Hawaii-2018-HB2665-Amended

SECTION 1. The legislature finds that due to existing agricultural land use and soil classifications, siting and installation of utility scale type photovoltaic projects is a permitted use in a residential subdivision within an agricultural land-use classification district. The legislature is aware that industrial-type solar facilities are permitted on all land in an agricultural district with poor soil. However, on the island of Hawaii, there are many large residential subdivisions, also known as "non-conforming subdivisions," that were created prior to 1980, that do not meet current subdivision standards. The legislature acknowledges that these non-conforming subdivisions are not illegal, but created prior to 1980 for speculation purposes with no infrastructure requirements. Historically, these non-conforming subdivisions which were created for solely residential purposes remain designated in the agricultural district.

The legislature further finds that while the agricultural designation may be assumed to mean large tracts of agricultural farmlands located far from a designated urban or residential areas, there exist on the island of Hawaii many non-conforming subdivisions that are residential in nature, yet are designated as agriculture which allows for certain uses not normally allowed in designated residential areas. This Act recognizes that while large, industrial-scale solar installations are very desirable and essential for Hawaii's future and are ideally suited for large tracts of agricultural land with poor soil, these facilities obviously were not intended to be situated within residential subdivisions without proper permits.

The legislature also finds that most households relying on solar power for standard residential needs require photovoltaic systems with a nameplate capacity of less than five kilowatts. The limitation of fifteen kilowatts is far in excess of the needs for residents of rural communities. This Act is not intended to inconvenience households that choose to install large photovoltaics as a renewable source of energy.

This Act is not intended to be retroactive and will not impact existing or currently permitted solar energy facilities.

The purpose of this Act is to protect the property values, health, safety and welfare of people who live in previously created non-conforming residential subdivisions that unfortunately, because of their agricultural designation, would allow an incompatible use without having to go through a special use permit process to determine impacts to surrounding residents and the community at large.

This Act requires a special permit approval for solar energy facilities larger than fifteen kilowatts on non-conforming residential subdivisions located on land with soil classified with an overall productivity rating of class D or E.

SECTION 2. 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, 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)(16), for public, private, and commercial use;

(6) Solar energy facilities; provided that:

(A) 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 B, C, D, or E; [~~and~~]

(B) Solar energy facilities placed within land with soil classified as overall productivity rating class B or C shall not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser, unless a special use permit is granted pursuant to section 205-6; and

(C) Solar energy facilities placed within land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class D or E shall require a special use permit pursuant to section 205-6 if the facilities are larger than fifteen kilowatts and placed on a single lot or multiple lots in a non-conforming residential subdivision. For purposes of this subparagraph, "non-conforming residential subdivision" means a subdivision located in an agricultural district created prior to January 1, 1980 for primarily residential purposes which does not conform to current county codes and has been identified by each county;

(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, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, agricultural-energy facilities as defined in section 205-4.5(a)(17), vehicle and equipment storage areas, 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;

(12) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;

(13) Open area recreational facilities;

(14) Geothermal resources exploration and geothermal resources development, as defined under section 182-1;

(15) Agricultural-based commercial operations registered in Hawaii, including:

(A) A roadside stand that is not an enclosed structure, owned and operated by a producer for the display and sale of agricultural products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii;

(B) Retail activities in an enclosed structure owned and operated by a producer for the display and sale of agricultural products grown in Hawaii, value-added products that were produced using agricultural products grown in Hawaii, logo items related to the producer's agricultural operations, and other food items;

(C) A retail food establishment owned and operated by a producer and permitted under chapter 11-50, Hawaii administrative rules, that prepares and serves food at retail using products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii;

(D) A farmers' market, which is an outdoor market limited to producers selling agricultural products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii; and

(E) A food hub, which is a facility that may contain a commercial kitchen and provides for the storage, processing, distribution, and sale of agricultural products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii.

The owner of an agricultural-based commercial operation shall certify, upon request of an officer or agent charged with enforcement of this chapter under section 205-12, that the agricultural products displayed or sold by the operation meet the requirements of this paragraph; and

(16) Hydroelectric facilities as described in section 205‑4.5(a)(23). Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205-4.5(d). Agricultural districts 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 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

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

SECTION 5. This Act shall take effect on January 28, 2045.

HOUSE OF REPRESENTATIVES	H.B. NO.	2665
TWENTY-NINTH LEGISLATURE, 2018		H.D. 1
STATE OF HAWAII