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COUNTY OF HAWAII : STATE OF HAWAII
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BILL NO. 43
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 19,ARTICLES 1 AND 8,OF THE HAWAII
COUNTY CODE 1983(2016 EDITION,AS AMENDED),RELATING TO
COMMERCIAL AGRICULTURAL USE DEDICATION FOR REAL PROPERTY
TAXES.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose. The Real Property Tax Review Working Group and Agricultural
Committee's final report, dated September 20, 2019,made several recommendations regarding
the commercial agricultural use dedication provided for in section 19-60 of the Hawai`i County
Code. Furthermore,the County endeavors to support our agricultural industry, increase local
food production, and encourage new agricultural operations through tax incentives. The purpose
of these amendments to the commercial agricultural use dedication program are to implement the
recommendations of the report and to support the County's agricultural industry by streamlining
the dedication process and establishing control mechanisms to ensure the dedication program's
proper use.
SECTION 2. Chapter 19, article 1, section 19-2, of the Hawai`i County Code 1983
(2016 Edition, as amended), is amended by amending the definition of"Commercial agricultural
activities"to read as follow:
'Commercial agricultural activities" shall mean [the use of property to] farm
operations, that may include multiple parcels that need not be contiguous, that generate
income,monetary gain or economic benefit in the form of money or money's worth of a
minimum$2,000 annual gross income per farm operation[, which may include multiple
. •- . . . . . . •• . - . . . . - •. .. - ] or adhere to
generally accepted standards or recognized practices within that agricultural industry."
SECTION 3. Chapter 19, article 1, section 19-2, of the Hawai`i County Code 1983 (2016
Edition, as amended), is amended by amending the definition of"Long-term commercial
agricultural activities"to read as follow:
"["Commercial] "Long-term commercial agricultural use dedication"means the use of
land on a continuous and regular basis for a minimum of ten years that demonstrates the owner is
engaged in commercial agricultural activities from:
(1) Intensive agriculture;
(2) Orchards;
(3) Feed crops and fast rotation forestry; [or]
(4) Pasture and slow rotation forestry[.-]; or
(5) Diversified agriculture."
SECTION 4. Chapter 19, article 1, section 19-2, of the Hawai`i County Code 1983
(2016 Edition, as amended), is amended by adding the following new definitions to be
appropriately inserted and to read as follows:
'Commercially viable agricultural operation" shall mean an agricultural business or
service with the ability to compete effectively and to make a profit, either without subsidies or
with reliable, long-term subsidies as demonstrated by an analysis of comparable practices within
the area of operation under comparable conditions."
"Diversified agriculture" means a blend of intensive agriculture and orchards while
transitioning from one category to the other during the term of the dedication."
"Farm plan"means an agricultural business plan, in a form prescribed by the director,that
describes the agricultural practices of a commercially viable agricultural operation, all relevant
tax map key numbers, and a financial projection."
"Short-term commercial agricultural use dedication"means the use of land on a continuous
and regular basis for a minimum of three years that demonstrates the owner is engaged in
commercial agricultural activities from:
(1) Intensive agriculture;
(2) Orchards;
(3) Feed crops and fast rotation forestry;
(4) Pasture and slow rotation forestry; or
(5) Diversified agriculture.""
SECTION 5. Chapter 19, article 8, section 19-60, of the Hawaii County Code 1983
(2016 Edition, as amended), is amended to read as follows:
"Section 19-60. [ ] Long-term commercial agricultural use dedication.
(a) A special land reserve is established to enable the owner of any parcel of land, or lessee of
a recorded agricultural lease with a minimum of five years remaining on the lease at time
of petition, to dedicate the land for a specific long-term commercial agricultural use
[dedication], and to have the value of the land assessed [its value] in such use for a period
of ten years, or in the case of a recorded agricultural lease the term of the lease up to ten
years, provided:
(1) The land dedicated for commercial activity must be used on a continuous and regular
basis for intensive agriculture, orchards, feed crops and fast rotation forestry [er].
pasture and slow rotation forestry, or diversified agriculture and have a minimum lot
size per farm operation as determined by the minimum lot size schedule for that
dedicated category of commercial activity as provided for in the administrative rules
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and regulations of the department, except where the dedication petition indicates a
commercially viable agricultural operation on a smaller lot; [and]
(2) The land dedicated for long-term commercial agriculture use for intensive agriculture,
orchards, or diversified agriculture is fallow for no more than three out of every ten
years of the dedication period, except when greater fallow periods are necessary as
described in the dedication petition;
(3) The land dedicated for long-term commercial agricultural use for intensive
agriculture, orchards, or diversified agriculture shall not grow any crops identified by
the State department of agriculture as a noxious weed; and
[(2)](4) The land is within [the]a County zoned district of agricultural, residential and
agricultural, family agricultural, intensive agricultural, agricultural project district, or
any other County zoned district meeting with the approval of the director of planning.
(b) The owner of land under the twenty-year agricultural dedication at July 1, 2003 may
continue to be assessed at fifty percent of its agricultural use value and shall be subject to
the conditions and provisions of the effective long-term commercial agricultural use
dedication.
(c) Determining agricultural use value.
(1) In determining the value of lands which are classified and used for long-term
commercial agriculture use, consideration shall be given to rent, productivity, nature
of actual commercial agricultural use,the advantage or disadvantage of factors such
as location, accessibility,transportation facilities, size, shape,topography, [quality of
soil,] water privileges, availability of water and its cost, easements and
appurtenances, and to the opinions of persons who may be considered to have special
knowledge of land values.
(2) [Fear] Five general agricultural categories shall be used in determining the value of
lands which are dedicated for long-term commercial agriculture use:
(A) "Intensive agriculture,"which includes such crops as vegetables, ginger, taro,
herbs, nurseries, foliage, cut and potted flowers,piggeries, dairy, poultry,
feedlots, aquaculture, and honey and honeybees.
(B) "Orchards," which includes such crops as macadamia nuts, guava, banana,
papaya, avocado, grapes, passion fruit, coffee, citrus, cacao,pineapple.,and
tropical specialty fruits.
(C) "Feed crops and fast rotation forestry,"which includes forage crops, seed crops,
cane, short rotation forestry, biomass, grasses, etc.
(D) "Pasture and slow rotation forestry,"which includes pasture and longer rated
forestry.
(E) "Diversified agriculture,"which includes a blend of intensive agriculture and
orchards.
(3) Lands classified as tree farm property pursuant to chapter 186, Hawai`i Revised
Statutes, shall be considered for classification and valuation as agricultural.
(4) The portion of land that is not dedicated for long-term commercial agriculture use
shall be assessed based on the proportional market value of the total property.
(5) A farm dwelling site shall be assessed at the highest commercial agricultural use
value,provided that the maximum farm dwelling site area to be assessed at the
highest commercial agriculture use value shall not exceed one-fourth acre.
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(d) [Commercial] Long-term commercial agricultural use dedication petition.
(1) If any owner desires to dedicate the owner's land for a long-term commercial
agricultural use and to have the land taxed [as]at its assessed value in this use, the
owner shall so petition the director of finance and declare in the petition that the land
can best be used for the purpose for which the owner requests permission and that if
the petition is approved the land will be used for this purpose. The director [may
require evidence of commercial agricultural use in such form and at such times as
provided for in the administrative rules and regulations of the department.] shall
require an Internal Revenue Service schedule F (form 1040) or State department of
taxation form G-49 from the previous tax year as evidence of long-term commercial
agricultural use.
(2) The director shall prescribe the form of the petition[.-] that shall include:
(A) A farm plan;
(B) Documentation of organic certification from the U.S. Department of
Agriculture;
(C) A plan from the U.S. Department of Agriculture,Natural Resources
Conservation Service;
(D) Documentation of food safety certification from the U.S. Department of
Agriculture; or
(E) Receipts demonstrating an investment of a minimum of$2,000 in farm
equipment for use on the subject property.
(3) The petition shall be filed with the director of finance by September 1 of any calendar
year and shall be approved or disapproved by December 15. If approved, dedication
shall be effective on July 1 of the following tax year.
(4) petitionThe for long-term commercial agricultural use dedication must be signed by
all owners of the land being dedicated.
(5) A recorded lessee of the land with a term of five or more years remaining from the
date of the petition and who is responsible for payment of the real property tax shall
also be deemed an owner of the land within these provisions.
(6) Action by director on petition.
(A) Upon receipt of a petition as provided above, the director shall make a finding of
fact as to whether the land in the petition area is reasonably well suited for the
intended use. The finding shall include and be based upone productivity
ratings of the land in those uses for which it is best suited, a \tudy of the
ownership, size of operating unit, the present use of surrounding similar lands
and other criteria as may be appropriate.
(B) The director shall also make a finding of fact as to whether the intended use is in
conflict with the overall development plan of the [State and] County; provided
that [ . - . . .• ' . -- .. . . . ' . with
respect to lands in County zoning districts other than agricultural, residential and
agricultural, family agricultural, intensive agricultural or agricultural project
district,the director shall make further findings respecting the economic
feasibility of the intended use of the land.
(C) If all findings are favorable, the director shall approve the petition and declare
the land to be dedicated.
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(D) In order to place prospective buyers on notice of the rollback liability, the
petitioner shall record the dedication in accordance with the procedures of the
bureau of conveyances within ninety days of notice of approval.
(e) Approval by the director of the petition to dedicate shall constitute a forfeiture on the part
of the owner of any right to change the use of the land to a use other than long-term
commercial agriculture for a minimum period of ten years, unless otherwise provided by
this chapter, subject to cancellation or renewal as follows:
(1) At least one hundred eighty days prior to any cancellation or termination, the
department of finance shall notify the owner by mail of such cancellation or
termination. The owner shall reapply for renewal of the dedication by filing an
application with the director on or before September 1 of the last year of dedication.
The renewal petition shall, in all respects, be processed similarly to an original
petition. Upon approval by the director of succeeding dedications,the property shall
continue to be assessed in accordance with the provisions of the dedication.
(2) In the case of a change in zoning not as a result of a petition by any property owner or
lessee such that the owner's land is placed within any zoned district other than a
County zoned district of agricultural, residential and agricultural, family agricultural,
intensive agricultural, or agricultural project district, the dedication may be cancelled
within sixty days of the change by the owner.
(3) Upon any conveyance or any change in ownership during the period of dedication,
the land shall continue to be subject to the terms and conditions of the dedication
unless a release has been issued by the director.
(f) Changing between commercial agricultural categories.
(1) If the owner desires to change from a specific commercial agricultural category to
another commercial agricultural category,the owner shall so petition the director of
finance and declare in the petition that:
(A) The owner's land can best be used for a commercial agricultural activity other
than that for which the petition was originally approved; and
(B) The owner will use the land for that new commercial agricultural activity if the
petition [if]is approved.
(2) If an owner is permitted to change the use as provided in this subsection, the owner
shall be allowed up to twenty-four months from the effective date of the petition to
convert to the new commercial agricultural category. This conversion must be
completed prior to the end of the dedication period.
(3) The petitioner shall submit progress reports of the petitioner's efforts in converting
from one commercial agricultural category to another commercial agricultural
category to the director of finance by the anniversary date of the petition approval and
yearly,thereafter, as long as such conversion period remains.
(4) If the owner fails to make the conversion within the specified time limit, the owner
will be subject to the taxes and penalties provided herein.
(5) Any other provision to the contrary notwithstanding, an approved change in use as
provided herein shall not alter the original dedication period.
(g) Breach of dedication; deferred or rollback taxes; penalties and interest.
(1) A deferred or rollback tax shall be imposed on the owner of long-term commercial
agricultural use dedicated lands upon any of the following:
(A) Failure of the owner to observe any restriction, condition, or provision on the
use of the land; or
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(B) If the dedicated property or any portion thereof is sold by way of a conveyance
which is subject to conveyance tax under the terms of chapter 247, Hawai`i
Revised Statutes,unless a notarized affidavit is signed by the owner stating that
the land will continue to be subject to the full requirements of the dedication
including any penalties for violation. The director shall record the notarized
affidavit with the bureau of conveyances.
(2) The deferred or rollback tax shall commence from the date the failure to observe the
restriction, condition,.or provision, or the property's conveyance retroactive to the
date the assessment was made pursuant to subsection(3)(F) of this section but for not
more than ten years.
(A) Failure to observe the restrictions on the use means failure for a period of six
consecutive months to use the land in the manner requested in the petition or the
overt act of changing the use for any period; provided that the petition by the
owner for a change in use as provided in subsection(f), and the owner's
subsequent change in use of such dedicated lands, shall not be deemed to
constitute a failure of the owner to observe the restrictions on the use.
(B) Any other provisions to the contrary notwithstanding, when a portion of the
dedicated land is subsequently applied to a use other than the use set forth in the
original petition, only such portion as is withdrawn from the dedicated use and
applied to a use other than the commercial agricultural category shall be taxed
as provided by this subsection.
(3) Calculating deferred or rollback taxes.
(A) The deferred or rollback tax shall be based on the difference between the
assessed market value at highest and best use and the long-term commercial
agricultural use of the land at the rate applicable for the respective years.
(B) All differences in the amount of taxes that were paid and those that would have
been due from assessment in the higher use shall be due and payable with a ten
percent penalty.
(C) If the owner of dedicated land breaches a condition of the dedication before its
completion, deferred or rollback taxes shall be imposed on the subject parcel
pursuant to subparagraph (F) below, retroactive from the end of the tax year in
which the breach occurs.
(D) In any case in which deferred or rollback taxes are imposed after successful
completion of an agricultural dedication period,the deferred or rollback taxes
shall be retroactive only to the end of the completed dedication period, and shall
not be imposed for any time covered by a successfully completed agricultural
dedication period.
(E) In cases involving a breach of a ten-year dedication, or a rollback period of ten
or fewer years for breach of a twenty-year dedication, the rollback taxes under
this section shall be for a maximum total of ten years, including both the
breached dedication rollback period and any period of nondedicated agricultural
use assessment subject to rollback. Rollback taxes for any breach of dedication
affecting more than ten years under a twenty-year dedication shall not exceed
ten years.
(F) Deferred or rollback tax schedule.
(i) Breach of the restrictions on use within five years of the dedication shall
result in a rollback to the date of the dedication.
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(ii) Breach of the restrictions on use within six years of the dedication shall
result in a rollback of four years from the date of the breach.
(iii) Breach of the restrictions on use within seven years of the dedication shall
result in a rollback of three years from the date of the breach.
(iv) Breach of the restrictions on use within eight or nine years of the
dedication shall result in a rollback of two years from the date of the
breach.
(4) The additional taxes and penalties due and owing shall be a paramount lien
upon the property as provided for by this chapter.
(h) The director may cancel a dedication without rollback taxes or penalties in the event
of any of the following:
(1) A recognized natural disaster beyond the farmer's control; [or]
(2) The land can no longer be used for the dedicated agricultural use; or
(3) The death or severe disability of the principal farmer such that the farm
operation cannot continue. Corporations and partnerships are not eligible for
this death or severe disability exemption."
SECTION 6. Chapter 19, article 8, of the Hawai`i CountyCode 1983 (2016 Edition, as
p
amended), is amended by adding a new section to be appropriately designated and to read as
follows:
"Section 19- . Short-term commercial agricultural use dedication.
(a) A special land reserve is established to enable the owner of any parcel of land, or lessee of
a recorded agricultural lease with a minimum of three years remaining on the lease at time
of petition,to dedicate the land for a specific short-term commercial agricultural use, and to
have the value of the land assessed in such use for a period of three years, or in the case of
a recorded agricultural lease the term of the lease up to three years,provided:
(1) The land dedicated for commercial activity must be used on a continuous and regular
basis for intensive agriculture, orchards, feed crops and fast rotation forestry, pasture
and slow rotation forestry, or diversified agriculture and have a minimum lot size per
farm operation as determined by the minimum lot size schedule for that dedicated
category of commercial activity as provided for in the administrative rules and
regulations of the department, except where the dedication petition indicates a
commercially viable agricultural operation on a smaller lot;
(2) The land dedicated for short-term commercial agriculture use for intensive
agriculture, orchards, or diversified agriculture is fallow for no more than one out of
every three years of the dedication period, except when greater fallow periods are
necessary as described in the dedication petition;
(3) The land dedicated for short-term commercial agricultural use for intensive
agriculture, orchards, or diversified agriculture shall not grow any crops identified by
the State department of agriculture as a noxious weed; and
(4) The land is within a County zoned district of agricultural, residential and agricultural,
family agricultural, intensive agricultural, agricultural project district, or any other
County zoned district meeting with the approval of the director of planning.
(b) Determining agricultural use value.
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(1) In determining the value of lands which are classified and used for short-term
commercial agriculture use, consideration shall be given to rent, productivity, nature
of actual commercial agricultural use, the advantage or disadvantage of factors such
as location, accessibility, transportation facilities, size, shape, topography, water
privileges, availability of water and its cost, easements and appurtenances, and to the
opinions of persons who may be considered to have special knowledge of land values.
(2) The five general agricultural categories in section 19-60 (c)(2) shall be used in
determining the value of lands which are dedicated for short-term commercial
agriculture use.
(3) Lands classified as tree farm property pursuant to chapter 186, Hawai`i Revised
Statutes, shall be considered for classification and valuation as agricultural.
(4) The portion of land that is not dedicated for short-term commercial agriculture use
shall be assessed based on the proportional market value of the total property.
(5) A farm dwelling site shall be assessed at the highest commercial agricultural use
value,provided that the maximum farm dwelling site area to be assessed at the
highest commercial agriculture use value shall not exceed one-fourth acre.
(6) Lands dedicated for short-term commercial agricultural use shall be assessed at three
times the value as lands dedicated for long-term commercial agricultural use.
(c) Short-term commercial agricultural use dedication petition.
(1) If any owner desires to dedicate the owner's land for a short-term commercial
agricultural use and to have the land taxed at its assessed value in this use, the owner
shall so petition the director of finance and declare in the petition that the land can
best be used for the purpose for which the owner requests permission and that if the
petition is approved the land will be used for this purpose. The director shall require
evidence of short-term commercial agricultural use in such form and at such times as
provided for in the administrative rules and regulations of the department.
(2) The director shall prescribe the form of the petition that shall include:
(A) A farm plan;
(B) Documentation of organic certification from the U.S. Department of
Agriculture;
(C) A plan from the U.S. Department of Agriculture,Natural Resources
Conservation Service;
(D) Documentation of food safety certification from the U.S. Department of
Agriculture; or
(E) Receipts demonstrating an investment of a minimum of$2,000 in farm
equipment for use on the subject property.
(3) The petition shall be filed with the director of finance by September 1 of any calendar
year and shall be approved or disapproved by December 15. If approved, dedication
shall be effective on July 1 of the following tax year.
(4) The petition for short-term commercial agricultural use dedication must be signed by
all owners of the land being dedicated.
(5) Action by director on petition.
(A) Upon receipt of a petition as provided above, the director shall make a finding of
fact as to whether the land in the petition area is reasonably well suited for the
intended use. The finding shall include and be based upon the productivity
ratings of the land in those uses for which it is best suited, a study of the
8
ownership, size of operating unit, the present use of surrounding similar lands
and other criteria as may be appropriate.
(B) The director shall also make a finding of fact as to whether the intended use is in
conflict with the overall development plan of the County; provided that, with
respect to lands in County zoning districts other than agricultural, residential and
agricultural, family agricultural, intensive agricultural, or agricultural project
district,the director shall make further findings respecting the economic
feasibility of the intended use of the land.
(C) If all findings are favorable, the director shall approve the petition and declare
the land to be dedicated.
(e) Approval by the director of the petition to dedicate shall constitute a forfeiture on the part
of the owner of any right to change the use of the land to a use other than short-term
commercial agriculture for a minimum period of three years, unless otherwise provided by
this chapter, subject to cancellation or renewal as follows:
(1) At least one hundred eighty days prior to any cancellation or termination, the
department of finance shall notify the owner by mail of such cancellation or
termination. The owner shall reapply for renewal of the dedication by filing an
application with the director on or before September 1 of the last year of dedication.
The renewal petition shall, in all respects, be processed similarly to an original
petition. Upon approval by the director of succeeding dedications, the property shall
continue to be assessed in accordance with the provisions of the dedication.
(2) In the case of a change in zoning not as a result of a petition by any property owner or
lessee such that the owner's land is placed within any zoned district other than a
County zoned district of agricultural, residential and agricultural, family agricultural,
intensive agricultural, or agricultural project district,the dedication may be cancelled
within sixty days of the change by the owner.
(3) Upon any conveyance or any change in ownership during the period of dedication,
the land shall no longer continue to be subject to the terms and conditions of the
dedication.
(f) Changing between commercial agricultural categories.
(1) If the owner desires to change from a specific commercial agricultural category to
another commercial agricultural category, the owner shall so petition the director of
finance and declare in the petition that:
(A) The owner's land can best be used for a commercial agricultural activity other
than that for which the petition was originally approved; and
(B) The owner will use the land for that new commercial agricultural activity if the
petition is approved.
£2) If an owner is permitted to change the use as provided in this subsection,the owner
shall be allowed up to twelve months from the effective date of the petition to convert
to the new commercial agricultural category. This conversion must be completed
prior to the end of the dedication period.
(3) The petitioner shall submit progress reports of the petitioner's efforts in converting
from one commercial agricultural category to another commercial agricultural
category to the director of finance by the anniversary date of the petition approval and
yearly, thereafter, as long as such conversion period remains.
(4) If the owner fails to make the conversion within the specified time limit,the owner
will be subject to the taxes and penalties provided herein.
9
(5) Any other provision to the contrary notwithstanding, an approved change in use as
provided herein shall not alter the original dedication period.
(g) Breach of dedication; deferred or rollback taxes; penalties and interest.
(1) A deferred or rollback tax shall be imposed on the owner of short-term commercial
agricultural use dedicated lands upon failure of the owner to observe any restriction,
condition, or provision on the use of the land.
(2) The deferred or rollback tax shall commence from the date the failure to observe the
restriction, condition, or provision, retroactive to the date the assessment was made
but for not more than three years.
(A) Failure to observe the restrictions on the use means failure for a period of six
consecutive months to use the land in the manner requested in the petition or the
overt act of changing the use for any period; provided that the petition by the
owner for a change in use as provided in subsection(f), and the owner's
subsequent change in use of such dedicated lands, shall not be deemed to
constitute a failure of the owner to observe the restrictions on the use.
(B) Any other provisions to the contrary notwithstanding, when a portion of the
dedicated land is subsequently applied to a use other than the use set forth in the
original petition, only such portion as is withdrawn from the dedicated use and
applied to a use other than the commercial agricultural category shall be taxed
as provided by this subsection.
(3) Calculating deferred or rollback taxes.
(A) The deferred or rollback tax shall be based on the difference between the
assessed market value at highest and best use and the short-term commercial
agricultural use of the land at the rate applicable for the respective years.
(B) All differences in the amount of taxes that were paid and those that would have
been due from assessment in the higher use shall be due and payable with a ten
percent penalty.
(C) If the owner of dedicated land breaches a condition of the dedication before its
completion, deferred or rollback taxes shall be imposed on the subject parcel,
retroactive from the end of the tax year in which the breach occurs.
(D) In any case in which deferred or rollback taxes are imposed after successful
completion of an agricultural dedication period,the deferred or rollback taxes
shall be retroactive only to the end of the completed dedication period, and shall
not be imposed for any time covered by a successfully completed agricultural
dedication period.
(E) In cases involving a breach of a three-year dedication, rollback taxes shall be
assessed to the date of the dedication.
(4) The additional taxes and penalties due and owing shall be a paramount lien upon the
property as provided for by this chapter.
(h) The director may cancel a dedication without rollback taxes or penalties in the event of any
of the following:
(1) A recognized natural disaster beyond the farmer's control;
(2) The land can no longer be used for the dedicated agricultural use; or
(3) The death or severe disability of the principal farmer such that the farm
operation cannot continue. Corporations and partnerships are not eligible for
this death or severe disability exemption.
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SECTION 7. Material to be repealed is bracketed and stricken. New material is
underscored. In printing this ordinance, the brackets, bracketed and stricken material, and
underscoring need not be included.
SECTION 8. Severability. If any provision of this ordinance, or the application thereof
to any taxpayer or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 9. This ordinance shall take effect July 1, 2023.
INTRODUCED BY:
C CIL MEMB , COUNTY OF HAWAII
COUNCIL :MBER, COUNTY OF HAWAI`I
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. 217
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