Bill Text: HI HB774 | 2013 | Regular Session | Introduced

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Bill Title: Important Agricultural Lands

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2013-01-24 - Referred to AGR, WAL, referral sheet 5 [HB774 Detail]

Download: Hawaii-2013-HB774-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	774
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO IMPORTANT AGRICULTURAL LANDS.

 

 

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

 

     SECTION 1.  The purpose of this Act is to identify permissible and accessory uses and activities on important agricultural lands identified and designated pursuant to part III of chapter 205, Hawaii Revised Statutes.

     To date, the land use commission has designated 89,859 acres of agricultural lands as important agricultural lands. While the purpose of the important agricultural lands law is to protect designated important agricultural lands by promoting agricultural uses and activities through incentives, the law does not specify the permissible uses and activities on important agricultural lands.  As such, there are a variety of uses and activities provided for in part I of chapter 205 that are permissible on important agricultural lands and may have an effect contrary to the promotion of viable agricultural use over the long term.  These uses and activities include: open air recreational facilities, agricultural-based commercial operations, solar energy facilities not related to agricultural activities, day camps, and riding stables.  Further, agricultural subdivision without agricultural production, a minimum lot size of one acre, and special use permits for a wide variety of "reasonable and unusual" uses and activities are also possible on important agricultural lands.  These uses and activities may increase the value of important agricultural lands beyond its value for agricultural production and reduce their affordability to farmers seeking to undertake agricultural production.  This outcome would not be in consonance with section 205-43, Hawaii Revised Statutes, that requires state and county agricultural policies, tax policies, land use plans, ordinances, and rules to promote the long-term viability of agricultural use of important agricultural lands.

     SECTION 2.  Chapter 205, Hawaii Revised Statutes, is amended by adding to part III a new section to be appropriately designated and to read as follows:

     "§205-     Permissible uses within designated important agricultural lands.  (a)  Notwithstanding any law to the contrary, lands designated as important agricultural lands pursuant to sections 205-45 and 205-49 shall be restricted to the following permitted uses:

     (1)  Cultivation of crops, including crops for bioenergy, flowers, vegetation, 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 use;

     (4)  Farm dwellings, farm labor, or farm employee housing pursuant to section 205-45.5; provided that "farm dwelling", as used in this paragraph, means a single-family dwelling located on and used in connection with a farm for occupancy by the operator, employees, or laborers of a farming operation as defined in section 165-2;

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

     (6)  Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, vehicle and equipment storage areas, irrigation water storage tanks and dams, and appurtenant small buildings such as booster pumping stations that are directly accessory to the uses in paragraph (1);

     (7)  Agricultural parks;

     (8)  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 designated important agricultural lands;

     (9)  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 paragraph (1).

              "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; and

    (10)  Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations.  For the purposes of this section, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2.

     (b)  Uses not expressly permitted in subsection (a) shall be prohibited, except non-conforming uses pursuant to section 205-8, and construction of single-family dwellings on lots of record existing before June 4, 1976.  Any other law to the contrary notwithstanding, no subdivision or establishment of a condominium property regime on designated important agricultural lands shall be approved by the State or counties, or instruments of conveyance recorded with the bureau of conveyances, unless the designated important agricultural lands are made subject to the restriction on uses and activities as prescribed in this section and to the condition that the uses and activities shall solely be in pursuit of a commercial agricultural business as defined in subsection (a)."

     SECTION 3.  Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  There shall be four major land use districts in which all lands in the State shall be placed:  urban, rural, agricultural, and conservation.  The land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts.  The commission shall set standards for determining the boundaries of each district, provided that:

     (1)  In the establishment of boundaries of urban districts those lands that are now in urban use and a sufficient reserve area for foreseeable urban growth shall be included;

     (2)  In the establishment of boundaries for rural districts, areas of land composed primarily of small farms mixed with very low density residential lots, which may be shown by a minimum density of not more than one house per one-half acre and a minimum lot size of not less than one-half acre shall be included, except as herein provided;

     (3)  In the establishment of the boundaries of agricultural districts the greatest possible protection shall be given to those lands with a high capacity for intensive cultivation[;] or lands designated as important agricultural lands pursuant to this chapter; and

     (4)  In the establishment of the boundaries of conservation districts, the "forest and water reserve zones" provided in Act 234, section 2, Session Laws of Hawaii 1957, are renamed "conservation districts" and, effective as of July 11, 1961, the boundaries of the forest and water reserve zones theretofore established pursuant to Act 234, section 2, Session Laws of Hawaii 1957, shall constitute the boundaries of the conservation districts; provided that thereafter the power to determine the boundaries of the conservation districts shall be in the commission.

In establishing the boundaries of the districts in each county, the commission shall give consideration to the master plan or general plan of the county."

     SECTION 4.  Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

     "§205-4.5  Permissible uses on land within the agricultural districts[.]not designated as important agricultural lands.  (a)  Within the agricultural district, excluding designated important agricultural lands that shall be governed by section 205-   , [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)  Agricultural-based commercial operations as described in section 205-2(d)(15);

    (10)  Buildings and uses, including mills, storage, and processing facilities, maintenance 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, 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)  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;

    (15)  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;

    (16)  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 biofuel 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 biofuel 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;

    (17)  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;

    (18)  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;

    (19)  Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations.  For the purposes of this section, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2;

    (20)  Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A; or

[[](21)[]] Geothermal resources exploration and geothermal resources development, as defined under section 182-1."

     (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 mortgage financing is jeopardized, 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, excluding designated important agricultural lands that shall be governed by section 205-   , 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 and designated important 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."

     SECTION 5.  Section 205-4.6, Hawaii Revised Statutes, is amended to read as follows:

     "§205-4.6  Private restrictions on agricultural uses and activities; not allowed.  Agricultural uses and activities as defined in sections 205-2(d) [and], 205-4.5(a), and 205-    on lands classified as agricultural or designated as important agricultural lands shall not be restricted by any private agreement contained in any deed, agreement of sale, or other conveyance of land recorded in the bureau of conveyances after July 8, 2003, that subject such agricultural lands to any servitude, including but not limited to covenants, easements, or equitable and reciprocal negative servitudes.  Any such private restriction limiting or prohibiting agricultural use or activity shall be voidable, subject to special restrictions enacted by the county ordinance pursuant to section 46-4; except that restrictions taken to protect environmental or cultural resources, agricultural leases, utility easements, and access easements shall not be subject to this section.

     For purposes of this section, "agricultural leases" means leases where the leased land is primarily utilized for purposes set forth in section 205-4.5(a)[.] or 205-_."

     SECTION 6.  Section 205-5, Hawaii Revised Statutes, is amended to read as follows:

     "§205-5  Zoning.  (a)  Except as herein provided, the powers granted to counties under section 46-4 shall govern the zoning within the districts, other than in conservation districts.  Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.

     (b)  Within agricultural districts, excluding designated important agricultural lands, 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.  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.  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;

     (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 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.

     (c)  Unless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts:

     (1)  Low density residential uses;

     (2)  Agricultural uses;

     (3)  Golf courses, golf driving ranges, and golf-related facilities;

     (4)  Public, quasi-public, and public utility facilities; and

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

     In addition, the minimum lot size for any low density residential use shall be one-half acre and there shall be but one dwelling house per one-half acre, except as provided for in section 205-2.

     (d)  Uses and activities on designated important agricultural lands shall be restricted to those permitted in section 205-   .  The minimum lot size on designated important agricultural lands shall not be less than ten acres and no more than one farm dwelling shall be permitted per lot of record."

     SECTION 7.  Section 205-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified[.]; provided that special permits shall be prohibited on lands designated as important agricultural lands.  Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.  Each county may establish the appropriate fee for processing the special permit petition.  Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture for their review and comment."

     SECTION 8.  Section 205-8, Hawaii Revised Statutes, is amended to read as follows:

     "§205-8  Nonconforming uses.  (a)  The lawful use of land or buildings existing on the date of establishment of any interim agricultural district and rural district in final form may be continued although the use, including lot size, does not conform to this chapter; provided that no nonconforming building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use.  In addition, if any nonconforming use of land or building is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited.

     (b)  The lawful use of land or buildings existing on the effective date of this Act on land designated as important agricultural lands, which do not conform to the uses in section 205-    may be continued; provided that no nonconforming use or building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use.  Any use of land or buildings without a lawful permit shall be terminated within two years of designation.  Lots of record on the effective date of this Act that do not conform to the minimum lot size for lands designated as important agricultural lands may be continued."

     SECTION 9.  Section 205-12, Hawaii Revised Statutes, is amended to read as follows:

     "§205-12  Enforcement.  The appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted by the land use commission and the [restriction] restrictions on use and the [condition] conditions relating to agricultural districts under section 205-4.5 and designated important agricultural lands under section 205-    and shall report to the commission all violations."

     SECTION 10.  Section 205-13, Hawaii Revised Statutes, is amended to read as follows:

     "§205-13  Penalty for violation.  Any person who violates any provision under section 205-4.5[,] or 205-   , or any [regulation established] rule adopted relating thereto, shall be fined not more than $5,000, and any person who violates any other provision of this chapter, or any [regulation established] rule adopted relating thereto, shall be fined not more than $1,000.

     If any person cited for a violation under this chapter fails to remove such violation within six months of such citation and the violation continues to exist, such person shall be subject to a citation for a new and separate violation.  There shall be a fine of not more than $5,000 for any additional violation.

     Prior to the issuance of any citation for a violation, the appropriate enforcement officer or agency shall notify the violator and the mortgagee, if any, of such violation, and the violator or the mortgagee, if any, shall have not more than sixty days to cure the violation before citation for a violation is issued."

     SECTION 11.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 12.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________
	BY REQUEST

 

 

Report Title:

Important Agricultural Lands

 

Description:

Identifies permissible and accessory uses and activities on important agricultural lands.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.