Report Title:

Land use

 

Description:

(1) Sets forth permissible uses on important agricultural lands; 

(2) Requires counties to adopt by ordinance permissible uses and infrastructure standards within rural and urban districts; and

(3) Makes comprehensive amendments to land use law to improve use of rural and agricultural lands.

 

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1901

TWENTY-FOURTH LEGISLATURE, 2007

 

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

"§46-      Permissible uses and infrastructure standards within the rural and urban lands district.  Each county shall establish by ordinance permitted uses of land and standards required for infrastructure systems within rural and urban districts as classified under chapter 205."

SECTION 2.  Chapter 205, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:

"§205-      Permissible uses within lands designated as important agricultural lands. (a)  All lands designated as important agricultural lands shall be restricted to the following permitted uses:

(1)  Cultivation of crops, including but not limited to flowers, vegetables, foliage, fruits, forage, fiber, 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)  Public institutions and buildings that are necessary for agricultural practices;

(5)  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;

(6)  Retention, restoration, rehabilitation, or improvements of sites of historic or cultural importance;

(7)  Roadside stands for the sale of agricultural products grown on the land;

(8)  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 uses permitted in this section and are permitted under section 205-2(d);

(9)  Agricultural parks;

(10) 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; or

(11) Bio-fuels processing facilities; provided that the majority of the feedstock is grown within this state, and alternative energy generating facilities, including the appurtenances associated with the production and transmission of bio-fuels and alternative generated energy; provided further that such facilities and appurtenances are compatible with agricultural uses and cause minimal adverse impact on important agricultural land.

(b)  Uses not expressly permitted in subsection (a) shall be prohibited, except the uses permitted as provided in section 205-8, and construction of single-family dwellings on lots existing before June 4, 1976A single dwelling on not more than one acre shall be permitted for the sole use of the landowner or child of the landowner or for the use of a lessee on leased land that is used by the lessee as a working farm or a farming operation, as defined in section 165-2.  No other uses shall be allowed by special permit on important agricultural lands.

(c)  Any other law to the contrary notwithstanding, land designated as important agricultural lands shall only be subdivided as provided in section 205-4.5(e).  Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision of lands designated important agricultural lands shall expressly contain the restriction on uses, and the conditions contained in this section and the restrictions and conditions shall be encumbrances running with the land until such time that the land is no longer designated as important agricultural lands."

SECTION 3.  Section 46-15, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The mayor of each county, after holding a public hearing on the matter and receiving the approval of the respective council, shall be empowered to designate areas of land for experimental and demonstration housing projects, the purposes of which are to research and develop ideas that would reduce the cost of housing in the State.  Except as hereinafter provided, the experimental and demonstration housing projects shall be exempt from all statutes, ordinances, charter provisions, and rules or regulations of any governmental agency or public utility relating to planning, zoning, construction standards for subdivisions, development and improvement of land, and the construction and sale of homes thereon; provided that the experimental and demonstration housing projects shall not affect the safety standards or tariffs approved by the public utility [commissions] commission for such public utility.

The mayor of each county with the approval of the respective council may designate a county agency or official who shall have the power to review all plans and specifications for the subdivisions, development and improvement of the land involved, and the construction and sale of homes thereon.  The county agency or official shall have the power to approve or disapprove or to make modifications to all or any portion of the plans and specifications.

The county agency or official shall submit preliminary plans and specifications to the legislative body of the respective county for its approval or disapproval.  The final plans and specifications for the project shall be deemed approved by the legislative body if the final plans and specifications do not substantially deviate from the approved preliminary plans and specifications.  The final plans and specifications shall constitute the standards for the particular project.

No action shall be prosecuted or maintained against any county, its officials of employees, on account of actions taken in reviewing, approving, or disapproving such plans and specifications.

Any experimental or demonstration housing project for the purposes hereinabove mentioned may be sponsored by any state or county agency or any persons defined in section 1-19.

The county agency or official shall apply to the state land use commission for an appropriate land use district classification change, except where the proposed project is located on land within an urban or rural district established by the state land use commission.  Notwithstanding any law, rule, or regulation to the contrary, the state land use commission may approve the application at any time after a public hearing held in the county where the land is located upon notice of the time and place of the hearing being published in the same manner as the notice required for a public hearing by the planning commission of the appropriate county."

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

     "§205-2  Districting and classification of lands.  (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] By January 1, 2009, the land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts.  Beginning on January 1, 2009, lands in the agricultural district shall include agricultural lands not classified by the land use commission for inclusion in one of the other 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; provided further that the land use commission shall give consideration to:

(A)  Contiguous land areas with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U, not included in the agricultural district by the land use commission by January 1, 2009;

(B)  Agricultural lands with residential subdivisions existing before January 1, 2007; and

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

     (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], including:

(A)  Lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B; and

(B)  Lands in active agricultural production on January 1, 2007, with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U;

     (4)  In the establishment of the boundaries of conservation districts, the greatest possible protection shall be given to valuable natural resources, including but not limited to:

          (A)  Watersheds and water sources;

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

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

          (D)  Shoreline and coastal resources;

          (E)  Native forests and other forested areas;

          (F)  Wetlands, natural streams, and lakes;

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

     (H)  Recreational resources and areas highly susceptible to erosion, landslides, flooding, volcanic hazards, and other conditions which 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.

In establishing the boundaries of the districts in each county, the commission shall give consideration to the master plan or general plan of 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.]:

(1)  Small agricultural or farming operations;

(2)  Public institutions and buildings;

(3)  Public and private open area types of recreational uses, including campgrounds, picnic grounds, overnight camps, parks, riding stables, golf courses, golf driving ranges, golf-related facilities and country clubs;

(4)  Educational institutions;

(5)  Public utilities;

(6)  Low density retail and commercial facilities; and

(7)  Low density residential subdivisions with not more than one dwelling unit per one-half acre;

provided that the permissible uses described in this subsection may be further defined by each county by zoning ordinance.

     (d)  Agricultural districts shall include:

(1)  All lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B;

(2)  Important agricultural lands designated pursuant to part III;

(3)  Lands classified by the land use commission as agricultural by January 1, 2009, with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U;

    [(1)] (4)  Activities or uses as characterized by the cultivation of crops, orchards, forage, and forestry;

    [(2)] (5)  Farming activities or uses related to animal husbandry, and game and fish propagation;

    [(3)] (6)  Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water;

    [(4)] (7)  Wind generated energy production for public, private, and commercial use;

    [(5)] (8)  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, whether or not conducted on the same premises as the agricultural activities to which they are accessory, including but not limited to farm dwellings as defined in section 205‑4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, 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);

    [(6)] (9)  Wind machines and wind farms;

    [(7)] (10)  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;

    [(8)] (11)  Agricultural parks; and

    [(9)] (12)  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

    (10)  Open area recreational facilities].

Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205‑4.5(d). 

Lands designated as important agricultural lands pursuant to part III shall be used for the permissible uses specified in section 205-  .  Agricultural districts may 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] to:

(1)  Protect watersheds and water sources; [preserving]

(2)  Preserve scenic and historic areas; [providing]

(3)  Provide park lands, wilderness, and beach reserves; [conserving]

(4)  Conserve indigenous or endemic plants, fish, and wildlife, including those which are threatened or endangered; [preventing]

(5)  Prevent floods and soil erosion;

(6)  Provide forestry;

(7)  Retain 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;

(8)  Provide areas of value for recreational purposes;

other related activities; and other permitted uses not detrimental to a multiple use conservation concept."

     SECTION 5.  Section 205-3.1, Hawaii Revised Statutes, is amended to read as follows:

     "§205-3.1  Amendments to district boundaries.  (a)  District boundary amendments involving lands in the conservation district, land areas greater than fifteen acres, or lands delineated as important agricultural lands shall be processed by the land use commission pursuant to section 205-4.

(b)  Any department or agency of the State, and department or agency of county in which the land is situated, or any person with a property interest in the land sought to be reclassified under this section may petition the appropriate county land use decision-making authority of the county in which the land is situated for a change in the boundary of a district involving lands less than fifteen acres presently in the rural and urban districts and lands less than fifteen acres in the agricultural district that are not designated as important agricultural lands.

     (c)  Any person with a property interest in agricultural land meeting the criteria in section 205-2(a)(2) for rural lands may petition the appropriate county land use decision-making authority of the county in which the land is situated for a change in the boundary of a district involving lands less than fifteen acres to rural, if the person has dedicated lands for agricultural use pursuant to county ordinance or has designated lands as important agricultural lands pursuant to part III.

     [(c)] (d) District boundary amendments involving land areas of fifteen acres or less, except as provided in subsection (b), shall be determined by the appropriate county land use decision-making authority for the district and shall not require consideration by the land use commission pursuant to section 205-4; provided that such boundary amendments and approved uses are consistent with this chapter.  The appropriate county land use decision-making authority may consolidate proceedings to amend state land use district boundaries pursuant to this subsection, with county proceedings to amend the general plan, development plan, zoning of the affected land, or such other proceedings.  Appropriate ordinances and rules to allow consolidation of such proceedings may be developed by the county land use decision-making authority.

     [(d)] (e)  The county land use decision-making authority shall serve a copy of the application for a district boundary amendment to the land use commission and the department of business, economic development, and tourism and shall notify the commission and the department of the time and place of the hearing and the proposed amendments scheduled to be heard at the hearing.  A change in the state land use district boundaries pursuant to this subsection shall become effective on the day designated by the county land use decision-making authority in its decision.  Within sixty days of the effective date of any decision to amend state land use district boundaries by the county land use decision-making authority, the decision and the description and map of the affected property shall be transmitted to the land use commission and the department of business, economic development, and tourism by the county planning director."

     SECTION 6.  Section 205-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Any department or agency of the State, any department or agency of the county in which the land is situated, or any person with a property interest in the land sought to be reclassified, may petition the land use commission for a change in the boundary of a district.  Any person with a property interest in agricultural land meeting the criteria in section 205-2(a)(2) for rural lands may petition the land use commission for a change in the boundary of a district involving lands greater than fifteen acres to rural, if the person has designated other lands as important agricultural lands pursuant to part III.  This section applies to all petitions for changes in district boundaries of lands within conservation districts, lands designated or sought to be designated as important agricultural lands, and lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in section 201G-118.  The land use commission shall adopt rules pursuant to chapter 91 to implement section 201G‑118."

SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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