To some people, “property rights” means “I own my property, I can do whatever I please with my property.” Not so fast there. True, for those who might live in an isolated, unzoned area on the U.S. Mainland, that’s probably
To some people, “property rights” means “I own my property, I can do whatever I please with my property.”
Not so fast there.
True, for those who might live in an isolated, unzoned area on the U.S. Mainland, that’s probably the case — as long as the activities conducted on that land are legal.
But in Hawai‘i, where all land has been zoned for particular uses, you do not have unlimited rights just because you own a piece of land. And denying you the right to ignore zoning laws is not a matter of “taking” your rights away from you. You still have the right to own the land, and you still have the right to build on it and live on it in accordance with zoning laws — those are your basic “property rights.”
It is puzzling that, unlike other areas of the law, zoning laws are so frequently treated not as laws but as “suggestions.” If I disobey any other law, I don’t expect to get an exception or a variance or a change of that law just because I want it. However, those who want to disobey zoning laws expect just that — they go, hat in hand, putting on their most charming face, and ask planning, permitting, and governing bodies to make exceptions for them. Quite often, they have been quietly and carefully cultivating friendly relationships with the “powers that be” well in advance of making their official requests — something the “powers that be” need to be constantly vigilant about.
If you buy or inherit a piece of land zoned “Agricultural,” you should be engaged in some kind of full-scale or family farming activity. Having “a few palm trees” or “a few goats” does not meet the zoning requirements. The widespread practice of buying open or agricultural land for the real purpose of converting it into subdivisions or other profitable uses would end abruptly if only our zoning laws were upheld as originally intended.
Likewise, if you buy a lot in an area zoned “Residential,” you should have to abide by the zoning laws and build only one house, for your own personal dwelling. Zoning laws do not allow you to operate a vacation rental business on that lot.
Think about it. There were valid reasons way back then for establishing zoning laws. The fact that our population has increased does not change that. The fact that certain kinds of large farming operations have ceased should not change that, either. The types of crops may vary, but there will always be a need for agricultural and open land.
If indeed our zoning laws had been rigidly enforced all along, the motto, “Let the buyer beware” would apply. Beginning now, the word should go out loud and clear: “Don’t go buying land zoned a certain way, with the secret intention of changing the zoning or getting a variance to subvert the laws. If you do that, you take the risk of never getting to do as you please with that land.”
Determining what is allowable should be very simple. Unlike the chicken or the egg arguments, it is easy to determine which came first: the zoning laws, or the landowner’s purchase of the property in question. Although there are a few landowners on Kaua‘i whose property ownership predates our zoning laws, all other property owners have been fully aware of the zoning laws on the day they first took title to the property. Unfortunately, most knew they could “get away with” converting the property to other uses.
Our problems have occurred because landowners have been routinely granted “zoning changes” and “variances” and “after-the-fact permits” to usurp the zoning laws. The architects of the current situation have been savvy attorneys, greedy investors and “real estate professionals” who know that, once one such exception has been made, they can then forevermore claim that one exception as a “precedent” to open the floodgates for other zoning violators to “do as they please” just because they “own” the land. The result is a mockery of our original zoning laws.
I wish our officials could learn the lesson that “two wrongs don’t make it right” and certainly “hundreds or thousands of wrongs do not make it right.” Just because our officials made mistakes in the past is no reason they couldn’t put a stop to such practices now.
Maybe we should have a public ceremony once a year in which all public officials (both elected and non-elected) take a specific oath to uphold and enforce all of our laws, including those having to do with zoning and land use. And, by the way, those officials should be reminded on a regular basis that they are in office to look after the best interests of the island and the average island residents, rather than the interests of those in the real estate industry. (“Industry” is a good description, because so many different “professions” are involved in real estate, including the attorneys who fight for violations in the name of “property rights” as well as those who invest in property with the distinct intention of changing its allowable uses, pocketing the profits, and then moving on to their next victims.)
If those taxpayer-paid officials responsible for upholding our laws cannot put their foot down and insist on strict adherence to the zoning laws, the situation will only deteriorate more.
There is a strong parallel in society. Zoning violations and drug problems are both a scourge on this island. The drug problem is out of hand because, from the beginning, people learned they could ignore drug laws, there was no real enforcement, and we were more concerned with the “rights” of drug users and drug dealers. Now, just substitute the word “zoning” for the word “drug” in the previous sentence.
• Barbara Elmore is a resident of Lihu‘e.
