At least 10 structures that look like houses have been built on leased farmland in Kunia without the normal inspections that come with most construction projects and despite a state law prohibiting homes on such land.
One of the biggest buildings apparently is a Buddhist temple. Several other structures have second-floor windows and balconies offering sweeping ocean views features not typically found in barns or storage sheds.
The ability of owners to erect such structures free of normal regulatory oversight and in a remote agricultural subdivision unconnected to power, water, telephone and sewer lines has exposed a gap in the code enforcement system on Oahu and generated concern among some in the farming industry.
Even though a complaint was filed with the city in June alleging that unauthorized residences some with up to four bedrooms had been built at Kunia Loa Ridge Farmlands, the city took no action on that issue.
Because of a 2012 state law that exempts certain structures from building permit requirements, the city did not have the authority to enter the Kunia Loa structures, and without being able to do so, was unable to prove that they were being used as residences even if they looked like houses from the outside, according to a spokesman for the city Department of Planning and Permitting, the agency that issues building permits and investigates complaints.
The department did cite four lessees for violating an ordinance prohibiting the storing of industrial equipment on agricultural land. The equipment was seen when an inspector went to the subdivision to investigate the complaint.
The 2012 exemption law, widely supported by the agriculture industry, was designed to free farmers and ranchers from the time-consuming, costly process of obtaining building permits for small agricultural-related buildings, such as tool sheds. The idea behind the law versions of which are found in the majority of other states was to help farmers and ranchers better compete with imported food suppliers.
The permit exemption applies only to nonresidential structures constructed on commercial farms or ranches as long as certain conditions are met, such as the floor space is no more than 1,000 square feet, the land is outside the urban district, and the building is essential to the agricultural operation.
But the law has created some confusion and enforcement challenges.
Even if permitting department officials suspect a residential dwelling has been constructed on farmland by an owner claiming the exemption, they say they lack the authority to enter the structure to prove it.
"Enforcing building and zoning laws on agricultural land is difficult enough, but exempting certain structures from the building permit process makes it even more difficult and frustrating because the building permit is our enforcement tool," DPP Deputy Director Art Challacombe said in a written statement to the Star-Advertiser.
The law has prompted some property owners on Kauai to try to sneak proposed dwellings through the review process by calling them something other than a residence.
"People are trying to disguise houses as packing facilities," said Mike Vahilig, Kauai’s planning director, estimating his office has seen five to 10 such cases over the past year.
In attempting the ruse, garagelike space has been labeled as packing floors, bedrooms as offices, and the kitchen as something else, Vahilig said.
Even though the property owners claimed the exemption, the county was able to block the proposed projects by denying a zoning permit, a separate approval needed before construction can start, according to Vahilig.
If Kauai didn’t have that separate process, the owners would have been able to build the homes, he added.
On Maui, the law has sparked confusion among some property owners who believe they don’t need other permitting or land-use approvals to build their non-residential ag structures, according to Michele McLean, the county’s deputy planning director.
Yet various agencies still review the proposed plans for issues unaffected by the 2012 law, such as whether zoning, fire safety and other such requirements are met.
If the building has a kitchen and other features that make it a dwelling, the owner will be told it cannot be considered nonresidential, McLean wrote in an email to the newspaper.
"At that point, the owner has options either to go through the regular building permit process if the new dwelling is allowed on the property or to remove the features that make it a dwelling and proceed with a legitimate nonresidential structure," she said.
On Hawaii island, Planning Director Duane Kanuha said he wasn’t aware of any significant abuses of the exemption law.
Another state statute, enacted in 2006, paved the way for the Kunia Loa project, which covers more than 850 acres of former sugar and pineapple land along the foothills about a mile or two off Kunia Road.
The 2006 law allows ag land to be subdivided and leased without having to comply with county subdivision standards, which typically include such things as sidewalks and street lights. But only farm uses are permitted on the leased property, and homes are expressly prohibited.
Not even temporary dwellings, including trailers and campers, are allowed, according to the law.
The housing prohibition was included to address the controversial practice of building luxury homes, known as gentlemen farms or estates, on ag land where only a minimal amount of farming, such as planting a few fruit trees, is done.
Kunia Loa features about 100 small farm lots ranging from 5 to 35 acres. They were marketed several years ago for prices ranging from $40,000 to $60,000 per acre, or $200,000 to $300,000 for the smallest lots, with the farmers buying shares in a nonprofit company that actually owns the land. That gave them a proprietary right to a 99-year lot lease that was renewable.
Stephanie Whalen, executive director of the Hawaii Agriculture Research Center, said the farming community in the Kunia area has had concerns about how Kunia Loa would be developed.
While the intent to have many lots available for small farm operations seemed good, most of the land appeared questionable for farming, she wrote in an email to the newspaper.
"All were hopeful that a viable farming community would develop," she noted. "Many are questioning that outcome with the increasing number of apparent housing units springing up with minimum farm products emerging."
In a proceeding before the Land Use Commission last year, the state Office of Planning also raised concerns about housing potentially becoming a problem at Kunia Loa. The testimony was submitted to address the landowner’s request to designate the property important agricultural land, a formal label that comes with tax credits and other benefits.
The designation was not granted.
Even though Kunia Loa’s own rules prohibit farm dwellings, the rules can be amended, and "there may not be sufficient protection to prevent abuse and discourage gentlemen estates’ from being developed," the state planning office said in its written comments.
Representatives for the landowner, Kunia Loa Ridge Farmlands, chose not to comment for this story or did not respond to multiple phone calls and emails from the Star-Advertiser last week seeking comment.
But in documents submitted to the commission, Raymond Iwamoto, the landowner’s attorney, noted that not even a single farm dwelling is permitted in the subdivision and that various legal, institutional and practical constraints would prevent abuse and protect against gentlemen farms or "any dwellings whatsoever."
He said about 45 percent of the subdivision acreage as of December 2012 was in ag production, and most of the remaining land was being prepared for production.
The Star-Advertiser was unable to reach any of the owners of the houselike structures to ask if people lived there.
The newspaper tried to enter the privately owned subdivision through the single dirt access road but was turned away by a security guard stationed at a sentry station. He said access was by appointment only. Private property signs warned against trespassing.
From Kunia Road, the Star-Advertiser was able to see, with the aid of binoculars, at least 10 structures that looked like houses. All are completely off the grid. One of the largest, a bright yellow two-story building, is a Buddhist temple, two people familiar with the project told the newspaper.
At least some of the structures appear to be occupied at night. When the Star-Advertiser drove along Kunia Road about 8:30 p.m. Thursday, a scattering of lights could be seen in several places in the subdivision, breaking up what was otherwise a pitch-black scene.
Despite enactment of the exemption law in July 2012, DPP’s Challacombe said his agency since then has issued 30 building permits for Kunia Loa structures, primarily for storage sheds (some with decks), barns and fences. No building permit was issued for a temple.
A spokesman couldn’t say Friday whether any of the houselike structures were issued permits. But if they were, the department under the normal review process would have had to inspect the buildings upon completion to ensure the plans were followed and to close out the permits. That hasn’t happened with any of the houselike structures.
Moreover, the department has not received a single notice of an exempted building being completed at Kunia Loa even though the 2012 law requires notification within 30 days of completion.
Failure to provide that notification could void the building permit exemption, and that decision rests solely with the permit agency, according to the law. Despite that provision, Challacombe said the city does not have the authority to void the exemption because it was created by a state law, not a city ordinance.
The city had testified against the proposed exemption measure in 2012. Among other things, the city raised public health and safety concerns, warned that enforcement would be nearly impossible and noted that exempt buildings would go uninspected both during and after construction.
"We believe that all of our objections and concerns have come to fruition," Challacombe said last week.
