HOUSE OF REPRESENTATIVES

H.B. NO.

289

TWENTY-SIXTH LEGISLATURE, 2011

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to agriculture.

 

 

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

 


     SECTION 1.  Article XI, section 3, of the state constitution provides:  "The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.  The legislature shall provide standards and criteria to accomplish the foregoing."

     The purpose of this Act is to require an agricultural subdivision or agricultural condominium on land that is in an agricultural district pursuant to chapter 205, Hawaii Revised Statutes, to be approved by the relevant county council by ordinance.  The legislature intends that designating the subdivision or condominium approval as a discretionary legislative act confers upon a county council the flexibility to determine whether the agricultural subdivision or agricultural condominium is in the best interest of the county before deciding whether to approve or reject an application.

     SECTION 2.  Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

     "§46-     Agricultural subdivision and agricultural condominium; requirement for county council approval.  (a)  For the purpose of this section:

     "Agricultural condominium" means a condominium property regime on land, any part of which is within an agricultural district established pursuant to chapter 205.

     "Agricultural subdivision" means a subdivision of land, any part of which is within an agricultural district established pursuant to chapter 205.

     (b)  No building, grading, grubbing, stockpiling, or other county permit shall be issued for a structure or improvement in or for an agricultural subdivision or agricultural condominium prior to approval by the applicable county council of the agricultural subdivision or agricultural condominium.  The approval shall be expressed by ordinance and shall be deemed a discretionary legislative act.  As part of the ordinance, the county council may include any term or condition deemed necessary to ensure:

     (1)  The operation of agricultural activity on each lot or unit created, other than for roadway or utility purposes, is economically viable; and

     (2)  The subdivider, condominium developer, or lot or unit owners or occupants are in compliance with chapter 205 and any other applicable law or ordinance.

     (c)  The county council may establish provisions by ordinance with respect to the application for, processing of, and action on a proposed agricultural subdivision or agricultural condominium.  The provisions may include prior review of the application by the county planning commission."

     SECTION 3.  Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

     "§205-4.5  Permissible uses within the agricultural districts.  (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)  Roadside stands for the sale of agricultural products grown on the premises;

    (10)  Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, 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)  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;

    (15)  Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that [is] are 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 biofuels 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;

    (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;

    (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; or

    (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.

     (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 those A and B lands within the subdivision 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.

     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 that these restrictions and conditions shall be encumbrances running with the land until such 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 in obtaining mortgage financing from any of the mortgage lending agencies set forth in the following paragraph, and the requirement is the sole reason for failure to obtain mortgage financing, then the requirement of encumbrances shall, insofar as such mortgage financing is jeopardized, be conditionally waived by the appropriate county enforcement officer; provided that the conditional waiver shall become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

     The mortgage lending agencies referred to in the preceding paragraph 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)  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).

     (d)  Notwithstanding any other provision of this chapter to the contrary, golf courses and golf driving ranges approved by a county before July 1, 2005, for development within the agricultural district shall be permitted uses within the agricultural district.

     (e)  Notwithstanding any other provision of this chapter to the contrary, plantation community subdivisions as defined in this section shall be permitted uses within the agricultural district, and section 205-8 shall not apply.

     [[](f)[]]  Notwithstanding any other law to the contrary, agricultural lands may be subdivided and leased for the agricultural uses or activities permitted in subsection (a); provided that:

     (1)  The principal use of the leased land is agriculture;

     (2)  No permanent or temporary dwellings or farm dwellings, including trailers and campers, are constructed on the leased area.  This restriction shall not prohibit the construction of storage sheds, equipment sheds, or other structures appropriate to the agricultural activity carried on within the lot; and

     (3)  The lease term for a subdivided lot shall be for at least as long as the greater of:

         (A)  The minimum real property tax agricultural dedication period of the county in which the subdivided lot is located; or

         (B)  Five years.

Lots created and leased pursuant to this section shall be legal lots of record for mortgage lending purposes and shall be exempt from county subdivision standards.

     (g)  Each unit of a condominium property regime in an agricultural district shall be in compliance with the minimum size, farm dwelling restrictions, agricultural activity requirements, and other terms and conditions applicable to a  subdivided lot on that agricultural land."

     SECTION 4.  Section 514B-5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§514B-5[]]  Conformance with county land use laws.  Any condominium property regime established under this chapter shall conform to the existing underlying county zoning for the property and all applicable county permitting requirements adopted by the county in which the property is located, including any terms and conditions adopted pursuant to section 46-   and any supplemental rules adopted by the county, pursuant to section 514B‑6, to ensure the conformance of condominium property regimes to the purposes and provisions of county zoning and development ordinances and chapter 205.  In the case of a property [which] that includes one or more existing structures being converted to condominium status, the condominium property regime shall comply with section 514B‑32(a)(13) or 514B‑84(a)."

     SECTION 5.  Section 514B-31, Hawaii Revised Statutes, is amended by amending its title and subsection (a) to read as follows:

     "[[]§514B-31[]]  Creation[.]; agricultural district.  (a)  To create a condominium property regime, all of the owners of the fee simple interest in land shall execute and record a declaration submitting the land to the condominium property regime.  If the condominium property regime is on land, any part of which is within an agricultural district established pursuant to chapter 205, the declaration shall not be recorded until after the condominium property regime has been approved by the applicable county council pursuant to section 46-   .  Upon recordation of the master deed together with a declaration, the condominium property regime shall be deemed created."

     SECTION 6.  This Act shall not apply to:

     (1)  Any application for the subdivision of land within the state agricultural district that is pending before, or was approved by, a county on June 30, 2011; and

     (2)  Any declaration of a condominium property regime recorded before June 30, 2011.

     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:

_____________________________

 

 


 


 

Report Title:

Agriculture; Subdivision; Condominium

 

Description:

Requires an agricultural subdivision or agricultural condominium in an agricultural district to be approved by the relevant county council by ordinance.

 

 

 

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