WILL IT GO ROUND IN CIRCLES

WILL IT GO ROUND IN CIRCLES: It wouldn’t be the first time the state took a cue from one of the more outrageous abuses of process originating on Kaua`i- and it certainly won’t be the last.

But let’s back up a bit.

An article in last Thursday’s Honolulu Star-Advertiser announced

Changes proposed to state land rules
The first revisions in 16 years involve shoreline boundaries and permits

It reports that:

The first update of conservation land use rules in 16 years would change the shoreline setback, eliminate required permits for activities like weeding and increase fees.

The proposed changes, outlined in a 71-page document by the state Department of Land and Natural Resources, are being reviewed through public meetings. Today's will be in Honolulu.

The revisions have some environmental organizations concerned.

Among the more significant changes would specify shoreline setback, a line past which no structures or coastal alterations are allowed. Numerous lawsuits have been filed over designations of public and private access along the shorelines.

Some of the changes will include those required by the Supreme Court of Hawai`i (SCOHI) decision in the case brought by Kaua`i North Shore resident Caren Diamond that redefined the shoreline determination process.

But a side bar to the article lists some of the changes the new rules will try to bring about including one that goes unmentioned in the piece:

Rules would specify that only people with property interest, residency on the land or anyone directly affected by a permit can appeal. Rules now state that "any person" can appeal to the department.

Now maybe they missed it but that rule would apparently fly in the face of a more recent SCOHI case, County of Hawaii v. Ala Loop Homeowners, which essentially held that any land use effects the environment and that triggers Article XI, Section 9 of the Hawai`i State Construction which reads:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law

That would seem to preempt any restriction on who can sue when it comes to “land use rules” of the DLNR.

So what does this have to do with Kaua`i?

The use of administrative rules to try to define-out-of-existence provisions of the county charter- the county’s equivalent of a constitution- was the central issue of the two year Kaua`i Board of Ethics (BOE) brouhaha when county attorneys used both a county ordinance and the BOE’s rules to narrow the plain reading of Section 20.02(D) of the charter which bans county employees and board and commission members from “appear(ing) on behalf of private interests” before other boards and commission.

Apparently the DLNR may be paying attention to our local shenanigans and are attempting to slip through a rule that could at least temporarily bog down what land use attorneys across the state have called a “newly created right”- that of private citizens to sue over land use decisions.

It’s enough to make a local good old boy’s chest swell with pride to think little Kaua`i could come up with a process corrupt enough to be used by the masters at DLNR.

IN THE DOG HOUSE

IN THE DOG HOUSE: The race is apparently on as November approaches.

No not any of those races but the council’s desperate mad dash to cater to the smallest and largest whims of developers large and small.

On this week’s agenda are the illegal vacation rentals bill (#2364, Draft 1) set to give oxymoronic (or just plain moronic) mini-developers of ag land the right to build mini-resorts on their mini ag condo lots despite clear state laws that restrict the county from doing so and the farm workers housing bill (#2318, Draft 3) that could, despite 11 “safeguards”, give medium size developers a foot in the door to added density.

But bringing up the rear is an unbelievable gambit (Bill # 2361) by maxi-developer Alexander and Baldwin (A&B) to get out from under an agreement to build and maintain "permanently-affordable, workforce” housing for 90 years which led to the rezoning of their Kukui`ula development in Po`ipu.

It was designed to take the load off the housing market for the new employees of Kukui`ula, mostly for the “gap group” making between 140 and 180% of the median income.

But despite the fact that the condition of zoning was part of a package of “givebacks” that led to the controversial rezoning a few years back, the council is poised to change the term before the housing can be sold at market prices to 25 years because A&B is now sniveling that it’s “unfair” that in the interim the county passed an affordable housing guideline bill that calls for less.

That’s bad enough but what has received less attention than the reduced time element is that fact that under the current agreement Kukui`ula is fully responsible for the housing for the 90-year “life” of the project and in addition there’s a provision that if they can’t
sell the housing at affordable prices they would have to rent it out their qualifying workers or, if no qualified buyers were available, to other workers.

Now, not only is the time of affordability going to be 25 years but the whole responsibility for the housing- including coming up with the money for the buybacks if people want to sell- will rest with the county which will also make a few bucks on the secondary sales although not really enough to make a difference according to the county housing agency which for some absurd reason is supporting the changes.

One of the opponents of the original project, the rezoning and now the reduced housing giveback has been Dr. Jack Lundgren who testified at last week’s planning committee meeting- where the bill remains for now- and gave a rundown of the history of the project and the reasons for his opposition.

Here’s his testimony which lays out the history of the project and reasons why he opposes the changes:

RE: Bill 2361, relating to Kukui`ula 90 year affordable housing.

Please retain the 90 year affordable 75 unit housing agreement that was made when A&B and Kukui`ula Development were granted changes in density to their project in Po`ipu five years ago.

When A&B first was granted rezoning from Agricultural to Resort/Residential back in the ‘80s, (reference their attorney at the time, Walton Hong,) they proposed that approximately 3400 units would be constructed for sale. These were to be marketed to local residents, not wealthy mainlanders and retirees. True, the homes were not to be truly “Affordable”, but they were aimed at middle class locals, like, perhaps, a firefighter and office worker, or construction worker and teacher. This was to be “Gap Group” housing. The idea was that the former housing that these people vacated would become available to other residents who might not yet afford Kukui`ula. This would thereby relieve the housing crunch.

Then about five years ago, A&B partnered with luxury developers from Arizona and formed Kukui`ula Development. They proposed a much less dense project of approximately 1500 units. It sounded good. Nobody wanted beautiful Po`ipu turned into an over-crowded, traffic-choked nightmare. The disadvantage was that now the housing created would be mostly for the very wealthy. Many are to be fancy, view-oriented estate homes, costing in the millions of dollars.

To offset the impact of this massive project, and to provide an increment of affordable housing for workers and for other local residents, Kukui`ula development agreed to construct housing near Port Allen. This was to be housing in the $250,000 to $400,000 range, not cheap, but perhaps manageable.

To assure that this housing be kept in the “Affordable” category, the developers and the Council agreed to the 90 year buy-back clause. This would prevent speculation that would occur if the units were allowed to go to market.

The additional benefit was that this housing was going to minimize traffic by keeping commuting workers closer to the project than they might otherwise be if they had to drive in from Hanama`ulu or Kapa`a. The council worked out a formula as to income and worker priorities. Again, this was all agreed to by the developers.

Now, with a downturn in the real estate market, the developers want to renege on the deal, and allow the affordable housing to go to market after 20 years. That’s not a good idea. We would lose the pool of affordable housing, and be right back where we started. Yes, the market may be slow now, but these things go up and down. As the economy recovers, housing again will become scarce and expensive.

Do we remember what it was like after Iniki? There was plenty of empty housing for sale in a down market. The market recovered, and prices soared.

I admire A&B and their commitment to the Hawaiian community and its young people. I appreciate their underwriting of Hawaii Public Television. If Kukui`ula Development is facing an economic hiccup due to previous business decisions and a slowed economy, perhaps adjustments can be made to the affordable housing development timeline requirement. But please, do not throw out the agreement that would keep the housing affordable for ninety years. We need that to be retained for the continuing health of our community.

A&B’s ridiculous claim that the current economy and housing market should be considered for a 90- or even 25- year project is obvious specious considering that by the time they start the project and get to the actual sales the economy and housing market will most likely not resemble today’s climate as past experience has shown.

And of course if they really wanted to delay it for a couple of years they should be asking for that not trying to bamboozle the dullards on the council.

Yet somehow this developer friendly council that hasn't turned down a developer request during it’s year and a half reign seems poised to do it again.

Many times over the past decade the “current” council members have blamed past councils for the lack of foresight especially when it comes to affordable housing such as the councils of the ‘80’s who approved resorts willy-nilly with virtually no housing requirements or those of the mid to late 90’s who, during the post-Iniki down market decided that we didn’t need to create any future affordable housing after landlords complained about diminishing prices for their rental creating the worst housing crunch in island history in the early to mid ‘00’s.

Don’t expect any of the current crop of glad-handers to cross A&B in a season when A&B routinely crosses their pals’ palms with campaign silver... 40 pieces of it to be exact.

COME AND GET IT

COME AND GET IT: The current crop of council incumbents has been accused of being a do-nothing body what with dog paths and the old boys’ sniping at insurgencies dominating the debates.

But an examination of the record shows that they actually been very busy- undoing whatever crumbs recent councils have thrown us.

One example is the effort in recent months to undo a decade of work to end the circus going on at Spouting Horn that succeeded via a sunset ordinance that passed a few years back.

The Po`ipu sale-a-thon that has evolved since the 70’s when the county allowed a few puka-shell-lei makers to sell their wares, had been given due notice for many years that the party was ending and local people were going to get their park back and a sunset date was as carved in stone as any council action can be,

But all of a sudden, as the deadline approached the crocodile tears of the vendors over losing their lucrative lair of lucre convinced the all-too-gullible council to just say damn it all and make the loss of the park permanent.

Then there’s the pending bill to gut the “vacation rental in non visitor destination areas” sunset ordinance. Despite a year’s work to close all the loopholes the current bill would chuck them out the window leaving enforcement- which was already difficult due to planning department indifference (or worse, complicity with owners)- an impossibility.

There’s also the “Ako” parcel in Waimea which was just granted residential rezoning despite the fact that the neighboring residents had successfully fought the rezoning for many years because the parcel acts as a flood plane and because it had been designated for a future park.

But last Wednesday one of the most insidious bills to undo past efforts came to council’s planning committee in the form of a measure that would chuck a key element of the givebacks that were included in the Kukui`ula development rezoning passed the council a few years back

Despite the quote in today’s paper’s promotional piece- disguised as a real new article by Coo-Coo Slickos- from A&B Properties Executive Vice President Paul Hallin that “(f)or those of you who want to become a developer, I want to share my pain with you”, it apparently will be a little less painful when a measure to remove a provision to insure perpetual affordability of the “workforce housing” required in exchange for the zoning passes the council a few weeks from now.

A&B’s development effort goes back to the 80’s and was universally opposed like no other before or since. But when one of it’s chief opponents who had led the effort to stop it for many years- former Mayor and at the time former councilperson JoAnn Yukimura- came back to the council to the chagrin of many she actually led the bill through the planning committee she chaired at the time.

She says she didn’t see a way to stop it because the votes were there for rezoning to cut the density by about half which actually changed the development from one designed to provide housing affordable by local people to a high priced one affordable only by mainland transplants.

So she instead got the developer to agree to many conditions and givebacks to the community, one of which was a scheme for workforce housing that, among other conditions, called for a 90 year buyback clause whereby the developer would have to buyback the houses at the original price plus inflation from anyone selling and the re-sell it to others whose median income qualified them for the housing.

But now the developer is proposing- and the council is apparently going to give them according to those who spoke at last Wednesday’s meeting- to change it to a 20-year buy-back meaning that after 20 years the housing will revert back to “market price”.

Not only that but, although it isn’t in the current version of the bill, they are asking that the responsibility for the buyback be transferred to the county- a huge expense that the county will certainly not be able to afford.

So get it while you can all you fat cat land rapers. This council will apparently respond to any request for them to bend over only by asking how far.

ANOTHER HOLDUP

ANOTHER HOLDUP: As a five-year-old pup growing up in the concrete canyons of the northeast megalopolis we were quite sure of our reply when we answered a teacher’s query as to where milk came from by saying “the A&P”.

Not that we were technically wrong given the way the question was asked but we soon came to find that it’s a little more complicated and indeed, the farmer is the man that feeds them all (with apologies to all the hard working women farmers).

Here on Kaua`i it’s even more complicated because despite lip service about preserving agricultural lands they’ve been cut up in little pieces and the resulting “fake farms” make sure the only thing that grows is the bank accounts of the shysters who used land use law loopholes to line their pockets.

The fact is that because of this the cost of farm land is already so high that no one can afford to successfully farm it if they have to pay off a mortgage on it from the proceeds of the farm.

So when a few years back farmers started asking for a Farm Worker Housing Bill it sent up all sorts of red flags as just another loophole-ridden legislative initiative to increase the density on all this used-to-be ag land destined to drive the prices of ag land higher still.

When the bill (#2318) hit the council floor over a year ago that’s exactly what it was- even those legitimate farmers who asked for the measure were saying so.

But to make a long story short after many hours of work by farmers and politicians a bill that has a long list of really tight restrictions is about to be passed into law tomorrow... maybe.

In Sunday’s newspaper a guest column by one of the true farmers on Kauai, Louisa Wooten, along with farm advocate Andrea Brower of Malama Kaua`i details why they have come around and what the bill does to make sure only legitimate farms will be able to put up “temporary” worker housing.

The point out that the bill says that:

- Farmers would have to show receipts of $35,000 from gross sales for two consecutive years. This level would have to be maintained each year in order to keep qualifying;

- The land would have to already have a county agriculture dedication;

- Only certain crops would qualify, with tree and turf farms excluded. Those crops have had a history of abuse under the ag dedication program;

- Farmers must have a viable commercial plan that clearly defines a need for worker housing;

- Farmers must appear before the Planning Commission;

- Only current CPRs can apply;

- In case of sale or transfer of land, the Planning Commission must be notified and the permit reviewed;

- Annual fillings and regular inspections will ensure compliance;

- Structures, which will sit on stilts, must be removed within six months of non-compliance;

- Possible fines and liens could bring stiff financial repercussions.

Sounds pretty restrictive. And in most places these things might insure that the bill doesn’t give fake farms- the ones that with no farms just “farm dwellings” as state law requires they be- the added “density” to put up another house on their lot.

And in just about any other place the bill, as it stands right now, might pass muster.

But this is Kaua`i and the last two of those restrictions give us pause.

Because the success of this measure. like others before it. lies in our planning department’s ability to enforce the law and, from past experience, anyone who pays attention knows that the requirement that “(s)tructures... must be removed within six months of non-compliance” is a joke waiting to be told.

This was the main point made by Council Chair Kaipo Asing in a convincing presentation at the last council meeting and is the main reason why the bill may not pass tomorrow.

The article states that “Maui has had a less stringent farm worker housing bill in place for ten years. It has been a great boost for farmers on that island with no documented history of abuse.”.

But then again Maui has had a real planner in charge of their planning department for the last 10 years.

There is hope though. Brower and Wooten write:

If there are concerns about potential abuse of the bill, let’s work together to close the loopholes.

There is one more thing that might insure that these “temporary” structures are removed- a requirement that farmers put up a bond in the amount of the cost to remove the structure and be required through the conditions on the use permit to allow the county to use the bond money to do the removal... and sign legal documents allowing the county to do so.

Even then we have reservations given the track record of the planning department to enforce council-passed ordinances such as the botched transient vacation rental bill that has become it’s own joke since it went into effect almost two years back.

The fact that legitimate farmers and farm organizations who saw the problem and opposed the original bill have signed off on it says much in its favor. But legitimate farmers have waited years for the bill’s enactment and can wait another couple of weeks to include a provision to assure that the houses will be removed when they are no longer called for.

AND WE ALL KNOW HOW PAINFUL THAT CAN BE

AND WE ALL KNOW HOW PAINFUL THAT CAN BE: We mentioned in passing the other day the local trend in the courtroom of 5th Circuit Court Judge Kathleen Watanabe (we’ll try to continue to spell her name right) to deny the community it’s right to plan its development future by seeing absurdly bogus “property rights” everywhere she looks citing the latest “anything goes” trend in land (ab)use law.

But although Watanabe has established this warped phenomena on Kaua`i it certainly isn’t unique to the island.

And it’s not just a trend in the courtroom.

Our hurry-up-and-wait-and-screw-the-public-at-3-a.m.-behind-closed-doors-at-the-last-minute Hawai`i state legislative process briefly coughed back up the idiotic “flag” bill yesterday before putting it to rest again according to a blog post from Honolulu Advertiser capitol reported Derrick DePledge.

In case you missed it, earlier in the sessions a bunch of jingoistic vets- ones who survived despite their willingness to die for a piece of cloth- wanted the lege to override their “planned community” rules for displaying flags and allow their gaudy any-kine erections to fly in everyone’s face.

But really this business is nothing new and Kaua`i lives with a reminder of a 5th Circuit Court decision made decades ago that continues to violate both the community’s right to plan and the eyes of anyone who travels from Lihu`e to Kalaheo.

Some may wonder how the heck that huge neon “Jesus Coming Soon” sign just past O`mao is allowed to so blatantly flout the local sign ordinance.

Back almost thirty some odd years ago the church just put the sign up without a permit and claimed that it was their religious belief that they had to proclaim the second coming “from the rooftops”... and this was their way of doing just that.

The issue was pursued by then retired local newspaper editor Jean Holmes who was offended enough by the sign that she threatened to start her own “Church of the Hearing Ear” and erect a 100 foot tall auditory appendage on her roof in Lawa’i.

The matter wound up in the court of Judge Cliff Nakea who surprised everyone by accepting the church’s argument based on the first amendment and dismissing the case.

The sign continues to despoil the viewplane to this day because the county declined to appeal the case.

But even if they run the flag pole bill up the flag poll again perhaps it won’t matter if this report in today’s Onion is accurate:

U.S. Flag Recalled After Causing 143 Million Deaths

WASHINGTON—Citing a series of fatal malfunctions dating back to 1777, flag manufacturer Annin & Company announced Monday that it would be recalling all makes and models of its popular American flag from both foreign and domestic markets.

Representatives from the nation's leading flag producer claimed that as many as 143 million deaths in the past two centuries can be attributed directly to the faulty U.S. models, which have been utilized extensively since the 18th century in sectors as diverse as government, the military, and public education.

Now that’s justice- if not actual then poetic.