Restrictive covenants actually limit agriculture in ag subdivisions

In some agricultural subdivisions, particularly on the North Shore and Eastside of Kauai, restrictive covenants installed by developers actually work to discourage agriculture.

In certain ag-zoned subdivisions, covenants prohibit planting trees for windbreaks and use of pesticides and fertilizers, and even limit hours of operation of farm implements, said state Sen. Gary Hooser, D-Kauai, Niihau.

A bill recently passed by the state Legislature that gained support from both the state and Kauai branches of the Farm Bureau would prohibit establishment of restrictive covenants that curtail agricultural activity on agricultural-zoned lands, Hooser explained.

“It’s a major piece of legislation (that) affects agricultural properties statewide,” said Hooser. “I introduced it, and happy that it’s made it this far, and it looks like it’s going to become law.”

The only possible hindrance now would be a veto by Gov. Linda Lingle. Her administration offered no indication which of three options she would exercise: sign the bill into law, allow it to become law without her signature, or veto it.

State Rep. Ezra Kanoho, D-east and south Kauai, helped usher the bill through the state House of Representatives, said Hooser.

“The bill essentially says you cannot have restrictive covenants on agricultural land that restricts agriculture, which sounds pretty basic. But there are properties that have covenants on them,” which in some Kauai cases have hindered agricultural efforts, Hooser commented.

“You can’t start your tractor up too early in the morning,” he said.

Hooser gave credit to Aliomanu Estates resident John Wooten, who grows fruits and vegetables and took his concerns about really restrictive covenants to the County Council a few years ago. A bill was introduced at the council level, but hasn’t been enacted yet.

“I kind of picked up the ball and submitted it on a statewide basis,” said Hooser.

“The bigger problem is you have all these ag lots that are turning into gentlemen estates, and what happens is that their restrictive covenants actually ban ag activity,” said state Rep. Mina Morita, D-north and east Kauai.

She also supported the bill in the state House.

The bill, which becomes law immediately when and if approved by Lingle, would prohibit any future restrictive covenants that work to hinder agricultural activities on agricultural-zoned lands.

Certain restrictions would continue to be allowed, like prohibitions on pig and chicken farms, because of odors and proximity to residences.

Currently, restrictive covenants in agricultural subdivisions, including Puulima Estates in Kalaheo, Aliomanu Estates, Kealia Kai, Seacliff Plantation at Kilauea and others, prohibit the planting of trees that farmers routinely plant as windbreaks, if they grow to a point where view planes are obstructed.

At Aliomanu Estates, “in order to preserve view planes, they had that restriction on height of vegetation,” said one Lihue land-use attorney. “And, obviously, that did have an impact on ag uses.”

Business Editor Paul C. Curtis can be reached at or 245-3681 (ext. 224).


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