Sow the Right Seeds

SUBHEAD: Farming’s future on Kauai hinges on an enforceable law that makes sense.

 By Editor of The Garden Island on 26 July 2009 
Image above: Last sugarcane planting in Kamukani, near the only mill still operating on Kauai. Photo by Juan Wilson.

As the Kaua‘i County Council continues its work on the critical farm worker housing bill, we must ensure the legislation sows the right seeds to sustain our long-term vision for the island. A law is only as good as its enforcement. This puts particular pressure on the seven-member legislative body to craft a bill void of vagueness and loopholes. As with all lawmaking, we must break down the barriers that could block the bill from accomplishing its intended purpose. In this case, we want to incentivize farm workers with free or affordable housing.

Attracting and retaining this labor force will help the island move forward in its quest to grow this essential industry. Agriculture is key to our survival, first and foremost. As we’ve heard before, if the ships stop coming, we’ve got a week or two before our food supply runs dry. Farming will also serve as an economic driver while preserving open space and our rural character. The definitions are a vital component. T

he County Code already has some 19 pages worth from “accessory building” to “wall.” But the key ones missing — “farm,” “farm worker,” and “farm worker housing” — must be carefully defined. As is often the case, we’re dealing with things we know when we see them. But that argument won’t stand up in court if someone challenges it.

So spelling out in fine detail what it is we’re talking about here is a tricky task of utmost importance. The county can regulate farm worker housing all it wants, mandating this or forbidding that, but if we don’t have a shared understanding of what constitutes a farm and the housing that should be allowed on such land then we don’t have an enforceable law. For far too long, the county has allowed people to buy property on ag land and not operate a real farm on it.

The owner signs an agreement acknowledging they’re buying a farm, they plant a mango tree in the front yard and they’re “farmers” — taking advantage of drastically discounted property tax rates and inflicting eyesores on our beloved view planes. It seems common sense. We would naturally expect someone living on ag land to be operating a farm.

Instead, we have some wealthy part-time residents building mansions while others subdivide it to death and still more operate vacation rentals. These practices fail to produce the food, fuel and fiber for which this land was designated. This bastardization has befallen us, producing the pickle we’re now in. The county must reap what it has sown as it plants a legal framework to foster true farming.

A couple components seem to have ensnared the council. One is how many hours a farm worker must work to be considered a farm worker and thereby able to live in farm worker housing. The other snag is how much a farm must gross to be considered a farm.

Bill No. 2318 Draft 1, introduced July 15, defines a “farm worker” as a farm owner, employee or intern who works no less than 14 hours per week in farm-related operations on a farm. (The legislation defines “farm” as an operation or enterprise in operation for at least one year, the core function of which is the commercial cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage and timber or the raising of livestock, including poultry, bees, fish or other animal or aquatic life that are propagated for commercial purposes as evidenced by the annual filing of a Schedule F form with federal income tax filings by the owner or lessee.)

This draft sets the limit on how much money the farm must generate at $12,000 of gross sales of ag products annually for the preceding two years for each unit on the lot. The June 3 version of the bill set these two limits at 19 hours and $35,000 a year. We agree with the hours provision contained in the earlier version because it would better uphold the “worker” part of “farm worker housing.” However, it seems like an extremely challenging piece to enforce. A forged time card and voila, you’re a farm worker.

This provision needs more teeth to make it worthwhile for inclusion. Similarly, we understand the rationale behind putting a sales requirement on a farm because it could prevent an ag lot from being used for residential or other purposes. However, as farmers testified before the council in recent weeks, some years farms aren’t making money, especially those trying to get up and running. With start-up costs, crop rotation and myriad other factors, this limit becomes an ineffective tool to weed out the real farms from the fake ones.

 And if the council is now leaning toward slashing that number to $12,000 or $10,000, why bother? It just creates another burden for farm workers to manage, detracting from their real work. How about this as a deterrent.

We let the Planning Department go in and tear down buildings, at the owner’s expense, that fail to conform to the required legal use. We must reverse the awful trend we’ve grown too comfortable with of importing more and more of our food. What if the Garden Isle could achieve self-sufficiency and, dare we suggest it, actually export more ag products than we have boats and planes bringing us from abroad.

A novel concept for an island so aptly named, yeah? Some provisions in the drafts currently before the council are off to a good start. Another provision we like is the one requiring farm plans to be submitted to the planning director. This provides a framework of what the owner is intending to do with the property by which the county can hold that individual accountable.

We also like the clause allowing the planning director to make two unannounced inspections annually in addition to a limitless number of properly announced inspections. However, these are only worthwhile if he actually does it. If not, this amounts to a worthless threat. We obviously haven’t been too effective to date at scaring anyone into compliance.

 Instead of the law requiring the owner to give consent to the Planning Department for an announced annual inspection, the law should go a step further and require the director to actually inspect the place each year. The council seems to agree that more than 75 percent of an ag parcel must be used for farming purposes. We think that’s a fair number and an important one to set. This will better accomplish the goal of eliminating the current perverse practice of being able to grow a tomato plant to meet your requirement to live at your farm house. Again, enforcement is the bottom line here. The Planning Department is concerned about this aspect.

The council says it will fund the necessary positions; it must. But it will take political will to achieve anything. A law is simply words on paper without enforcement of its provisions. We’re all too familiar with this. While we mentioned our distaste for part-time residents coming here and building their multi-million dollar homes on ag land to take advantage of the cheaper tax rates and sweeping views — the so-called gentleman’s versus genuine farms debate — we have our concerns about the county setting a limit on how big a farm worker’s house can be. The numbers circulating in the proposed legislation are 1,200 square feet of living space for a family and 650 square feet for a single person.

Why, if you choose to devote your life to this noble profession, should the government say how big your house can be? Plus, wouldn’t a bigger house actually help the government collect more property taxes in a time when revenue shortfalls are what we’re growing the most of right now? If the person living in the house is working the farm it’s on, that’s sufficient. We also disagree that the Planning Commission should have the right to determine the location of each farm worker housing unit.

Does a seven-member volunteer group really know where such a unit should be situated better than the farmer on the property? This provision places an unnecessary burden on the commission, which already has its hands full with a bunch of other important work. While the council is tackling the issue of vacation rentals more directly in separate legislation, the fact that these businesses are still operating on ag land can’t be ignored. The allowable uses on farm land must be specific. How can we be serious about making ag land strictly for farming if we can’t enforce existing laws and are actually moving now to allow vacation rentals for the time being to continue to operate on such land?

It’s a classic case of politicians trying to make everyone happy — the farmers because that’s a popular thing to do these days and the business community, which if it couldn’t be confronted before, certainly can’t now due to the economic downturn. Vacation rentals, as a commercial business, have never been legal on ag land under state law despite the county allowing them to flourish for years.

A back door to the county’s current law, which makes it crystal clear that TVRs are illegal on ag land, should not be passed to temporarily grandfather in those that have been operating illegally for the past five, 10 or 20 years. Enforce existing laws. Make sure this new one is air tight. And let’s get ag land back into agricultural production by helping farm workers find affordable housing.

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