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Home My WebLink AboutCOM 0979.002 2014-2016 Law Offices of Yeh & Moore THOMAS L.H.YEH tly@yehandmoore.com A Limited Liability Law Company MICHAEL W.MOORE mmoore@yehandmoore.com 85 W.Lanikaula Street,Hilo,Hawaii 96720-4199 Of Counsel: Telephone (808)961-0055 Fax (808)969-1531 JILL D.RAZNOV jdraznov@gmail.com August 16, 2016 Committee on Planning ' Hawaii County Council 25 Aupuni Street, Ste. 1402/2402 -' Hilo, Hawaii 96720 . Subject: Bill No. 227; Written Testimony • Dear Chairman Ilagan and Committee Members: Please consider these comments when deliberating on Bill No. 227. While the bill attempts to provide revised standards for regulating"agricultural tourism",the Bill's broad definition improperly includes activities expressly permitted on agricultural zoned lands which should not be subject to the regulations. Under Chapter 205, HRS, permitted uses of lands classified for agriculture within the State land use classification system include cultivation of crops, farming activities related to fish and game propagation, animal husbandry, aquaculture, roadside stands, operated by producers for the sale of agricultural products grown in Hawaii, retail activities in an enclosed structure, and accessory uses, including mills and processing facilities. Open area recreational uses are also allowed. These permitted activities are considered separate and apart from agricultural tourism, from which the counties' authority to regulate agricultural tourism is derived. See e.g., HRS Section 205-2(d), enclosed. Likewise, under Hawaii County's Zoning Code,the permitted uses described above are also permitted, along with agricultural tourism, as separate categories of permitted uses, in the RA, FA,A and IA districts. Botanical gardens are also considered a permitted use. See e.g., Code Sections 25-5-52, 25-5-62, 25-5-72 and 25-5-82. Under Bill No. 227, the proposed definition of"agricultural tourism" includes the mere act of"visiting"horticultural, aquacultural, or agricultural operation(including for the purpose of "recreation" or"education"), and"includes the sale of agricultural products and agriculturally- related products". This broad definition would improperly include a variety of uses long considered to be permissible uses on lands zoned for agricultural uses, such as plant nurseries, ranch operations,,farms, and the like,where sales of agricultural products have long been the mainstay of these types of agricultural operations. Similarly, botanical gardens by their nature, are often intended for the purpose of education. Open air recreational uses are also a permitted use. In short, the bill improperly attempts to characterize and regulate otherwise permitted uses as agricultural tourism. Comm. Ref. To: Ref. Dote • Law Offices of Yeh& Moore A Limited Liability Law Company August 16, 2016 Page 2 Additionally, while the bill would require plan approval for any new structure or improvements made to an existing structure, the Code already provides a plan approval requirement for conversion of residential structures to commercial uses, and warehouses to retail uses, agricultural processing, and agricultural tourism as currently defined. See Code Sections 25-2-71(b) and 25-2-72. Please consider these comments when reviewing Bill No. 227. Thank you for the opportunity to comment on this bill. Very truly yours, LAW OFFICES OF YEH& MOORE By THOMAS L.H. YEH Encl. TLHY\db • • http://www.capitol.hawaii.gov/hrscurrentNo104_Ch0201-0257/HRSO... §205-2 Districting and classification of lands. (a) There shall be four major land use districts in which all lands in the State shall be placed: urban, rural, agricultural, and conservation. The land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts . The commission shall set standards for determining the boundaries of each district, provided that: (1) In the establishment of boundaries of urban districts those lands that are now in urban use and a sufficient reserve area for foreseeable urban growth shall be included; (2) In the establishment of boundaries for rural districts, areas of land composed primarily of small farms mixed with very low density residential lots, which may be shown by a minimum density of not more than one house per one-half acre and a minimum lot size of not less than one-half acre shall be included, except as herein provided; (3) In the establishment of the boundaries of agricultural districts the greatest possible protection shall be given to those lands with a high capacity for intensive cultivation; and (4) In the establishment of the boundaries of conservation districts, the "forest and water reserve zones" provided in Act 234, section 2, Session Laws of Hawaii 1957, are renamed "conservation districts" and, effective as of July 11, 1961, the boundaries of the forest and water reserve zones theretofore established pursuant to Act 234, section 2, Session Laws of Hawaii 1957, shall constitute the boundaries of the conservation districts; provided that thereafter the power to determine the boundaries of the conservation districts shall be in the commission. In establishing the boundaries of the districts in each county, the commission shall give consideration to the master plan or general plan of the county. (b) Urban districts shall include activities or uses as provided by ordinances or regulations of the county within which the urban district is situated. In addition, urban districts shall include geothermal resources exploration and geothermal resources development, as defined under section 182-1, as permissible uses . (c) Rural districts shall include activities or uses as characterized by low density residential lots of not more than one dwelling house per one-half acre, except as provided by county ordinance pursuant to section 46-4 (c) , in areas where "city-like" concentration of people, structures, streets, and urban level of services are absent, and where small farms are intermixed with low density residential lots except that within a subdivision, as defined in section 484-1, the commission for good cause may allow one lot of less than one-half acre, but not less than eighteen thousand five hundred square feet, or an equivalent residential density, within a rural subdivision and permit the construction of one dwelling on such lot; provided that all other dwellings in the subdivision shall have a minimum lot size of one-half acre or 21, 780 square feet. Such petition for variance may be processed under the special permit 1 of 4 8/15/2016 8:41 AM • • http://www.capitol.hawaii.gov/hrscunentNol04_Ch0201-0257/HRSO... procedure. These districts may include contiguous areas which are not suited to low density residential lots or small farms by reason of topography, soils, and other related characteristics . Rural districts shall also include golf courses, golf driving ranges, and golf-related facilities . In addition to the uses listed in this subsection, rural districts shall include geothermal resources exploration and geothermal resources development, as defined under section 182-1, as permissible uses . (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)(16), 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, unless a special use permit is granted pursuant to section 205-6; (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, photovoltaic,biogas, and other small-scale renewable energy systems producing energy solely for use in the agricultural activities of the fee or leasehold owner of the property, agricultural-energy facilities as defined in section 205-4.5(a)(17),hydroelectric facilities in accordance with section 205-4.5(a)(23), vehicle and equipment storage areas, and plantation community subdivisions as defined in section 205-4.5(a)(12); (8) Wind machines and wind farms; 2 of 4 8/15/2016 8:41 AM • • http://www.capitol.hawaii.gov/hrscurrentNo104_Ch0201-0257/HRSO... (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; (12) Agricultural tourism activities, including overnight accommodations of twenty-one days or less, for any one stay within a county; provided that this paragraph shall apply only to a county that includes at least three islands and has adopted ordinances regulating agricultural tourism activities pursuant to section 205-5; provided further that the agricultural tourism activities coexist with a bona fide agricultural activity. For the purposes of this paragraph, "bona fide agricultural activity" means a farming operation as defined in section 165-2; (13) Open area recreational facilities; (14) Geothermal resources exploration and geothermal resources development, as defined under section 182-1; and (15) Agricultural-based commercial operations, including: (A) A roadside stand that is not an enclosed structure, owned and operated by a producer for the display and sale of agricultural products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii; (B) Retail activities in an enclosed structure owned and operated by a producer for the display and sale of agricultural products grown in Hawaii, value-added products that were produced using agricultural products grown in Hawaii, logo items related to the producer ' s agricultural operations, and other food items; and (C) A retail food establishment owned and operated by a producer and permitted under title 11, chapter 12 of the rules of the department of health that prepares and serves food at retail using products grown in Hawaii and value-added products that were produced using agricultural products grown in Hawaii . The owner of an agricultural-based commercial operation shall certify, upon request of an officer or agent charged with enforcement of this chapter under section 205-12, that the agricultural products displayed or sold by the operation meet the requirements of this paragraph. Agricultural districts shall not include golf courses and golf driving 3 of 4 8/15/2016 8:41 AM • http://www.capitol.hawaii.gov/hrscurrent/Vo104_Ch0201-0257/HRSO... 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 . (e) Conservation districts shall include areas necessary for protecting watersheds and water sources; preserving scenic and historic areas; providing park lands, wilderness, and beach reserves; conserving indigenous or endemic plants, fish, and wildlife, including those which are threatened or endangered; preventing floods and soil erosion; forestry; open space areas whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding communities, or would maintain or enhance the conservation of natural or scenic resources; areas of value for recreational purposes; other related activities; and other permitted uses not detrimental to a multiple use conservation concept . Conservation districts shall also include areas for geothermal resources exploration and geothermal resources development, as defined under section 182-1 . [L 1963 , c 205 , pt of §2 ; Supp, §98H-2 ; HRS §205-2 ; am L 1969 , c 182 , §5 ; am L 1975, c 193 , §3 ; am L 1977 , c 140, §1 and c 163 , §1 ; am L 1980, c 24, §2 ; am L 1985 , c 298 , §2 ; am L 1987 , c 82 , §3 ; am L 1989 , c 5, §2 ; am L 1991, c 191, §1 and c 281, §2 ; am L 1995 , c 69 , §8 ; am L 2005, c 205 , §2 ; am L 2006 , c 237 , §3 and c 250, §1; am L 2007 , c 159 , §2 ; am L 2008 , c 31, §2 and c 145 , §2 ; am L 2011, c 217 , §2 ; am L 2012 , c 97 , §6 , c 113 , §2 , c 167 , §1, and c 329 , §3 ; am L 2014, c 55 , §2 ; am L 2015 , c 228 , §2] Note "Title II, chapter 12 of the rules of the department of health" referred to in subsection (d) (15) (C) is repealed. For present provisions , see chapter 11-50 , Hawaii Administrative Rules . Cross References Districts, generally, see chapter 4 . Attorney General Opinions Uses within agricultural districts . Att . Gen. Op. 62-33 , 62-38 . Dwellings permissible under this section are further defined by regulations established under §205-7 . Att . Gen. Op. 75-8 . Law Journals and Reviews Avoiding the Next Hokuli 'a: The Debate over Hawai ' i ' s Agricultural Subdivisions . 27 UH L. Rev. 441 (2005) . Previous Vo104 Ch0201-0257 Next 4 of 4 8/15/2016 8:41 AM