REPORT TITLE:
Farm


DESCRIPTION:
Prohibits farming operations from being declared a nuisance for
any reason if the farming operations are conducted in a manner
consistent with generally accepted agricultural and management
practices.  Defines "generally accepted agricultural and
management practices".  (SB3194 SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        3194
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO THE RIGHT TO FARM.



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

 1      SECTION 1.  Section 165-2, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "§165-2 Definitions.  As used in this chapter, unless the
 
 4 context otherwise requires:
 
 5      ["Established date of operation" means the date on which the
 
 6 original farming operation first commenced operation.  If the
 
 7 physical facilities of the farming operation are subsequently
 
 8 expanded or new technology adopted, the established date of
 
 9 operation for each change shall be the same as the established
 
10 date of operation for the original operation, provided that this
 
11 does not violate existing state law or county ordinances.]
 
12      "Farming operation" means a commercial agricultural,
 
13 silvicultural, or aquacultural facility or pursuit conducted, in
 
14 whole or in part, including the care and production of livestock
 
15 and livestock products, poultry and poultry products, [and]
 
16 apiary[, horticultural, or floricultural products;] products, and
 
17 plant and animal production for nonfood uses; the planting,
 
18 cultivating, [and] harvesting, and processing of crops; and the
 
19 farming or ranching of any plant or animal species in a
 

 
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 1 controlled salt, brackish, or freshwater environment.  "Farming
 
 2 operation" also includes[, but shall not be limited to,
 
 3 marketed]:
 
 4      (1)  Marketed produce at roadside stands or farm markets;
 
 5           [noises,]
 
 6      (2)  Noises, odors, dust, and fumes emanating from a
 
 7           commercial agricultural or an aquacultural facility or
 
 8           pursuit; [operation]
 
 9      (3)  Operation of machinery and irrigation pumps; [ground]
 
10      (4)  Ground and aerial seeding and spraying; [the]
 
11      (5)  The application of chemical fertilizers, conditioners,
 
12           insecticides, pesticides, and herbicides; and [the]
 
13      (6)  The employment and use of labor.
 
14 A farming operation that conducts processing operations or salt,
 
15 brackish, or freshwater aquaculture operations on land that is
 
16 zoned for industrial, commercial, or other nonagricultural use
 
17 shall not, by reason of that zoning, fall beyond the scope of
 
18 this definition; provided that those processing operations form
 
19 an integral part of operations that otherwise meet the
 
20 requirements of this definition.
 
21      "Generally accepted agricultural and management practices"
 
22 means those practices as defined by the board of agriculture.
 
23 The board shall give due consideration to available information
 

 
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 1 from the department of agriculture and written recommendations
 
 2 from the University of Hawaii college of tropical agriculture and
 
 3 human resources, in cooperation with the United States Department
 
 4 of Agriculture, Hawaii Agriculture Research Center, and other
 
 5 professional organizations.  The board shall also give due
 
 6 consideration to practices accepted by other states or other
 
 7 federal governmental agencies.
 
 8      "Nuisance" means any interference with reasonable use and
 
 9 enjoyment of land, including [but not limited to] smoke, odors,
 
10 dust, noise, or vibration; provided that nothing in this chapter
 
11 shall in any way restrict or impede the authority of the State to
 
12 protect the public health, safety, and welfare.  "Nuisance" [as
 
13 used in this chapter] includes all claims that meet the
 
14 requirements of this definition regardless of whether a
 
15 complainant designates such claims as brought in nuisance,
 
16 negligence, trespass, or any other area of law or equity;
 
17 provided that nuisance [as used in this chapter] does not include
 
18 an alleged nuisance that involves water pollution or flooding."
 
19      SECTION 2.  Section 165-4, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "§165-4 Right to farm.(a)  No court, official, public
 
22 servant, or public employee shall declare any farming operation a
 
23 nuisance for any reason if [all of the following have been
 

 
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 1 proven:
 
 2      (1)  That during the twelve-month period preceding the
 
 3           filing of the nuisance complaint with a court or other
 
 4           adjudicative public body, the farming operation
 
 5           complied with statutes, ordinances, regulations, or
 
 6           rules relevant to the nuisance complaint; and
 
 7      (2)  That the farming operation has used reasonable care in
 
 8           conducting its operation.] the farming operation has
 
 9           been conducted in a manner consistent with generally
 
10           accepted agricultural and management practices as
 
11           defined in this chapter.  Any such farming operation
 
12           shall be presumed to be reasonable and shall not be
 
13           found to constitute a nuisance.
 
14      (b)  Notwithstanding a farming operation's satisfaction of
 
15 subsection [(a)(1) and (2),] (a), a farming operation may be
 
16 declared a nuisance if:
 
17      (1)  The farming operation or any aspect thereof has been
 
18           previously determined to be injurious to public health
 
19           or safety by the department of health, the department
 
20           of agriculture, or a court of competent jurisdiction;
 
21           and
 
22      (2)  The complainant establishes by a preponderance of the
 
23           evidence that the alleged nuisance resulted from the
 

 
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 1           injurious operation or aspect thereof.  Any
 
 2           determination of injuriousness shall be in writing and
 
 3           shall set forth the bases for the determination."
 
 4      SECTION 3.  Section 165-5, Hawaii Revised Statutes, is
 
 5 amended to read as follows:
 
 6      "[[]§165-5[]]  Frivolous lawsuits.  [Any nuisance action,
 
 7 found to be frivolous by the court, in which a farming operation
 
 8 is alleged to be a nuisance as defined in section 165-2, shall be
 
 9 governed by section 607-14.5.] If the court determines that any
 
10 action alleging that an agricultural operation is a nuisance is
 
11 frivolous, the court may award costs of court, reasonable
 
12 attorney fees, and any other related costs, to the defendant."
 
13      SECTION 4.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 5.  This Act shall take effect upon its approval.
 
16