Report Title:

Land Use; Farm Dwellings

Description:

Establishes a presumption that a dwelling is not a permitted farm dwelling in an agricultural district if certain nonagricultural features in a subdivision or development are determined to be present; prohibits and restricts uses and activities; and grandfathers in existing lawful uses and buildings. (HB109 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

109

TWENTY-THIRD LEGISLATURE, 2005

H.D. 1

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

RELATING TO LAND USE COMMISSION.

 

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 activities or uses as characterized by the cultivation of crops, orchards, forage, and forestry; farming activities or uses related to animal husbandry, aquaculture, and game and fish propagation; aquaculture, which means the production of aquatic plant and animal life for food and fiber within ponds and other bodies of water; wind generated energy production for public, private, and commercial use; bona fide agricultural services and uses which support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, whether or not conducted on the same premises as the agricultural activities to which they are accessory, including but not limited to farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, vehicle and equipment storage areas, and roadside stands for the sale of products grown on the premises; wind machines and wind farms; 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 such facilities shall not be used as or equipped for use as living quarters or dwellings; and agricultural parks[; and open area recreational facilities, including] . For the purposes of this chapter, golf courses and golf driving ranges; [provided that they are not located within agricultural district lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B.] covenants which restrict agricultural uses otherwise permitted by this chapter; private country club or other resort facilities; hotels; commercial uses; time share facilities; and commercial vacation facilities or homes are not compatible or accessory to agricultural activities and are prohibited."

These districts may include areas which are not used for, or which 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 but not limited to flowers, vegetables, foliage, fruits, forage, and timber;

(2) Game and fish propagation;

(3) Raising of livestock, including but not limited to 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 activity 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] and where agricultural activity provides income to the family occupying the dwelling;

(5) Public institutions and buildings [which] 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, or treatment plants, or corporation yards, or other like 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 but not limited to mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the abovementioned uses and are permitted under section 205-2(d);

(11) Agricultural parks; or

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

(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 [the said A and B lands within] the subdivision [shall be] is 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] those agricultural [activity.] activities described in this chapter.

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, which restriction and condition 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 from obtaining mortgage financing from any of the mortgage lending agencies [set forth hereinbelow,] named in this section, and [said] the requirement is the sole reason for failure to obtain mortgage financing, then such requirement of encumbrances [shall], insofar as [such] the mortgage financing is so jeopardized, shall be conditionally waived by the appropriate county enforcement officer; provided that [such] the conditional waiver shall thereafter become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

The mortgage lending agencies [mentioned hereinabove] referred to in this section 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) It shall be presumed that a subdivision or development is not agricultural, and does not consist of farm dwellings if it includes any of the following:

(1) A golf course with lots situated along fairways;

(2) A gated entry, including but not limited to automatic or manual gates and security guard stations, limiting access to residents and guests only, and not the general public;

(3) Restrictive covenants that restrict agricultural uses otherwise permitted by zoning laws; or

(4) Private country club facilities, members' accommodations, hotels, or other resort facilities;

provided that the presumption may be rebutted if the subdivision or development has developed and maintained an agricultural plan that demonstrates that agriculture is an actual and significant component of each lot."

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

"§205-5 Zoning. (b) Within agricultural districts, only 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]. 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 public, private, and quasi-public utility purposes, and for lots resulting from the subdivision of abandoned roadways and railroad easements."

SECTION 4. Section 205-8, Hawaii Revised Statutes, is amended to read as follows:

"§205-8 Nonconforming uses. The lawful use of land or buildings existing on the date of [establishment of any interim agricultural district and rural district in final form] the enactment of House Bill 109, Session Laws of Hawaii 2005, 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."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.