Karl and Judith Sinclair are in a bind.
Their $1.4 million home in the Norfolk Subdivision off of Kananianaole Highway in south Kailua is a beautiful, sprawling mansion complete with a swimming pool and gazebo spread over 15,548 square feet, and all they want to do is expand their second-floor lanai by 500 feet.
There’s just one problem: their home sits on land zoned agricultural and is technically a “farm dwelling,” meaning it should have been limited to a single structure not exceeding 5,000 square feet.
Now the Sinclairs are applying for a zoning variance from the Honolulu Planning Commission, hoping that the city will green-light their balcony expansion and legitimize the rest of their property.
In the Sinclairs’ view, their situation is unique. They received building permits for their expansive home in 1991, 1992 and 2004 that were largely based on a 1988 letter from the city’s then-director of permitting who said that homes in the Norfolk Subdivision were exempted from the rules governing so-called farm dwellings.
But later city administrations disagreed, forcing homeowners like the Sinclairs to apply for variances to approve buildings after-the-fact.
Their application is the latest in a stream of requests for zoning variances from property owners in the 39-home Norfolk Subdivision that shows no sign of abating. According to city records, at least seven property owners have sought variances since 1990, some more than once. Nearly all of those have been approved or partially approved.
The city Department of Planning and Permitting delayed a public hearing for the Sinclairs’ application scheduled for Aug. 7 due to the impending storms.
The delay is a small setback in a multi-decade struggle over what should and shouldn’t be allowed in the windward subdivision, a conflict that’s sapped public resources and illustrated the consequences of inconsistent application of city land use ordinances. While the particulars of the Norfolk Subdivision case may be unusual, it’s part of a broader pattern of lack of enforcement of Hawaii’s land use law in which agricultural land is often agricultural in name only.
Several Norfolk homeowners have blamed the situation on conflicting policies by the city Department of Planning and Permitting, formerly known as the Department of Land Utilization.
In 1988, John Whalen, then-director of the DLU, wrote a letter saying that the subdivision didn’t have to abide by the legal requirement that says farm dwellings must not exceed 5,000 square feet and that the surrounding land must provide income for the homeowner.
Whalen, who now works as an urban consultant at the planning firm Plan Pacific, told Civil Beat that he wrote the letter because some property owners were seeking a zone change from “agriculture” to “country” and he thought that it would be successful. It wasn’t.
He said the subdivision was approved in 1984 before he became director, after an agricultural study found that the area’s topography wasn’t conducive to farming.
“I didn’t understand the logic for allowing the subdivision but I couldn’t do anything about it,” Whalen said.
“I think it’s time to take another look at the country zoning.” — John Whalen, city land-use official
He noted that the restrictions on “farm dwellings” were added in 1986 as part of the city’s Land Use Ordinance, a full two years after the subdivision was approved.
“It was really the idea of fairness, for people to have bought these properties assuming you could put a dwelling on it and finding later on they could only build a farm dwelling and that could only be associated with agricultural use,” he said. “Should (the law) be retroactive in a situation like that where the city has already determined that the subdivision is not adequate for agricultural use?”
After Whalen wrote his letter saying Norfolk homeowners didn’t have to abide by zoning restrictions, the city approved several building permits and it became less urgent for homeowners to seek a zone change through the City Council.
But subsequent city administrations have disagreed with Whalen, arguing that the zoning law actually applies and some building permits were given in error.
David Tanoue, then-director of the Department of Planning and Permitting, wrote a letter in 2010 saying that Whalen didn’t have the authority to rescind the zoning requirements for the subdivision and that the land use laws must be followed.
Whalen acknowledges that pursuing the zone change from “general agriculture” to “country” would have been a better solution.
“I think it’s time to take another look at the country zoning,” he said. “I’m not sure really what the value is of going through all the variance procedures on each one. It not only puts a burden on the property owner, but it takes up so much time and resources in the city. And really, what are we protecting?”
In the meantime, the permitting department’s change in policy toward the subdivision has forced several property owners to go through a four- to five-month process to get variances approved for pools and additional structures they have already built.
“We don’t have any agricultural zoning, we only say we do.” — Chuck Prentiss, Kailua Neighborhood Board
In 2008, Mirko Manfredi sought a zoning variance for a home, seven parking spaces and a 1,100-square-foot swimming pool, which all added up to 11,351 square feet. He received a permit for the home in 2006 and had already taken out a loan and started construction when he learned that his permit was being revoked because it had been given in error. He applied for a zoning variance to legitimize his permit, as well as to allow him to build a pool for his Portuguese water dogs.
The Kailua Neighborhood Board fought the application on behalf of residents in the nearby Enchanted Lake community. Board Chairman Chuck Prentiss said that at the time, neighbors were concerned about potential erosion associated with the new structures.
The board hasn’t yet discussed the Sinclairs’ home, but Prentiss, a retired city planner, personally thinks that no variances should be granted.
He likened the Norfolk Subdivision to the nearby Olomana Heights subdivision, a new luxury housing complex in Kailua that drew criticism last year because the property is zoned for agriculture. The homes, which are being sold for at least $1 million each, are being marketed as “Oahu’s newest and only gated agricultural subdivision” with “breathtaking panoramic views.”
“We don’t have any agricultural zoning, we only say we do,” Prentiss said. “They need to do something different if they’re going to really protect that ag land and not just give it lip service.”
As for Manfredi, he eventually received a partial approval that denied the pool, but allowed him to build his home in excess of 8,000 square feet.
Kivalu Ramanlal hasn’t been as lucky.
When the accountant from Tonga bought two acres of land in the Norfolk Subdivision in 2010 for $800,000, he had big dreams for the property.
His neighbors in the luxury subdivision had mansions, swimming pools and guest houses. Ramanlal imagined building a home, a pool and adding a smaller house where his in-laws from the mainland could stay.
“I do not understand why they are very inconsistent in the way they apply the law.” — Kivalu Ramanlal, property owner
But the Department of Planning and Permitting rejected Ramanlal’s application in 2012 for a variance that would allow him to build beyond the 5,000-square-foot limitation. He lost an appeal, and said he now plans to sue the city.
Ramanlal said in a phone interview that he wouldn’t have bought the property if he had known the zoning rules would be strictly enforced.
He purchased the property in October 2010. Tanoue sent his letter rescinding Whalen’s letter two months later.
From Ramanlal’s perspective, 15 of his neighbors in the 39-home subdivision have already exceeded the 5,000-square-foot limit, and it’s unfair that he has been denied. He grows tapioca, taro and bananas on his land, and spent hundreds of thousands of dollars preparing the property for the structures he planned to build.
“I do not understand why they are very inconsistent in the way they apply the law,” he said.