SB2274.DOC

SECTION 1. The legislature finds that populations are increasing while resources are decreasing. The result is a need for more sustainable and environmentally appropriate living. Sustainable and environmentally appropriate living is presently inhibited due to zoning regulations that control and regulate conventional development. Some innovations for more sustainable development can only be researched and tested from outside the confines of our existing mechanisms.

On March 15, 2007, New Mexico's governor signed into the law the Sustainable Development Test Site Act that allows counties throughout the state to "define a new category of rules" that apply to approved sustainable development sites. Taos county, for example, is issuing permits for sites to conduct sustainable development research that would otherwise be restricted due to ordinances that apply to conventional development.

Similarly, this Act allows and encourages privately or otherwise funded sustainable projects within a county to research new low-impact ways of living without the limitations imposed by traditional codes and ordinances. This Act allows permittees, at designated sites within agricultural and rural districts in Hawaii, to receive exemptions from certain codes for experimental purposes. Under this Act, applicants for permits must provide detailed descriptions of the research to be conducted at the sites as well as annual status reports of research activities. This Act enables the construction of ecovillages, an innovation that is rapidly developing nationwide and internationally, which are not permitted uses under Hawaii's current laws.

The short-range goal of sustainable research sites is to develop sustainable resources and practices such as community resource sharing, natural or recycled building materials, thermal and solar heating or cooling systems, renewable power generation, water harvesting, contained sewage treatment systems, and food production. The long-term goal of these sites is to develop research that will contribute to emergency preparedness development in Hawaii and to further the intentions of the Hawaii 2050 sustainability plan.

The five principles outlined by the Hawaii 2050 sustainability plan created by the Hawaii 2050 task force pursuant to Act 8, Special Session Laws of Hawaii 2005, are integrated philosophies that express the sustainable future of Hawaii and are aligned with the purposes of this Act. These five principles are as follows:

(1) Living sustainably is part of daily practice in Hawaii;

(2) Hawaii's diversified and globally competitive economy enables its residents to meaningfully live, work, and play in Hawaii;

(3) Hawaii's natural resources are responsibly and respectfully used, replenished, and preserved for future generations;

(4) Hawaii's community is strong, healthy, vibrant, and nurturing and provides safety nets for those in need; and

(5) Hawaii's kanaka maoli and island cultures and values are thriving and perpetuated.

Therefore, this Act will promote the Hawaii 2050 sustainability plan and ensure the development of innovative, responsible, and sustainable practices that are vital to Hawaii's future.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

SUSTAINABLE LIVING RESEARCH ACT

§ ‑1 Short title. This chapter shall be known and may be cited as the Sustainable Living Research Act.

§ ‑2 Definitions. As used in this chapter:

"Permittee" means a person who holds a sustainable living research permit.

"Planning commission" means a county planning commission.

"Planning department" means a county planning department.

"Sustainable living" means a live-in environment composed of structures and systems that inherently produce utilities and life-support systems that conserve resources and may include:

(1) The provision of on-site energy needs via renewable resources;

(2) The provision of water needs while minimizing the withdrawals from ground water and surface water systems in accordance with county and state water law and the rules and policies of the county and state engineers;

(3) The provision of sewage treatment needs with minimal discharge;

(4) The reuse of materials discarded by modern society;

(5) The development of organic foods;

(6) The development of renewable fuel; and

(7) The development and testing of shared living situations.

"Sustainable living research" means activities conducted at a sustainable living research site that test ideas, concepts, or inventions designed to promote sustainable living.

"Sustainable living research permit" means a permit issued by the planning department that designates an area as a sustainable living research site and specifies:

(1) The sustainable living research that can be conducted within the site by the permittee; and

(2) The county codes, ordinances, rules, or permits that are not applicable to the permittee and the research.

"Sustainable living research site" means an area that is:

(1) Greater than one acre but less than fifteen acres;

(2) Built with thirty foot setbacks from adjacent properties;

(3) Located within a county with a population of at least 100,000 and less than 500,000;

(4) Subject to a sustainable living research site permit issued by the planning department; and

(5) Subject to federal laws and regulations.

§ ‑3 Application for sustainable living research permit; evaluation. (a) A person desiring a sustainable living research permit shall submit an application to the planning department for the county in which the proposed sustainable living research site is located. The application shall include:

(1) A detailed description of the sustainable living research that will be conducted on the sustainable living research site, including an explanation of the ideas, concepts, and inventions that will be tested;

(2) A site plan of the sustainable living research site;

(3) The number of inhabitants and employees that are expected to occupy the sustainable living research site;

(4) An assessment of the county codes, ordinances, rules, or permits relating to construction or building requirements, occupancy, zoning, or subdivisions that are not practicable for the specific sustainable living research site and that may inhibit the proposed sustainable living research;

(5) An application fee, if any, set by the planning department;

(6) Other information as may be required by conditions adopted pursuant to section ‑6, rules adopted by the planning department or planning commission, or county ordinance;

(7) Copies of all required state permits, including the approval of the wastewater treatment and disposal technology on an experimental basis; and

(8) An affidavit indemnifying the county and State from liabilities relating to the building exemptions.

An application is complete upon submission of all of the above items to the planning department.

(b) Within ten days of receipt of a complete application, the planning department shall forward a copy of the application to the department of health. Upon the department of health's receipt of the application, the department of health shall have thirty days to submit comments to the planning department regarding the proposed sustainable living research site and to make a determination as to whether the sustainable living research proposed to be conducted will have a detrimental environmental impact on the proposed sustainable living research site or the surrounding area; provided that any proposed sustainable living research that is subject to chapter 343 shall meet the requirements of that chapter. During the review of the application, the department of health shall also determine whether it is appropriate to grant the applicant a waiver of its regulations pertaining to composting toilets and greywater systems, including its regulations pertaining to individual wastewater systems on agricultural land, and to approve an applicant's self designed, innovative, or otherwise not yet approved systems. The department of health may grant a waiver if it finds that the proposed system will not have a detrimental impact upon human health or environment.

§ ‑4 Application review; decision; permit. (a) Following the application review, the planning department shall issue its decision in writing. The planning department shall issue a sustainable living research permit if:

(1) The department of health has determined that the sustainable living research proposed to be conducted will not have a detrimental environmental impact on the proposed sustainable living research site or the surrounding area;

(2) No existing county codes, ordinances, rules, or permits relating to construction or building requirements, occupancy, zoning, or subdivisions, other than those identified in the application, will be violated by the proposed sustainable living research at the site;

(3) The applicant has complied with applicable rules and conditions adopted pursuant to section ‑6 and chapter 91, if any; and

(4) The proposed sustainable living research at the site may be beneficial to the development of sustainable living.

(b) A sustainable living research permit shall include:

(1) The specific sustainable living research that may be conducted at the sustainable living research site;

(2) The maximum number of structures that may be constructed;

(3) The maximum number of individuals that may inhabit the sustainable living research site;

(4) The specific county codes, ordinances, rules, and permits relating to construction or building requirements, occupancy, zoning, or subdivisions otherwise applicable to the permittee and the permittee's sustainable living research on the site, but that do not apply to the permittee and sustainable living research conducted pursuant to the permit;

(5) Other restrictions on the sustainable living research site and the permittee's activities as required by rules adopted pursuant to section ‑6 and chapter 91, if any; and

(6) Reasonable modifications and conditions imposed by the planning department, if any.

(c) The sustainable living research permit shall be filed and recorded in the office of the county clerk. Pursuant to this chapter, all the benefits and burdens of the permit shall run with the land.

(d) The planning department shall approve or deny an application for a sustainable living research permit within ninety days of its receipt of a complete application. This deadline may be extended upon mutual agreement of the applicant and the planning department.

(e) If the planning department denies an application for a sustainable living research permit or fails to rule on an application within ninety days after the complete application is submitted, the applicant may appeal the planning department's decision or failure to rule to the appropriate planning commission within thirty days.

§ ‑5 Sustainable living research permitted; enforcement. (a) The permittee, when conducting sustainable living research that is specified in the sustainable living research permit, shall comply with all applicable laws and rules except those county codes, ordinances, rules, or permits specified in the permit as inapplicable to the permittee and the research.

(b) Nothing in this chapter or the sustainable living research permit shall be deemed to allow the permittee to appropriate or otherwise use underground or surface water without first obtaining a water rights permit or approval if otherwise required pursuant to chapter 174C. New appropriations of water and water rights transfers shall in no event be exempted from state water law and rules.

(c) Nothing in this chapter or the sustainable living research permit shall be deemed to allow the permittee to avoid preparing an environmental assessment or environmental impact statement where such statement or assessment is otherwise required by law.

(d) Relevant employees and agents of the State or the county, at all reasonable times and with reasonable notice, may enter the sustainable living research site for the purpose of inspecting the site and activities conducted on the site to ensure that conditions specified in the sustainable living research permit are being met.

(e) The permittee shall annually submit a report to the planning department describing the sustainable living research and activities conducted during the preceding twelve months and summarizing the research findings. All information contained in the report and all other information learned from activities pursuant to the sustainable living research permit shall be made available to the public.

(f) The planning commission may revoke the sustainable living research permit if it finds, after a public hearing, that the permittee has substantially violated a sustainable living research permit provision, this chapter, an applicable rule adopted pursuant to this chapter or chapter 91, and has failed to correct the violation within thirty days of notification of the violation.

(g) A permittee may apply to have a sustainable living research permit amended by submitting a new application pursuant to section ‑3. If the planning department determines that the proposed amendment will substantially alter the sustainable living research or other activities conducted at the sustainable living research site and does not approve those changes, the permittee may appeal that decision to the appropriate planning commission within thirty days.

§ ‑6 Adoption of conditions. The planning department may include, as part of the permit issued pursuant to this chapter, special rules and conditions that are consistent with the purpose and provisions of this chapter and other applicable laws and policies. If the applicant is not in agreement with any special rules and conditions imposed by the planning department, the applicant may appeal to the appropriate planning commission.

§ ‑7 Rules. No later than June 30, 2015, the planning department of each county shall adopt rules pursuant to chapter 91 to implement the requirements of this chapter."

SECTION 3. Section 205-2, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) to read as follows:

"(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 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 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.

In addition to the uses listed in this subsection, rural districts shall include [~~geothermal~~] as permissible uses:

(1) Geothermal resources exploration and geothermal resources development, as defined under section 182‑1[~~, as permissible uses.~~]; and

(2) Sustainable living research sites pursuant to chapter .

(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)(16), for public, private, and commercial use;

(6) Solar energy facilities; provided that:

(A) 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 B, C, D, or E; and

(B) Solar energy facilities placed within land with soil classified as overall productivity rating class B or C shall not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser;

(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, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, agricultural-energy facilities as defined in section 205-4.5(a)(17), vehicle and equipment storage areas, 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;

(12) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;

(13) Open area recreational facilities;

[[](14)[]]Geothermal resources exploration and geothermal resources development, as defined under section 182-1; [~~and~~]

[[](15)[]]Agricultural-based commercial operations, including:

(A) A roadside stand that is not an enclosed structure, owned and operated by a producer for the display and sale of agricultural products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii;

(B) Retail activities in an enclosed structure owned and operated by a producer for the display and sale of agricultural products grown in Hawaii, value-added products that were produced using agricultural products grown in Hawaii, logo items related to the producer's agricultural operations, and other food items; and

(C) A retail food establishment owned and operated by a producer and permitted under [[]title 11,[]] chapter 12 of the rules of the department of health that prepares and serves food at retail using products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii.

The owner of an agricultural-based commercial operation shall certify, upon request of an officer or agent charged with enforcement of this chapter under section 205-12, that the agricultural products displayed or sold by the operation meet the requirements of this paragraph[.]; and

(16) Sustainable living research sites pursuant to chapter .

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 4. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) 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 crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;

(2) Game and fish propagation;

(3) Raising of livestock, including 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 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) Agricultural-based commercial operations as described in section [[]205-2(d)(15)[]];

(10) Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, 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 chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:

(A) The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;

(B) The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or

(C) The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;

(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) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;

(15) 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;

(16) 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 biofuel 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;

(17) Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity. To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise. The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.

As used in this paragraph:

"Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.

"Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.

"Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State.

"Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities;

(18) 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;

(19) Agricultural education programs conducted on a farming operation as defined in section 165-2, for the education and participation of the general public; provided that the agricultural education programs are accessory and secondary to the principal agricultural use of the parcels or lots on which the agricultural education programs are to occur and do not interfere with surrounding farm operations. For the purposes of this section, "agricultural education programs" means activities or events designed to promote knowledge and understanding of agricultural activities and practices conducted on a farming operation as defined in section 165-2;

(20) Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A; [or]

[[](21)[]]Geothermal resources exploration and geothermal resources development, as defined under section 182‑1[.]; or

(22) Sustainable living research sites pursuant to chapter ."

SECTION 5. 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;

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

(5) Geothermal resources exploration and geothermal resources development, as defined under section 182‑1[.]; and

(6) Sustainable living research sites pursuant to chapter .

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

SECTION 7. This Act shall take effect on July 1, 2014.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2274
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII