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HomeMy WebLinkAboutCOM 0554.007 2014-2016 Margaret Willecis p•• Phone No. Hilo: (808)961-8027 Council Member cR•:�� Phone No. Waimea: (808)887-2043 District 9-North and South Kohala ���'• Fax No.: (808)887-2072 ' : E-Mail: mwille@co.hawaii.hi.us 'ATE OF.M/•i� HAWAII COUNTY COUNCIL County of Hawai`i Hawaii County Building Holomua Center West Hawaii Civic Center Bldg.A 25 Aupuni Street 64-1067 Mamalahoa Highway,Suite C-5 74-5044 Ane Keohokalole Hwy. Hilo, Hawaii 96720 Waimea, Hawaii 96743 Kailua-Kona, Hawai`i,96740 TO: Dru Mamo Kanuha, Council Chair and Members of the Hawai`i County Council FROM: ` ti Margaret Wille, Council Member DATE: January 25, 2016 a SUBJECT: Proposed Amendments to Bill No. 116, Relating to Agricultural Tourism. Please find attached proposed amendments to Bill No. 116. The proposed amendments are illustrated below in Ramseyer format with respect to the contents of Bill No. 116 (material to be deleted is bracketed and stricken, material to be added is underscored). 1. Bill No. 116 is amended by amending SECTION 2 to read as follows: "SECTION 2. Chapter 25, article 1, section 25-1-5, subsection (b) of the Hawai`i County Code 1983 (2005 Edition, as amended), is amended by adding the following definitions to be appropriately inserted and to read as follows: "Agricultural products" means the commodities resulting from income producing activities or uses such as: the cultivation of crops, including but not limited to flowers, vegetables, foliage, fruits, forage, and timber; apiary activities, including but not limited to royal jelly, bee pollen, and beeswax; farming or ranching activities or uses related to animal husbandry, aquaculture, or game and fish propagation; and production of compost or mulch." "Agricultural tourism, major" means an [agriculture] agricultural tourism operation which has between five thousand one and thirty thousand visitors annually." "Agricultural tourism, minor" means an agricultural tourism operation which has [less than] up to five thousand visitors annually." Comm. No. 5-S-4 . 1 Ref. To: Pt re...- Serving the Interests of the People of Our Island FEB 0 2 2316 Hawai`i County Is An Equal Opportunity Provider And Employer'' id�`' "Farmstand" means an unenclosed structure with space to sell produce or processed foods that are shelf stable and can be safely stored at room temperature.' 2. Bill No. 116 is amended by amending SECTION 3 to read as follows: "SECTION 3. Chapter 25, article 2, division 7, section 25-2-71 of the Hawaii County Code 1983 (2005 Edition, as amended), is amended by amending subsection (g) to read as follows: "(g) [' . • . .. . . . . .' -: • for to the construction or installation of any major agricultural tourism operation, as permitted under section 25 4 15(b)] Plan approval shall be required for major agricultural tourism operations and prior to the construction or installation of any new or expanded structure at any agricultural tourism operation. Farmstands are exempt from this requirement." 3. Bill No. 116 is amended by amending SECTION 4 to read as follows: "SECTION 4. Chapter 25, article 2, division 7, section 25-2-75 of the Hawaii County Code 1983 (2005 Edition, as amended), is amended to read as follows: "Section 25-2-75. Plan approval application requirements for agricultural tourism. (a) In addition to the application requirements for plan approval contained in section 25-2-72, an application for plan approval for agricultural tourism operations shall include sufficient information to ensure the following provisions are met: (1) The application shall also be accompanied by: (A) A statement whether the operation will allow visits by buses, and if buses are permitted, the maximum number of seats; and (B) Proof that the provisions of section 25-4-15(d)(1) have been complied with. (2) Adequate [off street] off-street parking, loading, unloading, and turn-around space to accommodate all specified tour transportation modes, including buses, if they are allowed, shall be provided and shown on the site plan[;], Adequate turn-around space shall also be provided for ambulances and fire trucks. (3) Major agricultural tourism operations[;] must have an existing physical as well as legal access to a public highway[, which]. This access may be via a private road or easement, provided the private 2 road or easement is used exclusively by the agricultural operation[:]:, (4) New driveways shall meet applicable County or State standards; and (5) New and existing facilities to be utilized principally for the agricultural tourism activity shall be clearly indicated on the plot plan[;]_ [(6) ' -- , • - • - -- - required under section 25 4 15(d)(1); and (7) Proof of liability insurance.] (b) Applicants proposing a minor agricultural tourism operation may request a waiver from the planning department from the requirement for a site drainage plan as provided in section 25-2-72, upon a showing that there would be no significant run-off resulting from the proposed development." 4. Bill No. 116, is amended by amending SECTION 5 to read as follows: "SECTION 5. Chapter 25, article 4, division 1, section 25-4-15 of the Hawai`i County Code 1983 (2005 Edition, as amended), is amended to read as follows: "Section 25-4-15. Agricultural tourism. (a) Agricultural tourism is permitted as an accessory use to agricultural processing facilities in the CG, CDH, CV, CN, ML, MG, and MCX districts. (b) Agricultural tourism is permitted as an accessory use to agricultural activities and agricultural processing facilities in the A, FA, IA, RA, and APD districts, if the activity conforms with section 25-4-15(d) [and plan approval is obtained]. (c) Agricultural tourism activities in A, FA, IA, RA, and APD districts that do not conform to section 25-4-15(d) shall obtain a special permit in the [state] State land use agricultural or rural districts, or a use permit in the [state] State land use urban district. (d) Agricultural tourism operations shall comply with the following regulations: (1) Major agricultural tourism operations [must] shall have a minimum of$10,000 in verifiable gross sales, exclusive of any income from agricultural tourism activities or any other non-agricultural activities, for the year preceding the commencement of the agricultural tourism activity or, in the case of a new agricultural activity or agricultural products processing facility, provide evidence to the director's satisfaction that sufficient investment has been made in the planting of crops, acquisition of livestock, or construction of agricultural products processing facilities, that the 3 agricultural activity or agricultural processing facility will achieve the minimum required gross sales. Minor agricultural tourism operations shall submit evidence of filing an IRS 1040 form Schedule F (Profit and Loss from Farming) or [sem] other IRS form showing profit and loss from farming; (2) A minor agricultural tourism operation shall have a maximum of five thousand visitors annually, but not to exceed one hundred visitors per week, that access the activity via passenger vehicles that carry no more than fifteen people per vehicle. Major agricultural tourism operations shall have a maximum of thirty thousand visitors annually, unless otherwise approved by the commission to ensure that the allowance for an increase in visitor count will not have an adverse environmental impact and that the proposed operation will be compatible with the use of land in the surrounding neighborhood; (3) Agricultural tourism activities shall not commence prior to 8:00 a.m. or continue past 6:00 p.m. daily, unless otherwise approved by the commission upon a finding there would be no adverse impact on the surrounding area; (4) In the case of major agricultural tourism operations, unless otherwise approved by the [Planning Commission] commission, the subject property must have an existing legal access to a public highway, which may be via a private road or easement provided the private road or easement is used exclusively by the agricultural operation, and any new driveways shall meet applicable County or State standards; (5) Agricultural tourism operations shall comply with chapter 14, article 3 of this Code and chapter 342F of the Hawai`i Revised Statutes, relating to noise; (6) All visitor and employee parking, [loading/unloading,] loading, unloading, and vehicular turn-around areas, including for ambulances and fire trucks, shall be located on-site, unless otherwise approved by the commission to ensure [there would be] no adverse impact on the surrounding neighborhood; (7) Maintain liability insurance; (8) Gross revenues from agricultural tourism shall not exceed the gross revenues of the associated agricultural activity and/or agricultural products processing facility except where due to unforeseen environmental or economic conditions, or, [for up to five years] in the case of a new agricultural activity or agricultural products processing facility for up to five years, or under exceptional cases for a longer period upon approval by the director; (9) For major agricultural tourism operations, buses transporting fifteen or more passengers shall be allowed, provided access to the major agricultural operation is available from a State or County 4 road. For minor agricultural tourism operations, buses transporting up to fifteen passengers shall be allowed; (10) Sales of agricultural products grown on the island of Hawai`i, and processed agricultural products where the main ingredient was grown on the island of Hawaii shall be allowed as part of the agricultural tourism operation. Incidental sales of non-agricultural promotional items, including but not limited to, coffee mugs, tee shirts, etc., shall be permitted provided: (A) The items [are] specifically [ ] promote the site's agricultural activities and/or product; and (B) The gross revenues from the sale of non-agricultural promotional items shall be included with the gross revenues from the agricultural tourism activities; (11) Agricultural tourism in the A, FA, IA, and RA districts shall not include weddings,parties, restaurants, schools, catered events, or overnight accommodations, unless allowed by special permit or use permit; [and] (12) Annual events that promote an agricultural industry or agricultural area, and organized on a not-for-profit basis, are permitted in the A, FA, IA, RA, and APD districts without plan approval [-]i (13) Dances, overnight accommodations, restaurant facilities, mechanical amusement rides, dirt bikes, all-terrain vehicles and other off road motorized vehicles, shall not be permitted for any agricultural tourism operation without a use permit; (14) Agricultural tourism, major or minor, shall not be permitted in Waipi`o Valley or in other locations where the property is only accessible by four-wheel drive, unless such operation has been approved by the commission following a public hearing held in the general area of the proposed agricultural tourism operation; and (15) Agricultural tourism operations shall immediately terminate upon cessation of the farming operation. (e) Any agricultural tourism [activity] operation that is not in compliance with [the regulations under] section 25-4-15(d) or appropriately permitted [as provided by] pursuant to section 25-4-15(c) shall be considered illegal under this chapter, unless otherwise noted herein. (f) Any agricultural tourism [activity] operation in the A, FA, IA, [FA,] RA, or APD districts, existing prior to the effective date of this section that has not received plan approval, may continue [such use subject to providing] to operate provided proof of compliance with this chapter is provided to the director within twelve months of the effective date of this ordinance. (g) Any agricultural tourism [activity] operation in the A, FA, IA, [FA,] RA, or APD districts, that does not conform to the standards in section 25-4- 15(d), and which has not previously received a special permit or use permit for such activity, may continue such use until May 20, [2-04-0] 2017, and[;] if an application for a special permit or a use permit has been received and accepted by May 20, [2-04-0] 2017, may continue such 5 use until final action has been taken on the application. After May 20, [2010] 2017, or denial of the application, whichever occurs later, continued use shall be considered illegal under this chapter. (h) Any agricultural tourism [activity] operation that is currently operated under a special permit may continue to operate under the terms and conditions of the special permit, or apply to void the special permit and, if the permit is voided, operate under the standards of section 25-4- 15(d). (i) An agricultural tourism [activity] operation that becomes non-compliant with the standards of section 25-4-15(d) because of an increase in the number of visitors, shall apply for plan approval or a special permit, but may continue to operate until a final decision is made on the plan approval or special permit application. (j) An agricultural tourism [activity] operation shall register with the planning department annually on forms provided by the department and submit financial records and a daily visitor count record to the director on an annual basis to verify compliance with this section, in such format as the director may require. The daily visitor count record shall also be furnished to the director upon request. (k) The director may use observations of visitor arrivals, including bus traffic, in estimating whether an agricultural tourism [activity] operation complies with section 25-4-15(d)(2), and may require that an [may] operation be required to obtain plan approval or apply for a special permit based on such observations. In that case, the [activity] operation may continue until a final decision is made on the plan approval or special permit. (1) The planning department may conduct a site visit of any proposed agricultural tourism operation and may make periodic visits of an agricultural tourism operation without prior notification. (m) In the event of any violation, the operator may be fined up to $1,000, however unless provided otherwise in County or State law, the operator shall be given ninety days to make the correction or to submit an application for a variance or to file an application for a major agricultural operation. If the violation continues past ninety days the operator may be fined up to $1,000 per day for each additional day that the violation continues." A draft copy of Bill No. 116, proposed Draft 2, is attached with the amendments incorporated therein. Thank you. MW/dh Att. 6 AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 1, ARTICLE 2, AND ARTICLE 4 OF THE HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO AGRICULTURAL TOURISM. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Chapter 25, article 1, section 25-1-5, subsection (b) of the Hawai`i County Code 1983 (2005 Edition, as amended), is amended by amending the definition of"Agricultural tourism"to read as follows: 'Agricultural tourism" means [visitor related commercial activities or periodic special events designed to promote agricultural activities conducted on a working farm, ranch, or agricultural products processing facility.] the activity of visiting an agribusiness, horticultural, aquacultural or agricultural operation that is managed by the owner or by an operator residing at the subject property, for the purpose of recreation, education, or active involvement in the operation, other than as a contractor or employee of the operation." SECTION 2. Chapter 25, article 1, section 25-1-5, subsection (b) of the Hawai`i County Code 1983 (2005 Edition, as amended), is amended by adding the following definitions to be appropriately inserted and to read as follows: "Agricultural products" means the commodities resulting from income producing activities or uses such as: the cultivation of crops, including but not limited to flowers, vegetables, foliage, fruits, forage, and timber; apiary activities, including but not limited to royal jelly, bee pollen, and beeswax; farming or ranching activities or uses related to animal husbandry, aquaculture, or game and fish propagation; and production of compost or mulch." "Agricultural tourism, major" means an agricultural tourism operation which has between five thousand one and thirty thousand visitors annually." "Agricultural tourism, minor" means an agricultural tourism operation which has up to five thousand visitors annually." "Farmstand" means an unenclosed structure with space to sell produce or processed foods that are shelf stable and can be safely stored at room temperature." 7 SECTION 3. Chapter 25, article 2, division 7, section 25-2-71 of the Hawaii County Code 1983 (2005 Edition, as amended), is amended by amending subsection (g) to read as follows: "(g) Plan approval shall be required[for the establishment of any agricultural tourism activity,] for major agricultural tourism operations and prior to the construction or installation of any new or expanded structure at any agricultural tourism operation. Farmstands are exempt from this requirement." SECTION 4. Chapter 25, article 2, division 7, section 25-2-75 of the Hawai`i County Code 1983 (2005 Edition, as amended), is amended to read as follows: "Section 25-2-75. Plan approval application requirements for agricultural tourism. (a) In addition to the application requirements for plan approval contained in section 25-2-72, an application for plan approval for agricultural tourism operations shall include sufficient information to ensure the following provisions are met: (1) The application shall also be accompanied by: (A) A statement whether the operation will allow visits by buses[;], and if buses are permitted, the maximum number of seats; and (B) Proof that the provisions of section 25-4-15(d)(1)have been complied with. (2) Adequate [off street] off-street parking, [loading/unloading,] loading, unloading, and turn-around space to accommodate all specified tour transportation modes, including buses, if they are allowed, shall be provided and shown on the site plan[;]. Adequate turn-around space shall also be provided for ambulances and fire trucks. (3) [The subject property] Major agricultural tourism operations must have an existing physical as well as legal access to a public highway[, which]. This access may be via a private road or easement, provided the private road or easement is used exclusively by the agricultural operation[.-]; (4) [and new] New driveways shall meet applicable [county] County or [state] State standards; and 8 R-4)11,5_,) New and existing facilities to be utilized principally for the agricultural tourism activity shall be clearly indicated on the plot plan[; and shall not vehicular accesses; and]. [(5) - • - . . - . . agricultural products processing, or investment, as required under section 25 �1 15(d)(1).] (b) Applicants proposing a minor agricultural tourism operation may request a waiver from the planning department from the requirement for a site drainage plan as provided in section 25-2-72, upon a showing that there would be no significant run- off resulting from the proposed development." SECTION 5. Chapter 25, article 4, division 1, section 25-4-15 of the Hawai`i County Code 1983 (2005 Edition, as amended), is amended to read as follows: "Section 25-4-15. Agricultural tourism. (a) Agricultural tourism is permitted as an accessory use to agricultural processing facilities in the CG, CDH, CV, CN, ML, MG, and MCX districts. (b) Agricultural tourism is permitted as an accessory use to agricultural activities and agricultural processing facilities in the A, FA, IA, RA, and APD districts, [subject to] if the activity conforms with section 25-4-15(d) [plan approval and in conformance with section 25 4 15(d)]. (c) Agricultural tourism activities in A, FA, IA, RA, and APD districts that do not conform to section 25-4-15(d) shall obtain a special permit in the [Mato] State land use agricultural or rural districts, or a use permit in the [state] State land use urban district. (d) Agricultural tourism operations shall comply with the following regulations: (1) [The agricultural activity or agricultural products processing facility] Major agricultural tourism operations [must] shall have a minimum of$10,000 in verifiable gross sales, exclusive of any income from agricultural tourism activities or any other non-agricultural activities, for the year preceding the commencement of the agricultural tourism activity or, in the case of a new 9 agricultural activity or agricultural products processing facility, provide evidence to the director's satisfaction that sufficient investment has been made in the planting of crops, acquisition of livestock, or construction of agricultural products processing facilities, that the agricultural activity or agricultural processing facility will achieve the minimum required gross sales[;]. Minor agricultural tourism operations shall submit evidence of filing an IRS 1040 form Schedule F (Profit and Loss from Farming) or other IRS form showing profit and loss from farming; [(2) Agricultural tourism activities shall not commence prior to 8:00 a.m. or continue past 6:00 p.m. daily; (3)](2) [The] A minor agricultural tourism operation shall have a maximum of[thifty thousand visitors annually] five thousand visitors annually, but not to exceed one hundred visitors per week, that access the activity via passenger vehicles that carry no more than fifteen people per vehicle. Major agricultural tourism operations shall have a maximum of thirty thousand visitors annually, unless otherwise approved by the commission to ensure that the allowance for an increase in visitor count will not have an adverse environmental impact and that the proposed operation will be compatible with the use of land in the surrounding neighborhood; (3) Agricultural tourism activities shall not commence prior to 8:00 a.m. or continue past 6:00 p.m. daily[;], unless otherwise approved by the commission upon a finding there would be no adverse impact on the surrounding area; (4) In the case of major agricultural tourism operations, unless otherwise approved by the commission, the subject property must have an existing legal access to a public highway, which may be via a private road or easement provided the private road or easement is used exclusively by the agricultural operation, and any new driveways shall meet applicable County or State standards; (5) Agricultural tourism operations shall comply with chapter 14, article 3 of this Code and chapter 342F of the Hawai`i Revised Statutes, relating to noise; [(1)] (6) All visitor and employee parking, [loading/unloading,] loading, unloading, and vehicular turn-around areas, including for ambulances and fire trucks, shall 10 be located [off street;] on-site, unless otherwise approved by the commission to ensure no adverse impact on the surrounding neighborhood; (7) Maintain liability insurance; [(5) The total area of spaces, including covered decks, lanais, tents or canopies, and principally for the agricultural tourism activity, but not including parking and vehicular access areas, shall not exceed one thousand square feet;] [(6)] (8) Gross revenues from agricultural tourism shall not exceed the gross revenues of the associated agricultural activity and/or agricultural products processing facility[, including revenues from adjacent parcels under the same ownership,] except where [it can be demonstrated to the director's satisfaction that the gross agricultural products/processing income is less than fifty percent of the total income] due to unforeseen environmental or economic conditions [for not more than two consecutive years], or, in the case of a new agricultural activity or agricultural products processing facility [, that sufficient investment has been agricultural tourism will not exceed fifty percent of gross revenues, and provided further, that the sale of all items which include agricultural products grown or processed by the associated agricultural activity or agricultural processing facility shall be included in the gross revenues of the associated agricultural activity or agricultural processing facility] for up to five years, or under exceptional cases for a longer period upon approval by the director; (9) For major agricultural tourism operations, buses transporting fifteen or more passengers shall be allowed, provided access to the major agricultural operation is available from a State or County road. For minor agricultural tourism operations, buses transporting up to fifteen passengers shall be allow [(7)] (10) Sales of agricultural products grown on the island of Hawai`i, and processed agricultural products where the main ingredient was grown on the island of Hawai`i shall be allowed as part of the agricultural tourism operation. Incidental sales of non-agricultural promotional items, including but not limited to, coffee mugs, tee shirts, etc., shall be permitted provided: 11 (A) The items [are] specifically [ ] promote the site's agricultural activities and/or product; and (B) The gross revenues from the sale of non-agricultural promotional items shall be included with the gross revenues from the agricultural tourism activities; [ 8)](11) Agricultural tourism in the A, FA, IA, and RA districts shall not include weddings, parties, restaurants, schools, catered events, or overnight accommodations, unless allowed by special permit or use permit; [and] [(9)](12) Annual events that promote an agricultural industry or agricultural area, and organized on a not-for-profit basis, are permitted in the A, FA, IA, RA, and APD districts without plan approval; (13) Dances, overnight accommodations, restaurant facilities, mechanical amusement rides, dirt bikes, all-terrain vehicles and other off road motorized vehicles, shall not be permitted for any agricultural tourism operation without a use permit; (14) Agricultural tourism, major or minor, shall not be permitted in Waipi`o Valley or in other locations where the property is only accessible by four-wheel drive, unless such operation has been approved by the commission following a public hearing held in the general area of the proposed agricultural tourism operation; and (15) Agricultural tourism operations shall immediately terminate upon cessation of the farming operation. (e) Any agricultural tourism [activity] operation that is not in compliance with [the regulations under] section 25-4-15(d) or appropriately permitted [as provided by] pursuant to section 25-4-15(c) shall be considered illegal under this chapter, unless otherwise noted herein. (I) Any agricultural tourism [activity] operation in the A, FA,IA, [FA,] RA, or APD districts, existing prior to the effective date of this section [and conforming to the standards contained in section 25 1 15(d) and] that has not received plan approval, may continue [such use until May 20, 2010. After this date-, continued use without having received plan approval shall be considered-illegal under this chapter.] to 12 operate provided proof of compliance with this chapter is provided to the director within twelve months of the effective date of this ordinance. (g) Any agricultural tourism [activity] operation in the A, FA IA, [FA,] RA, or APD districts, that does not conform to the standards in section 25-4-15(d), and which has not previously received a special permit or use permit for such activity, may continue such use until May 20, [2-04-0] 2017, and, if an application for a special permit or a use permit has been received and accepted by May 20, [204-0] 2017, may continue such use until final action has been taken on the application. After May 20, [2010] 2017, or denial of the application, whichever occurs later, continued use shall be considered illegal under this chapter. (h) Any agricultural tourism [activity] operation that is currently operated under a special permit may continue to operate under the terms and conditions of the special permit, or apply to void the special permit and, if the permit is voided, operate under the standards of section 25-4-15(d). (i) An agricultural tourism [activity] operation that [obtains plan approval, but] becomes non-compliant with the standards of section 25-4-15(d)because of an increase in the number of visitors, shall apply for plan approval or a special permit, but may continue to operate until a final decision is made on the plan approval or special permit application. (j) An agricultural tourism [activity which has received plan approval] operation shall register with the planning department annually on forms provided by the department and submit financial records and a daily visitor count record to the director [en request] on an annual basis to verify compliance with this section, [and shall maintain a count of visitors which shall be furnished to the director on request.] in such format as the director may require. The daily visitor count record shall also be furnished to the director upon request. (k) The director may use observations of visitor arrivals, including bus traffic, in estimating whether an agricultural tourism [activity] operation complies with section 25-4-15(d)[(3)] (2), and may require that an [activity allowed with] operation be required to obtain plan approval or apply for a special permit based on such 13 observations. In that case, the [activity] operation may continue until a final decision is made on the plan approval or special permit. (1) The planning department may conduct a site visit of any proposed agricultural tourism operation and may make periodic visits of an agricultural tourism operation without prior notification. (m) In the event of any violation the operator may be fined up to $1,000, however unless provided otherwise in County or State law, the operator shall be given ninety days to make the correction or to submit an application for a variance or to file an application for a major agricultural operation. If the violation continues past ninety days the operator may be fined up to $1,000 per day for each additional day that the violation continues." SECTION 6. Material to be repealed is bracketed and stricken. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 7. 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 8. This ordinance shall take effect ninety days after its approval. 14