Establishes qualification criteria, designation, and permitted uses of important agricultural lands; provides for dedication of important agricultural lands for transferable development credits; amends water code to ensure protection of water for irrigation of important agricultural lands; collapses 4 major land use districts into 3 districts-agricultural, conservation, and other lands; places urban and rural districts under other lands land use district; allows petitions for designation of agricultural lands with land study bureau classification other than A or B as important agricultural lands; permits issuance of special permit by land use commission for agricultural tourism or educational ecotourism.

A BILL FOR AN ACT

SECTION 1. Chapter 46, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§46-A Permissible uses and infrastructure standards within the other lands district. The counties shall establish by ordinance the land uses permitted and the standards required for infrastructure systems within the other lands districts established pursuant to section 205-2.

§46-B Transferable development credits; receiving districts. (a) The counties shall establish zones within the other lands districts established pursuant to section 205-2 as receiving districts for utilizing transferable development credits from the dedicated important agricultural lands.

(b) Within the framework of the county's long-range, comprehensive general plan, the county shall establish development guidelines to allow the use of transferable development credits from dedicated important agricultural lands to:

(c) The guidelines established by a county under this section for a receiving district shall not result in more than a fifteen per cent increase in height, bulk, number of stories, size of buildings, or density of a project.

(d) The guidelines established by a county shall include a schedule of transferable development credits that lists the number of credits required to be acquired for the increases allowed under this section. The county shall implement a schedule of transferable development credits that provides an incentive for landowners to dedicate lands as important agricultural lands."

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

"PART . IMPORTANT AGRICULTURAL LANDS

§205-A Important agricultural lands; qualification criteria; designation. (a) Agricultural lands shall be designated as important agricultural lands, if the lands:

(b) Agricultural lands not qualifying under subsection (a) for designation as important agricultural lands and are unique agricultural lands shall be designated as important agricultural lands if the land:

(c) The designation of important agricultural lands shall not be considered an amendment to district boundaries under sections 205-3.1 and 205-4.

(d) As used in this section, "unique agricultural lands" means lands possessing special characteristics or conditions, or enhanced by the input of resources for the cultivation of crops and the production of agricultural products and commodities.

§205-B Petitions for designation as important agricultural lands. (a) The landowner of any agricultural land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E or U, may petition the commission for designation of the land as important agricultural land if the land:

(b) The landowner desiring to designate land pursuant to subsection (a), shall petition the commission for designation as important agricultural land.

Upon receipt of the petition, the commission shall request the department of agriculture to make a finding of fact as to whether the land in the petition area is suited for designation as important agricultural land.

If the findings of the department of agriculture submitted to the commission are favorable to the landowner, the commission shall approve the petition and designate the landowner's land as important agricultural land.

§205-C Important agricultural lands; reclassification. (a) The commission may reclassify important agricultural lands when a landowner petitions the commission and the commission finds that the reclassification:

(b) The decision of the commission to reclassify important agricultural lands pursuant to this section shall be by a two-thirds vote of the members to which the commission is entitled.

§205-D Permissible uses on important agricultural lands. (a) Important agricultural lands designated pursuant to sections 205-A and 205-B shall be restricted to the following permitted uses:

(b) Uses not expressly permitted in subsection (a) shall be prohibited. A single dwelling on not more than one acre shall be permitted for the sole use of the landowner or child of the landowner. No other uses shall be allowed by special permit on important agricultural lands.

(c) Important agricultural lands designated pursuant to sections 205-A and 205-B may be subdivided into leasehold lots to be used solely for the agricultural uses expressly permitted in subsection (a); provided that, except as provided in subsection (b), no farm dwelling or structure suitable for residential occupancy shall be allowed on the subdivided lots; and provided that the leasehold lots shall return to their original lot of record upon the expiration or termination of the lease. Leasehold subdivision of important agricultural lands for agricultural purposes shall be exempted from all county subdivision ordinances.

§205-E Dedication of important agricultural lands. (a) A landowner with land designated as important agricultural land pursuant to section 205-A or 205-B, may petition the commission to dedicate the land as important agricultural land for a period of       years. The petition shall include:

(b) The commission shall review the petition and the accompanying material and evaluate the qualification of the land for dedication as important agricultural lands. If the commission, after its review and evaluation, finds that the lands qualify for dedication as important agricultural lands under this section, the commission by a two-thirds vote of the members of the commission shall act to approve the petition to dedicate the lands as important agricultural lands.

(c) The dedication of important agricultural lands shall not take effect until the landowner has recorded the instruments for dedication as important agricultural lands and the restriction on uses.

§205-F Transferable development credits; allocation. (a) The commission shall issue transferable development credits to the owners of land dedicated as important agricultural lands.

(b) The commission shall issue one credit for every twenty acres of land dedicated as important agricultural lands and a pro rata credit for any portion of land under twenty acres.

§205-G Transferable development credits repository; registry. (a) The commission shall select one or more federally insured national or state bank to be a repository for transferable development credits from dedicated important agricultural lands.

(b) Any bank selected as a repository for transferable development credits shall maintain a registry of transferable development credits deposited in the bank, which shall include:

(c) A repository shall establish a clearinghouse and information source on transferable development credits to assist in matching buyers with sellers of credits.

(d) A repository shall work with the owner of the transferable development credits to determine the minimum value of each credit and, when authorized by the owner, may negotiate the sale of transferable development credits.

(e) A repository may establish a fee or commission to be paid upon the sale of the transferable development credits.

§205-H Important agricultural lands incentives. (a) The commission shall appoint an important agricultural lands incentives committee every three years that shall include owners of lands as important agricultural lands, members of the commission, members of county land use decision-making authorities designated by the authorities, and the chairperson of the board of agriculture.

(b) The committee shall propose to the commission and the county land use decision-making authorities a state and county incentive program to promote agricultural viability of agricultural enterprises on important agricultural lands and to promote the long-term availability of important agricultural lands for agricultural use.

(c) In designing an important agricultural lands incentive program, the committee shall consider measures that enhance agricultural viability on important agricultural lands, including but not limited to:

SECTION 3. Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) [This] Except as provided in section 205-5, this section and any ordinance, rule, or regulation adopted in accordance with this section shall apply to lands [not contained within the forest reserve boundaries as established on January 31, 1957, or as subsequently amended.] in the other lands district and agricultural district as described in chapter 205, but not to lands in the conservation district as described in chapter 205.

Zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner. Zoning in the counties of Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of this section. In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land to allow and encourage the most beneficial use of the land consonant with good zoning practices. The zoning power granted herein shall be exercised by ordinance which may relate to:

The council of any county shall prescribe rules, regulations, and administrative procedures and provide personnel it finds necessary to enforce this section and any ordinance enacted in accordance with this section. The ordinances may be enforced by appropriate fines and penalties, civil or criminal, or by court order at the suit of the county or the owner or owners of real estate directly affected by the ordinances.

Any civil fine or penalty provided by ordinance under this section may be imposed by the district court, or by the zoning agency after an opportunity for a hearing pursuant to chapter 91. The proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.

Nothing in this section shall invalidate any zoning ordinance or regulation adopted by any county or other agency of government pursuant to the statutes in effect prior to July 1, 1957.

The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive general plan to insure the greatest benefit for the State as a whole. This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations, except insofar as [forest and water reserve zones] lands in the conservation district as described in chapter 205 are concerned and as provided in subsections (c) and (d).

Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premises is used at the time this section or the ordinance takes effect; provided that a zoning ordinance may provide for elimination of nonconforming uses as the uses are discontinued, or for the amortization or phasing out of nonconforming uses or signs over a reasonable period of time in commercial, industrial, resort, and apartment zoned areas only. In no event shall such amortization or phasing out of nonconforming uses apply to any existing building or premises used for residential (single-family or duplex) or agricultural uses. Nothing in this section shall affect or impair the powers and duties of the director of transportation as set forth in chapter 262."

SECTION 4. Section 46-15, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The mayor of each county, after holding a public hearing on the matter and receiving the approval of the respective council, shall be empowered to designate areas of land for experimental and demonstration housing projects, the purposes of which are to research and develop ideas that would reduce the cost of housing in the State. Except as hereinafter provided, the experimental and demonstration housing projects shall be exempt from all statutes, ordinances, charter provisions, and rules or regulations of any governmental agency or public utility relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction and sale of homes thereon; provided that the experimental and demonstration housing projects shall not affect the safety standards or tariffs approved by the public [utility commissions] utilities commission for [such] a public utility.

The mayor of each county with the approval of the respective council may designate a county agency or official who shall have the power to review all plans and specifications for the subdivisions, development and improvement of the land involved, and the construction and sale of homes thereon. The county agency or official shall have the power to approve or disapprove or to make modifications to all or any portion of the plans and specifications.

The county agency or official shall submit preliminary plans and specifications to the legislative body of the respective county for its approval or disapproval. The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the approved preliminary plans and specifications. The final plans and specifications shall constitute the standards for the particular project.

No action shall be prosecuted or maintained against any county, its officials or employees, on account of actions taken in reviewing, approving, or disapproving such plans and specifications.

Any experimental or demonstration housing project for the purposes [hereinabove] mentioned in this section may be sponsored by any state or county agency or any person as defined in section 1-19.

The county agency or official shall apply to the state land use commission for an appropriate land use district classification change, except where a proposed project is located on land within an [urban] other lands district established by the state land use commission. Notwithstanding any law, rule, or regulation to the contrary, the state land use commission may approve the application at any time after a public hearing held in the county where the land is located upon notice of the time and place of the hearing being published in the same manner as the notice required for a public hearing by the planning commission of the appropriate county."

SECTION 5. Section 171-49.7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§171-49.7[]] Public lands suitable and available for residential development; inventory. The department of land and natural resources shall complete and maintain a current inventory of all public lands placed in the [urban] other lands district by the land use commission under chapter 205 [which] that are or may be suitable and available for residential development. This inventory shall be updated at the end of each quarter and shall contain the following information: the island and area in which the land is situated, the acreage, and such other information which the department determines may be necessary to identify and inventory the land."

SECTION 6. Section 174C-2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The state water code shall be liberally interpreted to obtain maximum beneficial use of the waters of the State for purposes such as domestic uses, aquaculture uses, irrigation and other agricultural uses, power development, and commercial and industrial uses. However, adequate provision shall be made for the protection of traditional and customary Hawaiian rights, the protection and procreation of fish and wildlife, the maintenance of proper ecological balance and scenic beauty, and the preservation and enhancement of waters of the State for municipal uses, public recreation, public water supply, irrigation for agricultural activity on lands designated as important agricultural lands, other agriculture, and navigation. Such objectives are declared to be in the public interest."

SECTION 7. Section 174C-3, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Important agricultural lands" means lands designated as important agricultural lands pursuant to section 205-A or 205-B."

SECTION 8. Section 174C-31, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) All water use and development plans shall be prepared in a manner consistent with the following conditions:

SECTION 9. Section 174C-31, Hawaii Revised Statutes, is amended by amending subsections (e), (f), and (g) to read as follows:

"(e) The department of agriculture shall prepare a state agricultural water use and development plan for agricultural uses in the State in accordance with chapter 167 and this chapter, and subsequently modify and update the plan as necessary. The state agricultural water use and development plan shall include but not be limited to a master irrigation inventory plan [which] that shall:

The commission shall coordinate the incorporation of the state agricultural water use and development plan into the state water projects plan.

(f) Each county water use and development plan shall include but not be limited to:

(g) The Hawaii water plan shall be directed toward the achievement of the following objectives:

SECTION 10. Section 174C-31, Hawaii Revised Statutes, is amended by amending subsection (k) to read as follows:

"(k) The commission shall give careful consideration to the requirements of public recreation, the protection of the environment, [and] the procreation of fish and wildlife[.], and the requirements of water for agricultural activity on important agricultural lands. The commission may prohibit or restrict other future uses on certain designated streams which may be inconsistent with these objectives."

SECTION 11. Section 174C-71, Hawaii Revised Statutes, is amended to read as follows:

"§174C-71 Protection of instream uses. The commission shall establish and administer a statewide instream use protection program. In carrying out this part, the commission shall cooperate with the United States government or any of its agencies, other state agencies, and the county governments and any of their agencies. In the performance of its duties the commission shall:

The commission shall implement its instream flow standards when disposing of water from state watersheds, including that removed by wells or tunnels where they may affect stream flow, and when regulating use of lands and waters within the state conservation district, including water development."

SECTION 12. Section 205-2, Hawaii Revised Statutes, is amended to read as follows:

"§205-2 Districting and classification of lands. (a) There shall be [four] three major land use districts in which all lands in the State shall be placed: [urban, rural, agricultural, and conservation.] agricultural, conservation, and other lands. Important agricultural lands designated pursuant to part shall be included in an agricultural district. The land use commission shall group contiguous land areas suitable for inclusion in one of these [four] three major districts. The commission shall set standards for determining the boundaries of each district, provided that:

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.

[(b) Urban districts shall include activities or uses as provided by ordinances or regulations of the county within which the urban district is situated.

(c) Rural districts shall include activities or uses as characterized by low density residential lots of not more than one dwelling house per one-half acre, except as provided by county ordinance pursuant to section 46-4(c), in areas where "city-like" concentration of people, structures, streets, and urban level of services are absent, and where small farms are intermixed with low density residential lots except that within a subdivision, as defined in section 484-1, the commission for good cause may allow one lot of less than one-half acre, but not less than 18,500 square feet, or an equivalent residential density, within a rural subdivision and permit the construction of one dwelling on such lot, provided that all other dwellings in the subdivision shall have a minimum lot size of one-half acre or 21,780 square feet. Such petition for variance may be processed under the special permit procedure. These districts may include contiguous areas which are not suited to low density residential lots or small farms by reason of topography, soils, and other related characteristics.

(d)] (b) Agricultural districts shall include all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B and important agricultural lands designated pursuant to part , and 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 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].

The activities or uses in lands designated as important agricultural lands pursuant to part shall be the permissible uses specified in section 205-D.

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.

[(e)] (c) Conservation districts shall include areas necessary for protecting watersheds and water sources; preserving scenic and historic areas; providing park lands, wilderness, and beach reserves; conserving indigenous or endemic plants, fish, and wildlife, including those which are threatened or endangered; preventing floods and soil erosion; providing forestry; retaining open space areas whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding communities, or would maintain or enhance the conservation of natural or scenic resources; providing areas of value for recreational purposes; other related activities; and for providing other permitted uses not detrimental to a multiple use conservation concept.

(d) Except as provided in sections 205-5.1 and 205-5.2 for the designation and regulating of geothermal resource subzones, the other lands district shall include activities and uses as provided by ordinances of the county the district is situated in."

SECTION 13. Section 205-4, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

"§205-4 Amendments to district boundaries [involving land areas greater than fifteen acres.]; agricultural and conservation districts. (a) Any department or agency of the State, any department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified, may petition the land use commission for a change in the boundary of a district. This section applies to all petitions for changes in district boundaries of lands within conservation districts and all petitions for changes in district boundaries [involving lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in section 201G-118. The land use commission shall adopt rules pursuant to chapter 91 to implement section 201G-118.] of lands within the agricultural district."

SECTION 14. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) [Within] Except for important agricultural lands designated pursuant to part , that shall be restricted to the uses expressly permitted in section 205-D, 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:

SECTION 15. 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(b) [and], 205-4.5(a), and 205-D on lands classified as agricultural 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)."

SECTION 16. 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] other land district, but not in the agricultural and conservation districts. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.

(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, and 205-D 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.

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

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.]"

SECTION 17. Section 205-5.1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Geothermal resource subzones may be designated within the [urban, rural,] agricultural, [and] conservation, and other lands land use districts established under section 205-2. Only those areas designated as geothermal resource subzones may be utilized for geothermal development activities in addition to those uses permitted in each land use district under this chapter. Geothermal development activities may be permitted within [urban, rural,] agricultural, [and] conservation, and other lands land use districts in accordance with this chapter. "Geothermal development activities" means the exploration, development, or production of electrical energy from geothermal resources and direct use applications of geothermal resources; provided that within the [urban, rural,] other lands and agricultural land use districts, direct use applications of geothermal resources are permitted both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter."

SECTION 18. Section 205-5.1, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The use of an area for geothermal development activities within a geothermal resource subzone shall be governed by the board within the conservation district and, except as herein provided, by state and county statutes, ordinances, and rules not inconsistent herewith within agricultural[, rural, and urban] and other lands districts, except that no land use commission approval or special use permit procedures under section 205-6 shall be required for the use of such subzones. In the absence of provisions in the county general plan and zoning ordinances specifically relating to the use and location of geothermal development activities in an agricultural[, rural, or urban] or other lands district, the appropriate county authority may issue a geothermal resource permit to allow geothermal development activities. "Appropriate county authority" means the county planning commission unless some other agency or body is designated by ordinance of the county council. Such uses as are permitted by county general plan and zoning ordinances, by the appropriate county authority, shall be deemed to be reasonable and to promote the effectiveness and objectives of this chapter. Chapters 177, 178, 182, 183, 183C, 205A, 226, 342, and 343 shall apply as appropriate. If provisions in the county general plan and zoning ordinances specifically relate to the use and location of geothermal development activities in an agricultural[, rural, or urban] or other lands district, the provisions shall require the appropriate county authority to conduct a public hearing on any application for a geothermal resource permit to determine whether the use is in conformity with the criteria specified in subsection (e) for granting geothermal resource permits; provided that within the [urban, rural,] other lands and agricultural land use districts, direct use applications of geothermal resources are permitted without any application for a geothermal resource permit both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter."

SECTION 19. Section 205-5.1, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) If geothermal development activities are proposed within agricultural[, rural, or urban] or other lands districts and such proposed activities are not permitted uses pursuant to county general plan and zoning ordinances, then after receipt of a properly filed and completed application, including all required supporting data, the appropriate county authority shall conduct a public hearing. Upon appropriate request for mediation from any party who submitted comment at the public hearing, the county authority shall appoint a mediator within five days. The county authority shall require the parties to participate in mediation. The mediator shall not be an employee of any county agency or its staff. The mediation period shall not extend beyond thirty days after mediation started, except by order of the county authority. Mediation shall be confined to the issues raised at the public hearing by the party requesting mediation. The mediator will submit a written recommendation to the county authority, based upon any mediation agreement reached between the parties for consideration by the county authority in its final decision. If there is no mediation agreement, the county authority may have a second public hearing to receive additional comment related to the mediation issues. Within ten days after the second public hearing, the county authority may receive additional written comment on the issues raised at the second public hearing from any party.

The county authority shall consider the comments raised at the second hearing before rendering its final decision. The county authority shall then determine whether a geothermal resource permit shall be granted to authorize the geothermal development activities described in the application. The appropriate county authority shall grant a geothermal resource permit if it finds that applicant has demonstrated that:

Unless there is a mutual agreement to extend, a decision shall be made on the application by the appropriate county authority within six months of the date a complete application was filed; provided that the time limit may be extended by agreement between the applicant and the appropriate county authority."

SECTION 20. Section 205-6, Hawaii Revised Statutes, is amended to read as follows:

"§205-6 Special permit. (a) [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. 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.] Land uses substantially involving or supporting agricultural tourism or educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in a approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, that are not identified as permitted uses within an agricultural district under sections 205-2, 205-4.5, and 205-D, may be permitted in the agricultural district by special permit under this section. Anyone who desires to use that person's land within an agricultural district for a nonagricultural use identified in this subsection may petition the land use commission for permission to use that person's land in the manner desired. The commission may establish the appropriate fee for processing the special permit petition.

(b) The [planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency,] land use commission shall establish by rule [or regulation,] the time within which the hearing and action on petition for special permit shall occur. The [county planning] land use commission shall notify [the land use commission and] such persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

(c) The [county planning] land use commission may under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the [county planning] commission.

(d) [Special permits for land the area of which is greater than fifteen acres shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting such approval, including the adherence to representations made by the applicant.

(e) A copy of the decision together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres shall be transmitted to the land use commission within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition.] A denial [either by the county planning commission or] by the land use commission, or a modification by the land use commission[, as the case may be,] of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

(e) As used in this section, "agricultural tourism" means tourism activity conducted on an existing working farm or an existing farming operation, as defined in section 165-2, for the enjoyment, education, and 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.

[(f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4.5, may be permitted in the agricultural district by special permit under this section, on lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U.]"

SECTION 21. 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] other lands district in final form, or on lands designated as important agricultural lands pursuant to section 205-A or 205-B 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 22. Section 238-1, Hawaii Revised Statutes, is amended by amending the definition of "use" to read as follows:

""Use" (and any nounal, verbal, adjectival, adverbial, and other equivalent form of the term) herein used interchangeably means any use, whether the use is of such nature as to cause the property, services, or contracting to be appreciably consumed or not, or the keeping of the property or services for such use or for sale, the exercise of any right or power over tangible or intangible personal property incident to the ownership of that property, and shall include control over tangible or intangible property by a seller who is licensed or who should be licensed under chapter 237, who directs the importation of the property into the state for sale and delivery to a purchaser in the State, liability and free on board (FOB) to the contrary notwithstanding, regardless of where title passes, but the term "use" shall not include:

With regard to purchases made and distributed under the authority of chapter 421, a cooperative association shall be deemed the user thereof."

SECTION 23. Section 205-3.1, Hawaii Revised Statutes, is repealed.

["§205-3.1 Amendments to district boundaries. (a) District boundary amendments involving land areas greater than fifteen acres shall be processed by the land use commission pursuant to section 205-4.

(b) Any department or agency of the State, and department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified may petition the appropriate county land use decision-making authority of the county in which the land is situated for a change in the boundary of a district involving lands less than fifteen acres presently in the agricultural, rural, and urban districts.

(c) District boundary amendments involving land areas of fifteen acres or less, except in conservation districts, shall be determined by the appropriate county land use decision-making authority for said district and shall not require consideration by the land use commission pursuant to section 205-4. District boundary amendments involving land areas of fifteen acres or less in conservation districts shall be processed by the land use commission pursuant to section 205-4. The appropriate county land use decision-making authority may consolidate proceedings to amend state land use district boundaries pursuant to this subsection, with county proceedings to amend the general plan, development plan, zoning of the affected land or such other proceedings. Appropriate ordinances and rules to allow consolidation of such proceedings may be developed by the county land use decision-making authority.

(d) The county land use decision-making authority shall serve a copy of the application for a district boundary amendment to the land use commission and the department of business, economic development, and tourism and shall notify the commission and the department of the time and place of the hearing and the proposed amendments scheduled to be heard at the hearing. A change in the state land use district boundaries pursuant to this subsection shall become effective on the day designated by the county land use decision-making authority in its decision. Within sixty days of the effective date of any decision to amend state land use district boundaries by the county land use decision-making authority, the decision and the description and map of the affected property shall be transmitted to the land use commission and the department of business, economic development, and tourism by the county planning director."]

SECTION 24. The land use commission shall appoint an important agricultural lands incentives committee that shall design an important agricultural lands incentive program pursuant to section 205-G. The committee shall submit a report of its findings and recommendations, including proposed legislation, to the legislature and the county councils not later than twenty days prior to the convening of the Regular Session of 2006.

SECTION 25. (a) On the effective date of this Act:

(b) The land use commission shall amend its land use district maps in accordance with this section as soon as practicable.

SECTION 26. In codifying the new sections added by sections 1 and 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 27. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 28. This Act shall take effect on July 1, 2005.