HomeMy WebLinkAboutCOM 0979.005 2014-2016 Margaret Wille -;ti1,gF M;.
Phone No. Hilo: (808)961-8027
- w,'• Phone No.Waimea: (808)887-2043
Council Member -.0?-'_. - V,b7e
���� Fax No.: (808)887-2072
District 9-North and South Kohala �
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•c . E-Mail: mwille@co.hawaii.hi.us
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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, Hawai`i 96720 Waimea, Hawaii 96743 Kailua-Kona,Hawaii,96740
ill 31
TO: Dru Mamo Kanuha, Council Chair C Q"<
And Members of the Hawai`i County Council & 17--
rw
FROM: Margaret Wille, Council Member I v >=
DATE: September 20, 2016
SUBJECT: Bill No. 227 —Ag Tourism
Please find attached additional information for use during the Bill 227 discussion on September
20, 2016.
Thank you.
MW/dh
att
Comm. No. q-7 q . r
Ref. To:
Ref. Date SEP 2 0 201
Serving the Interests of the People of Our Island
Hawai`i County Is An Equal Opportunity Provider And Employer
4
;
cfs
205-4.5 PLANNING AND ECONOMIC DEVELOPMENT
I
as violations of the"equal terms"and"nondiscrimination"provisions of the RLUIPA.229 F.Supp. (5) Automatic t
2d 1056(2002). farming ope
Under subsection(a)(4)and(10), a chimney and garage are permitted as accessories to a arm
dwelling;however,utilizing the chimney to conceal an antenna and the garage tohouse
co m nica-P3d
a Each ch county
to any agity may req
tion equipment were not permitted uses under either subsection(a)( ) U
( ) lowed by special perm
930(2005).
Under the circumstances of the case,the residence and the chimney with the concealedantenna
constituted a"communications equipment building"and,thus,were permitted uses under subsec- in agricultural
u ordinance
tion(a)(7);also,as the garage was not abnormally large and was designed specifically to store the ivagriculturaldince
communications equipment for the concealed antenna,utilizing the permitted garage structure to
house the communications equipment tier the antenna was a permitted use under subsection(a)(7). for dff tan cafinds t s
106 H.343,104 p ad 930(2005). of land cannot othery
§205-4.6 Private restrictions on agricultural uses and activities; not al-
i county may allow lot
lowed. (a) Agricultural uses and activities as defined in sections 205-2(d) and i for lots created by a c
205-4.5(a)on lands classified as agricultural shall not be restricted by any private and the resubdivision
agreement contained in any:
do not result in an int
(I) Deed, agreement of sale, or other conveyance of land recorded in the to consolidation;and
bureau of conveyances after July 8, 2003, that subject such agricul- to or exceeds the min
tural lands to any servitude, including but not limited to covenants,
the consolidation ane
easements,or equitable and reciprocal negative servitudes;and of less than the min.
(2) Condominium declaration, map, bylaws, and other documents ex- for plantation comm
ecuted and submitted in accordance with chapter 514A or 514B. public,private, and q
Any such private restriction limiting or prohibiting agricultural use or activity subdivision of aband
shall be voidable, subject to special restrictions enacted by the county ordinance (c) followingUnlessl
pursuant to section 46-4;except that restrictions taken to protect environmental only
the us
or cultural resources,agricultural leases,utility easements,and access easements (1)2) Agri densiow
shall not be subject to this section.
tui
(b) For purposes of this section,"agricultural leases"means leases where (3) Golf cour
qu
Public,
the leased land is primarily utilized for purposes set forth in section 205-4.5(a). (4) Geotcqu
[L Sp 2003,c 5,§2;am L 2004,c 170,§1; am L 2014,c 49,§21 (5)
ment,aser r
Note In addition, th
be one-half acre an
Applicability of 2014 amendment.L 2014,c 49.§10. except as provided f
Law Journals and Reviews §5 and c 250,§3;am
"Urban Type Residential Comrnunities in the Guise of Agricultural Subdivisions:"Addressing an
Impermissible Use of Hawai'i's Agricultural District.25 UH L.Rev. 199(2002). I
Only the subsections s
1
§205-5 Zoning. ***
(b) Within agricultural districts, uses compatible to the activities de- I
scribed in section 205-2 as determined by the commission shall be permitted; "Urban Type Residen
provided that accessory agricultural uses and services described in sections 205-2 Impermissible use of H
, and 205-4.5 may be further defined by each county by zoning ordinance. Each
county shall adopt ordinances setting forth procedures and requirements, in-
, §§205-5.1 to 2
eluding provisions for enforcement, penalties, and administrative oversight, for
the review and permitting of agricultural tourism uses and activities as an acces-
sory use on a working farm, or farming operation as defined in section 165-2. The repeal of§§205
Ordinances shall include but not be limited to: ares in the area of the sromance with the lease
(1) Requirements for access to a farm, including road width, road sur-
face,and parking; 205-b Spec
(2) Requirements and restrictions for accessory facilities connected with ay p
m
commission 1 the farming operation, including gift shops and restaurants; and n icts
(3) Activities that may be offered by the farming operation for visitors; who ruralBerds tr use
(4) Days and hours of operation;and
122
VIENT LAND USE COMMISSION 205-6
N)
.LUIPA.229 F.Supp, (5) Automatic termination of the accessory use upon the cessation of the
accessoto eies ton a farm
farming operation.
to house cotnmunica- Each county may require an environmental assessment under chapter 343 as ,
106 H.343, 104 P.3d a condition to any agricultural tourism use and activity. Other uses may be al- ;i'
IC concealed antenna lowed by special permits issued pursuant to this chapter.The minimum lot size i` :
;d uses under subsec- in agricultural districts shall be determined by each county by zoning ordinance,
lecifically to store the
d garage structure to subdivision ordinance,or other lawful means;provided that the minimum lot size
der subsection(a)(7). for any agricultural use shall not be less than one acre,except as provided herein.
If the county finds that unreasonable economic hardship to the owner or lessee ,
of land cannot otherwise be prevented or where land utilization is improved,the 1
activities; not al- county may allow lot sizes of less than the minimum lot size as specified by law
ons 205-2(d) and for lots created by a consolidation of existing lots within an agricultural district
ed by any private and the resubdivision thereof;provided that the consolidation and resubdivision
do not result in an increase in the number of lots over the number existing prior
d recorded in the
to consolidation;and provided further that in no event shall a lot which is equal
iect such agricul- to or exceeds the minimum lot size of one acre be less than that minimum after
ted to covenants, the consolidation and resubdivision action.The county may also allow lot sizes
tudes;and of less than the minimum lot size as specified by law for lots created or used i,,, ii
<;:';:
r documents ex- for plantation community subdivisions as defined in section 205-4.5(a)(12), for
4A or 51413. lie rivate and quasi-public utility purposes,and for lots resulting from the
pub 'p �: ')
al use or activity subdivision of abandoned roadways and railroad easements.
:ounty ordinance (c) Unless authorized by special permit issued pursuant to this chapter, 1 1
ct environmental only the following uses shall be permitted within rural districts: `, 1
access easements (1) Low density residential uses; l' t,
(2) Agricultural uses; i
pans leases where (3) Golf courses,golf driving ranges,and golf-related facilities;
it action 205-4.5(a). (4) Public,quasi-public,and public utility facilities;and is
(5) Geothermal resources exploration and geothermal resources develop- t
ment,as defined under section 182-1. �`
In addition, the minimum lot size for any low density residential use shall
be one-half acre and there shall be but one dwelling house per one-half acre,
except as provided for in section 205-2. [am L 2005,c 205,§4; am L 2006,c 237,
§5 and c 250,§3;am L 2012,c 97,§8 and c 329,§51
;ions:"Addressing anRevision Note
Only the subsections amended are compiled in this Supplement.
he activities de- Law Journals and Reviews
all be permitted;
in sections 205-2 "Urban Type Residential Communities in the Guise of Agricultural Subdivisions:"Addressing an q,
1 Impermissible Use of Hawaii's Agricultural District.25 UH L.Rev. 199(2002).
ordinance. Each
•equirements, in- §§205-S.1 to 205-5.3 REPEALED. L 2012,c 97,§§9 to !1.
ive oversight, for
cities as an acres- Note
in section 165-2. The repeal of§§205-5.1 to 205-5.3 shall not affect any geothermal resources producer who oper-
ates in the area of the subzone on April 30,2012.and the producer shall continue to operate in ac-
41
width, road stir- cordance with the lease with the board of land and natural resources. L 2012,c 97,§12.
s connected with §205-6P permit.Special (a) Subject to this section, the county planning
•
locants;
commission may permit certain unusual and reasonable uses within agricultural °'
on for visitors; and rural districts other than those for which the district is classified.Any person i
who desires to use the person's land within an agricultural or rural district other
123
., � ;
1
205-1 PLANNING AND ECONOMIC DEVELOPMENT
§9 of the Hawaii constitution created a private of the Hawaii constitution. 123 H.391,235 P.3d commission
right of action to enforce this chapter, and the 1103(2010). less than eig
legislature confirmed the existence or that right. As no private cause of action exists to en- density, witl
of action by enacting§607-25,which allows for force this chapter,appellants lacked standing to
the recovery of attorneys' fees in such actions. prosecute their claim under this chapter against on such lot
123 H.391,235 P.3d 1103(2010). landowner and circuit court lacked subject mat- minimum IC
This chapter is a law relating to environmen- ter jurisdiction to consider this claim. 119 H. mice may b
tal quality within the meaning of article Xl,§9 164(App.), 194 P.3d 1126(2008). include con
small farms
(PART 1. GENERALLY] ral districts
facilities.
Law Journals and Reviews
In adc
Avoiding the Next Hokuli'a:The Debate over Hawaii's Agricultural Subdivisions.27 UH L.Rev. gepthermal
441(2005). "Tw V aNI)A151Z)7.- fined under
(d) f
§205-1 Establishm nt of the commission. There shall be a state land use (I) t
commission,hereinafter called the commission.The commission shall consist off
nine members who shall hold no other public office and shall be appointed in
the manner and serve for the term set forth in section 26-34. One member shall (2) 1
be appointed from each of the counties and the remainder shall be appointed at
large;provided that one member shall have substantial experience or expertise in (3) t
traditional Hawaiian land usage and knowledge of cultural land practices. The (4)
commission shall elect its chairperson from one of its members. The members t
shall receive no compensation for their services on the commission, but shall be (5)
reimbursed for actual expenses incurred in the performance of their duties. Six
affirmative votes shall be necessary for any boundary amendment. (6)
The commission shall be a part of the department of business, economic
development, and tourism for administration purposes, as provided for in sec-
tion 26-35.
The commission may engage employees necessary to perform its duties,
including administrative personnel and an executive officer,The executive officer
shall be appointed by the commission and the executive officer's position shall
be exempt from civil service. Departments of the state government shall make
available to the commission such data, facilities, and personnel as are necessary
for it to perform its duties. The commission may receive and utilize gifts and (7)
any funds from the federal or other governmental agencies. It shall adopt rules
guiding its conduct, maintain a record of its activities and accomplishments,
and make recommendations to the governor and to the legislature through the
governor. [L 1963,c 205, pt of§2;Supp,§981-1-i; HRS§205-1;am L 1975,c 193,
§2; am L 1976,c 43,§1; gen ch 1985;am L 1987, c 336,§7;am L 1990,c 293,§8;
gen ch 1993;am L 2006,c 296,§1]
§205-2 Districting and classification of lands. ***
(b) Urban districts shall include activities or uses as provided by ordi-
nances 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 per-
missible uses. (8}
(c) Rural districts shall include activities or uses as characterized by low (9))
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 (10)
residential lots except that within a subdivision, as defined in section 484-1, the
, 112J./ s „ 9057_
LAND USE COMMISSION 205-2
I
'.3d commission for good cause may allow one lot of less than one-half acre,but not IP 1:
less than eighteen thousand five hundred square feet,or an equivalent residential 1
en-
;
density, within a rural subdivision and permit the construction of one dwelling
Inst on such lot; provided that all other dwellings in the subdivision shall have a
'at- minimum lot size of one-half acre or 21,780 square feet. Suchpetition for vari-
H. q `
ance may be processed under the special permit 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.Ru-
ral 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
tev. geothermal resources exploration and geothermal resources development,as de-
fined under section 182-1,as permissible uses.
use (d) Agricultural districts shall include:
of (1) Activities or uses as characterized by the cultivation of crops, crops
in for bioenergy,orchards, forage, and forestry;
tall (2) Farming activities or uses related to animal husbandry and game and
1 at fish propagation;
in (3) Aquaculture, which means the production of aquatic plant and ani- i
le mal life within ponds and other bodies of water;
,ers (4) Wind generated energy production for public, private, and commer-
be cial use;
Six (5) Biofuel production, as described in section 205-4.5(a)(16), for public,
private, and commercial use;
nic (6) Solar energy facilities; provided that:
;ec- (A) This paragraph shall apply only to land with soil classified by the ,i
land study bureau's detailed land classification as overall (mas-
ies, ter)productivity rating class B, C, D, or E; and 4
ii
cer (B) Solar energy facilities placed within land with soil classified as
tall overall productivity rating class B or C shall not occupy more
ake than ten per cent of the acreage of the parcel, or twenty acres of
ary land, whichever is lesser, unless a special use permit is granted z
Ind pursuant to section 205-6; ': ;
Iles (7) Bona fide agricultural services and uses that support the agricultural
nts, activities of the fee or leasehold owner of the property and acces-
the sory to any of the above activities, regardless of whether conducted
93, on the same premises as the agricultural activities to which they are
§8; 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
rdi- the fee or leasehold owner of the property, agricultural-energy facili-
;d. ties as defined in section 205-4.5(a)(l7), hydroelectric facilities in ac- '
:ion cordance with section 205-4.5(a)(23), vehicle and equipment storage
per- areas, and plantation community subdivisions as defined in section
205-4.5(a)(12);
low (8) Wind machines and wind farms;
cre, (9) Small-scale meteorological,air quality, noise, and other scientific and r'
reas environmental datacollection and monitoring facilities occupying less
evel than one-half acre of land; provided that these facilities shall not be
;city used as or equipped for use as living quarters or dwellings;
the (10) Agricultural parks;
113
wt -10PLANNING AND ECONOMIC DEVELOPMENT
Agricultural tourism conducted on a working farm, or a farming op- . include areas fol
oration as defined in section 165-2, for the enjoyment, education, or
involvement of visitors;provided that the agricultural tourism activitydevelopment, as
c237,§3and c2'
is accessory and secondary to the principal agricultural use and does
not interfere with surrounding farm operations;and provided further am L 2011, c 217
that this paragraph shall apply only to a county that has adopted or-
dinances L 2014,c 55,§2;t
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; provid- `etitle II,chapter 12
i
ed that this paragraph shall apply only to a county that includes at s repealed.For preset
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 Only the subsection:
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; Avoiding the Next H
lb(14) Geothermal resources exploration and geothermal resources develop- 441(2005).
ment, as defined under section 182-1;and
gricultural-based commercial operations, including: §205-3.1entsAr
(A) A roadside stand that is not an enclosed structure, owned and amendments or la
operated by a producer for the display and sale of agricultural fifteen acres, or lay
products grown in Hawaii and value-added products that were tossed by the land
produced using agricultural products grown in Hawaii; (b) Any dep
Hawaii;
(B) Retail activities in an enclosed structure owned andoperated the county in whic;
by a producer for the display and sale of agricultural products in the land sought
grown in Hawaii, value-added products that were produced us- use decision-the be
ing agricultural products grown in Hawaii, logo items related to a change in the be
the producer's agricultural operations,and other food items;and presently in the rur;
(C) A retail food establishment owned and operated by a producer agricultural district
and permitted under title 1 I, chapter 12 of the rules of the de- (c) District I
partment of health that prepares and serves food at retail using or less,except as pre
products grown in Hawaii and value-added products that were ate county land use
produced using agricultural products grown in Hawaii. quire consideration
The owner of an agricultural-based commercial operation shall cer- vided that such bot
tify, upon request of an officer or agent charged with enforcement this chapter. The aF
of this chapter under section 205-12, that the agricultural products consolidate proceed
displayed or sold by the operation meet the requirements of this to this subsection, w
paragraph. ment plan, zoning o
Agricultural districts shall not include golf courses and golf driving ranges, ex- ordinances and rules
cept as provided in section 205-4.5(d). Agricultural districts include areas that oped by the county 1
are not used for, or that are not suited to, agricultural and ancillary activities by ***
reason of topography, soils, and other related characteristics. [am L 2005,c I
(e) Conservation districts shall include areas necessary for protecting wa-
tersheds 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; prevent- On►y the subsections urr
ing floods and soil erosion; forestry; open space areas whose existing openness,
natural condition,or present state of use,if retained, would enhance the present
"Urban Teor potential value of abutting or surrounding communities, or would maintain Impermiss Ile Use of Haw
or enhance the conservation of natural or scenic resources; areas of value for
recreational purposes;other related activities;and other permitted uses not det-
rimental to a multiple use conservation concept.Conservation districts shall also 1§205-3.5IRed
approval coondnditions.
114