Fern Forest, like most of the substandard subdivisions on Hawaii Island, is zoned agricultural, though its original developers probably never intended anyone to farm or even live there.
The remote tract in Upper Puna consists of 3-acre lots of ohia forest atop lava basalt, with poor soil or none.
“There are about 4,000 ag lots in Fern Forest. Only two or three of them are doing agriculture, and they’re barely surviving,” says Dmitriy Ksendzovsky.
Ksendzovsky, a computer programmer, thinks he can change that. He has applied for a permit to consolidate three lots in Fern Forest into one experimental farming facility, where labs and greenhouses will try out “vertical farms” where plants are grown indoors on stacked shelves with software controlling lighting, water and nutrients to optimize growth. He talks enthusiastically about such a farm in Japan, where a robot harvester can gather 30,000 heads of lettuce in a day.
He thinks Hawaii would be perfect for such facilities: “We have the labor. We have the climate.”
He’s already constructed 10 buildings to house labs and offices on his lots, including one lot he had to buy when a building accidentally encroached upon it. But none of those structures have county building permits. And he hasn’t talked to his neighbors.
None of them seems to know what the complex is for — one called it “the great whatever.” Some are alarmed about its size in their quiet neighborhood. They’ve filed at least eight complaints with police about loud noises or music at the site — music so loud that neighbor Rhonda Lickfelt says, “My windows rattle. I feel it in my chest.”
Residents have also complained about loads of lumber, including several in late March, blocking the street while they were unloaded.
“No flagmen, no police escort, no traffic direction. We were just stuck,” said Donna DeLorm, who serves as a block captain in Fern Forest’s Neighborhood Watch program.
The Building Division of the Hawaii County Department of Public Works at first told Civil Beat that nothing could be done about Ksendzovsky’s unpermitted buildings because no complaints had been filed with the division.
But DeLorm said that she and her husband filed a complaint in 2016. A building inspector, she said, told her that “the owner was being fined and was being given so many days to pay the fine.”
Ksendovsky, who lives in Hilo, says he hadn’t heard about the noise and road blockage problems. He claims he didn’t know permits were required when he put up the buildings, and that all work had been halted until the permitting problem was resolved except for putting a roof on one unfinished building.
But a number of residents said fresh truckloads of lumber and fixtures arrived at the site in late March. DeLorm says that when she drove by the site March 20, “There was construction going on. The foreman was up on the top floor giving directions.”
When I drove by the site March 30, one building still didn’t have a roof. Either it had gone roofless since 2016, or it was fresh construction.
I returned to the Building Division and informed a clerk about DeLorm’s complaint. That brought Temporary Supervising Building Inspector Larry Boyko from his office. Boyko confirmed that a complaint had been filed about the buildings in 2016, and was under investigation, but said the last report in the file was over a year old.
The Ksendzovsky case isn’t alone. According to Public Works Director David Yamamoto, the county received about 800 complaints about illegal building last year. Yamamoto admits that some complaints could take years to resolve.
“It’s frustrating actually for us, too,” he says.
Why does it take so long to act on a complaint?
One problem is under-staffing. Yamamoto says the county has difficulty recruiting qualified inspectors at civil service wages.
East Hawaii currently has three vacancies for building inspectors. Boyko says his Hilo division office is operating with one complaint officer, three building inspectors and one assistant inspector.
Yamamoto says the Kona side is supposed to have six building inspectors. It currently has four, but one is out on worker’s compensation: “A contractor had covered a hole with a thin sheet of plywood and he fell through.”
The Building Division is also short of other key personnel. For over a year, for example, it has limped by without a structural engineer to review building plans. Its Kona office currently has only one plumbing inspector for all of West Hawaii.
Boyko says his inspectors are doing 13 to 15 regular inspections a day.
“There’s going to be a lag somewhere, and unfortunately, it has to be with complaints,” he says.
Once a complaint is filed, the remediation process is laborious. Building Division personnel must search records to see what permits, if any, have been applied for or granted.
Then, if an inspector can’t confirm the problem from the road, the county must send the owner a certified letter requesting permission to enter the property. If the owner doesn’t pick up that letter, another is sent, and a third, if necessary.
If that doesn’t work, the division must find out the street address of the owner’s residence and hire a process server to hand-deliver the request. If that fails or the owner refuses to grant permission, then the Corporation Counsel must be pulled in for possible legal action. The same process must be followed to deliver a notice of violation.
Once cited, the owner gets time to submit a remediation plan and to fix the problem or file for a variance. If the owner fails to comply, the matter gets referred to Corporation Counsel for enforcement. At that stage, the owner may face a fine of up to $1,000, plus up to $1,000 more per day until the problem is fixed. But the ruling can be appealed, taking even more time.
“Our purpose is not to fine them. Our purpose is to get them into compliance,” says Boyko. “We do get 90% of them cured at some point.”
Yamamoto is seeking ways to speed up the process. The county currently uses paper copies of building plans, for instance, and must pass them from agency to agency for review; it’s getting new software to digitize plans, allowing different agencies to look at them at the same time.
Meanwhile, back in Fern Forest, Ksendzovsky has promised to put up a website where residents can find out more about his project and make comments.
“I want to address the complaints that are happening,” he says. “I want to make sure that there’s a good outcome.”
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