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HomeMy WebLinkAboutBIL 101 Draft 04 2002-2004 COUNTY OF HAWAII STATE OF HAWAII BILL NO. ioi (Draft 4) ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 19, OF THE HAWAII COUNTY CODE 1983 (1995 EDITION), RELATING TO REAL PROPERTY TAXES, BY CLARIFYING NATIVE FOREST DEDICATIONS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. The purpose of this measure is three-fold: (1) to align implementation of the native forest provisions of the real property tax code with the intent of the original law passed in 1996. The County Council adopted Ordinance No. 96-71, with the goal of preserving and restoring the County's watershed and ecosystems and encouraging new native forest initiatives. The idea was to place "native forests" in the same classification as "agriculture," thereby allowing it to qualify for low agriculture productivity assessments. The law also established a 20-year native forest dedication to grant a tax advantage to owners who committed their properties to the restrictive provisions of this program. In actuality, the amendment allowed landowners to use the lower agricultural productivity assessment categories on a year-to-year basis without dedicating the land to native forest use-similar to the tree farm program in which trees are grown for profit. This year-to-year assessment militates against the long-term objectives of native forest preservation and restoration. Accordingly, the Council finds it necessary to clarify that the benefits for native forest program are available only under the native forest dedication; (2) To allow for a minimum three-acre land area in order to expand native forest initiatives; and (3) To permit a homesite of not more than one-quarter acre when the property is three acres in size, thus requiring a minimum of 2.75 acres of native forest land. SECTION 2. Chapter 19, article 7, section 19-53, is amended by amending subsection (e) to read as follows: (e) Classification of land. (1) Except as otherwise provided in subsection (e)(2) of this section, land shall be classified, upon consideration of its highest and best use, into the following general classes: I (A) Improved residential, (B) Unimproved residential, (C) Apartment, (D) Hotel and resort, (E) Commercial, (F) Industrial, (G) Agricultural or native forests, (H) Conservation, and (I) Homeowner. (2) In assigning land to one of the general classes the director of finance shall give major consideration to the districting established by the land use commission pursuant to chapter 205, Hawaii Revised Statutes, the districting established by the County in its general plan and zoning ordinance, use classifications established in the general plan of the State, and such other factors which influence highest and best use, except that parcels which are used exclusively as the owner's principal residence shall be classified as "Homeowner" without regard to the highest and best use, provided that the director has granted to the owner a home exemption in accordance with sections 19-71 to 19-72. (A) The homeowner class is exclusively reserved for properties which are used as the owner's principal residence. Uses which shall not qualify as "Homeowner" include: (i) Real property which is valued according to its agricultural [or native forest] use pursuant to subsection 19-53(f)(1)[,] or (h)[,]_ (ii) Real property which is dedicated to an agricultural use or native forest use [category pursuant to section 19-55, or section 19-58.4 (Native forest dedication),]- (iii) Real property which is used for commercial orincome-producing purposes[,]- (iv) Real property which is used for residential rental purposes, whether for short-term or long-term lease[,], (v) Real property which is used for any purpose other than the owner's principal residence. (3) Whenever there is an overlap or contradiction in districting or use classification between the County and the State, zoned districts by the County shall take precedence. 2 (4) "Improved residential" shall mean land which is classified as residential by the department of finance upon consideration of its highest and best use, and is property which fulfills the provisions of at least one of the following subparagraphs: (A) Land which has been subdivided prior to any assessment year as a lot for single- ortwo-family residential use in conformity with the then existing County zoning ordinances, and has been approved for sale or approved as being in conformity with all of the subdivision requirements of the County, or (B) Land which is in actual single- ortwo-family residence use at a density of at (east asingle- or atwo-family residential building per acre, or (C) Land which is sufficiently developed with necessary land improvements to support a use density of at least asingle- or two-family residential building per acre. (5) "Unimproved residential" shall mean all residential class lands not classified as "improved residential" or "homeowner." SECTION 3. Chapter 19, article 7, section 19-53, of the Hawaii County Code 1983 (1995 edition), is amended by deleting the following: [(g) "Native forests" means lands which have sixty percent or greater native species forest cover. Native species are defined as those indigenous to the Hawaiian islands. Indigenous in this context shall mean plants that became established or evolved in the Hawaiian islands without the aid of human beings. The forest cover requirement may be met by native species in either the tree layer or the understory layer, or a combination of the two; provided a minimum twenty-five percent of the forest cover shall be tree cover. (1) The director of finance shall determine whether or not land qualifies as a native forest by using current natural resource or vegetation maps or other acceptable evidence. Other acceptable evidence includes, but is not limited to: (A) A written affidavit by a recognized professional in the field of natural resources, or (B) A finding by a County, State or Federal agency or department with the relevant expertise in the field of natural resources. (2) The following shall also apply to land classified native forest. 3 (A) If the cover of native forest species falls below sixty percent, the native forest classification shall be rescinded. (B) Land taxed as native forest shall be maintained according to sound land management practices such that soil erosion is minimized, foreign species are controlled, and the watershed is protected. (C) The native forest assessment is available only for parcels which are covered with at least five intact and contiguous acres of native forest. (3) In determining the value of lands which are classified native forest, the director shall assign the value of the lowest agricultural use category that the land could qualify for if it were to be put into agricultural use.] SECTION 4. Chapter 19, article 7, section 19-58.1, subsection (b), is amended to read as follows: (b) Any owner of property who qualifies under sections 19-71 and 19-72 for home exemption and uses the property exclusively for residential use may dedicate said property in its entirety to nonspeculative residential use and have that parcel assessed in the manner provided by section 19-58.2, except that a husband and wife, although living separate and apart, shall be entitled to dedicate only one parcel to the nonspeculative residential use. Exclusive residential use as used in this section shall not permit the owner to conduct any commercial activities on the property. Those owners who have dedicated their property to agricultural use or receive the benefit of the agricultural use or native forest [assessment] dedication shall not be eligible for this nonspeculative residential use dedication. SECTION 5. Chapter 19, article 7, section 19-58.4, of the Hawaii County Code 1983 (1995 edition), is repealed. (Section 19-58.4. Native forest dedication. Any property five acres or larger within agricultural, intensive agricultural, open or unplanned zoned districts, which is covered with at least five intact and contiguous acres of native forest is eligible for dedication as native forest property if it meets the classification requirements of native forest as established by the director of finance. "Native forests" means lands which have sixty percent or greater native species forest cover. Native species are defined as those indigenous to the Hawaiian islands. Indigenous in this context shall mean plants that became established or evolved in the Hawaiian islands without the aid of human beings. The forest cover requirement may be met by native species in either the tree layer or the understory layer, or a combination of the two; provided a minimum twenty-five percent of the forest cover shall contain tree cover. Land taxed as native 4 forest shall be maintained according to sound land management practices such that soil erosion is minimized, foreign species are controlled, and the watershed is protected. (a) An owner who desires to dedicate the land for native forest preservation for a period of twenty years shall petition the director of finance and demonstrate in the petition that the land qualifies as native forest as provided herein. The term "owner" includes lessees of real property whose term extends at least twenty years from the effective date of the dedication. (b) 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, the dedication shall be effective on July 1 of the following tax year. (c) The director of finance shall determine whether or not land qualifies as native forest by using current natural resource or vegetation maps or other acceptable evidence. Other acceptable evidence includes, but is not limited to: (1) A written affidavit by a recognized professional in the field of natural resources, or (2) A finding by a County, State or Federal agency or department with the relevant expertise in the field of natural resources. If the director's findings are favorable, the petition shall be approved and the land shall be declared dedicated. Approval 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 preservation for a minimum period of twenty years. The native forest classification shall be rescinded and all retroactive taxes and penalties due to a breach of the dedication shall be imposed if: (1) The cover of native forest species falls below sixty percent; (2) The property is rezoned to a higher use at the owner's request; (3) The property is subdivided into parcels of five acres or less in size; or (4) 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, Hawaii Revised Statutes, unless the director of finance submits a notarized affidavit signed by the owner to the bureau of conveyances stating that the land shall continue to be subject to the full requirements of the dedication, including the full penalties and rollback taxes imposed for violation. In order to place prospective buyers on notice of the rollback tax liability, the owner shall, within sixty days of notice of approval, record the dedication in accordance with the procedures of the bureau of conveyances. 5 (d) Other provisions to the contrary notwithstanding, aportion or portions of a parcel that is being assessed and dedicated as pasture may be taken out of production as part of an approved forest restoration plan set forth in this chapter for the duration of the approved restoration period without breaching the terms of the agricultural use dedication. (1) Such a plan indicating the acres and area, as well as the specific forest restoration work to be done, shall be filed with and approved by the director of finance. If the plan is approved, the land shall continue to be given the same pasture assessment. (2) The owner shall provide to the director of finance yearly evidence that the forest restoration plan is being implemented, as well as a signed and notarized affidavit by a recognized forestry professional that the restoration plan is likely to succeed within the designated time period. The owner shall continue to fulfill all other requirements of the agricultural assessment, including providing yearly proof that any portion of the parcel not being restored to a native forest, but still being assessed for an agricultural use, continues to be used and maintained substantially and continuously in the approved agricultural use. If at the end of the time period designated by the native forest restoration plan, the land meets the requirements of the native forest class described in this chapter, then it shall be classified and rededicated as a native forest. If, at the end of the time period designated in the plan, the land does not meet the requirements of the native forest class, the owner may return the land to its designated use as pasture or it shall be assessed and taxed at market value. (e) At least one hundred eighty days prior to the cancellation, the department of finance shall notify the owner by mail of such cancellation. The owner may reapply for renewal of the dedication by filing an application with the director on or before September 1 of the twentieth year. The renewal petition shall, in all respects, be processed in the same manner as an original petition. Upon approval of succeeding dedications by the director of finance, the property shall continue to be assessed in accordance with the provisions of this section. (f) While dedicated, the land shall be assessed at a preferential per-acre value in its restricted preservation use. In determining the value of lands which are classified native forest, the director shall assign the value of the lowest agricultural use category that the land could qualify for if it were to be put into agricultural use. (g) If forest dedicated for native forest preservation is destroyed in whole or in part by fire, hurricane or other disasters, the director may continue the dedication upon submittal and approval of a forest restoration plan as provided in this section. (h) Failure of the owner to observe the restrictions on the use of the land or the sale of the property shall cancel the special tax assessment privilege retroactive to the date of the 6 dedication, or the latest renewal period, and 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 payable with a ten percent penalty. (i) The owner may appeal a petition that has been disapproved as in the case of an appeal from an assessment.] SECTION 6. Chapter 19, article 8, of the Hawaii County Code 1983 (1995 edition), is amended to read as follows: Article 8. [Reserved.] Dedications. Section 19-59. [Reserved.] Native forest dedications. u "Native forests" means lands which have sixty percent or greater native species forest cover. Native species are defined as those species indigenous to the Hawaiian islands Indigenous in this context shall mean plants that became established or evolved in the Hawaiian islands without the aid of human beings The forest cover requirement may be met by native species in either the tree laver or the understorv laver or a combination of the two' provided a minimum twenty-five percent of the forest cover shall contain tree cover. (b~ Native forest dedication process. An owner who desires to dedicate the land for native forest preservation for a period of twenty years shall petition the director of finance and demonstrate in the petition that the land qualifies as native forest as provided herein The term "owner" includes lessees of real gropertv whose term extends at least twenty years from the effective date of the dedication. Any property three acres or larger within agricultural residential and agricultural family agricultural intensive agricultural and agricultural project districts or open zoned districts which is covered with at least 2.75 intact and contiguous acres of native forest is eligible for dedication as native forest property if it meets the classification requirements of native forest. The Detition 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. the dedication shall be effective on July 1 of the following tax year. 7 The director of finance shall determine whether or not land qualifies as native forest by using current natural resource or vegetation maps or other acceptable evidence. Other acceptable evidence includes but is not limited to: A written affidavit by a recognized professional in the field of natural resources, or ii A finding by a County State or Federal agency or department with the relevant expertise in the field of natural resources If the director's findings are favorable the petition shall be approved and the land shall be declared dedicated Approval of the petition to dedicate shall constitute a forteiture on the part of the owner of any right to change the use of the land to a use other than preservation for a minimum period of twenty years In order to place prospective buyers on notice of the rollback tax liability the owner shall. within sixty days of notice of approval record the dedication in accordance with the procedures of the bureau of conveyances jc~ Native forest dedication value. Dedicated native forest land shall be assessed at a preferential per-acre value in its restricted preservation use In determining the value of lands which are classified native forest the director shall assign the value of the lowest agricultural use category that the land could qualify for if it were to be out into agricultural use No preferential value shall be granted to native forest land unless it is dedicated. u Breach of dedication. The dedication shall be deemed breached and the tax assessment privilege cancelled retroactive to the date of the dedication or the latest renewal period and 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 payable with a ten percent penalty and the native forest classification shall be rescinded upon any of the following Failure of the owner to observe the restrictions on the use of the land or j2~ The cover of native forest species falls below sixtypercent~ or j~ The property is rezoned to a higher use at the owner's request or The propert~is subdivided into parcels of less than three acres or A condominium~roperty regime is declared for th~roperty having condominium units with an area equivalent to less than three acres Each unit shall be treated as a subdivision into lots of like size: or x The dedicated property or any portion thereof is sold by way of a convevance which is subject to convevance tax under the terms of chapter 247 Hawaii Revised Statutes unless the director of finance submits a notarized affidavit signed by the owner to the bureau of conveyances stating that the land shall continue to be subject to the full requirements of the dedication including the full penalties and rollback taxes imposed for violation or The dedicated property is not maintained according to sound land management practices such that soil erosion is minimized foreign species are controlled and the watershed is protected u Other provisions to the contrary notwithstanding a portion or portions of a parcel that is being assessed and dedicated as pasture may be taken out of production as part of an approved forest restoration plan set forth in this chapter for the duration of the approved restoration perod without breaching the terms of the agricultural use dedication j1~ Such a plan indicating the acres and area as well as the specific forest restoration work to be done. shall be filed with and approved by the director of finance If the plan is approved the land shall continue to be given the same pasture assessment. u The owner shall provide to the director of finance vearly evidence that the forest restoration plan is being implemented as well as a signed and notarized affidavit by a recognized forestry professional that the restoration plan is likely to succeed within the designated time period The owner shall continue to fulfill all other requirements of the agricultural assessment including providing vearly proof that any portion of the parcel not being restored to a native forest but still being assessed for an agricultural use continues to be used and maintained substantially and continuously in the approved agricultural use If at the end of the time period designated by the native forest restoration plan the land meets the requirements of the native forest class described in this chapter, then it shall be classified and rededicated as a native forest. If at the end of the time period designated in the plan the land does not meet the requirements of the native forest class. the owner may return the land to its designated use as pasture or it shall be assessed and taxed at market value At least one hundred eighty days prior to the cancellation the department of finance shall notify the owner by mail of such cancellation The owner may reapply for renewal of the dedication by filing an application with the director on or before September 1 of the twentieth year The renewal petition shall in all respects be processed in the same manner as an original petition Upon approval of succeeding dedications by the director of finance. the property shall continue to be assessed in accordance with the provisions of this section. 9 ~ If forest dedicated for native forest preservation is destroyed in whole or in part by fire hurricane or other disasters. the director may continue the dedication upon submittal and approval of a forest restoration plan as provided in this section The owner may appeal a petition that has been disapproved as in the case of an appeal from an assessment. SECTION 7. Material to be repealed is bracketed. New material is underscored. In printing this ordinance, the brackets, bracketed material and underscoring need not be included. SECTION 8. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, such invalidity shall 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 declared to be severable. SECTION 9. This ordinance shall take effect upon its approval. INTR04UCED~Y~~~~r~ ~ ~ 2' f i 4 ~ ~ xs,.... ~ t:, ; COUN IL EMBER, Cf~lif fiY• OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: i;r:.._~::..`: _ar, 221.& 10