HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that the State's
 2 agricultural and rural areas have significant economic and open
 3 space value to Hawaii's residents and visitors.  However, the
 4 state land use system does not currently promote rural and
 5 agricultural land use patterns and development practices that
 6 protect the open space character and historic form of Hawaii's
 7 rural communities and its agricultural lands.
 8      With the diversification of Hawaii's visitor industry, new
 9 economic activities are being located in the agricultural
10 district.  Some of these uses provide added value to an existing
11 agricultural operation; some uses may have negative impacts on
12 agricultural viability.  Greater clarity is needed in the law to
13 facilitate value-added agriculture-related tourism or ecotourism,
14 as well as to manage other recreational uses within the
15 agricultural district.
16      The state rural land use district offers an important tool
17 for accommodating appropriately-scaled urban and non-
18 agricultural rural uses, such as recreational uses, and the
19 siting of agricultural support activities and buffering

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 1 agricultural and conservation district lands from urban land
 2 uses.  With less than 0.25 per cent of all lands in the State
 3 classified in the rural land use district, the rural district is
 4 an underutilized tool in the statewide land use management
 5 system.
 6      The purpose of this Act is to clarify the intent and
 7 policies for the state land use districts, including the
 8 standards and criteria for uses in the agricultural district and
 9 the rural district.  The intent is to strengthen policy guidance
10 for the establishment of land use patterns that preserve the
11 State's rural heritage and rural and agricultural land resources,
12 while allowing greater flexibility for rural development and
13 rural economic opportunities.  One objective is the creation of a
14 more viable rural district that would absorb development
15 pressures that are currently directed at the agricultural
16 district.
17      SECTION 2.  Chapter 205, Hawaii Revised Statutes, is amended
18 by adding a new section to be appropriately designated and to
19 read as follows:
20      "205-    Open space development.  (a)  Through the
21 enactment of zoning ordinances or ordinances providing for open
22 space development design and subdivisions, each county may

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 1 authorize dwelling unit clustering and reduced minimum lot sizes
 2 in the rural land use district; provided that the overall
 3 dwelling unit density of the gross project area shall not exceed
 4 one dwelling unit per two acres.  As an incentive for protecting
 5 more land for agricultural use, open space, or resource
 6 protection, the ordinance may authorize a density bonus for
 7 applications with open space ratios that exceed the amount
 8 required under the ordinance; provided that the development
 9 density of the developable area does not exceed two dwelling
10 units per acre of developable area as defined pursuant to this
11 section.  "Open space development" means an alternative site
12 planning technique that seeks to preserve undeveloped open space
13 or sensitive features on a site by concentrating dwelling units
14 and other uses or structures in a compact area elsewhere on the
15 site.  The purposes for clustering development in the rural
16 district are to:
17      (1)  Preserve undeveloped area for open space or
18           agricultural use to reduce the fragmentation of rural
19           areas, retain rural character, and preserve scenic
20           vistas;
21      (2)  Promote the efficient use of land and reduce
22           development costs for infrastructure and utilities for

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 1           rural residential development;
 2      (3)  Protect sensitive environmental, archaeological,
 3           historical, and cultural resources and habitats and
 4           promote the linking of open space, habitats, and
 5           resource corridors among parcels or subdivisions; and
 6      (4)  Accomplish the foregoing while allowing landowners a
 7           return on their holding.
 8      (b)  Any open space development ordinance that may be
 9 adopted shall be constructed and implemented to achieve the
10 following objectives:
11      (1)  Greater flexibility and creativity in lot and unit
12           configurations and required improvements so as to
13           maximize the preservation of undivided open space and
14           the protection of sensitive resources;
15      (2)  Contiguity of rural open space by ensuring that open
16           space created by rural clusters connects to or abuts
17           open space on adjacent properties and subdivisions;
18      (3)  Open space development that complements and implements
19           land use policies for open space and agricultural areas
20           and open space networks contained in the adopted county
21           general, development, or community plans;
22      (4)  Clustered residential development of a scale, density,

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 1           and appearance appropriate to rural areas, or that is
 2           buffered in such a way as to be in character with rural
 3           landscapes and rural communities; and
 4      (5)  Open space development as the development practice of
 5           choice in rural areas in lieu of conventional
 6           subdivision development.
 7      (c)  Any open space development ordinance adopted pursuant
 8 to this section shall provide that all applications meeting the
 9 requirements of the open space development ordinance shall be
10 approved by right without special review procedures.  The open
11 space development ordinance shall provide clear standards,
12 criteria, and guidelines for design, layout, improvements, and
13 open space management to facilitate permit review to include but
14 not be limited to:
15      (1)  Minimum and maximum lot sizes, and minimum and maximum
16           frontages and setbacks for residential lots; provided
17           that the minimum lot size shall not be less than the
18           minimum lot size allowed for unsewered sites under the
19           rules of the department of health;
20      (2)  Minimum project size and maximum number of dwelling
21           units or maximum project size; provided that the
22           maximum number of dwellings for an open space

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 1           development project shall not exceed the maximum number
 2           allowed for unsewered sites under the rules of the
 3           department of health;
 4      (3)  The ratio of open space required to be preserved and
 5           the configuration of the open space; provided that the
 6           ratio of undivided open space to gross project area
 7           shall be no less than sixty per cent, and the ratio of
 8           required open space shall increase as the project area
 9           increases so as to protect more open space on larger
10           parcels;
11      (4)  Provisions for relaxing or waiving standards for
12           improvements required of conventional subdivisions;
13      (5)  A definition of the "developable area" in which
14           proposed uses and structures will be sited; provided
15           that the "developable area" shall include areas
16           required for structures, roadway and utility easements,
17           lot yard areas, and areas for recreational improvements
18           for homeowner use;
19      (6)  Areas that shall be considered for inclusion in the
20           undeveloped open space or undevelopable area, including
21           wetlands and other water bodies, steep slopes,
22           floodplains, and agricultural land;

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 1      (7)  Simple procedures for the early review of conceptual
 2           sketch plans prior to the preparation and submittal of
 3           preliminary plans.  The conceptual plan should identify
 4           natural features to be avoided, dwelling unit yield,
 5           general lot layout and uses of the developable area,
 6           and the configuration of the area to be preserved in
 7           open space;
 8      (8)  A provision that the open space created by an open
 9           space development project plan shall remain undivided
10           and undeveloped in perpetuity;
11      (9)  Alternative means for the preservation and maintenance
12           of the open space created by an open space development,
13           including:
14           (A)  Ownership and management by a homeowners'
15                association;
16           (B)  The execution of perpetual conservation or
17                agricultural preservation easements for the
18                undivided open space of the property with a
19                government entity or a private nonprofit corporate
20                land trust qualified under section 501(c)(3) of
21                the federal Internal Revenue Code of 1986, as
22                amended;

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 1           (C)  Fee simple dedication to a government entity, if
 2                acceptable to the county and government entity; or
 3           (D)  Any combination of the foregoing as may be deemed
 4                practicable by the county agency administering the
 5                open space development ordinance; and
 6      (10) Provisions for public access to the open space created
 7           if it is part of a planned public trail, open space, or
 8           recreational facility system, and issues of liability."
 9      SECTION 3.  Section 205-2, Hawaii Revised Statutes, is
10 amended to read as follows:
11      "205-2  Districting and classification of lands.(a)
12 There shall be four major land use districts in which all lands
13 in the State shall be placed: urban, rural, agricultural, and
14 conservation.  The land use commission shall group contiguous
15 land areas suitable for inclusion in one of these four major
16 districts.  The districts shall serve to guide the development of
17 regional land use patterns comprised of well-defined and
18 efficiently serviced urban and rural settlements, and contiguous
19 areas of cultivated lands and open or natural landscapes.  The
20 districts shall be distinguished by their level and intensity of
21 development, and their predominant character of uses, economic
22 activities, physical landscapes, and natural resources.  The

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 1 commission shall set standards for determining the boundaries of
 2 each district, provided that:
 3     [(1)  In the establishment of boundaries of urban districts
 4           those lands that are now in urban use and a sufficient
 5           reserve area for foreseeable urban growth shall be
 6           included;
 7      (2)  In the establishment of boundaries for rural districts,
 8           areas of land composed primarily of small farms mixed
 9           with very low density residential lots, which may be
10           shown by a minimum density of not more than one house
11           per one-half acre and a minimum lot size of not less
12           than one-half acre shall be included, except as herein
13           provided;
14      (3)  In the establishment of the boundaries of agricultural
15           districts the greatest possible protection shall be
16           given to those lands with a high capacity for intensive
17           cultivation; and
18      (4)  In the establishment of the boundaries of conservation
19           districts, the "forest and water reserve zones"
20           provided in Act 234, section 2, Session Laws of Hawaii
21           1957, are renamed "conservation districts" and,
22           effective as of July 11, 1961, the boundaries of the

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 1           forest and water reserve zones theretofore established
 2           pursuant to Act 234, section 2, Session Laws of Hawaii
 3           1957, shall constitute the boundaries of the
 4           conservation districts; provided that thereafter the
 5           power to determine the boundaries of the conservation
 6           districts shall be in the commission.]
 7      (1)  The urban district shall include lands that are in
 8           urban use and a sufficient reserve area for foreseeable
 9           urban growth, which support or are planned to support
10           intensive land uses, diverse economic activities, and
11           high levels of physical infrastructure and public
12           services; provided that the counties may designate or
13           zone lands for open space and natural preservation in
14           the urban district;
15      (2)  The rural district shall include areas of land suitable
16           for agriculture and other uses requiring limited
17           physical infrastructure development and services,
18           including low density residential uses, natural
19           resource-dependent uses, outdoor recreational uses, and
20           passive open space uses.  The rural district may also
21           include compact, small mixed-use rural centers
22           providing services to rural areas;

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 1      (3)  The agricultural district shall include lands for
 2           current and potential agricultural cultivation,
 3           ranching, or forestry, with only basic levels of
 4           physical infrastructure development necessary to
 5           support these agricultural activities.  The
 6           agricultural district shall provide the greatest
 7           possible protection to lands with a high capacity for
 8           intensive and sustainable cultivation or pasturage; and
 9      (4)  The conservation district shall include those lands
10           necessary for the preservation of natural resources,
11           significant habitats, and ecological systems, and the
12           sustainable use of natural resources, with very limited
13           or no physical development.  The "forest and water
14           reserve zones" provided in Act 234, section 2, Session
15           Laws of Hawaii 1957, are renamed "conservation
16           districts" and, effective as of July 11, 1961, the
17           boundaries of the forest and water reserve zones
18           theretofore established pursuant to Act 234, section 2,
19           Session Laws of Hawaii 1957, shall constitute the
20           boundaries of the conservation districts; provided that
21           thereafter the power to determine the boundaries of the
22           conservation districts shall be in the commission.

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 1 In establishing the boundaries of the districts in each county,
 2 the commission shall give consideration to the [master plan or]
 3 general plan and adopted community or development plans of the
 4 county.
 5      (b)  The purpose of the urban district is to promote
 6 efficient use of urbanized land resources and infrastructure
 7 investments through the siting of physical growth and development
 8 within compact urban settlements.  The urban district shall
 9 accommodate uses whose development densities and improvement
10 values are not compatible with uses in areas of less intensive
11 development.  It is intended that sufficient urban reserve
12 capacity be identified to create long-term, stable, predictable
13 urban boundaries that discourage urban sprawl and prevent
14 premature development of rural, agricultural, or conservation
15 areas.  Urban districts shall include activities or uses as
16 provided by ordinances or [regulations] rules of the county
17 within which the urban district is situated.
18      [(c)  Rural districts shall include activities or uses as
19 characterized by low density residential lots of not more than
20 one dwelling house per one-half acre, except as provided by
21 county ordinance pursuant to section 46-4(c), in areas where
22 "city-like" concentration of people, structures, streets, and

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 1 urban level of services are absent, and where small farms are
 2 intermixed with low density residential lots except that within a
 3 subdivision, as defined in section 484-1, the commission for good
 4 cause may allow one lot of less than one-half acre, but not less
 5 than 18,500 square feet, or an equivalent residential density,
 6 within a rural subdivision and permit the construction of one
 7 dwelling on such lot, provided that all other dwellings in the
 8 subdivision shall have a minimum lot size of one-half acre or
 9 21,780 square feet.  Such petition for variance may be processed
10 under the special permit procedure.  These districts may include
11 contiguous areas which are not suited to low density residential
12 lots or small farms by reason of topography, soils, and other
13 related characteristics.
14      (d)  Agricultural districts shall include activities or uses
15 as characterized by the cultivation of crops, orchards, forage,
16 and forestry; farming activities or uses related to animal
17 husbandry, aquaculture, and game and fish propagation;
18 aquaculture, which means the production of aquatic plant and
19 animal life for food and fiber within ponds and other bodies of
20 water; wind generated energy production for public, private, and
21 commercial use; bona fide agricultural services and uses which
22 support the agricultural activities of the fee or leasehold owner

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 1 of the property and accessory to any of the above activities,
 2 whether or not conducted on the same premises as the agricultural
 3 activities to which they are accessory, including but not limited
 4 to farm dwellings as defined in section 205-4.5(a)(4), employee
 5 housing, farm buildings, mills, storage facilities, processing
 6 facilities, vehicle and equipment storage areas, and roadside
 7 stands for the sale of products grown on the premises; wind
 8 machines and wind farms; small-scale meteorological, air quality,
 9 noise, and other scientific and environmental data collection and
10 monitoring facilities occupying less than one-half acre of land,
11 provided that such facilities shall not be used as or equipped
12 for use as living quarters or dwellings; agricultural parks; and
13 open area recreational facilities, including golf courses and
14 golf driving ranges; provided that they are not located within
15 agricultural district lands with soil classified by the land
16 study bureau's detailed land classification as overall (master)
17 productivity rating class A or B.
18      These districts may include areas which are not used for, or
19 which are not suited to, agricultural and ancillary activities
20 because of topography, soils, and other related characteristics.]
21      (c)  The purpose of the rural district is to protect and
22 enhance the character and economies of rural communities, provide

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 1 for the siting of agricultural support activities, protect
 2 agricultural land and resources for present and future
 3 cultivation, maintain the integrity of open space and scenic
 4 vistas of rural landscapes, and protect natural resources within
 5 the rural district.  Areas in the rural district shall be
 6 characterized by a regional land use pattern of predominantly
 7 open landscapes of farmland and contiguous open space and natural
 8 areas with small, mixed-use rural towns or rural service centers
 9 interspersed in the physical landscape.  The rural district may
10 include contiguous areas that are not suited to physical
11 development because of topography, soils, unique conservation
12 values, or other related characteristics.
13      Physical development in the rural district shall be of small
14 scale and low density, with a level of physical infrastructure
15 and services substantially lower than in urban areas, except
16 where higher densities are allowed within the limits of rural
17 centers.  A rural center shall be physically compact with a well-
18 defined edge, characterized by a core area having a mix of
19 residential uses, public and commercial services, and economic
20 activities primarily serving residents within the center and
21 adjacent rural and agricultural areas.  Physical development
22 within rural centers shall be compatible with the scale, historic

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 1 character, and physical form of existing rural centers and
 2 surrounding rural landscapes.  Development outside of designated
 3 rural centers should be clustered to maximize the preservation of
 4 open space and to minimize the cost of physical infrastructure.
 5      Non-farm uses and new rural development shall be directed as
 6 far as practicable to existing or designated rural centers.
 7 Development that would result in strip development along roads or
 8 result in uniform subdivision and development of parcels shall be
 9 discouraged.  Rural district areas shall also serve to spatially
10 separate urban settlements from agricultural or natural
11 landscapes to protect these resources and to mitigate land use
12 conflicts and nuisances.
13      Agriculture shall be a primary use in the rural district.
14 Rural districts may include other activities or uses as defined
15 by ordinances or rules adopted by each county, pursuant to
16 section 205-5.
17      (d)  The purpose of the agricultural district is to protect
18 and conserve the State's agricultural lands as an economic
19 resource for current and future agricultural production and
20 agricultural economic opportunities.  The intent of the
21 agricultural district is to promote continued agricultural
22 investment, expansion, and entry of new farmers by discouraging

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 1 uses and improvements that would increase the value of important
 2 agricultural lands, and thereby the cost of agricultural
 3 operations.  Areas in the agricultural district shall be
 4 characterized by a landscape of active farms and farm businesses,
 5 with modest to extensive tracts of lands in cultivation,
 6 pasturage or ranching, agroforestry, or lying fallow for future
 7 agricultural use, minimal physical development, and physical
 8 infrastructure improvements limited to those necessary for
 9 agricultural operations.
10      State and county agricultural land use policies and
11 procedures for lands in the agricultural district shall
12 discourage the fragmentation of agricultural lands and the
13 conversion of agricultural land to non-agricultural uses in order
14 to support the retention of contiguous, intact parcels and
15 functional units large enough to allow flexibility in
16 agricultural production and management, avoid the impairment of
17 continued farm operations and expansion, and maintain the
18 viability of agricultural enterprise.  State and county
19 agricultural land use policies shall also allow for the
20 recognition of the value of agricultural lands as a resource for
21 aquifer recharge, open space, and scenic landscapes.
22      Uses and development in the agricultural district shall be

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 1 subject to sections 205-4.5 and 205-5.  Where improvements are
 2 made to parcels within the agricultural district, such
 3 improvements shall be subject to applicable agricultural
 4 conservation and development standards as provided in this
 5 chapter and as adopted by each county pursuant to section 205-5.
 6      (e)  The purpose of the conservation district is to
 7 conserve, protect, and preserve the important natural and
 8 cultural resources of the State through appropriate management
 9 and use to promote their long-term sustainability and the public
10 health, safety, and welfare.  Conservation districts shall
11 include areas necessary for protecting watersheds and water
12 sources; preserving scenic [and], historic, archaeological, and
13 cultural areas; providing park lands, wilderness, and beach
14 reserves; conserving indigenous or endemic plants, fish, [and]
15 wildlife, and natural habitats or communities, including those
16 which are threatened or endangered; protecting shoreline and
17 coastal resources, wetlands, natural streams, and lakes;
18 preventing harm from floods [and], soil erosion[;], landslides,
19 volcanic hazards, and other conditions which may threaten lives
20 or property; forestry; open space areas whose existing openness,
21 natural condition, or present state of use, if retained, would
22 enhance the present or potential value of abutting or surrounding

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 1 communities, or would maintain or enhance the conservation of
 2 natural or scenic resources; areas of value for recreational
 3 purposes; other related activities; and other permitted uses not
 4 detrimental to a multiple use conservation concept.  Uses within
 5 the conservation district shall be administered by the department
 6 of land and natural resources pursuant to chapter 183C."
 7      SECTION 4.  Section 205-4.5, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9      "205-4.5  Permissible uses within the agricultural
10 districts.(a)  [Within the agricultural district all] All lands
11 [with soil classified by the land study bureau's detailed land
12 classification as overall (master) productivity rating class A or
13 B] in the agricultural district shall be restricted to the
14 following permitted uses:
15      (1)  Cultivation of crops, including but not limited to
16           flowers, vegetables, foliage, fruits, forage, and
17           timber;
18      (2)  Game and fish propagation;
19      (3)  Raising of livestock[,] for food or raw materials,
20           including but not limited to poultry, bees, fish, or
21           other animal or aquatic life that are propagated
22           primarily for [economic or personal] commercial

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 1           purposes, except that such use for personal consumption
 2           shall be permitted if the use is secondary and
 3           incidental to a principal agricultural use;
 4      (4)  Farm dwellings, farm employee housing, farm buildings,
 5           or activity or uses related to farming and animal
 6           husbandry;
 7           Farm dwelling as used in this paragraph means a single-
 8           family dwelling located on and used in connection with
 9           a farm, including clusters of single-family farm
10           dwellings permitted within agricultural parks developed
11           by the State, or where agricultural activity provides
12           income to the family occupying the dwelling;
13      (5)  Public institutions and buildings which are necessary
14           for agricultural practices;
15     [(6)  Public and private open area types of recreational uses
16           including day camps, picnic grounds, parks, and riding
17           stables, but not including dragstrips, airports, drive-
18           in theaters, golf courses, golf driving ranges, country
19           clubs, and overnight camps;
20      (7)] (6)  Public, private, and quasi-public utility lines
21           and roadways, transformer stations, communications
22           equipment buildings, solid waste transfer stations,

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 1           major water storage tanks, [and] appurtenant small
 2           buildings such as booster pumping stations, [but not
 3           including] and small-scale meteorological, air quality,
 4           noise, and other scientific and environmental data
 5           collection and monitoring facilities occupying less
 6           than one-half acre of land, provided that such
 7           facilities shall not be used as or equipped for use as
 8           living quarters or dwellings.  Such uses and facilities
 9           shall not include offices or yards for equipment,
10           material, vehicle storage, repair, or maintenance, [or]
11           treatment plants, [or] corporation yards, or other like
12           structures;
13     [(8)] (7)  Retention, restoration, rehabilitation, or
14           improvement of buildings or sites of historic or scenic
15           interest;
16     [(9)] (8)  Roadside stands for the sale of agricultural
17           products grown on the premises[;] or the island the
18           land is situated on;
19    [(10)  Buildings] (9)  Bona fide agricultural services,
20           buildings, and uses, including but not limited to
21           mills, storage, and processing facilities, maintenance
22           facilities, and vehicle and equipment storage areas

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 1           that are [normally considered directly accessory to the
 2           abovementioned uses and are permitted under section
 3           205-2(d);] directly accessory to agricultural uses of
 4           the fee or leasehold owner of the property;
 5    [(11)] (10)  Agricultural parks; or
 6    [(12)] (11)  Wind energy facilities[,] for public, private, or
 7           commercial use, including the appurtenances associated
 8           with the production and transmission of wind generated
 9           energy; provided that such facilities and appurtenances
10           are compatible with agriculture uses and cause minimal
11           adverse impact on agricultural land.
12      (b)  Uses such as farm tours and minor open area
13 recreational uses, such as hiking, equestrian trail rides,
14 mountain bike trail rides, hang gliding, paragliding, gun or
15 archery ranges, skeet shooting, concerts, paintball, or bungee
16 jumping, are allowed on lands within the agricultural district;
17 provided the following criteria are met:
18      (1)  The use involves the use of temporary structures and
19           requires minimal land alteration, grading, or grubbing;
20      (2)  The use is secondary and incidental to a primary
21           agricultural use and does not displace existing
22           agricultural uses;

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 1      (3)  The use does not have adverse impacts on natural,
 2           environmental, or cultural resources; and
 3      (4)  The proposed use is not a component of or is not
 4           associated with a larger project which does not meet
 5           the criteria of this subsection.
 6      (c)  Major open area recreational or commercial uses similar
 7 in nature or character to uses such as overnight camps, botanical
 8 gardens, mazes, commercial tours, or small scale visitor centers,
 9 may be permitted on lands with soil classified by the land study
10 bureau's detailed land classification as overall (master)
11 productivity rating class C, D, E, or U lands; provided that a
12 permit from the appropriate county authority is obtained and the
13 following criteria are met:
14      (1)  The use does not involve lands greater than fifteen
15           acres;
16      (2)  The use is part of an agricultural business plan or
17           accessory to an agricultural activity onsite;
18      (3)  The use will not displace existing agricultural uses;
19      (4)  The use is not a component of or is not associated with
20           a larger project which does not meet the criteria of
21           this subsection;
22      (5)  The use does not have adverse impacts on natural,

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 1           environmental, or cultural resources; and
 2      (6)  The county permitting process includes provisions for
 3           adequate notice to individuals whose property rights
 4           may be adversely affected, written public notice, and
 5           public hearings.
 6      (d)  Land uses substantially involving or supporting
 7 educational ecotourism, related to the preservation of native
 8 Hawaiian endangered, threatened, proposed, and candidate species,
 9 that are allowed in an approved habitat conservation plan under
10 section 195D-21 or safe harbor agreement under section 195D-22,
11 may be allowed in the agricultural district by county permit on
12 lands with soils classified by the land study bureau's detailed
13 land classification as overall (master) productivity rating class
14 C, D, E, or U.
15      [(b)] (e)  Uses not expressly permitted in [subsection]
16 subsections (a), (b), (c), and (d) shall be prohibited, except
17 the uses permitted as provided in sections 205-6 and 205-8, and
18 construction of single-family dwellings on lots existing before
19 June 4, 1976.
20      (f)  Any other law to the contrary notwithstanding, no
21 subdivision of land within the agricultural district with soil
22 classified by the land study bureau's detailed land

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 1 classification as overall (master) productivity rating class A or
 2 B shall be approved by a county unless the said A and B lands
 3 within the subdivision shall be made subject to the restriction
 4 on uses as prescribed in this section and to the condition that
 5 the uses shall be [primarily] in pursuit of an agricultural
 6 activity.
 7      Any deed, lease, agreement of sale, mortgage, or other
 8 instrument of conveyance covering any land within the
 9 agricultural subdivision shall expressly contain the restriction
10 on uses and the condition as prescribed in this section which
11 restriction and condition shall be encumbrances running with the
12 land until such time that the land is reclassified to a land use
13 district other than agricultural district.
14      If the foregoing requirement of encumbrances running with
15 the land jeopardizes the owner or lessee from obtaining mortgage
16 financing from any of the mortgage lending agencies set forth
17 hereinbelow, and said requirement is the sole reason for failure
18 to obtain mortgage financing, then such requirement of
19 encumbrances shall, insofar as such mortgage financing is so
20 jeopardized, be conditionally waived by the appropriate county
21 enforcement officer; provided that such conditional waiver shall
22 thereafter become effective only in the event that the property

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 1 is subjected to foreclosure proceedings by the mortgage lender.
 2      The mortgage lending agencies mentioned hereinabove are the
 3 Federal Housing Administration, Federal National Mortgage
 4 Association, Veterans Administration, Small Business
 5 Administration, United States Department of Agriculture, Federal
 6 Land Bank of Berkeley, Federal Intermediate Credit Bank of
 7 Berkeley, Berkeley Bank for Cooperatives, and any other federal,
 8 state, or private mortgage lending agency qualified to do
 9 business in Hawaii, and their respective successors and assigns.
10      [(c)  Within the agricultural district all lands, with soil
11 classified by the land study bureau's detailed land
12 classification as overall (master) productivity rating class C,
13 D, E, or U shall be restricted to the uses permitted for
14 agricultural districts as set forth in section 205-5(b).]"
15      SECTION 5.  Section 205-5, Hawaii Revised Statutes, is
16 amended to read as follows:
17      "205-5  [Zoning.(a)  Except as herein provided, the] Land
18 use planning; zoning; development standards.  (a)  Each county
19 shall ensure that county land use plans, zoning, and development
20 ordinances and rules promote the efficient and compact use of
21 land, direct growth to where zoned capacity exists, promote the
22 cost-effective delivery of public infrastructure and services,

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 1 facilitate the long-term preservation of rural and agricultural
 2 lands and open space, and protect conservation resources, scenic
 3 views, and natural landscapes.
 4      (b)  The powers granted to counties under section 46-4 shall
 5 govern the zoning within the urban, rural, and agricultural
 6 districts, [other than in conservation districts.] subject to
 7 this chapter.  Conservation districts shall be governed by the
 8 department of land and natural resources pursuant to chapter
 9 183C.
10      [(b)] (c)  Within agricultural districts, uses [compatible
11 to the activities described in section 205-2 as determined by the
12 commission shall be permitted;] shall be restricted to those
13 described in section 205-4.5; provided that accessory
14 agricultural uses and services described in [sections 205-2 and]
15 section 205-4.5 may be further defined by each county by zoning
16 ordinance[.]; provided that:
17      (1)  The use has a demonstrable relationship to agriculture,
18           such that it supports commercial agricultural activity
19           and promotes long-term agricultural use of the land;
20      (2)  The use is consistent with the provisions for the
21           agricultural district in sections 205-2 and 205-4.5;
22           and

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 1      (3)  The use does not have the effect of permanently
 2           displacing agricultural activity, either as a result of
 3           increased land value or permanent use and alteration of
 4           the land.
 5      Other uses may be allowed by special permits issued pursuant
 6 to this chapter.  The minimum lot size in agricultural districts
 7 shall be determined by each county by zoning ordinance,
 8 subdivision ordinance, or other lawful means; provided that the
 9 minimum lot size for any agricultural use shall not be less than
10 one acre, except as provided herein.  If the county finds that
11 unreasonable economic hardship to the owner or lessee of land
12 cannot otherwise be prevented or where land utilization is
13 improved, the county may allow lot sizes of less than the minimum
14 lot size as specified by law for lots created by a consolidation
15 of existing lots within an agricultural district and the
16 resubdivision thereof; provided that the consolidation and
17 resubdivision do not result in an increase in the number of lots
18 over the number existing prior to consolidation; and provided
19 further that in no event shall a lot, which is equal to or
20 exceeds the minimum lot size of one acre be less than that
21 minimum after the consolidation and resubdivision action.  The
22 county may also allow lot sizes of less than the minimum lot size

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 1 as specified by law for lots created or used for public, private,
 2 and quasi-public utility purposes, dedicated easements for the
 3 purpose of public access or natural, historic, and cultural
 4 resource management and protection, and for lots resulting from
 5 the subdivision of abandoned roadways and railroad easements.
 6      [(c)  Unless authorized by special permit issued pursuant to
 7 this chapter, only the following uses shall be permitted within
 8 rural districts:
 9      (1)  Low density residential uses;
10      (2)  Agricultural uses; and
11      (3)  Public, quasi-public, and public utility facilities.
12      In addition, the minimum lot size for any low density
13 residential use shall be one-half acre and there shall be but one
14 dwelling house per one-half acre, except as provided for in
15 section 205-2.]
16      (d)  Each county shall adopt ordinances and rules for the
17 rural district that define allowable uses, standards for physical
18 development, infrastructure, and rural service levels, and rural
19 design guidelines as needed, to govern land use and development
20 in rural service centers and the rural district as a whole.  The
21 adopted ordinances or rules shall be consistent with and
22 implement the policies and standards for the rural district

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 1 contained in this chapter; provided that exclusive agricultural
 2 use zoning shall be permissible in the rural district.  Uses
 3 within the rural district shall be restricted to activities or
 4 uses whose scale and impact do not alter the character of rural
 5 areas.  Uses may include agriculture, animal husbandry,
 6 aquaculture or game propagation, agricultural support services,
 7 agricultural processing, residential uses, cottage or craft
 8 industries, non-agricultural businesses and establishments
 9 providing goods and services compatible with rural character and
10 scale, outdoor recreational facilities including golf courses,
11 forestry, public and quasi-public utilities, and passive open
12 space.
13      The minimum lot size in rural districts shall be determined
14 by each county by zoning ordinance, subdivision ordinance, or
15 other lawful means; provided that the minimum lot size for any
16 residential use shall be no less than two acres.  There shall be
17 but one residential dwelling unit permitted per lot of record,
18 and the overall development density in the rural district shall
19 not exceed one dwelling unit per two acres of gross parcel area,
20 except that smaller lot sizes and greater density may be allowed
21 when residential uses are clustered as permitted under a county
22 ordinance for open space development adopted pursuant to

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 1 section 205-   .
 2      (f)  Each county shall manage and guide land use and
 3 development in the rural and agricultural districts to achieve
 4 the following objectives:
 5      (1)  Long-term preservation of open space for agriculture,
 6           forestry, ranching, and rural landscapes;
 7      (2)  Effective buffering of rural and agricultural areas
 8           from urban uses and avoidance of nuisance conflicts
 9           between rural, agricultural, and urban uses and
10           activities;
11      (3)  Avoidance of the fragmentation, alienation, or reduced
12           productivity of agricultural areas;
13      (4)  Location of non-farm uses in compact, mixed-use rural
14           centers, where higher densities shall be allowed;
15      (5)  Development that is compatible with the visual
16           character of agricultural and rural areas, and the
17           retention of rural landscape features, with respect to
18           size, scale, lot coverage, materials used, natural
19           vegetation, physical infrastructure, and architectural,
20           historic, or cultural features;
21      (6)  Minimal site alteration and disturbance that does not
22           impair natural ecological processes, avoids disturbance

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 1           or fragmentation of intact habitats, and protects
 2           important natural features and land forms, including
 3           scenic vistas, steep slopes and ridges, hazard zones,
 4           streams, wildlife habitats, or wetlands;
 5      (7)  Effective and appropriately scaled on-site water and
 6           wastewater systems that do not impair water quality or
 7           public health where development is not served by public
 8           water and sewer systems; and
 9      (8)  Infrastructure and physical improvements that are
10           appropriate to rural and agricultural uses and do not
11           create demand for urban infrastructure and services."
12      SECTION 6.  Section 205-6, Hawaii Revised Statutes, is
13 amended to read as follows:
14      "205-6  Special permit.  (a)  [The] Subject to this
15 section, the county planning commission may permit certain
16 unusual and reasonable uses within the agricultural [and rural
17 districts] district other than those for which the district is
18 classified.  Any person who desires to use the person's land
19 within an agricultural [or rural] district other than for an
20 agricultural [or rural use, as the case may be,] use may petition
21 the planning commission of the county within which the person's
22 land is located for permission to use the person's land in the

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 1 manner desired[.]; provided the following conditions apply:
 2      (1)  The proposed use is consistent with the purpose,
 3           character, and performance standards established for
 4           the agricultural district pursuant to this chapter;
 5      (2)  The proposed use is dependent upon specific natural
 6           resources found on the property of the subject
 7           petition, or there is an overriding public benefit for
 8           the proposed use at the particular location and
 9           alternative site capacity for the particular use does
10           not exist;
11      (3)  The proposed use is consistent with and implements the
12           land use policies and patterns in the adopted county
13           general plan and community or development plans;
14      (4)  The proposed use would not adversely affect surrounding
15           properties or environment; and
16      (5)  The proposed use would not unduly burden public
17           agencies to provide infrastructure or services.
18      A petition for a proposed use which would in effect
19 permanently displace agricultural use of the property either
20 through the nature of the use or a significant increase in land
21 value, or which is part of a larger development, shall be subject
22 to a district boundary amendment pursuant to section 205-4.  Golf

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 1 courses, golf course-related uses or facilities, and visitor
 2 accommodations greater than five units shall not be permitted
 3 under this section.  Each county may establish the appropriate
 4 fee for processing the special permit petition.  Copies of the
 5 special permit petition shall be forwarded to the land use
 6 commission, the office of planning, and the department of
 7 agriculture.
 8      (b)  The planning commission, upon consultation with the
 9 central coordinating agency, except in counties where the
10 planning commission is advisory only in which case the central
11 coordinating agency, shall establish by rule [or regulation], the
12 time within which the hearing and action on the petition for
13 special permit shall occur.  The county planning commission shall
14 notify the land use commission, the office of planning, the
15 department of agriculture, and such persons and agencies that may
16 have an interest in the subject matter of the time and place of
17 the hearing.
18      (c)  The county planning commission may under such
19 protective restrictions as may be deemed necessary, permit the
20 desired use, but only when the use would promote the
21 effectiveness and objectives of this chapter.  A decision in
22 favor of the applicant shall require a majority vote of the total

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 1 membership of the county planning commission.
 2      (d)  Special permits for land the area of which is greater
 3 than fifteen acres shall be subject to approval by the land use
 4 commission.  The land use commission may impose additional
 5 restrictions as may be necessary or appropriate in granting such
 6 approval, including the adherence to representations made by the
 7 applicant.
 8      (e)  A copy of the decision together with the complete
 9 record of the proceeding before the county planning commission on
10 all special permit requests involving a land area greater than
11 fifteen acres shall be transmitted to the land use commission,
12 the office of planning, and the department of agriculture within
13 sixty days after the decision is rendered.  Within forty-five
14 days after receipt of the complete record from the county
15 planning commission, the land use commission shall act to
16 approve, approve with modification, or deny the petition.  A
17 denial either by the county planning commission or by the land
18 use commission, or a modification by the land use commission, as
19 the case may be, of the desired use shall be appealable to the
20 circuit court of the circuit in which the land is situated and
21 shall be made pursuant to the Hawaii rules of civil procedure.
22      [(f)  Land uses substantially involving or supporting

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 1 educational ecotourism, related to the preservation of native
 2 Hawaiian endangered, threatened, proposed, and candidate species,
 3 that are allowed in an approved habitat conservation plan under
 4 section 195D-21 or safe harbor agreement under section 195D-22,
 5 which are not identified as permissible uses within the
 6 agricultural district under sections 205-2 and 205-4.5, may be
 7 permitted in the agricultural district by special permit under
 8 this section, on lands with soils classified by the land study
 9 bureau's detailed land classification as overall (master)
10 productivity rating class C, D, E, or U.]"
11      SECTION 7.  Section 205-8, Hawaii Revised Statutes, is
12 amended to read as follows:
13      "205-8  Nonconforming uses.  (a)  The lawful use of land or
14 buildings existing on the date of establishment of any interim
15 agricultural district and rural district in final form may be
16 continued although the use, including lot size, does not conform
17 to this chapter; provided that no nonconforming building shall be
18 replaced, reconstructed, [or] enlarged, or changed to another
19 nonconforming use and no nonconforming use of land shall be
20 expanded or changed to another nonconforming use.  In addition,
21 if any nonconforming use of land or [building] buildings is
22 discontinued or held in abeyance for a period of one year, the

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 1 further continuation of such use shall be prohibited.
 2      (b)  The lawful use of land and structures on lots of record
 3 in the agricultural land use district, existing as of the
 4 effective date of this Act may be continued although the use, lot
 5 size, or structure do not conform to the chapter as amended by
 6 this Act.  Future development or subdivision of lots of record
 7 existing as of the effective date of this Act shall be subject to
 8 the provisions of this chapter as amended, as well as applicable
 9 zoning, subdivision, and development ordinances and rules adopted
10 or amended by each county in conformance with this chapter."
11      SECTION 8.  Statutory material to be repealed is bracketed.
12 New statutory material is underscored.
13      SECTION 9.  This Act shall take effect upon its approval.
15                           INTRODUCED BY:  _______________________

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