Hawai‘i Supreme Court Upholds Prohibition on Short-Term Vacation Rentals in Agricultural Districts

In a recent opinion, Rosehill v. State of Hawai’i Land Use Commission, the Hawai’i Supreme Court (HSCT) reinforced the agricultural district’s purpose under state land use law, holding that farm dwellings in the agricultural district cannot be used as short-term vacation rentals. This decision underscores the state’s commitment to preserving agricultural lands for agricultural purposes, a principle enshrined in Hawai’i Revised Statutes (HRS) Chapter 205.

The HSCT’s Holding

At the heart of this case was a dispute over whether short-term vacation rentals could be allowed in farm dwellings in the agricultural district. The Rosehill Petitioners argued that their farm dwellings should be allowed to operate as short-term vacation rentals, pointing to the absence of a specific minimum rental period in the governing statutes. They claimed that their use of the dwellings as rentals for 30 days or fewer should qualify as a permissible use under HRS § 205-4.5(a)(4), which permits farm dwellings in agricultural districts.

However, the HSCT disagreed, siding with the Land Use Commission (LUC) and the County of Hawai’i. Both argued that allowing short-term vacation rentals would undermine the purpose of the agricultural district. The HSCT held that farm dwellings must be used in connection with a farm or involve income from agricultural activity, and short-term vacation rentals are incompatible with this requirement.

Preserving Agricultural Land Use

The HSCT emphasized that the primary goal of the agricultural district is to preserve land for agricultural use. The decision reinforces the legislative intent behind the state’s land use law, which, in sum, prevents agricultural land from being repurposed for non-agricultural uses that could erode the long-term viability of Hawai’i’s agricultural economy.

The HSCT pointed to the clear language of HRS § 205-4.5(b), which restricts any unpermitted uses in the agricultural district. Since short-term vacation rentals are not listed as a permitted use, they are prohibited. The HSCT further rejected the petitioners’ argument that farm dwellings could serve both agricultural and transient accommodation purposes, stating that short-term vacation rentals would undermine the agricultural focus of the land.

In re Kanahele and the Issue of Jurisdiction

In addition to the substantive land use issues, the case highlighted an important procedural point regarding the jurisdiction of appeals from agency declaratory orders under HRS § 91-8.  Citing its recent opinion, In re Kanahele, the HSCT held that Rosehill Petitioners should have directly appealed the LUC’s declaratory order to the HSCT, not the circuit court.

This jurisdictional rule stems from Act 48, which amended Hawai’i’s land use laws to provide for the HSCT’s direct review of certain contested cases. In Kanahele, the HSCT expanded its jurisdiction to hear direct appeals to agency declaratory orders. Consequently, the Rosehill Petitioners’ case was transferred to the HSCT; however, the HSCT held that “the circuit court’s findings of fact and conclusions of law have no weight.” This highlights the importance of navigating the correct procedural path when appealing agency decisions.

HSCT Defers to Agencies

In its decision, the HSCT addressed the issue of agency deference, affirming that it will generally defer to an agency’s interpretation of ambiguous statutes unless that interpretation is “plainly erroneous or inconsistent with the underlying legislative purpose.” The HSCT upheld the LUC’s interpretation of HRS § 205-4.5, emphasizing that the LUC’s reading aligned with the statute’s goal of protecting agricultural lands. In doing so, the HSCT explicitly noted that its approach to administrative deference differs from recent shifts in federal jurisprudence, particularly the U.S. Supreme Court’s (SCOTUS) overruling of Chevron v. Natural Resources Defense Council in Loper Bright Enterprises v. Raimondo. The HSCT pointed out that unlike the federal courts, which have moved away from deferring to agencies in cases of statutory ambiguity, Hawai’i courts continue to respect agency expertise in interpreting complex regulatory schemes when consistent with legislative intent. This approach underscores Hawai’i’s commitment to preserving judicial deference in administrative matters.

Key Takeaways

• Short-Term Rentals in Agricultural Districts Are Prohibited. The HSCT’s decision firmly establishes that short-term vacation rentals are incompatible with farm dwellings in agricultural districts.
• Enforcement of County Ordinances. The County of Hawai’i’s ordinance prohibiting short-term rentals on lots created after June 4, 1976, in the agricultural district was upheld. Counties can enforce such ordinances, even when they impose stricter limitations than state law.
• Direct Appeals Under Act 48. The HSCT’s citation to In re Kanahele reminds us that appeals from LUC declaratory orders must go directly to the HSCT, bypassing the circuit court. 
• Agency Deference. The HSCT expressly stated that it recognizes the principle of agency deference and disagrees with SCOTUS’s overruling of Chevron.

The Rosehill decision affirms the state’s commitment to protecting agricultural lands from incompatible uses and sets a clear line on allowed uses in the agricultural district. 

PBS Insights Panel Discusses Housing, Agricluture, and Other Land Use Issues

Selected Tweets from last night's live show, PBS Insights.

Souki: Ag is not just land; it's also labor and capital. How can we enable more people to farm? #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Atta: The city is trying to shift to multiple modes of transportation and put jobs and homes closer together. #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Reppun: "We need to change the kind of agriculture that we do." #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Minerbi: "We need, of course, both (housing and ag)." #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Hawaii's ag land, highlighted in green. #pbsinsights pic.twitter.com/DBmNhBFJYG
— PBS Hawaii (@pbshawaii) February 27, 2015

PUC Denies HELCO's Biodiesel Supply Contract with Aina Koa Pono-Ka'u LLC

On September 29, 2011, the Hawaii Public Utilities Commission (PUC) issued an order denying Hawaiian Electric Company's (HECO) application, to approve Hawaii Electric Light Company's (HELCO) Biodiesel Supply Contract with Aina Koa Pono-Ka'u LLC (AKP).

The proposal would have provided approximately sixteen million net US gallons annually of locally-produced biodiesel over twenty years. AKP's proposed Big Island project would have consisted of (1) the construction of a biorefinery for the production of biofuel; and (2) the planting, cultivation, and harvesting of the agricultural feedstock that will be refined in AKP's facility to produce the biofuel. The agricultural feedstock would have been grown on currently fallow sugar cane land previously owned by C. Brewer & Co. AKP planned to grow perennial grasses such as sterile napier grasses as well as eucalyptus for their feedstock.

A Variety of Napier Grass
Source: http://www.botany.hawaii.edu/faculty/carr/po.htm

According to HECO's application,

In sum, this Biodiesel Supply Contract is an integral part of the Companies' plans to, including without limitation, (1) continue its strategy to meet the [Renewable Portfolio Standards ("RPS")] requirements that fifteen percent (15%) of the Companies net electricity sales must come from renewable resources by December 31, 2015, twenty-five percent (25%) of [the Companies'] net electric sales come from renewable energy by December 31, 2020, and forty percent (40%) of [the Companies'] net electric sales come from renewable energy by December 31, 2030, (2) further help create energy independence and energy security, (3) use locally grown feedstock for biofuel produced in Hawai'i to help meet the RPS requirement and support the State's goal of diversifying Hawai'i's economy by encouraging the development of local agriculture, (4) reinforce Hawai'i as a showcase for renewable energy, and (5) help preserve Hawai'i's green landscape for future generations.

In denying HECO's application, the PUC found and concluded that the "contract price for the AKP-produced biofuel is excessive, not cost-effective, and thus, is unreasonable and inconsistent with the public interest." The PUC noted that "from a real world, bill-paying perspective, the HECO Companies seek the commission's approval to consistently charge affected ratepayers a premium for HELCO's purchase and use of AKP-produced biofuel under the terms of the twenty-year contract," and that approving the contract would, "displace or curtail existing cheaper renewable alternatives."

A copy of the Decision and Order can be downloaded at http://dms.puc.hawaii.gov/dms/DocumentViewer?pid=A1001001A11I29B53024D28344.

Is Your Food Secure?

This blog entry pulls together information on food security policy.

Domestically, the U.S. Department of Agriculture (USDA) measures U.S. household food security, which it defines as follows:

Food security for a household means access by all members at all times to enough food for an active, healthy life. Food security includes at a minimum: The ready availability of nutritionally adequate and safe foods[; and] Assured ability to acquire acceptable foods in socially acceptable ways (that is, without resorting to emergency food supplies, scavenging, stealing, or other coping strategies).

Conversely, "food insecurity" is defined as "limited or uncertain availability of nutritionally adequate and safe foods or limited or uncertain ability to acquire acceptable foods in socially acceptable ways."

According to the USDA, 85.3 percent (100.8 million) of U.S. households were food secure throughout 2009--essentially unchanged from 85.4 percent in 2008.  On average, between 2007 and 2009, 13.5 percent of U.S. households and 11.4 percent of Hawaii households were food insecure.

The President has also made food security part of his international policy.  In his May 2010, National Security Strategy, the President wrote,

Promoting Food Security: The United States is working with partners around the world to advance a food security initiative that combats hunger and builds the capacity of countries to feed their people. Instead of simply providing aid for developing countries, we are focusing on new methods and technologies for agricultural development. This is consistent with an approach in which aid is not an end in itself—the purpose of our foreign assistance will be to create the conditions where it is no longer needed.

Through the President’s initiative, Feed the Future, the President has pledged $3.5 billion to help poor countries fight hunger by investing in agricultural development solving global hunger and food security.

Ways of getting at the problem can take different forms.  Food security in a post-9/11 era connotes other dangers to our food supply, and some have made that connection.  According to the National Association of State Departments of Agriculture (NASDA) website, "[s]ince the September 11, 2001 terrorist attacks, we are more keenly aware of the need to protect the integrity and safety of our agriculture and food infrastructure."  The new threat is "[t]he prospect of an intentional, or terrorist, attack on our food and agriculture industry raises grave concerns that present challenges for producers and policy makers alike."

The USDA's focus on the perceived problem of terrorism on the US food supply is focused on the efficacy of traceability systems.  Traceability systems track the flow of food products through the supply chain to manage issues like bio-terrorism, country-of-origin labeling, Mad Cow disease, and genetically engineered foods.  According to the USDA, policymakers in many countries have begun weighing the usefulness of mandatory traceability.  The jury is still out on how to best implement tracing, but a 2004 USDA brochure recommended the following:

Government may also consider mandating traceability to increase food safety. However, the already widespread voluntary use of traceability complicates the application of a centralized system. Mandatory systems that fail to allow for variation are likely to impose unnecessary costs on firms that are already operating efficient traceability systems.

The response to food security issues has also taken on the color of climate change policy.  Climate change, in particular sea level rise, could decimate agricultural lands within sea level rise boundaries.  Changes in weather patterns may also impact growing seasons and types of agricultural activities.  In a 2001 USDA policy paper, the author wrote, "[g]lobal warming is likely to reduce agricultural production in the Tropics, where many developing countries are located."  

Solving domestic and international food security is complex and research is ongoing.  In the meantime, sustainability, urban gardens, and other related "local" farming movements are making a comeback.  This reoccurring movement had its heyday during the 1960's and 1970's--e.g., People's Park.  By having food grown and produced close to consumers, the food supply chain is shortened.  This is arguably more secure, since traceability is less complicated.  In addition, a shorter supply chain might reduce dependence on fossil fuels.  Dependence on fossil fuels could be further reduced by encouraging intrastate use of alternative fuels (depending on policy framework ) for farming equipment, transportation, and processing.

Food security is difficult to resolve.  Domestically, the federal government, through the USDA, has several successful programs to ameliorate the problem, and many non-profits like food banks try to fill in the gaps.   Hawaii has tried to address this problem when the state legislature created the Food Security Task Force; however, Task Force recommendations were not adopted.  The Task Force recommended the following in their 2002 Food Security Task Force Report: (1) Create state food policy and objectives; (2) Create a Food Security Council; and (3) Provide $192,000 a year to fund Council operations.

Professor George Kent from the University of Hawaii summed up the issue best when he wrote,

The challenge is not to feed people, but to see to it that they live in conditions in which they can provide for themselves. Paradoxically, you don’t solve the hunger problem by feeding people. The task is not simply to establish more feeding programs, but to design a Hawaii in which all able-bodied people are able to take care of themselves. Regardless of whether we draw on federal resources or charitable giving or local farmer’s markets, the state government that should take the responsibility to assure that no one in the state goes hungry. 

 To read more about agricultural issues, see Agriculture.

County of Kauai Important Agricultural Lands Study

In 2008, the University of Hawaii Department of Urban and Regional Planning (DURP) completed a pilot study for the State Land Use Commission on the designation of Important Agricultural Lands (IAL) using the framework from Act 183, SLH 2005.

Fulfilling the legislative mandate in Act 183, the County of Kauai subsequently approved funding to contract with DURP to identify IAL county‐wide. That study can be found here at County of Kauai Important Agricultural Lands Study.

The policy supporting Act 183 is codified at HRS § 205-41, as follows:

Declaration of policy. It is declared that the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State. There is a compelling state interest in conserving the State's agricultural land resource base and assuring the long-term availability of agricultural lands for agricultural use to achieve the purposes of:(1) Conserving and protecting agricultural lands;(2) Promoting diversified agriculture;(3) Increasing agricultural self-sufficiency; and(4) Assuring the availability of agriculturally suitable lands,pursuant to article XI, section 3, of the Hawaii state constitution.

Under HRS § 205-47, each county is directed by the legislature to identify and map potential important agricultural lands within its jurisdiction based on the standards and criteria laid out in Act 183, which is also codified at HRS § 205-41, et seq.

Natural Resources Section's November Brown Bag Lunch Meeting: An Overview of Important Ag. Land

The Natural Resources Section of the Hawaii State Bar Association will host guest speaker Thomas S. Witten, President of PBR Hawaii & Associates, Inc., who will present:  “An Overview of Important Ag. Land.”

Important agricultural lands ("IAL") legislation is codified under HRS §§ 205-41, et. seq, and proposed rule changes to implement IAL are found under HAR chapter 15-15.  The objective of IAL legislation is to "identify and plan for the maintenance of a strategic agricultural land resource base that can support a diversity of agricultural activities and opportunities that expand agricultural income and job opportunities and increase agricultural self-sufficiency for current and future generations."  HRS § 205-42.  In order to promote IAL, the statute also provides for certain landowner incentives.  Id.

Here are some articles written about IAL policy and implementation:

• Historic Decision at the Land Use Commission; First IAL Designation
• 2008 Legislative Session Round Up (discussing proposed SB2646 SD2 HD2 CD1)
• 2008 Legislative Update: Crossover and Second Lateral (discussing various legislative proposals)

NRS will hold its meeting on Tuesday, November 16, 2010, from noon to 1:00 p.m. at the HSBA conference room (located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street).

Historic Decision at the Land Use Commission; First IAL Designation

On March 9, 2009, the State Land Use Commission (Commission) granted Alexander & Baldwin its request to designate 3,773.1 acres of land on the island of Kauai to important agricultural lands (IAL). See Petition For Declaratory Order To Designate Important Agricultural Lands.

Agricultural Lands on the Island of Hawaii

The IAL is an additional state designation within the state land use framework that divides the state into four land use districts: urban, rural, agricultural, and conservation.  Approximately 95 percent of land in the state is designated conservation and agricultural, about equally split between the two.  Less than 5 percent and less than 1/2 a percent of land in the state are designated urban and rural, respectively.  Counties may zone land within its boundaries subject these state land use designations. The urban designation is regulated entirely by the counties through zoning. Counties have limited zoning authority in the rural and agricultural districts. Conservation districts are regulated by the state through the Department of Land and Natural Resources. See Hawaii Land Use Regulatory System.

The agricultural district restricts uses and structures to those enumerated under HRS §§ 205-2, 205-4.5, and 205-4.6. In particular, "[a]ctivities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry" are allowed. See HRS § 205-2(d)(1). Non-agricultural uses are also allowed in the agricultural district, for example, wind farms and open area recreational facilities. Farm dwellings and employee housing are also allowed within the agricultural district.

The IAL designation is the state's attempt to preserve agricultural land above and beyond land already in the agricultural district.  IAL is governed by HRS § 205-41, et seq. The purpose of the statute is to fulfill the promise of Article XI, § 3 of the Hawaii Constitution, which provides as follows:

Section 3. The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Before the Commission can designate land as IAL, it must consider eight criteria, which is above and beyond the criteria considered for the agricultural district. These criteria are enumerated under HRS § 205-44 as follows:

1. Land currently used for agricultural production;
2. Land with soil qualities and growing conditions that support agricultural production of food, fiber, or fuel- and energy-producing crops;
3. Land identified under agricultural productivity rating systems, such as the agricultural lands of importance to the State of Hawaii (ALISH) system adopted by the board of agriculture on January 28, 1977;
4. Land types associated with traditional native Hawaiian agricultural uses, such as taro cultivation, or unique agricultural crops and uses, such as coffee, vineyards, aquaculture, and energy production;
5. Land with sufficient quantities of water to support viable agricultural production;
6. Land whose designation as important agricultural lands is consistent with general, development, and community plans of the county;
7. Land that contributes to maintaining a critical land mass important to agricultural operating productivity; and
8. Land with or near support infrastructure conducive to agricultural productivity, such as transportation to markets, water, or power.

The legislature sets out specific criteria for when a farm dwelling or employee housing is allowed on IAL.  IAL dwellings or housing must meet several specific statutory requirements under HRS § 205-45.5, including the following: (1) the dwelling or housing must be used exclusively by farmers and their immediate family members who actively and currently farm on the parcel; (2) it cannot take up more than 5 percent of the total acreage of the parcel; (3) an owner of IAL cannot plan or develop a residential subdivision for the parcel; and (4) the construction of dwellings or housing must be supported by agricultural plans that are approved by the Department of Agriculture, State of Hawaii. State law also specifically circumscribes the sale of IAL parcels "solely for residential occupancy." See HRS § 205-51.

There are two processes by which the Commission designates IAL.  The first is voluntary by landowners, and the second is through maps prepared by the counties   There are incentives for seeking a voluntary IAL designation for private landowners, which include the following:

• Fast-tracked approval process for the designation of IAL 
• Simultaneous fast-tracked urban designation if 85 percent of the land in a petition is designated as IAL.  This is commonly referred to as the "85/15 incentive."
• Tax credits on investments in IAL infrastructure.  
• Voluntary designation allows landowners to select which or their lands will be designated IAL.   HRS § 205-49 provides that "if the majority of landowners' landholdings is already designated as important agricultural lands . . . the commission shall not designate any additional lands of that landowner as important agricultural."

In addition to the voluntary process described above, there is also a mandatory county designation process.  HRS § 205-47 requires that each county must develop maps of potential lands to be considered for designation as IAL. These maps must be adopted by a county council resolution and submitted to the Commission no later than 60 months from the date of county receipt of state funds appropriated for the identification process (so far, only the County of Kauai has received such funds). Upon receipt of the IAL map by the Commission, the Department of Agriculture and the Office of Planning will review the IAL map. See HRS § 205-48. Finally, the Commission will designate the IAL based on the IAL map. See HRS § 205-49.

Governor’s Veto List

Under Hawaii’s Constitution, the Governor has 45-days after the legislatures' adjournment (i.e., sine die) to consider bills presented to her on, or less than 10-days prior to, the legislatures’ adjournment. After the 2008 Legislative Session adjourned on May 1, the 45-day deadline is July 8. (See, note supra).

However, the Governor is required to give the legislators 10-days notice regarding the bills she intents to veto before July 8, that notice deadline was yesterday, June 23. The Governor’s notice proclamation is commonly referred to as the veto list. Any bill not on the list cannot be vetoed and becomes law.

All of the land use bills that I wrote about in the 2008 Legislative Session Round Up were not on the veto list and so will become law. Noticeably absent from the list were the important agricultural lands (“IAL”) bills and the mandatory solar bill.

Notable bills on the veto list include:

• SB2198, which would provide a tax credit to landowners who donate land for open space or conservation.
• SB2644, which would require that the state historic preservation officer (i) be a qualified historic preservation professional in architecture, architectural history, archaeology, history, culture, or a closely related field, who meets the professional qualification standards established by the United States Secretary of the Interior; and (ii) have professional experience with respect to historic preservation in Hawaii.
• SB2933, which would prevent any agreement (e.g., covenants, conditions, and restrictions) that would prohibit a landowner from erecting and using a clothesline for the purpose of drying clothes on the premises of any single-family residential dwelling or townhouse.

The legislature may reconvene on the July 8 in a special session to override the Governor’s veto.

Note: If you’re wondering how July 8 is 45-days from sine die which was May 1, the magic number is arrived at by excluding weekends, holidays, and days in which the legislature was in recess prior to adjournment. (See Haw. Const. Art. III, § 16.) Talk about voodoo math!

2008 Legislative Session Round Up

Hawaii's 24th Legislative session adjourned on May 1, 2008. The Governor has until July 8 to sign, veto or allow the measures to become law without her signature. The following are lists of bills and acts related to land use and administrative processes.

As of May 11, 2008, bills that became law include:

• Act 12, SB2428, exempts state highway projects from county subdivision ordinances.
• Act 14, HB3325 HD2, adds time share plans to the list of offers or dispositions of an interest in land that are exempt from the Uniform Land Sales Practices Act.
• Act 20, SB3105 SD1, allows a board to close a meeting to the public if (i) it determines that it is necessary to meet at a location that is dangerous to health or safety, or if a board determines that it is necessary to conduct an on-site inspection of a location that is related to the board's business at which public attendance is not practicable, and (ii) the director of the office of information practices concurs.
• Act 26, HB2523 , amends the land use commission's decision-making criteria to include county general plans and all related community, development, or community development plans when determining whether to grant or deny a petition for state district boundary amendment. General plans are already considered by the state land use commission. This Act simply appears to reify that practice.
• Act 31, HB2502 HD2, amends HRS Section 205-2 to allow the use of solar energy facilities on lands classified by the state as Agricultural, but only where the soil is classified by the land study bureau's detailed land classification as overall (master) productivity rating class D or E.
• Act 56, SB2900 SD1 HD1, doesn't solve the underlying problem of counties refusing to accept public highways not belonging to the state as would proposed House Bill HB 3415; rather instead, this Act gives counties a way around HRS § 264-1 (amended by Act 12, supra, provides that all public highways that don't belong to the state belong to the county), by allowing the county to maintain public highway's not belonging to the state without the presumption that the county owns a particular street, road, or highway.

Bills that passed the legislature, but are still with the governor for consideration include:

• HB2293 HD1 SD2 CD2, authorizes the Agribusiness Development Corporation to acquire agricultural lands vis-a-vis a bill enacted into law; allows acquisition agricultural lands owned by the Galbraith Estate.
• HB2450 HD1 SD2 CD1, requires the land use commission to include certain conditions in the decision granting approval of a district boundary amendment where adjacent lands are in the agricultural district, to wit (i) a prohibition on any action that would interfere with or restrain farming operations, and (ii) notification to future purchasers of the reclassified land that that farming operations and practices on adjacent land in the agricultural district are protected under Hawaii's Right to Farm Act.
• HB2730 HD1 SD1 CD1, creates a new section under Hawaii's Sunshine Law that carves out exceptions for neighborhood boards. In particular, members are allowed to meet and attend meetings outside a publicly noticed meeting so long as it is less than a quorum of its members and no commitment is made relating to a vote.
• HB2810 HD1 SD1 CD1, allows the public utilities commission to provide preferential rates for potable water used for agricultural activities.
• SB644 SD3 HD3 CD1, mandates that on or after January 1, 2010, no building permit shall be issued for a single-family dwelling that does not include a solar water heater system, and it repeals the solar energy tax credit by 2010.
• SB2170 SD1 HD1 CD1, provides a tax credit for landowners who donate land in perpetuity or completes a bargain sale in perpetuity to the State or public or private conservation agency that fulfills a conservation or preservation purpose.
• SB2293 SD1 HD1 CD1, exempts from zoning, new multi-family for-sale housing condominium developments of seventy-five units or more per acre on privately owned lands and privately financed, under HRS Chapter 201H.
• SB2646 SD2 HD2 CD1, among other things, the Act allows landowners whose agricultural lands are designated as important agricultural lands ("IAL") to construct farm dwellings and employee housing for farmers, employees, and their immediate family members on the IAL.

2008 Legislative Update: Crossover and Second Lateral

Here are a few land use and administrative law related bills wending their way through the legislature. These bills remain viable after moving past two recent deadlines: First Crossover (bills transmitted to other house for consideration; i.e., from House to Senate or from Senate to House) & Second Lateral (deadline for a bill to be in its last referred committee after first crossover):

In an effort to save energy, SB 2933 prohibits persons, through private agreements, from preventing the use of clotheslines on private property for clothes drying; for example, preventing the use of a clothesline on a unit owner’s balcony in a high-rise condominium development by a condominium association agreement.

Another energy saver, SB 644, mandates that all new residential detached single-family residences permitted after January 2010, install a solar thermal device as the primary water heating system in the construction, unless installation is impracticable due to poor solar resource; installation is cost prohibitive and a substitute renewable energy device is installed; or a demand water heater device approved by Underwriters Laboratories Inc., is installed.

Many bills sought to preserve farming and define uses in the state agricultural district. HB 2503 expands permitted uses in the agricultural district to include “agricultural-energy facilities” on lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B (by operation of the land use commission’s rules, this use would also be allowed on class C and D lands). "Agricultural-energy facility" is defined by the legislature as “a facility that generates, stores, or distributes renewable energy or renewable fuel including electrical or thermal energy or liquid or gaseous fuels from products of agricultural activities from agricultural lands located in the state.”

The legislature proposed several bills related to important agricultural lands ("IAL"), providing incentives for landowners who voluntarily designate IALs including HB 2518 (tax incentives) and HB 2357 and SB 2646 (omnibus bills that include various incentives).

In an effort to preserve agricultural lands for farming, HB 2355 places a moratorium on the “issuance of permits for the construction of wells intended to serve agricultural land parcels that are likely to be ‘fake farms’ or ‘gentleman estates.’”

“Smart grow” is the term du jour this session with at least a half-dozen bills invoking the term. Among the viable are HB 2527 (allows the Office of Planning to impose “smart growth” principles “in new and existing communities in the State”); HB 1919 (adds “smart growth” principles to the land use commission’s decision-making criteria for residential or commercial projects); and HB 2526 (overhauls the Hawaii State Plan by adding that land development shall be in compliance with “smart growth principles,” codifying the Hawaii 2050 Sustainability Plan, and establishing a fifteen member sustainability council to implement the Hawaii 2050 Sustainability Plan).

Several bills were introduced to provide flexibility for decision-makers in the State's opening meetings/sunshine law: HB 2730 (allows Oahu neighborhood board to discuss and accept information on issues not on the agenda and for them to attend un-noticed workshops together, so long as no decision is made on a matter before them); HB 1968 and HB 2216 (allows more than two members, but less than quorum, to discuss board business outside of a noticed meeting and to attend and participate in workshops); and SB 3105 (amends the Sunshine Law to clarify limitations placed on public attendance at dangerous on-site inspections of a location).

A potpourri of other land use related bills are still in play including:

HB 2243 allows lands zoned by the county prior to 1980 to remain inconsistent with subsequent state land use designations.

HB 1037 extends the shoreline setback to not less than forty feet from the shoreline and requires counties to account for annual erosion rates.

HB 2428 and SB 2900 attempt to address the conflict between the state and county regarding ownership and jurisdiction of public highways.

HB 3177 increases the maximum penalty for violations within the conservation district from $2,000 to $20,000 per violation plus costs, and it increases the additional daily penalty from $2,000 to $20,000.

SB 2780 broadens the applicability of public work requirements or private construction to include “a construction contract valued at $500,000 or more between private persons using state or county land for commercial, profit-making activity.”

How Much Agricultural Land Does Hawaii Need?

In, Proposals aim to sustain agriculture, the Honolulu Advertiser reports that “[o]verall, Hawai'i has lost roughly 50,000 acres of farmland since 1978” and the “state currently has about 1.3 million acres of farmland.”

What the article does not report is that according to the most recent numbers in the Hawaii Data Book, there is a total of 4,112,388 acres of land in the State of Hawaii, of which, 47.99% is designated for Conservation, 46.94% is designated for Agricultural, 4.81% is designated for Urban, and 0.26% is designated for Rural. Of the total acreage in Agriculture reported by the Advertiser and in the Hawaii Data Book, not all of the land is actively farmed because of an over supply of land after the fall of Hawaii's large plantations.

Here are some questions that need to be asked and addressed:

• How much agricultural land does Hawaii need to sustain itself?
• Nearly half the state is classified as agricultural, but how much of that land is actually farmed since the fall of the big plantations in Hawaii?
• Is there an unmet demand for diversified agriculture?
• Is farming in Hawaii economically feasible?
• Will keeping almost half of Hawaii in Agriculture stimulate creation of the kinds of jobs that will stem Hawaii’s brain drain or entice Generation X, et al., back to Hawaii?
• When nearly half of Hawaii was classified as Agricultural, much of the land was not suitable for farming as rated by, for example, the Land Study Bureau, the US Geological Survey, and the University of Hawaii. Is it wise to keep those lands classified as Agricultural?
• Given Hawaii’s unmet housing demand by young professionals, blue collar workers, and the shortage of industrial space, would it be better to have a more balanced land use policy instead of one that has nearly 95 percent of Hawaii’s lands kept from development (the supply of land and burdensome regulations being the primary contributors to housing costs as I discussed here)?

Policymakers are faced with a tenuous balancing act as they move forward with agricultural measures during this legislative session. Their decisions will have both short-term and long-term implications for the vitality of Hawaii.