Bill Text: HI SB2926 | 2012 | Regular Session | Introduced
Bill Title: Land Use Commission; District Boundaries; Prime Farmlands
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-02-16 - (S) The committee on WLH deferred the measure. [SB2926 Detail]
Download: Hawaii-2012-SB2926-Introduced.html
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THE SENATE |
S.B. NO. |
2926 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to land use.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the State's land use districts face reclassification as the demand for housing and jobs increase. For example, the land developer for a $4,600,000,000 project is petitioning the land use commission to reclassify land that includes one thousand five hundred fifty-four acres of prime farmland in order to build a large community consisting of eleven thousand seven hundred fifty homes, five public schools and three to four million square feet of commercial space in Ewa. The biggest of the four farms that currently operate on this site is the second largest diversified fruit and vegetable farm in the State and uses approximately one thousand acres to grow its produce.
Although the project designates land for commercial farming, community gardens, and home gardens, it proposes to eventually phase out farming in the area from one thousand five hundred acres to one thousand three hundred acres in 2015, to six hundred ninety-eight acres in 2020, and finally to two hundred fifty-one acres for urban agriculture. Proponents reason that the project will avoid a housing shortage and provide jobs without endangering local food security. Furthermore, the proposed project site is located within the city's urban growth boundary devised to accommodate population growth. Opponents contend that Oahu needs to preserve prime farmland for growing food and that housing and jobs should not be the main motivation for paving over land once used to grow sugar cane.
As evidenced by this example, housing and agriculture often compete for the same land resources. The legislature finds that one way of compromising these conflicting interests is reserving the use of certain agricultural lands, prime farmlands, for the purposes for which they are best suited. However, prior decisions from the land use commission have favored the need to address urban growth demands over keeping the land for agricultural purposes.
The legislature further finds that clearer criteria for the land use commission to use in review of any petition for district boundary reclassification is necessary to ensure the best possible uses of and to preserve prime farmlands. Clear criteria will further assure the availability of agriculturally suitable lands pursuant to article XI, section 3, of the Hawaii State Constitution.
The purpose of this Act is to ensure that the State's prime farmlands are protected by:
(1) Defining prime farmlands and allowing prime farmlands within agricultural districts;
(2) Prohibiting petitions for boundary amendments that cover substantially the same request as previously submitted to and subsequently denied by the land use commission or voluntarily withdrawn during a certain period of time after the denial or withdrawal, with certain exceptions;
(3) Requiring the land use commission to specifically consider prime farmlands as a factor in decisions related to agricultural district boundaries and permissible uses within the agricultural districts; and
(4) Prohibiting the land use commission from taking prime farmlands out of agricultural districts if the land is used for agricultural purposes for at least two years prior to the petition for a boundary amendment or has a high capacity for intensive agricultural uses.
SECTION 2. Section 205-2, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) Agricultural districts shall include:
(1) Activities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry;
(2) Farming activities or uses related to animal husbandry and game and fish propagation;
(3) Aquaculture, which means the production of aquatic plant and animal life within ponds and other bodies of water;
(4) Wind generated energy production for public, private, and commercial use;
(5) Biofuel production, as described in section 205‑4.5(a)(15), for public, private, and commercial use;
(6) Solar energy facilities; provided that:
(A) This paragraph shall apply only to land with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class B, C, D or E; and
(B) Solar energy facilities placed within land with soil classified as overall productivity rating class B or C shall not occupy more than ten per cent of the acreage of the parcel, or twenty acres of land, whichever is lesser;
(7) Bona fide agricultural services and uses that support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, regardless of whether conducted on the same premises as the agricultural activities to which they are accessory, including farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, agricultural-energy facilities as defined in section 205-4.5(a)(16), vehicle and equipment storage areas, roadside stands for the sale of products grown on the premises, and plantation community subdivisions as defined in section 205‑4.5(a)(12);
(8) Wind machines and wind farms;
(9) 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 these facilities shall not be used as or equipped for use as living quarters or dwellings;
(10) Agricultural parks;
(11) 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; [and]
(12) Open area recreational facilities[.]; and
(13) Prime farmlands. For purposes of this chapter, "prime farmland" means:
(A) Land best suited for food, feed, forage, fiber, and oilseed crops;
(B) Land that produces the highest yields with minimal inputs of energy and economic resources and resulting in the least damage to the environment; and
(C) Land with good soil productivity depending on its location characteristics.
Agricultural districts shall not include golf courses and golf driving ranges, except as provided in section 205-4.5(d). Agricultural districts include areas that are not used for, or that are not suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics."
SECTION 3. Section 205-3.1, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) District boundary amendments involving lands in the conservation district, land areas greater than fifteen acres, prime farmlands located in an agricultural district, or lands delineated as important agricultural lands shall be processed by the land use commission pursuant to section 205-4.
(b) Any department or agency of the State, and
department or agency of the county in which the land is situated, or any person
with a property interest in the land sought to be reclassified may petition the
appropriate county land use decision-making authority of the county in which
the land is situated for a change in the boundary of a district involving lands
less than fifteen acres presently in the rural and urban districts and lands
less than fifteen acres in the agricultural district that are not designated as
important agricultural lands[.] or prime farmlands."
SECTION 4. Section 205-4, Hawaii Revised Statutes, is amended 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, lands designated or sought to be designated as important agricultural lands, prime farmlands located in an agricultural district, and lands greater than fifteen acres in the agricultural, rural, and urban districts, except as provided in section 201H-38. The land use commission shall adopt rules pursuant to chapter 91 to implement section 201H-38.
(b) Upon proper filing of a petition pursuant to subsection (a) the commission shall, within not less than sixty and not more than one hundred and eighty days, conduct a hearing on the appropriate island in accordance with the provisions of sections 91-9, 91-10, 91-11, 91-12, and 91-13, as applicable.
(c) Any other provision of law to the contrary notwithstanding, notice of the hearing together with a copy of the petition shall be served on the county planning commission and the county planning department of the county in which the land is located and all persons with a property interest in the land as recorded in the county's real property tax records. In addition, notice of the hearing shall be mailed to all persons who have made a timely written request for advance notice of boundary amendment proceedings, and public notice shall be given at least once in the county in which the land sought to be redistricted is situated as well as once statewide at least thirty days in advance of the hearing. The notice shall comply with section 91-9, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further shall inform all interested persons of their rights under subsection (e).
(d) Any other provisions of law to the contrary notwithstanding, prior to hearing of a petition the commission and its staff may view and inspect any land which is the subject of the petition.
(e) Any other provisions of law to the contrary notwithstanding, agencies and persons may intervene in the proceedings in accordance with this subsection.
(1) The petitioner, the office of planning, and the county planning department shall in every case appear as parties and make recommendations relative to the proposed boundary change.
(2) All departments and agencies of the State and of the county in which the land is situated shall be admitted as parties upon timely application for intervention.
(3) All persons who have some property interest in the land, who lawfully reside on the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed change that their interest in the proceeding is clearly distinguishable from that of the general public shall be admitted as parties upon timely application for intervention.
(4) All other persons may apply to the commission for leave to intervene as parties. Leave to intervene shall be freely granted, provided that the commission or its hearing officer if one is appointed may deny an application to intervene when in the commission's or hearing officer's sound discretion it appears that: (A) the position of the applicant for intervention concerning the proposed change is substantially the same as the position of a party already admitted to the proceeding; and (B) the admission of additional parties will render the proceedings inefficient and unmanageable. A person whose application to intervene is denied may appeal such denial to the circuit court pursuant to section 91-14.
(5) The commission shall pursuant to chapter 91 adopt rules governing the intervention of agencies and persons under this subsection. Such rules shall without limitation establish: (A) the information to be set forth in any application for intervention; (B) time limits within which such applications shall be filed; and (C) reasonable filing fees to accompany such applications.
(f) Together with other witnesses that the commission may desire to hear at the hearing, it shall allow a representative of a citizen or a community group to testify who indicates a desire to express the view of such citizen or community group concerning the proposed boundary change.
(g) Within a period of not more than three hundred sixty- five days after the proper filing of a petition, unless otherwise ordered by a court, or unless a time extension, which shall not exceed ninety days, is established by a two-thirds vote of the members of the commission, the commission, by filing findings of fact and conclusions of law, shall act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of this chapter or the policies and criteria established pursuant to section 205-17 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances.
(h) No amendment of a land use district boundary shall be approved unless the commission finds upon the clear preponderance of the evidence that the proposed boundary is reasonable, not violative of section 205-2 and part III of this chapter, and consistent with the policies and criteria established pursuant to sections 205-16 and 205-17. Six affirmative votes of the commission shall be necessary for any boundary amendment under this section.
(i) Parties to proceedings to amend land use district boundaries may obtain judicial review thereof in the manner set forth in section 91-14, provided that the court may also reverse or modify a finding of the commission if such finding appears to be contrary to the clear preponderance of the evidence.
(j) At the hearing, all parties may enter into appropriate stipulations as to findings of fact, conclusions of law, and conditions of reclassification concerning the proposed boundary change. The commission may but shall not be required to approve such stipulations based on the evidence adduced.
(k) The commission shall not accept any petition for boundary amendment covering substantially the same request for substantially the same land as previously denied by the commission within one year of the date of filing findings of fact and conclusions of law denying the petition unless the petitioner submits significant new data or additional reasons that substantially strengthen the petitioner's position; provided that in no event shall any new petition be accepted within six months of the date of filing of the findings of fact and conclusions of law. Additionally, the commission shall not accept any petition for boundary amendment for the same request involving the same land that was before the commission and withdrawn voluntarily by the petitioner within one year of the date of the withdrawal."
SECTION 5. Section 205-4.5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(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, including prime farmlands, 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) Roadside stands for the sale of agricultural products grown on the premises;
(10) Buildings and uses, including 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 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) 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.
"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;
(16) 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;
(17) 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;
(18) Agricultural 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 section, "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 165-2; or
(19) 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; 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.
(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, including prime farmlands, 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, 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."
SECTION 6. Section 205-17, Hawaii Revised Statutes, is amended to read as follows:
"§205-17 Land use commission decision-making criteria. (a) In its review of any petition for reclassification of district boundaries pursuant to this chapter, the commission shall specifically consider the following:
(1) The extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii state plan and relates to the applicable priority guidelines of the Hawaii state plan and the adopted functional plans;
(2) The extent to which the proposed reclassification conforms to the applicable district standards;
(3) The impact of the proposed reclassification on the following areas of state concern:
(A) Preservation or maintenance of important natural systems or habitats;
(B) Maintenance of valued cultural, historical, or natural resources;
(C) Maintenance of other natural resources relevant to Hawaii's economy, including agricultural resources;
(D) Commitment of state funds and resources;
(E) Provision for employment opportunities and
economic development; [and]
(F) Provision for housing opportunities for all income groups, particularly the low, low-moderate, and gap groups; and
(G) Preservation of prime farmlands to ensure local food security and the availability of agriculturally suitable lands pursuant to article XI, section 3, of the Hawaii State Constitution;
(4) The standards and criteria for the reclassification or rezoning of important agricultural lands in section 205-50;
(5) The county general plan and all community, development, or community development plans adopted pursuant to the county general plan, as they relate to the land that is the subject of the reclassification petition; and
(6) The representations and commitments made by the petitioner in securing a boundary change.
(b) Prime farmlands used for intensive agricultural purposes for two years prior to the date of filing the petition or lands with a high capacity for intensive agricultural purposes shall not be taken out of the agricultural district to ensure the availability of agriculturally suitable lands pursuant to article XI, section 3, of the Hawaii State Constitution."
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Land Use Commission; District Boundaries; Prime Farmlands
Description:
Defines prime farmlands and requires the land use commission to specifically consider prime farmlands as a factor in decisions related to agricultural district boundaries and permissible uses within the agricultural districts. Prohibits the commission from taking prime farmlands out of agricultural districts if the land is used for agricultural purposes for at least two years prior to the boundary amendment petition or has a high capacity for intensive agricultural uses. Prohibits petitions for boundary amendments that cover substantially the same request as previously submitted to and subsequently denied by the commission or voluntarily withdrawn during a certain period of time after the denial or withdrawal, with certain exceptions.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
