HB1048 HD1.DOC

SECTION 1. The legislature finds that the State's agricultural and rural areas have significant value, both economically and as open space, to Hawaii's residents and visitors. However, the state land use system does not currently promote rural and agricultural land use patterns and development practices that protect the open space character and historic form of Hawaii's rural communities and agricultural lands.

The state rural land use district offers an important tool for accommodating appropriately-scaled, non-agricultural rural uses such as recreational uses, the siting of agricultural support activities, and buffering agricultural and conservation district lands from urban land uses. With less than one per cent of all lands in the state classified in the rural land use district, the rural district is an underused tool in the statewide land use management system.

The purpose of this Act is to amend the rural district policies and standards to enable the rural district to play a stronger role in preserving the State's agricultural lands and rural areas as permanent features of Hawaii's landscape. This Act provides broad policy and performance standards that will expand the counties' ability to plan and manage land use in rural areas while providing flexibility for accommodating rural development and rural economic opportunities within the rural landscape.

The legislature believes these amendments will allow the rural district to absorb development pressures that are currently directed at the agricultural district, threatening agricultural viability by increasing agricultural land values and nuisance complaints for agricultural producers.

SECTION 2. Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§46- Policies, standards, and procedures for land use and development in rural districts. Each county by ordinance shall establish the policies, standards, and procedures for the use and development of land in rural districts, as classified in chapter 205 and the orders and rules promulgated by the commission, including:

(1) Permitted uses of land;

(2) Allowable density and lot size; and

(3) Standards for required infrastructure systems."

SECTION 3. Chapter 205, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§205-A Regional district boundary amendment petitions by counties; public hearing requirement. (a) Any county may petition the commission for a regional boundary amendment for a reclassification of land that conforms to the county general plans, and county development and community plans.

(b) At least one hearing shall be held in the county in which the regional district boundary amendment is being proposed prior to the final adoption of the amendment. Maps showing the proposed district boundaries shall be prepared by the commission prior to the hearing. Notice of the hearing shall be given as provided in section 205-4.

(c) Interested landowners, lessees, officials, agencies, and individuals may appear at the hearing to testify. They shall be allowed at least fifteen days following the final hearing to file with the commission a written protest or other comments or recommendations. The district boundary shall be adopted in final form not more than ninety days nor less than forty-five days after the last hearing. The commission shall prepare and submit to the county and the office of planning copies of the classification maps showing the district boundaries adopted in final form.

§205-B Permissible uses within the urban districts. Within the urban district, all lands shall be restricted to the activities or uses permitted by county ordinance or regulation within which the urban district is situated pursuant to the master plan or general plan of the county.

§205-C Permissible uses within the rural districts. Within the rural district, all lands shall be restricted to the activities or uses permitted by county ordinance or regulation within which the rural district is situated pursuant to the master plan or general plan of the county; provided that the activities and uses are consistent with section 205-2(c)."

SECTION 4. Section 205-2, Hawaii Revised Statutes, is amended to read as follows:

"§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)~~] (b) In the establishment of boundaries of urban districts, the commission shall include:

(1) [~~those~~] Those lands that are now in urban use; and

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

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

(1) [~~areas~~] Areas of land composed primarily of ranches and small farms;

(2) Low-density residential lots and residential subdivisions on agricultural lands existing before January 1, 2009;

(3) Areas to preserve and maintain natural landscapes and vistas, open space, and the rural character of the area;

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

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

~~(3)~~] (d) 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)~~] (e) In the establishment of the boundaries of conservation districts, the commission shall include lands where the greatest possible protection shall be given to valuable natural resources including:

(1) Watersheds and water sources;

(2) Indigenous or endemic plants, fish and wildlife, including those that are threatened or endangered;

(3) Park lands, wilderness, and beach reserves;

(4) Shoreline and coastal resources;

(5) Native forests and other forested areas;

(6) Wetlands, natural streams, and lakes;

(7) Scenic, historic, archaeological, and cultural areas; and

(8) Recreational resources and areas highly susceptible to erosion, landslides, flooding, volcanic hazards, and other conditions that may threaten lives or property.

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. Areas not suited to agricultural activities by reason of topography or other characteristics may be included in conservation districts.

(f) 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.

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

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

~~(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)~~ Solar energy facilities; provided that this paragraph shall apply only to land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class D or E;

~~(7)~~ 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, regardless of whether conducted on the same premises as the agricultural activities to which they are accessory, including farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, agricultural-energy facilities as defined in section 205-4.5(a)(16), 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);

~~(8)~~ ~~Wind machines and wind farms;~~

~~(9)~~ 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;

~~(10)~~ ~~Agricultural parks;~~

~~(11)~~ 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

~~(12)~~ ~~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.

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

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

"§205-5 Zoning. (a) Except as [~~herein~~] provided[,] in this chapter, the powers granted to counties under section 46-4 shall govern the zoning within the urban, rural, and agricultural districts[~~, other than in conservation districts~~]. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.

(b) Within agricultural districts, uses compatible [to] with the activities described in [~~section~~] sections 205‑2 and 205-4.5 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, 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~~] use is improved, the county may allow lot sizes of less than the minimum lot size as specified by law for lots created by a consolidation of existing lots within an agricultural district and the resubdivision thereof; provided that the consolidation and resubdivision do not result in an increase in the number of lots over the number existing prior to consolidation; and provided further that in no event shall a lot which is equal to or exceeds the minimum lot size of one acre be less than that minimum after the consolidation and resubdivision action. The county may also allow lot sizes of less than the minimum lot size as specified by law for lots created or used for 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.

[~~(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.~~

~~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 6. Section 205-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within the agricultural [~~and rural districts~~] district 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,~~] a use other than a use permitted under sections 205-2(d) and 205-4.5, 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."

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

"§205-8 Nonconforming uses[.], structures, or lot sizes in the rural and agricultural districts. (a) The lawful use of land or buildings existing on the date of establishment of any interim agricultural district and rural district in final form may be continued although the use, including lot size, does not conform to this chapter; provided that no nonconforming building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use. In addition, if any nonconforming use of land or building is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited.

(b) A lawful use or structure made nonconforming by an amendment to this chapter may be continued as a legal nonconforming use or structure; provided that no legal nonconforming use or structure shall be replaced, reconstructed, or enlarged or changed to another nonconforming use, except as provided by county ordinance adopted pursuant to section 46-4(a).

(c) A legal lot of record approved by a county before the effective date of an amendment to this chapter that renders the lot size or dwelling unit density of the lot nonconforming, may be used; provided that:

(1) The proposed use shall be subject to county review and decision-making pursuant to subsection (d);

(2) No additional nonconforming lot shall be created from the existing lot of record; and

(3) If two or more contiguous lots are under the same ownership, the lots shall be subject to the minimum lot size or maximum density standards of this chapter, and any nonconforming lot shall not be considered as a separate parcel of land for the purposes of sale or development and shall be combined to create one or more conforming lots.

(d) Each county may adopt, by ordinance, procedures for the use of dwelling unit density of a legal nonconforming lot that exceeds the maximum density for the rural and agricultural districts set forth in this chapter; provided that, for the purposes of this section, "dwelling unit density" shall mean the number of dwelling units permitted by the underlying county zoning on the effective date of an act that renders the allowable lot density nonconforming. The county may adopt a cap on the total amount of density that is allowed in excess of the district density standards of this chapter. Except as provided in section 205-A(c)(3), the additional dwelling units or density credits from legal nonconforming lots may be permitted, as determined by the county, only as follows:

(1) In projects in the urban district;

(2) In existing or new rural centers as defined and designated by the county in an adopted county general, community, or development plan;

(3) In projects that cluster dwelling units and structures on a portion of the property, and preserve no less than fifty per cent of the remainder of the property as contiguous open lands for agricultural use or open space; or

(4) Through a county variance procedure, which allows the county to balance the higher density proposed with the protection and preservation of rural character and long-term use of rural and agricultural lands."

SECTION 8. This Act shall not invalidate county zoning in effect on the effective date of this Act, and all county ordinances and rules applicable to the underlying county zoning shall remain in full force and effect. The lawful use of land or buildings and legal lots of record existing in the rural or agricultural district on the effective date of this Act may be continued; provided that any proposed use of an existing lot of record that would exceed the maximum density allowed for the land use district shall be subject to county review and decision-making as provided in section 7 of this Act.

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. In codifying the new sections added by section 3 and referenced in section 6 of this Act, the revisor of statutes shall substitute the appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect on July 1, 2009.

HOUSE OF REPRESENTATIVES	H.B. NO.	1048
TWENTY-FIFTH LEGISLATURE, 2009		H.D. 1
STATE OF HAWAII