Cover Story

This land is zoned for agriculture, although it’s located in a subdivision with the word “estates” in its name, numerous high-end vacation rentals on its streets and just one bona fide farmer in its midst. The real estate flyer says it all: “Four acres in northeast Kaua’i with a whitewater ocean view. $1.995 million.”

A while back, that farmer–John Wooten–appealed to Kaua’i state Sen. Gary Hooser for help. The homeowner’s association wouldn’t stop harassing him. It seems the trees that made his crops viable by protecting them from salt spray also blocked too many $1.995 million views.

The result was a law that made it illegal for agricultural subdivisions to preclude farming operations. It was a victory of sorts–farm land is for farming. And yet state law has prohibited any housing but farm dwellings on land zoned for agriculture since 1976. Why, Wooten wonders, did he need a new law in the first place?

Such is the convoluted state of affairs throughout Hawai’i, where agricultural lands, which represent the bulk of the acreage still undeveloped in the state, are being converted into housing, gentleman’s estates and tourist accommodations at an astonishing rate. As a result, farmers are feeling the squeeze, both in skyrocketing real estate prices that make it nearly impossible for prospective farmers to purchase land and from new non-farming neighbors who are unhappy with the dust and noise of agricultural activities.

FROM RESOURCE TO COMMODITY

“[Agricultural land in Hawai’i] has moved from a resource to a commodity. Once you do that, it’s all about highest and best use, and that means dollars and cents,” says Glenn Teves, the University of Hawai’i’s College of Tropical Agriculture and Human Resources (CTAHR) extension agent on Moloka’i.

Teves is concerned that the unfriendly interface between farming and urban uses “will be the nail in the coffin” for Hawai’i agriculture. “We need to keep the housing out of the ag land, but I think we’re past that point already.”

The encroachment is particularly pronounced on O’ahu. Shopping centers, industrial parks and housing projects–some 15,000 units are planned for the ‘Ewa plain alone–continue to be developed on productive farmland there. On the predominantly rural neighbor islands, it’s a slightly different situation.

“The problem now has shifted to gentrification,” says Jerry Ornellas, vice president of the Kaua’i Farm Bureau. “They [the counties] aren’t [formally] rezoning [land…it]’s like defacto zoning. The use changes from agriculture into estate, but without any of the planning you generally do. There’s no change in density, but there’s a use change.”

The issue is coming to a head as Neighbor Island counties move to regulate the burgeoning vacation rental industry, which is growing largely at the expense of agriculture. The regulation has been fiercely opposed by the real estate industry, which has enjoyed brisk sales of ag land in part because non-farming buyers have built lavish homes, many of them rented to visitors–some fetch upwards of $5,000 per week–to help pay off mortgages.

Although non-farming uses of ag land have taken off in recent years, they’re beginning to meet opposition from some residents, farmers and politicians who believe such practices are fueling land speculation and threatening the viability of agriculture at a time when the state is looking to reduce its dependence on imported food and fuel.

THE COUNTIES RESPOND

In response to such concerns, Maui County is working to develop an ordinance that addresses vacation rentals on ag land, and Kaua’i County recently adopted a bill that prohibits such operations, at least without a special use permit. Kaua’i’s measure was created when Tony Ching, then-director of the state Land Use Commission, issued the opinion that such accommodations were not allowed based on his reading of the law.

The matter recently went before the state Legislature in the form of a resolution–HCR 348–that asked the state attorney general to issue an opinion on whether Chapter 205 actually prohibits farm dwellings from being used for tourist accommodations. The House passed the resolution, but it was deferred in the Senate.

Teves, who was an expert witness in the Big island’s Hokuli’a case, in which plans to develop a luxury golfing community on South Kona ag lands were first challenged in court and later allowed by the Legislature, says an opinion is not needed because the law is already clear.

“The people who farm that land sleep in that dwelling,” he says. “If you’re not farming the land, you don’t need a dwelling. If you go on that rationale, all these gentleman’s estates are already illegal.”

Kaua’i Rep. Roland Sagum (D-16th District), a planner with Kikiaola Land Co. on the island’s Westside, asked Rep. Ken Ito (D-48th District), chairman of the House committee on Water, Land and Ocean Resources and Hawaiian Affairs, to introduce the resolution. Since the deadline for introducing new measures had already passed, the stalled HCR 348 was stripped of its original contents and new language inserted.

In a prepared statement, Sagum said he was acting at the behest of local farmers. “They needed a legal clarification on whether they, as farmers, were allowed to operate transient vacation rentals within state agricultural districts without a special use permit. They are providing alternative visitor accommodations in either their single family home or farm dwellings as a way to earn more income.”

While Ornellas agrees that farming is becoming increasingly untenable and ag tourism might be a way to help some farmers make ends meet, he doesn’t think the resolution was introduced to help those who are actually working the land.

“The real estate industry is slowing down and they [realtors] cannot handle that,” Ornellas says. “They want constant growth. This is the way to keep that growth and construction going.”

WHEN IS A FARM NOT A FARM?

Attorney Jonathan Chun, a former state Senator from Kaua’i who has both the Kaua’i Board of Realtors and farmers as clients, says the current dispute over vacation rentals is merely clouding the real issue: what constitutes a legitimate farm dwelling?

“Neither my clients nor us [the law firm of Belles, Graham, Proudfoot, Wilson & Chun] have taken the position you don’t have to do any ag use,” he says. “The question is how much ag do you have to do? Nobody has ever taken that bull by the horns and said, under state law, this is how much ag use is required to satisfy the law.”

The law defines farm dwelling as “a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling.”

The law also allows for agricultural tourism on working farms or as part of a farming operation, but prohibits such tourism in the absence of a bonafide farming operation. It further directs the counties to establish ordinances for overseeing and enforcing activities on ag land, including “requirements and restrictions for accessory facilities connected with farming operations, including gift shops and restaurants; provided that overnight accommodations shall not be permitted.”

Kaua’i Councilmember Shaylene Iseri-Carvalho, an attorney, noted in her testimony opposing HCR 348 that “overnight accommodations statutorily cannot be permitted. It is also clear that agricultural tourism cannot be permitted ‘in the absence of a bonafide farming operation.'”

The problems arise, critics say, when ag land owners try to pass off a few fruit trees or a pasture with horses as a bonafide farming operation–a scenario that is common in agricultural subdivisions throughout the state.

It likely wasn’t a scenario envisioned by lawmakers when they adopted Act 205 some 32 years ago, when plantations occupied most of the state’s best agricultural lands, tourists stayed almost exclusively in oceanfront resorts and the visitor industry was still in its infancy on the Neighbor Islands.

Industrial agriculture dominated the Islands’ landscape and economy back then, and the law was intended to protect and support it. The 1978 Constitutional Convention further emphasized Hawai’i’s commitment to agriculture, with delegates approving new provisions in the state’s Constitution that favored farming, such as creating the state Commission on Water Resources and an initiative to identify important ag lands.

But while the former was implemented, the latter was not.

“It’s been 30 years and the Legislature has yet to identify our critical ag lands,” Ornellas said. “You tell me how that can possibly be without somebody being held accountable.”

30 YEARS…AND COUNTING

The Legislature did take up the issue in its last session, adopting a controversial bill that allows landowners to designate certain ag lands as “important” in exchange for the right to reclassify 15 percent of the total into the urban and rural districts. Critics say this would undermine the ability of local communities to participate in land use decisions. Under the bill, which is awaiting the signature of Gov. Linda Lingle, large landowners also would get taxpayer-funded incentives to promote agricultural uses.

The underlying problem, according to farmers, attorneys and politicians alike, lies with the Legislature’s reluctance to deal with what Chun terms the political “hot potato” of taking lands out of the agricultural district and reclassifying them for urban and residential uses.

The problem began, Chun said, when land unsuitable for farming was put into the agricultural district. “When you designate that much ag land and limit urban uses, you are going to run into problems when your population increases, like is happening here [on Kaua’i.] “But instead of dealing with the issue at its root, he said, legislators took the approach of “we’ll just say OK and let people live on ag land.”

That led in turn to legislation that allowed ag land to be subdivided, and from there it was broken up further through a process known as condominium property regime. Now many fulltime residents are occupying agricultural lots that are one to three acres in size.

“How do you tell people you can live there, but you have to make the majority of your income from farming?” Chun said. “That’s absurd.”

Meanwhile, off-island investors attracted to Hawai’i’s low-priced agricultural land began buying up parcels for second homes and investment purposes, leading to a booming market in gentleman’s estates where farming operations are minimal or non-existent.

Even though landowners are required to submit notarized documents, which are filed with the Bureau of Conveyances, attesting that their homes on ag land are occupied by families who derive income from agricultural activity on the property, county governments eager for the property tax revenues that these upscale developments generate have largely looked the other way. The agreements are enforced only on a complaint basis, with counties claiming they do not have the resources to conduct the inspections needed to document violations.

“Where’s their incentive?” Ornellas asked. “It puts money in their pockets when people don’t comply. Escalating land prices benefit the counties, declining land values do not. What do you think they’re going to foster?”

Added Teves: “The biggest problem is non-enforcement of existing laws.”

“The salient point is we’ve got a solution and that was the farm dwelling agreement,” Ornellas says. “I’ve had people laugh when I brought that up because it was so ridiculous to even mention, but it is the law. Is government going to be a scofflaw?”

Rep. Hermina Morita (D-District 14) says the farm dwelling agreement could be easily enforced, but likely hasn’t “because housing is such an issue in Hawai’i.” She said that several times in the past six years some lawmakers tried to push through “a concept called rebuttal presumption,” which would have prohibited ag subdivisions with such obvious non-farming features as entry gates and clubhouses.

“But it’s never passed,” she says. “You’d think that would be a no-brainer.”

Many blame the power of special interests.

“Developers carry a strong influence in the re-election of many of these officials,” Teves says. “You have this growing influence of developers versus constituents. That’s as plain as I can put it.”

Adds Chun: “Anytime you have a low voter turnout you’re subject to special interest groups and you have laws that cater to them. Until we as a public really look at that, our laws will continue to be dictated by special interests.”

Morita agrees. “Large landowners have control of water and land and want to dictate the policy.”

The question now is how to resolve the matter before the state loses so much farm land that its options for perpetuating ag land are irrevocably narrowed. Those most closely involved in the issue say the Legislature doesn’t have the political will to take it on.

“Twenty-five years ago we had a lot of legislators who came out of an ag background, the plantation lifestyle, and they understood this,” Teves said. “That’s why laws relating to agriculture were really tight. Now those guys [the Legislature] are trying to free up the locks on the gates to get into those prime ag lands.”

Chun thinks the way out is through a multi-step process that should begin with “the discussion of what really is ag lands. The Legislature is trying to do that through the important lands initiative. That’s a worthwhile exercise. And everything else we should let go.”

Hooser agreed. “I think the people in charge of our state since statehood, and probably before, have been the major landowners. They come before us and plead poverty and say if you don’t let us develop, we’ll pack up and sell off. There will need to come a time when the county councils and planning commissions say, I’m sorry, that’s (agricultural uses) what you’re entitled to do with it. But I don’t know when we’re going to see that.”

A FINITE RESOURCE

Teves, Ornellas and Morita, however, say that even lands that don’t have the highest classification of A and B can still be used for farming. And besides, Morita pointed out, the classification system itself could be obsolete because it was based on the best soil and conditions for sugar cane and pineapple. Lands growing valuable crops such as taro and coffee were considered unimportant, she said.

“In the past,” Teves says, “all the good lands were in sugar and farmers were on the fringe. Some of them got really good at it. If they could farm that, they could farm anywhere. If we look at Hawai’i as a finite resource, then all the ag lands are important.”

Ornellas agrees, but said it’s also important to start expanding Hawai’i’s pool of farmers by helping them get experience on state-owned agricultural lands. “I don’t want to sound doom and gloom. There is hope. I’m not real big on government initiatives. I think people need to figure this out on their own. But in this case, where the state does have resources, we can get people on those lands and use them as incubators and from there get them on private lands. I do see movement in that direction.”

Teves also has hope — at least for Moloka’i. “I feel very optimistic because we have a community that is aware of this kind of thing and wants to protest it and has been able to stop the kinds of projects that would eliminate it. On Kaua’i, they’re facing an uphill battle. People are not listening and money rules.”

“I think that the people of Hawai’i, especially those who are passionate about agriculture, have to stand up and put their legislators on notice,” said Teves, who thinks an alliance of farmers, environmentalists and Native Hawaiians could help build political support for perpetuating agriculture.

Ultimately, Morita said, consumers could decide the fate of Hawai’i agriculture if they started demanding fresher, locally produced foods. “When people lead, politicians follow.”