Report Title:

Real Estate, Disclosure of Neighboring Agricultural Activity

Description:

Requires instruments of conveyance for reclassified agricultural lands to disclose all remaining agricultural parcels within one thousand feet of the property. (SD1)

THE SENATE

S.B. NO.

1015

TWENTY-THIRD LEGISLATURE, 2005

S.D. 1

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. As land is reclassified from agricultural district to other classifications under the state land use law, residents in newly classified residential parcels may experience problems with the traditional uses that are made on nearby agricultural parcels. For example, the raising of livestock produces odors that those in neighboring residential areas may believe are a nuisance. On the other hand, efforts to eliminate those odors might cause an economic hardship to the farmer.

The legislature finds that incompatible, adjacent uses of land must be resolved in a way that provides for full disclosure of the situation to subsequent owners or occupiers of land.

The purpose of this Act is to require disclosure of reclassification in instruments conveying land that has been reclassified from agricultural to any other land use classification.

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

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

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

(2) Game and fish propagation;

(3) Raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use;

(4) Farm dwellings, employee housing, farm buildings, or activity 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 which 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, or treatment plants, or corporation yards, or other like structures;

(8) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

(9) Roadside stands for the sale of agricultural products grown on the premises;

(10) Buildings and uses, including but not limited to mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the abovementioned uses and are permitted under section 205-2(d);

(11) Agricultural parks; or

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

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

(c) Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition as prescribed in this section, which [restriction and condition] shall be encumbrances running with the land until [such] the time that the land is reclassified to a land use district other than agricultural district.

If the [foregoing] requirement of encumbrances running with the land jeopardizes the owner or lessee from obtaining mortgage financing from any of the mortgage lending agencies [set forth hereinbelow,] and [said] the requirement is the sole reason for failure to obtain mortgage financing, then [such] the requirement of encumbrances [shall], insofar as [such] mortgage financing is [so] jeopardized, shall be conditionally waived by the appropriate county enforcement officer; provided that [such] the conditional waiver shall [thereafter] become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

[The] For purposes of this subsection, the mortgage lending agencies [mentioned hereinabove] are the Federal Housing Administration, Federal National Mortgage Association, Veterans Administration, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns.

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

(e) If land previously classified as part of an agricultural district:

(1) Is conveyed;

(2) Has been reclassified to any other classification; and

(3) Is within one thousand feet of another parcel classified agricultural,

then the deed, lease, agreement of sale, mortgage, or other instrument of conveyance of the conveyed land shall contain information that:

(1) The land is within one thousand feet of another parcel classified as agriculture;

(2) The parcel may be used in ways permitted under chapter 165 and section 205-4.5; and

(3) These uses may result in noise, odor, or other impacts typically associated with these permitted uses."

SECTION 3. Section 508D-1, Hawaii Revised Statutes, is amended by amending the definition of "material fact" to read as follows:

""Material fact" means any fact, defect, or condition, past or present, that would be expected to measurably affect the value to a reasonable person of the residential real property being offered for sale. The disclosure statement shall not be construed as a substitute for any expert inspection, professional advice, or warranty that the buyer may wish to obtain. The term includes disclosure that the residential real property conveyed:

(1) Was previously classified as part of an agricultural district pursuant to chapter 205;

(2) Has been reclassified to any other classification;

(3) Is within one thousand feet of another parcel classified agricultural; and

(4) May be subject to any noise, odor, or other impacts typically associated with uses permitted in the neighboring agricultural parcel pursuant to chapter 165 and section 205-4.5."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on January 1, 2006.