HOUSE OF REPRESENTATIVES
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO PUBLIC LANDS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that to widen Saddle road, in the county of Hawaii, the department of land and natural resources established conservation easements on public land leased for pasture or special livestock use. Consequently, the lessee ranchers suffered serious financial losses.
The department of land and natural resources established conservation easements on approximately six thousand acres of leased lands, preventing the lessees from grazing cattle and effectively depriving the lessees of their use of the land. Although the department of land and natural resources reduced the lease rent in proportion to the taking of the land, the lessees received no other compensation. The final report on discussions with affected ranchers in connection with the Saddle road realignment project prepared in response to Act 236, Session Laws of Hawaii 2001, states that the United States Department of Transportation Highways Division will provide compensation to the existing lessees. However, according to the lessees, the department of land and natural resources has taken the position that because Hawaii law did not provide for any compensation, none was required.
Chapter 171, Hawaii Revised Statutes, provides for rent reductions if the land withdrawn causes the land to become unusable for the specific use or uses for which it was originally leased. However, the law provides no other method of compensation. Despite this lack of compensation, the lessees are required by their leases to maintain insurance on the land and pay taxes for the land they cannot use for the specific purpose for which it was originally leased.
In addition, several lessees had to reduce their herd and suffered financial losses as a result of the sale of their cattle. One of the long-term effects of a reduced herd is that lessees cannot mitigate the long-term, fixed costs associated with operating a ranch in the way they anticipated when the lease was negotiated. Thus, the lessees have experienced financial hardship for an extended period of time that is not sufficiently mitigated by a reduction in their lease rent.
S.B. No. 2951, C.D. 1, regular session of 2010, a measure that attempted to address this issue by providing fair compensation when leased public land for agricultural or pastoral uses is withdrawn, condemned, or taken for public purposes, passed the legislature but was vetoed by then-Governor Lingle on the grounds that the bill "disproportionately and inappropriately compensates these lessees of public lands above other lessees of State lands." In testimony opposing the measure, the department of land and natural resources posited that rent reduction under existing law is sufficiently fair, and that easements do not prevent the lessee from making any beneficial use of the land even when it prevents them using the land for its original intended purpose. However, the legislature believes that rent reduction is insufficient, especially where the lessor fails to recognize that the law is designed to take into account the lessee's original intended purpose for leasing the land, and finds that this Act is necessary to provide more equitable relief to lessees of public lands in partial takings or condemnations where the lessee is prevented from using the lands as originally intended.
The purpose of this part is to provide fair compensation to lessees when a withdrawal or taking of leased land renders the land unusable for the lessee's original intended purpose.
SECTION 2. Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§171- Withdrawal of leased land; fair compensation; lease extension. (a) Upon a withdrawal or taking of leased land pursuant to section 171-37(3) that causes any portion of the land to become unusable for the specific use or uses for which it was leased, the lease rent shall be reduced in proportion to the value of the land withdrawn or made unusable; provided that if any permanent improvement made to or constructed upon the land by the lessee is destroyed or made unusable in the process of the withdrawal or taking, the proportionate value thereof shall be paid to the lessee based upon the unexpired term of the lease. No land that is under cultivation shall be withdrawn or taken until the crops are harvested, unless the board pays the lessee the value of the crops.
Upon a withdrawal, any person with a long-term lease shall be compensated for the present value of all permanent improvements in place at the time of the withdrawal that were legally made to or constructed upon the land by the lessee of the leased land being withdrawn.
In the case of tree-crops, as defined in section 171-37, the board shall pay to the lessee the residual value of the trees taken and, if there are unharvested crops, the value of the crops.
In the case of breeding livestock that cannot be relocated or marketed for the breeding value, the board shall pay to the lessee the difference between the appraised breeding value and the salvage value, including the cost of transportation to a market on the island on which the leased land is located. If there is disagreement between the board and the lessee as to the number of breeding livestock that cannot be relocated or marketed for breeding value, the issue shall be submitted to the department of agriculture to make a determination, which shall be final. The appraised breeding value shall be the fair market value of the livestock, as opposed to net present value, at the time the board approves the withdrawal or taking of a portion or all of the leased land. The fair market value shall be determined by:
(1) An employee of the department of agriculture qualified to appraise livestock; or
(2) A disinterested livestock appraiser whose services shall be contracted for by the board,
and the lessee shall be promptly notified of the determination; provided that should the lessee fail to agree upon the fair market value, the lessee may appoint its own livestock appraiser who together with the board's appraiser shall appoint a new appraiser and the fair market value shall be determined by arbitration pursuant to chapter 658A. The lessee shall pay for the lessee's appointed livestock appraiser, the board shall pay for its livestock appraiser, and the cost of any jointly appointed livestock appraiser shall be borne equally by the lessee and the board. Whenever more than one livestock appraiser is appointed, each shall prepare and submit an independent appraisal report.
(b) In addition to compensation received under subsection (a) or section 171-38, a lessee shall be entitled to compensation for costs attributable to the diminished use of the leased land, including reimbursement for the cost of any insurance required by the board to be maintained, or property tax paid by the lessee on the portion of the leased land withdrawn or taken; provided that a lessee of land subject to easements shall be entitled to compensation under this subsection only if the easements are placed upon the land subsequent to the original lease and prevent the lessee from using the land for the original intended use."
SECTION 3. Section 171-37, Hawaii Revised Statutes, is amended to read as follows:
"§171-37 Lease restrictions; intensive agricultural and pasture uses. In addition to the restrictions provided in section 171-36, the following restrictions shall apply to all leases for intensive agricultural and pasture uses:
(1) The lease term shall [
be] not be
less than fifteen years nor more than thirty-five years, except that if the
type of disposition requires the lessee to occupy the premises as the lessee's
own personal residence, [ it] the lease term may be longer than
thirty-five years[ , but]; provided that the lease term shall not be
in excess of seventy-five years, [ and] except in the case of a tree-crop
orchard lease the term of which shall not be in excess of forty-five years.
(2) If the land being leased is not immediately productive and requires extensive expenditures for clearing, conditioning of the soil, the securing of water, the planting of grasses, or the construction of improvements, as the result of which a longer term is necessary to amortize the lessee's investment, then the lease term may be longer than thirty-five years, but not in excess of fifty-five years.
(3) The land leased hereunder, or any portion
thereof, shall be subject to withdrawal by the board [
of land and natural
resources] at any time during the term of the lease with reasonable notice
and [ without] compensation, [ except as provided herein,] as
provided in section 171- , for public uses or purposes, including
residential, commercial, industrial, or resort developments, for constructing
new roads or extensions, or changes in line or grade of existing roads, for
rights-of-way and easements of all kinds, and shall be subject to the right of
the board to remove soil, rock, or gravel as may be necessary for the
construction of roads and rights-of-way within or without the demised premises[ ;
provided that upon the withdrawal, or upon the taking which causes any portion
of the land originally demised to become unusable for the specific use or uses
for which it was demised, the rent shall be reduced in proportion to the value
of the land withdrawn or made unusable, and if any permanent improvement
constructed upon the land by the lessee is destroyed or made unusable in the
process of the withdrawal or taking, the proportionate value thereof shall be
paid based upon the unexpired term of the lease; provided further that no
withdrawal or taking shall be had as to those portions of the land which are
then under cultivation with crops until the crops are harvested, unless the
board pays to the lessee the value of the crops; and provided further that upon
withdrawal any person with a long-term lease shall be compensated for the
present value of all permanent improvements in place at the time of withdrawal
that were legally constructed upon the land by the lessee to the leased land
being withdrawn. In the case of tree crops, the board shall pay to the lessee
the residual value of the trees taken and, if there are unharvested crops, the
value of the crops also].
"Tree-crop", as used in this section, shall be exclusive of papaya and banana."
SECTION 4. Section 171-38, Hawaii Revised Statutes, is amended to read as follows:
"§171-38 Condemnation of leases. The lease shall provide that whenever a portion of the public land under lease is condemned for public purposes by the State, or any county or city and county, or any other governmental agency or subdivision, the rental shall be reduced in proportion to the value of the portion of the premises condemned, and the lessee shall be entitled to receive from the condemning authority:
value of growing crops, if any, [ which] that the lessee is not
permitted to harvest; and
proportionate value of the lessee's permanent improvements so taken in the
proportion that it bears to the unexpired term of the lease[ ; provided that
The lessee [
may], in the alternative, may
remove and relocate the lessee's improvements to the remainder of the lands
occupied by the lessee. The foregoing rights of the lessee shall not be
exclusive of any other to which the lessee may be entitled by law[ .],
including those rights established in section 171- . Where the portion so
taken renders the remainder unsuitable for the uses for which the land was
leased, the lessee shall have the option to surrender the lessee's lease and be
discharged for any further liability therefor; provided that the lessee may
remove the lessee's permanent improvements within [ such] a
reasonable period allowed by the board [ of land and natural resources]."
SECTION 5. The legislature finds that the agribusiness development corporation was created as a rapid response agency to stabilize deteriorating plantation water systems and vacant plantation lands and transition these lands and infrastructure into use for diversified agriculture. It was designed to be entrepreneurial in practice, with exemptions to quickly put diversified farmers onto land and settle issues related to the difficult and complex transition process. The agribusiness development corporation is a more appropriate agency, as it is more familiar with the agriculture industry, to manage public lands within the agricultural land use district that are currently managed by the Department of Land and Natural Resources.
The purpose of this part is to transfer the parcels of land identified by tax map key numbers (9)4-0-12:001, (9)4-0-12:002, and (9)4-0-12:003 to the agribusiness development corporation no later than January 1, 2013.
SECTION 6. Upon approval of the governor, board of agriculture, and board of land and natural resources, Executive Order No. 4403 setting aside the parcels of land identified by tax map key numbers (1) 9-4-012:001, (1) 9-4-012:002, and (1) 9-4-012:003 to the department of agriculture shall be cancelled. Upon cancellation of Executive Order No. 4403, the parcels of land identified by tax map key numbers (1) 9-4-012:001, (1) 9-4-012:002, and (1) 9-4-012:003 shall be transferred by set aside to the agribusiness development corporation. The transfer of the parcels of land to the agribusiness development corporation shall occur no later than January 1, 2013. The department of land and natural resources shall be responsible for properly documenting the changes in title.
SECTION 7. All rights, powers, functions, and duties of the department of land and natural resources or board of land and natural resources relating to the lands transferred to the agribusiness development corporation shall be transferred with the lands to which they relate.
Every reference to the department of land and natural resources or board of land and natural resources in all deeds, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the department or board with respect to the lands transferred shall be construed as a reference to the agribusiness development corporation or the board of directors of the agribusiness development corporation, as appropriate.
SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect on July 1, 2050; provided that part II of this Act shall take effect on July 1, 2012.
Public Lands; Leases; Fair Compensation
Provides for fair compensation when leased public land for agricultural or pastoral uses is withdrawn, condemned, or taken for public purposes. Cancels executive order 4403 and transfers TMKs (1)9-4-012:001, (1)9-4-012:002, and (1)9-4-012:003 located in Kunia, Oahu, to the agribusiness development corporation no later than January 1, 2013; effective 7/1/2012. Effective 7/1/2050. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.