SB546 SD2

PART I

SECTION 1. Article XI, section 3 of the Hawaii State Constitution provides, among other things, that "the State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands."

The legislature finds that in the recent past, hundreds of acres of agricultural land have been converted into developments that feature homes without agricultural activity, agribusiness, or subsistence farming. No meaningful agricultural activity takes place on these residential lands even though these types of developments are labeled as agricultural subdivisions. The legislature further finds that loss of agricultural lands results in a loss of the State's ability to develop sustainable agricultural productivity that could increase food and fuel self-sufficiency for Hawaii residents.

The purpose of this part is to comply with the mandate of Article XI, section 3 of the Hawaii State Constitution to protect the State's agricultural lands by requiring that agricultural land be only used for the purposes of agricultural activities, agribusiness, or subsistence farming.

SECTION 2. Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

"§205-4.5 Permissible uses within the agricultural districts. (a) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be restricted to the following permitted uses:

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

(2) Game and fish propagation;

(3) Raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for economic or [~~personal~~] subsistence 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,~~] agricultural activities, agribusiness, or subsistence farming, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

(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; or

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

(b) Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in sections 205-6 and 205-8, and construction of single-family dwellings on lots existing before June 4, 1976. Any other law to the contrary notwithstanding, no subdivision of land within the agricultural district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be approved by a county unless 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~~] exclusively in pursuit of [an] agricultural activity[.], agribusiness, or subsistence farming.

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~~] if 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.

(c) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b).

(d) Notwithstanding any other provision of this chapter to the contrary, golf courses and golf driving ranges approved by a county before July 1, 2005, for development within the agricultural district shall be permitted uses within the agricultural district.

(e) Notwithstanding any other provision of this chapter to the contrary, plantation community subdivisions as defined in this section shall be permitted uses within the agricultural district, and section 205-8 shall not apply.

[[](f)[]] Notwithstanding any other law to the contrary, agricultural lands may be subdivided and leased for the agricultural uses or activities permitted in subsection (a); provided that:

(1) The principal use of the leased land is [~~agriculture;~~] for agricultural activities, agribusiness, or subsistence farming;

(2) No permanent or temporary dwellings or farm dwellings, including trailers and campers, are constructed on the leased area. This restriction shall not prohibit the construction of storage sheds, equipment sheds, or other structures appropriate to the agricultural activity carried on within the lot; and

(3) The lease term for a subdivided lot shall be for at least as long as the greater of:

(A) The minimum real property tax agricultural dedication period of the county in which the subdivided lot is located; or

(B) Five years.

Lots created and leased pursuant to this section shall be legal lots of record for mortgage lending purposes and shall be exempt from county subdivision standards.

(g) For the purposes of this section, the following shall apply:

"Agricultural activity" means any of the permitted uses described under section 205-4.5.

"Agribusiness" means a business licensed for the production and sale of products produced from the cultivation, propagation, and raising activities defined as agricultural activity.

"Subsistence farming" means the method of horticulture and cultural practices described under section 205-2(d) in which a parcel of land produces only enough food to feed the family working it. De minimis agriculture is not evidence of subsistence farming.

(h) This section shall not apply to development of any land within the agricultural district which has not been approved by the respective counties as of July 1, 2007."

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

"(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 shall adopt ordinances 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 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 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 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,~~] five acres, 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~~] that is equal to or exceeds the minimum lot size of [~~one acre~~] five acres 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 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 4. Section 205-6, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(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[.]; provided that this use is not otherwise prohibited by section 205-2 or 205-4.5(b). 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. 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."

2. By amending subsection (c) to read:

"(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 agricultural lands or 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."

PART II

SECTION 5. The legislature finds that amendments the land use laws will create a more viable rural district that can absorb development pressures currently directed at the agricultural district. Agricultural viability is threatened by increased agricultural land values and nuisance complaints regarding the agricultural activities of agricultural producers.

The purpose of this part is to clarify the intent and policies for the rural district as necessary to ensure that both the rural and agricultural districts function appropriately.

SECTION 6. Section 205-2, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(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~~] one acre and a minimum lot size of not less than [~~one-half~~] one acre shall be included, except as herein provided[;]. Areas of land suitable for agriculture and other uses requiring limited physical infrastructure development and services, including low density residential uses, outdoor recreational uses, and passive open space uses that may also serve as a buffer to productive agricultural land or conservation resources areas, shall be included. The rural district may also include compact, small mixed-use rural towns and service centers;

(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] or community and development plans adopted by the county."

2. By amending subsection (c) to read:

"(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~~] one 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~~] one acre, but not less than [~~18,500~~] 37,000 square feet, or an equivalent residential density, within a rural subdivision and permit the construction of one dwelling on [~~such~~] the lot, provided that all other dwellings in the subdivision shall have a minimum lot size of [~~one-half~~] one acre or [~~21,780~~] 43,400 square feet. [~~Such~~] A petition for a variance may be processed under the special permit procedure. The clustering of dwelling houses may be permitted but shall not diminish the maximum density per one-acre requirement established under this subsection. 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. Rural districts shall also include golf courses, golf driving ranges, and golf-related facilities.

The rural district may also be characterized by a regional land use pattern of farmland, contiguous open space and natural areas, mixed-use rural towns or rural service center, low-density residential settlements, and outdoor recreational areas. Rural district lands may serve to spatially separate urban settlements from agricultural, preservation, or conservation landscapes to protect these resources and to mitigate land use conflicts and nuisances. The rural district may also include contiguous areas that are not suited to physical development because of topography, soils, unique conservation values, or other related characteristics."

SECTION 7. 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;

(2) Agricultural uses;

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

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

(5) A range of uses that support rural economic activities, rural settlements, and open space, including but not limited to:

(A) Agricultural support services and processing;

(B) Cottage or craft industries;

(D) Outdoor recreational uses;

(E) Forestry;

(F) Passive open space; and

(G) Conservation areas.

A rural village or service center shall be physically compact with a well-defined edge, characterized by a core area having a mix of residential uses, public and commercial services, and economic activities. Physical development within a rural village or service center shall be compatible with the scale, historic character, and physical form of existing rural centers.

In addition, the minimum lot size for any low density residential use shall be [~~one-half~~] one acre and there shall be but one dwelling house per [~~one-half~~] one acre, except as provided for in section 205-2."

SECTION 8. The lawful use of land or buildings on the effective date of this Act may be continued although the use does not conform to this Act; provided that no nonconforming use of land shall be expanded or changed to another nonconforming use. If any nonconforming use of land is discontinued, then the provisions of this Act shall apply.

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

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