Grandfathers in as non-nuisances farming operations that existed
prior to the establishment of surrounding non-farming operations.

THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 165-2, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "165-2 Definitions.  As used in this chapter, unless the
 4 context otherwise requires:
 5      ["Established date of operation" means the date on which the
 6 original farming operation first commenced operation.  If the
 7 physical facilities of the farming operation are subsequently
 8 expanded or new technology adopted, the established date of
 9 operation for each change shall be the same as the established
10 date of operation for the original operation, provided that this
11 does not violate existing state law or county ordinances.]
12      "Farming operation" means a commercial agricultural,
13 silvicultural, or aquacultural facility or pursuit conducted, in
14 whole or in part, including the care and production of livestock
15 and livestock products, poultry and poultry products, and
16 apiary[, horticultural, or floricultural products;] products and
17 plant and animal production for nonfood uses; the planting,
18 cultivating, and harvesting and processing of crops; and the
19 farming or ranching of any plant or animal species in a

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                                     S.B. NO.           

 1 controlled salt, brackish, or freshwater environment.  "Farming
 2 operation" also includes, but shall not be limited to[,
 3 marketed]:
 4      (1)  Marketed produce at roadside stands or farm markets;
 5           [noises,]
 6      (2)  Noises, odors, dust, and fumes emanating from a
 7           commercial agricultural or an aquacultural facility or
 8           pursuit; [operation]
 9      (3)  Operation of machinery and irrigation pumps; [ground]
10      (4)  Ground and aerial seeding and spraying; [the]
11      (5)  The application of chemical fertilizers, conditioners,
12           insecticides, pesticides, and herbicides; and [the]
13      (6)  The employment and use of labor.
14 A farming operation that conducts processing operations or salt,
15 brackish, or freshwater aquaculture operations on land that is
16 zoned for industrial, commercial, or other nonagricultural use
17 shall not, by reason of that zoning, fall beyond the scope of
18 this definition; provided that those processing operations form
19 an integral part of operations that otherwise meet the
20 requirements of this definition.
21      "Nuisance" means any interference with reasonable use and
22 enjoyment of land, including but not limited to smoke, odors,
23 dust, noise, or vibration; provided that nothing in this chapter

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                                     S.B. NO.           

 1 shall in any way restrict or impede the authority of the State to
 2 protect the public health, safety, and welfare.  "Nuisance" as
 3 used in this chapter includes all claims that meet the
 4 requirements of this definition regardless of whether a
 5 complainant designates such claims as brought in nuisance,
 6 negligence, trespass, or any other area of law or equity;
 7 provided that nuisance as used in this chapter does not include
 8 an alleged nuisance that involves water pollution or flooding."
 9      SECTION 2.  Section 165-4, Hawaii Revised Statutes, is
10 amended to read as follows:
11      "165-4 Right to farm.(a)  [No court, official, public
12 servant, or public employee shall declare any farming operation a
13 nuisance for any reason if all of the following have been proven:
14      (1)  That during the twelve-month period preceding the
15           filing of the nuisance complaint with a court or other
16           adjudicative public body, the farming operation
17           complied with statutes, ordinances, regulations, or
18           rules relevant to the nuisance complaint; and
19      (2)  That the farming operation has used reasonable care in
20           conducting its operation.] Farming operations
21           consistent with generally accepted agricultural
22           practices on agriculturally zoned land or farming
23           operations established prior to surrounding nonfarming

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                                     S.B. NO.           

 1           operations on lands zoned other than agriculture, are
 2           presumed to be reasonable and shall not be found to
 3           constitute a nuisance unless the activity has a
 4           substantial adverse effect on the public health and
 5           safety.
 6      (b)  Notwithstanding a farming operation's satisfaction of
 7 subsection [(a)(1) and (2),] (a), a farming operation may be
 8 declared a nuisance if:
 9      (1)  The farming operation or any aspect thereof has been
10           previously determined to be injurious to public health
11           or safety by the department of health, the department
12           of agriculture, or a court of competent jurisdiction;
13           and
14      (2)  The complainant establishes by a preponderance of the
15           evidence that the alleged nuisance resulted from the
16           injurious operation or aspect thereof.  Any
17           determination of injuriousness shall be in writing and
18           shall set forth the bases for the determination."
19      SECTION 3.  Section 165-5, Hawaii Revised Statutes, is
20 amended to read as follows:
21      "[[]165-5[]]  Frivolous lawsuits.  [Any nuisance action,
22 found to be frivolous by the court, in which a farming operation
23 is alleged to be a nuisance as defined in section 165-2, shall be

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                                     S.B. NO.           

 1 governed by section 607-14.5.] If the court determines that any
 2 action alleging that an agricultural operation is a nuisance is
 3 frivolous, the court may award costs of court, reasonable
 4 attorney fees, and any other related costs, to the defendant."
 5      SECTION 4.  Statutory material to be repealed is bracketed.
 6 New statutory material is underscored.
 7      SECTION 5.  This Act shall take effect upon its approval.
 9                              INTRODUCED BY:______________________