HomeMy WebLinkAboutCOM 0124.000 2016-2018 OJ�tY^oc M,, Wit Okabe
,�, Managing Director
Harry Kim
Mayor '�'�
__• ................. .. Barbara J.Kossow
a MY:�'p..= Deputy Managing Director
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County of q. .n ni`i
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25 Aupuni Street,Suite 2603 • Hilo,Hawai`i 96720 • (808)961-821 I • Fax(808)961-6553
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg.C • Kailua-Kona,Hawai'i 96740
(808)323-4444 • Fax(808)323-4440 COUNTY CLERK
COUNTY OF HAWAIII
RECEIVED
Time c •Sci 4-w' By
Date FEB 1 6 ZOl!
February 14, 2017
Valerie T. Poindexter, Council Chair
and Members of the County Council
County of Hawai`i
25 Aupuni Street
Hilo, HI 96720
Dear Chair Poindexter and Council Members:
SUBJECT: County Council Initiated (Bill No. 227, Draft 2)
Amendment to Chapter 25, Article 1, Article 2, and Article 4 of the Hawaii
County Code 1983 (2005 Edition, as Amended)
Relating to Agricultural Tourism
As required by Chapter 7, Sec. 6-7.5 (a), Hawaii County Charter, transmitted herewith for
the County Council's consideration and action are the Windward and Leeward Planning
Commissions' letters and enclosures regarding the above-referenced request.
Sincer 1 ,
17 H RRY KIM
Mayor
Enclosures
cc: Planning Department
`r3► 11 aa1 O�. (9.o.14-ao\tS)
(eim . g1ti . 1 (Zeti 1U�t,) / `f
Comm.No. 'Z
Ref.To: P G
Ref.Date F.c-b. I fo n t 1
County of Hawai`i is an Equal Opportunity Provider and Employer.
'-Vl17.,OF M1y'.
Harry Kim `•p•` Vel Gregory Henkel,Chair
Mayor :I. �_••-,ft• Myles Miyasato,Vice Chair
__ Joseph Clarkson
= Donn Dela Cruz
+i•.: az'M.:: '
• 'TF•o• s•M�'' Donald Ikeda
Raylene Moses
County of Hawaii
WINDWARD PLANNING COMMISSION
Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai'i 96720
Phone(808)961-8288 • Fax(808)961-8742
FEB 14 21317
Valerie T. Poindexter, Council Chair
and Members of the County Council
County of Hawai`i
25 Aupuni Street
Hilo, HI 96720
Dear Chair Poindexter and Council Members:
SUBJECT: County Council Initiated (Bill No 227, Draft 2)
Amendment to Chapter 25, Article 1, Article 2, and Article 4 of the Hawaii
County Code 1983 (2005 Edition, as Amended)
Relating to Agricultural Tourism
The Windward Planning Commission, at its duly held public hearing on January 5, 2017,
considered County Council Initiated Bill No. 227, Draft 2 amending Chapter 25, Article 1,
Article 2, and Article 4 of the Hawai`i County Code 1983 (2005 Edition, as Amended) relating to
agricultural tourism.
The Commission voted to forward an unfavorable recommendation of Bill No. 227, Draft 2 to
the County Council based on the Planning Director's recommendation that Bill No. 227, Draft 2
needs further clarification and changes and proposed alternative language.
We are enclosing copies of the Planning Director's Background and Recommendation and the
draft transcript of the hearing for your information.
Sincerely,
ie
Greg y enkel, Chairman
Windward Planning Commission
LCounci linititedbi llno227wpc
Enclosures
cc: Planning Department - Kona
Hawai`i County is an Equal Opportunity Provider and Employer
Harry Kim • (.° �. Keith F. Unger,er,Chair
Mayor • •°.' Collin Kaholo,Vice Chair hair
Nancy Can Smith
Scott Church
•)•. r . ..-.
E osM•. Barbara Nobriga
Oliver"Sonny"Shimaoka
County of Hawaii
LEEWARD PLANNING COMMISSION
Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720
Phone(808)961-8288 • Fax(808)961-8742
FEB 141Q11
Valerie T. Poindexter, Council Chair
and Members of the County Council
County of Hawai`i
25 Aupuni Street
Hilo, HI 96720
Dear Chair Poindexter and Council Members:
SUBJECT: County Council Initiated (Bill No 227, Draft 2)
Amendment to Chapter 25, Article 1, Article 2, and Article 4 of the Hawaii
County Code 1983 (2005 Edition, as Amended)
Relating to Agricultural Tourism
The Leeward Planning Commission, at its duly held public hearing on January 19, 2017,
considered County Council Initiated Bill No. 227, Draft 2 amending Chapter 25, Article 1,
Article 2, and Article 4 of the Hawai`i County Code 1983 (2005 Edition, as Amended) relating to
agricultural tourism.
The Commission voted to forward an unfavorable recommendation of Bill No. 227, Draft 2 to
the County Council based on the Planning Director's recommendation that Bill No. 227, Draft 2
needs further clarification and changes and proposed alternative language.
We are enclosing copies of the Planning Director's Background and Recommendation and the
draft transcript of the hearing for your information.
Sincerely,
Keith F. Utter, Chairman
Leeward Planning Commission
LCouncilinititedbillno2271pc
Enclosures
cc: Planning Department - Kona
Hawai`i County is an Equal Opportunity Provider and Employer
BRCCInitiatedBill227-Draft2 jwd-12/29/16
COUNTY OF HAWAII PLANNING DEPARTMENT
BACKGROUND AND RECOMMENDATION
INITIATOR: COUNTY COUNCIL
AMENDMENT TO CHAPTER 25 RELATING TO AGRICULTURAL TOURISM
The County Council, through Bill 227 Draft 2, has initiated amendments to Chapter 25,
Article 1,Article 2 and Article 4 of the Hawai`i County Code 1983 (2016 Edition), as amended,
relating to agricultural tourism. The purpose of this bill is to amend the definition of
"agricultural tourism" and include new definitions for"agricultural products" and
"agriculturally-related products"; and defining requirements for plan approval review of and use
regulations for agricultural tourism operations.
PROPOSED AMENDMENTS
The County Council, through Bill 227 Draft 2,has initiated amendments to the Zoning
Code relating Agricultural Tourism, a copy of which is attached to this report as Planning
Department Exhibit 1. The following are some of the major changes proposed in the draft bill:
Definitions
• Changes to the definition of"agricultural tourism"to include"agricultural based
commercial operations"but not include educational tours sponsored and conducted by
public or private schools located within the County.
• New added definitions for"agricultural products" and"agriculturally-related products".
Plan Approval Section
• A change to the requirement for applicants to submit plans for plan approval, in which
applicants would only submit for plan approval prior to construction or installation of a
new structure and for any addition to an existing structure that exceeds ten percent of the
existing structure.
• Changes to the requirements for information to be provided with plan approval,
including, but not limited to, 1) allowing on street parking, if adequate, 2) deleting the
one thousand square foot limit for facilities principally utilized for the agricultural
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tourism activity, and 3) adding an allowance to request a waiver from the Planning
Director from the requirement for a site drainage plan upon certain circumstances.
Agricultural Tourism Section
• Remove the requirement to provide evidence of 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;
• Reduce the maximum amount of visitors allowed before requiring a Special Permit or a
Use Permit from 30,000 to 10,000.
• Hours of operations for agricultural tourism activities were changed. Currently, they are
8:00 a.m. to 6:00 p.m. daily, and the proposed hours are from sunrise to 6:00 p.m. daily
unless otherwise approved by the Planning Commission upon a finding there will be no
significant adverse impact on the surrounding neighborhood;
• Added requirement to provide adequate road and site access for fire, ambulance,police
and any other vehicles related to emergency response;
• Deletion of the one thousand square foot limit for facilities utilized principally for the
agricultural tourism activity.
• Changes to the waiver process from the director to allow additional time under certain
circumstances to meet the requirement of gross revenues from agricultural activity
exceeding gross sales from agricultural tourism.
• Includes section that prohibits agricultural tourism in Waipi`o Valley or where the
property is only accessible by four-wheel drive.
• Extends compliance deadline to July 1, 2017 for existing non-compliant agricultural
tourism operations to comply with Zoning Code requirements.
• The addition of a yearly registration process along with a$100 processing fee, which
includes submitting financial records and a daily visitor count record annually.
• Added section for the director to conduct site inspections without prior notification.
• Added section for enforcement of violations of this section.
-2-
CHRONOLOGICAL BACKGROUND
In 2008, the Hawai`i County Council adopted Ordinance No. 08-155, a copy of which is
attached to this report as Planning Department Exhibit 2. This ordinance was created to define
and regulate agricultural tourism in Hawai`i County in response to Sections 205-2(11) and
205-4.5(13), which both state the following:
"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." (emphasis added)
Section 205-5(b) of the Hawaii Revised Statutes, as amended, states the following:
(b) Within agricultural districts, uses compatible to the activities described in section
205-2 as determined by the commission shall be permitted; provided that
accessory agricultural uses and services described in sections 205-2 and 205-4.5
may be further defined by each county by zoning ordinance. Each county shall
adopt ordinances setting forth procedures and requirements, including provisions
for enforcement,penalties, and administrative oversight, for the review and
permitting of agricultural tourism uses and activities as an accessory use on a
working farm, or farming operation as defined in section 165-2. Ordinances shall
include but not be limited to:
(1) Requirements for access to a farm, including road width, road surface, and
parking;
(2) Requirements and restrictions for accessory facilities connected with the
farming operation, including gift shops and restaurants;
(3) Activities that may be offered by the farming operation for visitors;
(4) Days and hours of operation; and
(5) Automatic termination of the accessory use upon the cessation of the
farming operation.
-3-
The purpose and findings of Ordinance No. 08-155 identified in Section 1 of the
ordinance stated the following:
"The Council finds that the zoning code does not specifically address the
permissibility of agricultural tourism or its impacts in the various zoning districts.
Following the demise of the sugar plantations and mills, a more diversified agricultural
base consisting of smaller agribusiness and family operated farms,ranches, and
agricultural products processing facilities is evolving in the County of Hawai`i. These
operations are offering a wide variety of specialized products, produce and exotic flowers
via local vending opportunities as well as through regional, national, and international
wholesale distributors and the Internet.
The visitor industry, or tourism, continues to grow as a major element in the
economy of Hawaii County. With this growth in the visitor industry comes increased
market for tours showcasing the uniqueness of farming, ranching, and agricultural
products processing in Hawai`i. A viable inventory of agricultural tourism operations in
the County of Hawaii broadens the range of interests within the County attracting
additional and returning visitors.
A wide scale of agricultural tourism activities already exists on the island of
Hawai`i sometimes resulting in an adverse impact on surrounding properties and
resources. The failure to define and regulate agricultural tourism in Hawai`i County has
already resulted in complaints from surrounding property owners and residents due to
excessive noise and unsafe traffic conditions.
The Council, in recognition of agricultural tourism as a viable element of the
visitor industry and as an expanding alternative income resource for local farmers and
ranchers, finds it necessary and appropriate to define agricultural tourism and to establish
guidelines to manage its impact in a manner consistent with the social, environment,
physical, and economic goals and policies of the General Plan of the County of Hawai`i."
With the adoption of Ordinance 08-155, the Zoning Code(Chapter 25 of the Hawai`i
County Code) was updated to include the definition of agricultural tourism, changes to the Plan
Approval Section specifically relating to Agricultural Tourism, and the addition of Section
-4-
25-4-15 (Agricultural Tourism), which outlines the process and limits to permit an agricultural
tourism operation on a working farm.
The Council, in adopting Ordinance No. 08-155, established certain standards and
guidelines for agricultural tourism operations/activities including, but not limited to:
• A requirement for applicants to submit plans for plan approval, in which they would
identify parking, area(s) to turn around for all specified tour transportation modes
(including buses if proposed), legal access to a public highway, new and existing
facilities to be used mainly for the ag tourism activity that cannot exceeding 1,000 square
feet in total area, and proof of income from agricultural activities and/or agricultural
products processing.
• 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;
• Hours of operations for agricultural tourism activities were limited to 8:00 a.m. to
6:00 p.m. daily;
• The sale 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, is
allowed;
• The Planning Director may use observation of traffic to estimate whether or not the
agricultural tourism operation is exceeding the 30,000 visitor per year limit.
• The Planning Department must do a site inspection before issuing plan approval, and the
Department will have 60 days to approve or reject the plan approval application;
• If an agricultural tourism operation receives plan approval but then exceeds the
30,000/year limit, it must apply for a special permit;
• Additionally, agricultural tourism activities in A, FA, IA, RA, and APD districts that do
not conform to the listed requirements must apply for a special permit in the state land
use agricultural or rural districts, or a use permit in the state land use urban district.
-5-
In 2009, the Hawai`i County Council adopted Ordinance No. 09-143, a copy of which is
attached to this report as Planning Department Exhibit 3. The purpose of the ordinance was to
extend the amnesty period for unpermitted agricultural operations, as included in Ordinance
No. 08-155, from November 20, 2009 to May 30, 2010 (from 12 months to 18 months after the
effective date of Ordinance No. 08-155).
In 2012, the Planning Director initiated an amendment to the Zoning Code relating
Agricultural Tourism. The proposed amendments were the result of meetings with members of
the Hawaii Agritourism Association(HATA) and others to discuss the requirements of
Ordinance No. 08-155 and its implications and impacts upon those who have existing
agricultural tourism operations and those who were contemplating such operations. The
meetings were facilitated by the Department of Research and Development who also provided
valuable insight and recommendations on how to improve the agricultural tourism requirements.
The proposed amendments were the result of these meetings and represented an attempt to
provide better clarity, applicability and accommodation to a segment of the agricultural and
tourism industries that continued to grow. The following were the major changes proposed in
the Planning Director's initiated amendment:
• Improved definition of activities that can be defined as "agricultural tourism";
• Define"major"verses"minor" agricultural tourism operations;
• Definitions regarding various standards that define components of agricultural tourism,
such as a definition for"agricultural product", "related uses", "farm market", and other
uses.
• Require Plan Approval only for"major" agricultural tourism operations,rather than for
all agricultural tourism operations as currently required by the Zoning Code.
• For"major" agricultural tourism operations, eliminate 1,000 square foot limit and rely on
maximum annual visitor count of 30,000;
• Eliminate 60-day review for plan approval of"major" agricultural tourism operations so
that it follows the same 30-day processing timeframe afforded to any other use;
• Eliminate the need for a site inspection prior to the issuance of final plan approval for a
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"major" agricultural tourism operation.
• Revise maximum number of visitors for agricultural tourism-minor operations from a
yearly maximum of 30,000 to 15,000 and to also establish a weekly maximum of 350
visitors.
• Eliminate maximum limit of gross revenue generated by agricultural tourism operation;
• Eliminate one year"grace period" for existing agricultural tourism facilities to secure
final plan approval. Instead, agricultural tourism operations shall conform immediately
to the revised standards and guidelines, should this bill be adopted by the Council.
The Planning Director's proposed amendment was presented before the Windward and
Leeward Planning Commissions, who both forwarded a favorable recommendation to the
Hawai`i County Council. Councilmember Pete Hoffman introduced Bill 266 Draft 1 in 2012.
Over the course of about one year, Bill 266 went through five(5) drafts.
On January 8, 2013, the Council's Planning Committee voted to forward a negative
recommendation on Bill No. 266, Draft 5. Some of the concerns were based on substantive
revisions to Bill No. 266 that extended beyond the original purpose of the bill, like restricting
farm markets and roadside stands, which are currently permitted under State law and not directly
linked to agricultural tourism operations. (Planning Department Exhibit 4—Bill 266 Draft 5)
On January 23,2013, the County Council voted to postpone indefinitely Bill No. 266,
Draft 5 in order to allow the Council to introduce its alternative Bill No. 25, Draft 2. (Planning
Department Exhibit 5—Bill 25 Draft 2). The Bill was presented before the Windward and
Leeward Planning Commissions, who both forwarded a favorable recommendation to the
Hawai`i County Council. Bill 25 Draft 2 was postponed to the call of the chair on
August 6, 2014 and was never taken back up at Council.
In the years since the adoption of Ordinance No. 08-155, the administration of the
standards and guidelines for agricultural tourism have encountered some challenges by the
agricultural community due to the lack of clarity in some of the guidelines, and the difficulty for
a majority of the agricultural tourism operations to comply with these standards and guidelines.
As discussed above, there have been several attempts previously to create a better ordinance to
regulate agricultural tourism operations, but these ordinances did not get adopted.
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RECOMMENDATION
In reviewing Bill 227 Draft 2, the Planning Director is generally in favor of the overall
direction attempting to be defined by the bill, which is to make the permitting process less
restrictive and less burdensome for the agricultural tourism operations,but issues this
unfavorable recommendation based on the need for further clarification and changes within the
bill that are structurally significant from that represented within the draft bill.
The Planning Director is offering alternative language for the Hawaii County Council's
consideration. The alternative language seeks to further simplify the process for agricultural
tourism operations to become compliant with the requirements of section 25-4-15(d)by deleting
the current plan approval requirement and utilizing the registry process as introduced in Bill 227
Draft 2 and to make it clearer when an agricultural tourism operations may need a special or use
permit to operate.
The current permitting process for agricultural tourism operations under Section 25-4-15
requires operators to submit and receive plan approval. Over the last eight years, there have been
very few operations that have submitted plans for plan approval for agricultural tourism
operations. Our understanding is that the current requirements for plan approval for agricultural
tourism operations are too burdensome for the average operator. Additionally, the Planning
Department has received very few complaints regarding non-compliant agricultural tourism
operations that are currently operating without plan approval, a special permit or a use permit.
According to the current permitting process, if an agricultural tourism operation cannot
meet the minimum requirements or goes beyond the limits of section 25-4-15(d), the operations
will need to submit for a special permit or a use permit. Since 2008, there have been very few
agricultural tourism operations that have submitted an application for a special permit or use
permit.
Bill 227 Draft 2 attempts to make the permitting process less burdensome by providing
changes to the plan approval section to only require applicants to submit for plan approval prior
to construction or installation of a new structure and for any addition to an existing structure that
exceeds ten percent of the existing structure. Additionally, the bill offers an option for the
applicant to request a waiver from the Planning Director from the requirement for a site drainage
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plan, upon providing evidence to the director's satisfaction that there would be no significant
run-off resulting from the proposed development. Lastly, Bill 227 Draft 2 creates a yearly
registration process along with a$100 processing fee, which includes submitting financial
records and a daily visitor count record annually.
The Planning Director is suggesting to simplify the process even more by deleting
altogether the requirement for plan approval and to have all agricultural tourism operations be
required to register one time instead of a yearly registration.
The registry form will have questions to verify compliance with the standards and
guidelines of the Agricultural Tourism Operation as listed in 25-4-15(d)but will also have
questions currently listed on the Department's Agricultural-Based Commercial Operation
Certification Form(Planning Department Exhibit 6—Agricultural-Based Commercial
Operation Certification Form).
Similar to the current permitting process, if an agricultural tourism operation goes beyond
the limits of section 25-4-15(d), the operations will need to submit for a special permit or a use
permit, which can be determined through the information submitted in the registration form or if
a complaint and is received and the Planning Director conducts a site inspection and observes the
operation is operating beyond the limits of section 25-4-15(d).
The following are some of the major changes proposed in the Planning Director's
alternative language, (Planning Department Exhibit 7—Planning Director's Alternative
Language), which includes similar changes as proposed in Bill 227 Draft 2:
Definitions
• Changes to the definition of agricultural tourism to include agricultural based commercial
operations.
• New added definitions for"agricultural-based commercial operations" and"agricultural
products".
Plan Approval Section
• The section requiring plan approval for agricultural tourism operations has been removed.
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Agricultural Tourism Section
• The requirement to provide evidence of 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
has been removed;
• Maximum amount of visitors allowed before requiring a Special Permit or a Use Permit
has been changed from 30,000 to 15,000.
• Hours of operations for agricultural tourism activities will remain at 8:00 a.m. to
6:00 p.m. daily, but allows a change to the hours if approved by the Planning Director
upon a finding there will be no significant adverse impact on the surrounding
neighborhood;
• Added requirement to an existing legal access to a public highway, which may be via a
private road or easement. This was a previous requirement of plan approval;
• Changes to the waiver process from the director, which will only a waiver for up to 2
years if the operator can provide written evidence to the director's approval that the
revenue from the associated agricultural activity and/or agricultural processing facility
was adversely impacted due to unforeseen environmental or economic conditions;
• Change to allow the sales of agricultural products grown in Hawaii and processed
agricultural products where the main ingredient was grown in Hawaii, instead of only
grown on the island of Hawai`i.
• Added section that prohibits agricultural tourism in Waipi`o Valley or where the property
is only accessible by four-wheel drive.
• Changes to section that allows an amount of time for existing non-compliant agricultural
tourism operations to come into compliance(register, special permit or use permit),
which is 90 days from the effective date of the ordinance.
• Added sections regarding agricultural tourism operations that are currently permitted
through plan approval, special permit or use permit.
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• The addition section of a registration process along with a$100 processing fee. Allows
director the option to request for additional information, such as financial records or
daily/yearly visitor counts, if needed.
• Added section for the director to conduct site inspections without prior notification.
• Added section for enforcement of violations of this section.
Based on the above information provided,the Planning Director recommends that
the Planning Commission send an unfavorable recommendation to the Hawai`i County
Council for Bill 227 Draft 2. The Director asks that this recommendation be accompanied by
suggested amendments to the Zoning Code that seeks to consolidate definitions, define
operational standards and prohibitions, clearly identify permitting requirements, with a primary
emphasis to minimize regulatory oversight and simplify the process for compliance.
-11-
Greggor Ilagan = °• Office: (808)965-2712
Council Member ��,.�:: � T 9n n rn tax: (808)965-2707
District 4 Puna Makai ��,�;� ' Email: gilagan@hawaiicounty.gov •
Ir a res
HAWAII COUNTY COUNCIL
25 Aupuni Street, Hilo,Hawai`i 96720
TO: Duane Kanuha, Director
Planning Department
FROM: -* Greggor Ilagan, Chair
Committee on Planning
DATE: October 18, 2016
SUBJECT: Referral of Bill 227, Draft 2; An Ordinance Amending Chapter 25, Article 1,
Article 2, and Article 4 of the Hawai`i County Code 1983 (2005 Edition, as
amended), Relating to Agricultural Tourism.
Pursuant to Section 25-2-43(b) of the Hawai`i County Code, I am submitting Bill 227, Draft 2,
enclosed for your comment and recommendation. I also request that you forward the same to the
Windward and Leeward Planning Commissions for their comment and recommendation as well.
Please forward your response to the Council Chairperson.
For informational purposes, Bill 227, Draft 2, was referred for comment and recommendation to
the Planning Director and the Windward and Leeward Planning Commissions by the Hawai`i
County Council's Committee on Planning on October 18, 2016.
Thank you for your attention to this matter.
Enc.
GI:ps
Planning Dept.
Exhibit, I
SCANNED
OCT 1 O4 81� 4
Hawaii County Is an Equal Opportunity Provider And Employer r=
Vii'
COUNTY OF HAWAII ':-•• • • STATE OF HAWAII
BILL NO. 227 .
ORDINANCE NO. (DRAFT 2)
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, including agricultural based commercial operations as
described in Hawaii Revised Statute section 205-2(0(15). The term "agricultural tourism" does
not include educational tours sponsored and conducted by public or private schools located
within the County."
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.
"Agriculturally-related products" means items sold to attract customers and promote the
sale of agricultural products related to the farm and to agriculture in Hawaii generally."
SECTION 3. Chapter 25, article 2, division 7, section 25-2-71 of the Hawai`i County
Code 1983 (2005 Edition, as amended), is amended by amending subsection (g) to read as
follows:
"(g) Plan approval shall be required [ - -- - . - • - - - - - . _ ' • . • • • • --
• • . -- . . . section 25 4 15(b).] for any agricultural tourism
operation as permitted under section 25-4-15(d) prior to the construction or
installation of any new structure and for any addition to an existing structure that
exceeds ten percent of the existing structure."
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.
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) A statement whether the operation will allow visits by buses[;], and if
so, the statement shall include the carrying capacity of any bus that
may visit the agricultural tourism operation;
(2) Adequate on-street or 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;
(3) [ • • - - -- - . : - . - . - . . . . . ' - . ,
. , . • . , - . - . ... - ;] A statement demonstrating that the
subject property has adequate legal access to a public highway;
(4) [New] Vehicular and pedestrian access ways and existing facilities to be
utilized principally for the agricultural tourism activity shall be clearly
indicated on the plot plan [. - - - - : - - • • - • . -• --
.. - :. •- • . -. . . . - - ]; and
2
(5) [' .. , . . . . • - . _ .. _ - ' . . . ' - . .
4 15(d)(1).] A statement of compliance that the applicant is engaged in
agricultural activity consistent with the.provisions of section 25-4-15(d).
(b) Applicants proposing a agricultural tourism operation may request from the director
a waiver from the requirement for a site drainage plan as provided in section 25-2-
72, upon providing evidence to the director's satisfaction 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, [sweet-te
. . .. . . .. . •- . - . • - - •. - .] provided the agricultural
tourism operation conforms 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 [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) [ -- ' . . . . . ' • . . . . ._ . _ . . • - ' ' - .
- .. •- .. , . _ . . . - - , - . • •
.
3
The agricultural tourism operation shall have a maximum of-ten thousand
visitors annually unless allowed by special permit or use permit;
(2) Hours of operation: Agricultural tourism activities shall not commence prior to
[$a0a.m.] sunrise or continue past 6:00 p.m. daily[;], unless otherwise
approved by the commission upon a finding there will be no significant adverse
impact on the surrounding neighborhood;
:te .,u, ;]
[(4)] () Vehicular accommodation:
(A) There shall be adequate road and site access for fire, ambulance, police,
and any other vehicles related to emergency response;
(B) All visitor and employee parking, loading/unloading, and vehicular turn-
around areas shall be located [off street;] on-site, unless otherwise
approved by the director to ensure there will be no significant adverse
impact on the surrounding neighborhood;
[ -- . . :. • , - .: • . . , , . .. . . • .
[( }] (4) Agricultural tourism gross revenue limitation and exceptions: Gross
revenues from agricultural tourism shall not exceed the gross revenues of the
associated agricultural activity and/or agricultural products processing facility [;
where it can .- . - : -- - ' . ' . : - . - -
income-due-to - -- - - - - - -
made-se-that-it-is - - ' - - • --
4
•
- . . ' ' • '_. . . . . • • _ . ' ' ;] • provided, however, this
provision may be waived if the operator can provide evidence to the director's
satisfaction that: (1) the revenue from the associated agricultural activity and/or
agricultural processing facility was adversely impacted due to unforeseen
environmental or economic conditions; or(2) the agricultural activity or
agricultural products processing facility is in a developmental stage and is
therefore unable to generate revenue in excess of the revenue generated by the
agricultural tourism operation, in which case this exception may be granted for
up to three consecutive years.
An additional exception may be approved by the director for up to nine years in
exceptional cases, such as due to extreme agricultural hardship or for production
of trees with an exceptionally long period prior to maturation of the produce;
F)] (4) Sale of agricultural items not related to the agricultural activity where the
agricultural tourism operation is established: 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[-].,
[EA)] (5) Incidental sales of non-agricultural promotional items: Incidental sales of
non-agricultural promotional items, including but not limited to, coffee mugs,
tee shirts, etc., shall be permitted provided[:] the items are specifically
promotional to the site's agricultural activities and/or product.,
[
and/or-Pfefluet*-and
aetivitiesd
5
[f9] L6) Limitation on certain events: 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;
[atid]
[(I-O] 1'2) Annual agricultural events permitted 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 -
[(-1-1-)] L8) Prohibited locations: A•ricultural tourism shall not be .ermined in [ J1
Wai.i`o Valle or in other locations where the .ro.ert is not accessible
other than b four-wheel drive. and
[f 12)] Termination re.uirement: A:ricultural tourism o.erations shall
immediatel terminate uson cessation of the farmin; o.eration.
(e) Any agricultural tourism [activity] o eration that is not in compliance with [the
fegtilations-hinder] section 25-4-15(d) or appropriately p Y Permitted [as-pr-evided-by]
pursuant to section 25-4-15(c) shall be considered illegal under this chapter, unless
otherwise noted herein.
(t) Any agricultural tourism [any] o eration in the A, FA IAFA
districts, existing prior to the effective date of this [ - - [ _ 'J .RAor APD
• • : • - : -:] ordinance that has not received plan
approval, may continue [ . • . - ,
to oserate .rovided .roof of com.liance with section 25-4-15 1
director on or before Jul 1 2017. d is submitted to the
(g) Any agricultural tourism [aet ] o eration in the A, FA IA, €A
districts, that does not conform to the standards in section 25-4-15(d),RA, or APD
not previously received a special permit or use permit for such activiandunder has
section 25-2-61 may continue such use until [May-207.2.044i] Jul 1 20'17 under
— y and[;] if
an application for [. ---• _ . - . -- - - -
,] .Ian a. 'royal under section 25-2-71 or a s.ecial set-mit under 25-2-
61 has been received b Jul 1 2017 may continue such use until final action has
been taken on the application. After [
,] July 1__ 2� or denial of the
6
application, whichever occurs later, the operator shall have ninety days to cease and
desist with all agricultural tourism operations. Any continued use beyond those ninety
days shall be considered illegal under this chapter.
]
[(3-)] (h) An agricultural tourism [ac-tivity] 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;[
within ninety days of noncompliance, [hat] and may continue to operate until a final
decision is made on the plan approval or special permit application.
[(j)] filAn agricultural tourism [may] operation [ -' - • - -• -_ , , . -_ :
shall register with the department annually on a form prescribed by the director and
submit financial records and a daily visitor count record to the director on [ quest] 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
Each operation shall require separate registrations and a processing fee of$100 per
location. The director may request additional information pertinent to the registration of the
agricultural tourism operations provided the requested information is relevant to the
provisions of this chapter, and further provided that the information is not protected
intellectual property.
[(k)] (j) 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)], and may require that an [ ] operation obtain plan
approval or apply for a special permit based on such observations. [In that case, the
7
•
O The director may conduct a site inspection for any proposed agricultural
tourism operation and may make periodic inspections on any agricultural
tourism operation without prior notification.
fl In the event of any violation of this section, the operator may be fined up to $1,000,
however unless provided otherwise in County or State law, the operator shall have
ninety days to correct the violation. If the violation continues past ninety days, the
operator may be fined$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.
INTRODUCED BY:
116A
ta10110Z....0,--
COUNCIL ME ER, COUNTY OF HAWAII
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. 979.7
8
Margaret Wille �i-o;;-•, Phone No. Hilo: (808)961-8027
d'.•':' �.-••'.', Phone No. Waimea: (808) 887-2043
Council Member • 4••; •` •
District 9-North and South Kohula Fax• �� *' Fax No.: (808) 887-2072
•it�k'')';•.'�� E-Mail: mwille@co.hawaii.hi.us
7TH GI•N��
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, Hawaii.96740
g. :raw
Cili
__,.--.7.---:
TO: Dru Mamo Kanuha, Council Chair o ,--<
and Members of the Hawai`i County Council a n
FROM: h•' ' Margaret Wille, Council Member �.
DATE: October 10, 2016
SUBJECT Transmitting Bill No. 227, Draft 2, Relating to Agricultural Tourism
Please find attached Bill No. 227, Draft 2. Bill No. 227 was amended by the contents of
Communication No. 979.6, as duly approved by the Planning Committee during its meeting
on October 4, 2016.
Subsequent to amendment, the Committee postponed Bill No. 227, Draft 2, to the October
18, 2016 meeting of the Committee.
Please place the attached bill on the October 18, 2016 Planning Committee agenda.
Thank you.
<BI1 ) Or. L'
MW/dh
Att.
ctxnm.No, a 75. 7
Rs/Ta.
Serving the Interests of the People of Our Island ' ~ Y t
Hawaii County Is An Equal Opportunity Provider And Employer
COUNTY OF HAWAII : STATE OF HAWAII
�.r
BILL NO. 148
(DRAFT 3)
ORDINANCE NO. 08 155
AN ORDINANCE AMENDING CHAPTER 25 (ZONING CODE) OF THE HAWAII
COUNTY CODE, RELATED TO AGRICULTURAL TOURISM.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI`I:
SECTION 1. Purpose and Findings. The Council fords that the zoning code does not
specifically address the permissibility of agricultural tourism or its impacts in the various zoning
districts. Following the demise of the sugar plantations and mills, a more diversified agricultural
base, consisting of smaller agribusiness and family operated farms, ranches, and agricultural
products processing facilities, is evolving in the County of Hawai`i. These operations are
offering a wide variety of specialized products, produce and exotic flowers via local vending
opportunities as well as through regional, national, and international wholesale distributors and '
the Internet.
The visitor industry, or tourism, continues to grow as a major element in the economy of
Hawaii County. With this growth in the visitor industry comes an increased market for tours
showcasing the uniqueness of farming, ranching and agricultural products processing in Hawai`i.
A viable inventory of agricultural tourism operations in the County of Hawai`i broadens the
range of interests within the County attracting additional and returning visitors.
A wide scale of agricultural tourism activities already exists on the island of Hawai`i,
sometimes resulting in an adverse impact on surrounding properties and resources. The failure
to define and regulate agricultural tourism in Hawai`i County has already resulted in complaints
Planning Dept.
ExhibiL..211 ___
from surrounding property owners and residents due to excessive noise and unsafe traffic
conditions.
The Council, in recognition of agricultural tourism as a viable element of the visitor
industry and as an expanding alternate income resource for local farmers and ranchers, finds it
necessary and appropriate to define agricultural tourism and to establish guidelines to manage its
impacts in a manner consistent with the social, environmental, physical, and economic goals and
policies of the General Plan for the County of Hawaii.
SECTION 2. Chapter 25, article 1, subsection 25-1-5(b), Hawai`i County Code 1983
(2005 Edition, as amended), relating to definitions, is amended by adding the following new
definitions to be appropriately inserted and to read as follows:
"Agricultural activities" means income producing activities or uses as characterized by
the cultivation of crops, including but not limited to flowers,vegetables, foliage, fruits, forage,
and timber; and farming or ranching activities or uses related to animal husbandry, aquaculture,
or game and fish propagation."
""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."
SECTION 3. Chapter 25, article 2, division 7, section 25-2-71, Hawai'i County Code 1983
(2005 Edition, as amended), is amended to read as follows:
"Section 25-2-71. Applicability; plan approval required.
(a) Plan approval shall be required prior to the construction or installation of any new
structure or development or any addition to an existing structure or development in all
2
districts except in the RS, RA, FA, A and IA districts, and except for the construction
of one single-family dwelling and accessory dwelling per lot.
(b) Plan approval shall be required in all districts prior to the change of the following
uses in existing buildings:
• (1) Residential to commercial use;
(2) Warehouse and manufacturing to retail use.
(c) Plan approval shall be required in all applicable districts prior to the construction or
establishment of the following improvements and uses:
(1) Bed and breakfast establishments as permitted under section 25-4-7.
(2) Public uses, structures and buildings and community buildings, as permitted
under section 25-4-11.
(3) Telecommunication antennas and towers, as permitted under section 25-4-12.
(4) Temporary real estate offices and model homes, as permitted under section
25-4-8.
(5) Utility substations, as authorized under section 25-4-11.
(d) Plan approval shall be required in the RA and FA district prior to the construction or
installation of any new structure or development, or of any addition to an existing
structure or development which is to be used for minor agricultural products
processing.
(e) Plan approval shall be required in the A district prior to the development of any trailer
park or major agricultural products processing facility. The director shall determine
whether an agricultural products processing facility shall be considered major or
minor at the time of building permit review, or earlier at the applicant's request.
•
3
(f) Plan approval may be required as a condition of approval of any use permit, variance,
or other action relating to a specific use, in which case the use or development so
conditioned may not be established until plan approval has been secured.
(g) Plan approval shall be required for the establishment of any agricultural tourism
activity,as permitted under section 25-4-15(b)."
SECTION 4. Chapter 25, article 2, division 7, Hawai`i County Code 1983 (2005 Edition,
as amended), is amended by adding a new section to be designated section 25-2-75 and to read as
follows:
"Section 25-2-75. Plan approval application requirements for agricultural tourism.
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) A statement whether the operation will allow visits by buses;
(2) Adequate 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;
(3) The subject property must have an existing legal access to a public highway, which
may be via a private road or easement, and new driveways shall meet applicable
county or state standards;
(4) New and existing facilities to be utilized principally for the agricultural tourism
activity shall be clearly indicated on the plot plan and shall not exceed one thousand
square feet in total area,not including parking and vehicular accesses; and
(51 Proof, acceptable to the director, of income from agricultural activities and/or
4
agricultural products processing, or investment, as required under section 25-4- •
15(d)(1)."
SECTION 5. Chapter 25, article 2, division 7, section 25-2-75, Hawai`i County Code 1983
(2005 Edition, as amended), is renumbered and amended to read as follows:
"Section 25-2-[7S] 76. Action on plan approval application.
(a) The director may issue plan approval subject to conditions or changes in the proposal
which, in the director's opinion, are necessary to carry out and further the purposes of
this chapter and the considerations contained in section 25-2-[76] 77.
(b) The director may only issue plan approval for a bed and breakfast establishment if the
proposed use meets all of the conditions contained in sections 25-2-[76] 77 and 25-4-
7_[, .. . ' . . - . .. . . .. . - . . . . _
•
required under section 25 2 73.]
(c) The director may only issue plan approval for a telecommunication antenna or tower
if the proposed use meets all of the conditions contained in sections 25-2-[76] 77 and
25-4-12, and if the applicant provides all verification required under section 25-2-74.
(d) The director may only issue plan approval for a temporary model home or real estate
office if the proposed use meets all of the conditions in section 25-2-[76] 77 and 25-
4-8.
(e) The director shall render a decision to either approve or deny a plan approval
application, other than for an agricultural tourism facility,within thirty days after
acceptance of the application. If the director fails to render a decision within the
thirty-day period,the application shall be considered approved without further
certification by the director. For an agricultural tourism facility, the department shall
5
conduct a site inspection prior to issuing plan approval, and the director shall render a
decision to either approve or deny a plan approval application within sixty days after
acceptance of the application. If the director fails to render a decision within the
sixty-day period,the application shall be considered approved without further
certification by the director."
SECTION 6. Chapter 25, article 2, division 7, section 25-2-76, Hawai`i County Code 1983
(2005 Edition, as amended), is amended by renumbering its title to read as follows:
"Section 25-2-[7-6] 77. Review criteria and conditions of approval."
SECTION 7. Chapter 25, article 2, division 7, section 25-2-77, Hawai`i County Code 1983
(2005 Edition, as amended), is amended by renumbering its title to read as follows:
"Section 25-2-[ ] 78. Construction in conformity with plan approval."
SECTION 8. Chapter 25, article 2, division 7, section 25-2-78, Hawai`i County Code 1983
(2005 Edition, as amended), is amended by renumbering its title to read as follows:
"Section 25-2-178] 79. Appeal of a plan approval decision."
SECTION 9. Chapter 25, article 4, division 1, Hawai`i County Code 1983 (2005 Edition,
as amended), is amended by adding a new section to be designated section 25-4-15 and 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.
6
(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
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 state land use
agricultural or rural districts, or a use permit in the state land use urban district.
(d) Agricultural tourism operations shall comply with the following regulations:
(1) The agricultural activity or agricultural products processing facility must 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 agricultural activity or
agricultural processing facility will achieve the minimum required gross sales;
(2) Agricultural tourism activities shall not commence prior to 8:00 a.m. or
continue past 6:00 p.m. daily;
(31 The agricultural tourism operation shall have a maximum of thirty thousand
visitors annually;
(4) All visitor and employee parking,.loading/unloading;and vehicular turn-around
areas shall be located off-street;
7
(5) The total area of spaces, including covered decks, lanais, tents or canopies, and
gazebos, whether newly constructed Or within existing structures,to be utilized
principally for the agricultural tourism activity, but not including parking and
vehicular access areas, shall not exceed one thousand square feet;
(6) 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 consecutiveyears, or, in the case of a new agricultural activity or
agricultural products processing facility,that sufficient investment has been
made so that it is reasonable to project that the operation's gross revenues from
agricultural tourism will not exceed 50% 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;
(7) 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:
•
8
(A) The items are specifically promotional to 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) 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) 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.
(e) Any agricultural tourism activity that is not in compliance with the regulations under
section 25-4-15(d) or appropriately permitted as provided by section 25-4-15(c) shall
be considered illegal under this chapter, unless otherwise noted herein.
(f) Any agricultural tourism activity in the A, IA,FA, RA, or APD districts, existing
prior to the effective date of this section and conforming to the standards contained in
section 25-4-15(d) and that has not received plan approval, may continue such use for
twelve months following the effective date of this ordinance. After this date,
continued use without having received plan approval shall be considered illegal under
this chapter.
(g) Any agricultural tourism activity in the A, IA,FA, RA, or APD districts,_that does not
conform to the standards in section 25-4-15(dkand which has not previously received
a special permit or use permit for such activity,_may continue such use for twelve
9
months following the effective date of this ordinance, and, if an application for a
special permit or a use permit has been received and accepted within the twelve
month period, may continue such use until final action has been taken on the
application. After twelve months from approval of this ordinance, or denial of the
application, whichever occurs later, continued use shall be considered illegal under
this chapter.
(h) Any agricultural tourism activity 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 that obtains plan approval, but becomes non-
compliant with the standards of sec. 25-4-15(d) because of an increase in the number
of visitors, shall apply for a special permit, but may continue to operate until a final
decision is made on the special permit application.
(i) An agricultural tourism activity which has received plan approval shall submit
financial records to the director on request to verify compliance and shall maintain a
count of visitors which shall be furnished to the director on request.
fk) The director may use observations of visitor arrivals including bus traffic, in
estimating whether an agricultural tourism activity complies with sec. 25-4-15(d)(3),
and may require that an activity allowed with plan approval apply for a special permit
based on such observations. In that case, the activity may continue until a final
decision is made on the special permit."
10
SECTION 10. Chapter 25, article 4, division 5, subsection 25-4-51(a), Hawai`i County
Code 1983 (2005 Edition, as amended), relating to required number of parking spaces, is
amended to read as follows:
"(a) The number of parking spaces for each use shall be as follows:
(1) _ Agricultural tourism: one for each three hundred square feet of gross floor area
used principally for the agricultural tourism activity, but not fewer than three
spaces, plus bus parking if buses are allowed.
[(I)] (2) Bed and Breakfast establishments: one for each guest bedroom, in addition to
one for the dwelling unit.
[(2)] l) Bowling alleys: four for each alley.
[( )] L4) Commercial uses, including retail and office uses in RCX, CN, CG, CV,
MCX, V, RA, FA, A and IA districts: one for each three hundred square feet
of gross floor area.
[(4)] () Day care centers: one for each ten care recipients of design capacity or one for
every two hundred square feet of gross floor area, whichever is greater.
[(5)] () Dwellings, multiple-family: one and one quarter for each unit.
[(6)] i7) Dwellings, single-family and double-family or duplex: two for each dwelling
unit.
[(7-)] f8) Funeral homes and mortuaries: one for each seventy-five square feet of gross
floor area.
[(8)] (9) Golf courses: four for every hole.
[(9)] (10) Hospitals: one for each bed.
[(10)] (11) Hotels and lodges:
11
(A) For hotel guest units without a kitchen,one for every three units;
(B) For hotel guest units with a kitchen, one and one quarter for each unit.
[(11)] 112) Industrial uses in ML, MG, MCX, RA, FA, A and IA districts: one for each
four hundred square feet of gross floor area.
[(-1-] (13) Laundromats, cleaners (coin operated): one for every four machines.
[(13)] (14) Major outdoor amusement and recreation facilities: one for each two hundred
square feet of gross floor area within enclosed buildings,plus one for every
three persons that the outdoor facilities are designed to accommodate when
used to the maximum capacity.
[(14)] (15) Meeting facilities, including churches: one for each seventy-five square feet of
gross floor area.
[(q-5] (16) Nursing homes, convalescent homes, rest homes and homes for the elderly:
one for every two beds.
-[(46] (17) Parks: as determined by the director.
[(17)] (18) Recreation facilities, outdoor or indoor, other than herein specified: one for
each two hundred square feet of gross floor area, plus three per court
(racquetball, tennis or similar activities).
[(18)] X19) Rooming and lodging houses, religious, fraternal or social orders having
sleeping accommodations: one for each two beds.
[(13] (20) Schools (elementary and intermediate): one for each twenty students of design
capacity, plus one for each four hundred square feet of office floor space.
[(20)] 21) Schools (high, language, vocational, business, technical and trade, college):
one for each ten students of design capacity, plus one for each four hundred
12
square feet of office floor space.
[(21)] (22) Sports arenas, auditoriums, theaters, assembly halls: one for every four seats.
[(2-2-] (23) Swimming pools(community): one for each forty square feet of pool area.
[(23)] (24) Warehouse and bulk storage establishments where there is no trade or retail
traffic: one for each one thousand square feet of gross floor area."
SECTION 11. Chapter 25, article 5, division 5, subsection 25-5-52(a), Hawaii County
Code 1983 (2005 Edition, as amended), relating to permitted uses in residential and agricultural
districts (RA districts), is amended to read as follows:
"(a) The following uses shall be permitted in the RA district:
(1) Adult day care homes.
(2) Agricultural products processing, minor, provided that the site or buildings
used for such processing, shall be located at least seventy-five feet from
any street bounding the building site.
(3) Agricultural tourism as permitted under section 25-4-15.
[RA ( Animal hospitals.
[(4)] ill Aquaculture.
[(5)} Botanical gardens, nurseries and greenhouses, seed farms, plant
experimental stations, arboretums, floriculture, and similar uses dealing with
the growing of plants.
[(6)] al Cemeteries and mausoleums, as permitted under chapter 6, article 1 of
this Code.
[9)1 01 Crop production.
13
[(8)1 M Dwelling, single-family, one per building site.
[(9)] (10) Family child care homes.
[(10)) (11) Group living facilities.
[(11)]. (12) Kennels,provided that the building site is a minimum of five acres in
area and the structures are located at least one hundred feet away from any lot
line.
[(12)] (13) Livestock production (excluding pigs), provided that:
(A) The requirements of the department of health are met;
(B) Approval of the director is obtained; and
(C) Any feed or water area, salt lick, corral,run,barn, shed, stable, house,
hutch, or other enclosure for the keeping of any permitted animal shall
be located at least seventy-five feet from any lot line.
[(13)] (14) Parks, playgrounds, tennis courts, swimming pools, and other similar
open area recreational facilities.
[(11)] (15) Public uses and structures, as permitted under section 25-4-11.
[(15)) (16) Roadside stands for the sale of agricultural products grown on the
premises.
[(16)1 (17) Stables, commercial or boarding, provided that the building site is a
minimum of five acres in area and the structures are located at least one
hundred feet away from any lot line.
[(17)] (18) Telecommunications antennas, as permitted under section 25-4-12.
[(18)] (19) Utility substations, as permitted under section 25-4-11.
[(19)] (20) Veterinary establishments."
• 14
SECTION 12. Chapter 25, article 5, division 6, subsection 25-5-62(a), Hawai`i
County Code 1983 (2005 Edition, as amended), relating to permitted uses in family agricultural
districts(FA districts), is amended to read as follows:
"(a) The following uses shall be permitted in FA districts:
(1) Agricultural products processing,minor,provided that the area or buildings
used for such processing, shall be located at least seventy-five feet from any
street.
(2) Agricultural tourism as permitted under section 25-4-15.
[(2)] ) Animal hospitals.
[O] (4) Aquaculture.
[(4)] al Botanical gardens, nurseries and greenhouses, seed farms, plant
experimental stations, arboretums, floriculture, and similar uses dealing with
the growing of plants. •
[(3)] (6) Campgrounds, parks, playgrounds, tennis courts, swimming pools, and
other similar open area recreational facilities, where none of the recreational
features are entirely enclosed in a building.
[(6) Crop production.] (7) Cemeteries and mausoleums,as permitted under
Chapter 6, article 1 of this Code.
this Code.] (8) Crop production.
[(8)] Dwelling, single-family, as permitted under chapter 205, Hawai`i
Revised Statutes and as permitted under section 25-5-67(b).
[(9)] (10) Farm dwellings, as permitted under section 25-5-67(b) and (c).
15
[(10)] (11) Game and fish propagation.
[(44-)] (12) Group living facilities.
[(12)] (13) Kennels.
[(13)] (14) Livestock, grazing; provided that any feed or water area, salt lick, corral,
run, barn, shed, stable,house, hutch, or other enclosure for the keeping of any
permitted animals shall be located at least seventy-five feet from any lot line.
[(14)] (15) Public uses and structures, necessary for agricultural practices.
[(15)] (16) Retention,restoration, rehabilitation, or improvement of buildings or
sites of historic or scenic interest.
[(16)] (17) Riding academies, and rental or boarding stables.
[(17)] (18) Roadside stands for the sale of agricultural products grown on the
premises.
[(18)] (19) Telecommunications antennas, as permitted under section 25-4-12.
[(19)] (20) Utility substations, as permitted under section 25-4-11.
[(20)] (21) Vehicle and equipment storage areas that are directly accessory to
aquaculture, crop production, game and fish propagation, and livestock
grazing.
[(21)] (22) Veterinary establishments."
SECTION 13. Chapter 25, article 5, division 7, subsection 25-5-72(a), I-Iawai`i County
Code 1983 (2005 Edition, as amended), relating to permitted uses in agricultural districts (A
districts), is amended to read as follows:
"(a) The following uses shall be permitted in the A district:
(1) Agricultural parks.
16
(2) Agricultural products processing, major and minor.
a) Agricultural tourism as permitted under section 25-4-15.
[(3)] O Animal hospitals.
[(4)] L ) Aquaculture.
[(3)] (6) Botanical gardens, nurseries and greenhouses, seed farms,plant
experimental stations, arboretums, floriculture, and similar uses dealing with
the growing of plants.
[(6)] al Campgrounds, parks, playgrounds, tennis courts, swimming pools, and
other similar open area recreational facilities, where none of the recreational
features are entirely enclosed in a building.
[ ]
Lu Cemeteries and mausoleums, as permitted under [Chapter] chapter 6,
article 1 of this Code.
[(8)] ( Crop production.
[(9)] (10) Dwelling, single-family, as permitted under chapter 205, Hawai`i
Revised Statutes and as permitted under section 25-5-77(b).
[(10)] (11) Farm dwellings, as permitted under section 25-5-77(b) and(c).
[(11)] (12) Fertilizer yards utilizing only manure and soil, for commercial use.
[O] (13) Forestry.
[(13)] (14) Game and fish propagation.
[(1'1)] U. Group living facilities.
[(15)) 06) Kennels.
[(16)] (17) Livestock production, provided that piggeries, apiaries, and pen feeding
of livestock shall only be located on sites approved by the State department of
17
health and the director, and must be located no closer than one thousand feet
away from any major public street or from any other zoning district.
[(-I-7)] (18) Public uses and structures which are necessary for agricultural practices.
[(-I-S)] (19) Retention, restoration, rehabilitation, or improvement of building or sites
of historic or scenic interest.
[(19)] (20) Riding academies, and rental or boarding stables.
[(20)] (21) Roadside stands for the sale of agricultural products grown on the
premises.
[(21)] (22) Telecommunication antennas, as permitted under section 25-4-12.
[(22)] (23) Utility substations, as permitted under section 25-4-11.
[(23)] (24) Vehicle and equipment storage areas that are directly accessory to
aquaculture, crop production, game and fish propagation, livestock grazing
and livestock production.
[(24)] (25) Veterinary establishments.
[(-2-5)] (26) Wind energy facilities."
SECTION 14. Chapter 25, article 5, division 8, subsection 25-5-82(a), Hawai`i County
Code 1983 (2005 Edition, as amended), relating to uses permitted within intensive agricultural
districts (IA districts), is amended to read as follows:
"(a) The following uses shall be permitted in the IA district:
(1) Agricultural parks.
(2) Agricultural products processing, major and minor.
Agricultural tourism as permitted under section 25-4-15.
[(-3-)] a) Aquaculture.
18
[E4)] Cemeteries, as permitted under chapter 6, article 1 of this Code.
[{3)] L6j Crop production.
[(6)] (7) Farm dwellings, as permitted under sections 25-5-87(b) and(c).
[f7)] L) Forestry.
[ 83] (9) Livestock production, provided that piggeries, apiaries and pen feeding.
of livestock shall not be closer than one thousand feet to any major road or to
any district other than the A district,on building sites approved by the State
department of health and the director.
[(93] (10) Public uses and structures which are necessary for agricultural practices.
[(10)] (11) Telecommunication antennas, as permitted under section 25-4-12.
[(12)] (121 Utility substations, as permitted under section 25-4-11."
SECTION 15. 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 16. In the event that any portion of the ordinance is declared invalid, such
invalidity shall not affect other parts of this ordinance.
SECTION 17. This ordinance shall take effect.upon its approval.
Introduced by:
i
COUN• ► EMBER, COUNTY OF HAWAI`I
�Kona7Hawai`i
Date of Introduction: October 22, 2008
Date of 1st Reading: October 22, 2008
Date of 2nd Reading: November 7, 2008
Effective Date: November 20, 2008
REFERENCES Comm. 863.5
19
OFFICE OF THE COUNTY CLERK
County of Hawai`i
t �f
Kona, Hawai`i - i
(Draft 3) ITO3 N I/ 2:1 t
Introduced By: Bob Jacobson ROLL CAL Vag U J. ,
Date Introduced: October 22, 2008 AYES'L NOES _ ABS FA
First Reading: October 22, 2008 Ford X '
Published: November 1, 2008 Higa X t
RE','L4RKS: Hoffmann X
— Ikeda X
--- Jacobson X
Naeole X 1-.
— —
------ Pilago X
--- Yagong X
Yoshimoto X
Second Reading: November 7, 2008 9 0 0 0
To Mayor: November 18 , 2008 `'
Returned: _November 20, 2008 ---'
ROLL CALL VOTE
Effective: November 20, 2008EX 1
AYES NOES ABS' EX
Published: December 1, 2008 Ford X
REMARKS. ' I ---
- -- Higa X 1
— — -- Hoffmann X
— Ikeda X ---
--- --- . — Jacobson X I --
__•-,-----__—_- Naeole X i
Pi lagu X --t---—.----
Yagong X
Yoshimoto X ----E--
1 £'-JC HEREBY CERTIFY that the foregoing BILL was adopted by the County Council published as
irkiicaied above. . --..
APPROVED AS TO ��i ,�"� �, rt r f /
FORM AN LEGALITY:
view �� <
COU 'IL CHAIRM• '
DEPUTY CO ,PORATION COUNS L
COUNTY OF HAWAII
Date
NOV 1 9 2008 COUNT. C.L RK
148 (Draft 3) (2004-2006)
Bill No.:
P*0'1' Reference: C-863 . 5/PC-9,
•ppruve '1 isappruved this _—_ dati� • �_..._—_.
Ord No.: 08. 155 ..__.._._.__
r,1-- - No an+ —, 20 o$ ._
': L- YOR, ('( ► YOFHAWAII
Ordinances Numbered -
08 155,08-156,08-157,08-158,08-159,08-160,08-161,&08-162
I hereby certify that the following Ordinances passed second and final reading at the meeting of the County .
Council on November 7,2008,by vote,as listed below:
Ordinance 08-155(Bill 148,Draft 3)(2004-2006): An Ordinance Amending Chapter 25 (Zoning Code)of
the Hawai`i County Code, Related to Agricultural Tourism. AYES: Council Members Ford, Ikeda,
Jacobson,Naeole, Pilago, Yagong, Yoshimoto,and Chair Hoffinann—8;NOES: None;ABSENT:Council
Member Higa— 1; EXCUSED:None.
Ordinance 08-156(Bill 323, Draft 3): An Ordinance Amending Chapter-19,Article 7, Sections 19-53, 19-
58.1 and 19-58.2, Hawai`i County Code 1983 (2005 Edition,as Amended), Relating to Real Property Taxes-
Nonspeculative Residential Use. AYES: Council Members Ford, Ikeda,Jacobson, Naeofe, Pilago,
Yoshimoto, and Chair Hoffmann—7;NOES:Council Member Yagong—1;ABSENT:Council Member
•
Higa— I; EXCUSED: None.
Ordinance 08-157(Bill 366, Draft 2): An Ordinance Amending Chapter 2 of the Hawaii County Code
1983(2005 Edition,as Amended),Relating to Parity Liens. AYES:Council Members Ford, Ikeda,
Jacobson, Naeole, Pilago, Yagong, Yoshimoto,and Chair Hoffmann—8; NOES: None;ABSENT:Council
Member Higa— 1; EXCUSED: None.
Ordinance 08-158(Bill 367): An Ordinance Amending Ordinance No.08-79,as Amended, Relating to
Public Improvements and Financing Thereof for the Fiscal Year July I,2008 to June 30,2009. AYES:
Council Members Ford, Ikeda,Jacobson,Naeole, Pilago,Yagong,Yoshimoto,and Chair Hoffmann—8;
NOES: None;ABSENT: Council Member Higa— 1; EXCUSED:None.
Ordinance 08-159(Bill 369): An Ordinance Adopting the County of Hawai`i South Kohala Community
Development Plan. AYES: Council Members Ford, Higa, Ikeda,Jacobson,Naeole,Pilago, Yagong,
Yoshimoto,and Chair Hoffmann—9;NOES:None; ABSENT:None; EXCUSED: None.
Ordinance 08-160(Bill 370): An Ordinance Amending Section 25-8-21 (Laupahoehoe-Ninole Zone Map),
Article 8,Chapter 25 (Zoning Code)of the Hawaii County Code 1983 (2005 Edition), by Changing the
District Classification from Single Family Residential— 15,000 Square Feet(RS-15)to Single Family
Residential— 10,000 Square Feet(RS-10)at Manowaiopae,North Hilo,Hawai`i Covered by Tax Map Key
3-6-008:002. AYES: Council Members Ford,Higa, Ikeda,Jacobson,Naeole, Pilago, Yagong, Yoshimoto,
and Chair Hoffmann—9; NOES: None;ABSENT: None; EXCUSED: None.
Ordinance 08-161 (Bill 371): An Ordinance to Amend Ordinance No.08-78, as Amended,the Operating
Budget for the County of Hawai`i for the Fiscal Year Ending June 30,2009. AYES: Council Members
Ford, Higa, Ikeda,Jacobson,Naeole,Pilago, Yagong, Yoshimoto,and Chair Hoffmann—9;NOES:None;
ABSENT:None; EXCUSED: None.
Ordinance 08-162(Bill 372,Draft 2): To Amend Ordinance No. 01-1 18 of the County of Hawai`i,
Relating to Certain Matters Concerning the County's Outstanding Improvement District No. 17, Kaloko
Subdivision,2001 Special Assessment Refunding Bonds. AYES:Council Members Ford,Higa, Ikeda,
Jacobson, Naeole, Pilago, Yagong, Yoshimoto,and Chair Hoffmann—9; NOES: None;ABSENT: None;
EXCUSED: None.
asey Jarman
County Clerk
(Hawai'i Tribune-Herald— December 1,2008)
(West Hawai`i Today — December 1,2008)
Note: The original Digest/Affidavit is attached to Ordinance 08-155.
COUNTY OF HAWAII /.....4!` '• ;..-1.':. • STATE OF HAWAII
BILL NO. 153
ORDINANCE NO. 09 143
AN ORDINANCE AMENDING CHAPTER 25 (ZONING CODE)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. Purpose. Ordinance No. 08-155 amended chapter 25 of the Hawai`i County
Code to include provisions for agricultural tourism. The purpose of this ordinance is to extend
the amnesty period for unpermitted agricultural tourism operations, as included in Ordinance No.
08-155. This ordinance extends the twelve-month amnesty period to eighteen months after the
effective date of Ordinance No. 08-155, which would be May 20, 2010.
SECTION 2. Chapter 25, article 4, division 1, section 25-4-15 of the Hawai`i County
Code 1983 (2005 Edition, as amended), is amended by amending subsections(f) and(g)to read
as follows:
"(f) Any agricultural tourism activity in the A, IA, FA, RA, or APD districts,
existing prior to the effective date of this section and conforming to the
standards contained in section 25-4-15(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.
(g) Any agricultural tourism activity in the A, 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, 2010, and, if an application for a
special permit or a use permit has been received and accepted [within4he
] by May 20, 2010, may continue such use until final
action has been taken on the application. After [
] May 20,2010, or denial of the application,
whichever occurs later, continued use shall be considered illegal under this
chapter."
Planning Dept.
Exhibit 3
SECTION 3. 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 4. 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 5. This ordinance shall take effect upon its approval.
Introduced by:
t4fL, G
COUNCIL MEMBER, COUNTY OF HAWAI`I
Hilo, Hawai`i
Date of Introduction: October 7, 2009
Date of 1st Reading: October 7, 2009
Date of 2nd Reading: October 21, 2009
Effective Date: November 4, 2009
REFERENCE. Coati*
2
OFFICE OF THE COUNTY CLERK
County of Hawai`i
Hilo, Hawai`i RE(J c`VED
introduced By: Donald Ikeda 2004 N+ PLItiCA�lwV4TFn y
Date Introduced. October 7, 2009 AYES 11 NOES ABS EX
(� ; r
First Reading October 7, 2009 Enriques CI_Ew=< X
Published. October 16, 2009 Ford tOUp' t .1 HAMi1
Greenwell X
REMARKS Hoffmann X
Ikeda X
Naeole X
Onishi X
Yagong X
Yoshimoto X
Second Reading. October 21, 2009 7 0 2 0
To Mayor October 29, 2009
Returned. November 4, 2009 ROLL CALL VOTE
Effective. November 4, 2009 AYES NOES ABS EX
Published. November 12, 2009 Enriques X
Ford X
REMARKS. Greenwell X
Hoffmann X
Ikeda X
Naeole X
Onishi X
Yagong X
Yoshimoto X
8 0 1 0
I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council published as
indicated above
APPROVED AS TO 7v10 40
FORM GALI •
COUNCIL CHAIRMAN
D Y CORP•- - ON COUNSEL
COUNTY OF HAWAII
Date
0 CT 3 0 2009 COUNTY CLERK
di(,t Bill No: 153
Reference: C-551/Waived-PC
Approved/Dr.••4 d his day 09 143
J/U
dOrd No.:
o ��. 20
MAYOR, COUNTY OF HAWAII
,F.-Iii!...?:..... ....
COUNTY OF HAWAII •ice'' % STATE OF HAWAII
•r
BILL NO. 266
ORDINANCE NO. (DRAFT 5)
AN ORDINANCE AMENDING CHAPTER 25 (ZONING CODE) 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, subsection 25-1-5(b), Hawai`i County Code 1983
(2005 Edition, as amended), relating to definitions, is amended by amending the definition of
"Agricultural tourism" to read as follows:
""Agricultural tourism", "ag-tourism" and/or"agri-tourism" means [visite..-related
conducted o a] the practice of visiting an agribusiness, horticultural, aquacultural or agricultural
operation, including but not limited to, a farm, orchard, winery, greenhouse, botanical garden,
hunting preserve, an agricultural products processing facility, a companion animal or livestock
show, for the purpose of recreation, education, or active involvement in the operation, other than
as a contractor or employee of the operation. Educational tours conducted for students of public
or private schools shall not be considered agricultural tourism."
SECTION 2. Chapter 25, article 1, subsection 25-1-5(b), Hawai`i County Code 1983
(2005 Edition, as amended), relating to definitions, is amended by adding the following new
definitions to be appropriately inserted and to read as follows:
"Value-added agricultural product," means the increased market value resulting from
processing, transforming, packaging, or marketing.
"Agricultural products," includes, but is not limited to crops, fruit,juice, vegetables,
floriculture products, herbs, honey or other products of an apiary operation, forestry products,
animal husbandry, livestock and livestock products (cattle, sheep, hogs, horses, poultry, milk,
and eggs, etc.), aquaculture products (fish,fish products, algae/limu, water plants and shellfish),
and horticultural specialties (nursery stock, ornamental shrubs,_flowers and Christmas trees).
Planning Dep .
Exhibit 14
"Agriculturally related products" means items sold to attract customers and promote the
sale of agricultural products. Such items include but are not limited to all agricultural and
horticultural products, animal feed, baked goods, ice cream and ice cream based desserts and
beverages,jams,gift items, food stuffs, clothing, coffee mugs, t-shirts and other items promoting
the farm and agriculture in Hawai`i and value-added agricultural products and production on site.
"Non-agriculturally related products" means those items not connected to farming or the
farm operation, such as novelty t-shirts or other clothing, crafts and knick-knacks imported from
other states or countries, etc.
"Agricultural operation" means any operation producing agricultural products.
"Agriculturally related uses" means those activities that predominantly use agricultural
products, buildings or equipment, such as rodeos, horse or pony rides, plant mazes, and
educational events, such as farming, cooking, and food preservation classes, etc.
"Farm market/On farm market/roadside stand" means the sale of agricultural products or
value-added agricultural products, directly to the consumer from a site on a working farm or any
agricultural operation on a parcel of land zoned Agricultural.
"Agricultural tourism, major" means an agriculture tourism operation which shall have a
maximum of seven hundred visitors per week not to exceed thirty thousand visitors annually.
"Agricultural Tourism, minor" means an agricultural tourism operation which shall have a
maximum of three hundred fifty visitors per week for a total not to exceed fifteen thousand
visitors annually that access the activity via passenger vehicles that carry no more than fifteen
people per vehicle.
SECTION 3. Chapter 25, article 2, division 7, section 25-2-71, Hawai`i County Code
1983 (2005 Edition, as amended), is amended to read as follows:
"Section 25-2-71. Applicability; plan approval required.
(a) Plan approval shall be required prior to the construction or installation of any new
structure or development or any addition to an existing structure or development in all
districts except in the RS, RA, FA, A and IA districts, and except for the construction
of one single-family dwelling and accessory dwelling per lot.
(b) Plan approval shall be required in all districts prior to the change of the following
uses in existing buildings:
2
(1) Residential to commercial use;
(2) Warehouse and manufacturing to retail use.
(c) Plan approval shall be required in all applicable districts prior to the construction or
establishment of the following improvements and uses:
(1) Bed and breakfast establishments as permitted under section 25-4-7.
(2) Public uses, structures and buildings and community buildings, as permitted
under section 25-4-11.
(3) Telecommunication antennas and towers, as permitted under section 25-4-12.
(4) Temporary real estate offices and model homes, as permitted under section 25-
4-8.
(5) Utility substations, as authorized under section 25-4-11.
(d) Plan approval shall be required in the RA and FA district prior to the construction or
installation of any new structure or development, or of any addition to an existing
structure or development which is to be used for minor agricultural products
processing.
(e) Plan approval shall be required in the A district prior to the development of any
[trailer park or] major agricultural products processing facility. The director shall
determine whether an agricultural products processing facility shall be considered
major or minor at the time of building permit review, or earlier at the applicant's
request.
(f) Plan approval may be required as a condition of approval of any use permit, variance,
or other action relating to a specific use, in which case the use or development so
conditioned may not be established until plan approval has been secured.
(g) Plan approval shall be required [ : -- • • - • --- - - • - ] prior to the construction
or installation of any new structure or development, or of any addition to an existing
structure or development which is to be used for agricultural tourism activity, as
permitted under section 25-4-15(b)."
3
SECTION 4. Chapter 25, article 2, division 7, section 25-2-75, 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.
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) A statement whether the operation will allow visits by buses[;), vans, and passenger
vehicles;
(2) Adequate 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;
(3) The subject property must have an existing legal access to a public highway, which
may be via a private road or easement, and new driveways shall meet applicable
county or state standards;
(4) New and existing facilities to be utilized principally for the agricultural tourism
activity shall be clearly indicated on the plot plan and shall not exceed one thousand
square feet in total area, not including parking and vehicular accesses; and
(5) Proof, acceptable to the director, of income from agricultural activities and/or
agricultural products processing, or investment, as required under section 25-4-
15(d)(1).
SECTION 5. Chapter 25, article 2, division 7, section 25-2-76, Hawai`i County Code
1983 (2005 Edition, as amended), is amended to read as follows:
"Section 25-2-76. Action on plan approval application.
(a) The director may issue plan approval subject to conditions or changes in the proposal
which, in the director's opinion, are necessary to carry out and further the purposes of
this chapter and the considerations contained in section 25-2- 77.
(b) The director may only issue plan approval for a bed and breakfast establishment if the
proposed use meets all of the conditions contained in sections 25-2- 77 and 25-4-7.
4
(c) The director may only issue plan approval for a telecommunication antenna or tower
if the proposed use meets all of the conditions contained in sections 25-2-77 and
25-4-12, and if the applicant provides all verification required under section 25-2-74.
(d) The director may only issue plan approval for a temporary model home or real estate
office if the proposed use meets all of the conditions in section 25-2-77 and 25-4-8.
(e) The director shalt render a decision to either approve or deny a plan approval
application[, . . . . ' • . . . . ' •- . • ' ,] within thirty days after
acceptance of the completed application. For an agricultural tourism operation, the
planning department shall conduct a site inspection prior to issuing plan approval. [If
. . . . . . . - :• - ]"
SECTION 6. Chapter 25, article 4, division 1, section 25-4-15 Hawai`i County Code 1983
(2005 Edition, as amended), is amended section to be designated section 25-4-15 and 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
plan approval for agricultural tourism 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 state land use
agricultural or rural districts, or a use permit in the state land use urban district.
(d) Agricultural tourism operations shall comply with the following regulations:
5
(1) [ . . . . . . . . ._ . ] Formajor
agricultural tourism, the agricultural activity or agricultural products processing
facility must 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 agricultural
activity or agricultural processing facility will achieve the minimum required
gross sales[;]. Major agricultural tourism operations shall have a maximum of
seven hundred visitors per week not to exceed thirty thousand visitors annually-,
(2) Agricultural tourism activities shall not commence prior to 8:00 a.m. or
continue past 6:00 p.m. daily;
(3) [The] A minor agricultural tourism operation shall have a maximum of[thirty
tom] three hundred fifty visitors per week for a total not to exceed fifteen
thousand visitors annually that access the activity via passenger vehicles that
carry no more than fifteen people per vehicle;
(4) All visitor and employee parking, loading/unloading, and vehicular turn-around
areas shall be located off-street;
(5) [ '- . . . - , • . . . - . . , , • . . . . , • -
•
6
,
• - IO
. . . • - ;]
Gross revenues from agricultural tourism shall:
(A) Not exceed fifty percent of the gross revenues of the associated
agricultural activity and/or agricultural products processing facility,
including revenues from adjacent parcels under the same ownership.
Exceptions to this requirement may be offered by the Planning Director if:
(i) The gross agricultural products/processing income is less than fifty
percent of the total income, the applicant must demonstrate to the
director's satisfaction that the loss in gross revenues for the associated
agricultural activity and/or agricultural products processing facility
was due to unforeseen environmental or economic conditions that did
not occur for more than two consecutive years; or
(ii) Sufficient investment is made in a new agricultural activity or
agricultural products processing facility so a reasonable projection of
that operation's gross revenues from agricultural tourism will not
exceed fifty percent of gross revenues; and
IB) Include the sale of all items derived from the agricultural products grown
or processed by the associated agricultural activity or agricultural
processing facility.
[(7)](6) 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:
7
(A) The items are specifically promotional to 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)](7) 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](8) 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[.-]
(9) A "farm market/on farm market/roadside stand" used solely to sell agricultural
products raised on that parcel of land is exempted from the minimum gross
income requirement or the requirement of plan approval for either major or
minor agricultural tourism, provided that there is sufficient, safe, off-street
parking for vehicles; and
(10) Subsection (c) notwithstanding, agricultural tourism shall be prohibited in any
area which may only be accessed by four-wheel drive vehicles pursuant to
section 24-293.
(e) Any agricultural tourism activity that is not in compliance with the regulations under
section 25-4-15(d) or appropriately permitted as provided by section 25-4-15(c) shall
be considered illegal under this chapter, unless otherwise noted herein.
(f) Compliance and penalties.
(1) Any agricultural tourism activity in the A, IA, FA, RA, or APD districts,existing
prior to the effective date of this section and conforming to the standards
contained in section 25-4-15(d) and that has not received plan approval, may
continue [ . - _ -
. ' _ . . - .] subject to providing proof of
compliance with this chapter and obtaining plan approval within six months from
the effective date of this ordinance.
8
(2) Violation of the agricultural tourism requirements shall be cause to apply the
penalties of article 2, division 3 of this chapter.
(g) Any agricultural tourism activity in the A, 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 for [twelve] p
to six months following the effective date of this ordinance, and, if an application for
a special permit or a use permit has been received and accepted within [the-twelve]
that six month period, may continue such use until final action has been taken on the
application. After [twelve] six months from approval of this ordinance, or denial of
the application, whichever occurs [later,] sooner, continued use shall be considered
illegal under this chapter.
(h) Any agricultural tourism activity 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 that [ ] becomes non-
compliant with the standards of sec. 25-4-15(d) because of an increase in the number
of visitors, shall apply for plan approval or a special permit within six months of the
change that caused the non-compliance, but may continue to operate until a final
decision is made on the plan approval or special permit application.
(j) An agricultural tourism activity [ - - • • - - .. . • ] shall submit
financial records to the director on request to verify compliance and shall maintain a
count of visitors which shall be furnished to the director on request.
(k) The director may use observations of visitor arrivals, including bus traffic, in
estimating whether an agricultural tourism activity complies with sec. 25-4-15(d)(3),
and may require that an activity [allowed-with] obtain plan approval or apply for and
obtain a special permit within six months of written notification based on such
observations. [I„�] During the application process but not exceeding six
months, the activity may continue until a final decision is made on the plan approval
or special permit."
9
SECTION 7. 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 8. In the event that any portion of the ordinance is declared invalid, such
invalidity shall not affect other parts of this ordinance.
SECTION 9. This ordinance shall take effect upon its approval.
INTRODUCED BY:
COUNCIL MEM: ' , COUNT OF HA I`I
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Conon. 745 79
10
'!r,,;
COUNTY OF HAWAII
(•_ � ', '. STATE OF HAWAII
Y/.N'.....
BILL NO. 25
ORDINANCE NO. (DRAFT
�)
AN ORDINANCE AMENDING CHAPTER 25 (ZONING CODE) 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 [ ' ' - - - - •-
. - • . • . . . - . - . --, • -, .
_ '-. . . -- - . . •• : - ' ' .] the practice of visiting an agribusiness, horticultural,
aquacultural or agricultural operation, including but not limited to, a farm, orchard, winery,
greenhouse,hunting preserve, an agricultural products processing facility, a companion animal
or livestock show, 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:
'Value-added agricultural product," means the enhancement or improvement of the
overall value of an agricultural commodity or of an animal or plant product to a higher value.
The enhancement or improvement includes, but is not limited to, marketing, agricultural
processing, transforming, packaging, education presentation, activities, and tours.
"Agricultural products," includes, but is not limited to, crops, fruit,juice, vegetables,
floriculture, herbs, honey, forestry, husbandry, livestock and livestock products (cattle, sheep,
hogs, horses, poultry, milk, eggs, etc.), aquaculture products (fish, fish products, algae/limu,
Planning Dept.
Exhibit,. ._—
water plants, and shellfish), and horticultural specialties (nursery stock, ornamental shrubs,
flowers, and Christmas trees).
"Agriculturally related products" means items sold at a farm market to attract customers
and promote the sale of agricultural products. Such items include, but are not limited to,all
agricultural and horticultural products, animal feed, baked goods, ice cream and ice cream based
desserts and beveragesjams, gift items, food stuffs, clothing, coffee mugs, tee shirts, and other
items promoting the farm and agriculture in Hawai`i and value-added agricultural products and
production on site.
"Non-agriculturally related products" means those items not connected to farming or the
farm operation, such as novelty tee shirts or other clothing, crafts and knick-knacks imported
from other states or countries, etc.
"Agricultural operation" means any operation producing agricultural products.
"Agriculturally related uses" means those activities that predominantly use agricultural
products, buildings or equipment, such as rodeos, horse or pony rides, plant mazes, barn dances,
sleigh/hay rides, and educational events, such as fanning cooking and food preserving classes,
etc.
"Non-agriculturally related uses" means activities that are part of an agricultural tourism
operation's total offerings, but not tied to farming or the farm's buildings, equipment, fields, etc.
Such non-agriculturally related uses include amusement rides, concerts,etc., and are subject to
either special use permits or use permits.
"Farm market/on farm market/roadside stand" means the sale of agricultural products or
value-added agricultural products, directly to the consumer from a site on a working farm or any
agricultural, horticultural, or agribusiness operation on agricultural land.
"Agricultural tourism, major" means an agriculture tourism operation which shall have a
maximum of thirty thousand visitors annually.
"Agricultural tourism, minor" means an agricultural tourism operation which 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."
2
SECTION 3. Chapter 25, article 2, division 7, section 25-2-71 of the Hawai`i County
Code 1983 (2005 Edition, as amended), is amended to read as follows:
"Section 25-2-71. Applicability; plan approval required.
(a) Plan approval shall be required prior to the construction or installation of any new
structure or development or any addition to an existing structure or development in all
districts except in the RS, RA, FA, A and IA districts, and except for the construction
of one single-family dwelling and any accessory buildings per lot.
(b) Plan approval shall be required in all districts prior to the change of the following
uses in existing buildings:
(1) Residential to commercial use;
(2) Warehouse and manufacturing to retail use.
(c) Plan approval shall be required in all applicable districts prior to the construction or
establishment of the following improvements and uses:
(1) Public uses, structures and buildings and community buildings, as permitted
under section 25-4-11.
(2) Telecommunication antennas and towers, as permitted under section 25-4-12.
(3) Temporary real estate offices and model homes, as permitted under section 25-
4-8.
(4) Utility substations, as authorized under section 25-4-11.
(d) Plan approval shall be required in the RA and FA district prior to the construction or
installation of any new structure or development, or of any addition to an existing
structure or development which is to be used for minor agricultural products
processing.
(e) Plan approval shall be required in the A district prior to the development of any trailer
park or major agricultural products processing facility. The director shall determine
whether an agricultural products processing facility shall be considered major or
minor at the time of building permit review, or earlier at the applicant's request.
(f) Plan approval may be required as a condition of approval of any use permit, variance,
or other action relating to a specific use, in which case the use or development so
conditioned may not be established until plan approval has been secured.
3
(g) Plan approval shall be required [ : - . - • . •• • - • - ] prior to the construction
or installation of any new structure or development, or of any addition to an existing
structure or development which is to be used for major agricultural tourism activity,
as permitted under section 25-4-15(b)."
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 major agricultural
tourism.
In addition to the application requirements for plan approval contained in section 25-2-72,
an application for plan approval for major agricultural tourism operations shall include sufficient
information to ensure the following provisions are met:
(1) A statement whether the operation will allow visits by buses;
(2) Adequate 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;
(3) The subject property must have an existing legal access to a public highway, which
may be via a private road or easement, and new driveways shall meet applicable
county or state standards;
(4) New and existing facilities to be utilized principally for the agricultural tourism
activity shall be clearly indicated on the plot plan [. -- - - - - • -
- - • ..•- .. •- - . : . • . - - ]; and
(5) Proof, acceptable to the director, of income from agricultural activities and/or
agricultural products processing, or investment, as required under section 25-4-
15(d)(1)."
4
SECTION 5. Chapter 25, article 2, division 7, section 25-2-76 of the Hawai`i County
Code 1983 (2005 Edition, as amended), is amended to read as follows:
"Section 25-2-76. Action on plan approval application.
(a) The director may issue plan approval subject to conditions or changes in the proposal
which, in the director's opinion, are necessary to carry out and further the purposes of
this chapter and the considerations contained in section 25-2-77.
(b) The director may only issue plan approval for a telecommunication antenna or tower
if the proposed use meets all of the conditions contained in sections 25-2-77 and
25-4-12, and if the applicant provides all verification required under section 25-2-74.
(c) The director may only issue plan approval for a temporary model home or real estate
office if the proposed use meets all of the conditions in section 25-2-77 and 25-4-8.
(d) The director shall render a decision to either approve or deny a plan approval
application[, . • •. . • _ • • . . . • -- . • • ,] within thirty days after
acceptance of the application. If the director fails to render a decision within the
thirty-day period, the application shall be considered approved without further
certification by the director. [- . • - • • • - - • -• - • • , .- - - .- - -
SECTION 6. 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
plan approval for major agricultural tourism and in conformance with section 25-4-
15(d).
5
(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 land use
agricultural or rural districts, or a use permit in the state land use urban district.
(d) Agricultural tourism operations shall comply with the following regulations:
(1) [ - - _ . . . _ " . . .. . - - .
agricultural tourism operations must 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 agricultural activity or agricultural processing facility will
achieve the minimum required gross sales;
(2) Agricultural tourism activities shall not commence prior to 8:00 a.m. or
continue past [6:00 p m dail`;] twenty minutes after sunset as forecasted for
each day by the National Weather Service, and shall comply with chapter 14.
article 3 of this Code and chapter 342F of the Hawai`i Revised Statutes, relating
to noise;
(3) [The] A minor agricultural tourism operation shall have a maximum of[thirty
. . _ . . . ;] 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;
(4) All visitor and employee parking, loading/unloading, and vehicular turn-around
areas shall be located [o€€-meet;] on-site;
( . . . - - .. . - . . , .' , . . • , • -
6
• - . - - - , . • . . .
(5) For major agricultural tourism operations, buses transporting fifteen or more
passengers shall be allowed,provided access to the major agricultural tourism
site is available from a State or County road, or upon approval of the planning
director.
[(-7-)1(6) 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:
(A) The items are specifically promotional to 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;
[(S)](7,) 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
7
[(9)](8) 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.
(e) Any agricultural tourism activity that is not in compliance with the regulations under
section 25-4-15(d) or appropriately permitted as provided by section 25-4-15(c) shall
be considered illegal under this chapter, unless otherwise noted herein.
(f) Any major agricultural tourism activity in the A, IA, FA, RA, or APD districts,
existing prior to the effective date of this section and conforming to the standards
contained in section 25-4-15(d) and that has not received plan approval, may continue
. . . . . . _ ' _ . • . - . - .] subject to providing
proof of compliance with this chapter.
(g) Any agricultural tourism activity in the A, 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,
2010, and, if an application for a special permit or a use permit has been received and
accepted by May 20, 2010, may continue such use until final action has been taken on
the application. After May 20, 2010, or denial of the application, whichever occurs
later, continued use shall be considered illegal under this chapter.
(h) Any agricultural tourism activity 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 that [ 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 [ •• . - • - = • • • - - ] shall submit
financial records to the director on request to verify compliance and shall maintain a
count of visitors which shall be furnished to the director on request.
8
(k) The director may use observations of visitor arrivals, including bus traffic, in
estimating whether an agricultural tourism activity complies with section 25-4-
I5(d)(3), and may require that an activity [allowed with] be required to obtain plan
approval or apply for a special permit based on such observations. In that case, the
activity may continue until a final decision is made on the plan approval or special
permit."
SECTION 7. 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 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.
INTRODUCED BY:
COUN wL MEMBER, COUNTY OF HAWAII
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. _ 73.3
9
OFFICE INFORMATION ONLY
Meeting: Council — August 6, 2014
Action: Postponed to the call of Chair at first reading (Draft 2); never taken back up.
Re: Bill 25; Comm. 73 (2012-2014 term); PC-43 (not adopted)
Countyof Hawaii Planning Department
www.cohplanningdept.com • planning@hawaiicounty.gov
East Hawaii Office• 101 Pauahi Street,Suite 3 • Hilo,Hawai`i 96720
Phone(808)961-8288 • Fax(808)961-8742
\.i.~0'`•
West Hawaii Office • 74-5044 Ane Keohokalole Hwy • Kailua-Kona,Hawaii 96740
Phone(808)323-4770 • Fax(808)327-3563
AGRICULTURAL-BASED COMMERCIAL OPERATION CERTIFICATION
Agricultural-based commercial operations are allowed on all County of Hawai`i zoned lands within the
State Land Use AGRICULTURAL district. Hawaii Revised Statutes(HRS),Chapter 205-2(d)(15)
states:
"d) Agricultural districts shall include:
....(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 Hawai'i and value-added products that
were produced using agricultural products grown in Hawai'i;
(B) Retail activities in an enclosed structure owned and operated by a producer for the display
and sale of agricultural products grown in Hawai'i, value-added products that were
produced using agricultural products grown in Hawai'i, 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 Hawai 7 and value-added products that were produced using
agricultural products grown in Hawai'i.
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 meets the requirements of this paragraph."
CERTIFICATION: I, ,CERTIFY THAT I
HAVE READ THE ABOVE AND THAT THE AGRICULTURAL PRODUCTS
DISPLAYED OR SOLD BY THIS OPERATION MEET THE REQUIREMENTS OF
HRS,CHAPTER 205-2(D)(15). I AM THE AGRICULTURAL PRODUCER WHO
OWNS AND OPERATES THIS AGRICULTURAL-BASED COMMERCIAL
OPERATION. I HAVE A COPY OF THIS SIGNED CERTIFICATION.
Owner/Producer/Operator's Name (print) Owner/Producer/Operator's Signature
TMK: Date:
Phone
number: Email:
If the operator cannot meet the requirements of HRS,205-2(d)(15),a Special Permit is required. Contact
Planning Division staff at(808)961-8288 for additional information about the Special Permit application
process.
(over)
Planning Dept.
Exhibit
Landowner(s): (print)
Landowner(s): (sign)
Location
(Address):
Description of Agricultural-based Commercial Operation(Type of activity;type and size of
structures;days/hours of operation;expected number of vehicles;number of off-street parking stalls,ADA
parking,etc.):
Primary Hawaii-Grown
Agricultural Products Promoted:
Other
Information:
Clearance(To be completed by Planning Department):
SLU: Zoning: Size of Property: District:
0 ALLOWED 0 NOT ALLOWED:SPECIAL PERMIT REQUIRED
Comments:
Planning Department Reviewer:
Date:
Ilcoh33planninglpubliclForms&ReferenceslE-Forms11016 Updated Forms\Ag-Based Commercial Ops Cert
MSWord 9_14_16.doc
Revised 9/14/2016
Agricultural-related Activities: (please answer the following questions on a separate page)
1. Describe in detail,the Agricultural activity you want to operate on your property.
2. Is owner/operator growing or raising Agriculture on the subject property or on other
property owned or leased? List what is grown.
3. Will owner/operator sell what is grown or raised in its raw form? List what will be sold.
4. Will the owner/operator process,package, sell what is grown on the premises?
5. Will owner/operator use what is grown or raised to create a fmished commercial product
that will be sold/served on the premises? List items to be sold.
6. Will owner/operator use what is locally grown or raised by others in creating/serving the
commercial product? List all ingredients.
7. Will the owner/operator need to use ingredients or serve items that are not locally grown?
8. Will owner/operator create and sell value-added products on the premises? List items.
9. Will owner/operator sell logo items related to the ag operations and other food items? List
items.
10. What type of structure will be built for your business operation?
11. Is a retail food establishment permit required from DOH?If Yes, Certification required
that you are in compliance with DOH rules.
12. If proposing Ag-based Commercial Operation what type of operation are you proposing?
FOR STAFF USE ONLY:
Categories:
❑ Determination: Ag-Processing Minor
❑ Determination: Ag-Processing Major
❑ Determination: Ag-Tourism
❑ Determination: Special Permit
❑ Determination: Ag-based Commercial(A) Roadside stand(Sell Ag products grown in
HI&valued- added products using locally-grown)
❑ Determination: Ag-based Commercial(B) Retail activities in Enclosed structure
(Sells Ag products grown in HI,value-added, logo, food)
❑ Determination: Ag-based Commercial(C) Retail Food Establishment(prepare/serve
food in facility approved by DOH)
Ilcoh331p1anninglpublicWorms&References\E-Fonns12016 Updated Forms1.4g-Based Commercial Ops Cert
MSWord9_14_16,doc
Revised 9/14/2016
AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 1, ARTICLE 2, AND
ARTICLE 4 OF THE HAWAII COUNTY CODE 1983 (2016 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 (2016 Edition, as amended), is amended by amending the definition of"Agricultural
tourism".
"Agricultural tourism"means visitor-related commercial activities that includes
agricultural-based commercial operations, tours and[ef] periodic special events designed
to promote agricultural activities conducted on a working farm, ranch, or agricultural
products processing facility.
SECTION 2. Chapter 25, article 1, section 25-1-5, subsection (b) of the Hawai`i County
Code 1983 (2016 Edition, as amended), is amended by adding the following definitions to be
appropriately inserted.
"Agricultural-based commercial operations"occurs on a working farm, and includes:
(A) A roadside stand that is not an enclosed structure for the display and sale of
agricultural products grown on-site and in Hawaii, and value-added products that
were produced using agricultural products grown on-site and in Hawaii;
(B) Retail activities in an enclosed structure for the display and sale of agricultural
products grown on-site and in Hawaii, value-added products that were produced
using agricultural products grown on-site and in Hawai`i, logo items related to the
on-site agricultural operations, and other food items; and
(C) A retail food establishment, permitted under title 11, chapter 12 of the rules of the
department of health that prepares and serves food at retail using products grown
on-site and in Hawai`i, and value-added products that were produced using
agricultural products grown on-site and in Hawaii. This does not include the
serving of meals, which is defined as a restaurant.
"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 to be used for the farming operation.
SECTION 3. Chapter 25, article 2, division 7, section 25-2-71 of the Hawai`i County
Code 1983 (2016 Edition, as amended), is amended to read as follows:
"Section 25-2-71. Applicability; plan approval required.
(a) Plan approval shall be required prior to the construction or installation of any new
structure or development or any addition to an existing structure or development in
all districts except in the RS, RA, FA, A and IA districts, and except for the
Planning Dept.
Exhibit__
construction of one single-family dwelling and any accessory buildings per lot, unless
required elsewhere in this chapter.
(b) Plan approval shall be required in all districts prior to the change of the following uses
in existing buildings:
(1) Residential to commercial use;
(2) Warehouse and manufacturing to retail use.
(c) Plan approval shall be required in all applicable districts prior to the construction or
establishment of the following improvements and uses:
(1) Public uses, structures and buildings and community buildings, as permitted
under section 25-4-11.
(2) Telecommunication antennas and towers, as permitted under section 25-4-12.
(3) Temporary real estate offices and model homes, as permitted under section 25-4-
8.
(4) Utility substations, as authorized under section 25-4-11.
(d) Plan approval shall be required in the RA and FA district prior to the construction or
installation of any new structure or development, or of any addition to an existing
structure or development which is to be used for minor agricultural products
processing.
(e) Plan approval shall be required in the A district prior to the development of any
trailer park or major agricultural products processing facility. The director shall
determine whether an agricultural products processing facility shall be considered
major or minor at the time of building permit review, or earlier at the applicant's
request.
(f) Plan approval may be required as a condition of approval of any use permit, variance,
or other action relating to a specific use, in which case the use or development so
conditioned may not be established until plan approval has been secured.
[ _ . . . . - - - -- . . •- - - - . . . . . •-
activity, a3 permitted under section 25 4 15(b).]
[(h)](g) Plan approval shall be required prior to the construction or installation of any new
structure or development, any enlargement of an existing structure or development, or
alterations to the exterior appearance of any existing structure or development in any
special district established under this chapter for which design guidelines and/or
standards have been adopted and as prescribed by the applicable special district
requirements, excluding any special district having adopted design guidelines and/or
standards established under this chapter prior to adoption of this sub-section."
SECTION 4. Chapter 25, article 2, division 7, section 25-2-75 of the Hawai`i County
Code 1983 (2016 Edition, as amended), is repealed:
"Section 25-2-75. Repealed. [ ' • • • . . . • • • • • ' • •• • • •
• . . .. -. . _ . .. . _, . . - . . . -
. . .. . - . - . .. . •. - .. , • . .• _ . . , • -
• . - -:, . . . . . . . . . . -;
2
(3) The subject property must have an existing legal access to a public highway,
and
(5) Proof, acceptable to the director, of income from agricultural activities and/or
25 4 15(d)(1).]
SECTION 5. Chapter 25, article 4, division 1, section 25-4-15 of the Hawai`i County
Code 1983 (2016 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 . . . . . . . . . •- - - - . ' - - . .] provided the
agricultural tourism operation conforms with section 25-4-15(d).
(c) Agricultural tourism [activitics]operations in A, FA, IA, RA, and APD districts
that do not conform to section 25-4-15(d) shall obtain a special permit[ in tate
: . - _ - -• ,] or a use permit[ :n the state lana , e roan
dot].
(d) Agricultural tourism operations shall comply with the following regulations:
(1)
Amount of Visitors: The agricultural tourism operation shall have a
maximum of-fifteen thousand visitors annually unless allowed by special
permit or use permit;
(2) Hours of operation: 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 director upon a finding there will be no significant
adverse impact on the surrounding neighborhood;
. . . . -,- . . ;]
[(4)1(3)Vehicular accommodation:
3
(A) The subject property shall have an existing legal access to a public
highway, which may be via a private road or easement;
(B) All visitor and employee parking, loading/unloading, and vehicular
turn-around areas shall be located [off street;] on-site, unless
otherwise approved by the director to ensure there will be no
significant adverse impact on the surrounding neighborhood;
[(3-)](4)Size of agricultural-based commercial area: [The total area of spaces,
• :•-: . . , • -:• , - . . , . _ .. ,
. . . • . - . . . . . . . .. - -- ;]The
total area to be utilized for the agricultural-based commercial operations
shall not exceed one thousand square feet. This calculation shall include
covered decks, lanais, tents or canopies, and gazebos, whether newly
constructed or within existing structures, but shall not include parking and
vehicular access areas;
[(6](5) Agricultural tourism gross revenue limitation and exceptions: Gross
revenues from agricultural tourism shall not exceed the gross revenues of
the associated agricultural activity and/or agricultural products processing
facility, provided, however, this provision may be waived if the operator
can provide written evidence to the director's approval that the revenue
from the associated agricultural activity and/or agricultural processing
facility was adversely impacted due to unforeseen environmental or
economic conditions, in which case this exception may be granted for up
to two consecutive years;[including - . . .•- - - .. -- . :
- . - - - - •:, - - - it-can be demonstrated to the director's
not exceed fifty percent of gross revenues, and provided further,that-the
activity or agricultural processing facility;]
[(7)]OSale of agricultural products not grown where the agricultural tourism
operation is established: Sales of agricultural products grown [en-the
island of]in Hawai`i, and processed agricultural products where the main
ingredient was grown [on the island of]in Hawai`i shall be allowed as part
of the agricultural tourism operation[.-];
(7) Incidental sales of non-agricultural promotional items: Incidental sales of
non-agricultural promotional items, including but not limited to, coffee
mugs, tee shirts, etc., shall be permitted provided[:] the items are
specifically promotional to the site's agricultural activities and/or product;
4
items shall be included with the gross revenues from the
agricultural tourism activities;]
(8) Limitation on certain events: Agricultural tourism in the A, FA, IA, and
RA districts shall not include weddings,[ parties,] concerts, 40+passenger
buses, bakeries, restaurants, schools, catered events, or overnight
accommodations, unless allowed by special permit or use permit; [and]
(9) Annual agricultural event permitted: [ • -.- . : - - : . . - ..
basis, are permitted in the A, FA, IA, RA, and APD districts without plan
approval,]One event may be permitted annually, which promotes an
agriculture in the A, FA, IA, RA, and APD districts, if approved by the
director upon a finding there will be no significant adverse impact on the
surrounding neighborhood;
(10) Prohibited locations: Agricultural tourism shall not be permitted in
Waipi`o Valley or in other locations where the property is not
accessible other than by four-wheel drive; and
(11) Termination requirement: Agricultural tourism operations shall
immediately terminate upon cessation of the farming operation.
(e) [ • - . . . . . ' -• . - . '. _
herein.]Any existing agricultural tourism operation that is not in compliance with
section 25-4-15(d)through plan approval or registration, or permitted pursuant to
section 25-4-15(c) through a special permit or a use permit, shall have 90 days
from the effective date of this ordinance to come into compliance with section
25-4-15(d) or the agricultural tourism operation shall be considered illegal under
this chapter.
contained in section 25 4 15(d) and that has not received plan approval, may
-- ., . . . . ' . . - .] Any
existing agricultural tourism operation that has received plan approval prior to the
effective date of this ordinance may continue to operate under the terms and
conditions of the plan approval, or comply with section 25-4-15(d).
[(g) Any agricultural tourism activity in the A, IA, FA, RA, or APD districts, that does
until May 20, 2010, and, if an application fora special permit ora use permit has
5
(h)](g) Any agricultural tourism [activity]operation that is currently operated under a
special permit or use permit may continue to operate under the terms and
conditions of the [special ]permit, or apply to void the [specs-al]permit and[,ire
,] operate under the standards of section 25-4-15(d).
[f =- . . . - . ' -- . . .. . . . - . , . . . - -
(k) - - - -- . - - . - . . . : , - . : -_ . . ,. -
(h) An agricultural tourism operation shall register with the department on a form
prescribed by the director to verify compliance with section 25-4-15(d).
Each operation shall require a processing fee of$100 per location. The director
may request additional information pertinent to the registration of the agricultural
tourism operations provided the requested information is relevant to the
provisions of this section, which may include financial records and/or daily and
yearly visitor counts.
L The director may conduct a site inspection for any proposed agricultural
tourism operation and may make periodic inspections on any agricultural
tourism operation without prior notification, and may require that an
operation apply for a special permit or use permit based on such
observations.
(j„) In the event of any violation of this section, the operator may be fined as provided
in County or State law."
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. Severability. 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
application 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 upon its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAI`I
6
, Hawai`i
Date of Introduction:
Date of 1'Reading:
Date of 2"d Reading:
Effective Date:
7
(Planning Director's Alternative Language) Section 25-1-5. Definitions.
"Agricultural tourism" means visitor-related commercial activities that includes
agricultural-based commercial operations, tours and periodic special events designed to
promote agricultural activities conducted on a working farm, ranch, or agricultural
products processing facility.
"Agricultural-based commercial operations" occurs on a working farm, and includes:
(A) A roadside stand that is not an enclosed structure for the display and sale of
agricultural products grown on-site and in Hawai`i, and value-added products that
were produced using agricultural products grown on-site and in Hawai`i;
(B) Retail activities in an enclosed structure for the display and sale of agricultural
products grown on-site and in Hawai`i, value-added products that were produced
using agricultural products grown on-site and in Hawai`i, logo items related to the
on-site agricultural operations, and other food items; and
(C) A retail food establishment, permitted under title 11, chapter 12 of the rules of the
department of health that prepares and serves food at retail using products grown
on-site and in Hawai`i, and value-added products that were produced using
agricultural products grown on-site and in Hawai`i. This does not include the
serving of meals, which is defined as a restaurant.
"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 to be used for the farming operation.
(Removed)
Section 25-2-71. Applicability; plan approval required.
[(g) Plan approval shall be required [for the establishment of any agricultural tourism
activity as permitted under section 25 4 15(b).]
(Removed)
[- . • . . . . . . . . . . . . • .
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
(1) A statement whether the operation will allow visits by buses;
(2) Adequate off street parking, loading/unloading, and turn around space to
accommodate all specified tour transportation modes, including buses, if they arc
allowed, shall be provided and shown on the site plan;
(3) The subject property must have an existing legal access to a public highway,
which may be via a private road or easement, and new driveways shall meet
applicable county or state standards;
(1) New and existing facilities to be utilized principally for the agricultural tourism
activity shall be clearly indicated on the plot plan and shall not exceed one
thousand square feet in total area, not including parking and vehicular accesses;
and
(5) Proof, acceptable to the director, of income from agricultural activities and/or
agricultural products processing, or investment, as required under section
25 4 15(d)(1).]
"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,
provided the agricultural tourism operation conforms with section 25-4-15(d).
(c) Agricultural tourism operations in A, FA, IA, RA, and APD districts that do not
conform to section 25-4-15(d) shall obtain a special permit or a use permit.
(d) Agricultural tourism operations shall comply with the following regulations:
(1) Amount of Visitors: The agricultural tourism operation shall have a
maximum of-fifteen thousand visitors annually unless allowed by special
permit or use permit;
(2) Hours of operation: 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 director upon a finding there will be no significant
adverse impact on the surrounding neighborhood;
(3) Vehicular accommodation:
(A) The subject property shall have an existing legal access to a public
highway, which may be via a private road or easement;
(B) All visitor and employee parking, loading/unloading, and vehicular
turn-around areas shall be located on-site, unless otherwise
approved by the director to ensure there will be no significant
adverse impact on the surrounding neighborhood;
(4) Size of agricultural-based commercial area: The total area to be utilized
for the agricultural-based commercial operations shall not exceed one
thousand square feet. This calculation shall include covered decks, lanais,
tents or canopies, and gazebos, whether newly constructed or within
existing structures, but shall not include parking and vehicular access
areas;
(5) Agricultural tourism gross revenue limitation and exceptions: Gross
revenues from agricultural tourism shall not exceed the gross revenues of
the associated agricultural activity and/or agricultural products processing
facility, provided, however, this provision may be waived if the operator
can provide written evidence to the director's approval that the revenue
from the associated agricultural activity and/or agricultural processing
facility was adversely impacted due to unforeseen environmental or
economic conditions, in which case this exception may be granted for up
to two consecutive years;
2
(6) Sale of agricultural products not grown where the agricultural tourism
operation is established: Sales of agricultural products grown in Hawai`i,
and processed agricultural products where the main ingredient was grown
in Hawai`i shall be allowed as part of the agricultural tourism operation;
(7) Incidental sales of non-agricultural promotional items: Incidental sales of
non-agricultural promotional items, including but not limited to, coffee
mugs, tee shirts, etc., shall be permitted, provided the items are
specifically promotional to the site's agricultural activities and/or product;
(8) Limitation on certain events: Agricultural tourism in the A, FA, IA, and
RA districts shall not include weddings, concerts, 40+ passenger buses,
bakeries, restaurants, schools, catered events, or overnight
accommodations, unless allowed by special permit or use permit;
(9) Annual agricultural event permitted: One event may be permitted
annually, which promotes agriculture in the A, FA, IA, RA, and APD
districts, if approved by the director upon a finding there will be no
significant adverse impact on the surrounding neighborhood;
(10) Prohibited locations: Agricultural tourism shall not be permitted in
Waipi`o Valley or in other locations where the property is not
accessible other than by four-wheel drive; and
(11) Termination requirement: Agricultural tourism operations shall
immediately terminate upon cessation of the farming operation.
(e) Any existing agricultural tourism operation that is not in compliance with section
25-4-15(d) through plan approval or registration, or permitted pursuant to section
25-4-15(c) through a special permit or a use permit, shall have 90 days from the
effective date of this ordinance to come into compliance with section 25-4-15(d)
or the agricultural tourism operation shall be considered illegal under this chapter.
(f) Any existing agricultural tourism operation that has received plan approval prior
to the effective date of this ordinance may continue to operate under the terms and
conditions of the plan approval, or comply with section 25-4-15(d).
(g) Any agricultural tourism operation that is currently operated under a special
permit or use permit may continue to operate under the terms and conditions of
the permit, or apply to void the permit and operate under the standards of section
25-4-15(d).
(h) An agricultural tourism operation shall register with the department on a form
prescribed by the director to verify compliance with section 25-4-15(d).
Each operation shall require a processing fee of$100 per location. The director
may request additional information pertinent to the registration of the agricultural
tourism operations provided the requested information is relevant to the
provisions of this section, which may include financial records and/or daily and
yearly visitor counts.
(i) The director may conduct a site inspection for any proposed agricultural
tourism operation and may make periodic inspections on any agricultural
tourism operation without prior notification, and may require that an
operation apply for a special permit or use permit based on such
observations.
(j) In the event of any violation of this section, the operator may be fined as provided
in County or State law.
3
(Current) Section 25-1-5. Definitions.
"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.
Section 25-2-71. Applicability; plan approval required.
(g) Plan approval shall be required for the establishment of any agricultural tourism activity, as
permitted under section 25-4-15(b).
Section 25-2-75. Plan approval application requirements for agricultural tourism.
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) A statement whether the operation will allow visits by buses;
(2) Adequate 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;
(3) The subject property must have an existing legal access to a public highway, which may
be via a private road or easement, and new driveways shall meet applicable county or
state standards;
(4) New and existing facilities to be utilized principally for the agricultural tourism activity
shall be clearly indicated on the plot plan and shall not exceed one thousand square feet
in total area, not including parking and vehicular accesses; and
(5) Proof, acceptable to the director, of income from agricultural activities and/or agricultural
products processing, or investment, as required under section 25-4-15(d)(1).
(2008, Ord. No. 08-155, sec. 4.)
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 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 state land use agricultural or
rural districts, or a use permit in the state land use urban district.
(d) Agricultural tourism operations shall comply with the following regulations:
(1) The agricultural activity or agricultural products processing facility must 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 agricultural activity or agricultural
processing facility will achieve the minimum required gross sales;
(2) Agricultural tourism activities shall not commence prior to 8:00 a.m. or continue
past 6:00 p.m. daily;
(3) The agricultural tourism operation shall have a maximum of thirty thousand
visitors annually;
(4) All visitor and employee parking, loading/unloading, and vehicular turn-around
areas shall be located off-street;
(5) The total area of spaces, including covered decks, lanais, tents or canopies, and
gazebos, whether newly constructed or within existing structures, to be utilized
principally for the agricultural tourism activity, but not including parking and
vehicular access areas, shall not exceed one thousand square feet;
(6) 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 made so that it is
reasonable to project that the operation's gross revenues from 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;
(7) 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:
(A) The items are specifically promotional to 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) 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) 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.
(e) Any agricultural tourism activity that is not in compliance with the regulations under
section 25-4-15(d) or appropriately permitted as provided by section 25-4-15(c) shall be
considered illegal under this chapter, unless otherwise noted herein.
(f) Any agricultural tourism activity in the A, IA, FA, RA, or APD districts, existing prior to
the effective date of this section and conforming to the standards contained in section 25-
4-15(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.
(g) Any agricultural tourism activity in the A, 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, 2010,
and, if an application for a special permit or a use permit has been received and accepted
by May 20, 2010, may continue such use until final action has been taken on the
application. After May 20, 2010, or denial of the application, whichever occurs later,
continued use shall be considered illegal under this chapter.
(h) Any agricultural tourism activity 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 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 a special permit, but may continue to operate until a final decision is made
on the special permit application.
(j) An agricultural tourism activity which has received plan approval shall submit financial
records to the director on request to verify compliance and shall maintain a count of
visitors which shall be furnished to the director on request.
(k) The director may use observations of visitor arrivals, including bus traffic, in estimating
whether an agricultural tourism activity complies with section 25-4-15(d)(3), and may
require that an activity allowed with plan approval apply for a special permit based on
such observations. In that case, the activity may continue until a final decision is made on
the special permit.
(2008, Ord. No. 08-155, sec. 9; Am. 2009, Ord. No. 09-143, sec. 2.) 25-4-15
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II
WINDWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
JANUARY 5, 2017
A regularly advertised hearing on County Council Initiated Bill No. 227, Draft 2 was called to
order at 10:33 a.m. in the County of Hawai`i Aupuni Center Conference Room, 101 Pauahi
Street, Hilo, Hawai`i with Chairman Gregory Henkel presiding.
COMMISSIONERS PRESENT: Joseph Clarkson, Donn Dela Cruz, Gregory Henkel, Donald
Ikeda, and Myles Miyasato.
ABSENT & EXCUSED: Raylene Moses.
ALSO PRESENT: Daryn Arai (Deputy Planning Director), Malia Ho (Deputy Corporation
Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager),
Maija Jackson (Staff Planner), Christian Kay(Staff Planner), and Sarah Hata-Finley
(Commission Secretary).
And 5 members from the public in attendance.
INITIATOR: COUNTY COUNCIL (BILL NO. 227, DRAFT 2)
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. The purpose of this
bill is to amend the definition of"agricultural tourism" and include new definitions for
"agricultural products" and "agriculturally-related products"; and defining requirements for plan
approval review of and use regulations for agricultural tourism operations. The County Council
is referring Bill 227, Draft 2 to the Planning Director and the Windward and Leeward Planning
Commissions for comment and recommendations.
HENKEL: So, the next agenda item is initiated by the County Council, Bill No. 227, Draft 2,
and it looks like Jeff is going to make the presentation.
DARROW: Happy New Year.
COMMISSIONERS: Happy New Year.
DARROW: I have to apologize. Our next presentation is going to be quite wordy, so I
apologize for that, up front. I will try to do as thorough of a job as I can so that it will eliminate
as many questions as possible.
But, with that, as mentioned, our next applicant actually is initiated by [the] County Council. It's
an amendment to our Zoning Code, Chapter 25, relating to agricultural tourism. If I can begin
with a brief chronological background of what's occurred with agricultural tourism not only here
in the County, but in the State.
1
In 2008, the Hawaii County Council adopted Ordinance 08-155. This ordinance was created to
define and regulate agricultural tourism in Hawaii County in response to the Hawaii Revised
Statutes, Sections 205-2, Subsection 11 and 205-4.5, Subsection 13, which both state the
following. 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. Emphasis added.
My understanding is Hawaii County is the only county that has adopted an ordinance, so
currently agricultural tourism is, should be only permitted in Hawaii County.
[Section] 205-5 states the following. Within agricultural districts, uses compatible to the
activities described in Section 205-2 as determined by the commission shall be permitted;
provided that accessory agricultural uses and services described in Sections 205-2 and 205-4.5
may be further defined by each county by zoning ordinance. This is, this next section applies to
ag tourism. Each county shall adopt ordinances setting forth procedures and requirements,
including provisions for enforcement, penalties, and administrative oversight, for the review and
permitting of agricultural tourism uses and activities as an accessory use on a working farm, or
farming operation as defined in Section 165-2.
These additional provisions that need to be included in the ordinance are the following. They
need to have requirements for access to a farm including road width, road surface, and parking.
Requirements and restrictions of accessory facilities connected with the farming operation,
including gift shops and restaurants. Activities that may be offered by the farming operation for
visitors. Days and hours of operation, and automatic termination of accessory use upon the
cessation of the farming operation. So, this Ordinance 08-155 was—was adopted in 2008 by the
Hawaii County Council. It is within our Zoning Code under Section 25-4-15 relating to
agricultural tourism.
In 2009, there was a minor change that occurred to the ordinance, and this was Ordinance 09-
143, and the purpose of that was to extend the amnesty period for unpermitted agricultural
operations included in Ordinance 08-155 from November 20, 2009 to May 30, 2010.
In 2012, our Planning Director initiated an amendment to the Zoning Code relating to
agricultural tourism. The Planning Director's proposed amendment was presented before the
Windward and Leeward Planning Commissions, who both forwarded a favorable
recommendation to the Hawaii County Council. Council Member Pete Hoffman introduced
Bill 266, Draft 1 in 2012. Over the course of about one year, Bill 266 went through five different
drafts.
And then at—Bill 266, Draft 5 is included within your Background as Exhibit No. 4. This
particular bill introduced the terms minor and major agricultural tourism. So, that term is used
quite frequently although it's never been adopted.
2
In, on January 8, 2013, the Council's Planning Committee voted to forward a negative
recommendation on Bill 266, Draft 5. On January 23, 2013, the County Council voted to
postpone indefinitely Bill No. 266, Draft 5 in order to allow the Council to introduce an
alternative bill, No. 25, Draft 2. And, this is Exhibit No. 5 within your Background.
The bill was presented before the Windward and Leeward Planning Commissions who both
forwarded a favorable recommendation to the Hawaii County Council. Bill 25, Draft 2 was
postponed to the call of the chair on August 6, 2014, and was never taken back up at Council.
So, that brings us to today. So, we—the Hawaii County Council initiated Bill 227 and has sent
down Draft 2 to the Planning Commissions, to the Planning Director. The Planning Director
reviewed it. These are some of the key points of Bill 227, Draft 2. It attempts to make the
permitting process less burdensome by providing changes to the plan approval section to only
require applicants to submit plan approval prior to construction or installation of a new structure
or for any addition to an existing structure that exceeds ten percent of the existing structure.
Additionally, the bill offers an option to the applicant to request a waiver from the Planning
Director from the requirement of a site drainage plan upon providing evidence to the Director's
satisfaction that there would be no significant run-off resulting from the proposed development.
Lastly, Bill 277, Draft 2 creates a yearly registration process along with a$100 processing fee,
which includes submitting financial records and a daily visitor count annually.
These are some of the key points of Bill 227, Draft 2. The, there have been changes to the
agricultural tourism definition to include agricultural based commercial operations. This is a use
that was permitted by the Hawaii State Legislature, and it allows roadside stands, retail
structures, as well as food establishment, food establishments as part of an agricultural use as
long as they're using locally grown or items produced locally within those particular structures.
The problem with our County is, is that it's not clear that, it wasn't clear in the bill that this needs
to be directly related to a working farm as is, as—it is clear that agricultural tourism was to be
connected to a working farm. So, the attempt here is to be able to tie these into together so that
they would be both connected to a working farm.
Also, within the definition, it was, there was a section that did not include educational tours
sponsored, conducted by public and private schools located within the County. This was a little
unclear, but we think the reasoning was is that that's permitted already under State law. So, they
were just trying to separate them. There's agricultural education tours and there's agricultural
tourism.
Additionally, there was new added definitions for agricultural products and agriculturally related
product, projects. And, again, as we mentioned previously, the Plan Approval Section changed
so that not all operations have to submit Plan Approval, but just those that do a new structure or
changes to an existing structure that it exceeds ten percent.
Additionally, there were changes to the requirements of information to be provided, and Plan
Approval which included in allow on-street parking, if adequate; deleting the 1,000-square foot
3
limit for facilities principally utilized for the agricultural tourism activity; and adding an
allowance to request a waiver from the Planning Director for the requirement for the site
drainage plan upon certain circumstances.
Within our agricultural tourism Section 25-4-15, they, the bill removes the requirement to
provide evidence of a minimum of$10,000 in variable [sic] verifiable gross sales. There right
now currently is a minimum of agricultural gross sales that the farm needs to be producing.
That's been eliminated, and instead of that, what you would have is just simply the agricultural
products that are created on the property. The gross revenue has to be more than the gross
revenue of the agricultural tourism activities.
It reduced the maximum amount of visitors allowed before requiring a Special Permit or a Use
Permit from 30,000 to 10,000 visitors.
Hours of operation were changed. Currently it's 8 a.m. to 6 p.m. The proposal was sunrise to 6
p.m. daily unless otherwise approved by the Planning Commission. So, that was a unique
circumstance. To just bring this request to the Planning Commission to change hours on an
operation that may not have actually been approved originally through a Use Permit or a Special
Permit.
Added requirement to provide adequate road and site access for fire, ambulance, police, and
other vehicles related to emergency response.
The deletion of the 1,000-square foot limit for facilities utilized principally for the agricultural
tourism business.
Continuing on, changes to the waiver process that we had spoke about regarding—oh—this is a
little different. If the actual agricultural operation is having difficulty meeting that, that gross
requirement of having gross sales from the ag products being more than the ag tourism, they can
actually ask for a waiver for a period of time from the Director.
It also in, added this section that prohibits agricultural tourism in Waipi`o Valley or where the
property is only accessible by 4-wheel drive.
It extends compliance from July 1st, 2017 to—I'm sorry, it extends the compliance deadline to
July Pt, so if there's any non-compliant ag tourism operations, they have till July Pt, 2017, to
comply. And, again, we mentioned the yearly registration process where they have to submit
financial records and daily visitor counts.
They added a section to allow the Director to conduct a site inspection without prior notification.
And, lastly, a section for enforcement for violations that occur regarding this section.
The Planning Director has reviewed Bill 227, Draft 2, and is forwarding an unfavorable
recommendation. The Planning Director is generally in favor of the overall direction of Bill 227,
Draft 2 in attempting to be defined by the bill which is to make the permitting process less
4
restrictive and less burdensome for the agricultural tourism operations, but issues this
unfavorable recommendation based on the need for further clarification and changes within the
bill that are structurally significant from that represented in the bill.
Basically, what that means is we could have requested an amendment to Bill 227, Draft 2, and
sent it up as a request to amend that bill. Our alternative language is so significant that it would
actually require to be a new bill. We struggled whether or not to send up a new bill, but we
decided not to because of the fact that when we look back at our history, our chronological
history of ag tourism, there's been such a difficulty in passing an ordinance because they're
having a hard time finding a middle ground to be able to create a new ordinance. So, what the
Planning Director is proposing is sending up alternative language in the form similar to a bill as a
starting ground. Look, we like the way this is going. Here's some proposals. This is, we think
this is a good start. As you go through the process maybe those changes can be added in, and a
new bill can be created so it may not end up with five drafts or whatever happened previously.
Additionally, the Planning Director, again, is offering alternative language and is suggesting
even to further simplify the process by deleting all together the requirement for Plan Approval
and to have agricultural tourism operations be required to register one time instead of a yearly
registration.
When we look back on, since 2008, there's been a requirement in place for all ag tourism
operations to either submit Plan Approval or if they've exceeded those limits, to come in before
the Planning Commission with a Special Permit or a Use Permit. We've had two people come in
in eight years. So, obviously, what we're doing isn't working. So, and—and some of the
feedback we're getting is that the Plan Approval process is just too difficult for the average ag
tourism operation, especially the site drainage plan. And, that's why this request for the waiver,
but there are other portions that are also difficult for them.
We think the registration process is a good idea. If we try to get them to do it yearly, we don't
think we're gonna have any more success than we did previously. But, if we have them come in
simply one time a year or once and then possible propose that if there's any significant changes,
they come back in, then we think that might have better success.
This registry form that we're talking about will have questions to verify compliance with the
standards and guidelines of the agricultural tourism operation as listed in 25-4-15(d) but will also
have questions currently listed on the Department's Agricultural-Based Commercial Operation
Certification Form and that is our Planning Department's Exhibit 6 for reference. So, again,
we're going to be trying to get all the information that we can relative to these agricultural
tourism operations through this registry form.
Similar to the current permitting process, if an agricultural tourism operations goes beyond the
limits, the operations will need to submit for a Special Permit or a Use Permit, which can be
determined through the information submitted in the registration form, or a complaint is received
and we go out and conduct a site inspection and find out that they have exceeded those limits and
need to come in.
5
The other thing I might mention is we've only received one complaint in the eight years relative
to agricultural tourism, and that happened to be in a residential zone property which it's not even
allowed, so.
Okay, so these are some of the changes that are proposed in the alternative language, and I'll just
run through these. We're almost done.
We are—we like the idea of adding in agricultural based commercial operations as part of ag
tourism so that's been included. We took out that confusion regarding the educational tours.
Just left that separate.
We've added in the definition of agricultural based commercial operations, and we've kind of
refined it a little bit more than what [the] State defines it as just so that it's clear it needs to be
connected to a working farm and that products grown on the property as well as products grown
in Hawaii can be sold as part of that.
We've deleted the entire Plan Approval section for agricultural tourism, and in the agricultural
tourism, some of these are very similar to Bill 227, Draft 2 including the removal of the 10,000
limit. We're going with the idea, again, the gross sales of the ag products exceeds the gross sales
of agricultural tourism activities.
Maximum amount of visitors instead of 30-30,000 to 10,000, we feel that 30,000 to 15[000]
might be a more appropriate number. If they exceed 15,000 visitors a year, they'll need to come
in for a Special Permit or a Use Permit.
Hours of operation. If they decide they want to revise that or change that instead of going to the
Planning Commission, they would request the Planning Director upon a finding that there will be
no significant adverse impact on surrounding neighborhoods.
Instead of the requirement that was in Bill 227, Draft 2 for access, we've kept the existing
language that we have where they have to provide, they have an existing legal access to a public
highway which may be via a private road or easement. And, again, this was previously a
requirement they had to submit as part of Plan Approval.
Instead of the, there was, Bill 227, Draft 2 had quite a long period of time you could request a
waiver. Up to nine years in certain circumstances. We feel that might be a bit too much. We'd
like to keep it at the two years because basically, the whole point of it is you have to have a
working farm to have agricultural tourism. If you're asking for a waiver, you know, from that
unbalance, then something's not right there. We'll allow that to be able to come into place, but
not for a long period of time. We feel it's, they really need to have that working farm as primary
principal and the ag tourism as secondary and accessory.
Let's see. We've added in a change. In the current Zoning Code, it allows for products,
agricultural products grown in—we've added to allow agricultural products grown in Hawaii
and processed agriculture products where the main ingredient was grown in Hawaii instead of
grown only on the Island of Hawaii which is in the current bill now.
6
We have kept in this prohibition of agricultural tourism in Waipi`o Valley and also the 4-wheel
drive access, and the reason why is through this process, we've met with different parties in
relation to this, and there was a strong request to keep that in going up to Council. Up at
Council, they can either keep it in or take it out,but at this point, they're asking to try to keep
that in it at this time.
We've, instead of putting a time frame on the time to become compliant if you're non-compliant,
we just said 90 days from the effective date of whatever ordinance or if an ordinance is
approved. So, they'll need to, they'll have 90 days to come into compliance.
We've added sections within this section that are currently permitted through Plan Approval,
Special Permit, or Use Permit. So, what that means is there are certain things that you are
required to receive. Let's say you want to do a restaurant. A restaurant is not permitted. You
have to get a Special Permit. So, we have certain uses that are listed in there that you can do
with agricultural tourism, but you need a Special Permit. Overnight accommodations is one that
always seems to come up. The Plan Approval comes up because some of these are located
within commercial industrial zoning and instead of a Special Permit or a Use Permit, it would go
to Plan Approval.
We've added in the addition of the registration but only one time and if we feel there's a need,
we can ask for the additional information. We're not asking them, each one of them, to submit.
In our conversations with other agencies, we heard that dealing with financial records was very,
very difficult, and so it's something we shouldn't try to take on, because I don't think any of us
are experts, you know, on tax forms or finances or anything.
We've added a section for the Director to conduct, the similar section as proposed where they
can conduct site inspections without prior notice. We get a complaint, we go out. We take a
look at it.
And, lastly, we've added in a section. We've toned it down a bit the way that it was in Bill 227,
Draft 2 is that they were being specific, but both HRS and our County Code have specific
requirements for enforcement, so depending on where it occurs and what property, we need to
look at what sections of enforcement would apply.
Anyway, that concludes our presentation. Hopefully, we've answered all your questions, but I
stand ready to answer if you have any.
HENKEL: Jeff, I have a question. The way I understand it, the $10,000 revenue threshold has
been eliminated for the ag income.
DARROW: Right.
HENKEL: What about, does the ag income still have to exceed the ag tourism income?
DARROW: Yes.
7
HENKEL: What if the ag—I mean, I can think of an instance. What if you were running a
nursery that produces native species for reforestation where it was kind of a non-profit entity?
DARROW: I—if that's an agricultural tourism operation and they're coming to see the nursery
as being the agricultural working farm or whatever you want to call it, that would, the nursery
would exceed the agricultural tourism aspect of it. So, you wouldn't count that as the
agricultural tourism.
A good example of that is currently in our Code. They allow for agricultural processing facilities
to be the primary agricultural activity, and then the visitors would be accessory to that. So, even
the processing facility would be considered part of the agricultural gross revenue. So, that would
be similar in that case I would think. But, I don't recall ever, I mean again, we've only had two
operations come in.
HENKEL: In any case, the worse scenario would be that someone would have to get a Special
Use Permit if they deviated from it.
DARROW: Yeah. Yeah, if they don't, if there's any question, and what will be happening is
that one of our divisions will be reviewing that regis—that registration form. If they feel that
they've exceeded the limits that are allowed under the, if this gets passed, then they will be asked
to come in for a Special Permit or a Use Permit.
HENKEL: Does anyone else have any questions for staff?
CLARKSON: Yeah, what was the one complaint about?
DARROW: This was a, believe it or not, it was, I won't mention the name, but it was a coffee
farm, and it was being conducted in a residential zoning, and it was kind of well known. It was
actually on, like they did TV shows on it and what was happening was buses and everything
were coming up to the property and so it was basically the impacts that were being generated in
the residential zoning of the activities that were occurring.
Before I conclude, I wanted to mention, too, that we did receive a letter from Cory Harden after
the Background and Recommendation were distributed to the Commission. Additionally, this
morning,just for further clarification, it can be difficult to read the Ramseyer's version, so what I
have done is passed out one of the current Code sections having to do with the definitions, Plan
Approval, and agricultural tourism, as well as the Planning Director's proposal alternative
language, so you can kind of compare them with each other and be able to see the differences.
It's a little easier than trying to do it with the Ramseyer version. Anyway, thank you.
HENKEL: Thank you, Jeff Now, being at County Council, they're the initiator, there's no one
here representing them to, so we'll move right on to the, into the public testimony portion if no
one else has any questions for Jeff Darrow.
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Okay, we have one person signed up. Cory Harden, would you come up, please? And, would
you raise your right hand? Do you swear or affirm to tell the truth on this matter before the
Planning Commission?
HARDEN: Yes.
HENKEL: Thank you. You have—I'll give you a little more time. You're the only one, and I
noticed that the thing you submitted was a little bit lengthy so five minutes? Is that enough?
HARDEN: I don't, I don't talk that much, so, anyway, so, do want to first thank you folks for
your service on the Commission. And, I'm speaking for Sierra Club, Moku Loa Group, and we
support agricultural tourism, but we really would like to see it encouraging agriculture more than
tourism.
You also want to see neighbors' interest protected, and health and safety protected. So, much of
what I said about Bill 227 also applies to the current situation, and I'll just go through some
highlights. You guys already have enough to read on this thing. And, since, the other counties
haven't done any ag tourism regulations yet, whatever we do here may set a precedence for the
other counties, so I'm glad that people are really taking time to think about it.
So,just kind of some highlights. I looked at a checklist and it said, have people thought about if
staff have a way to contact other staff on a large property in case of some emergency with
visitors coming on who don't really know how to act on a farm. Are guests told not to eat
produce that hasn't been washed, because they might not know anything about rat lungworm
disease? If there's a whole lot of guests coming, are there people out directing traffic? Like,
sometimes, there's annual events where a lot of people come and what happens with the traffic.
Road access can be a problem if you have some of these, you know, gravel roads out in Puna
someplace that are barely hanging together. And, then you have buses and vans and a lot of
visitors coming that can put wear and tear on the road, and then the neighborhood association
goes hey, you put all this wear and tear. Then, there's a disagreement about who actually put the
wear and tear on, who has to repair it.
So, we're saying, no private road access unless the agriculture operations only entire road, or
they have an easement for the ag tourism operation on the road.
Other events we'd like to see not allowed are musical events, dances, mechanical amusement
rides, dirt bikes, all-terrain vehicles and other off-road motor vehicles, and hunting with guns.
Perhaps hunting without guns would be okay, but, you know, you got the noise and so forth.
If the County does not approve in 60 days, we'd like to see automatic denial, not automatic
approval. It's too easy to get bad projects through if the County Planning doesn't have time to
look at it.
9
We'd like to see fees and fines that are enough to fund enforcement `cause the Planning
Department, is always, you know, has difficulty with enough resources to handle all the stuff
they are asked to handle.
We'd also like to see limited number and size of ag tourism operations in each neighborhood so
a neighbor doesn't get overwhelmed with a lot or a huge operation. The noise from the ag
tourism should not go pass the property line. Animals should be kept safely and humanely and
confined so it's safe so they can't get out and hurt anybody.
We're also concerned about neighbors' property taxes going up `cause you have the ag tourism,
the land's more valuable and the surrounding property there, the value in taxes go up. And, we
would like to see a way to avoid a rise in farmland prices if the ag tourism people are buying up
a lot of land. And, we'd like to see the operator of the ag tourism business be the owner,
operator, or occupant of the farm, not have people from far away making decisions.
So, okay, you've got plenty to read and think about, so thank you.
HENKEL: Thank you, Cory. Are there any questions for the testifier from the Commission?
Thank you. You may be seated. Is there anybody else that would like to testify? If so, sign up.
Okay, then, we can look for a motion to close public testimony.
IKEDA: Move to close public testimony.
MIYASATO: Second.
HENKEL: It's been moved by Commissioner Ikeda and seconded by Commissioner Miyasato
to close public testimony. All in favor say aye.
COMMISSIONERS: Aye.
HENKEL: Opposed? Public testimony is closed. Any discussion? I—I feel that, you know, the
future of agriculture on the Big Island is important, and it is going to grow. It's bound to grow as
shipping costs increase and so forth. We, you know, we've got all this ag land. And, I look at ag
tourism as a way to kind of stimulate the growth of agriculture, but I, I like what Council and the
Planning Director are trying to do to simplify it, and I'd like to see it as an entrepreneurial
opportunity for smaller individuals to make a living in tourism that relates to what we're doing.
But, I also see the need to make it safe. So, that's all I—I like the idea that Cory brought up
about a 60-day automatic denial. Is that something we can add as a recommendation if we
decide that we like that?
DARROW: Maybe if you can expound 60-day automatic denial on?
HENKEL: If the, if the Council, I guess is it—Cory pointed out that right now, if the Council
doesn't act on an introduced bill within 60 days, it's automatically approved?
DARROW: I'm—I have no idea.
10
HENKEL: Do you—can you help me out, Malia?
DARROW: I don't think that—
HO:
hatHO: Yeah, that's a, we can't really change that. Those are Council rules, but yeah, they have,
basically if they don't act, but they also are very aware of like if they don't act on approving—I
think this is for the bill, though. I don't know if this would be—I didn't, haven't read the, if this
would be actually in 227 or not.
HENKEL: Daryn?
ARAI: I'm not sure, but normally on Council initiated bills, when the Commission has, the
Director has a 120 days in order to bring the matter, offer his recommendation or her
recommendation to the Planning Commission which then conducts the hearing. Once the
hearing is held, I think they had 60 days if I remember correctly to make its recommendation so
we need to check our rules, but I think that's how it was structured. We do have certain time
limits in which to act and make a response back to the County Council. We cannot simply drag
it on. So, we can verify the actual days, but there was—but as it stands right now, you're in good
standing obviously, but if there's any reason to that you think you're going to ask for a
continuance of this particular matter, then we'll need to double check to make sure you operated
within those prescribed timeframes.
HENKEL: Okay, and for clarification, we're looking for a favorable recommendation or an
unfavorable recommendation for the Council, and the Planning Director has recommended
against, unfavorable.
DARROW: Correct. And, again, with that unfavorable recommendation, we are forwarding
alternative language, suggestive language that they could consider.
HENKEL: Thank you. Yes?
CLARKSON: I have a question. Considering that there's been so little interaction but so few
complaints, so few applications, where is the motivation for changing the original ordinance
coming from? And, I mean, even a speculation as to, you know, why it's happening. Is this just
a language clean up? Is this somebody on the Council has got concerns? If so, what are they?
DARROW: Well, this particular bill was initiated by Council Member Margaret Wille, and as
far as her, I mean, in testimony, she had said that her goal was to simplify the process to make
the permitting process easier for current agricultural operations to comply with because, as
mentioned, because only two have come in, that means the remainder of them are actually non-
compliant with the current Code. So, that's, I believe the goal is to make it so that it's an easier
process and to achieve compliance.
HENKEL: Any more comments? Then, I'll look for a motion to action. I'm sorry, did I close
public testimony? Did we close? Okay. Sorry.
11
MIYASATO: Chair, I'll make a motion. You know, I agree with a lot of your comments, and
I'll make a motion. I move that an unfavorable recommendation be forward to the County
Council on Bill 227, Draft 2 based on the Planning Director's recommendations that Bill 227,
Draft 2 needs further clarification and changes and proposed alternative language which shall be
adopted.
IKEDA: Second.
HENKEL: It's been moved by Commissioner Miyasato; seconded by Commissioner Ikeda for
an unfavorable recommendation. Would you do a roll call vote?
DARROW: Thank you, Mr. Chairman. With that, we'll take the roll call. Commissioner
Miyasato?
MIYASATO: Aye.
DARROW: Commissioner Ikeda?
IKEDA: Aye.
DARROW: Commissioner Clarkson?
CLARKSON: Aye.
DARROW: Commissioner Dela Cruz?
DELA CRUZ: Aye.
DARROW: And Mr. Chairman.
HENKEL: Aye.
DARROW: The motion passes five to zero.
The discussion ended at 11:15 a.m.
Respectfully submitted,
Sarah Y. Hata-Finley, Secretary
Windward Planning Commission
12
LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
JANUARY 19, 2017
A regularly advertised hearing on the COUNTY COUNCIL INITIATED AMENDMENT TO
CHAPTER 25 OF THE HAWAII COUNTY CODE,RELATING TO AGRICULTURAL
TOURISM was called to order at 9:33 a.m. in the West Hawai`i Civic Center, Community
Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairman
Keith F. Unger presiding.
COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Scott Church,
Collin Kaholo, Perry Kealoha, Barbara Nobriga and Sonny Shimaoka
ALSO PRESENT: Malia Ho (Counsel for the Commission), Daryn Arai(Deputy Planning
Director), Jeff Darrow(Planning Program Manager) and Noriko Sauer(Commission Secretary)
And four people from the public in attendance.
INITIATOR: COUNTY COUNCIL (BILL NO. 227, DRAFT 2)
An Ordinance amending Chapter 25, Article 1, Article 2, and Article 4 of the Hawai`i County
Code 1983 (2005 Edition, as amended), relating to Agricultural Tourism. The purpose of this bill
is to amend the definition of"agricultural tourism" and include new definitions for"agricultural
products" and "agriculturally-related products"; and defining requirements for plan approval
review of and use regulations for agricultural tourism operations. The County Council is referring
Bill 227, Draft 2 to the Planning Director and the Windward and Leeward Planning Commissions
for comment and recommendations.
UNGER: First item on the agenda. New Business, Initiator County Council, Bill No. 227, Draft
2, 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. The purpose of this bill is
to amend the definition of"agricultural tourism" and include new definitions for"agricultural
products" and "agriculturally-related products," and defining requirements for Plan Approval
review of and use regulations for agricultural tourism operations. The County Council is referring
Bill 227, Draft 2, to the Planning Director and the Windward and Leeward Planning Commissions
for comment and recommendations.
Normally, at this time in our procedure we ask for the County to make their presentation. We
have a special request from a member of the public to be able to present her testimony first, and
we would like to allow that at this time. So if you would come forward and introduce yourself, we
can hear your testimony.
PALMA-GLENN IE: Aloha. Good morning.
UNGER: Do you swear or affirm to tell the truth before the Planning Commission?
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PALMA-GLENNIE: Yes, I do.
UNGER: Please state your name and your residence.
PALMA-GLENNIE: My name is Janice Palma-Glennie and I live—would you like my address or
just—I'm from Keauhou.
UNGER: That's fine. You may proceed.
PALMA-GLENNIE: Okay. Thank you. Aloha, Commission members. As background, I'm a
40-year Hawai`i resident with 30-plus years in agriculture-related business in Kona.
I've gone from giving positive input for maybe five years on ag tourism legislation to feeling like
there's little hope that my representatives are really hearing people who have already suffered, and
will continue to suffer more widely and deeply, if farmers and those not involved in potential ag
tourism continue to be left out of weak legislation. Even Ms. Wille's bill and part or mostly this
draft is still extremely unprotective.
The problems with so-called"ag tourism" that people like my neighbors and my `ohana have
experienced are being ignored by this bill. We've lived through and fought fake ag tourism that's
noisy,has nothing to do with real farmers and has been allowed to continue by County and State
agencies who have, except for we're talking about some other things in the positive, from my best
of knowledge, refused to come to our aid, even when lawsuits proves that those activities were
illegal. This body has already heard those tales. But here I am again.
"The visitor industry, or tourism, continues to grow as a major element in the economy of Hawai`i
County," so states this bill—I had a little trouble understanding the document, so if I get
something wrong, that isn't because I didn't try—and that is front and center. Yes, but this, but is
the goal of ag tourism to protect farming or increase tourism?
"The failure to define and regulate agricultural tourism in Hawaii County has already resulted in
complaints from surrounding property owners and residents due to excessive noise and unsafe
traffic conditions." Indeed. But this bill does little and even less to protect surrounding property
owners and the environment, especially since ironclad enforcement continues to be missing.
"Eliminate the need for a site inspection prior to the issuance of final Plan Approval for a `major'
ag tourism operation." And instead of providing a daily visitor count, minor ag tourism apparently
allows 350 visitors per week; that's 200 for one day and 150 the next or maybe 350 in one day.
Or, because I did find this bill difficult to understand, is it 100 visitors per week but still lacking
daily limits? Either way, the public has asked over and over again I don't know how many time
for how many years-- for a daily limit for minor ag at least and for no more than five days a week
operation. This bill ignores those relentless requests.
Six a.m. instead of 8:00 a.m. visitors and noise when it could still be dark? And the most nebulous
and unenforceable of guidelines: "20 minutes after sunset." Busses,jet-lagged tourists talking in
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outdoor voices on cell phones to their mainland friends while real working people are still
sleeping? And, by the way, who does one call at 5:45 a.m. or 25 minutes after sunset to enforce
these regulations? And I can tell you from experience, no one.
No permits except for structures?
The bill we are looking at is full of the holes the public has tried to fill for years rules that would
protect agriculture, ag lands, neighbors, and the natural environment.
My neighbors and I complained when so-called"garden tours" were taking place in our ag
subdivision. It took a costly, wasteful lawsuit to stop the intrusive activities. My other friends
weren't so lucky; they won several lawsuits, including an appeal, against a so-called"ag tour
operation" in their ag neighborhood. Yet, over a decade later, that property is still being used as a
hotel, wedding and events venue. Our friends ended up selling their dream retirement home and
viable farm instead of continuing to endure the illegal intrusions that were ignored by government
agencies.
And you don't need to reinvent the wheel. A Sierra Club testimony stated to the Windward
Commission, the County can check integrating safety into agri tourism checklist. Two hundred-
plus items that continue to be missing from our County's ag tourism bills. And as we've asked
again and again, please:
• Add daily visitor counts, not weekly;
• Don't depend upon the honor system to prevent intrusive noise or anything else. That
only works for those who already follow the rules;
• Strike wording that allows extended hours under any circumstances. There is no one to
call 25 minutes or two hours after sunset when the band plays on or ATVs go round and
round under bright lights that keep neighbors awake and disorient the endangered `io that
take shelter in trees;
• Don't pit neighbor against neighbor by asking them to snitch on each other. Not only isn't
it pono, it's a strategy that can lead to long-term bad blood and even violence—and I have
been threatened;
• Don't leave residents to squabble over shared easements like driveways because of a bad
law that creates an untenable situation that didn't previously exit;
• Add wording that requires the County to undertake frequent, random visits, site visits, to
ag tourism operations to insure compliance with the law. The bill should read, "There
shall be a minimum of one unannounced, random visit each year and more, if there are
complaints or reason to believe violations are taking place";
• Create restrictions that make the noise of ag operations undetectable to neighbors;
• "May"s are not enough. "Shall" is the acceptable language to be used in this bill, or any
bill;
• A fine of a thousand dollars would be a slap on the wrist for some operators. A thousand
dollars per day is more appropriate for those who continue to knowingly break the law.
Finally and most important, there must be a guaranteed mechanism to insure funding for
enforcement of any ag tourism rules. And it must be clearly shown that ag tourism legislation will
actually help real farmers rather than increase tourism on ag lands.
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Without strong enforcement language and clearly defined funding for enforcement as well as rules
suggested by the Sierra Club and others, Bill 227 would make rural and agricultural lands open to
continued and possibly increased abuse. Please do not pass this or any ag tourism bill that doesn't
meet that criteria because, honestly, no ag tourism bill is better than a bad one.
Mahalo for the time. I appreciate your work.
UNGER: Thank you. Commissioners, are there any questions for the testifier? Ma'am, if you
want to ask some questions.
CARR SMITH: Thank you. Thanks for your testimony. I'm just wondering, what is your ag-
related business in Kona?
PALMA-GLENNIE: I have a landscape nursery and I'm a landscape designer.
CARR SMITH: Okay.
PALMA-GLENNIE: So I've had that for 30, at least 30 years.
CARR SMITH: And you, do you consider that an ag tourism business?
PALMA-GLENNIE: No. I don't have tourists coming and, no, but my neighbors have attempted
to do that and, anyway, yeah,I don't
CARR SMITH: So with your business, would you want to be limited to a certain number of
visitors or customers per day?
PALMA-GLENNIE: Well, I think customers are different than visitors. In, for my
understanding, State Ag Laws, when I sell plants, I generally deliver them, but I have had
probably a total of six different landscapers who I've known, because, I'm, you know, we are
very, we are private, we don't want a lot of people coming up to our property or my neighbors
because we share a driveway. We have a shared easement, and I think all of us have, except for
my one neighbor, have been quite respectful of that. So I only have ever had people who I've
known for years come and pick up plants. As far as limiting my customers I really don't think
that's the question; I think that the question is how many people are going to be, you know, close
to my home. And our houses are wide-open; screens, security is based on, you know, knowing
people and trusting people. And when my neighbors had their so-called ag tourism garden parties
down the hill, there were about, it's about 500 feet from me, and I could hear everything, I mean,
they had a lot of things going on. They had tour buses on the driveway; we have a little tiny
easement, I couldn't even get home. But the thing is that I've seen this happening on many
different properties, including my friends who did go through the legal process to stop the ag
tourism across the street from them and their shared driveway. And like I said, they, even the
people there built more and more structures, they kept building more structures and they kept
renting them out and they kept having bigger and bigger events, and none of it was, they could call
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it a garden party all day long, but, I, no, I mean, even the hotels were sending their overflow to
them. So
CARR SMITH: Okay, thank you very much.
PALMA-GLENNIE: I could go on. Thanks for your question by the way. I appreciate it.
UNGER: Commissioner Kaholo.
KAHOLO: No, no, I don't have any--
SHIMAOKA: I've got a question. When you talk about the neighbors, how many in your
definition called ag tourism businesses surround your business?
PALMA-GLENNIE: Well, there are, I think the only one that I know about is the Chocolate
Factory folks, and they don't share my easement. One thing I, I mean, I think that they have
probably done it as low-key, I mean, I haven't heard a lot of people complaining about them but I
can't say, you know, I don't know them, and they are close to me, but the only thing that I notice
is the vans on Walua Road. So, I mean, there is a lot of issues. One of them is access, like, Walua
Road really wasn't made to carry today's traffic. And so, you know, you see their vans. I'm not
complaining about them, I'm really not; I think they seem to be doing a better job than a lot. But
still, there are factors that change because depending how many visitors they have, and they have a
small van, they have a larger property, I think theirs is over five acres. Like in my neighborhood
it's five and one and a half acre, there's two and a half, anyway, I think, you know, I think there's
a difference between small ag and minor and major. I think buffers are really important. I do
think a daily visitor count makes a difference because, like I said, my neighbors were having 250
people one or two nights a week, I mean, those nights were working nights. Even if they weren't,
who knows, I work every day, so, you know. I don't know how many other people, I just know
there's a lot of illegal buildings being built
SHIMAOKA: When you talked about
PALMA-GLENNIE: on ag land around us.
SHIMAOKA: - the 250 people, is that the one that you say are doing weddings and parties?
PALMA-GLENNIE: They were doing, they weren't doing weddings, they were doing garden
parties, so they call them, garden parties. And I was just talking to Scott, he said that they, the
County did end up investigating them and filing, you know, they did, complaints against them or
whatever,but, honestly, we had called for a long time and we didn't know of anything happening
in the neighbors below us. This whole subdivision got a lawyer, and that was when things
changed whether, you know, I mean, it took them a lot of thousands of dollars to do that. And we
had called and called, the people lived in my subdivision but, you know, we weren't as well
healed and, well, anyway. So it did take, it did seem to take a lawsuit to make it finally, you
know, come to fruition, but then again, my friends went through all the proper channels and never
ended.
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SHIMAOKA: Okay, thank you.
PALMA-GLENNIE: Thanks.
CHURCH: I've got something, too. To what extent is enforcement, or lack thereof, a bigger
problem than the language changes that are actually proposed? It sounds to me like that's part of
the problem there.
PALMA-GLENNIE: Yeah, I mean, I don't really see ironclad, I, I just don't see, there is not
funding for enforcement. One thing I don't see is where the funding for enforcement is coming,
and if you don't have funding for enforcement, you have an overtaxed Planning Department
already with so many things going on and so many places to go with so few inspectors. I mean,
you've got to have, you know, you can only get so much blood from a stone. And so I'm not
really blaming anyone; I'm just saying that before there is an ag tourism bill, there needs to be
things that cover all the problems that are going to come. I know there's people doing ag tourism
now for one under the other, an old bill, which seems like it's kind of working, and there's people
that are doing it illegally. And I just, I think that there needs to be definitely site visits, they have
to be random. I think permitting and renewing your permits, I mean, I'm not a lawyer but I know
that, I've just seen people get away with a lot of stuff because it's either not clearly written or
nobody would come and do anything. So I just, you know, and the last, I don't know if it's this
bill or the last incarnation of bill, there's been so many, but one of them said that was relying upon
neighbors to report their neighbors. Well, I received death threats, so, I mean, for just even asking
about the simplest things. So I don't really think that's the way to go. And, and, and without a
bill I feel like we just might not have more problems, or as many problems, than having a new bill
that says, okay, now you can do it, this, you know, because people just break the law. I mean, a
lot of people are great, and a lot of people, and a lot of, and one thing that somebody had asked,
and I think super important, is for the people, the landowners to be living there, because a lot of
times you have absentee owners who are just making money off of this operation; they don't
suffer the consequences what's going on in their, you know, it's the same with Airbnb and a lot of
it, you know, so. I mean you folks just are really our frontline for, you know, helping to prevent
what is just going to cause, I mean, nobody wants to do lawsuit. Lawsuits are horrible; they cost
us all money and time that we just don't need. So I'm just not sure if we, so many people have
said this through the years is why are we, maybe we don't need this bill, maybe that's the an-
maybe we just need to rely on the old trust---
CHURCH: All right, thank you.
PALMA-GLENNIE: Thank you for your question. Thanks.
UNGER: Thank you.
PALMA-GLENNIE: I really appreciate your letting me go first---
UNGER: Yeah, I hope you are able to stick around because a lot of these issues will be discussed
with the Planning Department's presentation, and really focus more on what they are trying to do
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in this, in their recommendation. So hopefully, you are able to stay and watch the conversation
involved. So, thank you.
PALMA-GLENNIE: Thanks. I'll stay as long as I can. I have some commit
UNGER: Great, thank you. Are there any other members of the public who would like to testify
at this time? I need a motion, Commissioners, to close public testimony.
KAHOLO: So move.
NOBRIGA: Second.
UNGER: We have a motion by Commissioner Kaholo, second by Commissioner Nobriga. All in
favor?
COMMISSIONER: Aye.
UNGER: Opposed? [None.] Motion passed. Public [testimony] hearing is closed. Jeff, do you
want to begin your presentation then?
DARROW: Sure. Thank you, Mr. Chairman. I'd like to begin by wishing you all a happy New
Year. I think this is our first time this year together. And unfortunately, I have to apologize
because our first presentation is going to be quite wordy and lengthy. So if you can bear with me
on this. And I'll try along the way to address some of the issues that Ms. Palma-Glennie had
brought up. And I would also suggest that it might, and this is just a request, if there is a question
maybe during the presentation, it might be good, if you feel appropriate, to ask a question at that
time.
UNGER: Good. I agree. Let's go ahead and do that. Commissioners, let's work on that.
DARROW: Great. Thank you. So with that, we'll begin our presentation. Our application is a
bill that has been brought down from the County Council. They have initiated Bill 227 relating to
agricultural tourism. What I wanted to do first of all was to give the Commission a brief
chronological background regarding agricultural tourism, that the ordinances that have come
forward as well as certain laws that affect agricultural tourism on the island.
In 2008 the Hawai`i County Council adopted Ordinance No. 08-155. This ordinance was created
to define and regulate agricultural tourism in Hawai`i County in response to HRS Sections
205-2(11) and 205-4.5(13), which both state the following: "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."
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Just for your reference we passed out two portions of, well, one portion of the current code, as
well as the Planning Director's alternative language. The paper that is identified as "(Current)
Section 25-1-5. Definitions" at the top, this is the current code as it relates to Ordinance 08-155.
That basically comes out of Section 25-4-15, as well as the Plan Approval section and the
definitions. And so, to be able to see it without ramseyer version, it's all right there on that paper.
So during our discussion you can look back at what our current code says.
So this, what we currently have in our Zoning Code was adopted through Ordinance 08-155 in
response to these sections. And again, it says, under Section 205-5, this section states the
following: "Within agricultural districts, uses compatible to the activities described in section
205-2 as determined by the commission shall be permitted; provided that accessory agricultural
uses and services described in sections 205-2 and 205-4.5 may be further defined by each county
by zoning ordinance. Each county shall adopt ordinances setting forth procedures and
requirements, including provisions for enforcement,penalties, and administrative oversight, for
the review and permitting of agricultural tourism uses and activities as an accessory use on a
working farm, or farming operation as defined in section 165-2." It goes on to say that these
ordinances shall include: Requirements for access to a farm, including road width, road surface,
and parking; requirements and restrictions for accessory facilities connected with the farming
operation, including gift shops and restaurants; activities that may be offered by the farming
operation for visitors; days and hours of operation; and, automatic termination of the accessory use
upon the cessation of the farming operation. So based on these ordinances, or these laws out of
HRS, the County Council adopted Ordinance 08-155. Currently, Hawai`i County is the only
county that has adopted ordinances relating to ag tourism in the State of Hawaii; so we are
actually the only one that has complied with that requirement.
Continuing on, in 2009 the Hawai`i County Council adopted Ordinance 09-143. The purpose of
this ordinance was to extend the amnesty period for unpermitted agricultural operations, as
included in Ordinance 08-155, from November 20, 2009, to May 30, 2010, from twelve months to
18 months after the effective date of Ordinance [08-]155. So since 2008 the only change to
agricultural tourism, to our ordinance has been this minor change. There have been several
attempts to make over those. But you'll see the difficulty in passing such a bill, because it seems
like, you are hearing from the public this morning about certain negative aspects of agricultural
tourism, but there is also people that are pushing very hard for promoting agricultural tourism in a
sense that they want it less restrictive than it currently is. So there is two oppositions going on,
and we'll go into a little detail.
So in 2012, based on these problems that we've been occurring in enforcing this particular
ordinance, and I'll explain some of these problems. One of them is the fact that, as
Ms. Palma-Glennie stated, is that, you know, they don't want to be the bad guys and calling and
complaining about a neighbor. So the problem that the Planning Department is faced with is, how
do we know where they are, or who they are? The ordinance requires that if you are wanting to be
an agricultural tourism operation, you have to come in and submit Plan Approval. Most of the
farmers feel that's too excessive, too restrictive. And they haven't done it. We've had very few
agricultural tourism operations come in throughout the island since 2008 for Plan Approval.
Additionally, we've had very few complaints. In Hilo we've only had one complaint and that was
in a residential zone since 2008. Sometimes, we've had other complaints, these happened over a
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period of time prior to 2008 agricultural tourism operations, but there was no ordinance in place,
so we treated them simply as a zoning violation; whatever they were doing was not permitted in
the Code without a Special Permit. And so they were issued a violation and they were supposed to
come in for a Special Permit.
But in 2012 the Planning Director initiated an amendment to the Code, and these are all within
your background report for reference. The Planning Director's proposed amendment was
presented before the Windward and Leeward Planning Commissions who both forwarded a
favorable recommendation to the Hawai`i County Council. Councilmember Pete Hoffman
introduced Bill 266, Draft 1, in 2012. Over the course of about one year, Bill 266 went through
five different drafts. So what's you have in your background is Draft 5. This was, you'll hear the
phrase"major" and "minor" agricultural tourism operations. This was presented through this
proposed bill, and basically what they were trying to do was have a limit where, if you were under
that limit, you would be considered a minor agricultural tourism, and it wouldn't be as restrictive;
if you are a major agricultural tourism operation, you had other hoops you had to go through, if
you are a major. So
CARR SMITH: Excuse me, can I
DARROW: Sure.
CARR SMITH: Is it defined somewhere what the major and minor is?
DARROW: That would be in Bill 2- now, this is not adopted,but this would be in let me pull
that out.
KEALOHA: Is it the 30,000 visitor count?
DARROW: Yeah, well, let's see, 09, I believe it is Planning Department Exhibit No. 4, and if you
look in the definitions, you'll see the definitions for agricultural tourism, minor and major. It's on
Page 2. So for minor it's that they do not exceed 15,000 visitors annually, a maximum of 350
visitors per week for a total not to exceed 15,000 visitors annually.
So on January 8, 2013, the Council's Planning Committee voted to forward a negative
recommendation on Bill No. 266, Draft 5.
Then on January 23, 2013, the County Council voted to postpone indefinitely Bill 266, Draft 5, in
order to allow the Council to introduce its alternative bill, which is Bill 25, Draft 2 and that
would be your Exhibit No. 5 in order to allow the Council to intro- I'm sorry, Draft 25, I'm
sorry, the bill was presented before the Windward and Leeward Planning Commissions, who both
forwarded a favorable recommendation to the Hawai`i County Council. Bill 25, Draft 2, was
postponed to the call of the chair on August 6, 2014, and was never taken back up at Council.
So that springs us to today. Councilmember Margaret Wille had introduced Bill 227, Draft 2. It
was sent down to the Planning Director, as well as the Planning Commissions for review. And
what I'd like to do is briefly touch upon some of the key points of this bill. Bill 227, Draft 2,
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attempts to make the permitting process less burdensome by providing changes to the Plan
Approval section to only require applicants to submit for Plan Approval prior to construction or
installation of a new structure and for any addition to an existing structure that exceeds ten percent
of the existing structure. Additionally, the bill offers an option for the applicant to request a
waiver from the Planning Director from the requirement for a site drainage plan, upon providing
evidence to the Director's satisfaction that there would be no significant run-off resulting from the
proposed development. And lastly, Bill 227, Draft 2, creates a yearly registration process along
with a 100-dollar processing fee, which includes submitting financial records and a daily visitor
count record annually.
Here are some key points that have been changed in Bill 277, Draft 2. In the definitions, they had
added in, along with agricultural tourism, what's called"agricultural-based commercial
operations." And what's, to give you a little background on that, agricultural-based commercial
operations was, is now considered a permitted use under State Law. And it allows for roadside
stands, it allows for enclosed retail structures, as well as food establishments. And we have an
agricultural certification form that we've been using, agricultural-based commercial op
certification form, which is your Exhibit 6, and it actually has the law there written. So as long as
these, the roadside stand, the retail activities and the retail food establishment, prepares and serves
food at, or it uses products, agricultural products grown in Hawai`i, as well as value-added
products that were produced using agricultural products grown in Hawai`i, then it's okay to
operate these. The problem is, with the Planning Department with this law is that there's no real
tie-in to a working farm. And so what the attempt here was to have commercial agricultural
operations be tied in to agricultural tourism, which is supposed to be tied to a working farm. And
so for you to be able to do a commercial-based, ag-based commercial operations, you need to,
you're considered, that's considered almost like ag tourism; they are tied in together. If you are
going to be doing roadside stands, retail establishment, food, retail food establishment,people
come to your property, they are visitors, it's tied in to ag tourism. That was the attempt here;
that's what they are, what the Council is trying to do in this particular change in the Code. The
Planning Department agrees with this change. Because of the difficulty we've had trying to
permit these agricultural-based operations. What's happened is we have people that come in, they
say, "I'm going to be only serving locally grown food and using value-added items produced in
Hawai`i," yet, there is no tie-in to agriculture; they could go to Costco and get it, or wherever, and
we have no way of knowing that. So we've created a form that kind of has, this is kind of our
basis for what we are looking at as a registry form, but right now it's kind of a certification form
that they are going through.
UNGER: Jeff, a question.
DARROW: Sure.
UNGER: So, if this is based on a commercial farming operation or ranching operation, what is
your definition of a commercial ranching operation?
DARROW: The definition of a working farm, as mentioned in the law comes under 165-2, which
has the definition of a working farm. And I'm not sure if we have that available—let me see if I
have that.
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UNGER: Because I did notice one of your recommendations is to not make a gross sales amount
part of a requirement for a viable commercial farming or ranching operation. I think the County
Council is looking at 30,000 bumped down to 10,000, and the Planning Department
recommendation is no, no proof of income from this farming operation, is that correct?
DARROW: It's, the numbers get a little confusing; the 30,000 and the 10,000 has to do with
visitor count. There is a, currently in the Code, if you look at the paper I was mentioning,right
there(d)(1) it refers to the agricultural activity having a minimum gross sales of 10,000 dollars.
UNGER: Okay, so that's still even in with your proposal
DARROW: No
UNGER: --- recommendation back to the County Council?
DARROW: Yeah, we'll, if it's okay, if I could address that question when we
UNGER: No problem, no problem, I just---
DARROW:
DARROW: Okay.
UNGER: I just did remember seeing that.
DARROW: In fact, I think that's taken out of, in Bill 227 as well.
UNGER: Good, we'll get back to that then.
DARROW: Yeah. So back to the commercial operations, it's good you brought up that point
regarding the definition of a working farm. So we've been having these meetings; this whole
endeavor has not been without a lack of many meetings with different people and agencies. One
of them was with Office of Planning and different members of the County's throughout the island.
They had, we were unaware of this,but apparently, the legislature when they adopted this bill for
agricultural based commercial operations, also included that as a farming operation. So in a sense
it wasn't just talking about a farming operation like cattle and raising, you know, fruit or
whatever; it also said that if you are doing an agricultural-based commercial operation, that is
defined as a working farm. So that really put a wrench in our process there. But the nice thing
about the law is it does allow the counties to further restrict or define the law, and that's what we
are attempting to do here. Again, to bring it back to where both ag tourism and commercial
agricultural operations are linked to a working farm, and that they are secondary and accessory to
the main use, which is a working farm.
CHURCH: Jeff, I've got a question here.
DARROW: Sure.
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CHURCH: I don't have issue with a well-crafted ordinance and so forth, but I go back to
enforcement again. I saw this when I was the chairman of the Tax Board of Appeals for years
where there were so many violations of people who were in ag zoning getting ag assessment
benefits and clearly weren't conforming to the requirements. And so the issue here is, how do you
go about enforcement? And then the question is, somebody has to do it and how do you pay for
it? And to me, it seems pretty simple; people driving around, stopping these operations, checking
them out, how do you pay for it? And I think that the mechanism, which I don't see here at all, is
penalties which are severe enough to fund these types of things where they self-fund themselves
and, you know, for people get slapped on the wrist, they get some notice, they ignore it
completely. You are not going to get enforcement here. You know, I don't care how well it's
crafted or not, you are not. The provisions here don't provide for that. I don't think you have an
answer to it, but unless we start thinking in those directions, we will have limitless ordinances,
which are well-intended and well-crafted, which people ignore.
SHIMAOKA: A question I've got is, is there any I guess mechanism that allows for site visits to
define, or determine, that these guys are agricultural, as far as our definition of that?
DARROW: What I'll do is, I'll answer the questions. Maybe it's better if I answer them now
versus wait until, so let me answer Chairman Unger's question first regarding the minimum
10,000 gross. So let's do that, and then I'll touch upon it when we go through it.
Both in Bill 227, if I can refer you to that item, I believe it's in Exhibit 2 I'm going to be
jumping around here, so please, I apologize for taking a little time, okay, so, yes Exhibit 2,
okay, this would be Section, this is on Page 6 of the bill, or it actually goes to 7 -wait, wait, am I
even in the right—
UNGER: Yeah, Page 7
DARROW: yeah, so, it looks like, for some reason I thought she took it out, but it appears to
still be in there, I want to make sure this is the right bill,but it looks different from, okay, that's
why, all right, I believe it's Exhibit 1, okay so Exhibit 1, Page 3, (d)(1), that's where it
references the minimum verifiable gross sales of 10,000 dollars; that's been crossed out. And so
at that point there was no minimum requirement. Basically, what the, if you look at No., the new
No. 4, which is on Page 4 down at the bottom, it's basically making a statement that the gross
revenues from agricultural tourism shall not exceed the gross revenues of the associated
agricultural activity and/or agricultural processing facility. So the reason why, I think, she took it
out is because, and this is in discussions with Councilman Wille, we have several meetings talking
about the bill and the changes that the Planning Director was looking at making to make sure that
she was not really against it but understood where we were going, so we just didn't do this without
counseling with Councilman Margaret Wille. But what happened was is that apparently the
people that had come and talked to her said this process is not working, it's too restrictive, we
can't, we don't have the means of being able to come in and do all this stuff, we are just farmers;
that's kind of the reasoning behind some of these changes to make it less restrictive and less
burdensome. One of the big burdens they said was having to provide financial records, being able
to show this relationship between the agriculture versus other agricultural tourism activities. I'm
not sure how true that is or, you know, anything about that; one thing I do know is that in our other
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meetings with other counties, they did say that one of the most difficult things for them to enforce
was determinations regarding tax records or financial records and making those calls. They just
felt like they weren't able, it was just too much for them, as far as the planning departments; it was
almost as if you had to have a tax person or somebody that was more experienced in financials to
be able to make those determinations. But regardless of that, the change in the bill is that they
have to be able to show proof, if requested okay, that's the key there. If there is a clear
indication that there's, it's lopsided, the agricultural tourism is beyond the agricultural uses on the
property, the Planning Director, and this gets to Commissioner Shimaoka's question, there is a
provision under(k), which is on Page 8, that says
SHIMAOKA: "May."
DARROW: --yeah, "may conduct a site inspection for any proposed agricultural tourism
[operation] and may make periodic inspections on any agricultural tourism operation without prior
notification."
Now, in getting to Commissioner Church's question regarding enforcement, this is a difficult
issue, because as mentioned, and this was mentioned at the Council hearing, is that without
receiving complaints or without any indication other than somebody driving around and actively
looking for this, there is no real way to be able to know that these activities exist, without us
being, without us receiving some sort of Plan Approval or Special Permit, or this proposal is for
registry form that would be filled out. And so that's the difficulty that even the Director had
mentioned at Council.
CHURCH: Jeff, let me ask you. Do you think that if you had somebody driving around, you
would find violators?
DARROW: Well, I'm sure that you could. And, you know, there are means to do it; there could
be sweeps, sometimes just going on the Internet and looking for agricultural tourism operations, a
lot of these operations that aren't permitted are most likely doing other unpermitted things as well.
So it wouldn't just be the ag tourism. As mentioned, some of these hold weddings. In our current
code now, if you do certain activities even with the agricultural tourism, it triggers a need for a
Special Permit; overnight accommodations, weddings, these parties, those kind of things currently
require a Special Permit beyond that. But, yes, it could be done.
Now, in regards to the question of how much to enforce, we're, we're again, there are certain laws
in place, and unless we change those laws, we are kind of stuck to having to deal with those laws.
Right now there's, most of these, if not all of these, agricultural tourism operations are located
within the State Land Use Agricultural district as well as the County Agricultural district. Before
the County can issue a violation in the County's Agricultural district, if the violation is in a State
Land Use Agricultural district, there is a code, there is a law that states we have to send out a
warning letter first, we have to give them 60 days to comply, and if they don't comply, at that
point we can issue a small fine, and then we can issue our notice and our fines apply. And so
that's why in our proposed language we made it more general so that we just have, we just utilize
the enforcement procedures available.
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Now, let me just say this so that we can all be aware of what the Planning Department is trying to
do. The Planning Department is not sending up a new bill right now, okay? It was posed with the
question whether or not we should, you know, look at this bill, change it, and send up a new bill.
But we looked at the past and realized that once it gets up to Council, a lot of times they go
through numerous drafts because of changes that occur through public testimony, that it's better to
try to bring up some alternative language that they can consider and possibly draft up a new
ordinance in relation to all these issues that are being brought up through testimony that we've
received through the Commission. I mean, even since we've received this and done our
background, we've got other issues we'd like to deal with. Lot size is a question that came up;
should we create a minimum lot size, maybe five acres or ten acres? But right now, the way the
Code is, it allows it in certain districts that are small that allow half-acre lots. RA zoning district
allow for half acre. Our current code for ag tourism allows ag tourism on rural zone lots. So
again, that's a consideration that may minimize some of these issues. I mean, the reason why we
considered that is because a lot of these subdivisions are one-acre, two-acre, three acres in size. If
these agricultural tourism operations are operating there, most likely they are having a significant
impact on the surrounding property owners. So we were thinking maybe five acres might be a
good minimum to consider. Some people may say but that's unfair, we are zoned Agriculture, we
should be allowed to do that. But again, that's the reason for the ordinance is to be able to try to
vet this out and create minimum impacts. Anyway, I hope I've addressed your questions.
NOBRIGA: I have a question.
DARROW: Sure.
NOBRIGA: Is this on?
DARROW: I think it's on.
NOBRIGA: Do you have any idea, any guesstimate, of how many of these operations are in
progress now?
DARROW: I, I don't, I mean, we've tried to figure out how many there are, we just have no clue.
We've been working with Hawai`i Agricultural Tourism Agency, HATA, and they informed us
they had, I believe she said 200 members, but I think that's island-wide, I mean state-wide. As far
as on the island, we are just not sure. I mean a lot of these may not be, they may be doing tourism
and they may be on an agricultural zoned lots but not ag tourism. You know what I mean?
Because, again, they probably, a lot of these guys are just zoning violations; there is no agriculture
on the property. And so that's the dilemma we are running into is trying to figure out how many
there are, where they are, and the process that would kind of bring them in, you know, because
right now our process isn't working.
CHURCH: So the, you know, and I'm not trying to give you a hard time, you guys are doing the
best you can, I understand. But the goal is not, is simply to know, to be able to identify all of
them, I mean, that's the goal, and not necessarily shut them down or anything, but to know that
they are there, and that they conform to the requirements under the law, which then makes the
entire situation work better. This law doesn't do this; this ordinance change doesn't do it. It has
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great objectives, it has good goals and all that; so I'm not giving a hard time on it. But we are not
going to get there with this, if that's the goal. The goal is to know how many, to be able to answer
Barb's question, a pretty reasonable question
DARROW: Sure.
CHURCH: where are they, how are they operating, and get them to conform to the
communities that they are in and comply to the general definitions of what ag's operation should
be. We can't get there with this ordinance; it won't get us there, Jeff.
DARROW: Right--
SHIMAOKA: Well, I've got, can I address Ms. Palma-Glennie on this issue?
UNGER: Actually, I'd rather stay right within the realm that we are at right now.
SHIMAOKA: Okay.
DARROW: If I can just address Commissioner Church's, I think my answer may have not been
correct. My, what I'm trying to say is we don't have an idea of how many unpermitted
agricultural tourism operations there are. We, as far as the Planning Department goes, we've had
two Plan Approvals for agricultural tourism on the Hilo side since 2008, and we have six, seven,
one withdrew, on the west side of the island. So for a total of the entire island of agricultural
tourisms, there's eight permitted through ordinance 08-155. And there were several prior to that
that were approved through Special Permit; some of the larger operations that have been operating
prior to 2008. Doutor Coffee is a good example of one of those.
KEALOHA: Can you elaborate on the challenge you mentioned of the proof of income? I mean,
if you are commercial agricultural operation in the County of Hawai`i, you are required to report
G-49's, General Excise Tax statement, that would in effect determine farm production, wholesale,
retail production of the farm. That's pretty generic; it's not a complex tax question.
DARROW: I, again, I'm not sure about that. Just in discussions with counties that have been
doing this, they said it's been a very difficult process for them. And they actually are trying to get
away from that as far as being the means of determining this relationship financially. And again,
I'm not privy to that. Our division, as far as the Planning Division, is not the ones that actually do
this, as far as monitor it. But again, the, since 2008 we've only had a handful of people come in.
Currently, I don't think they've been, you know, consistently asking every year for records to
come in. This bill is asking annually that these farmers come in. We can't even get them to come
in with step No. 1, let alone a yearly step.
UNGER: Jeff, why don't you go ahead and go through your presentation at this point? And then,
Commissioners, let's hold our questions till the end. I'd like to just let you go through your
presentation.
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DARROW: Sure. Thank you. So we are back on Bill 227, Draft 2; this is the bill that has been
sent down from County Council. These are just some of the key points. We touched upon the
change to the agricultural tourism. Commissioner, or Councilmember Wille also added in the
Definitions, a section that says, "but not include educational tours sponsored and conducted by
public [or] private schools located within the County." We were unsure about that, but in
discussion it was because this is actually permitted under another section of the Code and they
didn't want those to be combined together; agricultural education tours are a separate permitted
use. There's new added definitions for"agricultural products" and"agriculturally-related
products."
Under the Plan Approval section, as mentioned earlier, there is a change. Instead of having each
person come in for Plan Approval, or each applicant, only the ones that would be doing new
construction or any addition to an existing structure that exceeds ten percent of the existing
structure. Additionally, there has been changes to the requirement for information to be provided
with Plan Approval, including, but not limited to: allowing on-street parking, if adequate; deleting
the 1,000-square foot limit for facilities principally utilized for the agricultural tourism activity;
and, adding an allowance to request a waiver from the Planning Director from the requirement for
a site drainage plan upon certain circumstances.
Under the Agricultural Tourism section, which is 25-4-15, she has removed, I'm sorry, the section
has been removed, that had the requirement to provide evidence of a minimum of 10,000 dollars 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. Additionally, the bill has reduced the maximum amount of visitors allowed before
requiring a Special Permit or a Use Permit from 30,000 visitors annually to 10,000 visitors
annually. Hours of operation have been changed from 8:00 a.m. to 6:00 p.m. daily to sunrise to
6:00 p.m. daily unless otherwise approved by the Planning Commission upon a finding there will
be no significant adverse impact on the surrounding neighborhood. That's, the Planning
Director's alternative language has that being approved by the Director; for just a request to come
before the Planning Commission, it should be for a Special Permit or a Use Permit or some type of
permit from the Commission. Added requirement to provide adequate road and site access for
fire, ambulance, police and any other vehicles related to emergency response. The deletion of the
1,000-square foot limit, as mentioned earlier. Continuing on, changes to allow a waiver process
from the Director to allow additional time under certain circumstances to meet the requirement of
gross revenues from the agricultural activity exceeding gross sales from agricultural tourism;
sometimes there's situations that arise, maybe your crops don't do well or maybe you are just
starting off and it's going to take you a period of time for those trees or the revenue to build up to
that level for the agricultural aspect. So there is a waiver process. This also includes a section
that prohibits agricultural tourism in Waipi`o Valley or where the property is only accessible by
four-wheel drive. And it extends the compliance deadline to July 1, 2017, for existing
non-compliant agricultural tourism operations.
This is the process now versus our current process of Plan Approval. It would be a yearly
registration, it would probably be a form with questions regarding what are the minimum or
standards for agricultural tourism where the applicant would have to fill it out and identify that
they meet the standards. We would have the information as far as where they are at. And that
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would be a big step there; at least at that point we know there is an operation in this location. We
would have a certification that verifies that they have said they've met the standards and they
understand in the process that if they don't meet the standards, they are going to need a Use Permit
or a Special Permit. This comes with a 100-dollar processing fee, and they would need to submit
financial records and a daily visitor count record annually. And then, again, that section where the
Director could conduct site inspections at any time prior to notification, and a section for
enforcement of the violations.
As mentioned, going through the bill the Planning Director is recommending that the Planning
Commission send up an unfavorable recommendation with this bill, but is recommending that the
County Council consider alternative language that the Planning Director is sending up. These are
the reasons: The Planning Director is generally in favor of the direction of this attempting to be
defined by the bill, which is to make the permitting process less restrictive and less burdensome
for the agricultural tourism operations, but issues this unfavorable recommendation based on the
need for further clarification and changes within the bill that are structurally significant from that
represented in the bill. If there was minor changes that the Planning Director was suggested, we
could send it up with a favorable with a request for minor changes, but the changes that the
Planning Director is recommending are significant, so at that point we need to recommend
unfavorable for this particular bill. And again, rather than send up a new bill we send up
alternative language and allow the Council to be able to determine which way they would like to
go as far as direction with the agricultural tourism ordinance. The Planning Director is offering
alternative language and suggesting to simplify the process even more by deleting altogether the
requirement for Plan Approval and to have all agricultural tourism operations be required to
register one time instead of a yearly registration. The registry form will have questions to verify
compliance with the standards and guidelines of the agricultural tourism operation as listed in
25-4-15(d), but will also have questions currently listed on the Department's Agricultural-Based
Commercial Operation Certification Form, and that, again, I think was Exhibit 6 in your
background. Similar to the current permitting process, if an agricultural tourism operation goes
beyond the limits of Section 25-4-15(d), the operations will need to submit for a Special Permit or
a Use Permit, which can be determined through the information submitted in the registration form
or if a complaint is received and the Planning Department conducts a site inspection and observes
the operation is operating beyond the limits of 25-4-15(d).
These are some of the changes that the Planning Director is proposing. We agree with the change
of the adding in the agricultural-based commercial operations but the taking out the reference to
the agricultural education tours. We've added in a new definition so that people understand the
definition of what an"agricultural-based commercial operation" actually is, as well as
"agricultural products." We've deleted in its entirety the Plan Approval section for agricultural
tourism. And then in the Agricultural Tourism, we have also removed the requirement to provide
evidence of the minimum 10,000 in verifiable gross sales, exclusive of any income from
agricultural tourism activities or any other non-agricultural tourism [sic] activities for the year
preceding the commencement of the agricultural tourism. We are suggesting instead of 10,000 as
the maximum, we feel 15 [000] might be more appropriate. There might be a number of these
agricultural tourism operations that are operating right around 10,000 or maybe a little more,
which would require them to have to go through this, the Special Permit or Use Permit process.
So 15,000 seemed a bit more reasonable. We would suggest keeping the hours of operations the
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same, but it allows if, the Planning Director would approve a change to that, if there is a finding
that there would be no significant adverse impact on the surrounding properties. We've kept in
the requirement, different from the Bill 227 Draft 2, we've kept in the current requirement, which
states they need to show that they have an existing legal access to a public highway, which may be
via a private road or easement. Again, this was the previous requirement of agricultural tourism,
of the Plan Approval section. Additionally, we've also agreed to the waiver process for up to two
years, if the operator can provide written evidence to the Director's approval that the revenue from
the associated agricultural activity and/or agricultural processing facility was adversely impacted
due to unforeseen environmental or economic conditions. There is a change to allow the sales of
agricultural products grown in Hawai`i and produced [sic] agricultural products where the main
ingredient was grown in Hawai`i, instead of only grown on the Island of Hawai`i. Our current
ordinance states that it's on our island versus in the State of Hawai`i. We've also added in a
section regarding prohibiting agricultural tourism in Waipi`o Valley or where the property is only
accessible to four-wheel drive. In regards to non-compliant agricultural tourism operations,
instead of putting a date on it, if there is to be an ordinance that's passed, the allowance would be
for a period of 90 days from the effective date of the ordinance that is passed. Continuing on,
we've added sections regarding agricultural tourism operations that are currently permitted
through Plan Approval, Special Permit or Use Permit; it's kind of a non-conforming or
grandfather clause. The addition section of a registration process with a 100-dollar processing fee,
which will allow the Director an option to request for additional information, such as financial
records or daily and yearly visitor counts, if needed. And again, that section regarding the site
inspection without prior notice by the Director, and the added section for enforcement.
I think that concludes our presentation. Thank you for your patience on this.
UNGER: Thank you.
DARROW: I'm available for questions, if there are any. Thank you.
UNGER: So we do want to open up for questions again, Commissioners, so, if you have any
questions at this time.
SHIMAOKA: Yeah, I saw one that got my attention, the change from yearly to one time
registration for the agricultural tourism businesses. What's,I see that the reasoning was, it didn't
seem to make sense to me because of what we are dealing with.
DARROW: Yeah, it's a suggestion. And again, the reason behind it is that we've had very little
success in what little we've required already. And so we didn't, to be able to think that these
agricultural tourism operators are going to all of a sudden based on a new ordinance come into
compliance with that is, might not be, I mean it may be very hopeful. But the reality is if we can
get them to come in and register at least once, we know where they are, we know who they are. If
we receive a complaint, we can go out, we can deal with that, we can look and see if they are
compliant; if they are not, then we have them go through a Special Permit at that point. So it's
more, it is a situation that will be more, as far as if these agricultural tourism operations aren't
affecting surrounding property owners or anybody, we are not going to hear about it most likely.
If they are, we are going to hear about it and we are going to address that accordingly through our
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enforcement section, as well as our normal procedure is to give them an opportunity to come into
compliance, which in this case would be coming in through a Special Permit or Use Permit.
UNGER: I heard that a conflict in number of complaints received; the testifier explained there
were numerous complaints lodged and then lawsuits followed because nothing was followed up,
and then your presentation you talked about really a minimal amount of complaints. Did members
of the Kona community complain in the last couple of years over ag tourism?
DARROW: I asked for information regarding that from our inspectors; unfortunately, I didn't get
any. But in speaking with our testifier the situations that she was referring to were situations prior
to the adoption of this ordinance. I, it's ironic that I happened to be the zoning inspector on one of
those, but that was probably right when I was transitioning to planner. But again, there, these
operations even back then would have required a Special Permit because they were not
UNGER: Right, there's no ordinance.
DARROW: ---- yeah, there was no ordinance so it would require a Special Permit. I'm not sure
what the problem was as far as enforcement. I know that the one I was dealing with we did issue
violations. But again, there comes a time where attorneys get involved and it becomes a legal
issue. Thank you.
KEALOHA: Sorry for putting you on the spot here, but I'm trying to get my head around some of
these amendments. So on the one end we are eliminating the 10,000, the proof of 10,000 in ag
production to begin operations because it's too complex to analyze. But then we are saying they
need to prove that gross revenues from the farming activities exceed the gross revenues from the
ag tourism activities, which is a little bit more complex to decipher. And finally, we are talking
about acceptable levels of production, if there was some kind of force of nature that prevents them
from reaching agricultural goals, which is even more complex. And if you don't have a baseline
for what their production is, how do you then determine, you know, what was the exigent
circumstance that prevented them in any given year from meeting agricultural goal? It seems like,
it seems like we are kind of going on a slippery slope here where there's no baseline, yet we have
all these restrictions to check back on their operation. I don't know how, I don't know how you
would be able to enforce any of the second two without having some established baseline before
you approve the ag tourism upfront.
DARROW: I understand your concern, I mean, we've been struggling with this for eight years.
The, again, the problem we've had is lack of response. And so we are trying to figure out a way. I
think the intention of the County Council was to try to simplify a process, and we are saying okay,
we agree with that, let's try to see if we can simplify this to see if we can get a better response
from what we've got in the last eight years. Now, as far as determining gross agricultural versus
gross agricultural tourism, I think it's just going to be a matter, again, if we are receiving
complaints that, you know, tour buses or activity is generated that's causing significant impacts to
the surrounding properties, then we can go out and do a site inspection and determine whether or
not they actually are complying with the terms of the ordinance. It's going to be to the point that,
I mean, if they come in and register, they have to verify on this registration form that they are
going to meet these standards or limits. If they cannot verify that, we are just going to inform
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them they've got to come to the Special Permit for them. If they end up later we get a call or
complain and we find out that they are not actually complying with the certification or registry that
they submitted, then we would again enforce that by either fines, but again, giving them an
opportunity to come in and go through a Special Permit. The Special Permit is going to be if they
do not meet the standards, they will have to come in, or if they even exceed the standard beyond
what the limits are. So there, it's a tough situation. I think the Planning Director had mentioned
the same thing in a Council hearing is that it's a tough, tough situation to try to come to a process
that works unless we try a change and see if that works. I mean we can, you know, we can create
an ordinance that's very restrictive and enforce and, I don't know, maybe that will work but
maybe that will, maybe that will just make it more difficult and these guys end up not responding
at all in regards to that. Again, to enforce, either we've got to go drive around and find them or we
get a complaint. I mean we can do an active search, but right now I know our zoning inspectors
are pretty maxed out just keeping their head above water with the complaints we receive on a daily
basis island-wide. So to try to do a sweep, or, is difficult without more manpower.
UNGER: Thank you. Commissioner Carr Smith.
CARR SMITH: Yeah, I have a couple of comments. I'm surprised that there's only nine
registered agri businesses around, or tourism --
DARROW: There are several that are under Special Permit as well.
CARR SMITH: Oh, okay, okay. Yeah, it seems to me like we are just making it more difficult
for people to follow the rules with all of the restrictions. I would assume that that's why a lot of
people perhaps don't come forward and maybe register. It seems pretty restrictive again, and I
think that's unfortunate. Many people are just trying to make a living and have their business, and
to have limitations, like you have to prove that you can make a certain amount of money, I don't
think that's reasonable at all. I appreciate that the previous Planning Director and the Department
went through and tried to clean up some of this stuff. Most of it makes sense to me.
I am confused, though, why the ag tourism is only related, if it's an accessory business, I mean I
would think that there's plenty of businesses that are ag-related and ag tourism businesses that are
not an accessory business to a farm or ranch. Can you speak to that at all?
DARROW: Sure. There is quite a number of operations similar to that; we have lodges, people
come and stay overnight in agricultural lodges, rural zoned areas, very little agricultural activity
going on on the property. And these properties may have the potential for agriculture; they just
choose not to do that because that's not what they wanted to do. So their option available to them
is coming in through the Planning Commission for a Special Permit. We have a number of
different types of uses that come before the Planning Commission that are in agriculturally zoned
areas that bring tourists or visitors to the property, but are not considered ag tourism because
there's no relationship to the agriculture occurring on the property. But if they do want to become
an agricultural tourism operation, I mean, a lot of them are, you have a coffee farm that they want
visitors to come and see the process of how you grow coffee and how you process coffee, and it's
all tied in together. So again, there has to be that balance of agricultural primary and visitor
tourism secondary.
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CARR SMITH: Thank you.
CHURCH: Jeff, I just, one more thing here, and I don't mean to sound like a broken record, but,
you know, I don't know if you've ever tried to liaise with the tax department over there; they have
some of the same issues of enforcement. They think they are leaving millions dollars on the table
because of people that abuse of the tax assessments and versus zoning, and they are unsure how to
go about it. I tossed that crazy idea, which is to put them on commission for the tax dollars that
they recover, and I know it would be unpopular. But they have enforcement issues, you know,
you could issue a rubber nose and glasses, you know, so that they wouldn't be identified, but they
have some of the same issues, and I don't know if you've ever tried to liaise with them to try to
create one or more positions where they could self-fund and tighten up things.
DARROW: Thank you. We'll definitely look into that. Thank you.
UNGER: Commissioners, any other questions? Thank you, Jeff.
DARROW: Thank you.
UNGER: Sure, go ahead.
ARAI: I think, and Jeff did a wonderful job with the presentation and trying to provide clarity in
what was, what is, and continues to be a very complex situation. But let me try to, I don't mean to
overly simplify this,but I also want to also make sure that we have proper perspective.
The State, the Legislature found it fit to basically classify agricultural tourism and even ag-based
commercial operations as permitted uses, and then empowered the counties to decide whether they
wanted to implement it within their local zoning laws. County of Hawai`i elected to do so as it
pertains to agricultural tourism and also ag-based commercial ops. So the Legislature, which
defines the use of agricultural lands,has said they see it as consistent with the intent and purpose
of the State Land Use Law when it comes to the perpetuation of agricultural land and agricultural
uses. So I always keep that in the back of my mind when I try to assess something; what is the
original legislative intent? Then I also take into consideration that what is agriculturally
designated lands, and in many ways we are not here simply to preserve the sanctity of someone's
property. It is ag lands first and foremost; it allows for cultivation, propagation of crops, animals,
you can have piggeries, I mean, there is just so much. Noise levels under State Department of
Health laws can go up to 74 decibels, I think, which is, or 75 decibels, which is pretty loud. So
I'm trying to keep all those things in mind.
But I have also come to the conclusion over many years of trying to deal with this is that we are
first and foremost a land use agency; we are not a police agency. We try to define what classes of
uses are considered reasonable, and the Zoning Code and the State Land Use Law then defines it.
There is a point where I feel if you overregulate something, then maybe it's not worth allowing it
in the first place, as simple as that. And that's where we are trying to find that balance. We
understand that individuals, like Ms. Palma-Glennie here has unfortunately had to deal with issues
personally,but I think the record will show that with everything that we have to deal with in the
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County of Hawai`i, we just have not had that many complaints or that many issues when it comes
to ag tourism and ag-based commercial ops. Yes, there is the potential for abuse. But with limited
controls and the ability for the Planning Department to respond to complaints, we can each then
assess each case individually and, hopefully, appropriately. So I just kind of wanted to cast that
broad, you know, and hopefully, provide some,better perspective of how we are trying to deal
with this, trying to be sensitive to the concerns, but at the same time not create a situation that
basically people just avoid us, or they go underground. So
SHIMAOKA: So the question then I was wanting to determine is that, with this particular lady
here, has this been the majority of the complaints that we were getting, is from her area?
ARAI: I, Jeff, I don't believe that has been the case, it has been somewhat scattered, right? I
mean not centralized in one specific area. I know closer towards like the south end of North Kona
and the South Kona area has experienced some issues. I think we've had a few complaints in the
Puna District, if I remember, was it in Puna?
DARROW: Yeah, we've, in regards to complaints, there's been very few complaints. That's the
issue. We've only had one complaint in Hilo and it was on a residentially zoned property; it
wasn't even agriculture.
SHIMAOKA: So my question is, if this is an isolated incident
DARROW: These were prior to the ordinance--
SHIMAOKA: Oh, okay.
DARROW: --- and that's why I was trying to get clarity from her. I'm very familiar with the
situations we are talking about. These were years ago. It sounds like
UNGER: Prior to 2008.
DARROW: Yes.
SHIMAOKA: But it seems like it's still taking place
DARROW: I'm not sure it's
SHIMAOKA: according to her.
DARROW: I didn't get that impression from her when I was talking to her; it sounded like it
was resolved legally, but they had to go to that extent to resolve it. You know, sometimes the
Planning Department can be there and issue a violation,but we can't be there all the time. And
these guys will do things even when we are not there, and our powers only go so far. Even issuing
fines, they still will conduct their activities, thinking, well, we are making more than the fines, and
they'll just keep operating. And we have to go to the point where we end up having to get our
legal help to go to a judge to ask for help on these.
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UNGER: Great. Thank you. Very good. At this time I'd like to ask for a motion. And to clarify
what we are making a motion on, again, the County Council has put forth Bill 227, Draft 2, and
basically we are either making a positive recommendation for that or a negative recommendation
for that. So one recommendation can be just straight up a motion to forward a positive
recommendation to the County Council on Bill 227, Draft 2. As we've heard, the Planning
Department with their recommendation has come up with an unfavorable recommendation for the
points mentioned. So a motion again can be either favorable or unfavorable, and your unfavorable
recommendation, if that's how you choose to make your motion, can be as simple as forwarding to
the County Council an unfavorable recommendation in order to further clarify changes proposed,
or a recommendation could be as proposed by the Planning Department. So with that, I would like
it open up to a motion, and if you do make a motion, try to be as specific as possible. Thank you.
Commissioner Church.
CHURCH: Mr. Chairman, I would, I would move that we, that an unfavorable recommendation
be forwarded to the County Council on Bill 227, Draft 2,based on the Planning Director's
recommendation that Bill 227, Draft 2, needs further clarification and changes and proposed
alternative language, which shall be adopted.
UNGER: Do I have a second?
KAHOLO: So move.
UNGER: We have a motion on the table. Open for discussion. Commissioner Carr Smith?
CARR SMITH: Shouldn't that further state, "as proposed by the Planning Department?"
UNGER: Yes, and that's what the motion is; Commissioner Church did make that motion.
CARR SMITH: Okay, I didn't understand that the way he stated it. Thank you.
UNGER: Yeah. So motion is on the table. Open for discussion. Carr Smith.
CARR SMITH: I support the motion. I think the bill is complicated, and I'm not sure it's the
answer. But the Planning Department's attempt to clarify and simplify some of these things is a
step in the right direction, I believe, so I'll be supporting it. Thank you.
UNGER: Thank you. I support the motion also. And it is a complicated issue, and I do give
credit to the County Council for addressing it and for the Planning Department to spend this much
time addressing it also. It is a difficult situation. And I went back to the, to the Kona Community
Development Plan, and in the Vision for the Future of Kona it calls for considering all aspects of
agriculturally profitable areas. In the CDP Goals it talks about ag lands are preserved in the
manner that supports small family farms, eco-tourism and the self-sufficient agricultural economy
that encourages the local use of local products; so that is what we are talking about. The problem
with the Community Development Plan is that it talks about vision, it talks about goals; where we
are at is community members going, okay, how do we implement this thing, and it's not easy. It's
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not easy, but for me I simplified it. And this motion, again, I simplified it, and exactly what you
said, okay, we are trying to do this, we are trying to give this opportunity to farmers to do this, if
they, right now, and, and we've said it in the Community Development Plan, right now they are
not doing it. They are not doing it, and so while the current ordinance goes, it recognizes and goes
somewhat down that path to simplify, this goes even further down the path to simplify it. And I
like the part about not duplicating; there is no reason to have a plan and a certificate. Do one or
the other. In this case it's a certificate. That's great. As far as clarify, if an ag tourism business
goes over 15,000 people, that's pretty straightforward, not talking enforcement, but if it goes over
that, believe me, that ag operator will know he's over 15,000 a year, will know he's over 15,000 a
year, and by that, by that definition it flips over to a Special Use or Use Permit, and believe me,
that's when you get into, dust control, forklifts being covered, water, educating tourists, I mean,
you can go on and on. Like Daryn said, okay, at what point do you create an ordinance that takes
into account every situation that could possibly happen, and you ordina- and you write that into
the ord- you'll have a 300-page document that nobody will apply for. Right now nobody is
applying for what we have in the books right now. So I would like to see this pass and, again, this
is just a recommendation to the County Council, and I'm really glad members of the County
Council are here because we are speaking to you. These are just recommendations and they are
going to be going through their entire thought process also. But I think our main point by having
this discussion, and making this motion and approving this motion is, hey, it's not working right
now. And we are not talking about lightening the regulations; this is more lightening the process
to where a farmer who wants to set up a roadside stand can--he comes in, he fills out his
application, his certificate of, his certificate. And that really should get him well on his way to
opening up his fruit stand. And I live in South Kona, and South Kona Fruit Stand is a great
example. Twenty years ago they popped up a cardboard table and an umbrella; today they are a
full-blown operation, they bulldozed their parking lot, they put up their stand, it is a viable
operation. I'd love to see 30, 40, 50 South Kona fruit stands set up and working under the
guidelines of this ordinance. And in order to get there, we need to make some changes, and so I
like these changes.
Any other comments? We have a motion on the table. Mr. Darrow, can you call for a roll call?
DARROW: Sure. The motion before us is to send an unfavorable recommendation for Bill 227,
Draft 2, to the Hawai`i County Council. With that, we'll take the roll call. Commissioner
Church?
CHURCH: Aye.
DARROW: Commissioner Kaholo?
KAHOLO: Aye.
DARROW: Commissioner Carr Smith?
CARR SMITH: Aye.
DARROW: Commissioner Kealoha?
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KEALOHA: Aye.
DARROW: Commissioner Nobriga?
NOBRIGA: Aye.
DARROW: Commissioner Shimaoka?
SHIMAOKA: Aye.
DARROW: And Mr. Chairman?
UNGER: Aye.
DARROW: The motion passes, seven to zero.
UNGER: Thank you.
The discussion ended at 11:08 a.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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