural lands; open space; viewscapes; areas of natural beauty; cultural, archeological, and historic sites; and historic buildings when assuring that proper siting is provided for, proper landscaping is provided, unsightly areas are properly screened or eliminated, and natural and man-made features of community value are preserved." Amend the second bullet following Policy 29 (p.53) to read as follows: "A description of valued cultural resources or and historical sites in the areas, including the extent to which traditional and customarynative Hawaiian rights are exercised in the area[.]" Amend Policy 142 (p. 90) to read as follows: "Encourage the development of alternate energy resources, providing they complement existing agricultural and cultural uses and preserve ecologically and culturally significant areas." Amend Policy 147 (p. 94) to read as follows: "Encourage the development of a visitor industry that is in harmony with the character of the area and environmental and social goals of residents[.]; provided that such development shall be permitted subject to conditions that ensure the long-term protection of cultural practices and natural and cultural resources in these and adjacent areas." Re-insert Objective 2 (p. 59) to read as follows: "Preserve prime and other viable agricultural areas and preserve and enhance viewscapes that exemplify Ka`U rural character, or are associated with archaeological features or with culturally sensitive areas." Amend Objective 3 (p. 59) to read as follows: "Protect, restore, and enhance ecosystems, including mauka forests and the shorelines,while assuring responsible for access for residents and for visitors in a manner that protecttraditional and cultural practices." Amend Objective 4 (p.59) to read as follows: "Protect, restore, and enhance Ka'U's unique cultural assets, including archeological and historic sites, historic buildings, and areas important to Native Hawaiian cultural practices." Add a policy to sections 5.2 Improve Water Infrastructure (p.74), 5.5 Expand Mass Transit Facilities and Services 01.78) 6.3 SLnen;:then Local /\.riculture (..88) and 6.4 Develop Community Renewable Energy (p.90) to read as follows: "Consult with and solicit input from community members, including community members with generational knowledge, early and often about how to minimize the impact of proposed changes to the use of land on cultural practices, cultural sites, and culturally significant areas, including burials." Add a policy to sections 4.5 Preserve Scenic Areas (p.60), 4.7 Protect and Enhance Cultural Assets (p.65), and 5.10 Expand Parks and Recreation Facilities (p.83) to read as follows: "Encourage the use of Hawaiian plants (indigenous and Polynesian-introduced p(ants) by state, county, and private landowners in order to support a Hawaiian sense of place, to ensure that our cultural heritage is reflected in landscaping, and to help reverse the displacement and decline of Hawaiian plants." an objective to section 1.5 (p.14) From Vision to Action to read as follows: "Encourage the protection of areas that are important to Native Hawaiian and other cultural practices, in order to further preserve and continue these practices." Add an objective to sections 4.4 Protect Mauka Forests (p.59 , 4.6 Protect .62), and 4.8 Establish and Manage Public Access (p.67) to read as follows: "Minimize the potential for user conflict regarding the use of resources through support for community and traditionally-based resource management, educational outreach, and increased signage." Wai (Water) Water's importance to the Native Hawaiian people is captured in the ^Oldo no"eaU — Ola i ka Wai (Water is Life). Proper management of this precious resource and assurance of ma uka to ma kai stream flow provided sufficient water for food production, drinking water, native stream life, healthy estuaries, and ground water recharge. Indeed, access to and proper management of water is necessary for thriving Native Hawaiian people and culture. OHA advocates for appropriate water management practices and compliance with laws that protect both Native Hawaiians and the larger Hawai'i community. Decisions on water allocation have direct, long-term impacts on Native Hawaiians' priority rights protected by the Hawaii State Constitution, the Water Code, and applicable case law. Pursuant to well established case law, public trust purposes have priority over other users and thus should be given priority in permitting decisions. This means that traditional and customary practitioners, domestic users, the Department of Hawaiian Home Lands, appurtenant right holders, and the environment should receive priority consideration over other users. Native Hawaiians in Kali may rely on stream flow and ground water to exercise their traditional and customary rights to cultivate lo`i, gather native species from streams, fish along the shoreline, and perform spiritual and religious practices. OHA offers the following suggested amendments and additions to Chapter 1 of the CDP to support the proper management of Hawai`i's fresh water resources: Protect MaukaForests (p.59), 4.6 Add a new Land Use Policy to sections 4.4 M k Protect and Enhance Ecosystems (p.62), 4.7 Protect and Enhance Cultural Assets (p.65), 5.2 Improve Water Infrastructure (p.74), and 6.3 Strengthen Local Agriculture (p.112) to read as follows: "Protect, restore and enhance surface and subsurface water sources and stream habitats to support groundwater aquifer recharge, aquatic and environmental processes, and riparian, scenic, recreational, and Native Hawaiian cultural resources, as well as constitutionally-protected Native Hawaiian traditional and customary practices."6 Re-insert section 6.2 Preserve Opportunities to Live off the Land (removed) to read as follows: "Support the use of stream and ground water by Native Hawaiian traditional and customary practitioners." "Protect, restore and enhance surface and subsurface water sources and stream habitats to support groundwater aquifer recharge, aquatic and environmental processes, and riparian, scenic, recreational, and Native Hawaiian cultural resources, as well as constitutionally-protected Native Hawaiian traditional and customary practices."' 6 OHA notes that these priorities of uses of water are constitutionally and a statutorily established basis for protecting, and in some cases, restoring stream flow to support traditional and customary uses.See,e.g., In re Water Use Permit Applications,94 Hawai'i 97(2000);see also HRS§ 174 '-2 (c)("lAldeyuate provision shall be made for the protection of traditional and customary Hawaiian rights...") 7 OHA notes that these priorities of uses of water are constitutionally and a statutorily established basis for Add a new policy to section 5.2 Improve Water Infrastructure (p.74) to read as follows: "Where new or improved water system improvements are necessary, avoid impacts to cultural resources; if impacts are unavoidable, implement appropriate mitigation measures." Vacation Rentals Unfortunately, a lack of meaningful regulation and enforcement of transient vacation rentals may contribute to the increasing cost of housing throughout the islands, many residents are able to afford. For what which in many areas has already exceeded example, according to the 2016 Hawaii Housing Planning Study, there are an estimated 28,397 "non-commercial" vacation rentals statewide;8 a substantial number of these units would likely be available for the residential rental market, were they not put to vacation rental use. Without meaningful regulatory and enforcement mechanisms,,the impacts of such vacation rental operations on the long-term housing market may.continue to remain unaddressed. Regulatory safeguards may be needed to ensure that vacation rentals do not exacerbate or-contribute to increased housing costs and decreased housing opportunities throughout the islands, including in Ka`u. Native Hawaiians are particularly disadvantaged by land uses that contribute to increased rental housing costs and rental housing shortages, as Native Hawaiians disproportionately rely on the rental housing market.' In addition, data does not show that vacation rental operations significantly increase economic opportunities for our beneficiaries, or Hawai`i residents in general. Native Hawaiians are less likely to own second or additional homes that could be rented as a vacation unit, with Native Hawaiian homeownership rates significantly lower than the state average.10 70% of properties listed as vacation rentals are also owned by out-of- protecting,and in some cases, restoring stream flow to support traditional and customary uses. See,e.g., In re Water Use Permit Applications,94 Hawaii 97(2000);see also HRS§ 174C-2(c)("iAiclequate provision shall be made for the protection of traditional and customary Hawaiian rights..."). a There are an estimated 45,075 total vacation rental units measured by the study.The study estimates that at least 37%of these rentals are'commercial' rentals,or resort condominium and condominium hotel properties which are legally permitted commercial operations.As such,the study estimates 28,397 of these units are non- commercial vacation rentals.See SMS, HAWAII HOUSING PLANNING STUDY,P.58(2016), available at htt, ://dbedt.hawaii:,gov/l hfdc/files/20i7JO3 StateHHPS2016 Report ()31317 final.pdf. --The Native Hawaiian homeownership rate is 52.9%, compared to the statewide average of 56.7%. See OFFICE OF HAWAIIAN AFFAIRS,OHA DATA BOOK HOUSING TENURE BY RACE-ETHNICITY IN HAWAI`i 2014, available at http://www.ohadatabook.comi[02-13.1,-1.5u..pdf. This figure includes 8,329 DHHL residential lease"owner, occupied" property units. DHHL ANNUAL REPORT 2014,P.48; available at http J/dhhl.haw ii,govfwp x oaten c ,lc2ads12Q1 11 I NHL-Annual-Refsort-2014-Web df. For non-DHHL properties,the Native Hawaiian homeownership rate is therefore 41.2%, 15.5 percentage points below the statewide rate. .4 See OFFICE OF HAWAIIAN AFFAIRS,NATIVE HAWAIIAN HOMEOWNERSHIP HO`OI AHUA WAIWAI FACT SHEETVO1.2016,. No.1,page 10, available athttp:i'/www.oho.or/wp-contei t/uploads/t IH-Homeowncrship7FactRSheet-2016 clf. state property owners, and not state residents." With this in mind, OHA recommends the following: Amend Policy 148 (p.120) to read as follows: "Encourage the development of small family or "bed and breakfast" type visitor accommodations; provided that appropriate regulatory and enforcement mechanisms associated with short term vacation rentals are implemented." Mahalo for the opportunity to provide comments on this measure. "Notably,the Hawaii Tourism Authority report found 45,075 total properties available for short term vacation rentals,with between 21,295 and 23,002 as non-commercial vacation rental units advertised in 2016. 70%of these properties are offered by out-of-state property owners.See SMS RESEARCH,THE IMPACTS OF VACATION RENTAL UNITS IN HAWAII 5(2016),available at http;//www.hawaiitourismauthority:org/defaultlassets'File, Housiog,620and°o2OTourism%201.1301.6.pdf.