Report Title:

Land use; important agricultural lands

Description:

Establishes standards and criteria and process for identification of important agricultural lands. Provides a one-time process to reclassify lands of low agricultural resource value to the rural land use district. Amends the permissible uses within the rural land use district.

THE SENATE

S.B. NO.

2877

TWENTY-FIRST LEGISLATURE, 2002

 

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 the State Constitution requires the State to conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency, and assure the availability of agriculturally suitable lands. Article XI, section 3, of the State Constitution directs the legislature to provide standards and criteria to achieve these objectives.

Furthermore, article XI section 3, prohibits the reclassification by the State or the rezoning by the counties of lands identified by the State as important agricultural lands without meeting these standards and criteria, and requires approval by two-thirds of the membership of the decision-making body.

The legislature finds there has been a dramatic shift in agriculture in Hawaii. Former plantation lands, once dedicated to sugarcane and pineapple production, are now producing diversified crops. Niche markets for specialty, high-value agricultural crops have emerged.

The legislature finds that the conservation of the State's strategic agricultural land resources is not only critical to the long-term viability of agriculture and State efforts to diversify and expand Hawaii's economic base, but it is also vital to the quality of the visitor experience, and the livelihood and well-being of Hawaii residents. Thus, the legislature finds there is a need to fulfill the State's obligation under article XI, section 3, of the State Constitution to sustain Hawaii's agricultural capability and diversify the State's economy.

The legislature further finds that the state rural land use district offers an important tool for accommodating appropriately-scaled urban and non-agricultural rural uses, such as recreational uses, and the siting of agricultural support activities and buffering agricultural and conservation district lands from urban land uses. With less than 0.25 per cent of all lands in the State classified in the rural land use district, the rural district is an underutilized tool in the statewide land use management system. Accordingly, there is a need to strengthen policy guidance for the establishment of land use patterns that preserve the State's rural heritage and rural and agricultural land resources, while allowing greater flexibility for rural development and rural economic opportunities.

The purpose of this Act is to:

(1) Establish the standards, criteria, and process for the identification of important agricultural lands to the State. The legislature recognizes that this Act is only the first step in addressing the state constitutional mandate, and that further legislation is required to fully implement the constitutional mandate;

(2) Create a more viable rural district that would absorb development pressures that are currently directed at the agricultural district; and

(3) Provide a one-time process by which lands of low agricultural resource value or those already subdivided and developed for non-agricultural uses may be reclassified to the rural land use district. This will enable the State to focus its agricultural policies and programs on those lands identified as having significant resource value to the State's agricultural sector.

PART I

SECTION 2. Chapter 205, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . IMPORTANT AGRICULTURAL LANDS

§205-A Definitions. As used in this part, unless the context otherwise requires:

"ALISH" means the agricultural lands of importance to the State of Hawaii.

"Important agricultural lands" means those lands identified by the State that:

(1) Are capable of producing sustained high agricultural yields when treated and managed according to accepted farming methods and technology;

(2) Contribute to the economic base of the State and produce agricultural commodities for export or local consumption; or

(3) Are needed to promote the expansion of agricultural activities and income for the future, even if currently not in production.

§205-B Important agricultural lands; policies. (a) State and county agricultural policies, land use plans, ordinances, and rules governing agricultural lands shall promote the long-term viability of agricultural use of important agricultural lands, and shall be consistent with and implement the following policies:

(1) Promote the retention of important agricultural lands in blocks of contiguous, intact, and functional land units large enough to allow flexibility in agricultural production and management;

(2) Discourage the fragmentation of important agricultural lands and the conversion of these lands to non-agricultural uses;

(3) Direct non-agricultural uses and activities from important agricultural lands to other areas and ensure that uses on important agricultural lands are agricultural uses;

(4) Buffer important agricultural lands from urban or incompatible uses and minimize nuisance conflicts that could impair agricultural activities;

(5) Encourage limited physical improvements on important agricultural lands to maintain affordability of these lands for agricultural purposes;

(6) Provide a basic level of infrastructure and services limited to the minimum necessary to support agricultural uses and activities;

(7) Facilitate the long-term dedication of important agricultural lands for future agricultural use;

(8) Facilitate access of farmers to important agricultural lands for long-term agricultural use; and

(9) Promote the maintenance of essential agricultural infrastructure systems, including irrigation systems.

(b) Uses on important agricultural lands shall be restricted to agricultural uses and uses that directly support or are essential for agricultural production; provided that the uses, as far as practicable, require minimal services or physical improvements to the land.

§205-C Classes, standards, and criteria for designation of important agricultural lands. (a) The classes, standards, and criteria of the ALISH classification system adopted by the board of agriculture on January 28, 1977, shall serve as the basis for the designation and review of the important agricultural lands of the State.

(b) The ALISH classification system and the technical criteria contained therein shall generally conform to the classification system of the United States Department of Agriculture under 7 Code of Federal Regulations Part 657.5, as amended. Important agricultural lands shall consist of three classes as defined in the ALISH system:

(1) Prime agricultural land: These lands are defined as lands with the best combination of physical and chemical characteristics for the production of food, feed, forage, fiber, and oilseed crops, and are not urban built-up lands or water bodies. These lands have the soil quality, growing season, and moisture supply needed to produce sustained high yields of crops with the least amount of inputs when treated and managed, including water management, according to accepted farming methods;

(2) Unique agricultural land: These lands are defined as lands that do not meet the prime agricultural land criteria but are used for the production of specific high-value crops of significance to the state or local economy. Unique high-value crops may include but not be limited to coffee, macadamia nuts, or other tree and bush crops, taro, rice, watercress, non-irrigated pineapple, and other fruits and vegetables. These lands have the special combination of physical, soil, climatic, or other conditions, such as nearness to market, that favor the production of a specific crop of high quality, high yield, or both, when the land is treated and managed according to accepted farming methods; and

(3) Other important agricultural land: These lands are defined as lands that do not meet the criteria for prime or unique agricultural land but are of statewide or local importance for the production of food, feed, fiber, forage, and oilseed crops. The lands in this class are important to agriculture in Hawaii, yet exhibit properties, such as seasonal wetness, erodibility, limited rooting zone, slope, flooding, or inadequate moisture supply, that exclude them from the prime or unique classifications. These lands can be farmed satisfactorily by providing irrigation, applying fertilizer and other soil amendments, drainage improvements, erosion control practices, or flood protection, and produce fair to good crop yields when managed properly.

(c) The soil survey map units listed as meeting the requirements for national prime farmland by the United States Department of Agriculture, Natural Resources Conservation Service, Honolulu, Hawaii, pursuant to 7 Code of Federal Regulations Part 657.5, as amended, shall be classified as prime agricultural land.

(d) Important agricultural lands to the State of Hawaii shall not include lands that are classified in the state urban land use district, lands zoned by a county for urban use, or lands designated for urban use in the land use maps of an adopted county general plan or an adopted county development or community plan.

(e) This part shall not preclude identification by the counties of additional agricultural lands for highest agricultural protection under county ordinances and rules.

§205-D Designation, review of important agricultural lands. (a) The lands classified as important agricultural lands on the ALISH maps published by the department of agriculture in January 1977, shall be the important agricultural lands of the State until such time as the maps are amended by the land use commission pursuant to this section. Any review and amendment of the maps of important agricultural lands shall be conducted in accordance with this section.

(b) The office of planning and the department of agriculture shall conduct a public review of the maps of important agricultural lands at least once every ten years, and no more than once every five years. The office and the department may submit recommendations to the land use commission for changes in the delineation of important agricultural lands based on the review findings.

(c) The land use commission shall consider the proposed changes in the delineation of important agricultural lands to the State and amend the important agricultural lands maps, through notice and public meetings in accordance with chapter 92. The adoption of the new maps of important agricultural lands shall be approved by two-thirds of the membership to which the land use commission is entitled.

(d) In preparing recommendations for the land use commission, the office of planning and the department of agriculture, in consultation with farmers and agricultural interests, shall reapply the standards and criteria of the ALISH system to identify changes in agricultural opportunities and agricultural conditions that would warrant changes in the classification of lands designated as important agricultural lands on the ALISH maps. The office of planning and the department of agriculture shall consult and collaborate with the county planning agencies, and stakeholder groups and community members on each island to identify potential changes to the important agricultural lands maps. The groups to be consulted shall include but not be limited to:

(1) Small and large farmers;

(2) Other agricultural interest groups such as the Hawaii Farm Bureau Federation, state and federal agricultural research and service agencies, including the United States Department of Agriculture - Natural Resources Conservation Service;

(3) Landowners and business interests;

(4) Agricultural workers;

(5) County and state agencies;

(6) Environmental organizations;

(7) Native Hawaiian organizations; and

(8) Other groups as necessary.

The office of planning and the department of agriculture shall ensure that opportunities for public participation and comment are provided in each county in the identification and development of recommendations for changes in the delineation of important agricultural lands. At least one public information meeting shall be held in each county prior to the issuance of the final recommendations to the commission. The office of planning and the department of agriculture may hold other public information meetings as frequently as deemed necessary and feasible.

(e) The land use commission shall conduct at least one public meeting in each county to solicit comments and concerns regarding the recommendations for changes in the delineation of important agricultural lands. At the time the commission adopts the maps designating important agricultural lands, the commission shall also adopt a report or findings to include:

(1) Comments received in the public meeting process;

(2) The basis for the designation of important agricultural lands;

(3) Concerns or issues related to the designations; and

(4) Any other criteria used to mark the boundaries of important agricultural lands.

(f) Copies of the maps of important agricultural lands adopted under this section shall be transmitted to each county planning department and each county council. The maps of important agricultural lands shall guide all decision-making on the proposed reclassification or rezoning of important agricultural lands, state agricultural development programs, and other state and county land use planning and decision-making.

(g) The land use commission shall have the sole authority to interpret the adopted map boundaries delineating the important agricultural lands to the State of Hawaii.

§205-E Decision-making criteria for important agricultural lands. (a) Any land use district boundary amendments, county general and community or development plan amendments, changes in zoning, or special permits involving important agricultural lands in the state agricultural land use district as of the effective date of this Act and thereafter shall be subject to this section.

(b) Any decision of the land use commission and any decision of any county on a land use district boundary amendment, county general and community or development plan amendment, change in zoning, or special permit involving important agricultural lands in the agricultural district, shall be approved by the body responsible for the decision by a two-thirds vote of the membership to which the body is entitled.

(c) Any land use commission or county decision pursuant to this section shall be based on the following decision-making criteria:

(1) The importance of the land for agriculture based on the land’s agricultural suitability and the stock of similarly suited lands on the island where the land is situated;

(2) The impact the proposed district boundary amendment, plan amendment, zone change, permit, or use will have on the productivity or viability of agricultural activities in the surrounding area, and the impact, if any, on the viability of other agricultural activities or operations that share infrastructure, processing, marketing, or other production-related costs or facilities with the agricultural activities on the land in question;

(3) The degree to which the district boundary amendment, plan amendment, zone change, permit, or use would contribute to the fragmentation of or intrusion of non-agricultural uses into largely intact areas of important agricultural lands;

(4) The degree to which the proposed district boundary amendment, plan amendment, zone change, permit, or use is consistent with and implements the land use policies and patterns in the adopted county general plan and development or community plans;

(5) The public benefit to be derived from the proposed use, in terms of meeting a demonstrated need for housing, employment, economic development, or public facilities;

(6) The need for additional lands for non-agricultural or residential purposes based on available zoned capacity of lands in the urban and rural districts; and

(7) The impact of the proposed district boundary amendment, plan amendment, zone change, permit, or use on the capacity of State and county agencies to provide and support additional infrastructure or services in the project area.

Any decision shall be based upon a written finding that on balance the public benefit from the proposed district boundary amendment, plan amendment, zone change, permit, or use outweighs the retention of the land for agricultural purposes, and that the proposed action will have no significant impact upon the viability of agricultural operations on adjacent agricultural lands.

(d) The decision-making criteria of this section shall be in addition to the decision-making criteria of section 205-17 governing decisions of the land use commission under this chapter, and the decision-making criteria adopted by each county governing decisions of county decision-making authorities under this chapter.

(e) Upon acceptance by the county for processing, any application for a county general plan and community or development plan amendment involving important agricultural lands in the agricultural district shall be referred to the department of agriculture and the office of planning for review and comment."

SECTION 3. Section 205-2, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) There shall be four major land use districts in which all lands in the State shall be placed: urban, rural, agricultural, and conservation. The land use commission shall group contiguous land areas suitable for inclusion in one of these four 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] and open space 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;] uses and rural centers shall be included as provided in this section;

(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[;], to include those lands delineated as important agricultural lands under this chapter; and

(4) In the establishment of the boundaries of conservation districts, 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.

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."

2. By amending subsections (c) and (d) to read:

"(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.]

The purpose of the rural district is to protect and enhance the character and economies of rural communities. The rural district shall be used to:

(1) Site agricultural support activities, other natural resource-based activities, and low-intensity non-agricultural uses;

(2) Buffer and protect agricultural land and resources from non-agricultural uses for present and future cultivation;

(3) Maintain the integrity of open space and scenic vistas of rural landscapes; and

(4) Protect natural resources within the rural district.

Areas in the rural district shall be characterized by a regional land use pattern of predominantly open landscapes of farmland and contiguous open space and natural areas with small, mixed-use rural towns or rural service centers interspersed in the physical landscape. The rural district may include contiguous areas that are not suited to physical development because of topography, soils, unique conservation values, or other related characteristics.

Physical development in the rural district shall be of small scale and low density, with a level of physical infrastructure and services substantially lower than in urban areas, except where higher densities are allowed within the limits of rural centers. A rural center shall be physically compact with a well-defined edge, characterized by a core area having a mix of residential uses, public and commercial services, and economic activities primarily serving residents within the center and adjacent rural and agricultural areas. Physical development within rural centers shall be compatible with the scale, historic character, and physical form of existing rural centers and surrounding rural landscapes. Development outside of designated rural centers should be clustered to maximize the preservation of open space, and to minimize the cost of physical infrastructure and alteration to the natural landscape.

Non-farm uses and new rural development shall be directed as far as practicable to existing or designated rural centers. Development that would result in strip development along roads or result in uniform subdivision and development of parcels shall be discouraged. Rural district areas shall also serve to spatially separate urban settlements from agricultural or natural landscapes to protect these resources and to mitigate land use conflicts and nuisances.

Agriculture shall be a principal permitted use in the rural district. Rural districts may include other activities or uses as defined by ordinances or rules adopted by each county, pursuant to section 205-5.

(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] the 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] on agricultural district lands [with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B.] that are delineated as important agricultural lands on maps of the agricultural lands of importance to the State of Hawaii classification system.

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."

SECTION 4. Section 205-3.1, Hawaii Revised Statutes, is amended to read as follows:

"§205-3.1 Amendments to district boundaries. (a) District boundary amendments involving land in the conservation district, land areas greater than fifteen acres, or land delineated as important agricultural lands pursuant to this chapter 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[.], and lands less than fifteen acres in the agricultural district that are not delineated as important agricultural lands.

(c) District boundary amendments involving land areas of fifteen acres or less, except [in conservation districts,] as provided in subsection (a), shall be determined by the appropriate county land use decision-making authority for [said] the district and shall not require consideration by the land use commission pursuant to section 205-4[.]; provided that such boundary amendments and approved uses are consistent with the provisions of this chapter as amended. [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] those 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, the office of planning, and the department of business, economic development, and tourism and shall notify the commission, the office, 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, the office of planning, and the department of business, economic development, and tourism by the county planning director."

SECTION 5. Section 205-4, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(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, lands delineated as important agricultural lands pursuant to this chapter, 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."

2. By amending subsection (h) to read:

"(h) No amendment of a land use district boundary shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and part of this chapter, and consistent with the policies and criteria established pursuant to sections 205-16 [and], 205-17[.], and 205-E. Six affirmative votes of the commission shall be necessary for any boundary amendment under this section."

SECTION 6. Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

"§205-4.5 [Permissible] Interim permissible uses within the agricultural districts. (a) Within the agricultural district all lands [with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B] delineated as important agricultural lands on maps of the agricultural lands of importance to the State of Hawaii system 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 used in this paragraph means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling;

(5) Public institutions and buildings 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 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);

(11) Agricultural parks; or

(12) Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that [such] the 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 agricultural district [with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B] delineated as important agricultural lands shall be approved by a county unless the [said A and B] lands within the subdivision shall be made subject to the restriction on uses as prescribed in this section and to the condition that the uses shall be primarily in pursuit of an agricultural activity.

Any deed, lease, agreement of sale, mortgage, or other instrument of conveyance covering any land within the agricultural subdivision shall expressly contain the restriction on uses and the condition as prescribed in this section 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 agricultural 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] in this section, and the requirement is the sole reason for failure to obtain mortgage financing, then [such] the requirement of encumbrances shall, insofar as [such] that mortgage financing is so jeopardized, 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 section 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] not delineated as important agricultural lands shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b)."

SECTION 7. Section 205-5, Hawaii Revised Statutes, is amended to read as follows:

"§205-5 Zoning. (a) Except as [herein] provided[,] in this section, 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 agricultural districts, uses compatible to the activities described in section 205-2 as determined by 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 agricultural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that the minimum lot size for any agricultural use shall not be less than one acre, except as provided herein. 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 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 agricultural district and the resubdivision thereof; provided that 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 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 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.]

Each county shall adopt ordinances and rules for the rural district that define allowable uses, standards for physical development, infrastructure, and rural service levels, and rural design guidelines as needed, to govern land use and development in rural service centers and the rural district as a whole. The adopted ordinances or rules shall be consistent with and implement the policies and standards for the rural district contained in this chapter; provided that exclusive agricultural use zoning shall be permissible in the rural district. Uses within the rural district shall be restricted to activities or uses whose scale and impact do not alter the character of rural areas. Uses may include agriculture, animal husbandry, aquaculture or game propagation, agricultural support services, agricultural processing, residential uses, cottage or craft industries, non-agricultural businesses and establishments providing goods and services compatible with rural character and scale, outdoor recreational facilities including golf courses, forestry, public and quasi-public utilities, and passive open space.

The minimum lot size in rural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that only one dwelling unit shall be permitted per lot of record, except as provided by county ordinance pursuant to section 46-4(c), and the dwelling unit density in the rural district shall not exceed one dwelling unit per one-half acre of gross parcel area. Smaller lot sizes may be allowed on a parcel only if residential uses and any other uses are clustered and open space is preserved as permitted under an open space preservation subdivision ordinance adopted by the county.

(d) Each county shall manage and guide land use and development in the rural and agricultural districts to achieve the following objectives:

(1) Long-term preservation of open space for agriculture, forestry, ranching, and rural landscapes;

(2) Effective buffering of rural and agricultural areas from urban uses and avoidance of nuisance conflicts between rural, agricultural, and urban uses and activities;

(3) Avoidance of the fragmentation, alienation, or reduced productivity of agricultural areas;

(4) Location of non-farm uses in compact, mixed-use rural centers, where higher densities shall be allowed;

(5) Development that is compatible with the visual character of agricultural and rural areas, and the retention of rural landscape features, with respect to size, scale, lot coverage, materials used, natural vegetation, physical infrastructure, and architectural, historic, or cultural features;

(6) Minimal site alteration and disturbance that does not impair natural ecological processes, avoids disturbance or fragmentation of intact habitats, and protects important natural features and land forms, including scenic vistas, steep slopes and ridges, hazard zones, streams, wildlife habitats, or wetlands;

(7) Effective and appropriately scaled on-site water and wastewater systems that do not impair water quality or public health where development is not served by public water and sewer systems; and

(8) Infrastructure and physical improvements that are appropriate to rural and agricultural uses and do not create demand for urban infrastructure and services."

SECTION 8. Section 205-6, Hawaii Revised Statutes, is amended to read as follows:

"§205-6 Special permit. (a) [The] Subject to this section, the county planning commission may [permit certain unusual and reasonable] allow by special permit uses within the agricultural [and rural districts] district other than those [for which the district is classified.] explicitly provided for in sections 205-2(d) and 205-4.5. Any person who desires to use the person's land within an agricultural [or rural] district other than for an agricultural [or rural use, as the case may be,] use 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[.]; provided that the following conditions apply:

(1) The proposed use is consistent with the purpose, character, and performance standards established for the agricultural district pursuant to this chapter;

(2) The proposed use is dependent upon specific natural resources found on the property of the subject petition, or there is an overriding public benefit for the proposed use at the particular location and alternative site capacity for the particular use does not exist;

(3) The proposed use is consistent with and implements the land use policies and patterns in the adopted county general plan and community or development plans;

(4) The proposed use would not adversely affect surrounding properties or environment; and

(5) The proposed use would not unduly burden public agencies to provide infrastructure or services.

A petition for a proposed use which would in effect permanently displace agricultural use of the property as a result of permanent structures or improvements, or which is part of a larger development, shall be submitted to the land use commission, prior to acceptance for county processing, for a determination as to whether the petition shall be subject to a district boundary amendment pursuant to sections 205-3.1 or

205-4. Neither golf courses nor visitor accommodations greater than five units shall be permitted by special permit under this section.

Each county may establish the appropriate fee for processing the special permit petition. Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, and the department of agriculture.

(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 office of planning, the department of agriculture, and [such] any 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 under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use meets the conditions under subsection (a) of this section and the use would promote the effectiveness and objectives of this chapter. A decision in favor of the applicant shall require [a majority] an affirmative vote by two-thirds of the total membership of the county planning commission.

(d) Special permits for land the area of which is greater than fifteen acres or for lands delineated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting [such] the approval, including the adherence to representations made by the applicant.

(e) A copy of the decision together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands delineated as important agricultural lands shall be transmitted to the land use commission within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure.

(f) Land uses substantially involving or supporting educational ecotourism, related to the preservation of native Hawaiian endangered, threatened, proposed, and candidate species, that are allowed in an approved habitat conservation plan under section 195D-21 or safe harbor agreement under section 195D-22, which are not identified as permissible uses within the agricultural district under sections 205-2 and 205-4.5, may be permitted in the agricultural district by special permit under this section, on lands [with soils classified by the land study bureau’s detailed land classification as overall (master) productivity rating class C, D, E, or U.] that are not delineated as important agricultural lands pursuant to this chapter."

PART II

SECTION 9 (a) The office of planning shall prepare maps, in consultation with the county planning departments, displaying proposed new agricultural and rural district boundaries. Lands identified as important agricultural lands under this Act shall be retained in the agricultural district. The office shall identify lands within the agricultural district that are not identified as important agricultural lands that may be appropriate for reclassification to the rural district. The office shall develop criteria for this purpose; provided that priority shall be placed on the reclassification of those lands that are already subdivided and are developed for non-agricultural uses.

(b) The office of planning shall work with the county planning departments in the identification of potential areas for reclassification and in the preparation of the new agricultural and rural district classification maps for each county. The office may also consult with other affected state, county, and federal agencies and other private and community stakeholders in this process. The district boundary amendments proposed under this section shall be exempt from the provisions of sections 6E-2, 6E-8, and 6E-42, Hawaii Revised Statutes.

(c) The office of planning shall submit the proposed agricultural and rural district classification maps to the land use commission with a report documenting the criteria used and the rationale for the proposed district boundaries, the process used in developing proposed district boundaries, the stakeholders involved in the process, and the comments and concerns raised during the process.

(d) The commission shall hold at least one public meeting in accordance with chapter 92, Hawaii Revised Statutes, in each county prior to the final adoption by the commission of the new agricultural and rural district boundaries for that county. Notice of the time and place of the meeting shall be published in accordance with chapter 92, Hawaii Revised Statutes. 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 meeting. Any person wishing to file written recommendations or comments with the commission shall file the materials within fifteen days of the meeting.

(e) The commission shall approve, disapprove, or approve with modifications the district boundaries. The new district boundaries shall be approved by two-thirds of the membership to which the land use commission is entitled. The district boundaries shall be adopted in final form on or before December 31, 2004; provided that at the time of adoption, the land use commission shall also adopt a report or findings documenting the basis for the approved district boundaries, including the basis for any modifications to the recommended boundaries made by the commission.

(f) When adopting the new agricultural and rural district boundaries pursuant to this section, the commission shall specifically consider the following:

(1) The extent to which the proposed reclassification protects the important agricultural lands identified pursuant to this Act;

(2) The extent to which the proposed reclassification conforms to county general and development plans;

(3) The impact of the proposed reclassification on state funds and resources and the capacity of the State and county to provide public infrastructure and services to affected areas; and

(4) The potential impact of the proposed reclassification on significant conservation, historic, archaeological, or cultural resources.

(g) Any interested person may petition the commission for a declaratory ruling under the rules established by the commission. The petition shall be filed within forty-five days of the effective date of the adoption of the district boundaries. Notwithstanding any other law to the contrary, the commission shall conduct a hearing on the petition. The district boundaries and classification of parcels not subject to a petition for declaratory ruling shall remain in full force and effect. The commission’s final action on a petition filed under this subsection shall be subject to judicial review pursuant to section 91-14, Hawaii Revised Statutes.

(h) All district boundary amendments other than those processed pursuant to this section shall be subject to the district boundary amendment processes provided in sections 205-3.1 and 205-4, Hawaii Revised Statutes.

(i) Any state or county approval of projects involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, on lands which are reclassified by the commission pursuant to this section, shall be subject to sections 6E-8 and 6E-42, Hawaii Revised Statutes, and chapter 205, Hawaii Revised Statutes, as amended.

(j) For any proposed project involving lands reclassified by the commission pursuant to this section, the applicable State or county agency or officer shall advise the department of land and natural resources of any application involving a permit, license, certificate, land use change, subdivision, or other entitlement for use of such lands, which may affect threatened or endangered species and their associated ecosystems. The agency or officer shall allow the department of land and natural resources an opportunity for review and comment on the effect of the proposed project on threatened or endangered species and their associated ecosystems prior to any approval.

SECTION 10. All boundary amendment petitions filed with and accepted by the land use commission or the appropriate county land use decision-making authority, and all state land use special permit petitions filed with and accepted by the county planning commission on or before the effective date of this Act shall not be subject to the provisions of this Act.

Applications for county general plan and community or development plan amendments, zone changes, subdivision applications, and development approvals involving lands in the agricultural land use district filed with and accepted by the appropriate county land use decision-making authority on or before the effective date of this Act shall not be subject to the provisions of this Act.

SECTION 11. There is appropriated out of the general revenues of the State of Hawaii the sum of $______ or so much thereof as may be necessary for fiscal year 2002-2003 to carry out the purposes of this part.

The sum appropriated shall be expended by the office of planning for the purposes of this part.

PART III

SECTION 12. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect upon its approval; provided that section 13 shall take effect on July 1, 2002.

INTRODUCED BY:

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