THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO COUNTY LAND USE REQUIREMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to clarify certain requirements for condominium property regimes on agricultural lands in a county with a population of seven hundred fifty thousand or more, including:
(1) For purposes of planned community associations, requiring the owner of any parcel of land subdivided as a condominium property regime in agricultural or preservation lands to provide public notice of the sale no later than ninety days after the sale of the parcel; and
(2) Providing an option for county participation in the approval of certain major agricultural condominium property regimes.
SECTION 2. Chapter 421J, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§421J- Proposed land sale; agricultural and preservation lands; public notice. If any parcel of land is subdivided as a condominium property regime in agricultural or preservation lands within a county with a population of seven hundred fifty thousand or more, the owner of the parcel shall provide public notification of the sale no later than ninety days after the sale of the parcel."
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 and for solar energy facilities, class B or C, shall be restricted to the following permitted uses:
(1) Cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber;
(2) Game and fish propagation;
(3) Raising of livestock, including 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 activities 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 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) Agricultural-based commercial operations as described in section 205-2(d)(15);
(10) Buildings and uses, including mills, storage, and processing facilities, maintenance facilities, photovoltaic, biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, and vehicle and equipment storage areas that are normally considered directly accessory to the above-mentioned uses and are permitted under section 205-2(d);
(11) Agricultural parks;
(12) Plantation community subdivisions, which as used in this chapter means an established subdivision or cluster of employee housing, community buildings, and agricultural support buildings on land currently or formerly owned, leased, or operated by a sugar or pineapple plantation; provided that the existing structures may be used or rehabilitated for use, and new employee housing and agricultural support buildings may be allowed on land within the subdivision as follows:
(A) The employee housing is occupied by employees or former employees of the plantation who have a property interest in the land;
(B) The employee housing units not owned by their occupants shall be rented or leased at affordable rates for agricultural workers; or
(C) The agricultural support buildings shall be rented or leased to agricultural business operators or agricultural support services;
(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) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2;
(15) 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;
(16) 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 biofuel 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 biofuel processing facilities.
"Biofuel 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;
(17) Agricultural-energy facilities, including appurtenances necessary for an agricultural-energy enterprise; provided that the primary activity of the agricultural-energy enterprise is agricultural activity. To be considered the primary activity of an agricultural-energy enterprise, the total acreage devoted to agricultural activity shall be not less than ninety per cent of the total acreage of the agricultural-energy enterprise. The agricultural-energy facility shall be limited to lands owned, leased, licensed, or operated by the entity conducting the agricultural activity.
As used in this paragraph:
"Agricultural activity" means any activity described in paragraphs (1) to (3) of this subsection.
"Agricultural-energy enterprise" means an enterprise that integrally incorporates an agricultural activity with an agricultural-energy facility.
"Agricultural-energy facility" means a facility that generates, stores, or distributes renewable energy as defined in section 269-91 or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the State.
"Appurtenances" means operational infrastructure of the appropriate type and scale for the economic commercial generation, storage, distribution, and other similar handling of energy, including equipment, feedstock, fuels, and other products of agricultural-energy facilities;
(18) Construction and operation of wireless communication antennas, including small wireless facilities; 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 "small wireless facilities" shall have the same meaning as in section 206N-2; 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;
education programs conducted on a farming operation as defined in section
165-2, for the education and participation of the general public; provided that
the agricultural education programs are accessory and secondary to the
principal agricultural use of the parcels or lots on which the agricultural
education programs are to occur and do not interfere with surrounding farm
operations. For the purposes of this
paragraph, "agricultural education programs" means activities or
events designed to promote knowledge and understanding of agricultural
activities and practices conducted on a farming operation as defined in section
(20) Solar energy facilities that do not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser or for which a special use permit is granted pursuant to section 205‑6; provided that this use shall not be permitted on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A unless the solar energy facilities are:
(A) Located on a paved or unpaved road in existence as of December 31, 2013, and the parcel of land upon which the paved or unpaved road is located has a valid county agriculture tax dedication status or a valid agricultural conservation easement;
(B) Placed in a manner that still allows vehicular traffic to use the road; and
(C) Granted a special use permit by the commission pursuant to section 205-6;
(21) Solar energy facilities on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating B or C for which a special use permit is granted pursuant to section 205-6; provided that:
(A) The area occupied by the solar energy facilities is also made available for compatible agricultural activities at a lease rate that is at least fifty per cent below the fair market rent for comparable properties;
(B) Proof of financial security to decommission the facility is provided to the satisfaction of the appropriate county planning commission prior to date of commencement of commercial generation; and
(C) Solar energy facilities shall be decommissioned at the owner's expense according to the following requirements:
(i) Removal of all equipment related to the solar energy facility within twelve months of the conclusion of operation or useful life; and
(ii) Restoration of the disturbed earth to substantially the same physical condition as existed prior to the development of the solar energy facility.
For the purposes of this paragraph, "agricultural activities" means the activities described in paragraphs (1) to (3);
(22) Geothermal resources exploration and geothermal resources development, as defined under section 182‑1; or
(23) Hydroelectric facilities, including the appurtenances associated with the production and transmission of hydroelectric energy, subject to section 205-2; provided that the hydroelectric facilities and their appurtenances:
(A) Shall consist of a small hydropower facility as defined by the United States Department of Energy, including:
(i) Impoundment facilities using a dam to store water in a reservoir;
(ii) A diversion or run-of-river facility that channels a portion of a river through a canal or channel; and
(iii) Pumped storage facilities that store energy by pumping water uphill to a reservoir at higher elevation from a reservoir at a lower elevation to be released to turn a turbine to generate electricity;
(B) Comply with the state water code, chapter 174C;
(C) Shall, if over
five hundred kilowatts in hydroelectric generating capacity, have the approval
of the commission on water resource management, including a new instream flow
standard established for any new hydroelectric facility; and
(D) Do not impact or impede the use of agricultural land or the availability of surface or ground water for all uses on all parcels that are served by the ground water sources or streams for which hydroelectric facilities are considered.
(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 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 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, Department of Veterans Affairs, Small Business Administration, United States Department of Agriculture, Federal Land Bank of Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for Cooperatives, and any other federal, state, or private mortgage lending agency qualified to do business in Hawaii, and their respective successors and assigns.
(c) Within the agricultural district, all lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class C, D, E, or U shall be restricted to the uses permitted for agricultural districts as set forth in section 205-5(b).
(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;
(2) No permanent or
temporary dwellings or farm dwellings, including trailers and campers, are
constructed on the leased area. This
restriction shall not prohibit the construction of storage sheds, equipment
sheds, or other structures appropriate to the agricultural activity carried on
within the lot; [
and] provided that no residential use of such sheds
or other structures for any length of time shall be permitted, and any
violation of this paragraph shall be subject to county enforcement authority
and fines pursuant to sections 46-4, 205-12, and 205-13;
(3) No residential development is constructed on lands that are currently in a preservation zoning district in a county with a population of seven hundred fifty thousand or more; and
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) In a county with a population of seven hundred fifty thousand or more, any person owning property in the community adjacent to agricultural lands may report in writing a violation of subsection (f) to the respective county enforcement authority, and the enforcement authority shall have thirty days from receipt of the written report to investigate the complaint. Any agricultural lands found to be in violation of subsection (f) shall be subject to enforcement by the county in which the agricultural lands are located and fines pursuant to sections 46-4, 205-12, and 205-13; provided that the county shall provide a report to the department of agriculture on an annual basis that includes a summary of all written reports of violations, the results of the county's investigation, and any fines levied pursuant to this subsection."
SECTION 4. Section 514B-6, Hawaii Revised Statutes, is amended to read as follows:
§514B-6[ ]] Supplemental county ordinances and
rules governing a condominium property regime. Whenever
any county deems it proper, the county may adopt supplemental rules, and in
a county with a population of seven hundred fifty thousand or more, ordinances, governing condominium property regimes
established under this chapter in order to implement this program; provided
that any of the supplemental rules adopted shall not conflict with this chapter
or with any of the rules adopted by the commission to implement this chapter."
SECTION 5. Section 514B-52, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) An application for registration of a project
in the agricultural district classified pursuant to chapter 205 [
(1) Shall include a verified statement,
signed by an appropriate county official, that the project as described and set
forth in the project's declaration, condominium map, bylaws, and house rules
does not include any restrictions limiting or prohibiting agricultural uses or
activities, in compliance with section 205‑4.6[
(2) May include comments on the availability of supportive infrastructure, the potential impact on environmental resources, and other requirements of county ordinances and rules; provided that this paragraph shall apply to a project in a county with a population of seven hundred fifty thousand or more.
The commission shall not accept the registration of a project where a county official has not signed a verified statement."
SECTION 6. Section 514B-83, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) A developer's public report shall contain:
(1) The name and address of the project, and the name, address, telephone number, and electronic mail address, if any, of the developer or the developer's agent;
(2) A statement of the deadline, pursuant to
section 514B‑89, for completion of construction or, in the case of a
conversion, for the completion of any repairs required to comply with section
514B‑5, and the remedies available to the purchaser, including [
not limited to] cancellation of the sales contract, if the completion of
construction or repairs does not occur on or before the completion deadline;
(3) A breakdown of the annual maintenance fees and the monthly estimated cost for each unit, certified to have been based on generally accepted accounting principles, and a statement regarding when a purchaser shall become obligated to start paying the fees pursuant to section 514B‑41(b);
(4) A description of all warranties for the individual units and the common elements, including the date of initiation and expiration of any such warranties, or a statement that no warranties exist;
(5) A summary of the permitted uses of the units and, if applicable, the number of units planned to be devoted to a particular use;
(6) A description of any development rights reserved to the developer or others;
(7) A declaration, subject to the penalties set
forth in section 514B‑69(b), that the project is in compliance with all
county zoning and building ordinances and codes, chapter 205, including [
sections 205‑4.5(f) and 205-4.6 where applicable, and all other
county permitting requirements applicable to the project, pursuant to sections
514B‑5 and 514B‑32(a)(13); and
(8) Any other facts, documents, or information that would have a material impact on the use or value of a unit or any appurtenant limited common elements or amenities of the project available for an owner's use, or that may be required by the commission."
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 2050; provided that the amendments made to section 205-4.5, Hawaii Revised Statutes, by this Act shall not be repealed when section 205-4.5, Hawaii Revised Statutes, is reenacted on June 30, 2019, by section 3 of Act 52, Session Laws of Hawaii 2014.
Condominium Property Regimes; Planned Community Associations; Agricultural Lands; County Subdivision Requirements
Requires public notice of sale of agricultural or preservation property subdivided as a condominium property regime in a planned community association within 90 days of subdivision and sale. Prohibits any residential use for any period of structures on agricultural and preservation land. In a county with a population of 750,000 or more, allows for county enforcement of state and county requirements on subdivided agricultural land based on community reports of suspected violations. Permits consideration of infrastructure and environmental impacts on applications for condominium projects on agricultural land. Requires the declaration in a condominium project developer's public report to specify that the project is in compliance with section 205-4.5(f), HRS. Effective 7/1/2050. (SD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.