Bill Text: HI HB127 | 2010 | Regular Session | Introduced

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Bill Title: Land Use; Agricultural District; Mining

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [HB127 Detail]

Download: Hawaii-2010-HB127-Introduced.html

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Report Title:

Land Use; Agricultural District; Mining

 

Description:

Allows mining as a permitted use in the agricultural district.

 

HOUSE OF REPRESENTATIVES	H.B. NO.	127
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to land use.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  Agricultural districts shall include:

     (1)  Activities or uses as characterized by the cultivation of crops, including crops for bioenergy, orchards, forage, and forestry;

     (2)  Farming activities or uses related to animal husbandry and game and fish propagation;

     (3)  Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water;

     (4)  Wind generated energy production for public, private, and commercial use;

     (5)  Biofuel production, as described in section 205-4.5(a)(15), for public, private, and commercial use;

     (6)  Solar energy facilities; provided that this paragraph shall apply only to land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class D or E;

     (7)  Bona fide agricultural services and uses that support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, regardless of whether conducted on the same premises as the agricultural activities to which they are accessory, including farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, agricultural-energy facilities as defined in section 205-4.5(a)(16), vehicle and equipment storage areas, roadside stands for the sale of products grown on the premises, and plantation community subdivisions as defined in section 205-4.5(a)(12);

     (8)  Wind machines and wind farms;

     (9)  Small-scale meteorological, air quality, noise, and other scientific and environmental data collection and monitoring facilities occupying less than one-half acre of land; provided that these facilities shall not be used as or equipped for use as living quarters or dwellings;

    (10)  Agricultural parks;

    (11)  Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5; [and]

    (12)  Open area recreational facilities[.]; and

    (13)  Mining for sand, rock, gravel, and other materials suitable for use and used in agriculture or construction, and activities ancillary to mining, including processing and storage.

Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205-4.5(d).  Agricultural districts may include areas that are not used for, or that are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics."

     SECTION 2.  Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

     "§205-4.5  Permissible uses within the agricultural districts.  (a)  Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:

     (1)  Cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;

     (2)  Game and fish propagation;

     (3)  Raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

     (4)  Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry.  "Farm dwelling", as used in this paragraph, means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

     (5)  Public institutions and buildings that are necessary for agricultural practices;

     (6)  Public and private open area types of recreational uses, including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;

     (7)  Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, treatment plants, corporation yards, or other similar structures;

     (8)  Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

     (9)  Roadside stands for the sale of agricultural products grown on the premises;

    (10)  Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses and are permitted under section 205-2(d);

    (11)  Agricultural parks;

    (12)  Plantation community subdivisions, which as used in this chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:

         (A)  The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;

         (B)  The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or

         (C)  The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;

    (13)  Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;

    (14)  Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that the wind energy facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land;

    (15)  Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuels processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.

              For the purposes of this paragraph:

              "Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuels processing facilities.

              "Biofuel processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy;

    (16)  Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity.  To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise.  The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.

              As used in this paragraph:

              "Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.

              "Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.

              "Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State. 

              "Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities; or

    (17)  Construction and operation of wireless communication antennas; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection.

     (b)  Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in sections 205-6 and 205-8, and construction of single-family dwellings on lots existing before June 4, 1976.  Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless those A and B lands within the subdivision are made subject to the restriction on uses as prescribed in this section and to the condition that the uses shall be primarily in pursuit of an agricultural activity.

     Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition, as prescribed in this section that these restrictions and conditions shall be encumbrances running with the land until such time that the land is reclassified to a land use district other than agricultural district.

     If the foregoing requirement of encumbrances running with the land jeopardizes the owner or lessee in obtaining mortgage financing from any of the mortgage lending agencies set forth in the following paragraph, and the requirement is the sole reason for failure to obtain mortgage financing, then the requirement of encumbrances [shall], insofar as [such] the mortgage financing is jeopardized, shall be conditionally waived by the appropriate county enforcement officer; provided that the conditional waiver shall become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

     The mortgage lending agencies referred to in the preceding paragraph are the Federal Housing Administration, Federal National Mortgage Association, Veterans Administration, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns.

     (c)  Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b).

     (d)  Notwithstanding any other provision of this chapter to the contrary, golf courses and golf driving ranges approved by a county before July 1, 2005, for development within the agricultural district shall be permitted uses within the agricultural district.

     (e)  Notwithstanding any other provision of this chapter to the contrary, plantation community subdivisions as defined in this section shall be permitted uses within the agricultural district, and section 205-8 shall not apply.

     [[](f)[]]  Notwithstanding any other law to the contrary, agricultural lands may be subdivided and leased for the agricultural uses or activities permitted in subsection (a); provided that:

     (1)  The principal use of the leased land is agriculture;

     (2)  No permanent or temporary dwellings or farm dwellings, including trailers and campers, are constructed on the leased area.  This restriction shall not prohibit the construction of storage sheds, equipment sheds, or other structures appropriate to the agricultural activity carried on within the lot; and

     (3)  The lease term for a subdivided lot shall be for at least as long as the greater of:

         (A)  The minimum real property tax agricultural dedication period of the county in which the subdivided lot is located; or

         (B)  Five years.

Lots created and leased pursuant to this section shall be legal lots of record for mortgage lending purposes and shall be exempt from county subdivision standards.

     (g)  Notwithstanding any other provision of this chapter to the contrary, the mining of sand, rock, gravel, or other materials suitable for use and used in agriculture or construction, and activities ancillary to mining, including processing and storage, shall be permitted uses in the agricultural district."

     SECTION 3.  Section 205-5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

     "(a)  Except as herein provided, the powers granted to counties under section 46-4 shall govern the zoning within the districts, [other than in] except for conservation districts[.] and mining pursuant to section 205-2(d)(13).  Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.  Mining pursuant to section 205-4.5(g) shall be within the exclusive jurisdiction of the commission.

     (b)  Within agricultural districts, uses compatible to the activities described in section 205‑2 as determined by the commission shall be permitted; provided that accessory agricultural uses and services described in sections 205‑2 and 205‑4.5 may be further defined by each county by zoning ordinance[.], except for mining pursuant to section 205-4.5.  Each county shall adopt ordinances setting forth procedures and requirements, including provisions for enforcement, penalties, and administrative oversight, for the review and permitting of agricultural tourism uses and activities as an accessory use on a working farm, or farming operation as defined in section 165‑2; provided that agricultural tourism activities shall not be permissible in the absence of a bona fide farming operation.  Ordinances shall include but not be limited to:

     (1)  Requirements for access to a farm, including road width, road surface, and parking;

     (2)  Requirements and restrictions for accessory facilities connected with the farming operation, including gift shops and restaurants; provided that overnight accommodations shall not be permitted;

     (3)  Activities that may be offered by the farming operation for visitors;

     (4)  Days and hours of operation; and

     (5)  Automatic termination of the accessory use upon the cessation of the farming operation.

Each county may require an environmental assessment under chapter 343 as a condition to any agricultural tourism use and activity.  Other uses may be allowed by special permits issued pursuant to this chapter.  The minimum lot size in agricultural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that the minimum lot size for any agricultural use shall not be less than one acre, except as provided herein.  If the county finds that unreasonable economic hardship to the owner or lessee of land cannot otherwise be prevented or where land utilization is improved, the county may allow lot sizes of less than the minimum lot size as specified by law for lots created by a consolidation of existing lots within an agricultural district and the resubdivision thereof; provided that the consolidation and resubdivision do not result in an increase in the number of lots over the number existing prior to consolidation; and provided further that in no event shall a lot [which] that is equal to or exceeds the minimum lot size of one acre be less than that minimum after the consolidation and resubdivision action.  The county may also allow lot sizes of less than the minimum lot size as specified by law for lots created or used for plantation community subdivisions, as defined in section 205-4.5(a)(12), for public, private, and quasi-public utility purposes[,] and for lots resulting from the subdivision of abandoned roadways and railroad easements."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________