SB546 HD1

SECTION 1. Chapter 205, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§205- Satisfaction of state or county affordable housing requirements in the rural district. (a) A farmer or landowner subject to subsection (b) may fulfill a state or county affordable housing requirement in the urban district by providing affordable housing in the rural district in accordance with section 205-2(c)(7).

(b) This section shall apply only to a farmer or landowner who has been granted a declaratory order from the commission to designate all or a portion of the landowner's land as important agricultural land pursuant to section 205-45."

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

1. By amending its title and subsection (a) to read:

"§205-2 Districting and classification of lands[.]; criteria. (a) There shall be four major land use districts in which all lands in the [~~State~~] 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~~], the commission shall include:

(A) Those lands that are now in urban use [a]; and

(B) A sufficient reserve area for foreseeable urban growth [~~shall be included~~];

(2) In the establishment of boundaries for rural districts, [~~areas~~] the commission shall include:

(A) Areas of land composed primarily of ranches and 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];

(B) Low-density residential lots and residential subdivisions on agricultural lands existing before January 1, 2008;

(D) Clusters of settlements of historic plantation camps and communities that do not function as a suburb of a major urban center; and

(E) Areas not suited to agricultural and ancillary activities by reason of topography and other related characteristics;

(3) In the establishment of the boundaries of agricultural districts, the greatest possible protection shall be given to those lands with a high capacity for intensive cultivation; 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."

2. By amending subsections (c) and (d) to read:

"(c) Rural districts shall include [~~activities~~]:

(1) 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~~];

(2) 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 and on petition for a special permit, may allow one lot of less than one-half acre, but not less than [~~18,500~~] eighteen thousand five hundred 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~~] twenty-one thousand seven hundred eighty square feet[~~. Such petition for variance may be processed under the special permit procedure. These districts may include contiguous~~];

(3) Contiguous areas [~~which~~] that are not suited to low density residential lots or small farms by reason of topography, soils, and other related characteristics[~~. Rural districts shall also include golf~~];

(4) Golf courses, golf driving ranges, and golf-related facilities[.];

(5) Agribusiness activities, including horticulture, apiculture, aquaculture, plant nurseries, and the raising and keeping of livestock;

(6) Farm worker housing; and

(7) Affordable housing, without a special permit; provided that the housing is:

(A) Affordable to households with incomes at or below one hundred forty per cent of the median family income as determined by the United States Department of Housing and Urban Development; and

(B) Situated on land reclassified to the rural district under a declaratory order issued pursuant to section 205-45 that also designates important agricultural land.

(d) Agricultural districts shall include:

(1) Activities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry;

(2) Farming activities or uses related to animal husbandry, and game and fish propagation;

(3) Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water;

(4) Wind generated energy production for public, private, and commercial use;

(5) Biofuel production as described in section 205‑4.5(a)(15) for public, private, and commercial use;

(6) Bona fide agricultural services and uses that 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, roadside stands for the sale of products grown on the premises, and plantation community subdivisions as defined in section 205‑4.5(a)(12);

(7) Wind machines and wind farms;

(8) 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 these facilities shall not be used as or equipped for use as living quarters or dwellings;

(9) Agricultural parks;

(10) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165‑2, for the enjoyment, education, or 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; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5; and

(11) Open area recreational facilities.

Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205-4.5(d). [~~Agricultural districts include areas that are not used for, or that are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics.~~]"

SECTION 3. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:

(1) Cultivation of crops, including but not limited to crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;

(2) Game and fish propagation;

(3) Raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

(4) Farm dwellings, employee housing, farm buildings, or activities or uses [related to farming and animal husbandry. "Farm dwelling", as used in this paragraph, means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity pro~~vides income to the family occupying the dwelling;~~] that are part of a working farm, or a farming operation as defined in section 165-2, that are necessary to the production and distribution of agricultural and aquacultural commodities. As used in this paragraph, "farm dwelling" means a single-family dwelling used by the owner or operator of the working farm or farming operation;

(5) Public institutions and buildings that are necessary for agricultural practices;

(6) Public and private open area types of recreational uses, including day camps, picnic grounds, parks, and riding stables, but not including dragstrips, airports, drive-in theaters, golf courses, golf driving ranges, country clubs, and overnight camps;

(7) Public, private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid waste transfer stations, major water storage tanks, and appurtenant small buildings such as booster pumping stations, but not including offices or yards for equipment, material, vehicle storage, repair or maintenance, treatment plants, corporation yards, or other similar structures;

(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

(9) Roadside stands for the sale of agricultural products grown on the premises;

(10) Buildings and uses, including but not limited to mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the above mentioned uses and are permitted under section 205‑2(d);

(11) Agricultural parks;

(12) Plantation community subdivisions, which as used in this paragraph means a subdivision or cluster of employee housing, community buildings, and acreage established on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation and in residential use by employees or former employees of the plantation; provided that the employees or former employees shall have a property interest in the land;

(13) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165-2, for the enjoyment, education, or 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; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;

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

(15) Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuels processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.

For the purposes of this paragraph:

"Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuels processing facilities.

"Biofuel processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy[[]; or[]]

[[](16)[]]Construction and operation of wireless communication antennas; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection.

(b) Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in [~~sections 205-6 and~~] section 205-8, and construction of single-family dwellings on lots existing before June 4, 1976. Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless 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 4. Section 205-5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

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

(1) Low density residential uses[;], with a minimum lot size of one-half acre and one dwelling unit per lot, except as provided in section 205-2(c);

(2) Agricultural uses;

(3) Golf courses, golf driving ranges, and golf-related facilities; [~~and~~]

(4) Public, quasi-public, and public utility facilities[.];

(5) Agribusiness activities, as provided in section 205‑2(c);

(6) Farm worker housing; and

(7) Affordable housing meeting the requirements of section 205‑2(c)(7), with density established by county zoning.

[~~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 5. 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~~] a rural district other than for [~~an agricultural or~~] a 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. Copies of the special permit petition shall be forwarded to the land use commission[,] and 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, 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 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 6. Section 205-44, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-44[]] Standards and criteria for the identification of important agricultural lands. (a) 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.~~] in subsection (c). Rather, lands meeting any of the criteria [~~below~~] in subsection (c) 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~~] Hawaii Constitution and the objectives and policies for important agricultural lands in sections 205-42 and 205-43.

(b) In a petition for a declaratory order submitted under section 205-45 that seeks to both designate lands as important agricultural lands and reclassify lands in the agricultural district to the rural, conservation, or urban district, the lands shall be deemed qualified for designation as important agricultural land if the commission reasonably finds that the lands meet at least the criteria of subsection (c)(5) and (7) of this section.

If a petition seeks to only designate land as important agricultural lands, then the commission shall evaluate the lands in accordance with subsection (a).

(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[.]; and

(9) Land that, although unsuited for agricultural use because of topography, is part of a tax map key parcel, most of which is comprised of land meeting at least one of the standards and criteria listed in this subsection. Land under this paragraph shall be designated as important agricultural land only if the entire tax map key parcel is so designated."

SECTION 7. Section 205-45, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-45[]] Petition by farmer or landowner. (a) A farmer or landowner with lands qualifying under section 205-44 may file with the commission a petition for declaratory [~~ruling with the commission~~] order to designate the lands as important agricultural lands. The petition may be filed at any time in the designation process.

(b) Any law to the contrary notwithstanding, within the same petition for declaratory order as described in subsection (a), the petitioner may seek a reclassification of land in the agricultural district to the rural, urban, or conservation district, or a combination thereof; provided that:

(1) The land sought to be reclassified to the rural, urban, or conservation district is within the same county as the land sought to be designated as important agricultural lands;

(2) The reclassification of the land to the rural, urban, or conservation district is consistent with the relevant county general and development plans; and

(3) The total acreage of the land sought to be designated or reclassified in the petition complies with the following proportions:

(A) At least eighty per cent of the total acreage is sought to be designated as important agricultural land; and

(B) The remainder of the acreage is sought to be reclassified to the rural, urban, or conservation district.

[~~(b)~~] (c) The petition for declaratory [~~ruling~~] order shall be submitted in accordance with subchapter 14 of the commission's rules and shall include:

(1) Tax map [~~keys~~] key numbers of the land to be designated as important agricultural lands and, if applicable, the land to be reclassified from the agricultural district to the rural, urban, or conservation district, along with verification and authorization from the applicable landowners;

(2) Proof of qualification for designation as important agricultural lands under section 205-44, respecting a regional perspective; [~~and~~]

(3) The current or planned agricultural use of the area sought to be designated[.] as important agricultural lands; and

(4) If applicable, the current or planned use of the area sought to be reclassified to the rural, urban, or conservation district.

[~~(c)~~] (d) The commission shall review the petition and the accompanying submissions to evaluate the qualifications of the land for designation as important agricultural lands in accordance with section 205-44.

If the petition also seeks the reclassification of land to the rural, urban, or conservation district, the commission shall review the petition and accompanying submissions to evaluate:

(1) The suitability of the land for the reclassification in accordance with section 205-2;

(2) The consistency of the reclassification with the relevant county general and development plans; and

(3) Compliance with the other provisions of subsection (b).

If the commission, after its review [~~and evaluation~~], finds that the [~~lands qualify for~~] designation [~~as important agricultural lands under this part,~~] and, if applicable, reclassification sought in the petition should be approved, the commission shall vote, by a two-thirds majority of the members of the commission, to issue a declaratory order designating the petitioner's identified lands as important agricultural lands[.] and, if applicable, reclassifying the petitioner's identified land from the agricultural district to the rural, urban, or conservation district.

With respect to a petition that seeks to both designate important agricultural lands and reclassify agricultural lands to the rural, urban, or conservation district, if the commission finds that either the designation or reclassification as proposed by the petitioner should not be approved, the commission shall deny the petition in its entirety.

[~~(d) Designating important agricultural lands by the commission~~] (e) The designation or reclassification of land pursuant to subsection (a) or (b) shall not be [~~considered as an amendment to district boundaries under~~] subject to the district boundary amendment procedures of sections 205-3.1 and 205-4 or become effective prior to legislative enactment of protection and incentive measures for important agricultural land and agricultural viability, as provided in section 9 of Act 183, Session Laws of Hawaii 2005.

[~~(e)~~] (f) Farmers or landowners with lands qualifying under section 205-44 may file petitions for a declaratory [~~ruling~~] order to designate lands as important agricultural lands following 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.

(g) A petitioner granted a declaratory order that designates important agricultural land, whether or not combined with the reclassification of land to the rural, urban, or conservation district, shall earn credits if the amount of land reclassified to the rural, urban, or conservation district is less than twenty per cent of the total acreage of land subject to the order. The "total acreage of land subject to the order" means the total acreage designated as important agricultural land and, if applicable, reclassified to the rural, urban, or conservation district by the declaratory order.

The credits shall equal the difference between the following, rounded to the nearer tenth of an acre:

(1) The number that is twenty per cent of the total acreage of land subject to the order; and

(2) Less the amount of the petitioner's land that is reclassified from the agricultural district to the rural, urban, or conservation district by the declaratory order.

In the future, a petitioner with credits earned within a county may petition the commission for a declaratory order to reclassify any of the petitioner's other land in the same county from the agricultural district to the rural, urban, or conservation district. The "petitioner's other land in the same county" means land owned by the petitioner that is in the same county as the land designated or reclassified under the petition. The commission may issue the declaratory order if it finds that the land is suitable for reclassification in accordance with section 205-2 and that the reclassification is consistent with the relevant county general and development plans. The petitioner may petition for such reclassification until all of the petitioner's credits are exhausted.

A petitioner with unused credits may transfer the credits to another person at no charge or for compensation mutually agreed upon. The person receiving the unused credits may petition the commission for a declaratory order to reclassify the person's land from the agricultural district to the rural, urban, or conservation district, subject to the same provisions applicable to the petitioner who transferred the credits.

(h) Notwithstanding any other law to the contrary, the land use commission may grant declaratory orders pursuant to this section before the commission receives from any county a map delineating recommended important agricultural lands.

(i) The commission may adopt rules pursuant to chapter 91 to effectuate this section."

SECTION 8. Section 205-50, Hawaii Revised Statutes, is amended by amending subsection (c) to read:

"(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~~] 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[.]; and

(6) Whether the important agricultural land was designated as such by a declaratory order issued under section 205‑45."

SECTION 9. The legislature declares that this Act establishes incentives for the designation of important agricultural land in satisfaction of section 205-46, Hawaii Revised Statutes, and section 9 of Act 183, Session Laws of Hawaii 2005.

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

SECTION 11. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	546
TWENTY-FOURTH LEGISLATURE, 2007		S.D. 2
STATE OF HAWAII		H.D. 1