HOUSE OF REPRESENTATIVES	H.B. NO.	2091
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO LAND USE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1.  The purpose of this Act is to:

(1) Allow agricultural tourism uses and activities, including overnight accommodations for stays of fewer than thirty consecutive days, conducted in conjunction with a bona fide farming operation, in a state agricultural district; and

(2) Ensure that bona fide farming operations that meet statutory criteria would not be required to obtain a special permit pursuant to section 205-6, Hawaii Revised Statutes, for accessory agricultural tourism uses and activities.

Pursuant to this Act, depending on the particular county ordinance, an applicant could apply for a ministerial permit for an agricultural tourism use if the applicant demonstrates that the agricultural income from the farming operation, as defined in section 165-2, Hawaii Revised Statutes, meets or exceeds the minimum income criteria.  Applicants not meeting the bona fide farming operation criteria would not be able to conduct agricultural tourism activities, including overnight accommodations, without obtaining a special permit pursuant to section 205-6, Hawaii Revised Statutes.  The counties would be able to further regulate agricultural tourism activities, including overnight accommodations, through county codes.

SECTION 2.  Section 141-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a)  There is established within the department of agriculture an energy feedstock program that shall:

(1)  Maintain cognizance of actions taken by industry and by federal, state, county, and private agencies in activities relating to the production of energy feedstock, and promote and support worthwhile energy feedstock production activities in the State;

(2)  Serve as an information clearinghouse for energy feedstock production activities;

(3)  Coordinate development projects to investigate and solve biological and technical problems involved in raising selected species with commercial energy generating potential;

(4)  Actively seek federal funding for energy feedstock production activities;

(5)  Undertake activities required to develop and expand the energy feedstock production industry; and

(6)  Perform other functions and activities as may be assigned by law, including monitoring the compliance provisions under section [205-4.5(a)(16).] 205- 4.5(a)(15)."

SECTION 3.  Section 165-2, Hawaii Revised Statutes, is amended by amending the definition of "farming operation" to read as follows:

     ""Farming operation" means a commercial agricultural, silvicultural, or aquacultural facility or pursuit conducted, in whole or in part, including the care and production of livestock and livestock products, poultry and poultry products, apiary products, and plant and animal production for nonfood uses; the planting, cultivating, harvesting, and processing of crops; and the farming or ranching of any plant or animal species in a controlled salt, brackish, or freshwater environment.

"Farming operation" includes but shall not be limited to:

(1) Agricultural-based commercial operations as described in section [[205-2(d)(15)];] 205-2(d)(14);

(2) Noises, odors, dust, and fumes emanating from a commercial agricultural or an aquacultural facility or pursuit;

(3) Operation of machinery and irrigation pumps;

(4) Ground and aerial seeding and spraying;

(5) The application of chemical fertilizers, conditioners, insecticides, pesticides, and herbicides; and

(6) The employment and use of labor.

A farming operation that conducts processing operations or salt, brackish, or freshwater aquaculture operations on land that is zoned for industrial, commercial, or other nonagricultural use shall not, by reason of that zoning, fall beyond the scope of this definition; provided that those processing operations form an integral part of operations that otherwise meet the requirements of this definition."

SECTION 4.  Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(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),] 205-4.5(a)(15), 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, unless a special use permit is granted pursuant to section 205-6;

(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),] 205-4.5(a)(16), hydroelectric facilities in accordance with section [205-4.5(a)(23),] 205-4.5(a)(22), 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 uses or activities, including overnight accommodations for stays of fewer than thirty consecutive days, conducted [on a working farm, or a] in conjunction with a bona fide farming operation [as defined in section 165-2, for the enjoyment, education, or involvement of visitors]; provided that the agricultural tourism use or activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding bona fide 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;]

an agricultural tourism use or activity shall not be permissible in the absence of bona fide farming operations and the agricultural tourism use or activity shall terminate upon cessation of the bona fide farming operation's agricultural activity.  For the purposes of this paragraph, "bona fide farming operation" means a farming operation as defined in section 165-2 that meets the minimum criteria and standards set forth below and any additional criteria and standards adopted by county ordinance pursuant to section 205-5(b):

(A) That has been in operation for not less than two years;

(B) The majority of annual gross income shall be from the sale of agricultural products grown or raised by the farming operation on the property to be used for agricultural tourism; provided that compliance shall be evidenced by federal tax forms that show profit or loss from farming and state general excise tax forms, a notarized affidavit, or such other proof as the county may require, and

(C) That has annual gross sales of agricultural products grown or raised on the subject property for a minimum of two of the preceding five years of no less than:

(i) $35,000 if the agricultural tourism uses or activities require permanent enclosed structures or include overnight accommodations; or

(ii) $10,000 if the agricultural tourism uses or activities do not require permanent enclosed structures and do not include overnight accommodations;

  [(13)] (12) Open area recreational facilities;

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

  [(15)] (14) 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.

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 5.  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 and for solar energy facilities, class B or C, 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);] 205-2(d)(14);

(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;] uses or activities, as provided in section 205-2(d)(11);

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

  [(16)] (15)  Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuel 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)] (16)  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)] (17)  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)] (18)  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)] (19)  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 or for which a special use permit is granted pursuant to section 205-6; 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 unless the solar energy facilities are:

         (A)  Located on a paved or unpaved road in existence as of December 31, 2013, and the parcel of land upon which the paved or unpaved road is located has a valid county agriculture tax dedication status or a valid agricultural conservation easement;

          (B)  Placed in a manner that still allows vehicular traffic to use the road; and

          (C)  Granted a special use permit by the commission pursuant to section 205-6;

  [(21)] (20)  Solar energy facilities on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating B or C for which a special use permit is granted pursuant to section 205-6; provided that:

(A)  The area occupied by the solar energy facilities is also made available for compatible agricultural activities at a lease rate that is at least fifty per cent below the fair market rent for comparable properties;

(B)  Proof of financial security to decommission the facility is provided to the satisfaction of the appropriate county planning commission prior to date of commencement of commercial generation; and

(C)  Solar energy facilities shall be decommissioned at the owner's expense according to the following requirements:

(i)  Removal of all equipment related to the solar energy facility within twelve months of the conclusion of operation or useful life; and

(ii)  Restoration of the disturbed earth to substantially the same physical condition as existed prior to the development of the solar energy facility.

For the purposes of this paragraph, "agricultural activities" means the activities described in paragraphs (1) to (3);

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

  [(23)] (22)  Hydroelectric facilities, including the appurtenances associated with the production and transmission of hydroelectric energy, subject to section 205-2; provided that the hydroelectric facilities and their appurtenances:

(A)  Have a hydroelectric generating capacity of not more than five hundred kilowatts;

(B)  Comply with the state water code, chapter 174C;

(C)  Are accessory to agricultural activities on agricultural land for agricultural use only; and

(D)  Do not adversely impact or impede the use of agricultural land or the availability of surface or ground water for all uses on all parcels that are served by the ground water sources or streams for which hydroelectric facilities are considered."

SECTION 6.  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.  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;

(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.]  A county may adopt procedures and more restrictive standards and requirements for permitting and regulating agricultural tourism uses and activities, including more restrictive income criteria and proof of bona fide farming operations.  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."

     SECTION 7.  Each county may adopt interim rules or ordinances to regulate agricultural tourism uses and activities, to remain in effect until the county has adopted or amended applicable county codes to conform to this Act.

SECTION 8.  This Act shall not invalidate a lawful permit for an agricultural tourism use and activity including overnight accommodations, on lands in the agricultural district in effect on or before the effective date of this Act.

SECTION 9.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

SECTION 10.  This Act shall take effect on July 1, 2016; provided that the amendments made to section 205-4.5(a), Hawaii Revised Statutes, by section 5 of this Act shall not be repealed when section 205-4.5, Hawaii Revised Statutes, is reenacted on June 30, 2019, pursuant to section 3 of Act 52, Session Laws of Hawaii 2014.

INTRODUCED BY:

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Report Title:

Agricultural Tourism; Agricultural District Lands; Bona Fide Farming Operation

Description:

Permits agricultural tourism uses and activities, including overnight accommodations, in conjunction with bona fide farming operations on agricultural district lands statewide and establishes operational and income requirements.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.