SB866.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 underutilized 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- Conformance of county land use plans, ordinances, and rules with state land use district policies and standards. County plans, ordinances, and rules governing land use and development adopted pursuant to this chapter shall conform to the policies, uses, standards, and restrictions for the use, subdivision, or development of land in the urban, rural, and agricultural land use districts and for land designated as important agricultural land as set forth in chapter 205. County ordinances shall govern the permitted uses, density and dimensional lot standards, standards for infrastructure systems, and levels of service for county services for lands within the state urban, rural, and agricultural districts subject to the limitations contained in chapter 205."

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 Rural district; objectives and standards. (a) County ordinances and rules that define the policies, standards, and procedures for the use and development of land in the rural district, to include but not be limited to permissible uses, allowable density and lot sizes, standards for physical development, infrastructure, and service levels, and design guidelines for rural development in rural centers and the rural district, shall conform to this chapter.

(b) The minimum lot size and the maximum density of dwelling units in the rural district shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that the dwelling unit density in the rural district shall not exceed one dwelling unit per two acres of gross parcel area and one dwelling unit per lot of record, unless otherwise allowed in this section.

(1) Development within the limits of designated rural centers as described in subsection (e);

(2) Projects that cluster dwelling units and development on a contiguous portion of the project property and preserve no less than fifty per cent of the remainder of the property for agriculture or open space; and

(3) Legal lots of record existing on the effective date of this Act that are less than two acres, subject to county approval pursuant to section 205-8(d).

(d) Uses in the rural district shall be determined solely by the county; provided that:

(1) A range of uses, including agricultural, commercial, residential, industrial, recreational, civic and public facilities, utilities, and open space uses shall be allowed in the rural district; and

(2) The uses allowed shall be of a scale and character distinct from urban uses and consistent with the long-term maintenance of working lands, rural landscapes, and historic rural centers and communities.

(e) Rural centers shall be allowed in the rural district, as designated by the county in an adopted county general, community, or development plan. Rural centers shall be physically compact with a well-defined edge and a core area having a mix of residential uses, public and commercial services, and economic activities. Mixed uses or mixed-use structures on the same lot shall be allowed in rural centers. Physical development within a rural center shall be compatible with the scale, historical character, and physical form of existing rural centers and the surrounding rural landscape.

(f) Each county shall plan and manage land use and development in the rural district to achieve the following objectives:

(1) Long-term preservation of working lands for agriculture, ranching, and forestry;

(2) Avoidance of the fragmentation of working and resource lands and the prevention of residential sprawl in rural areas;

(3) Separation of rural and agricultural uses to buffer them from incompatible or higher-value urban-like uses to:

(A) Avoid nuisance conflicts between rural, agricultural, and urban uses and activities; and

(B) Maintain the affordability of working and resource lands for rural enterprise and rural livelihoods;

(4) Compact land use patterns with growth directed to rural centers and residential clusters, which have well-defined edges that delineate development from the surrounding open space or farm lands;

(5) Maintenance and enhancement of the visual character and form of development in rural areas with respect to architectural style, scale, lot coverage, and materials used, and the retention of the natural and historic features of a site;

(6) Minimal alteration and impairment of natural systems and important land forms from development, in particular, hydrologic systems, natural habitats, and natural features, including scenic vistas, steep slopes and ridges, natural hazard areas, and streams or wetlands;

(7) Preservation of the cultural heritage and resources of Hawaii's rural communities and rural areas;

(8) Rural infrastructure and service level standards that protect rural character, provide basic protection for health and the environment, and do not promote the extension of urban infrastructure and services into less-populated rural areas;

(9) Enhancement and preservation of regional open space through contiguous areas of working lands, natural areas, and open space and connected systems of recreational trails and greenways;

(10) Long-term viability of rural resource-dependent industry, such as agriculture; and

(11) Adoption of land use and housing strategies that ensures long-term affordability of housing for rural residents and rural livelihoods."

SECTION 4. Section 205-2, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) There shall be four major land use districts in which all lands in the State shall be placed: urban, rural, agricultural, and conservation. The land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts. The commission shall set standards for determining the boundaries of each district, provided that:

(1) In the establishment of boundaries of urban districts, those lands that are now in urban use and a sufficient reserve area for foreseeable urban growth shall be included;

(2) In the establishment of boundaries for rural districts, areas of land [composed primarily of small farms mixed with very low density residential lots, which may be shown by a minimum density of not more than one house per one-half acre and a minimum lot size of not less than one-half acre shall be included, except as herein provided;] used for farming, ranching, or forestry, small rural centers providing services and housing for rural industry and residents, very low-density rural residential uses, and open space for recreational or passive use shall be included;

(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.

(b) Urban districts shall include activities or uses as provided by ordinances or [~~regulations~~] rules 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.] provided by ordinances or rules of the county within which the rural district is situated; provided that land use in the rural district conforms to the purposes and intent of the district, which is to:

(1) Protect and enhance the character, economies, and physical form of Hawaii's rural areas and rural communities;

(2) Maintain rural landscapes and working lands for farming, ranching, and forestry as permanent features of Hawaii's island landscapes; and

(3) Minimize residential sprawl and the extension of urban infrastructure into rural areas.

Land use in the rural district shall be characterized by a regional pattern of predominantly open landscapes of farmland, contiguous open space, and natural areas, with small mixed-use rural centers and low-density residential settlements interspersed in the physical landscape, and a level of physical infrastructure and services substantially lower than in urban areas."

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

"§205-5 [~~Zoning.~~] County land use plans, ordinances, and rules; consistency with this chapter; zoning. (a) County land use plans, zoning, and development standards adopted by ordinance or rule shall conform to and implement the objectives, policies, and standards for the land use districts and important agricultural lands set forth in this chapter. 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 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[.]; provided that the use is not prohibited in sections 205-2 and 205-4.5. 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 section added by section 3 and referenced in section 7 of this Act, the revisor of statutes shall substitute the appropriate section number for the letter used in designating the new section 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.

INTRODUCED BY:

_____________________________

By Request

THE SENATE	S.B. NO.	866
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII