Report Title:

Land Evaluation & Site Assessment System

 

Description:

Establishes a land evaluation and site assessment system. Requires the land use commission, the department of agriculture, and the counties, to establish district boundaries for the conservation of important agricultural lands, and other lands districts. Abolishes urban, rural, and agricultural districts.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1571

TWENTY-FIRST LEGISLATURE, 2001

 

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. The legislature finds that article XI, section 3 of the Hawaii state constitution requires the State to conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency, and ensure the future availability of agriculturally suitable lands. To achieve this objective, the constitution directed the legislature to develop standards and criteria to protect important agricultural lands.

Act 273, Session Laws of Hawaii 1983, established the land evaluation site assessment commission to develop standards, criteria, and procedures to protect agricultural lands. Accordingly, the commission developed a land evaluation site assessment process to identify important agricultural lands and implement the land evaluation site assessment process. The commission reported its findings to the legislature in 1986.

The purpose of this Act is to carry out the directives under article XI, section 3, with respect to the identification, classification, and protection of important agricultural lands in the State.

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

"PART . TRANSFER OF DEVELOPMENT RIGHTSFOR IMPORTANT AGRICULTURAL LANDS

46- Definitions. As used in this part, unless the context requires otherwise:

"Development rights" means the rights permitted under an ordinance or law relating to permitted uses of a property, the density or intensity of use, and the maximum height and size of improvements thereon. Development rights may be calculated and allocated using factors such as area, floor area, floor area ratios, density, height limitations, or any other criteria that will effectively quantify the value for the development right in a reasonable and uniform manner that will carry out the objectives of this part.

"Receiving district" means one or more designated districts or areas of land to which development rights from one or more important agricultural land sending districts may be transferred and in which increased development is permitted using transferred development rights.

"Sending district" means one or more designated important agricultural land districts in which development rights may be designated for use on one or more receiving districts.

"Transfer of development rights" means the process by which development rights are transferred from a property in any sending district to another property in a receiving district.

46- General authorization. Any county council may provide for the transfer of development rights from important agricultural lands by adopting an ordinance establishing a procedure for the transfer of development rights from important agricultural lands. The ordinance shall provide:

(1) For the transfer of development rights only from lands designated important agricultural lands pursuant to section 205- ;

(2) That the transfer of development rights, and the designation of sending and receiving districts be established within the framework of the long range, comprehensive general plan of the county;

(3) That the receiving district, to which transfer of development rights is authorized, shall be found by the county council, after evaluating the effects of the potential increased development, to contain adequate resources and public facilities so that the increased development will be compatible with the development otherwise permitted by the county;

(4) That sending and receiving districts be designated and mapped, and that the procedure for the transfer of development rights be specified; and

(5) That development rights may be sold in the normal market or through a development rights bank established by the county in which development rights may be retained and sold by the county.

46- Transfer of development rights instruments. The county shall establish a standard instrument to document development rights which have been transferred from important agricultural lands. A development right which is transferred is an interest in real property evidenced by the transfer of development right instrument issued by the county and recorded pursuant to section 502-31."

SECTION 3. 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 other lands district. The counties shall establish by ordinance the uses of land permitted and the standards required for infrastructure systems within the other lands district."

SECTION 4. Chapter 141, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"141-   Permissible uses and infrastructure standards within the important agricultural lands district. The department of agriculture, in consultation with the land use commission, shall establish the uses of land permitted; and, in consultation with the counties, the infrastructure standards required, within the important agricultural lands district."

SECTION 5. Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"171-   Permissible uses and infrastructure standards within the conservation district. The department of land and natural resources shall establish the uses of land permitted and the standards required for infrastructure systems within the conservation district."

SECTION 6. Chapter 205, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"205-   Land evaluation and site assessment rating system; established. (a) The land use commission shall establish the boundaries of the important agricultural lands district, the conservation lands district and the other lands district by July 1, 2002. In establishing the boundaries of the important agricultural lands district, the commission shall base its determination on maps of the land evaluation composite ratings prepared by the land evaluation and site assessment commission to identify agricultural lands necessary to meet the State's production goals. The land evaluation and site assessment system shall involve determining a land evaluation and a site assessment rating for the lands involved.

(b) The land evaluation rating for a soil mapping unit shall be represented by a numerical score consisting of the weighted average of:

(1) Soil conservation service land capability classification, weight of one;

(2) Department of agriculture agricultural lands of importance to the State of Hawaii, weight of one;

(3) Land study bureau overall (master) productivity rating, weight of one;

(4) Land study bureau modified Storie index, weight of one and one-half; and

(5) Soil Conservation Service soil potential index, weight of one and one-half.

(c) The site assessment ratings shall express the relative quality of a site or parcel of land based on its nonphysical characteristics and attributes. Ten site assessment factors shall be evaluated based on locational, environmental, and operational factors. The following weights shall be assigned to each criterion as follows:

(1) Conformity with county general or community development policies and plans, weight of fifteen;

(2) Availability of irrigation water, weight of ten;

(3) Distance from urban infrastructure systems and service areas, weight of seven;

(4) Presence of on-site improvements such as roads, contoured fields, irrigation and drainage facilities, weight of seven;

(5) Conformity with the objectives of the Hawaii state plan, weight of seven;

(6) Access to off-site agricultural facilities and services, weight of four;

(7) Parcel size, location, and configuration needed for economic use and operation, weight of four;

(8) Compatible agricultural land uses in the area, weight of four;

(9) Presence and adequacy of off-site drainage systems, weight of one; and

    (10) The impacts on nonagricultural uses adjacent to the subject site, weight of one.

(d) The overall land evaluation and site assessment rating shall be derived as the average of the land evaluation composite rating and site assessment scores. The rating shall determine whether a parcel of land meets or falls below the threshold value which identifies lands which are needed in a county to meet agricultural production goals.

(e) The commission shall establish threshold land evaluation scores which identify lands on each island needed to meet state agricultural production goals through its rules. The commission shall consider the state agricultural production goals and agricultural land acreage requirements on each island to meet such goals and may also consider existing agricultural uses, and acreage necessary to accommodate foreseeable increases in agricultural production goals in identifying such scores.

(f) The land use commission shall adopt rules under chapter 91 to carry out the purposes of this section.

205-   Adoption of district boundaries. (a) The commission shall prepare district classification maps from the maps submitted to the commission by the office of state planning pursuant to section 205-18(c). At least one public hearing shall be held in each county prior to the final adoption of the district boundaries for that county. Notice of the time and place of the hearing shall be published in accordance with chapter 91. The notice shall indicate the time and place that the maps showing the proposed district boundaries within the county may be inspected prior to the hearing.

(b) Any person wishing to file recommendations, a written protest, or other comments with the commission shall file the materials within fifteen days of the hearing. Any aggrieved person with a property interest in land sought to be reclassified may petition the commission for a hearing under the rules established by the commission within thirty days after the adoption of the final form of district boundaries. The district boundaries shall be adopted in final form by December 31, 2002."

SECTION 7. 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] utilities 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 or 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 in this subsection may be sponsored by any state or county agency or any person as 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 a proposed project is located on land within an [urban] other lands 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 8. Section 171-49.7, Hawaii Revised Statutes, is amended to read as follows:

"[[]171-49.7[]] Public lands suitable and available for residential development; inventory. The department of land and natural resources shall complete and maintain a current inventory of all public lands placed in the [urban] other lands district by the land use commission under chapter 205 which are or may be suitable and available for residential development. This inventory shall be updated at the end of each quarter and shall contain the following information: the island and area in which the land is situated, the acreage, and such other information which the department determines may be necessary to identify and inventory the land."

SECTION 9. Section 186-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any property of not less than ten acres:

(1) Included within the important agricultural lands district pursuant to section 205-2; or

(2) Included within the conservation district and zoned for commercial forest use;

is eligible for classification as tree farm property if it is suited for the raising of commercial tree species and other forest products in quantity sufficient to establish a business in the sale thereof."

SECTION 10. Section 196D-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Those functions identified in paragraphs (1) and (2) insofar as they relate to the permit application, review, processing, issuance, and monitoring of laws, and rules and to the enforcement of terms, conditions, and stipulations of permits and other authorizations issued by agencies with respect to the development, construction, installation, operation, maintenance, repair, and replacement of the project, or any portion or portions thereof, are transferred to the department. With respect to each of the statutory authorities cited in paragraphs (1) and (2), the transferred functions include all enforcement functions of the agencies or their officials under the statute cited as may be related to the enforcement of the terms, conditions, and stipulations of permits, including but not limited to the specific sections of the statute cited. "Enforcement", for purposes of this transfer of functions, includes monitoring and any other compliance or oversight activities reasonably related to the enforcement process. These transferred functions include:

(1) Such functions of the land use commission related to[: district boundary amendments as set forth in section 205-3.1 et seq.; and] changes in zoning as set forth in section 205-5; and

(2) The permit approval and enforcement functions of the director of transportation or other appropriate official or entity in the department of transportation related to permits or approvals issued for the use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266."

SECTION 11. Section 201G-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The corporation may develop public land in an agricultural district subject to the prior approval of the land use commission[,] and the department of agriculture when developing lands [greater than five acres in size,] in the important agricultural lands district, and public land in a conservation district subject to the prior approval of the board of land and natural resources. The corporation shall not develop state monuments or historical sites, or parks. When the corporation proposes to develop public land, it shall file with the department of land and natural resources a petition setting forth such purpose. The petition shall be conclusive proof that the intended use is a public use superior to that which the land has been appropriated."

SECTION 12. Section 205-2, Hawaii Revised Statutes, is amended to read as follows:

"205-2 Districting and classification of lands. (a) There shall be [four] three major land use districts in which all lands in the State shall be placed: [urban, rural, agricultural, and conservation.] important agricultural lands, conservation, and other lands. The land use commission shall group contiguous land areas suitable for inclusion in one of these [four] three 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;

(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

(4)] (1) In the establishment of the boundaries of the important agricultural lands districts, the greatest possible protection shall be given to:

(A) Lands in the State which, as a resource with certain physical settings, are capable of producing sustained high agricultural yields when treated and managed according to modern farming methods and technology;

(B) Lands which contribute to the State's economic base and produce commodities for export and for local consumption;

(C) Lands currently not in production but which are needed to attain the desired projected levels of agricultural activities and income;

(D) Lands which are irrigated as well as those lands which are not currently irrigated but which can produce higher yields if irrigation is made available; and

(E) Lands which are considered important because of some unique quality, setting, or use.

The important agricultural lands district may exclude lands, which on the basis of site assessment criteria are deemed inappropriate or economically unfeasible for agricultural use, or which have been designated by the State or the counties to be of greater benefit to the public to be in some current or non-agricultural use;

(2) 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, watersheds and water sources; indigenous or endemic plants, fish and wildlife including those which are threatened or endangered; park lands, wilderness and beach reserves; shoreline and coastal resources; native forests and other forested areas; wetlands, natural streams, and lakes; scenic, historic, archaeological, and cultural areas; 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[.]; and

(3) In establishment of the boundaries of the other lands districts, urban and rural lands, as well as those agricultural lands falling below the threshold of lands within the important agricultural lands district shall be included.

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.

(d) Agricultural districts shall include activities or uses as characterized by the cultivation of crops, orchards, forage, and forestry; farming activities or uses related to animal husbandry, aquaculture, and game and fish propagation; aquaculture, which means the production of aquatic plant and animal life for food and fiber within ponds and other bodies of water; wind generated energy production for public, private, and commercial use; bona fide agricultural services and uses which 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, and roadside stands for the sale of products grown on the premises; wind machines and wind farms; 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 such facilities shall not be used as or equipped for use as living quarters or dwellings; agricultural parks; and open area recreational facilities, including golf courses and golf driving ranges; provided that they are not located within agricultural district lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B.

These districts may include areas which are not used for, or which are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics.]

(b) The important agricultural lands district shall include activities or uses as provided in section 205-4.5.

[(e)] (c) Conservation districts shall include areas necessary for protecting watersheds and water sources; preserving scenic and historic areas; providing park lands, wilderness, and beach reserves; conserving indigenous or endemic plants, fish, and wildlife, including those which are threatened or endangered; preventing floods and soil erosion; forestry; 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; areas of value for recreational purposes; other related activities; and other permitted uses not detrimental to a multiple use conservation concept.

(d) The other lands district shall include activities and uses as provided by the ordinances of the county within which the district is situated."

SECTION 13. Section 205-4, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

"205-4 Amendments to district boundaries [involving land areas greater than fifteen acres]. (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. [This section applies to all petitions for changes in district boundaries of lands within conservation districts and all petitions for changes in district boundaries involving 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 14. Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

"205-4.5 Permissible uses within the important agricultural lands districts. (a) Within the important agricultural lands 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 but not limited to flowers, vegetables, foliage, fruits, forage, 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) Farm dwellings, employee housing, farm buildings, or activity or uses related to farming and animal husbandry[; Farm dwelling as]. As used in this paragraph, "farm dwelling" 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 which 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, or treatment plants, or corporation yards, or other like 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 [but not limited to] employee housing, farm buildings, mills, storage, and processing facilities, maintenance facilities, and vehicle and equipment storage areas that are normally considered directly accessory to the [abovementioned] uses [and are] permitted under [section 205-2(d);] this subsection;

(11) Agricultural parks; or

(12) Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that such facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land.

(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 important agricultural lands 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 the [said A and B] lands within the subdivision [shall be] 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 subdivision in the important agricultural [subdivision] lands district shall expressly contain the restriction on uses and the condition as prescribed in this section which restriction and condition shall be encumbrances running with the land until such time that the land is reclassified to a land use district other than important agricultural lands district.

If the foregoing requirement of encumbrances running with the land jeopardizes the owner or lessee from obtaining mortgage financing from any of the mortgage lending agencies set forth hereinbelow, and [said] the requirement is the sole reason for failure to obtain mortgage financing, then [such] the requirement of encumbrances [shall], insofar as such mortgage financing is so jeopardized, shall be conditionally waived by the appropriate county enforcement officer; provided that [such] the conditional waiver shall thereafter become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

The mortgage lending agencies mentioned [hereinabove] in this subsection are the Federal Housing Administration, Federal National Mortgage Association, Department of Veterans [Administration,] Affairs, 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).]"

SECTION 15. Section 205-5, Hawaii Revised Statutes, is amended to read as follows:

"205-5 Zoning. (a) Except as [herein] provided[,] in this chapter, the powers granted to counties under section 46-4 shall govern the zoning within the districts, other than in conservation districts. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.

(b) Within the important agricultural lands districts, uses compatible to the activities described in section [205-2] 205-4.5 as determined by the department of agriculture after consulting with the commission shall be permitted[; provided that accessory agricultural uses and services described in sections 205-2 and 205-4.5 may be further defined by each county by zoning ordinance]. Other uses may be allowed by special permits issued pursuant to this chapter. The minimum lot size in the important agricultural lands districts shall be determined by the department of agriculture after consulting with each county [by zoning ordinance, subdivision ordinance, or other lawful means;] through rules adopted in accordance with chapter 91 by the board of agriculture; provided that the minimum lot size for any agricultural use shall not be less than one acre, except as provided [herein.] in this section. If the county finds that unreasonable economic hardship to the owner or lessee of land cannot otherwise be prevented or where land utilization is improved, the county, after consulting with the department of agriculture, may allow lot sizes of less than the minimum lot size as specified by law for lots created by a consolidation of existing lots within an important agricultural lands district and the resubdivision thereof; provided that [the]

(1) The consolidation and resubdivision do not result in an increase in the number of lots over the number existing prior to consolidation; and [provided further that in]

(2) In no event shall a lot, which is equal to or exceeds the minimum lot size of one acre be less than that minimum after the consolidation and resubdivision action. The county, after consulting with the department of agriculture, may also allow lot sizes of less than the minimum lot size as specified by law for lots created or used for public, private, and quasi-public utility purposes, and for lots resulting from the subdivision of abandoned roadways and railroad easements.

[(c) Unless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts:

(1) Low density residential uses;

(2) Agricultural uses; and

(3) Public, quasi-public, and public utility facilities.

In addition, the minimum lot size for any low density residential use shall be one-half acre and there shall be but one dwelling house per one-half acre, except as provided for in section 205-2.]"

SECTION 16. Section 205-5.1, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a), (b), and (c) to read:

"(a) Geothermal resource subzones may be designated within the [urban, rural, agricultural, and] important agricultural lands, conservation, and other lands land use districts established under section 205-2. Only those areas designated as geothermal resource subzones may be utilized for geothermal development activities in addition to those uses permitted in each land use district under this chapter. Geothermal development activities may be permitted within [urban, rural, agricultural, and] important agricultural lands, conservation, and other lands land use districts in accordance with this chapter. "Geothermal development activities" means the exploration, development, or production of electrical energy from geothermal resources and direct use applications of geothermal resources; provided that within the [urban, rural, and agricultural] important agricultural lands and the other lands land use districts, direct use applications of geothermal resources are permitted both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter.

(b) The board of land and natural resources shall have the responsibility for designating areas as geothermal resource subzones as provided under section 205-5.2; except that the total area [within an agricultural district] which is the subject of a geothermal mining lease approved by the board of land and natural resources, any part or all of which area is the subject of a special use permit issued by the county for geothermal development activities, on or before May 25, 1984, is designated as a geothermal resource subzone for the duration of the lease. The designation of geothermal resource subzones shall be governed exclusively by this section and section 205-5.2, except as provided therein. The board shall adopt, amend, or repeal rules related to its authority to designate and regulate the use of geothermal resource subzones in the manner provided under chapter 91.

The authority of the board to designate geothermal resource subzones shall be an exception to those provisions of this chapter and of section 46-4 authorizing the land use commission and the counties to establish and modify land use districts and to regulate uses therein. The provisions of this section shall not abrogate [nor] or supersede the provisions of chapters 182, 183, and 183C.

(c) The use of an area for geothermal development activities within a geothermal resource subzone shall be governed by the board within the conservation district and, except as [herein] provided[,] in this chapter, by state and county statutes, ordinances, and rules not inconsistent herewith within [agricultural, rural, and urban] the important agricultural lands and the other lands districts, except that no land use commission approval or special use permit procedures under section 205-6 shall be required for the use of such subzones. In the absence of provisions in the county general plan and zoning ordinances specifically relating to the use and location of geothermal development activities in an [agricultural, rural, or urban] important agricultural lands or other lands district, the appropriate county authority may issue a geothermal resource permit to allow geothermal development activities. "Appropriate county authority" means the county planning commission unless some other agency or body is designated by ordinance of the county council. Such uses as are permitted by county general plan and zoning ordinances, by the appropriate county authority, shall be deemed to be reasonable and to promote the effectiveness and objectives of this chapter. Chapters [177, 178,] 182, 183, 183C, 205A, 226, [342,] 342B to 342N, and 343 shall apply as appropriate. If provisions in the county general plan and zoning ordinances specifically relate to the use and location of geothermal development activities in an [agricultural, rural, or urban] important agricultural lands or other lands district, the provisions shall require the appropriate county authority to conduct a public hearing on any application for a geothermal resource permit to determine whether the use is in conformity with the criteria specified in subsection (e) for granting geothermal resource permits; provided that within the [urban, rural, and agricultural] important agricultural lands or other lands land use districts, direct use applications of geothermal resources are permitted without any application for a geothermal resource permit both within and outside of areas designated as geothermal resource subzones pursuant to section 205-5.2 if such direct use applications are in conformance with all other applicable state and county land use regulations and are in conformance with this chapter."

2. By amending subsection (e) to read:

"(e) If geothermal development activities are proposed within [agricultural, rural, or urban] important agricultural lands or other lands districts and such proposed activities are not permitted uses pursuant to county general plan and zoning ordinances, then after receipt of a properly filed and completed application, including all required supporting data, the appropriate county authority shall conduct a public hearing. Upon appropriate request for mediation from any party who submitted comment at the public hearing, the county authority shall appoint a mediator within five days. The county authority shall require the parties to participate in mediation. The mediator shall not be an employee of any county agency or its staff. The mediation period shall not extend beyond thirty days after mediation started, except by order of the county authority. Mediation shall be confined to the issues raised at the public hearing by the party requesting mediation. The mediator will submit a written recommendation to the county authority, based upon any mediation agreement reached between the parties for consideration by the county authority in its final decision. If there is no mediation agreement, the county authority may have a second public hearing to receive additional comment related to the mediation issues. Within ten days after the second public hearing, the county authority may receive additional written comment on the issues raised at the second public hearing from any party.

The county authority shall consider the comments raised at the second hearing before rendering its final decision. The county authority shall then determine whether a geothermal resource permit shall be granted to authorize the geothermal development activities described in the application. The appropriate county authority shall grant a geothermal resource permit if it finds that the applicant has demonstrated that:

(1) The desired uses would not have unreasonable adverse health, environmental, or socio-economic effects on residents or surrounding property;

(2) The desired uses would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage, school improvements, and police and fire protection; and

(3) [That there] There are reasonable measures available to mitigate the unreasonable adverse effects or burdens referred to above.

Unless there is a mutual agreement to extend, a decision shall be made on the application by the appropriate county authority within six months of the date a complete application was filed; provided that the time limit may be extended by agreement between the applicant and the appropriate county authority."

SECTION 17. Section 205-6, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) The county planning commission, in consultation with the department of agriculture, may permit certain unusual and reasonable uses within [agricultural and rural] the important agricultural lands districts other than those for which the district is classified. Any person who desires to use the person's land within an important agricultural [or rural] lands district other than for an agricultural [or rural] use[, as the case may be,] may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. Each county may establish the appropriate fee for processing the special permit petition.

(b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule or regulation, the time within which the hearing and action on petition for special permit shall occur. The county planning commission shall notify the land use commission, the department of agriculture, and such persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

(c) The county planning commission [may], in consultation with the department of agriculture, under such protective restrictions as may be deemed necessary, may permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter. A decision in favor of the applicant shall require a majority vote of the total membership of the county planning commission."

SECTION 18. Section 205-8, Hawaii Revised Statutes, is amended to read as follows:

"205-8 Nonconforming uses. The lawful use of land or buildings existing on the date of establishment of any interim important agricultural lands district [and rural district] in final form may be continued although the use, including lot size, does not conform to this chapter; provided that no nonconforming building shall be replaced, reconstructed, or enlarged or changed to another nonconforming use and no nonconforming use of land shall be expanded or changed to another nonconforming use. In addition, if any nonconforming use of land or building is discontinued or held in abeyance for a period of one year, the further continuation of such use shall be prohibited."

SECTION 19. Section 205-12, Hawaii Revised Statutes, is amended to read as follows:

"205-12 Enforcement. The appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted by the land use commission and the restriction on use and the condition relating to important agricultural lands districts under section 205-4.5 and shall report to the commission all violations."

SECTION 20. Section 205-18, Hawaii Revised Statutes, is amended to read as follows:

"205-18 Periodic review of districts. (a) The office of planning shall undertake a review of the classification and districting of all lands in the State, within five years from December 31, 1985, and every fifth year thereafter. The office, in its five-year boundary review, shall focus its efforts on reviewing the Hawaii state plan, county general plans, and county development and community plans. Upon completion of the five- year boundary review, the office shall submit a report of the findings to the commission. The office may initiate state land use boundary amendments which it deems appropriate to conform to these plans. The office may seek assistance of appropriate state and county agencies and may employ consultants and undertake studies in making this review.

(b) The five-year boundary review shall be conducted to review all district boundaries and shall include, but not be limited to:

(1) A review of agricultural production goals for export commodities and local consumption commodities and an identification of agricultural land requirements to support such goals;

(2) A review of lands in the agricultural district to identify lands which are below the land evaluation threshold rating; are not important agricultural lands; and are not in productive agricultural use, to determine their suitability for conservation, or other land uses;

(3) A review of lands in the conservation district with emphasis on lands within the general subzone to identify lands which may be appropriate to reclassify to the other lands district;

(4) A review of lands to identify areas with high value for conservation use in order to ensure the protection of natural resources, including watershed and water sources; indigenous or endemic plants, fish, and wildlife including those which are threatened or endangered; park lands, wilderness, and beach reserves; shoreline and coastal resources; native forests and other forested areas; wetlands, natural streams and lakes; scenic, historic, archaeological and cultural areas; recreational resources; areas highly susceptible to erosion, landslides, flooding, volcanic hazards, and other conditions which may threaten lives or property and other areas which meet the criteria for conservation districts under this chapter; and

(5) Identification of requirements for lands in the other lands district to provide opportunities for affordable housing and accommodate population growth and economic development.

(c) The office of planning shall submit maps to the commission identifying the proposed boundaries of the conservation, important agricultural, and other lands districts."

SECTION 21. Section 246-12, Hawaii Revised Statutes, is amended:

1. By amending subsections (a), (b), and (c) to read:

"(a) A special land reserve is established to enable the owner of any parcel of land within an important agricultural lands district, [a rural district,] a conservation district, or an [urban] other lands district to dedicate [his] the land for a specific ranching or other agricultural use and to have [his] the land assessed at its value in such use provided that if the land is located within an [urban] other lands district, (1) a lessee of the land with a term of ten or more years remaining from the date of the petition shall also be deemed an owner of the land within these provisos; (2) the land dedicated must be used for the cultivation of crops such as sugar cane, pineapple, truck crops, orchard crops, ornamental crops, or the like; (3) the land dedicated must have been substantially and continuously used for the cultivation of crops such as sugar cane, pineapple, truck crops, orchard crops, ornamental crops, or the like for the five-year period immediately preceding the dedication request; provided further that land situated within an important agricultural lands district may be dedicated for a period of twenty years and shall be taxed at fifty per cent of its assessed value in such use.

(b) If any owner desires to use [his] the owner's land for a specific ranching or other agricultural use and to have [his] the land taxed at its assessed value in this use or fifty per cent of its assessed value as the case may be, [he] the owner shall so petition the director of taxation and declare in [his] the owner's petition that [his] the land can best be used for the purpose for which [he] the owner requests permission to dedicate [his] the land and that if [his] the owner's petition is approved [he] the owner will use [his] the land for this purpose.

Upon receipt of any such petition, the director shall request the department of agriculture to make a finding of fact as to whether the land in the petitioned area is reasonably well suited for the intended use. The finding of the department of agriculture shall include and be based upon the productivity ratings of the land in those uses for which it is best suited, a study of the ownership, size of operating unit, and present use of surrounding similar lands and other criteria as may be appropriate.

The director shall also request the director of business, economic development, and tourism to make a finding of fact as to whether the intended use is in conflict with the over-all development plan of the State.

If both findings are favorable to the owner, the director shall approve the petition and declare that the owner's land is dedicated land; provided that for lands in [urban] the other lands districts, the director shall make further findings respecting the economic feasibility of the intended use of the land. If all three findings are favorable, the director shall approve the petition and declare the land to be dedicated. A change in the dedicated use may be made by petition as provided in this subsection.

(c) The approval by the director of the petition to dedicate shall constitute a forfeiture on the part of the owner of any right to change the use of the owner's land to a use other than agriculture for a minimum period of ten years or twenty years as the case may be, automatically renewable indefinitely, subject to cancellation as follows:

(1) In the case of a ten-year dedication, the owner, after the ninth year and years thereafter, may give notice of cancellation by filing with the director[,] a written notice of cancellation[,] on or before April 9, to be effective as of January 1 of the following year;

(2) In the case of a twenty-year dedication, the owner, during the nineteenth year and years thereafter, may give notice of cancellation as provided by this subsection;

(3) In the case of a change in major land use classification not as a result of a petition by any property owner or lessee such that the owner's land is placed within an [urban] other lands district, the dedication may be canceled within sixty days of the change by the owner.

Upon any conveyance or any change in ownership during the period of dedication, the land shall continue to be subject to the terms and conditions of the dedication unless a release has been issued by the director."

2. By amending subsection (h) to read:

"(h) A special land reserve is established to enable the owner of any parcel of land within an [urban] other lands district to dedicate [his] the land for a specific livestock use such as feed lots, calf-raising and like operations in dairy, beef, swine, poultry and aquaculture, but excluding grazing or pasturing, and to have [his] the land assessed at its value in such use; provided that (1) a lessee of the land with a term of ten or more years remaining from the date of the petition shall also be deemed an owner of the land within these provisos; (2) the land dedicated must be used for livestock uses such as feed lots, calf-raising, and like operations in dairy, beef, swine, poultry and aquaculture but excluding grazing or pasturing; (3) the land dedicated must have been substantially and continuously used in the livestock uses enumerated in (2) hereinabove; (4) and such livestock use must be compatible with the surrounding uses."

SECTION 22. Section 246-34, Hawaii Revised Statutes, is amended:

1. By amending its title to read as follows:

"246-34 Exemption, dedicated lands in [urban] other lands districts."

2. By amending subsection (b) to read as follows:

"(b) Any owner of taxable real property in an [urban] other lands district desiring to dedicate a portion or portions thereof for landscaping, open spaces, public recreation, and other similar uses shall petition the director of taxation stating the exact area of the land to be dedicated and that the land is not within the setback and open space requirements of applicable zoning and building code laws and ordinances, and that the land shall be used, improved, and maintained in accordance with and for the sole purpose for which it was dedicated, except that land within a historic district may be so dedicated without regard to the setback and open space requirements of applicable zoning and building code laws and ordinances.

The director shall make a finding as to whether the use to which such land will be dedicated has a benefit to the public at least equal to the value of the real property taxes for such land. Such finding shall be measured by the cost of improvements, the continuing maintenance thereof, and such other factors as the director may deem pertinent. If the director finds that the public benefit is at least equal to the value of real property taxes for such land, the director shall approve the petition and declare such land to be dedicated land."

SECTION 23. Section 205-3.1, Hawaii Revised Statutes, is repealed.

["205-3.1 Amendments to district boundaries. (a) District boundary amendments involving land areas greater than fifteen acres 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 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 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 agricultural, rural, and urban districts.

(c) District boundary amendments involving land areas of fifteen acres or less, except in conservation districts, shall be determined by the appropriate county land use decision-making authority for said district and shall not require consideration by the land use commission pursuant to section 205-4. District boundary amendments involving land areas of fifteen acres or less in conservation districts shall be processed by the land use commission pursuant to section 205-4. 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) 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 24. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 25. This Act shall take effect upon its approval.

INTRODUCED BY:

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