Ag subdivision decision shelved

Despite overwhelming support from a broad swath of the island, the County Council voted 4-3 yesterday to shelve a bill that would place a temporary moratorium on the creation of new agricultural subdivisions.

Several hours of discussion at the Historic County Building revealed a communication breakdown with the administration in addition to mostly legal concerns over the proposed legislation.

Councilman Mel Rapozo said his vote was more of a statement against the administration than a position on the moratorium.

County Council members Shaylene Iseri-Carvalho, Ron Kouchi and Jay Furfaro also supported the motion to receive the proposed legislation, which effectively kills the proposed ordinance, according to Councilman Tim Bynum.

Although residents pleaded in their testimonies to at least keep the bill alive with a deferral, some council members said the administration had ample time to present legislation that addressed their concerns.

Mayor Bryan Baptiste introduced the bill in August and backed it in his testimony yesterday.

“The moratorium simply asks for a time out to come up with answers,” he said, noting lingering questions over a state-mandated study to identify important agricultural lands and what legislative controls should be put in place to oversee the process.

“Whatever happens here today, it’s about trying to preserve as much land as possible,” Baptiste said. “There’s a delicate balance between private property rights and the public setting the direction of the island.”

The county Planning Committee on Feb. 20 — in a meeting that stretched late into the night — voted 3-1 to recommend council receive Bill 2250 for the record.

Residents, ranging from long-time farmers to next generation environmental advocates, urged council to defer the bill — to fix its flaws if necessary, but not bar overdue action.

The county General Plan, a landmark document in 2000 establishing the vision for the island’s future, set as a priority the need to expeditiously regulate the misuse of agricultural property, including the rampant subdividing to create “gentleman’s estates” and pricey residential lots.

From 2000 to 2005, Kauai Planning and Action Alliance President Diane Zachary said 1,359 ag lots and condominium property regimes were created.

It is time to “slow it down,” she told the council yesterday.

Some councilmembers voicing their concerns over the bill focused mostly on the legislation’s lawfulness.

Furfaro pointed to the moratorium’s indefinite ending as Kouchi addressed points raised in a letter yesterday from the Land Use Research Foundation of Hawaii.

The bill lacks statutory authority, a legal nexus and amounts to an illegal taking, Kouchi said, reading from the foundation’s letter.

“These are fundamental, basic questions for bill construction,” he said.

The bill fails to state how much crop land is in production and how much is needed to achieve food sustainability, Kouchi added.

“Absent that … I don’t see how it has the lowest level of rational nexus,” he said.

But Councilwoman JoAnn Yukimura said the bill does not need to have all the answers and amendments could address any of these concerns.

She said she already has an amendment drafted that ties the proposed ordinance to the planning process, resolving the concern over its lack of an end date.

The mayor gave his guarantee that the administration would follow through with the planning process, which Yukimura said has been delayed some 30 years since the state Legislature mandated counties identify important ag lands.

County Attorney Matthew Pyun said his office would have a written response to the county Planning Department’s request last week as to the legal viability of the bill.

It would be up to the department as to whether the legal opinion would be made public, he added, in response to Bynum’s concerns over residents’ ability to fully take part in the discussion.

But Baptiste said he has worked with the County Attorney’s office from the beginning, revising the bill to stand up in court if challenged.

“To make big decisions you have to take risks,” he said after the meeting. “I don’t see why the administration has to do it all. This is a legislative body … they can do legislation just as well as I can.”

Kouchi said the administration should come back with a bill that clearly answers the six questions outlined by the foundation, which consists mostly of large landowners and developers, according to Bynum.

“Vote it up, vote it down … the reality is we have to do something,” Baptiste told the council. “Time will ensure that more ag land will be developed … unless we take quick decisive steps to prevent that from happening.”

Rapozo said he needed assurances from the mayor that enforcement would take place against existing violations, which has not occurred much to date.

Baptiste said “multiple bodies” are needed for the Planning Department to adequately enforce the laws. He disputed Rapozo’s claims that sufficient money has been budgeted for such personnel in the past.

“It is all of our responsibility. I’m not here to debate you back and forth,” the mayor said.

Environmental and sustainability organizations supported the bill.

“New regulations are clearly needed to stop the suburbanization of Kaua‘i’s agricultural lands and the moratorium that would be established by Bill 2250 is essential to stop the bleeding until such regulations can be enacted,” said Carl Imparato, speaking on behalf of the Sierra Club’s Kaua‘i group. “Bill 2250 is essential to ensuring that Kaua‘i’s diminishing stock of agricultural lands will not continue to be depleted while good land use planning takes place.”

The mayor said “well over” 3,300 acres of agricultural land has been turned into residential areas since he first tried in 2001 while serving as a councilmember to introduce a bill to put a moratorium on subdividing farmland.

The growth from Kilauea to Waipaki became “very apparent,” he said, after taking a helicopter tour of the island two years ago.

Rapozo suggested that landowners will simply split the land up using the condominium property regime process if subdivisions are put on hold, adding that this would completely eliminate the opportunity for public input.

Baptiste acknowledged after the meeting that proliferation can still occur this way, but said “not really at horrendous numbers.”

The mayor said the Big Island has created legislation that considers a CPR the same as a subdivision and something similar could be effective on Kaua‘i.

“I don’t disagree with the intent,” Rapozo said, just the vehicle and its unintended consequences.

Bynum said ag subdivisions happen because of an open space density bonus, but legislation currently buried in committee can cure this.

“There are multiple issues at play here, but they’re on the back burner,” he said.

Council Chair Bill “Kaipo” Asing also said the bottom line is controlling density.

Furfaro said he voted to receive the legislation and move instead to finish the work on draft bills that address comprehensive zoning ordinance land-density issues.

However, Yukimura said the density bills are not ready and “too confusing” in their present state.

“We need a time out to do a good planning process,” she said. “We should do our own homework to address the problems with this bill.”

The mayor sat leaning against the chair in front of him, shaking his head at times, as the council’s verdict became clear. Meanwhile, a handful of developers in the audience flipped through their calendars and did not testify on the bill.

Eastside resident Andrea Brower submitted 20 hand-written testimonies to the council in favor of the bill.

“It is urgent that we put these controls in place,” she said, noting the rights of people to preserve Kaua‘i’s rural character, grow their own food and not get run off the island.

Roy Oyama, co-chair of the Farm Bureau, said he supported the moratorium despite its potential to harm farmers by temporarily stopping them from subdividing their land for legitimate reasons.

“Let’s stop the squabbling and get to work,” he told the council.

Iseri-Carvalho sat quietly through the meeting but submitted comments after the final vote.

“A farmer who wishes to subdivide in order to lease or sublease to another farmer for agricultural production or to pass down to his children or other family members for agricultural production, are prohibited from doing so. Yet, ironically, it does not prohibit large landowners from seeking a zoning change to allow their agricultural lands to be used for residential, resort, commercial or industrial use,” she states. “Until these legal issues are resolved, it would be irresponsible to continue to put this on our agenda week after week to do ‘homework.’ … If this was such an important bill, and I agree that it is, why didn’t the administration give it the necessary attention it deserved?”

• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com.