Report Title:

Important Agricultural Lands; Preservation

Description:

Designates and protects important agricultural lands. Combines and redesignates "urban" and "rural" land use classifications as "other lands".

THE SENATE

S.B. NO.

2463

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to agricultural land preservation.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. 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 Important agricultural lands; qualification criteria; designation. (a) Agricultural lands shall qualify for designation as important agricultural lands, if the land:

(1) Is within an agricultural district;

(2) Is currently in agricultural use;

(3) Has at least one hundred contiguous acres;

(4) Is irrigated or has a dependable and adequate moisture supply; and

(5) Has at least fifty per cent of the land in the contiguous area with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B.

(b) Agricultural lands not qualifying under subsection (a) for designation as important agricultural lands and unique agricultural lands shall qualify for designation as important agricultural lands if the land:

(1) Is within an agricultural district; and

(2) Has been continuously in agricultural use for the past ten years.

(c) A landowner with land qualifying under subsection (a) or (b), may petition the commission requesting the designation of the land as important agricultural lands. The petition shall include:

(1) The tax map key or tax map keys of the land to be designated;

(2) Proof of qualification for designation under subsection (a) or (b);

(3) The current use of the area to be designation; and

(4) A soil conservation and water quality plan for the land approved by the Natural Resources Conservation Service.

(d) The commission shall review the petition and the accompanying material and evaluate the qualification of the land for designation as important agricultural lands. If the commission, after its review and evaluation, finds that the land qualifies for designation as important agricultural lands under this section, the commission, by a two-thirds vote of its members, shall act to approve the petition to designate the land as important agricultural lands.

(e) The designation as important agricultural lands shall not be considered an amendment to district boundaries under sections 205-3.1 and 205-4.

(f) The designation of important agricultural lands shall not take effect until the landowner has recorded the instruments for designation as important agricultural lands and the restriction on uses with the bureau of conveyances or the land court, as appropriate.

(g) As used in this section, "unique agricultural lands" means land possessing special characteristics or conditions, or enhanced by the input of resources for the cultivation of crops and the production of agricultural products and commodities.

§205-B Important agricultural lands; reclassification or rezoning. (a) The commission, by a two-thirds vote of its members, may reclassify important agricultural lands if:

(1) Not less than ten years after designation, the landowner petitions the commission to reclassify all or a portion of the land and demonstrates that profitable agricultural operations are no longer feasible on the land to be reclassified; or

(2) The county land use decisionmaking authority, at any time, determines that rezoning of all or a portion of the land is required to conform to the county general plan or to facilitate a demonstrated need for a non-agricultural use that overrides the important agricultural lands designation, and petitions the commission to reclassify the land.

(b) In the case of land areas of fifteen acres or less, the county land use decisionmaking authority, by a two-thirds vote of its members, may rezone important agricultural lands if:

(1) Not less than ten years after designation, the landowner petitions the county land use decisionmaking authority to rezone all or a portion of the land and demonstrates that profitable agricultural operations are no longer feasible on the land;

(2) The land use commission has reclassified all or a portion of the land pursuant to subsection (a); or

(3) The county land use decisionmaking authority, at any time, determines that rezoning of all or a portion of the land is required to conform to the county general plan or to facilitate a demonstrated need for a non-agricultural use that overrides the important agricultural lands designation.

§205-C Permissible uses on important agricultural lands. (a) Important agricultural lands designated pursuant to section 205-A shall be restricted to the following permitted uses:

(1) Production of plant and animal livestock for food, fiber, and raw materials, including general farming, fruit growing, flower growing, aquaculture, growing of timber and forest products, apiary, grazing, dairying, and the production of any form of livestock or poultry;

(2) Buildings and uses, including but not limited to mills, storage facilities, water and irrigation facilities, processing facilities, maintenance facilities, vehicle and equipment storage areas, and roadside stands that are normally considered directly accessory to the abovementioned uses; and

(3) Utilities and alternative energy facilities, including the appurtenances associated with the production and transmission of energy generated from alternative energy resources defined in section 46-19 that are accessory to agricultural uses.

(b) Uses not expressly permitted in subsection (a) shall be prohibited. A single dwelling on not more than one acre shall be permitted for the sole use of the landowner or child of the landowner. No other uses shall be allowed by special permit on important agricultural lands.

(c) Important agricultural lands designated pursuant to section 205-A may be subdivided into leasehold lots to be used solely for the agricultural uses expressly permitted in subsection (a); provided that, except as provided in subsection (b), no farm dwelling or structure suitable for residential occupancy shall be allowed on the subdivided lots; and provided that the leasehold lots shall return to their original lot of record upon the expiration or termination of the lease. Leasehold subdivision of important agricultural lands for agricultural purposes shall be exempted from all county subdivision ordinances.

§205-D Transferable development credits; allocation. (a) The commission shall issue transferable development credits to the owners of land designated as important agricultural lands.

(b) The commission shall issue one credit for every twenty acres of land designated as important agricultural lands and a pro rata credit for any portion of land under twenty acres.

§205-E Transferable development credits repository; registry. (a) The commission shall select one or more federally insured, nationally- or state-chartered banks to be a repository for transferable development credits.

(b) Any bank selected as a repository for transferable development credits shall maintain a registry of transferable development credits deposited in the bank, that shall include:

(1) The name and address of every owner of transferable development credits deposited in the bank with the tax map key or keys of the parcel or parcels of land to which the credits have been issued;

(2) The number of transferable development credits allocated to a parcel of land and the minimum value of each credit;

(3) The number of credits from a parcel of land that have been sold and the number of credits from a parcel of land that have not been sold; and

(4) The name and address of the person to whom transferable development credits have been sold and the date of sale.

(c) A repository shall establish a clearinghouse and information resource on transferable development credits to assist in matching buyers with sellers of credits.

(d) A repository shall work with the owner of the transferable development credits to determine the minimum value of each credit and, when authorized by the owner, may negotiate the sale of transferable development credits.

(e) A repository may establish a fee or commission to be paid upon the sale of the transferable development credits."

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

"§46-A Permissible uses and infrastructure standards within the other lands district. The counties shall establish by ordinance, the land uses permitted and the standards required for infrastructure systems within the other lands district.

§46-B Transferable development credits; receiving districts. (a) The counties shall establish zones within the other lands district established pursuant to section 205-2 as receiving districts for utilizing of transferable development credits from the designated important agricultural lands.

(b) Within the framework of the county's long-range, comprehensive general plan, the county shall establish development guidelines to allow the use of transferable development credits from designated important agricultural lands to:

(1) Increase the height, bulk, number of stories, and size of buildings and other structures;

(2) Increase the density and distribution of population in the zone;

(3) Make adjustments in the percentage of the lot that may be occupied, the size of yards, courts, and other open spaces;

(4) Adjust minimum and maximum lot sizes; or

(5) Meet the obligation of conditions or impact fees imposed by the county on any development within the zone.

(c) The guidelines established by a county under this section for a receiving district shall not result in more than a fifteen per cent increase in height, bulk, number of stories, size of buildings, or density of a project.

(d) The guidelines established by a county shall include a schedule of transferable development credits that lists the number of credits required to be acquired for the increases allowed under this section."

SECTION 3. Chapter 174C, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§174C-   Water for important agricultural lands; certification; permits. (a) The commission shall continue a certificate for water use or a permitted use in a water management area for lands designated as important agricultural lands pursuant to part of chapter 205, as long as the lands are designated as important agricultural lands, and as long as the quantity of water under the certificate or permit does not exceed the quantity of water for the agricultural use on the designated lands.

(b) The commission may evaluate the water use on lands designated as important agricultural lands and adjust the quantity of water under the certificate for water use or a permit in water management areas based on the best available information on actual water needs of the agricultural use."

SECTION 4. Chapter 235, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§235-A Important agricultural lands; real property tax credit. (a) There shall be allowed to each taxpayer, subject to the taxes imposed by this chapter, a tax credit for real property taxes paid on important agricultural lands designated pursuant to section 205-A, which shall be deductible from the taxpayer's net income tax liability, if any, imposed by this chapter for the taxable year in which the credit is properly claimed. The tax credit shall be an amount equal to the real property tax paid by the taxpayer on important agricultural lands designated pursuant to section 205-A for the taxable year.

(b) The credit allowed under this section shall be claimed against the net income tax liability for the taxable year. For the purpose of this credit, the "net income tax liability" means net income tax liability reduced by all other credits allowed under this chapter.

(c) As used in this section "taxpayer" includes a lessee who pays the real property tax as part of a lease agreement.

§235-B Important agricultural lands; infrastructure improvement credit. (a) There shall be allowed to each taxpayer, subject to the taxes imposed by this chapter, an agricultural infrastructure improvement tax credit for improvements made to agricultural infrastructure on important agricultural lands designated pursuant to section 205-A, which shall be deductible from the taxpayer's net income tax liability, if any, imposed by this chapter for the taxable year in which the credit is properly claimed. The tax credit shall be an amount equal to the cost of improvements made by the taxpayer to agricultural infrastructure for the taxable year in which the improvements were made.

(b) The credit allowed under this section shall be claimed against the net income tax liability for the taxable year. For the purpose of this credit, the "net income tax liability" means net income tax liability reduced by all other credits allowed under this chapter.

(c) If the tax credit under this section exceeds the taxpayer's income tax liability, the excess of the tax credit over liability may be used as a credit against the taxpayer's income tax liability in subsequent years until exhausted. All claims, including any amended claims, for tax credits under this section shall be filed on or before the end of the twelfth month following the close of the taxable year for which the credit may be claimed. Failure to comply with the foregoing provision shall constitute a waiver of the right to claim the credit.

(d) As used in this section:

"Agricultural infrastructure improvement" means the planning, design, construction, reconstruction, improvement, altering, or repair of supporting infrastructure used or formerly used by a plantation system or other large agricultural operation, including irrigation systems, roads, and drainage systems.

"Drainage systems" means an agricultural system of channels, ditches, pipes, pumps, and accessory facilities established for the purpose of drawing off water from a land area larger than twenty acres.

"Irrigation systems" means the agricultural system of intakes, diversions, wells, ditches, siphons, pipes, reservoirs, and accessory facilities established for the purpose of providing water for agricultural production.

"Roads" means an agricultural system of cane haul roads or ways established to take agricultural products from the fields to processing facilities without using the public highways."

SECTION 5. 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] that 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,] subdivision, 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 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 6. 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 7. 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.] agricultural, conservation, and other lands. Important agricultural lands designated pursuant to part      shall be included in an agricultural district. 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)] (1) 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], including lands with soils classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B and important agricultural lands designated pursuant to section 205-A;

(2) In the establishment of the boundaries of important agricultural lands, only important agricultural lands designated pursuant to part     shall be included;

[(4)] (3) 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

(4) In the establishment of the boundaries of the other lands districts, urban and rural lands, as well as lands not included within the agricultural district pursuant to paragraphs (1) and (2) 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)] (b) Agricultural districts shall include all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B and important agricultural lands designated pursuant to part , and 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; and 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].

The activities or uses in lands designated as important agricultural lands pursuant to part     shall be the permissible uses specified in section 205-C.

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.

[(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; providing forestry; retaining 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; providing areas of value for recreational purposes; other related activities; and for providing other permitted uses not detrimental to a multiple use conservation concept.

(d) Except as provided in sections 205-5.1 and 205-5.2 for the designation and regulating of geothermal resource subzones, the other lands district shall include activities and uses as provided by the ordinances of the county within which the district is situated."

SECTION 8. 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 9. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) [Within] Except for important agricultural lands designated pursuant to part , which shall be restricted to the uses expressly permitted in section 205-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 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 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)] (6) 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)] (7) Retention, restoration, rehabilitation, or improvement of buildings or sites of historic or scenic interest;

[(9)] (8) Roadside stands for the sale of agricultural products grown on the premises;

[(10)] (9) 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);] 205-2(b);

[(11)] (10) Agricultural parks; or

[(12)] (11) 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."

SECTION 10. Section 205-4.6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§205-4.6[]] Private restrictions on agricultural uses and activities; not allowed. Agricultural uses and activities as defined in sections [205-2(d) and] 205-2(b), 205-4.5(a), and 205-C on lands classified as agricultural shall not be restricted by any private agreement contained in any deed, lease, agreement of sale, or other conveyance of land recorded in the bureau of conveyances after July 8, 2003, that subject such agricultural lands to any servitude, including but not limited to covenants, easements, or equitable and reciprocal negative servitudes. Any such private restriction limiting or prohibiting agricultural use or activity shall be voidable subject to special restrictions enacted by the county ordinance pursuant to section 46-4, except that restrictions taken to protect environmental or cultural resources shall not be void or voidable."

SECTION 11. 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 agricultural and 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, and 205-C may be further defined by each county by zoning ordinance. [Other] Except for lands designated as important agricultural lands pursuant to part    , other uses may be allowed within agricultural districts by special permits issued pursuant to this chapter. The minimum lot size in agricultural districts, except for lands designated as important agricultural lands pursuant to part    , 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.]"

SECTION 12. Section 205-5.1, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) Geothermal resource subzones may be designated within the [urban, rural,] agricultural[,] and conservation 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] 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,] other lands and agricultural 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."

2. By amending subsection (c) to read:

"(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, by state and county statutes, ordinances, and rules not inconsistent herewith within agricultural[, rural, and urban] and 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] 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,] 174C 182, 183, 183C, 205A, 226, [342,] 342B, 342D, 342F, 342H, 342J, 342L, 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] 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,] other lands and agricultural 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."

3. By amending subsection (e) to read:

"(e) If geothermal development activities are proposed within agricultural[, rural, or urban] 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 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 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 13. Section 205-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) [The] Except for lands designated as important agricultural lands pursuant to part     , the county planning commission may permit certain unusual and reasonable uses within an agricultural [and rural districts] district other than those for which the district is classified. 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,] 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."

SECTION 14. 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 [agricultural district and rural district in final form] other lands district in final form, or on lands designated as important agricultural lands within an agricultural 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 15. Section 238-1, Hawaii Revised Statutes, is amended by amending the definition of "use" to read as follows:

""Use" (and any nounal, verbal, adjectival, adverbial, and other equivalent form of the term) herein used interchangeably means any use, whether the use is of such nature as to cause the property, services, or contracting to be appreciably consumed or not, or the keeping of the property or services for such use or for sale, and shall include the exercise of any right or power over tangible or intangible personal property incident to the ownership of that property, but the term "use" shall not include:

(1) Temporary use of property, not of a perishable or quickly consumable nature, where the property is imported into the State for temporary use (not sale) therein by the person importing the same and is not intended to be, and is not, kept permanently in the State. For example, without limiting the generality of the foregoing language:

(A) In the case of a contractor importing permanent equipment for the performance of a construction contract, with intent to remove, and who does remove, the equipment out of the State upon completing the contract;

(B) In the case of moving picture films imported for use in theaters in the State with intent or under contract to transport the same out of the State after completion of such use; and

(C) In the case of a transient visitor importing an automobile or other belongings into the State to be used by the transient visitor while therein but which are to be used and are removed upon the transient visitor's departure from the State;

(2) Use by the taxpayer of property acquired by the taxpayer solely by way of gift;

(3) Use which is limited to the receipt of articles and the return thereof, to the person from whom acquired, immediately or within a reasonable time either after temporary trial or without trial;

(4) Use of goods imported into the State by the owner of a vessel or vessels engaged in interstate or foreign commerce and held for and used only as ship stores for the vessels;

(5) The use or keeping for use of household goods, personal effects, and private automobiles imported into the State for nonbusiness use by a person who:

(A) Acquired them in another state, territory, district, or country;

(B) At the time of the acquisition was a bona fide resident of another state, territory, district, or country;

(C) Acquired the property for use outside the State; and

(D) Made actual and substantial use thereof outside this State;

provided that as to an article acquired less than three months prior to the time of its importation into the State it shall be presumed, until and unless clearly proved to the contrary, that it was acquired for use in the State and that its use outside the State was not actual and substantial;

(6) The leasing or renting of any aircraft or the keeping of any aircraft solely for leasing or renting to lessees or renters using the aircraft for commercial transportation of passengers and goods or the acquisition or importation of any such aircraft or aircraft engines by any lessee or renter engaged in interstate air transportation. For purposes of this paragraph, "leasing" includes all forms of lease, regardless of whether the lease is an operating lease or financing lease. The definition of "interstate air transportation" is the same as in 49 U.S.C. 40102;

(7) The use of oceangoing vehicles for passenger or passenger and goods transportation from one point to another within the State as a public utility as defined in chapter 269;

(8) The use of material, parts, or tools imported or purchased by a person licensed under chapter 237 which are used for aircraft service and maintenance, or the construction of an aircraft service and maintenance facility as those terms are defined in section 237-24.9;

(9) The use of services or contracting imported for resale where the contracting or services are for resale, consumption, or use outside the State pursuant to section 237-29.53(a);

(10) The use of contracting imported or purchased by a contractor as defined in section 237-6 who is:

(A) Licensed under chapter 237;

(B) Engaged in business as a contractor; and

(C) Subject to the tax imposed under section 238-2.3; [and]

(11) The use of material, parts, tools, or equipment imported or purchased by a person licensed under chapter 237 which are used for agricultural infrastructure improvements as defined in section 235-B; and

[(11)] (12) The use of property, services, or contracting imported by foreign diplomats and consular officials who are holding cards issued or authorized by the United States Department of State granting them an exemption from state taxes.

With regard to purchases made and distributed under the authority of chapter 421, a cooperative association shall be deemed the user thereof."

SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 17. This Act shall take effect on July 1, 2004; provided that section 4 shall apply to taxable years beginning after December 31, 2003.

INTRODUCED BY:

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