Report Title:

Land Use; Agricultural Land; Subdivision

 

Description:

Protects and promotes the proper use of Hawaii's best agricultural lands by requiring conditions of approval for subdivisions of agricultural land into smaller lots and farm dwellings, thereby ensuring meaningful agricultural use.

 


THE SENATE

S.B. NO.

2954

TWENTY-FOURTH LEGISLATURE, 2008

 

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. Article XI, section 3, of the Constitution of the State of Hawaii provides, among other things, that "[t]he State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands."

Some of the best agricultural lands in the State are also lands that, because of topography, location, and climate, are desirable for development of up-scale housing. The legislature finds that, in the recent past, hundreds of acres of agricultural land have been subdivided and converted into developments that feature luxury homes and a lack of agricultural activity, agribusiness, or subsistence farming, despite the statutory requirement that single-family dwellings on class "A" and "B" agricultural lands are to be used in connection with a farm. Although the homeowners may cultivate a few fruit trees or an herb garden, no meaningful agricultural activity takes place, even though the developments are often called "agricultural subdivisions".

The legislature further finds that the loss of agricultural lands in this manner results in the loss of the State's ability to develop sustainable agriculture that could increase food and fuel self-sufficiency for Hawaii's people.

The purpose of this Act is to comply with the requirements of article XI, section 3, to protect the State's agricultural land with the highest productivity potential and ensure their use in agribusiness, subsistence farming, and other permissible uses on "real farms".

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

"46-    Subdivisions and building permits on agricultural land. (a) Except as provided in this section, each subdivision of land for farm dwellings and each building permit for farm dwellings in the agricultural land use district with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B shall be subject to the following conditions:

(1) For any subdivision application in which farm dwellings will be among the uses on the subdivided lots, the county shall require that the applicant demonstrate the feasibility of agribusiness or subsistence farming as the primary activity undertaken on the land. Evidence of feasibility shall include consideration of sufficiency in quantity, storage, and distribution of irrigation water for each proposed lot to meet anticipated maximum demand; adequacy of infrastructure, such as internal roadways, utilities, and areas for the common use of lot owners; the proposed agribusiness uses and their agronomic suitability for the area, cost of production, potential income, and market outlook; the proposed subsistence farming uses and their agronomic suitability for the area; and the form of organization of lot owners and how it will optimize agribusiness or subsistence farming uses. Upon receipt of subdivision approval, the applicant shall record with the bureau of conveyances or land court, deed restrictions or covenants that shall be enforced by the appropriate county authority, requiring that the lot owner or lessee use the lot primarily for agribusiness or subsistence farming as long as the land is classified in the agricultural land use district, and such restrictions or covenants shall run with the land; and

(2) For any building permit for construction of a farm dwelling, as defined in section 205-4.5(a)(4), the county shall require that the applicant for the building permit demonstrate an established and substantial agribusiness or subsistence farming activity. Evidence of an established and substantial agribusiness or subsistence farming activity shall include annual income from agribusiness or subsistence farming; capital expenditures for agribusiness or subsistence farming; household income, household size, and agricultural products grown on the lot and consumed by the household demonstrating subsistence farming; and a farm plan demonstrating substantial progress in achieving a successful agribusiness or subsistence farming activity. Upon receipt of building permit approval, if not already done, the applicant shall record with the bureau of conveyances or land court, deed restrictions or covenants that shall be enforced by the appropriate county authority, requiring that the lot owner or lessee use the lot primarily for agribusiness or subsistence farming as long as the land is classified in the agricultural land use district, and such restrictions or covenants shall run with the land.

(b) For the purposes of this section, the following terms shall have the following meanings:

"Agribusiness" means a business licensed for the sale of products derived from the uses permitted in section 205-4.5(a)(1), (2), and (3), including the processing of farm products.

"Approval" means final approval of a proposed subdivision where the actual division of land into smaller parcels is sought, final approval of a building permit, or final approval of a farm plan, as the context may require.

"Family subdivision" means the division of improved or unimproved land or interests in land of less than fifteen acres into two or more lots, parcels, sites, or other divisions of land, including condominiums under chapter 514A or 514B, and for the purpose of transfer of title to the children of the owner of the land.

"Subdivision" means the division of improved or unimproved land or interests in land into two or more lots, parcels, sites, or other divisions of land, including condominiums under chapter 514A or 514B, for the purpose, whether immediate or future, of sale, lease, rental, transfer of title to, or interest in, any or all such lots, parcels, sites, or other divisions of land. The term may include a consolidation and resubdivision and, when appropriate to the context, shall relate to the land subdivided.

"Subsistence farming" means agricultural uses and practices that produce food or products primarily for consumption by the individual or family working the land, and where the individual or family is dependent on this activity to meet a significant portion of the individual's or family's needs. Each county shall define the term "significant portion of the individual's or family's needs" and may request the assistance of the department of agriculture.

(c) Nothing in this section shall prevent the county from imposing other requirements or specifying the format or additional content of the application.

(d) This section shall not apply to any subdivision or building permit application received by a county on or before the effective date of this Act.

(e) This section shall not apply to family subdivisions, providing the following conditions are met:

(1) The lot has not been subdivided subsequent to the effective date of this Act; and

(2) The lot is not resold to a non-family member for twenty-five years, except as may be required by law or court order.

(f) Nothing in this section shall prevent permissible uses or activities in existence on the effective date of this Act from continuing as permissible uses.

(g) Nothing in this section shall invalidate any county subdivision approval or building permit granted or issued on or prior to the effective date of this Act."

SECTION 3. Section 205-4.5, Hawaii Revised Statutes, is amended to read as follows:

"205-4.5 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 shall be restricted to the following permitted uses:

(1) Cultivation of crops, including but not limited to crops for bioenergy, flowers, vegetables, foliage, fruits, forage, fiber, 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;] agribusiness or subsistence farming purposes;

(4) Farm dwellings, employee housing, farm buildings, or activities or uses related to farming and animal husbandry. "Farm dwelling", as used in this paragraph[, means]:

(A) Means a single-family dwelling [located on and] accessory to and used in connection with [a farm,] agribusiness or subsistence farming, 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;] but excluding single-family dwellings in a subdivided development where there is little or no agribusiness or subsistence farming established; and

(B) Excludes guest cottages;

(5) Public institutions and buildings that 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, treatment plants, corporation yards, or other similar 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 [above mentioned uses and are] agribusiness or subsistence farming permitted [under] in this section and section 205-2(d);

(11) Agricultural parks;

(12) Plantation community subdivisions, which as used in this paragraph means a subdivision or cluster of employee housing, community buildings, and acreage established on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation and in residential use by employees or former employees of the plantation; provided that the employees or former employees shall have a property interest in the land;

(13) Agricultural tourism conducted on a working farm, or a farming operation as defined in section 165‑2, for the enjoyment, education, or involvement of visitors; provided that the agricultural tourism activity is accessory and secondary to the principal agricultural use and does not interfere with surrounding farm operations; and provided further that this paragraph shall apply only to a county that has adopted ordinances regulating agricultural tourism under section 205-5;

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

(15) Biofuel processing facilities, including the appurtenances associated with the production and refining of biofuels that is normally considered directly accessory and secondary to the growing of the energy feedstock; provided that biofuels processing facilities and appurtenances do not adversely impact agricultural land and other agricultural uses in the vicinity.

For the purposes of this paragraph:

"Appurtenances" means operational infrastructure of the appropriate type and scale for economic commercial storage and distribution, and other similar handling of feedstock, fuels, and other products of biofuels processing facilities.

"Biofuels processing facility" means a facility that produces liquid or gaseous fuels from organic sources such as biomass crops, agricultural residues, and oil crops, including palm, canola, soybean, and waste cooking oils; grease; food wastes; and animal residues and wastes that can be used to generate energy[[]; or[]]

[[](16)[]] Construction and operation of wireless communication antennas; provided that, for the purposes of this paragraph, "wireless communication antenna" means communications equipment that is either freestanding or placed upon or attached to an already existing structure and that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services; provided further that nothing in this paragraph shall be construed to permit the construction of any new structure that is not deemed a permitted use under this subsection.

(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 shall be approved by a county unless those A and B lands within the subdivision are made subject to [the]:

(1) The restriction on uses as prescribed in this section [and to the];

(2) The condition that the uses shall be primarily in pursuit of an agricultural activity[.], agribusiness or subsistence farming; and

(3) The condition that the land shall not be subdivided and used for development where the primary purpose of the development is the sale or development of residential homes.

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,] conditions, as prescribed in this section, that these restrictions and conditions 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 in obtaining mortgage financing from any of the mortgage lending agencies set forth in the following paragraph, and the requirement is the sole reason for failure to obtain mortgage financing, then the requirement of encumbrances shall, insofar as such mortgage financing is jeopardized, be conditionally waived by the appropriate county enforcement officer; provided that the conditional waiver shall become effective only in the event that the property is subjected to foreclosure proceedings by the mortgage lender.

The mortgage lending agencies referred to in the preceding paragraph are the Federal Housing Administration, Federal National Mortgage Association, Veterans Administration, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns.

(c) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b).

(d) Notwithstanding any other provision of this chapter to the contrary, golf courses and golf driving ranges approved by a county before July 1, 2005, for development within the agricultural district shall be permitted uses within the agricultural district.

(e) Notwithstanding any other provision of this chapter to the contrary, plantation community subdivisions as defined in this section shall be permitted uses within the agricultural district, and section 205-8 shall not apply.

[[](f)[]] Notwithstanding any other law to the contrary, agricultural lands may be subdivided and leased for the agricultural uses or activities permitted in subsection (a); provided that:

(1) The principal use of the leased land is [agriculture;] for agricultural activity, agribusiness, or subsistence farming;

(2) No permanent or temporary dwellings or farm dwellings, including trailers and campers, are constructed or placed on the leased area. This restriction shall not prohibit the construction of storage sheds, equipment sheds, or other structures appropriate to the agricultural activity, agribusiness, or subsistence farming carried on within the lot; and

(3) The lease term for a subdivided lot shall be for at least as long as the greater of:

(A) The minimum real property tax agricultural dedication period of the county in which the subdivided lot is located; or

(B) Five years.

Lots created and leased pursuant to this section shall be legal lots of record for mortgage lending purposes and shall be exempt from county subdivision standards.

(g) For the purposes of this section, the following terms shall have the following meanings:

"Agribusiness" means a business licensed for the sale of products derived from the uses permitted in section 205-4.5(a)(1), (2), and (3), including the processing of farm products.

"Approval" means final approval of a proposed subdivision where the actual division of land into smaller parcels is sought, final approval of a building permit, or final approval of a farm plan, as the context may require.

"Subdivision" means the division of improved or unimproved land or interests in land into two or more lots, parcels, sites, or other divisions of land, including condominiums under chapter 514A or 514B, for the purpose, whether immediate or future, of sale, lease, rental, transfer of title to, or interest in, any or all of the lots, parcels, sites, or other divisions of land. The term may include a consolidation and resubdivision and, when appropriate to the context, shall relate to the land subdivided.

"Subsistence farming" means agricultural uses and practices that produce food or products primarily for consumption by the individual or family working the land, and where the individual or family is dependent on this activity to meet a significant portion of the individual's or family's needs. Each county shall define the term "significant portion of the individual's or family's needs" and may request the assistance of the department of agriculture."

SECTION 4. The lawful use of land or improvements on the effective date of this Act may be continued as a permissible use although the use does not conform to this Act.

SECTION 5. Nothing in this Act shall invalidate any county subdivision approval or building permit granted or issued on or prior to the effective date of this Act.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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BY REQUEST