During the discussions on where and how bed-and-breakfasts should be allowed in Maui County, Council Member Jo Anne Johnson wondered why the county administration is cracking down on unpermitted vacation rentals when it's not been enforcing the standards for farmlands.
It was something of a cheap shot at the administration, since Johnson does recognize landowners' rights.
It's easy to enforce a law when property owners are engaged in activities that are specifically not allowed. It's not easy to enforce a law when property owners are not engaged in activities that are specifically allowed.
With the issue of vacation rentals, county laws are clear that short-term rentals are not allowed uses of property outside the hotel and resort districts. Short-term rentals are defined as rentals of less than six months.
If Maui County zoning inspectors can determine that a dwelling unit in a residential, rural or agricultural district was rented for less than six months, they can cite the owner for a violation. Or the owner can get the required county conditional use or state special use permits.
But with farmland, the government has no authority to require that an owner must farm on land in an agricultural district.
If the government had the authority, most would consider it an excessive intrusion of government power on a private property owner. It was appropriate for a feudal society in which a hereditary noble controls the land and serfs granted use of land farmed it to the satisfaction of the lord or were kicked off.
As a democratic republic, the United States has moved beyond that historical and traditional political and social system of governing.
Conversely, if government could require a private property owner to make use of land based on the zoning granted by the government, it could have an interesting impact on some of the social issues the county also deals with. Say, if a landowner granted single-family residential zoning is required to build a house on the land and have a family living in it, would that make housing for families more likely?
In a more realistic vein, the State of Hawaii has imposed on owners of agricultural land a standard of use. That is: structures built on a piece of farmland must be related to a farming activity on the land.
But long before Maui County established zoning standards, there were landowners with homes on agricultural lands who weren't farming those lands. In any case, beginning around 1970, real estate investors around Maui saw an opportunity to develop agricultural lands that weren't being farmed but could provide homes.
The state in 1961 set up its standards in a land use law based on increasing concerns that large chunks of agricultural land would be lost as plantations shut down.
On Maui, it was the closing of the Libby-McNeil pineapple operations that left hundreds of acres fallow around Pukalani and Makawao. The first chunk to go was a hundred acres alongside the winding Haleakala Highway below the Makawao Avenue junction, reclassified from agricultural to rural to provide half-acre lots that would be more affordable for homeowners who would have adequate land to keep gardens and large pets.
An even larger area designated the Pukalani Terrace was allowed to be converted to urban use, as a residential subdivision with a shopping center, with the state kindly throwing in an improved two-lane highway up to the bottom edge of the project district.
But a group of well-connected investors had an even better idea for a low-cost development that could be sold for premium prices, planning a subdivision of 200 acres of former pineapple fields and pasture that was developed to agricultural standards - narrow "farm" roads, no sidewalks, no curbs, no gutters; no parks requirements; no sewer systems. Under the state law, minimum lot size for an agricultural district is two acres.
Maui County in 1972 had no control over the Kula 200 developer's decision to include covenants, conditions and restrictions on buyers that effectively barred most farming activities. The county had control over what was built, but neglected to enforce the law that requires homes in an agricultural district be "farm dwellings."
For the next 30 years, Maui County granted building permits for homes on agricultural lands without requiring any evidence of farming activity. Planning Director Mike Foley in the administration of Mayor Alan Arakawa was the first to mandate that building permit applications in farm districts include a farm plan to establish that a house built on farmland was a "farm dwelling."
Current Planning Director Jeff Hunt can continue to require farm plans. But Maui County has no authority to revoke 30 years' worth of building permits issued in the agricultural districts for structures built without a farm plan.
Nor does Maui County have much leverage if a homeowner fails to follow his farm plan once the farm dwelling is built.
* Edwin Tanji, city editor of The Maui News, can be reached at citydesk@mauinews.com. "Haku Mo'olelo," referring to a story writer, appears every Friday.
