First set of questions from Rob Perez received by DHHL Apr. 28, 2014 at 4:20 p.m.:

Hi Puni,

I’m planning to do a story on the proposed subdivision of the homestead lot in Waimea on Hawaii island that is leased by Flora Solomon. I wrote about that lot last year, noting that county records show that four dwellings have been built on this one pastoral lot even though DHHL’s own rules generally allow only one dwelling per residential, agriculture or pastoral lot.

Here’s the TMK for the Waimea lot: 3650010100000. I have some questions related to that lot and this subdivision proposal.

Here are the questions:

(DHHL responses sent May 1, 2014 at 12:11 p.m.:)

1. When I wrote about this parcel a year ago, the department responded to my questions about four residences on a single parcel by saying the issue was being discussed with the lessee. Given that DHHL is supporting this subdivision proposal, that would suggest that the dwelling issue has been resolved. What was the resolution?

Mrs. Solomon, like a handful of other lessees, is in the process of working through the requirements needed to subdivide their lots. As this is a new process, the department is working very closely with these lessees to identify conditions and obstacles that need to be worked through to obtain approval at both the Commission and County level.

We had been working through some of the issues with Flora Solomon and her attorney, Bruss Keppeler, as a means of bringing these matters into compliance. Unfortunately, Mr. Keppeler passed. As we do with all of our lessees, we will continue to work with Mrs. Solomon to resolve this matter.

2. County records show that 9 structures in all were built on the parcel: four residential structures, a 2,088-square-foot carport, a 1,600-sq-foot barn, a 1,920-sq-ft utility shed, a 1,008-sq-ft carport and a 480-sq-ft garage. Did DHHL give the lessee permission to build each one prior to construction, as required by DHHL rules? If so, why did the department allow so many structures, including four dwellings, to be built on one pastoral parcel, especially given DHHL’s own rules limiting the number of homestead dwellings and given that the lot was not connected to the county water system? If DHHL didn’t grant permission for each structure, what were the repercussions to the lessee for not seeking required permissions?

The subject matter is an ongoing issue in all counties and something the department needs to resolve in order to better serve our beneficiaries.

As county zoning and planning has evolved over the years, our rules have not kept pace with those changes, which is something the department acknowledges needs to be addressed.

For example, in several counties, Ohana zoned areas allow for more than one residence per lot and often these dwellings are located directly across the street from Hawaiian homes subdivisions which are restricted, by rule, to a single residence. While we could enforce rules from a “zero tolerance” perspective, the better course of action for our beneficiaries might be to evolve our rules accordingly to bring consistency to the process. That is something that the Commission has been contemplating in examining ways to best address affordability and wait list concerns, but due to its complexity, the commission has been prudently evaluating the impacts such a policy change could have.

3. Lessees elsewhere, such as in South Point on the Big Island, say they have been told for years that they couldn’t build homes on their pastoral lots for a variety of reasons, including the lack of water infrastructure. Yet this Waimea lessee has been able to build four homes on a single parcel — an apparent violation of DHHL rules — and the parcel has no county water. Lessees say this case demonstrates that this politically connected family, which includes a state senator, has been given preferential treatment, while other lessees are told they have to abide by department rules. Please respond.

We cannot address your statement that the parcel has no county water. Our records show that Mrs. Flora Solomon is connected to the county system. This lessee has been treated the same as other homestead lessees and has not been afforded preferential treatment by the department.

HAR 10-3-34 requires lessees to comply with county codes as a means of ensuring structural safety and conformance with best practices for electrical, water and waste water system installation to ensure health and safety for the respective beneficiary and their ohana. This rule is also a tool that the department uses to assist in the valuation of the structure (compliance with standard building practices) in order to calculate any net proceeds owed to the former lessee once a lease is surrendered, cancelled or terminated.

In the case of South Point, as previously stated in our detailed responses to the Star Advertiser, the Ka’u to South Kona Water Master Plan states that “A water moratorium exists in the South Point area that prevents issuing of new water meters. The moratorium was issued due to the poor condition of transmission lines and the length of service lines.” We further went on to identify for the Advertiser that as part of the Department’s Acceleration Awards in Ka’u in 1986, 25 25-acre subsistence pastoral lots along South Point Road and 25 two acre farm lots were offered to beneficiaries of which, 17 of the 50 lots were selected. However, over time since 1986 that 17 has dwindled to the current number of 12 lessees.

We also said that water and roads are required before DHHL can secure subdivision approval and individual TMK’s; once that is done then homestead lessees can secure financing and building permits. As part of our response, we stated that the cost to develop road infrastructure and to find a water source and dig a well on DHHL lands in the vicinity, as well as transmit that water to the limited number of ag lots in the area has been challenging. We identified that water improvements were estimated at $1.1 to $2.6 million (1985 dollars), and noted that by way of comparison, ballpark estimate for exploratory and production well is about $4 million in today’s dollars.

Regarding the issuance of building permits, we explained that it is a County requirement to have water and road improvements in place before the subdivision process can proceed. Those individuals that have constructed residences have signed waivers with the department acknowledging that constructing these structures are at their own risk and subject to change due to the subdivision process when it occurs.

4. Are there other examples of DHHL lessees who have been able to build multiple homes on a single pastoral lot, particularly a lot not connected to the county water system? If so, please list some examples so I can mention them in the story. That would tend to counter the notion that the Solomon family received special treatment.

The department acknowledges that over its 93 year history, there may be other residential, agricultural, or pastoral lessees with unapproved structures on their lease, but we have not been able to inspect all properties statewide due to limited personnel and resources. However, if lessees seek the department’s assistance with compliance issues that they are willing to correct, the department does its best to work with them to resolve issues and bring them into compliance.

5. I’ve been told that the commission in the early 2000s imposed a moratorium on the subdividing of larger homestead lots because of past abuses. In some instances, I was told, lessees subdivided large ag or pastoral parcels and sold the leasehold rights to other beneficiaries, rather than provide their children with lots so they could live nearby to help farm or ranch. Is that accurate? If not, why was the moratorium imposed?

The HHC unanimously passed the moratorium on agricultural subdivisions at its December 1999 meeting, creating a moratorium on all subdivisions involving agricultural and pastoral leases until a strategy/plan for future agricultural activities was approved.

6. When was the moratorium lifted and what prompted that action?

On January 15, 2013 The Hawaiian Homes Commission approved a removal of the moratorium on subdivisions of agricultural and pastoral leases, subject to the DHHL developing an implementation plan to clarify section 10-3-26 regarding residence permitted on agricultural and pastoral lots.

DHHL conducted outreach meetings across the state to discuss the implementation plan with beneficiaries prior to its April 2013 HHC meeting.

On May 20, 2013 HHC approved the Implementation Plan that included:

  • Criteria to allow Subdivisions and of Agricultural Leases;
  • Beneficiary Consultation Report;
  • Next Steps (procedures) to implement 10-3-26(f).

The Department began accepting applications on January 31, 2014 for subdivisions from farmers and ranchers who were interested in subdividing their agricultural lots.

7. On the subdivision map for the Waimea parcel, one of the buildings is labeled as a halau. Is that a permitted type of building on a ranching homestead?

A halau would not necessarily be something that the Department takes exception to.   What is important to the Department is if the pastoral or agricultural plan submitted by the lessee is being carried out.

8. When I did my story last year, DHHL told me that Malama Solomon was offered a revocable permit for the adjacent parcel because that parcel was landlocked, with the only access being via the Flora Solomon homestead parcel. Yet the subdivision map shows the easement leading to the RP parcel and the homestead parcel provides non-exclusive access. That would seem to contradict the notion that the RP land was landlocked. Please clarify.

We stand by our statement we issued last year to the Star Advertiser.

To clarify: The proposed non-exclusive access and utility easement shown on the survey rendering from the edge of parcel A to parcel B is a depiction on a map and is not an actual road. Ingress and egress to the RP is through internal roads on Mrs. Solomon’s homestead parcel.

I would welcome any other information that will help put these issues in context.

Please get back to me by the end of the day Wednesday so I can meet my story deadline. By then, I also will be able to let you know when the story is scheduled to run. There’s a chance it may run before this weekend, but I will give you advance notice whenever it runs.

Aloha,

Rob


Second set of questions from Rob Perez received by DHHL May 1, 2014 at 5:53 p.m.:

Hi Puni,

Thanks for the responses. I have several follow-up questions.

(DHHL responses sent May 2, 2014 at 2:38 p.m.:)

The Solomon’s built four homes on the homestead parcel. DHHL rules clearly state that before a lessee can build any permanent improvements on a homestead lot, he or she needs to get permission from DHHL in writing. My question, which I asked in the first set, is simple: Did DHHL give the Solomon’s permission to build the four homes?

We are not aware of documentation to that effect. DHHL also acknowledges, however, that claims are sometimes made that past procedures and expectations regarding prior approval lacked clarity. Whatever the case may have been in the past, this administration is committed to working with all lessees who desire to voluntarily come into compliance.

Unless I read right over it, your response doesn’t answer that question. Please do so. Either the Solomon’s received permission, in which case you need to also address why they did get permission given the one-dwelling-per-lot rule, or they didn’t.

If it’s the latter, you need to address why they have been allowed to disregard the rules with no apparent repercussions — and now the department is supporting their efforts to subdivide the land, which in effect would correct the violations after the fact.

While it stopped the illegal subdivision of large parcels into gentlemen estates, the Ag and Pastoral moratorium caught some families in the midst of their subdivision plans for their ‘ohana when it was implemented in 1999. Pending subdivision requests were allowed to complete the process.

As evidenced by the hard work undertaken by our staff in the lifting of the Ag and Pastoral moratorium and other departmental programs, this administration is committed to working with everyone who reaches out to help them come into compliance with the department’s rules and regulations whether it be for Homestead Leases, RPs, ROEs, General Leases and Licenses.

Since lifting the moratorium, the department has provided 10 Hawaii Island lessees and 5 Molokai lessees application packets for subdivision requests. The department will continue to work with our beneficiaries to process applications as they are received.

Either way, this seems to support the notion I’m hearing from other beneficiaries that this family is receiving preferential treatment.

We state again, for the record, that this family has not received any special treatment by the department.

The situation seems even more remarkable when you look at how the parcel is being subdivided. One lot has a very unusual configuration in order to get several of the structures onto the lot.

In your responses to question 4, you indicate that there may be other lessees with unapproved structures on their lots. Should I take that to mean that the Solomon homes were unapproved by DHHL?

See first answer above.

You also indicated that DHHL records show the parcel is connected to the county water system. Yet the county told me it is not connected to the system, which is why a water variance is required before the subdivision request can be addressed.. The county told me a water variance request recently was submitted. I’m assuming that the Solomon’s submitted the variance request since your agency’s records show the parcel is connected to the water system. If that’s what your records show, though, it raises serious questions about the accuracy of the department’s records, raising even more questions about the handling of this case. Can you clarify the water issue?

Thank you for your follow up email to me in which the county acknowledged that the property had a water meter attached to parcel A, and, that the waiver would be needed for the future subdivision if approved by the Commission and the County. I am glad that the department’s records are indeed accurate in this regard.

Please get back to me by the end of the day today on the dwelling questions, given that none of those are new and are simply being asked a second time because you didn’t answer them the first time.

As for the water question, please get back to tomorrow, given that you likely will have to research that more.

Aloha,
Rob


Third set of questions from Rob Perez received by DHHL May 2, 2014 at 3:10 p.m.:

Hi Puni,

Thanks for the additional info, Puni. One last point of clarification. In your prior response, you indicated that DHHL began accepting subdivision applications from farmers and ranchers on Jan. 31, 2014. That was following the May 2013 approval by the HHC of the implementation plan.

The county told me it received the subdivision application from Flora Solomon on Dec. 18, 2013. That’s the same received date stamped on the subdivision map. The county also said DHHL, as landowner, signed off on the application, which is common.

Yet if DHHL didn’t start accepting applications until Jan. 31 of this year, why did it sign off on the Solomon application to the county in December of last year?

(DHHL responses sent May 2, 2014 at 7:55 p.m.:)

To clarify, subdivision applications are accepted by the department on January 31 and June 30 of each calendar year. These two dates are the application deadlines. Applications could have been accepted on June 30, 2013, but none were submitted. As January 31, 2014 was the date the department received its first application, it was the date the department began accepting applications from interested lessees.

As one of the first applications to be submitted for the January 31st deadline, the department, in collaboration with the lessee and the County, is utilizing this subdivision application as a test case to identify challenges to the process with the understanding that final subdivision would require the completion of the process and commission approval. The test case has already allowed us to identify two issues, water waivers and recordation at the Bureau of Conveyance, which need to be addressed in order to improve the process. We plan to test case one or two more applications as they become available. More refinements may be necessary as DHHL works with the various Counties to serve our beneficiaries.

It seems like the process should work the other way: the farmer or rancher applies first to DHHL to get DHHL to sign off on the subdivision proposal, then, after receiving DHHL’s blessing, the farmer or rancher applies to the county for approval. How can a farmer or rancher get DHHL to sign off on a county application if DHHL itself has not started taking applications?

Am I missing something about the process?

If you can’t get clarification on this point, given the late hour on a Friday afternoon, I’ll just go with what I have:

Solomon applied to the county for subdivision approval in December, and DHHL, as landowner, signed off on that application, which is common practice, according to the county. But DHHL didn’t start taking applications from farmers and ranchers until more than a month later.

See first answer above. 

I’m not even sure I’ll get into such detail in my story. That will depend on how much space I have and all the other factors that go into the equation of deciding what to include in that set amount of space.

The story, by the way, is currently scheduled to run Monday.

Aloha,

Rob