County CZO turns 40 as island loses farm lands to neighborhoods

LIHU‘E — On Aug. 29, the county Comprehensive Zoning Ordinance celebrated its big 4-0 — the law dates to Aug. 29, 1972.

While the county Planning Department staff was out celebrating the document’s 40th anniversary, the Kaua‘i County Council met with county Planning Director Michael Dahilig and county planner Dale Cua, and criticized how the law has failed to protect the island’s farm lands.

Kaua‘i is the only county in the state that allows a one-time subdivision of ag lands. Cua said that since 1999, there have been 117 requests for ag subdivision, of which 64 were approved and 41 have expired.

“Our CZO was intended to allow the one-time subdivision rule so that we could, basically, preserve (ag) land,” Council Chair Jay Furfaro said.

However, further fragmentation of the lands by state Condominium Property Regime laws have allowed entire neighborhoods to be built or planned on lands that had been set aside for legitimate agricultural activities.

“Do not lose sight of the intent of the one-time subdivision (law),” Furfaro told Dahilig and Cua. “It was to manage our land.”

Councilman Tim Bynum said Kaua‘i is the last county in the state that allows ag subdivision. Rather than allowing neighborhood development on ag lands, the county should be promoting growth around already-built towns, he said.

In a short presentation to his colleagues, Bynum showed large parcels of ag lands in Kilauea, Kaua‘i’s North Shore and across Kealia Beach in Kapa‘a, completely subdivided into already-approved CPR lots.

Councilman Mel Rapozo said the subdivision law is not the real problem. What is creating the problem is the abuse of the law, he said.

Landowners hardly ever follow the farm-dwelling agreement, even though they sign it, Rapozo said.

In order to receive approval to build a “farm dwelling” on ag land, the applicant must sign a legal agreement, which states the dwelling will be “used in connection with a farm where agricultural activity provides income to the family occupying the dwelling.”

Failure to abide by the agreement may result in the removal of the structure at the owner’s expense, states the agreement. The county Planning Department is charged with enforcement.

Council Vice Chair JoAnn Yukimura agreed with Rapozo’s comments of abuse of ag land, but the violation of the farm-dwelling agreement is not an easy thing to enforce, she said.

“I think what is needed is a clear definition of farming,” said Yukimura, adding that the problem is also a matter of fragmenting ag lands into CPR lots, which raises real estate prices and puts a stop on the land being available for farming.

Bynum said prospective buyers don’t read the farm-dwelling agreement. During escrow, the very last thing that buyers do in a lengthy buying process is to sign several documents from a thick stack of papers, the trigger for all parties involved in a real estate transaction to be paid off.

In order to encourage people to circumvent the law, he said, real estate professionals encourage people to get a state General Excise Tax license and sell fruit to their neighbors, and they may even get a tax break.

“To get from point A to point B, it’s going to need some sophisticated legislation,” said Bynum, adding that he recently met with staff from Big Island’s planning department, and they were willing to come to Kaua‘i to show Kaua‘i County Council members how they were able to stop abuse there.

Meanwhile, the county is in the process of a comprehensive updated of its CZO.

The document has been amended several times, but never in a thorough way.

In 1996, there was an attempt to update the CZO. But the administration decided to wait until the county General Plan update, in 2000, to go along with the CZO update. Now, 12 years later, a phase I draft for the CZO update is ready.

Go to www.kauai.gov/planning and click on “projects” on the left side of the screen. From there, click on “CZO update” to reach the web page where the CZO Update Phase I draft can be downloaded.