Right to Farm

Amends definition of "farming operation" to include silviculture;
permits a finding that a farming operation is not a nuisance to
be based on substantial compliance with pertinent regulations.
(SB3194 HD2)

THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                H.D. 2
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

Page 2                                                     3194
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 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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 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 by amending subsection (a) to read as follows:
11      "(a)  No court, official, public servant, or public employee
12 shall declare any farming operation a nuisance for any reason if
13 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           substantially complied with statutes, ordinances,
18           regulations, or rules relevant to the nuisance
19           complaint; and
20      (2)  That the farming operation has used reasonable care in
21           conducting its operation."

Page 4                                                     3194
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                                                        H.D. 2

 1      SECTION 3.  Statutory material to be repealed is bracketed.
 2 New statutory material is underscored.
 3      SECTION 4.  This Act shall take effect upon _____________.