HB2359

SECTION 1. (a) The purpose of this Act is to establish new policies regarding the districting and protection of land in state agricultural districts. Under this Act, all lands in agricultural districts are designated "important agricultural land" for the purpose of article XI, section 3, of the state constitution. This Act rejects the previous approach of establishing a two-tier agricultural districting and protection system, one for "important agricultural land" and the second for "other agricultural land".

The most significant provision of this Act is set forth in a new section that designates the land to be placed in agricultural districts on July 1, 2010. Under the new section, that land, deemed "important agricultural land", is identified as:

(1) Certain land in the central Oahu/north shore area;

(2) Land within state agricultural parks;

(3) Other state-owned land that the department of agriculture determines should remain or be included in the state agricultural district; and

(4) Other land in the State that is within a "relevant county agricultural zoning district" on July 1, 2010.

For land in the city and county of Honolulu and county of Hawaii, each of which has more than one agricultural zoning district, "relevant county agricultural zoning district" means the zoning district that is most protective of agricultural use. For land in the county of Maui and county of Kauai, each of which has only one agricultural zoning district, "relevant county agricultural zoning district" means that zoning district. If either county chooses to establish another more protective agriculture zoning district before June 30, 2010, then "relevant county agricultural zoning district" means the district that is more protective. Thus, this Act depends on the counties to assist in the initial identification of important agricultural land.

(b) Notwithstanding the counties' initial involvement, this Act provides that the redesignation of such land after July 1, 2010 shall be subject to chapter 205, Hawaii Revised Statutes. Thus, the legislature intends that the land use commission will be responsible for the redesignation of "important agricultural land" of greater than fifteen acres and the counties will be responsible for the redesignation of "important agricultural land" of lesser area. As required by article XI, section 3, of the Hawaii state constitution, a redesignation shall require the affirmative vote of two-thirds of the members of the land use commission.

The legislature has identified the land included in the agricultural district after application of the standards and criteria of section 205-44. In this respect, the legislature makes the following findings:

(1) The central Oahu/north shore areas identified under section 205-A(b)(1), Hawaii Revised Statutes, in section 2 of this Act is a vast expanse of contiguous land generally recognized as having high quality soil and growing conditions for crops. The inclusion of the entire area in the agricultural district comports with the standards and criteria of section 205-44(1), (2), (5), (6), (7), and (8). The inclusion of parts of the area also comports with standard and criteria of section 205-44(3) or (4).

(2) Land within state agricultural parks is expressly intended for agricultural production. Inclusion of each parcel of such land comports with the standard and criterion of section 205-44(1).

(3) With respect to other state-owned land placed in the agricultural district, the department of agriculture is required by law to determine that inclusion of such land comports with at least one of the standards and criteria of section 205-44. This duty is expressly delegated to the department, which the Legislature finds is very capable of making the determination.

(4) The other land in the relevant county agricultural zoning district is land recognized by the counties as necessary for the preservation or operation of agricultural activity. The inclusion of each parcel of such land in the agricultural district comports with at least one of the standards and criteria of section 205-44.

(1) The counties are authorized to enact rezoning ordinances before July 1, 2010 to include land in or exclude land from the state agricultural district;

(2) Standards and criteria for the redesignation of agricultural land by the land use commission after July 1, 2010 are reaffirmed;

(3) Unnecessary provisions of Act 183, Session Laws of Hawaii 2005, are repealed; and

(4) The legislative reference bureau is directed to submit to the legislature before the 2009 regular session draft legislation proposing amendments that will conform chapter 205, Hawaii Revised Statutes, to this Act.

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

"§205-A Agricultural district on July 1, 2010. (a) Notwithstanding any other law to the contrary, for the purposes of this chapter, "relevant county agriculture zoning district" means:

(1) With respect to the city and county of Honolulu, the "restricted agricultural" zoning district but not the "general agricultural" zoning district;

(2) With respect to the county of Maui, the "agricultural" zoning district; provided that, if the county of Maui establishes more than one agricultural zoning district before July 1, 2010, the "relevant county agriculture zoning district" shall mean the agriculture zoning district that is identified by the county as most protective of agricultural use;

(3) With respect to the county of Kauai, the "agriculture" zoning district; provided that, if the county of Kauai establishes more than one agricultural zoning district before July 1, 2010, the "relevant county agriculture zoning district" shall mean the agriculture zoning district that is identified by the county as most protective of agricultural use; and

(4) With respect to the county of Hawaii, the "intensive agricultural" zoning district but not the "family agricultural" or "agricultural" zoning district.

(b) On July 1, 2010, the following lands shall be included in the state agricultural district:

(1) Land in the central Oahu/north shore area within the following tax map key parcels:

(A) 6-1-005-001;

(B) 6-1-006-001, but not that portion outside the restricted agricultural zoning district of the city and county of Honolulu on July 1, 2008;

(D) 6-2-009-001;

(E) 6-2-010-001, but not that portion outside the restricted agricultural zoning district of the city and county of Honolulu on July 1, 2008;

(F) 6-2-011-001, but not that portion outside the restricted agricultural zoning district of the city and county of Honolulu on July 1, 2008;

(G) 6-4-001-001;

(H) 6-4-001-006;

(I) 6-4-002-001;

(J) 6-4-003-001;

(K) 6-4-003-003;

(L) 6-4-004-001;

(M) 6-5-001-002;

(N) 6-5-002-011;

(O) 6-5-002-018; and

(P) 6-5-002-019;

(2) Land within the boundaries of each of the following state agricultural parks:

(A) On the island of Oahu: Waimanalo, Waianae, Kahuku, and Kalaeloa agricultural parks;

(B) On the island of Hawaii: Pahoa, Panaewa, Keahole, and Hamakua agricultural parks;

(D) The Molokai agricultural park;

(3) Other land owned by the State that the department of agriculture determines should remain or be included in the state agricultural district on July 1, 2010, because the land comports with at least one of the standards and criteria of section 205-44; and

(4) Other land in the State that is within a relevant county agriculture zoning district on July 1, 2010.

(d) The inclusion of land into, or exclusion of land from the state agricultural districts on July 1, 2010, pursuant to this section shall not be subject to the district boundary amendment provisions of section 205-3.1 or section 205-4.

(e) Land within the state agricultural district on June 30, 2010, that is excluded from that district on July 1, 2010, pursuant to subsection (b) shall be included in the state rural district on July 1, 2010. The inclusion of the land into the state rural district on that date shall not be subject to the district boundary amendment provisions of section 205-3.1 or section 205-4.

(f) After July 1, 2010, any land included in the state agricultural or rural district pursuant to this section shall be subject to the district boundary amendment provisions of this chapter.

§205-B County zoning map amendments before June 30, 2010. (a) For the purposes of this section, "rezoning ordinance" means an ordinance amending a zoning map or the narrative of a zoning code or land use ordinance.

(b) Each county, on its own initiative or upon application of a person, may review, process, and act upon any proposed rezoning ordinance that, on July 1, 2010, will include land in or exclude land from the "relevant county agricultural zoning district" pursuant to section 205-A(b)(2); provided that:

(1) A county through a rezoning ordinance shall not include land that is in the state urban, rural, or conservation district on June 30, 2010 in the relevant county agricultural zoning district;

(2) The rezoning ordinance shall take effect on July 1, 2010 so that the subject land is included in or excluded from the state agricultural district on that date in accordance with section 205-A(b)(2);

(3) When including land in the relevant county agricultural zoning district by a rezoning ordinance, the county shall find that the inclusion comports with at least one of the standards and criteria of section 205-44; and

(4) No rezoning ordinance enacted by any county shall affect the inclusion into the state agricultural district of the central Oahu/north shore area identified under section 205-A(b)(1), the state agricultural park land identified under section 205-A(b)(2), or the state-owned land identified by the department of agriculture under section 205-A(b)(3).

(c) The county of Maui and the county of Kauai may also create through a rezoning ordinance more than one agricultural zoning district to separate land to be included in the state agricultural district from other agricultural land.

(d) No rezoning ordinance enacted pursuant to this section shall be deemed a "proposed action" requiring the preparation of an environmental assessment or environmental impact statement, notwithstanding section 343-5(a) or any other provision of chapter 343.

(e) This section shall be repealed on July 1, 2010."

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[;] in this chapter;

(3) In the establishment and amendment of the boundaries of agricultural districts [~~the greatest possible protection shall be given to those lands with a high capacity for intensive cultivation;~~], section 205-A shall apply on July 1, 2010, and section 205-50 shall apply thereafter. All lands in agricultural districts shall be designated "important agricultural lands" for the purpose of article XI, section 3, of the state constitution. For the purposes of this chapter, "agricultural lands", "lands in the agricultural district", and similar terms shall have the same meaning as "important agricultural lands" as defined in section 205-42; 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 205-42, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-42[]] Important agricultural lands; definition and objectives. (a) [~~As used in this part, unless the context otherwise requires,~~] As provided under section 205-2(a)(3), all lands in an agricultural district shall be designated "important agricultural lands" [~~means those lands, identified pursuant to this part, that:~~

~~(1)~~ ~~Are capable of producing sustained high agricultural yields when treated and managed according to accepted farming methods and technology;~~

~~(2)~~ ~~Contribute to the State's economic base and produce agricultural commodities for export or local consumption; or~~

~~(3)~~ ~~Are needed to promote the expansion of agricultural activities and income for the future, even if currently not in production.~~] for the purpose of article XI, section 3, of the state constitution.

(b) [The objective for the identification of important agricultural lands is to identify and plan for the maintenance of a strategic agricultural land resource base that can support a diversity of agricultural activities and opportunities that expand agricultural income and job opportunities and increase agricultural self-sufficiency for current and future generations. To achieve this objective,] To protect important agricultural lands, the State shall:

(1) Promote agricultural development and land use planning that delineates blocks of productive agricultural land and areas of agricultural activity for protection from the encroachment of nonagricultural uses; and

(2) Establish incentives that promote:

(A) Agricultural viability[;] and diversity;

(B) Sustained growth of the agriculture industry; [~~and~~]

[~~(C)~~] (D) The long-term agricultural use and protection of [~~these~~] productive agricultural lands[.]; and

(E) Expansion of agricultural related income and job opportunities."

SECTION 5. Section 205-44, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-44[]] Standards and criteria for the initial identification of important agricultural lands. The standards and criteria in this section shall be used to identify important agricultural lands. Lands identified as important agricultural lands need not meet every standard and criteria listed below. Rather, lands meeting any of the standards and criteria below shall be given [~~initial~~] consideration[; provided that the designation of important agricultural lands shall be made by weighing the standards and criteria with each other to meet the constitutionally mandated purposes in article XI, section 3, of the state constitution and the objectives and policies] for initial identification as important agricultural lands [~~in sections 205-42 and 205-43~~]. The standards and criteria shall be as follows:

(1) Land currently used for agricultural production;

(2) Land with soil qualities and growing conditions that support agricultural production of food, fiber, or fuel- and energy-producing crops;

(3) Land identified under agricultural productivity rating systems, such as the agricultural lands of importance to the State of Hawaii (ALISH) system adopted by the board of agriculture on January 28, 1977;

(4) Land types associated with traditional native Hawaiian agricultural uses, such as taro cultivation, or unique agricultural crops and uses, such as coffee, vineyards, aquaculture, and energy production;

(5) Land with sufficient quantities of water to support viable agricultural production;

(6) Land whose designation as important agricultural lands is consistent with general, development, and community plans of the county;

(7) Land that contributes to maintaining a critical land mass important to agricultural operating productivity; and

(8) Land with or near support infrastructure conducive to agricultural productivity, such as transportation to markets, water, or power."

SECTION 6. Section 205-50, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-50[]] Standards and criteria for [~~the reclassification~~] district boundary amendments or rezoning of [~~important~~] agricultural lands. (a) [~~Any~~] After July 1, 2010, any land use district boundary amendment or change in zoning involving [~~important~~] agricultural lands [~~identified pursuant to this chapter~~] shall be subject to this section.

(b) Upon acceptance by the county for processing, any application for a special permit involving important agricultural lands shall be referred to the department of agriculture and the office of planning for review and comment.

(c) Any decision by the land use commission or county [~~pursuant to this section~~] to amend an agricultural district boundary or change the zoning of agricultural land shall specifically consider the following standards and criteria:

(1) The relative importance of the land for agriculture based on the stock of similarly suited lands in the area and the State as a whole;

(2) The proposed district boundary amendment or zone change will not harm the productivity or viability of existing agricultural activity in the area[,] or adversely affect the viability of other agricultural activities or operations that share infrastructure, processing, marketing, or other production-related costs or facilities with the agricultural activities on the land in question;

(3) The district boundary amendment or zone change will not cause the fragmentation of or intrusion of nonagricultural uses into largely intact areas of [~~lands identified by the State as important~~] agricultural lands that create residual parcels of a size that would preclude viable agricultural use;

(4) The public benefit to be derived from the proposed action is justified by a need for additional lands for nonagricultural purposes; [~~and~~]

(5) The impact of the proposed district boundary amendment or zone change on the necessity and capacity of state and county agencies to provide and support additional agricultural infrastructure or services in the area[.];

(6) Whether a sufficient supply of water is no longer available to allow profitable agricultural use of the land due to governmental action, an act of God, or other cause beyond the farmer's or landowner's reasonable control; and

(7) The negative effect that the proposed district boundary amendment or zone change may have on the following:

(A) The potential for increasing the cultivation of crops or trees for the generation of energy;

(B) The recharging of the aquifer;

(D) The absorption of carbon dioxide from the atmosphere, and the potential future use of crop or tree farm lands for carbon credit;

(E) The need for green or open space for the viability of the visitor industry and contentment of residents; and

(F) The prevention of soil erosion and non-point source pollutant discharge into the ocean.

(d) Any decision pursuant to this section shall be based upon a determination that:

(1) On balance, the public benefit from the proposed district boundary amendment or zone change outweighs the benefits of retaining the land for agricultural purposes; and

(2) The proposed action will have no significant impact upon the viability of agricultural operations on adjacent agricultural lands.

(e) The standards and criteria of this section shall be in addition to:

(1) The decision-making criteria of section 205-17 governing decisions of the land use commission under this chapter; and

(2) The decision-making criteria adopted by each county to govern decisions of county decision-making authorities under this chapter.

(f) Any decision of the land use commission and any decision of any county on a land use district boundary amendment or change in zoning involving [~~important~~] agricultural lands shall be approved by the body responsible for the decision by a two-thirds vote of the membership to which the body is entitled.

[(g) A farmer or landowner with qualifying lands may also petition the land use commission to remove the "important agricultural lands" designation from lands if a sufficient supply of water is no longer available to allow profitable farming of the land due to governmental actions, acts of God, or other causes beyond the farmer's or landowner's reasonable control.]"

SECTION 7. Part III of Act 183, Session Laws of Hawaii 2005, is repealed.

SECTION 8. The legislative reference bureau shall submit to the legislature at least twenty days before the convening of the regular session of 2009, legislation proposing amendments intended to conform chapter 205, Hawaii Revised Statutes, to this Act. In performing this duty, the legislative reference bureau shall consult with the chairpersons of the appropriate legislative committees, the land use commission, the department of agriculture, the office of planning, and appropriate county administrations and councils.

SECTION 9. In codifying the new sections added by section 2 and of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2009; except that sections 2, 5, 7, 8, 9, and 10 shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2359
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII