SB3210 SD1

SECTION 1. Section 46-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) This section and any ordinance, rule, or regulation adopted in accordance with this section shall apply to lands located within rural and urban districts. This section and any ordinance, rule, or regulation adopted in accordance with this section shall not apply to lands contained within the forest reserve boundaries as established on January 31, 1957, or as subsequently amended[.], or any lands located within a conservation or agricultural district. Lands located within a conservation or agricultural district shall be governed by the state land use commission.

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:

(1) The areas within which [~~agriculture, forestry,~~] industry, trade, and business may be conducted;

(2) The areas in which residential uses may be regulated or prohibited;

(3) The areas bordering natural watercourses, channels, and streams, in which trades or industries, filling or dumping, erection of structures, and the location of buildings may be prohibited or restricted;

(4) The areas in which particular uses may be subjected to special restrictions;

(5) The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered;

(6) The location, height, bulk, number of stories, and size of buildings and other structures;

(7) The location of roads, schools, and recreation areas;

(8) Building setback lines and future street lines;

(9) The density and distribution of population;

(10) The percentage of a lot that may be occupied, size of yards, courts, and other open spaces;

(11) Minimum and maximum lot sizes; and

(12) Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions.

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 ensure 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 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 2. Section 205-3.1, Hawaii Revised Statutes, is amended to read as follows:

"§205-3.1 Amendments to district boundaries. (a) District boundary amendments involving lands in the conservation district, land areas greater than fifteen acres, [or] lands [~~delineated as important~~] in the agricultural district, or lands in the rural district 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 [~~rural and~~] urban [~~districts~~] district [~~and lands less than fifteen acres in the agricultural district that are not designated as important agricultural lands~~].

(c) District boundary amendments involving land areas of fifteen acres or less[~~, except as provided in subsection (b),~~] in urban districts, shall be determined by the appropriate county land use decision-making authority for the district and shall not require consideration by the land use commission pursuant to section 205-4; provided that such boundary amendments and approved uses are consistent with this chapter. 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 3. Section 205-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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, [~~lands designated or sought to be designated as important agricultural lands,~~] agricultural districts, rural districts, and lands greater than fifteen acres [~~in the agricultural, rural, and~~] within urban districts, except as provided in section 201H-38. The land use commission shall adopt rules pursuant to chapter 91 to implement section 201H‑38."

SECTION 4. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(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~~] the commission 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."

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) 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;~~] the commission, 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 6. Section 205-5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(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.~~] rural and urban districts. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C. Agricultural districts shall be governed by the commission pursuant to this chapter.

(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 may be further defined by [~~each county by zoning ordinance. Each county~~] the commission. The commission shall adopt [~~ordinances~~] rules 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; provided that agricultural tourism activities shall not be permissible in the absence of a bona fide farming operation. [~~Ordinances~~] Rules 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; provided that overnight accommodations shall not be permitted;

(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~~] The commission 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~~] the commission by [~~zoning ordinance, subdivision ordinance,~~] rule 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~~] commission finds that unreasonable economic hardship to the owner or lessee of land cannot otherwise be prevented or where land utilization is improved, the [~~county~~] commission 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~~] commission 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."

SECTION 7. Section 205-6, Hawaii Revised Statutes, is amended to read as follows:

"§205-6 Special permit. (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. 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~~] commission for permission to use the person's land in the manner desired. [~~Each county~~] The commission 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.

(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,~~] 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~~] 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~~] 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; provided that a use proposed for designated important agricultural lands shall not conflict with any part 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 or for lands~~] designated as important agricultural lands 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 the 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 or for lands designated as important agricultural lands, 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~~] The 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.

(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 8. Section 205-7, Hawaii Revised Statutes, is amended to read as follows:

"§205-7 Adoption, amendment or repeal of rules. The [~~land use~~] commission shall adopt, amend, or repeal rules relating to matters within its jurisdiction in the manner prescribed in chapter 91."

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 restrictions on use and the conditions relating to rural and urban use classification districts adopted by the [~~land use~~] commission [~~and~~]. The commission shall enforce the restriction on use and the condition relating to agricultural districts under section 205‑4.5 [~~and shall report to the commission all violations~~]."

SECTION 10. Section 205-43, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-43[]] Important agricultural lands; policies. State [~~and county~~] agricultural policies, tax policies, land use plans, [~~ordinances,~~] and rules shall promote the long-term viability of agricultural use of important agricultural lands and shall be consistent with and implement the following policies:

(1) Promote the retention of important agricultural lands in blocks of contiguous, intact, and functional land units large enough to allow flexibility in agricultural production and management;

(2) Discourage the fragmentation of important agricultural lands and the conversion of these lands to nonagricultural uses;

(3) Direct nonagricultural uses and activities from important agricultural lands to other areas and ensure that uses on important agricultural lands are actually agricultural uses;

(4) Limit physical improvements on important agricultural lands to maintain affordability of these lands for agricultural purposes;

(5) Provide a basic level of infrastructure and services on important agricultural lands limited to the minimum necessary to support agricultural uses and activities;

(6) Facilitate the long-term dedication of important agricultural lands for future agricultural use through the use of incentives;

(7) Facilitate the access of farmers to important agricultural lands for long-term viable agricultural use; and

(8) Promote the maintenance of essential agricultural infrastructure systems, including irrigation systems."

SECTION 11. Section 205-46, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) To achieve the long-term agricultural viability and use of important agricultural lands, the State [~~and each county~~] shall ensure that [~~their:~~] its:

(1) Agricultural development, land use, water use, regulatory, tax, and land protection policies; and

(2) Permitting and approval procedures,

enable and promote the economic sustainability of agriculture.

Agricultural operations occurring on important agricultural lands shall be eligible for incentives and protections provided by the State and counties pursuant to this section to promote the viability of agricultural enterprise on important agricultural lands and to assure the availability of important agricultural lands for long-term agricultural use."

SECTION 12. Section 205-47, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) to read as follows:

"(d) The counties shall take notice of those lands that have already been designated as important agricultural lands by the commission.

Upon identification of potential lands to be recommended to the [~~county council~~] commission as potential important agricultural lands, the counties shall take reasonable action to notify each owner of those lands by mail or posted notice on the affected lands to inform them of the potential designation of their lands.

In formulating its final recommendations to the [~~respective county councils,~~] commission, the county planning departments shall report on the manner in which the important agricultural lands mapping relates to, supports, and is consistent with the:

(1) Standards and criteria set forth in section 205-44;

(2) [~~County's adopted land~~] Land use plans, as applied to both the identification and exclusion of important agricultural lands from such designation;

(3) Comments received from government agencies and others identified in subsection (b);

(4) Viability of existing agribusinesses; and

(5) Representations or position statements of the owners whose lands are subject to the potential designation.

(e) The important agricultural lands maps shall be submitted to the [~~county council~~] commission for decision-making. The [~~county council~~] commission shall adopt the maps, with or without changes, by resolution. The adopted maps shall be [~~transmitted to~~] used by the [~~land use~~] commission for further action pursuant to section 205‑48."

SECTION 13. Section 205-48, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) The [~~land use~~] commission shall receive the county recommendations and maps delineating those lands eligible to be designated important agricultural lands no sooner than the effective date of the legislative enactment of protection and incentive measures for important agricultural lands and agricultural viability, as provided in section 9 of Act 183, Session Laws of Hawaii 2005.

(b) The department of agriculture and the office of planning shall review the county report and recommendations and provide comments to the [~~land use~~] commission within forty-five days of the receipt of the report and maps by the [~~land use~~] commission. The [~~land use~~] commission may also consult with the department of agriculture and the office of planning as needed."

SECTION 14. Section 205-50, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-50[]] Standards and criteria for the reclassification or rezoning of important agricultural lands. (a) 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~~] commission 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 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.

(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~~] the commission 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.~~] of the commission.

(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 15. Section 205-51, Hawaii Revised Statutes, is amended to read as follows.

"[[]§205-51[]] Important agricultural lands; [~~county ordinances.~~] rules. (a) [~~Each county~~] The commission shall adopt [~~ordinances~~] rules that reduce infrastructure standards for important agricultural lands no later than the effective date of [~~the legislative enactment of protection and incentive measures for important agricultural lands and agricultural viability, as provided in section 9 of Act 183, Session Laws of Hawaii 2005.~~] .

(b) [~~For counties without ordinances~~] Where no rules are adopted pursuant to subsection (a), important agricultural lands designated pursuant to this part may be subdivided without [~~county~~] commission processing or standards; provided that:

(1) None of the resulting lots shall be used solely for residential occupancy; and

(2) The leasehold lots shall return to the original lot of record upon expiration or termination of the lease."

SECTION 16. Section 205-52, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-52[]] Periodic review and amendment of important agricultural lands maps. The maps delineating important agricultural lands shall be reviewed [~~in conjunction with the county general plan and community and development plan revision process, or~~] at least once every ten years following the adoption of the maps by the [~~land use~~] commission; provided that the maps shall not be reviewed more than once every five years. Any review and amendment of the maps of important agricultural lands shall be conducted in accordance with this part. In these periodic reviews or petitions by the farmers or landowners for declaratory rulings, the "important agricultural lands" designation shall be removed from those important agricultural lands where the commission has issued a declaratory order that a sufficient supply of water is no longer available to allow profitable farming of these lands due to governmental actions, acts of God, or other causes beyond the farmer's or landowner's reasonable control."

SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 18. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	3210
TWENTY-FOURTH LEGISLATURE, 2008		S.D. 1
STATE OF HAWAII